WOOLLEY v Vok (No.2)
[2011] FMCA 1053
•7 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOOLLEY v VOK (No.2) | [2011] FMCA 1053 |
| BANKRUPTCY – Application for an adjournment of the hearing of a creditor’s petition. |
| Bankruptcy Act 1966 (Cth), s.52 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Moon v JLG Industries (Australia) (2011) 249 FLR 348; [2011] FMCA 343 Rotstein v Slaveski (2010) 8 ABC(NS) 200; [2010] FCA 493 |
| Applicant: | GREGORY WOOLLEY |
| Respondent: | PETER VOK |
| File Number: | SYG 658 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hynes |
| Solicitors for the Applicant: | Henry Davis York |
| Respondent: | In person |
ORDERS
The application for a further adjournment is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 658 of 2011
| GREGORY WOOLLEY |
Applicant
And
| PETER VOK |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for an adjournment of the hearing of a creditor’s petition that was listed for hearing today. Mr Vok seeks a two week adjournment on the basis that he has had no time to prepare for the hearing of the creditor’s petition because the applicant’s application in a case to set aside a subpoena was also listed for hearing today. He claimed that he had spent the last four days preparing for that application and that he had had no time to prepare for the creditor’s petition. He objected to the fact that the application to set aside the subpoena was dealt with on the same day as the hearing of the creditor’s petition when he exercised liberty to apply on 1 December 2011. In effect he unsuccessfully sought an adjournment of the petition at that time.
I have had regard to whether it is in the interests of the administration of justice and of the parties to grant the adjournment sought. I have borne in mind, in the context of a hearing of a creditor’s petition, the importance of minimising or avoiding delay once bankruptcy proceedings have been instituted (see generally Rotstein v Slaveski (2010) 8 ABC(NS) 200; [2010] FCA 493). Due weight must be given to the prima facie right of a petitioning creditor to obtain sequestration (provided the elements of s.52(1) of the Bankruptcy Act 1966 (Cth) are established). I have also considered generally the factors considered by Lucev FM in Moon v JLG Industries (Australia) (2011) 249 FLR 348; [2011] FMCA 343.
In this case the creditor’s petition was presented on 7 April 2011. This matter has been before the court on a number of occasions (from 7 July 2011 on). Mr Vok has had several adjournments to give him time to prepare for the hearing of the creditor’s petition. Relevantly, and importantly, a notice stating grounds of opposition to the creditor’s petition was filed by him on 26 September 2011. In other words the grounds on which Mr Vok sought to rely in opposition to the creditor’s petition were clear by 26 September 2011. Two supporting affidavits were also filed for Mr Vok at that time.
When the matter first came to me as the duty Federal Magistrate on 11 October 2011 I listed it for hearing on 18 November 2011. I made orders for the filing of further affidavit evidence by Mr Vok. Orders were made in chambers later that day listing the matter for hearing on 1 December 2011 as counsel for the applicant had requested an adjournment in circumstances where Mr Vok had also sought a later hearing date. Both parties sought a change in the hearing date. On 21 October 2011 the matter was listed for hearing on 7 December 2011 and the time for filing evidence was extended.
Mr Vok exercised liberty to apply and sought an adjournment of the hearing of the petition until after an application to set aside a subpoena (also listed for 7 December 2011) was determined. That application was refused on 1 December 2011.
It should have been obvious to Mr Vok, even prior to the time when the matter was before the court on 1 December 2011, that the creditor’s petition was listed for hearing on 7 December 2011 and that it may well go ahead, notwithstanding the application to set aside the subpoena. Moreover on 1 December 2011 I made it clear that if the subpoena was set aside, the hearing of the creditor’s petition would proceed on 7 December 2011 (and see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and Shirreff v Beck Legal Pty Ltd (No 2) [2011] FCA 603 in relation to issues of case management and the wastage of public resources).
I have borne in mind that Mr Vok is a self-represented litigant. However I consider that there has been ample time for him to prepare for the hearing of the creditor’s petition and adequately present his case. He has had considerable notice of the hearing date and ample opportunity to file evidence and submissions. The necessity to be ready to proceed was reiterated on 1 December 2011. The fact that the application to set aside the subpoena was also listed for today does not warrant an adjournment.
This is not the first occasion on which the matter has been before the court. The creditor’s petition was presented on 7 April 2011. The notice stating grounds of opposition was filed on 26 September 2011. There is no suggestion of any events relevant to the adjournment application other than the fact of the application to set aside the subpoena. The only basis on which the respondent says that he seeks an adjournment is that he seeks further time to prepare. There is no suggestion that an adjournment is sought to allow an appeal or to provide further evidence, for example as to the respondent’s financial circumstances. Rather, Mr Vok seeks two more weeks to prepare for the hearing.
I am not persuaded that it is in the interests of the administration of justice to grant a further adjournment. The application for an adjournment is refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 23 March 2012
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