FEDERAL COURT OF AUSTRALIA

Jones v Official Receiver [2017] FCA 1294

ORDERS

THE COURT ORDERS THAT:

1.    An extension of time in which to seek leave to appeal from the orders made on 12 April 2017 and 9 May 2017 is granted and time extended up to 15 June 2017.

2.    Leave to appeal from the orders made on 12 April 2017 and 9 May 2017 is refused.

3.    The appeal from the orders made on 16 June 2017 is dismissed.

4.    The Appellant is to pay the costs of the Second and Third Respondents.

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

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Mr Richard Jones, is a former bankrupt.

2    After his discharge from bankruptcy, Mr Jones commenced proceedings in the Federal Circuit Court of Australia seeking a variety of orders, including an order setting aside a notice served under s 139ZQ of the Bankruptcy Act 1966 (Cth). The Application initiating those proceedings was filed by Mr Jones on 8 September 2014. The trustees brought a Cross-Claim in June 2016 seeking orders as to the validity of the s 139ZQ notice.

3    Those proceedings came before the Federal Circuit Court on a number of occasions and gave rise to a number of separate judgments.

4    Relevantly for present purposes, the Federal Circuit Court:

    made orders on 12 April 2017 dismissing Mr Jones’ Application as made to that Court pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for want of appearance and gave short ex tempore reasons for so doing: Jones v Official Receiver (No 5) [2017] FCCA 1627;

    made orders on 9 May 2017 dismissing an application made under r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) seeking reinstatement of the Application that had been dismissed and refusing an adjournment. Ex tempore reasons for doing so were then given but not reduced to writing until much later: Jones v Official Receiver (No 5) [2017] FCCA 2170 and Jones v Official Receiver (No 6) [2017] FCCA 2171; and

    made declarations and orders on 16 June 2017 (following the hearing of the Cross-Claim on 9 May 2017), including orders as to the transfer of property being void, and published reasons for doing so: Jones v Official Receiver (No 4) [2017] FCCA 1101.

Mr Jones now seeks to challenge all four orders. The written form of the ex tempore reasons given on 9 May 2017 were not in fact made available to the parties until after the hearing of the proceeding in this Court. The opportunity was thus extended to the parties to file supplementary submissions addressing the written form of those ex tempore reasons.

5    The challenge to the 12 April 2017 and 9 May 2017 orders confronts an initial difficulty, namely the fact that no Application for Extension of Time and Leave to Appeal was filed until 15 June 2017.

6    The explanation provided by Mr Jones for not having sought leave to appeal within time (or more promptly) was founded upon:

    a series of medical certificates dated 3 April, 11 April and 2 May 2017 setting forth a medical opinion that he was suffering from a “medical complaint” or “medical condition” and was thus “unsuitable for … court”, “unfit to appear in court or receive court documents” and “unfit for travel to Sydney to attend court”; and

    the fact that Mr Jones was actively seeking to pursue his rights in correspondence with the Federal Circuit Court.

7    Although the medical certificates provided a less than satisfactory factual foundation for the reliance sought to be placed by Mr Jones upon his medical condition explaining (at least in part) his failure to act more promptly, it is nevertheless concluded an extension of time should be granted. He was at all material times unrepresented and has, it is concluded, attempted to pursue his legal rights as quickly as he was able.

8    However, leave to appeal from the orders made on 12 April 2017 and 9 May 2017 should be refused. The proposed Grounds of Appeal in respect to these Orders are expressed by Mr Jones as follows:

1.    Denied Natural Justice

2.    Denied Procedural Fairness

3.    Judicial Bias

No leave is required to appeal from the orders made by the Federal Circuit Court on 16 June 2017. The same Grounds of Appeal are relied upon by Mr Jones in seeking to impugn those orders.

9    Both the Application for Leave to Appeal from the orders made on 12 April 2017 and 9 May 2017 and the appeal from the orders made on 16 June 2017 should be dismissed.

An absence of notice

10    Separate from any consideration being given to the Grounds of Appeal as formulated by Mr Jones is a concern as to the manner in which the Federal Circuit Court:

    made the orders on 12 April 2017 dismissing Mr Jones’ Application; and

    made the orders on 9 May 2017 refusing to adjourn the proceeding on that date and refusing to set aside the earlier orders dismissing Mr Jones’ Application.

11    The concern arises because:

    the proceeding came before the primary Judge for hearing on 3 April 2017 but was adjourned to 4 April 2017. On that second day the hearing was adjourned to 12 April 2017 for further directions. On 12 April 2017 further directions for the hearing of Mr Jones’ Application were not made but rather an order was made dismissing the proceeding pursuant to r 13.03C(1)(c); and

    on 3 May 2017 Mr Jones wrote to the Registrar of the Federal Circuit Court acknowledging that there was to be a further hearing on 9 May 2017 and requesting that “the orders of April 12th be set aside and the matter listed for May 9th be adjourned” – but on 9 May 2017 the Federal Circuit Court Judge proceeded to dismiss the application for reinstatement and refuse the adjournment and without publishing written reasons for doing so until much later.

12    From Mr Jones’ perspective he may well have been surprised that:

    an order was made dismissing his Application on 12 April 2017 in circumstances where he may only have been expecting “further directions” to have been made; and

    an order was made refusing to reinstate his Application on 9 May 2017.

Pervading the factual background to these two events are the facts that:

    during the hearing on 3 April 2017, Mr Jones was taken by ambulance to St Vincent’s Hospital;

    a medical certificate dated 3 April 2017 for the period from 3 April to 8 April 2017 expresses the opinion that Mr Jones was “unsuitable for … court”;

    a further medical certificate dated 11 April 2017 expresses the opinion that Mr Jones “has a medical condition and will be unfit to appear in court or receive court documents from 11/04/2017 to 12/05/2017 inclusive”; and

    a further medical certificate dated 2 May 2017 expresses the opinion that Mr Jones “has a significant medical condition and will be unfit for travel to Sydney to attend court from 02/05/2017 to 30/05/2017 inclusive” and that to do so “would seriously jeopardise his health”.

The Federal Circuit Court was provided with a copy of each of these medical certificates.

13    Such matters are worrying – more so in respect to the events that took place on 12 April 2017 than 9 May 2017.

14    The difference arises because on 12 April 2017 the orders then made by the Federal Circuit Court Judge included orders that Mr Jones be informed:

    of the orders made on that occasion, which included an order that the Cross-Claim was set down for hearing on 9 May 2017; and

    of the effect of r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), namely the provision that the Court could vary or set aside an order or judgment made in the absence of a party.

A copy of the orders made on 12 April 2017 was served on Mr Jones, together with a copy of r 16.05(2)(a). The letter from the lawyers for the Respondents and Cross-Applicants to Mr Jones dated 18 April 2017 which effected service of the orders also explained to Mr Jones the effect of that rule and that the Cross-Claim was set down for hearing.

15    Although the power to dismiss the proceeding pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) unquestionably was both a power available to be exercised on 12 April 2017 and a power available to be exercised by reason of Mr Jones’ failure to appear on that date, the fact remains that on that date Mr Jones may well have been expecting “directions” to have been made in respect to his Application but not expecting an order that his Application be dismissed. Although an experienced legal practitioner may have contemplated that non-appearance at a hearing ostensibly to be held in respect to the directions to be made to ready a case for hearing may potentially lead to the entire proceeding being dismissed, an unrepresented applicant is not to be attributed with the same degree of knowledge. Having been told that the hearing on 12 April 2017 was for the purpose of making “further directions”, an unrepresented party would be entitled to expect that only “directions” were then to be made as opposed to his proceeding being dismissed.

16    But the hearing on 9 May 2017 raises different considerations.

17    The letter dated 3 May 2017 expressly requested “that the orders of April 12th be set aside and the matter listed for May 9th be adjourned”. Mr Jones in making that application, it may be accepted, had no real expectation as to the fate of the requests made in his letter. His request may or may not be acceded to. But he was not to know.

18    In not appearing on 9 May 2017, Mr Jones “took his chances” as to whether the hearing on that date would be adjourned and whether on that date his application seeking to have the order made on 12 April 2017 set aside would be then entertained.

19    Whatever concerns may otherwise have been expressed in respect to the manner in which the primary Judge proceeded on 12 April 2017, no such concerns are raised in respect to the orders made on 9 May 2017 by reason of Mr Jones not previously being advised that the request made in his letter dated 3 May 2017 would then be considered.

20    Given the non-attendance of Mr Jones on 12 April and 9 May 2017, there may have been little else that the Federal Circuit Court Judge could have done other than to make the orders in fact made on 12 April 2017 and order that Mr Jones be informed of the making of those orders.

21    Whatever procedural unfairness may have been occasioned to Mr Jones by reason of the dismissal of his Application on 12 April 2017, he was nevertheless given an opportunity to make submissions on 9 May 2017 as to why his Application should be re-instated.

22    Although written reasons of the primary Judge for refusing the adjournment on 9 May 2017 were not published until much later, a transcript of the hearing on 9 May 2017 was available for scrutiny by this Court and exposes consideration being given by the primary Judge to:

    the medical certificates dated 3 and 11 April stating that Mr Jones will be “unfit to appear in Court”; and

    the consideration given by that Judge to the “prospects of this case at the end of last year – or some time ago”.

The primary Judge then indicated to Counsel for the Second Respondent and Cross-Claimant that he did not “need to hear you any further”. Such insights into the reasoning of the Federal Circuit Court Judge may be limited; but such insights as may be gleaned exposes consideration being given to:

    the reasons for Mr Jones’ non-attendance; and

    the prospects of success of Mr Jones’ Application.

23    The orders made by that Judge were orders made within the discretion of the primary Judge and in respect to matters of practice and procedure. The written form of the ex tempore reasons given on 9 May 2017 – which were supplied to the Court after the conclusion of the hearing – make clear that the primary Judge was of the view that “there is no reasonable basis for [Mr Jones’] failure to appear either in person or, perhaps more importantly, by telephone”: Jones v Official Receiver (No 6) [2017] FCCA 2171 at [4]. There is no self-evident reason why the refusal of the adjournment was not a proper exercise on the part of the primary Judge of the discretion which was available to him: House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ.

24    Although such matters were matters pursued during the course of the hearing before this Court, it is respectfully considered that such matters lead nowhere.

25    Remaining to be resolved is thus the merits of the Grounds of Appeal otherwise sought to be relied upon by Mr Jones.

The Grounds of Appeal

26    It is concluded that there are no merits to the Grounds of Appeal – be it considered by reference to the proposed Grounds of Appeal or by reference to the same Grounds as relied on in respect to the 16 June 2017 orders.

27    As was helpfully explained by Mr Jones during the course of the present proceedings, the Grounds of Appeal (and the same proposed Grounds of Appeal) sought to focus upon the fact that:

    he was taken by ambulance to St Vincent’s Hospital on 3 April 2017

and the further facts that the Federal Circuit Court Judge:

    proceeded in his absence on both 12 April and 9 May 2017; and

    refused the application for the adjournment on 9 May 2017 as sought in the letter dated 3 May 2017.

The argument founded upon “bias” – or, as it was understood, an argument founded upon a reasonable apprehension of bias – centred upon:

    the fact that an application apparently made by Mr Jones to have the Cross-Claim dismissed at a point of time when the Cross-Claim had been long filed with no supporting evidence was not then resolved by the primary Judge; and

    the fact that the primary Judge made directions for the filing of evidence in support of the Cross-Claim long after that Cross-Claim had first been filed.

The argument as to a reasonable apprehension of bias was said to be exposed by an inference that the primary Judge had already formed a view as to the fate of the Cross-Claim in advance of any evidence having been filed. Mr Jones sought to characterise the opportunity given by the primary Judge for the Cross-Claimant to file evidence in support of the Cross-Claim as a mere opportunity to support a view already formed by the primary Judge as to the fate of the Cross-Claim.

28    However expressed, there has been:

    no denial of natural justice;

    no denial of procedural fairness; and

    no basis upon which a conclusion could be reached that there was a reasonable apprehension of bias on the part of the primary Judge.

29    Whatever criticism may otherwise have been directed at the decision of the primary Judge taken on 12 April 2017 to order the dismissal of Mr Jones’ proceeding without having given him express notice that that was an order that could be made on that occasion, on 3 May 2017 Mr Jones expressly sought both the reinstatement of his proceeding and an adjournment of the proceeding set down for hearing on 9 May 2017.

30    On 9 May 2017 he failed to appear. Notwithstanding the view that could have been formed by another Judge of the Federal Circuit Court, the primary Judge in the present case did not consider that the medical certificates warranted an adjournment. That was a decision open to be made within the discretion vested in the primary Judge on a matter of practice and procedure. Although it would unquestionably have been desirable for written reasons to have been provided more promptly for the orders made on that date to refuse the adjournment and refusing to reinstate the Application, the failure to provide reasons in writing at that time does not of itself impugn the orders then made.

31    Any argument as to there being a reasonable apprehension of bias on the part of the primary Judge is misconceived. That Judge, in making the directions as to the filing of evidence in support of the Cross-Claim was doing nothing more than ensuring that there was an evidential basis upon which the Cross-Claim could be resolved.

CONCLUSIONS

32    An extension of time should be granted in which to seek leave to appeal from the orders made on 12 April and 9 May 2017. But leave to appeal from the making of those orders should be refused. The proposed Grounds of Appeal have no merit.

33    Similarly, the same Grounds of Appeal have equally no merit in respect to the challenge sought to be mounted against the orders made on 16 June 2017.

34    There is no reason why costs should not follow the event. Mr Jones should be ordered to pay the costs of the Second and Third Respondents.

THE ORDERS OF THE COURT ARE:

1.    An extension of time in which to seek leave to appeal from the orders made on 12 April 2017 and 9 May 2017 is granted and time extended up to 15 June 2017.

2.    Leave to appeal from the orders made on 12 April 2017 and 9 May 2017 is refused.

3.    The appeal from the orders made on 16 June 2017 is dismissed.

4.    The Appellant is to pay the costs of the Second and Third Respondents.

Associate:

Dated:    21 November 2017