Federal Court of Australia

Storey, in the matter of Britton v Britton (No 3) [2026] FCA 1593

ORDERS

THE COURT ORDERS THAT:

1.    The oral adjournment application be dismissed.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

WHEATLEY J:

1    This proceeding concerns a Creditors’ Petition which is set for hearing today and Monday, 26 October 2026. The Creditors’ Petition was listed for hearing earlier on 8 September 2026 wherein the Respondent Debtors, each of Mr Britton and Ms Britton, sought an adjournment. That application for an adjournment was successful (Storey, in the matter of Britton v Britton (No 2) [2026] FCA 1592) and further timetabling Orders were made (September Orders) on that occasion for the matter to be listed today and 26 October 2026.

2    On the matter being called on for hearing today, the First Respondent, Ms Britton, applied for an adjournment essentially on a medical basis, but also made some broader submissions as to why an adjournment was necessary. The Second Respondent, Mr Britton, supported that adjournment application and also made submissions in relation to the adjournment application. The Applicant Creditors oppose the adjournment application on a number of bases, including that the medical evidence was insufficient and that this was the second time the matter has been listed for hearing.

3    The evidence relied upon by Ms Britton in support of the adjournment application has been marked as exhibit “1”, being a medical certificate which states as follows:

MEDICAL CERTIFICATE

This is to certify that Ms Michelle Britton was examined today and in my opinion is unfit for work/school from 8/10/26 to 23/10/26 (INCLUSIVE).

This certificate was completed on 21/10 2026.

4    Ms Britton made submissions regarding her health which she submitted supported her application for an adjournment. In essence, those can be summarised on four bases:

    first, on the basis of the medical certificate;

    second, on what was submitted to be a staph infection;

    thirdly, her ongoing health issues, including impact on her vision which was submitted to be an ongoing condition and for which it was submitted there is earlier evidence to support; and

    fourth, claims that her capacity was affected.

5    The medical certificate upon which reliance is placed by both of the Respondents for the adjournment does not provide a satisfactory evidentiary basis for granting an adjournment. The medical certificate does not provide a diagnosis of the condition said to be suffered by Ms Britton or explain the nature of that condition. The certificate does not contain an opinion about whether or not Ms Britton is prevented or hindered in her preparation for, or attendance at, or participation in, a hearing in this Court today or on Monday, 26 October 2026. As such, the medical certificate does not provide reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of that opinion: see Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576 at [9] (Thawley J) and the authorities referred to therein. As such, I am not satisfied that the medical certificate provides a sufficient basis upon which to adjourn today’s hearing of the Creditors’ Petition.

6    The submissions made by Ms Britton today on the adjournment application satisfy me that she is able to participate meaningfully in this hearing, and a submission was made that if the hearing was to continue, she would participate.

7    Submissions were also made regarding the material to be relied on and further detailed material of the Respondents, to which I will return as that might be an alternate basis for the adjournment application.

8    The second basis was in relation to what was said to be a staph infection. There is no evidence before me as to what impact, if any, such an infection might have upon a person who may have that infection. There is also no reference to or diagnosis of that infection in the medical certificate. As such, I am also not satisfied that that provides a sufficient basis upon which to adjourn today’s hearing of the Creditors’ Petition.

9    In terms of the ongoing health and vision impacts of Ms Britton, these are matters which have been previously relied upon, and it does not appear that that circumstance is changing. However, Ms Britton was able to file the following three documents (in accordance with the September Orders) on 12 October 2026, being a Notice of Grounds of Opposition, an affidavit of herself (filed on this date but executed on 4 February 2026) and a written outline of argument and authorities. Those matters relevantly occurred during the period for which the medical certificate states that Ms Britton was unfit, and as such, also does not support the proposition that she is unable or prevented or hindered in her preparation for, or attendance at, this hearing.

10    Finally, an issue in relation to capacity was raised by both Respondents. In terms of Ms Britton’s capacity being affected, there is no evidence before me to support that submission. There is material which was filed by Ms Britton on 12 October 2026, and Ms Britton advanced submissions today on the adjournment application, which does satisfy me she is able to meaningfully participate in this hearing. There were many other submissions made by Ms Britton and Mr Britton, most of which dealt with the substantive issues which would be ventilated on the hearing of the Creditors’ Petition.

11    Although it is unnecessary to detail those submissions on the adjournment application, they can be summarised as: matters such as allegations regarding misleading the Court, that the amount of the debt or debts said to be owed had not been particularised, that there was no consideration or regard to the personal impact of these proceedings, that being the human consideration, and a broad submission that the Court should not have regard to other cases because the facts and circumstances of those cases might be different, and that would be embarrassing.

12    In relation to that final point, Courts are assisted, in accordance with the Doctrine of Precedent, by a consideration of like cases in like circumstances and as such I do not accept that submission that the Court should not look to those other cases, where relevant. The other submissions seek to raise matters which may go to discretionary considerations of whether or not to make a sequestration order under s 52 and s 43 of the Bankruptcy Act 1966 (Cth) and as such are more appropriate to be dealt with on the substantive hearing of the Creditors’ Petition.

13    A submission was also made by Mr Britton that there was no prejudice to the Applicant Creditors in a further adjournment. There was also a submission that it was not clear who counsel was acting for. I do not accept either of those submissions. It is and was clear that counsel is acting for the Applicant Creditors. It is also clear that there is prejudice to the Applicant Creditors in a further adjournment being granted. The Applicant Creditors commenced this proceeding on 24 April 2026 and the proceeding has already been the subject of a substantive adjournment from 8 September 2026, where I observed the following:

Yes. All right. Thank you. I’ve heard you about that. But you are available on the 26th, so we will go with that. Thank you. All right. Yes. Ms Britton, how long do you need to put on your material? And you should file absolutely and utterly everything you want me to rely on. There will be no further adjournments of this creditors petition unless there is extraordinary material to support it. So how long do you need?

14    The Applicant Creditors are continuing to incur costs. There is also a public interest aspect to this case and the proceedings. That public interest aspect is both in terms of these being bankruptcy proceedings, and also the effect that an adjournment has on court resources, and in that regard, see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (French CJ, agreeing with the majority of Gummow, Hayne, Crennan, Kiefel and Bell JJ) and s 37M of the Federal Court of Australia Act 1976 (Cth).

15    Finally, the Respondent Debtors made submissions, in effect, that they did not know what material would be relied upon for the purposes of the hearing because, they submit, that the Applicant Creditors filed material late and not in accordance with the September Orders. The Respondent Debtors, and particularly Ms Britton, also submitted that there was significant additional evidence that she wished to rely upon and was in the process of preparing a detailed affidavit.

16    It is fair to observe that there does appear to have been non-compliance with the September Orders by both the Applicant Creditors and potentially the Respondents (as the reference to a detailed affidavit being prepared by Ms Britton was not provided in accordance with the September Orders and Mr Britton referred to an affidavit executed on 21 October 2026, which it was apparent he would seek to rely on was also not provided in accordance with the September Orders); however, for the purposes of the adjournment application it is unnecessary and I do not make any findings about whether or not there has been non-compliance with the September Orders by either the Applicant Creditors or either of the Respondents. That will be a matter to be dealt with on the substantive hearing of the Creditors’ Petition.

17    The Respondents raised submissions in support of the adjournment application that there was a difficulty in knowing the material that would be relied on and further the Respondents (or at least the First Respondent) sought to file further detailed evidence. First, the September Orders, in Order 8, stated that material not filed in accordance with the Orders would not be available to a party without the leave of the Court, supported by a proper explanation. I will hear from all of the parties about objections on material on the hearing of the Creditors’ Petition, that will deal with any suggested difficulty regarding the material. Second, it was clear on the last occasion that the parties were told to file “absolutely and utterly everything” that was sought to be relied upon for the purposes of the hearing of the Creditors’ Petition. Also see paragraph 4 of the Notes to the September Orders. As such, the parties have had been afforded a proper opportunity to file their evidence and that while they may seek additional time to file additional evidence, that is not a sufficient basis to grant an adjournment, in these circumstances.

18    For those reasons, the oral application for an adjournment of the Creditors’ Petition is refused.

Associate:    

Dated:    23 October 2026