FEDERAL COURT OF AUSTRALIA

Maytom v Prentice [2013] FCA 387

THE COURT ORDERS THAT:

1.    The time for filing and serving of a Notice of Appeal by the appellant against the decision of Federal Magistrate Driver be extended to 7 May 2013.

2.    As a condition of the extension of time, the parties are referred to mediation before a Registrar of the Federal Court no later than 1 May 2013. No step is to be taken in the appeal (including the filing of any Notice of Appeal), pending the outcome of the mediation.

3.    The grounds of the appeal are to be limited to the question of denial of procedural fairness in accordance with the reasons for judgment handed down on 17 April 2013.

4.    Pursuant to Federal Court Rule 9.63, Ms Rachel Taylor be appointed as litigation guardian for Mr Gary Allan Maytom, and that the requirements of the rules relating to the filing of an affidavit by Ms Taylor are dispensed with.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for leave to extend time under rule 36.05 of the Federal Court Rules to file a notice of appeal against orders made by Driver FM on 4 March 2013. Time to lodge the notice of appeal expired on 26 March 2013. The present application was filed only two days later, on 28 March. Accordingly, the delay is very short and I take that matter into account in coming to the conclusion that I ought to grant the extension. However, one of the matters which informs the exercise of the jurisdiction to grant an extension of time is the prospects of success on an appeal. The applicant, Mr Maytom, has filed a draft notice of appeal which contains 21 grounds of appeal, most of which, in my opinion, have no prospects of success. He is not legally represented and appears today by his litigation representative, his daughter, Ms Taylor. I have taken into account the fact that neither Mr Maytom nor Ms Taylor are lawyers.

2    Nevertheless, it is at least possible that there may be grounds of appeal against Driver FM’s decision, if only because it is difficult to tell from paragraph 2 of his Honour’s short reasons for judgment the matters which he took into account. It is true, as Ms Nash, who appears for the respondent, has put to me, that the declaration which was made by his Honour in favour of the trustee is supported by a judgment of a Full Court in a matter of Sopikiotis, in the matter of Sopikiotis (Bankrupt) v Vince (Trustee) [2013] FCAFC 24. However, Driver FM (as his Honour then was) does not, with respect, appear to me to have set out in paragraph 2 the matters he took into account in coming to the view that the application for the orders ought to be deferred for a period of 21 days.

3    It may be correct, as Ms Nash submits, that the effect of the orders was to give Mr Maytom what amounted to a 21-day stay. However, I am not sure that that was the true effect of what Mr Maytom was seeking. In particular, Mr Maytom’s real concern was the making of the sequestration order in the first instance. That order was made on 6 March 2012, but it now appears that the judgment upon which the petition was based was set aside by an order of the Local Court made on 28 March 2012. In view of the fact that Mr Maytom and Ms Taylor are not legally represented, I have endeavoured to determine what the substance of the complaints are as set out in the grounds of appeal.

4    It seems to me that the effect of the complaints, in particular, in paragraphs 16 and 21 is that Driver FM may have erred in the exercise of his discretion by failing to take into account the matters which Mr Maytom was endeavouring to put to him on 4 March 2013. It is at least possible that there may be a ground of denial of procedural fairness. Having said this, it is important to observe that what I gleaned from the arguments that have been put before me today are in large measure based on what I have been told from the bar table. Nevertheless, bearing in mind the time that has already been taken up and the need to try to do substantial justice between the parties, I ought at least to give Mr Maytom the opportunity to put the matter before the Court on an appeal.

5    Notwithstanding what I have said above, I have emphasised in discussion with Ms Nash and Ms Taylor this afternoon the need to, if possible, obtain a practical solution to the dispute.

6    This is an unusual matter because, from what I have been told, the only asset of the bankrupt estate is the property at Hunter Street, Newcastle, which was the subject of the orders made by Driver FM on 4 March 2013. That property is apparently a derelict warehouse and the trustee is, therefore, unable to obtain a reliable estimate of its value. The estimate which has been given to me from the bar table is a range of $150,000, at it lowest, to $400,000, at its highest. Importantly, creditors of the estate appear to be owed approximately $77,000, but to this must be added legal fees and other expenses which have been incurred since the date of the sequestration order.

7    As I said to the parties this afternoon, this is a case which calls out for some practical solution. I am very much concerned at the ever-increasing amount of costs which are being incurred and which may ultimately be borne by the estate, thereby cutting into whatever surplus may otherwise be payable to Mr Maytom. It seems to me that, as a condition of the grant of the extension of time, I ought to order that before any step be taken in the appeal, the matter be referred to mediation before a Registrar of the Court. The orders that I will make, therefore, are as follows:

1.    The time for filing a Notice of Appeal by the applicant against the decision of Driver FM is extended to 7 May 2013.

2.    As a condition of the extension of time, the parties are referred to mediation before a Registrar of the Federal Court for mediation to take place no later than 1 May 2013. No step is to be taken in the appeal (including the filing of any Notice of Appeal) pending the outcome of the mediation.

3.    The grounds of the appeal are to be limited to the question of denial of procedural fairness in accordance with the reasons for judgment handed down on 17 April 2013.

4.    Pursuant to Rule 9.63, Ms Rachel Taylor be appointed as litigation guardian for Mr Gary Maytom. I also order that the requirements of the rules relating to the filing of an affidavit by Ms Taylor and her consent in writing be waived in the present case.

Associate:

Dated:    26 April 2013