FEDERAL COURT OF AUSTRALIA

Kerr v American Express Australia Limited [2009] FCA 1219

PRACTICE AND PROCEDURE – application for leave to adjourn trial – Mackenzie friend

Held: adjournment granted

Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 cited

Goldberg v Morrow [2004] FCA 1490 cited

Jordan v Smart [1961] NSWR 735 cited

Slack v Bottoms English Solicitors [2003] FCA 1337 cited

Teese v State Bank of New South Wales [2002] NSWCA 219 cited

Thornberry v R (1995) 69 ALJR 777 cited

JOYE MAREE KERR v AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058)

NSD 1912 of 2008

COLLIER J

28 OCTOBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  Mr Ian Kerr be given leave to represent the appellant for the purposes of today’s hearing.

2.                  The hearing of the appeal be adjourned to 10.15 am on 18 February 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Before me is a notice of motion filed by Ms Kerr, who is the appellant in a substantive appeal from the decision of the Federal Magistrates Court to this Court. Ms Kerr seeks the following order:

1. That the 6 November 2009 hearing of my appeal against the judgment of Federal Magistrate Smith given in the Federal Magistrates Court in Sydney on 17 November 2008 in SYG 642 of 2008 be adjourned to … 2010 or, in the alternative, a date to be set by the Court.

2                     The question before the Court is whether the hearing of the appeal, currently listed before Reeves J, should be adjourned as sought by Ms Kerr.

3                     The appeal listed to be heard before his Honour is from a sequestration order made by the learned Federal Magistrate on the petition of the respondent American Express Australia Ltd (“American Express”). The notice of appeal, filed 9 December 2008, contains 13 grounds of appeal.

4                     In Court this morning Ms Kerr did not appear. Instead there was an appearance by her husband, Mr Ian Kerr. Mr Kerr, who appears to hold a power of attorney from Ms Kerr, applied for leave to represent her in Court this morning.

5                     It is clear that a power of attorney as held by Mr Kerr from Ms Kerr does not provide a lawful basis for a non-lawyer to act for a party in litigation in a Federal Court (cf Slack v Bottoms English Solicitors [2003] FCA 1337). However the Court has discretion to grant leave to a person who is not a qualified legal practitioner to represent a litigant. Such a person is commonly known as a “Mackenzie friend”. I note that I consider it inappropriate that an application should be made by Mr Kerr to represent Ms Kerr without Ms Kerr being present. However I understand that in previous proceedings in this Court Mr Kerr has represented Ms Kerr in her absence. For the purposes of today’s hearing, which is procedural only, I am prepared to entertain Mr Kerr’s application to represent Ms Kerr.

6                     As pointed out by Ipp AJA in Teese v State Bank of New South Wales [2002] NSWCA 219 at [15], the usual ground for granting leave to a person, not properly qualified, to represent a litigant is impecuniosity, namely where the litigant cannot afford to pay a properly qualified lawyer. In this case Ms Kerr’s impecuniosity was the reason for seeking that Mr Kerr should speak for her in Court. In the circumstances I was prepared to grant leave to Mr Kerr to represent Ms Kerr for the purposes of today’s proceedings.

7                     There was no appearance in Court by either American Express or the Insolvency Trustee Service Australia (ITSA) which is Ms Kerr’s trustee in bankruptcy. I understand that American Express has informed Deputy District Registrar Baldwin of the Queensland Registry of this Court that it would not appear either in respect of this notice of motion or in the appeal more generally having regard to the substantial costs already incurred by the company to date, and in light of the fact that Ms Kerr’s estate has no funds.

8                     At my request Deputy District Registrar Belcher informed the appellant prior to today’s hearing that I currently hold an American Express credit card, and inquired whether, from the appellant’s perspective, this gave rise to any concerns as to perceived bias on my part. I understand that my possession of this card has not caused the appellant any concern in relation to me hearing this notice of motion.

9                     Ms Kerr’s notice of motion was supported by an affidavit filed by Mr Kerr on 23 October 2009. Attached to this affidavit is a letter from Mr Kerr to Deputy District Registrar Baldwin dated 16 October 2009 in which Mr Kerr sets out recent developments which he states have caused “major issues with the current timetable”. These developments, which appear to be the grounds upon which Ms Kerr seeks an adjournment can be summarised as follows:

1.                  Ms Kerr has a counterclaim for $900,000 in the District Court of Queensland against a plaintiff who was recently successful in obtaining an order for payment of $50,000 by Ms Kerr in that Court. Ms Kerr is appealing the decision of the District Court to the Court of Appeal of Queensland, although in his affidavit Mr Kerr deposed that the other party had applied for Ms Kerr’s appeal to be summarily dismissed. The learned Federal Magistrate below did not recognise that Ms Kerr’s counterclaim was an asset in her bankruptcy.

2.                  Ms Kerr is dissatisfied with decisions taken by ITSA in the course of her bankruptcy, but understands that she would need to file an application in the Federal Magistrates Court to contest any decision of ITSA. Ms Kerr proposes to commence proceedings in the Federal Magistrates Court in the near future.

3.                  Mr Kerr has appearances in the Brisbane Magistrates Court in October for directions in relation to a number of matters concerning personal debts arising from the financial stress experienced by the family.

4.                  Material which Mr Kerr claims was produced in response to subpoenas before the Federal Magistrate in NSW has, for unknown reasons, been omitted from the Appeal Index in this Court.

10                  The decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision (Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, Goldberg v Morrow [2004] FCA 1490 at [36]). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case (Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.

11                  In this case the grounds upon which Ms Kerr seeks adjournment of the hearing of her notice of appeal are, with one exception, slim:

·                    It appears that, although the notice of appeal was filed almost 11 months ago, a key reason for the application for the adjournment is that Ms Kerr is simply not ready at this stage to prosecute her appeal on 6 November 2009.

·                    The reasons set out in Mr Kerr’s affidavit in relation to other litigation are slight, in that:

o                   the fact that Ms Kerr has an appeal pending in the Queensland Court of Appeal after being unsuccessful at first instance is not in itself sufficient reason for adjourning a hearing in this Court (cf Re a Debtor (No 5982 of 1979) (1981) 78 Law Society Gazette Reports 631). Further, I note that the learned Federal Magistrate has considered the issue of Ms Kerr’s counter-claim in the District Court of Queensland in the context of her bankruptcy proceedings. Findings of his Honour in relation to this issue are properly the subject of consideration in the context of the appeal before Reeves J;

o                   the fact that Ms Kerr is dissatisfied with decisions of her trustee in bankruptcy and proposes to commence proceedings is, in my view, irrelevant to the notice of motion before me; and

o                   the fact that Ms Kerr’s husband has his own legal problems is irrelevant to the question whether this Court should proceed to hear the appeal from the decision of the Federal Magistrate with respect to the bankruptcy of Ms Kerr;

o                   further, in light of the uncertainties concerning both the dates of any decision of the Queensland Court of Appeal with respect to the appeal in that Court commenced by Ms Kerr, and the hearing dates of proceedings in the Federal Magistrates Court against ITSA (which proceedings have not yet, apparently, been commenced, and which could themselves be the subject of ongoing appeals by Ms Kerr or ITSA depending on the outcome in the Federal Magistrates Court) the obvious question is whether it is possible at this stage to list this appeal for hearing on a date when these collateral proceedings have been resolved. In my view it is not currently possible to do so.

·                    However, in my view there is potentially substance to Ms Kerr’s claims concerning the absence of material from the appeal index. I understand this is currently an issue which Ms Kerr is addressing with the Queensland Registry of the Federal Court, and which should be resolved forthwith.

12                  Despite the paucity of compelling reasons advanced by Ms Kerr to adjourn the hearing of the appeal, in view of the absence of submissions by either American Express or the trustee it is difficult to identify how an adjournment of the hearing of the appeal would in any way prejudice either of those parties. On the other hand, it appears that an adjournment would permit Ms Kerr extra time to prepare her case and would allow resolution of the issue concerning the Appeal Index. In a situation where exercise of the Court’s discretion appears of indifference to the respondent and the trustee, but an adjournment is of importance to the applicant for the notice of motion, I consider it reasonable that I should exercise my discretion in favour of that applicant.

13                  Notwithstanding that I propose to adopt this approach in favour of Ms Kerr, in my view it is also reasonable that the appeal be heard within a reasonable time frame. For reasons I have already given, I do not consider it appropriate that the appeal should be adjourned until such time as either the outcome of Ms Kerr’s appeal in the Queensland Court of Appeal is determined or until proceedings which may or may not be filed by Ms Kerr in the Federal Magistrates Court are heard. Accordingly, while I am prepared to adjourn the hearing, it is only with a view to permitting Ms Kerr extra time to prepare her case before his Honour, and in circumstances where a hearing date is set in early 2010. By this date the issue of whether material produced in response to subpoenas is included in the appeal index will have been resolved.

Associate:

Dated:         29 October 2009