Federal Court of Australia
Mann (Trustee) v Storey [2022] FCA 542
ORDERS
FAROOQ AHMAD MANN AS THE TRUSTEE OF THE ESTATE OF DAVID IAN ANDREW STOREY, A BANKRUPT Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The respondent’s application to vacate the hearing on 19 May 2022 be dismissed.
2. The time for the respondent to file and serve his opening submissions be extended to midday on 16 May 2022.
3. By 4pm on 17 May 2022, the applicant file and serve an electronic court book that:
(a) contains:
(i) the parties’ opening submissions;
(ii) the originating process;
(iii) all affidavits and exhibits that may be relied on at hearing;
(b) is in the form of a consolidated and text searchable PDF document;
(c) is consecutively paginated such that the page number marked on each page matches the PDF page number;
(d) has an index of the documents contained within it; and
(e) has bookmarks of each document included in the index.
4. Also by 4pm on 17 May 2022, the applicant serve a hard copy of the court book on the respondent at his nominated address and deliver a hard copy to my Chambers.
5. The final hearing listed for 19 May 2022 be conducted in person, save that leave be granted to the applicant to give evidence and be cross-examined by audio visual link.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Delivered ex tempore)
STEWART J:
1 This matter is listed for final hearing next week, on 19 May 2022. The respondent applies to vacate the hearing on the basis that he is not in a position to be prepared for it or to participate adequately in it.
2 The applicant is the respondent’s trustee in bankruptcy appointed under the relevant law of Singapore. In the proceeding, the applicant seeks an order that his appointment as trustee be recognised in Australia. He also seeks various related orders including:
(1) a declaration that any of the respondent’s property located in Australia is vested in him;
(2) that a receiver be appointed to act on the applicant’s behalf for the purposes of investigating, collecting and realising the property of the respondent in Australia;
(3) that the receiver be given the powers of a trustee in bankruptcy under the Bankruptcy Act 1966 (Cth); and
(4) that the respondent do such things as would be required of him as if he was a bankrupt under the Bankruptcy Act.
3 There are currently in place programming orders for the preparation for the final hearing. Those include an order that seven days before the date of the hearing, which is to say today, the respondent file opening submissions not exceeding 10 pages in length.
4 The respondent’s evidence in support of his application to vacate the hearing includes the following.
5 On 20 April 2022, his primary computer system failed. He gives a long explanation as to how he attempted to remedy the failure which, for various reasons, he has not been able to achieve. He says that he also has other litigation to deal with as well as other day-to-day activities. He says the impact of mental factors, such as stress, affects how he is able to prepare.
6 The respondent says that he is not able to afford his own computer system to replace the defunct primary system, but that he has asked his parents to assist. However, there are various reasons for a delay in him acquiring a new computer system that meets his required specifications. He says that he anticipates that after 24 May 2022, he will be in a position to say when he will be able to meaningfully prepare for and participate in a final hearing.
7 The respondent gives various explanations for why it is not convenient for him to use computers in public libraries to prepare for the hearing, and why a phone is not suitable for attending the hearing.
8 He notes that the applicant has offered to purchase a computer and lend it to him, but he says that the specifications for the brand-new laptop that the applicant has offered are inadequate.
9 Finally, the respondent submits as follows:
(1) he is unable to effectively research and compile his submissions and legal arguments;
(2) although he is able to attend in person at the final hearing, even then he would not have access to a computer system for the purpose of accessing documents, and he would struggle with properly dealing with hard copy documents because he is accustomed to using electronic documents;
(3) the stress arising from the burden of trying to keep up with his ongoing activities after the loss of this computer system is a significant issue leading to mental fatigue.
10 I reject the respondent’s contentions and refuse his application to vacate the hearing date for the following reasons.
11 The hearing will be in person, so no issue arises as to any difficulties of participating remotely. The respondent has confirmed that he is able to attend in person.
12 By his affidavit to support the application today, the emails that he has exchanged with my associate and the applicant’s solicitors, and the draft orders that he has sent, the respondent has demonstrated that despite the woes he attests to he is reasonably able to prepare documents for the court.
13 The computing power required to prepare for the hearing, i.e., prepare documents on a word processing program, save, search and exchange documents, and search the internet, is very modest. I am not persuaded that the computer that the applicant has offered to purchase and to lend to the respondent is in any sense inadequate for that purpose.
14 I will order that the applicant serve hard copies of the documents on the respondent so that he will in any event not require a computer to access and read the applicant’s documents.
15 This proceeding was commenced in February 2022 and it has been listed for final hearing on 19 May 2022 since 8 April 2022. It is inherently urgent. The interests of not only the parties to the matter are at stake, but also the respondent’s creditors.
16 The factual and legal issues are confined. By letter dated 31 March 2022, the applicant explained to the respondent the nature of the applicant’s case and his principal contentions. The letter also identified his contentions in response to the respondent’s case. The respondent has thus had very clear notice of the case against him for a long period of time. There is no good reason why he has not been able to adequately prepare.
17 In short, I am not satisfied that the respondent cannot have a fair hearing next week.
18 I will extend the time for him to file his opening submissions.
19 The respondent’s application to vacate the final hearing date must accordingly be refused. The applicant did not seek a costs order.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
