FEDERAL COURT OF AUSTRALIA

Hovan, in the matter of Hovan v Goycolea-Silva [2003] FCA 235

BANKRUPTCY – bankruptcy notice – application to set aside bankruptcy notice – application for summary dismissal of application to set aside bankruptcy notice pursuant to Federal Court Rules O 20 r 2

COURTS & JUDGES – application for disqualification – where applicant committed for trial in District Court of New South Wales by Local Court constituted by judge’s spouse – no recollection of knowledge of committal proceedings – no reasonable apprehension of bias

Hovan v Goycolea-Silva [2003] FCA 234 referred to

IN THE MATTER OF GEORGE LESLIE HOVAN

GEORGE LESLIE HOVAN v MARIA SOLEDAD GOYCOLEA-SILVA

N7070 OF 2003

EMMETT J

7 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the proceeding be listed for directions before Lindgren J at 9.30 am on 20 March 2003;

2.         leave be given to the Respondent Creditor to file a notice of motion for summary dismissal of the proceeding pursuant to O 20 r 2 of the Federal Court Rules, such motion to be returnable before Lindgren J at 9.30 am on 20 March 2003;

3.         the Respondent Creditor to file and serve no later than 14 March 2003 any affidavits on which she intends to rely in support of the motion;

4.         the Applicant Debtor to file and serve no later than 19 March 2003 any affidavits on which he intends to rely in opposition to the motion. 

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

REASONS FOR JUDGMENT

1                     Yesterday I gave leave to George Leslie Hovan (“the Debtor”) to file an application to set aside a bankruptcy notice served on 15 November 2002: see Hovan v Goycolea-Silva [2003] FCA 234.  The bankruptcy notice issued by the Official Receiver bears the number NN1964 of 2002.  At the same time I declined to extend the time for compliance with the bankruptcy notice which had previously been extended on several occasions.  I gave leave for the application to be returnable before me this afternoon because of some urgency connected with the bankruptcy notice. 

2                     When the matter was called on today, two applications were made.  The first was an application on behalf of the Debtor that I disqualify myself from dealing with the substance of the matter.  The second was an application by the Creditor ore tenus that the application be dismissed pursuant to O 20 r 2 of the Federal Court Rules on the basis that it is frivolous or vexatious, or that it is an abuse of process.

3                     The basis for the first application is that the Debtor, I am informed, was committed for trial in the District Court of New South Wales by a Local Court constituted by my wife.  I presently have no recollection of any knowledge of the proceeding and I certainly have no knowledge of the issues that were raised in the committal proceeding.  I am informed, however, that there is a challenge in the Supreme Court, on legal grounds, to the orders for committal.  It is said that in those circumstances there would be a reasonable apprehension of bias on my part. 

4                     I do not consider that there is likely to be any reasonable apprehension of bias on the material that has so far been disclosed to me.  It is conceivable that, if the circumstances of the committal are explained in more detail I will have some recollection of hearing of the matter.  However, I have certainly had no involvement in the proceeding.  I have no knowledge of the Debtor and do not regard myself as disqualified from dealing with the matter.

5                     I am informed the application for summary dismissal was made today, in order to save unnecessary costs.  In substance, the application is for dispensation with the rules that would require such an application to be made by notice of motion served at least three clear days before the hearing of the application.  As I have said, the only reason for seeking dispensation of the rules that would require those formalities is the possibility of saving costs.

6                     There is already another proceeding on foot in this Court, being an appeal from a decision of the Federal Magistrates Court dismissing an application by the Debtor to set aside the very bankruptcy notice that is the subject of the present application to this Court.  That appeal is listed for directions before Lindgren J on 20 March 2003, a direction having been given by the Chief Justice that the matter be determined by a single judge.

7                     Since it will be necessary for the Creditor to appear on 20 March 2003, and to participate in the appeal, it seems to me that any saving in costs by dealing with the summary dismissal application today would be minimal.  The basis of the application for summary dismissal is that the Debtor is estopped, by reason of the order for dismissal made by the Federal Magistrates Court, from raising in a subsequent proceeding the validity of the bankruptcy notice.  I have not heard any argument on the question.  However, there does appear to be at least some prima facie substance in such a contention.

8                     In the circumstances, I do not consider it appropriate to dispense with compliance with the rules in relation to any application for summary dismissal.  Rather, I consider that it is appropriate to direct that the new proceeding be listed for directions before Lindgren J and to give directions for the filing of any notice of motion for summary dismissal.

Associate:

Dated:              21 March 2003