FEDERAL COURT OF AUSTRALIA

Maytom v Prentice [2013] FCA 766

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The respondent trustee’s costs of the application for leave to appeal be costs in the administration of the estate.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This application for leave to appeal has come on urgently tonight from a decision of Judge Altobelli in the Federal Circuit Court given earlier this afternoon. His Honour refused the application of Gary Maytom to stay a writ of possession due to be executed tomorrow, 26 July 2013.

Background

2    The circumstances in which this application has arisen are that Mr Maytom was made bankrupt by an order of the Federal Magistrates Court on 6 March 2012. Mr Maytom has with him his litigation guardian, his daughter, Rachel Taylor. Both made extensive submissions to me this evening explaining his perception of injustice in the circumstances in which that sequestration order was made and the entitlements of the petitioning creditor to seek it. However, those matters were not the subject of the application before Judge Altobelli and are not before me. Mr Maytom had made an application made to Foster J to seek an extension of time to appeal against orders made by the Federal Magistrates Court on 2 August 2012 but those circumstances are not relevant here: Maytom v Warren McKeon Dickson Pty Ltd [2012] FCA 1300.

3    On 4 March 2013, Driver FM appointed Ms Taylor as Mr Maytom’s litigation guardian. His Honour dismissed an application made on 22 February 2013, and then made a declaration that the property Mr Maytom occupies at 484 to 486 Hunter Street, Newcastle as his home was beneficially owned by Maxwell Prentice, his trustee in bankruptcy. His Honour ordered Mr Maytom to deliver up possession of the Hunter Street property within 21 days and made a further order that in the event that Mr Maytom failed to do so, a writ of possession issue forthwith in favour of Mr Prentice.

4    Mr Maytom sought, from Jacobson J on 17 April 2013, leave to appeal from those orders out of time. His Honour extended the time for filing and serving a notice of appeal by Mr Maytom from Driver FM’s orders to 7 May 2013 and imposed a condition that the parties attend at a mediation on 1 May 2013: Maytom v Prentice [2013] FCA 387. In the course of his reasons, his Honour identified an arguable ground of appeal, namely, that the Federal Magistrate may have erred in the exercise of his discretion by failing to take into account matters that Mr Maytom was endeavouring to put to him on 4 March 2013 so that there was possibly a denial of procedural fairness.

5    In the event, Mr Maytom failed to comply with his Honour’s order to file and serve a notice of appeal. Mr Maytom applied for a further extension of time that his Honour dealt with that at a hearing on 21 May 2013. Jacobson J rejected Mr Maytom’s application for a further extension of time. His Honour said that notwithstanding the concerns that he had for Mr Maytom, expressed in his earlier reasons for judgment and the fact that he accepted, as do I, that Mr Maytom suffers from significant ill health, his Honour could not, in all the circumstances for the reasons that he gave, further extend the time for filing a notice of appeal: Maytom v Prentice (No 2) [2013] FCA 502.

6    Mr Prentice applied for a writ of possession to issue by the sheriff of New South Wales at some time before such writ of possession issued on 11 June 2013. On 20 June 2013, the sheriff’s office issued a notice to vacate to the occupier of the Hunter Street premises. The notice to vacate stated that all occupants of the Hunter Street premises had to vacate them prior to 12 noon on 26 July 2013, failing which, action would be taken to evict them without further warning. That notice also stated that a writ of possession had been issued in the proceedings intituled with the Federal Magistrates Court number, but (wrongly) identified that the source of the order was the Supreme Court of New South Wales. Mr Maytom says that the notice to occupier was not received directly by him but came to him from a neighbour who said that the notice had been found in the street. However, he and Ms Taylor accept that Mr Maytom received the notice by no later than late June 2013. They were confused by the reference to the Supreme Court and they spent some time dealing with officers of the Supreme Court seeking to investigate how the writ came to be issued by that Court and what they could do about it. Eventually, about two weeks ago, they discovered, Ms Taylor told me, that the writ had in fact been issued pursuant to the authority of the orders made by Driver FM on 4 March 2013 to which I have referred.

7     Late yesterday Mr Maytom applied to me as duty judge with an interlocutory application and an affidavit he had sworn yesterday. The affidavit annexed the notice to occupier, a medical certificate identifying his significant health issues and a letter from Legal Aid New South Wales dated 22 July 2013. The letter stated that Mr Maytom had a civil law appointment with the legal aid office in Castlereagh Street, Sydney on 5 August 2013 and that he had told the writer that he was unable to attend the office any earlier due to his medical condition and doctor’s recommendation. I listed that application for hearing at 2.15pm today, but in the event Mr Maytom brought an interlocutory application based on the same affidavit before Judge Altobelli in the Federal Circuit Court. His Honour dealt with the application earlier this afternoon. The judge ordered that it be dismissed and that the trustee’s costs be costs in the administration.

8    Mr Maytom then filed an application for leave to appeal from his Honour’s orders and sought an order extending the time before which the writ for possession could be executed. During the course of argument today I was told that his Honour had discussed with the parties the possibility of postponing the execution of the writ for about two weeks but, when giving his reasons, explained to the effect that he was unable to see that Mr Maytom would suffer a greater hardship than the creditors by the exercise of his discretion not to postpone execution of the writ. Accordingly, his Honour dismissed the application without granting Mr Maytom any further time.

Mr Maytom’s submissions

9    Both Ms Taylor and Mr Maytom addressed me at some length and explained to me why they considered that his Honour’s decision was wrong and why substantial injustice would be suffered if leave to appeal were not granted. In substance, Mr Maytom and Ms Taylor put that the original sequestration order had been obtained in circumstances where the petitioning creditor should not have been entitled to rely on the judgment on which the sequestration order was based. He also argued that the Federal Magistrates Court erred in not allowing him to have an annulment or have the sequestration order set aside because of a denial of natural justice. He contended in that he had been unable to attend on the day the hearing of the bankruptcy petition had occurred, before Driver FM made the order, because he had been delayed on the train from Newcastle and the message that he had given to the Court that he would be delayed had not been passed on to his Honour. Mr Maytom also contended that he had suffered injustice from the circumstances in which Driver FM made the orders of 4 March 2013. He said that his daughter had not been served with the notice to vacate issued by the sheriff, as she should have been, as his litigation guardian, and that there was an error in the identification of the consol number in the certificate identifying the title details in the writ of possession. He said that the identification of the Supreme Court as the source of the writ of possession had caused confusion and had diverted his ability to bring the present application for a considerable period, and that he needed the opportunity to get legal advice before the writ should be allowed to be executed. He said that the writ should not be executed because of his medical condition. During the course of argument, but not on affidavit, Mr Maytom raised with me that he had many personal possessions in the premises that he would wish to preserve, but that he had nowhere else to go if he were evicted tomorrow.

Consideration

10    In an application for leave to appeal the court must be satisfied of two things: first, the applicant seeking leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave, and secondly, that substantial injustice would result from a refusal of leave to appeal. If I were persuaded to exercise my discretion to grant leave to appeal in favour of Mr Maytom, I would then be able to extend the time within which he could comply with the order to give possession and postpone the execution of the writ.

11    Like Jacobson J, I accept that Mr Maytom has ill health issues which have made it difficult for him to deal with litigation in which he is embroiled. However, the issue before me is whether or not there is some arguable error that can be identified in what the judge decided and that substantial injustice would flow from that error if I did not grant leave to appeal.

12    Judge Altobelli was exercising a discretionary judgment as to whether or not he would stay the order for possession and postpone the issue of the writ. That was a matter of practice and procedure, albeit its consequence has a profound effect on Mr Maytom. In substance, Mr Maytom contended that his Honour gave insufficient weight to the hardship that would be done to him in refusing to postpone execution of the writ. However, the weight which a trial judge is allowed to accord to factors on which he or she must exercise a discretionary judgment are ordinarily matters that do not attract the intervention of appellate courts unless the judge acted on a wrong principle, mistook the facts, failed to take into account a relevant consideration or took into account an irrelevant one: House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

13    I cannot see that his Honour made any arguable legal error dealing with the weight which the judge placed on factors that he had to balance in arriving at a difficult discretionary judgment. I think that it was clear to Judge Altobelli that, if the writ is issued tomorrow, Mr Maytom will suffer the harsh consequence that he will be evicted from his home, with whatever possessions he leaves there and is unable to move. But, in all of the circumstances, I think that Mr Maytom has not been able to identify a legal error in Judge Altobelli’s decision that I have considered to be sufficiently arguable to warrant the grant of leave to appeal. In those circumstances it seems to me that the only course I have open to me as a matter of law is to dismiss the application for leave to appeal.

Associate:

Dated:    2 August 2013