Federal Court of Australia

Chang v Haughton, in the matter of Haughton [2021] FCA 765

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by Mr Haughton on 21 June 2021 is dismissed.

2.    Mr Haughton is to pay the Applicants’ costs of and incidental to his application filed on 21 June 2021 with those costs to be taxed in default of agreement.

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

EX TEMPORE REASONS FOR JUDGMENT

(Revised from Transcript)

WHITE J:

1    On Tuesday, 8 June 2021, a Registrar of the Court made an order that the estate of the respondent, Peter Scott Haughton, be sequestrated under the Bankruptcy Act 1966 (Cth).

2    By an interlocutory application filed on Monday, 21 June 2021, Mr Haughton applied for a stay of the sequestration order until further order of the Court. He filed that application as a self-represented litigant. Mr Haughton’s affidavit indicated that he sought the stay because he has, since the sequestration order was made, filed an appeal in the Supreme Court of South Australia against the judgment of the District Court of South Australia on which the creditor’s petition was based.

3    The copy of the notice of appeal provided by Mr Haughton indicates that he filed it in the Supreme Court on 17 June 2021 and, again, that he did so as a self-represented litigant.

4    When Mr Haughton filed the interlocutory application he sought an urgent hearing of it and that application was referred to me as duty judge. I listed the matter for hearing on 25 June 2021. At that hearing Mr Haughton was unrepresented and he sought an adjournment of the hearing in order that he may obtain legal advice. Against the opposition of the applicants, I granted Mr Haughton an adjournment until today. I told him that there were a number of issues concerning the power of the Court presently to grant an order of the kind he sought and drew his attention to the judgment of Stewart J in Du Bray v ACW [2020] FCA 1142. I also referred him to the Court’s power with respect to review of decisions of the Registrar contained in s 35A(5) and (6) of the Federal Court of Australia Act 1976 (Cth), as well as to r 3.11 of the Federal Court Rules 2011 (Cth) (the FCR). I recommended to Mr Haughton that he obtain legal assistance urgently and put in place a timetable for the filing of further affidavits.

5    Specifically, I ordered that any further affidavits to be relied upon by Mr Haughton in support of the interlocutory application be filed and served by 9.30 am on Thursday, 1 July 2021. Mr Haughton did not file and serve any affidavits in compliance with that order. However, Mr Haughton did, late this morning, lodge for filing with the Registry an extensive affidavit. As I understand it, the Registry is still considering whether or not that affidavit may be accepted for filing, having regard, amongst other things, to (a) it being outside the time fixed by the orders on 25 June 2021, and (b) its content. I have seen a copy of the affidavit which is substantial.

6    I think it fair to say that the affidavit is almost entirely directed to matters which are extraneous to the issues presently before the Court. In particular, subject to two qualifications, it is not easy to discern matters bearing upon Mr Haughton’s application for the stay. The first qualification is that Mr Haughton included as an annexure a statement of the consent of his trustee in bankruptcy to his prosecution of the appeal in the Supreme Court, but not, I note, this interlocutory application. The second is that Mr Haughton seemed to depose to a number of matters which he may wish to agitate on the appeal in the Supreme Court. However, he did not do so in a way that has coherency or which would enable the Court presently to make any assessment of the merit or otherwise of his proposed appeal to the Supreme Court.

7    Mr Haughton has not attended today’s hearing. On one view, the fact that he lodged for filing his substantial affidavit late this morning may indicate an intention on his part to persist with his application, but it is now 15 minutes past the listed hearing time and Mr Haughton has still not attended.

8    In those circumstances, counsel for the applicants in the underlying proceeding seeks an order, pursuant to r 5.23 of the FCR, dismissing the application for the stay.

9    Counsel contends that Mr Haughton is in the position of an applicant for the purposes of r 5.23(1), and that he is in default within the meaning of r 5.22, on two bases. First, he has failed to comply with the Court’s order on 25 June 2021 that any affidavit to be relied upon be filed and served by 9.30 am on Thursday, 1 July 2021. Secondly, he is in default pursuant to r 5.22(c), because he has failed to attend today’s hearing.

10    I am satisfied that both of those matters are established and that Mr Haughton is in default. I continue to consider that there are significant issues concerning the power of the Court on the present application to grant the order sought by Mr Haughton, but it is not necessary to address those presently.

11    I am satisfied that the applicants are entitled to the dismissal of the interlocutory application on the grounds that Mr Haughton is in default and that discretionary considerations point in favour of the dismissal. Those matters are first the relative lateness with which Mr Haughton has brought the interlocutory application seeking the stay. I refer in that respect to the fact that the application for the stay was filed on 21 June 2021, even though the sequestration order was made on 8 June 2021. A second matter is that Mr Haughton has not sought in any way to address the issues concerning the Court’s power and discretion which were raised with him at the hearing on 25 June 2021. In these circumstances, it is not necessary to address issues concerning the regularity of the interlocutory application.

12    Accordingly, I make the following orders:

(1)    The interlocutory application of Mr Haughton filed on 21 June 2021 is dismissed.

(2)    Mr Haughton is to pay the Applicants’ costs of and incidental to his application filed on 21 June 2021 with those costs to be taxed in default of agreement.

Associate:

Dated:    6 July 2021