FEDERAL COURT OF AUSTRALIA

HWY Rent Pty Ltd v HWY Rentals Pty Ltd (in liq) [2014] FCA 65

THE COURT ORDERS THAT:

1.    The applicants file and serve any further evidence, any further written submissions and any amended proposed notice of appeal, by 4.00 PM on 26 February 2014.

2.    The respondents and, subject to further order, the Deputy Commissioner of Taxation file and serve any evidence upon which they intend to rely and their written submissions, including to address Jacobson J’s reasoning process, by 4.00 PM on 7 March 2014.

3.    The applicants file and serve any written submissions in reply by 4.00 PM on 21 March 2014.

4.    The written submissions referred to in orders 2 and 3 in the proceeding paragraphs are also to include any objections to evidence.

5.    The date for the hearing of the application for an extension of time on 23 April 2014 be vacated.

6.    The application for an extension of time be set down for hearing before Justice Perry at 10.15 AM on 1 April 2014.

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

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT)

1.    INtroduction

1    This proceeding last came before me for directions on 20 December 2013. At those directions, I made orders setting a timetable for the preparation of the hearing of the application for an extension of time within which to appeal, and listed that application to be heard by me on 23 April 2014. I also made directions setting a timetable for the progression of related proceedings NSD 2191 of 2013. Both Mr Russell Alan Jarvie and his mother Mrs Patricia Anne Jarvie appeared without legal representation at the directions hearing on 20 December 2013.

2    The respondents in this proceeding were represented by counsel at the directions hearing today with their solicitors also present. At the commencement of the hearing the matter was duly called on for directions and, on my instruction, the court officer on duty also called the matter in the foyer outside the court room. None of HWY Rent Pty Ltd, Mr Jarvie or Mrs Jarvie appeared before me today. In making my orders notwithstanding the failure by any of the respondents to appear, I have taken into account a number of matters that I set out in these short reasons.

2.    relevant Correspondence between the Court and the parties

3    My Associate received an email from Mr Jarvie at 9.17am this morning, 7 February 2014, in which Mr Jarvie stated that he had not been aware that the directions hearing had been set down for 9.30am today and had concerns about any variation to the hearing date. The concerns expressed by him included Mrs Jarvie’s frailty and age and that Mrs Jarvie is currently away interstate visiting a relative. Mr Jarvie also stated in his email that Mrs Jarvie “has spoken with a solicitor to represent her but at this stage, they have no signed agreement between them”. He asked the Court to leave the directions as they stand unless “new and exciting evidence has arisen”. Mr Jarvie further indicated that he is in the southwest of Queensland, that there is no wifi where he currently is, and that he dictated the email to a friend. He stated that he had only last night by accident discovered the correspondence from my Associate advising him of today’s directions hearing. Mr Jarvie has, however, provided no sworn evidence as to his reasons for failing to appear before me at today’s directions hearing.

4    I note that I made orders in this proceeding with the agreement of the applicants on 20 December 2013 directing that service of documents may be effected on the applicants by posting them to 4 Jopling Street, North Ryde, New South Wales 2113 (which is Mrs Jarvie’s primary residence), or by sending them by email to Mr Jarvie’s email address. The applicants confirmed at that hearing that the postal address and email address were correct.

5    Subsequently on 24 December 2013, my Associate sent an email to the applicants using the email address of Mr Jarvie set out in the orders, and to the respondents. That email was also copied to counsel for the company in liquidation. In his email, my Associate advised that:

“Her Honour has not formed a view as to whether an extension of time ought to be granted. However, in the event that the application for an extension is granted, Justice Perry is conscious of the imperative to ensure that the appeal is listed in time for the Full Court period in August 2014. Accordingly, her Honour has intimated that it may be preferable to bring the hearing of the application on earlier in 2014 to ensure that this proceeding does not linger until the November 2014 Full Court period.

Subject to the views of the parties, it may be possible to list the hearing of the application in either the week commencing 3 March 2014, or the week commencing 31 March 2014, with consequential adjustments to the current timetable for the preparation of the hearing of this application. Bearing in mind the need to avoid unnecessary costs in this matter, subject to any objections, it may be possible to alter the timetable by consent. Alternatively, the Court proposes to list the matter for directions on Friday 7 February 2014 at 9.30am so that a revised timetable can be set down.”

6    The email then asked for the parties to confer as to their preferable course and to respond at the parties’ earliest convenience.

7    No response was received from HWY Rent Pty Ltd, Mr Jarvie or Mrs Jarvie prior to the email that Mr Jarvie caused to be sent this morning.

8    On 20 January 2014, the solicitors for the company in liquidation sent a letter to the Court in which they referred to the email sent by my Associate on 24 December 2013 and noted that there had not yet been any response from Mr Jarvie. In that letter it was also noted that counsel for the company in liquidation had previously advised as to his availability for an earlier hearing of the application for an extension of time. The solicitors requested that the matter be listed for directions on 7 February 2014, as foreshadowed by the Court.

9    It is apparent from the Court’s records that my Associate subsequently caused the Federal Court Registry to send two letters, being one to each of Mr Jarvie and Mrs Jarvie, on 22 January 2014 at the postal address set out in my orders on 20 December 2013. Those letters separately advised both Mr Jarvie and Mrs Jarvie that I had listed the matter for directions before me at 9.30am on Friday 7 February 2014 at the Law Courts Building, Queens Square, Sydney. Those letters advised each of Mr and Mrs Jarvie to “make arrangements for you or your solicitor to attend the directions hearing in person” and to contact the Federal Court Registry should they have any questions.

10    Having received no correspondence from any of HWY Rent Pty Ltd, Mr Jarvie or Mrs Jarvie since 20 December 2013, my Associate emailed the parties at 9.46am on 6 February 2014 confirming that the matter was listed for directions before me at 9.30am on Friday 7 February 2014. Prior to this morning’s directions hearing, it was further confirmed by staff from the New South Wales Registry that no further correspondence or documentation had been filed in these proceedings by the applicants, including that there was a continued absence of any notice of address for service for any legal representative engaged by any of the applicants.

3.    Reasons for making the orders to relist the application for an extension of time and adjust the timetable

11    First, in the circumstances, I consider it appropriate to make orders listing the application for an extension of time on an earlier date than previously set down for the reasons foreshadowed in the email from my associate on 24 December 2013, namely, in order to ensure that the matter can be listed in time to be heard in the Full Court period in August 2014 should the application be successful.

12    Secondly, I am satisfied that the correspondence to which I have referred above was sent to the applicants in accordance with orders made by me on 20 December 2013.

13    Thirdly, in adjusting the timetable, I have endeavoured to ensure that any contraction of time within which the applicants must file and serve their materials has been kept to a minimum. In other words, I have sought to minimise the impact that the change in the hearing date will have on the applicants’ ability to prepare for hearing.

14    I therefore consider it appropriate to list the matter for hearing on the earlier date as now so ordered and adjust the timetable to accommodate the earlier hearing as reflected in the orders made by me.

Associate:

Dated:    12 February 2014