FEDERAL COURT OF AUSTRALIA

Kedem v Johnson Lawyers Legal Practice Pty Ltd (No 2) [2013] FCA 472

THE COURT ORDERS THAT:

1.    the appeal be stood over for hearing at 2.15 pm on Wednesday 22 May 2013.

2.    the question of costs be reserved.

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

REASONS FOR JUDGMENT

1    Einav Kedem appeals from a judgment of the Federal Magistrate’s Court (now the Federal Circuit Court of Australia). The Court dismissed Mr Kedem’s application to review a decision of the registrar to decline to set aside a bankruptcy notice. The subject of the bankruptcy notice is a series of judgment debts apparently related to unpaid legal fees. The respondent is a firm of solicitors engaged by the applicant in 2005. The appeal is due to be heard tomorrow.

2    By an interlocutory judgment filed yesterday, Mr Kedem seeks an adjournment. There are two bases to the adjournment application.

3    First, Mr Kedem states that tomorrow is the first day of an important Jewish holiday (Shavout) “which (he) must attend” and is therefore unable to appear in court. This part of the application is supported by an unsigned, undated letter from a rabbi which refers to the importance of the holy day and Mr Kedem’s active membership of an orthodox Jewish congregation and community based in Adelaide (Chabad of South Australia). The rabbi states that he is the spiritual leader and executive leader of that congregation and community. No challenge was made to the authenticity of this document. The application is also supported by a brochure, apparently published by the organisation detailing prayer services and other events associated with the festival, which spans the period from 14–16 May inclusive.

4    The second basis to the adjournment application is to enable Mr Kedem to obtain access to certain documents. In a statement made in support of the interlocutory application and filed with it (which purports to be an affidavit though it is not in the correct form) Mr Kedem states that he requests a court order for “full discovery of all documents”. I take this to be a request for a court order for discovery of all documents held by the respondent. Mr Kedem points to repeated attempts to obtain the documents. It is common ground that he made several informal attempts by writing to the respondent and that he requested orders for “discovery” in the South Australian District Court (before Bampton DCJ) and in this court before Mansfield J. He asserts that both the courts and the respondent denied him his “rights” to discovery and therefore his right to justice. He insists that he needs an extension of time to go over information in the respondent’s files. He also states that he expects the Legal Practitioner’s Conduct Board (“Conduct Board”) (which has previously produced some documents) to produce further documents over time, although he did not indicate what those documents were or might be or when they might be forthcoming. Annexed to his interlocutory application was a letter from Alexandra Rathbone, the director of the Conduct Board. It states:

Your Complaint Concerning Mr Robert Chrzaszcz: I refer to your attendance at our office today and your request for this letter to confirm that on Friday, 26 April 2013 the Board’s receptionist, Ms Porter, handed to you a photocopy of the Board’s letter to you dated 10 August 2005, together with a copy of what she believed were the annexures to that letter being a letter from Robert Chrzaszcz & Associates, dated 5 August 2005 and the annexures to Mr Chrzaszcz’s letter. On re-reading the Board’s letter of 10 August 2005 to you it is clear that at the time the annexures to Mr Chrzaszcz’s letter were not forwarded to you, but the receptionist mistakenly read and believed that they had been.

5    This is not Mr Kedem’s first attempt to obtain an adjournment. On Monday last week he made an application which was heard by Besanko J. That application was refused. On that occasion Mr Kedem did not contend that he was unable to appear at the hearing because it was a Jewish holiday. Rather, he told his Honour that he had asked for discovery of documents from the respondent and it refused to “give [him] any discovery”. He told his Honour that he had asked the Conduct Board to see if they have any information from 2005 and on 25 April this year he was provided with “vital information” which was contained in his affidavit filed on 1 May 2013 and “which clearly shows that [he] had a counterclaim at the time”. He said he was seeking the adjournment because he had only received the information less than 20 business days before the hearing. Presumably his intention was to put further evidence before the Court on the appeal.

6    Besanko J refused to grant the adjournment. His reasons are short and it is therefore convenient for me to recite them in full:

The appellant’s appeal from the orders made by the Federal Magistrates Court (now the Federal Circuit Court of Australia) on 30 November 2012 is listed for hearing on Wednesday, 15 May 2013. Today the appellant applies for an adjournment of the appeal. First, he relies on the fact that he has only recently put forward a letter from Robert Chrzaszcz & Associates dated 5 August 2005 which is “EK1” to the appellant’s affidavit sworn on 1 May 2013. If this letter is relevant and admissible on the hearing of the appeal, and those are matter for the Appeal Court to decide and not for me, then the letter is available. Its annexure to the appellant’s affidavit of 1 May 2013 provides no reason to adjourn the hearing of the appeal. Secondly, the appellant relies on an argument that he is awaiting documents from the Legal Practitioner’s Conduct Board. There is no sufficient evidence of this, or of the nature of the documents, or of their relevance to the proceeding, which it must be remembered, is an appeal. I see no reason to adjourn the hearing of the appeal and the appellant’s interlocutory application dated 1t April 2013 is refused.

7    The respondent does not oppose the application to vacate the hearing tomorrow or to adjourn the hearing of the appeal, provided that the appeal is heard before the end of the month.

8    I am prepared to vacate tomorrow’s hearing date and I will list the matter for hearing on Wednesday, 22 May 2013 at 2.15 pm. I am not prepared to grant a lengthier adjournment for the following reasons.

9    First, I do not have power to order discovery on an appeal. Mr Kedem was unable to point to any such power. He merely assumed that I had it by force of my office. The power to order discovery is contained in Pt 20 of the Federal Court Rules 2011 (Cth). It is a power conferred on the Court in its original jurisdiction and is heavily circumscribed in any event.

10    Secondly, Mr Kedem’s submissions concerning the documents that might come to light were he to have discovery were based on assumptions about what would be in the respondent’s file (including Telecom records), which may or may not be well-founded.

11    Thirdly, to the extent that Mr Kedem claimed that relevant documents might be held by the Conduct Board, those documents were not identified and there is no evidence that the Board has any documents that would be relevant to the appeal.

12    Fourthly, this adjournment application is in substance an attempt to relitigate the application that Mr Kedem made and lost last week. There is no general right to make repeated applications for an adjournment. The courts frown upon attempts to relitigate the same issues.

13    Fifthly, on 26 February 2013 (nearly three months ago) the Court file shows that a letter was sent from the Court’s registry to both parties advising them that the appeal had been listed for hearing at 10.15 am on 15 May 2013. The letter advised of the steps that needed to be taken to prepare the matter for hearing, including the need to file submissions no later than 20 business days before the hearing of the appeal. I take Mr Kedem’s reference to 20 business days to reflect his lack of understanding of the difference between evidence and submissions, a lack of understanding only too apparent during the hearing of this interlocutory application.

14    Sixthly, although s 27 of the Federal Court of Australia Act 1976 (Cth) gives the Court a discretion to receive further evidence on an appeal and although the discretion is a wide one, not restricted to “fresh evidence”, the discretion is to be exercised in the context of an appeal by way of rehearing. A rehearing is not a new hearing where the application before the FMC is to be re-run. See, for example, Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465; [2013] FCAFC 29 at [42].

15    I am not persuaded that Mr Kedem’s application to the Conduct Board would produce any material that would be likely to be admitted into evidence on any application to the Court in the appeal for it to receive further evidence.

16    Finally, I note that the courts have often remarked on the importance of bankruptcy matters being dealt with in “a highly expeditious” manner. See, for example, Totev v Sfar (2008) 167 FCR 193 at [13].

17    I therefore order that the appeal be stood over for hearing at 2.15 pm on Wednesday 22 May 2013. I reserve the question of costs.

Associate:

Dated:    17 May 2013