Worrell, in the matter of Tantner (Bankrupt) v Issitch

[1999] FCA 1392

FEDERAL COURT OF AUSTRALIA

Worrell, in the matter of Tantner (Bankrupt) v Issitch [1999] FCA 1392

SIGFRIED TANTNER, EX PARTE:  IVOR WORRELL v LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH and HILARIO RICABLANCA and GREGORIA RICABLANCA
QG 7007 of 1996

DOWSETT J

30 SEPTEMBER 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7007 OF 1996

BETWEEN:

SIGFRIED TANTNER
Bankrupt

EX PARTE:  IVOR WORRELL
Applicant

AND:

LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH
Respondent

HILARIO RICABLANCA AND GREGORIA RICABLANCA
Cross-Respondents

JUDGE:

DOWSETT J

DATE OF ORDER:

30 SEPTEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application to re-open the applicant’s case be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7007 OF 1996

BETWEEN:

SIGFRIED TANTNER
Bankrupt

EX PARTE:  IVOR WORRELL
Applicant

AND:

LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH
Respondent

HILARIO RICABLANCA AND GREGORIA RICABLANCA
Cross-Respondents

JUDGE:	DOWSETT J
DATE:	30 SEPTEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This case is now well into its second week.  It involves a trial of proceedings which have been going for quite some years.  It certainly cannot be suggested that there has been a race to trial.  It seems that in the preparation for trial, counsel for the respondent submitted a notice to admit certain documents to the applicant and also an unsigned draft affidavit by a Dr Maurice Stevens.  The applicant agreed to admission of the documents and indicated that he did not wish to cross-examine Dr Stevens.  The applicant thereafter conducted the case upon the basis that Dr Stevens' affidavit was to be read at the trial and that the documents in question would go in without opposition and without further proof.

2. For whatever reason, the respondent has departed from her intended course.  Dr Stevens' affidavit has not been read, apparently because he declined to sign it, and the documents in question have not been tendered.  In fact, they were tendered as part of a bundle of documents at the beginning of the trial, but I refused to accept them on the basis that I required identification of the relevant documents rather than tender of the whole bundle.  It is inappropriate for parties simply to tender a large bundle of documents and then leave it to the Judge to work out which ones are relevant.  In the event, the respondent did not seek to tender any of the individual documents in the bundle.  The applicant now submits that he has been misled by the affidavit not being read and by the documents not being tendered.  He seeks to re-open his case to tender certain of the documents.  The documents, which were also exhibited to the draft affidavit to which I have referred, were notes of attendance by Dr Stevens upon the bankrupt.  The evidence indicates that the bankrupt was, at that stage, of very advanced years and that his faculties fluctuated from time to time.

3. The evidence which the applicant seeks to lead is as to statements made by the bankrupt to Dr Stevens concerning his wife and their plans with respect to the building of another home.  It is pointed out that some of the statements made to Dr Stevens appear to be inconsistent with statements allegedly made by the bankrupt at or about the same time to other people, particularly to the respondent.  Whilst this may be so, I have some difficulty in concluding that much weight could be placed upon isolated statements, made by the bankrupt over a period of months, to his medical practitioner, without any supporting evidence from the medical practitioner as to his condition at the time.  In any event it would be difficult to know to what extent such a person’s perceptions reflected reality.  It is also not clear to me that it would be fair to the respondent to permit the applicant to re-open his case at this stage.  It is likely that to secure such fairness, some witnesses would have to be recalled.  Although that can probably be done, it would inevitably result in a further delay of the trial.  In all of the circumstances that would not be justified.

4. I am not to be taken as endorsing the approach taken by the respondent in this case.  There is much to be said for the view that if one party seeks admissions from another, and those admissions are made, both parties should proceed thereafter upon the basis that the action is to be conducted upon that conventional basis.  However it is not necessary for me to decide that question in this case because I consider it inappropriate to permit re-opening of the case at this stage, given the nature of the evidence which is sought to be adduced.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             11 October 1999

Counsel for the Applicant:	Mr M Martin
Solicitor for the Applicant:	Baker Johnson
Solicitor for the Respondent:	Mr Andrew P Abaza
Date of Hearing:	30 September 1999
Date of Judgment:	30 September 1999