FEDERAL COURT OF AUSTRALIA

Badcock v Ambrose [2004] FCA 691

BANKRUPTCY – examination of bankrupt – where bankrupt sought adjournment on basis that he was not a bankrupt – application refused by Registrar – applicant appealed Registrar’s decision – affirmed on appeal – where bankrupt subsequently sought leave to appeal.

PRACTICE AND PROCEDURE – leave to appeal from order refusing to grant an adjournment.

Bankruptcy Act 1966 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Niemann v Electronic Industries Ltd [1978] VR 431 applied

ROBERT JOHN BADCOCK v COLIN LOUIS AMBROSE

S 106 of 2004

LANDER J

25 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for leave to appeal is refused.

2.         The applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from an order made by me in which, on review, I affirmed a decision of the Registrar of the Court refusing the applicant's application for an adjournment.  The applicant was summoned to the Court to be examined pursuant to s 81 of the Bankruptcy Act 1966 (Cth) and the matter came before the Registrar on 27 April 2004.  Because the applicant failed to appear, the Registrar issued a warrant for the applicant's apprehension.  Later that morning, the applicant appeared at the Court and the Registrar indicated she would proceed with the examination.

2                     The applicant applied for an adjournment but the application was refused.  He sought a review of that order and I embarked upon a review immediately.  Two grounds were advanced for the adjournment.  First, the applicant claimed he was not a bankrupt.  He said the form of the order did not lead to his bankruptcy.  The order, which is annexed to an affidavit sworn by the respondent on 21 April 2004, is in standard form: ‘A Sequestration Order be made against the estate of Robert John Badcock’.  The respondent's affidavit also annexed the National Personal Insolvency Index, which showed the applicant was a bankrupt as at 21 April 2004.

3                     The applicant had also sought a review of the said sequestration order made by Registrar Christie on 21 December 2001 before a Federal Court magistrate, which was dismissed on 4 February 2002.  Secondly, he said the order was incorrectly dated.  The order was originally typed with the wrong date on it but was corrected and the Court's seal affixed to the correction.  For those reasons, I affirmed the Registrar's decision and ordered the examination to continue before the Registrar.

4                     The matter resumed before the Registrar and the applicant was sworn, but in answer to the first question said, "No comment."  He again applied for an adjournment so that he could seek leave to appeal from my decision made earlier, refusing his application for an adjournment.  The Registrar refused the second application for an adjournment.  The applicant sought a review of that order, which I again conducted immediately.  I again affirmed the Registrar's decision.

5                     The application, of course, if it had been allowed, would have had the effect of reversing my previous decision not to allow the adjournment.  On the second occasion, I ordered that the examination proceed before me.  The examination continued and the applicant answered the questions put to him.  The examination was adjourned so that the applicant could produce to the respondent various documents referred to in the summons.

6                     On 21 May 2004, the applicant filed a notice of motion seeking leave to appeal from my order refusing the adjournment.  The notice also seeks the adjournment of the examination until the appeal is determined.  The applicant also seeks the adjournment of the matter until after proceedings brought by the applicant in the Federal Magistrates Court are determined and further proceedings in the Supreme Court of South Australia are determined.

7                     The orders made by me on 27 April 2004 were interlocutory and leave to appeal is required: O 52 r 10 of the Federal Court Rules.  An application for leave to appeal should be made within seven days of the pronouncement of the order.  This application is out of time and an extension of time would be required.  The principles governing applications for leave to appeal are clear.

8                     In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court of this Court followed a decision of the Full Court of the Supreme Court of Victoria, Niemann v Electronic Industries Ltd [1978] VR 431, which held that at least two matters needed to be considered:

(a)        whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court; and

(b)        whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

9                     Leave is less readily granted where the matter, as this one does, involves practice and procedure.  My decision was an exercise of judicial discretion which is less easily overturned than a decision on a substantive right.  The applicant has not pointed to any error on my part, except that he said I made my decision on incomplete facts.  He says that no moneys were owing to the judgment creditor on the judgment entered in the District Court.  That was the same argument put to the Registrar and the Federal magistrate and rejected in 2002.  Even if the applicant were correct about that, that would not be a reason to give leave.

10                  The correctness of my decision will be judged on the facts before me.  I do not think there is any doubt about the correctness of my decision.  The evidence before me showed that the applicant was adjudged a bankrupt and is a bankrupt.  The order of the Court is in regular form.  That would be enough to dispose of the application but, in any event, the applicant would suffer no injustice if the decision were wrong.  Any appeal would be futile.  The examination has taken place.

11                  Whether the applicant is entitled to an adjournment of the examination about to recommence before me is another thing which, if application is made, I will consider separately.  The application for leave to appeal is refused.

Associate:

Dated:              3 June 2004