Dunlop v Fishburn

REASONS FOR JUDGMENT (revised from transcript) 1 The applicant, Mr Dunlop, has applied for an extension of time to seek leave to appeal from a sequestration order made by a federal magistrate on 10 November 2009. The first three respondents are partners in a law firm that previously acted for Mr Dunlop in litigation in the NSW Land and Environment Court and to whom Mr Dunlop remains indebted. They were the petitioning creditors. The remaining respondent, Mr Chubb, is the trustee of Mr Dunlop's bankrupt estate. 2 The application is listed for hearing today. Mr Dunlop objected to me hearing it and wrote a letter to the Court requesting me to recuse myself. I asked the Registry to advise him that I would not be acceding to his request. My reasons follow.

Background 3 The application for extension of time was filed on 30 September 2011, nearly two years after the sequestration order was made. Soon after it was filed, Mr Dunlop also sought a stay of a writ of possession over certain land he owned, a writ which had been issued some four months earlier. That matter was listed before me for first directions on 14 October 2011. I indicated at the time that I was not disposed to grant the stay but offered to hear the application for extension of time together with the stay application on 19 October 2011. This seemed the sensible course. If the application for extension of time failed, the stay application would fall with it. If it succeeded, the stay application could then be considered. 4 On 19 October 2011 I raised with the parties the fact that I had realised the previous day that I knew the first respondent, Mr Fishburn. I informed the parties that: 1. I was at university with Mr Fishburn; 2. I would not have seen him more than a handful of times over 30 plus years since and then only by chance encounter in a courtroom; 3. I did not think that would cause any problem at all, noting that Mr Fishburn had not sworn an affidavit in the proceeding. 5 I said I did not know Stephen Campbell, also a solicitor in the firm, who was representing the petitioning creditors in the proceeding and who had sworn an affidavit in the Federal Magistrates Court (which I was later told neither he nor the trustee intended to read in this Court). It turned out that Mr Campbell was a year behind me and Mr Fishburn at university and remembered me but said that our paths had not crossed since and we had probably not exchanged words at university. I did not recognise him. Mr Campbell reminded me that Mr Watson, another of the petitioning creditors, was also in my year at university. I should point out that I left university 33 years ago. 6 I invited Ms Tangsilsat, a solicitor who was then acting for Mr Dunlop, to seek instructions. She informed me that she did not object to me hearing the case. Neither did the other parties. 7 At this point Ms Tangsilsat sought an adjournment of the application for extension of time, saying she had a witness, upon whose evidence she wished to rely (although he had not sworn an affidavit) who was unavailable. I granted the adjournment. I then proceeded to hear the stay application, and stood the application for extension of time over to a date to be fixed. Two days later I dismissed the stay application: Dunlop v Fishburn [2011] FCA 1194. At the same time I made orders for the filing and service of any further evidence in support of the application for an extension of time, anticipating that any hearing would take place in early December. (The delay was brought about by Ms Tangsilsat's impending trip to Thailand.) In the meantime I was notified that a hearing could not take place then and more time would be required because Mr Dunlop was unwell. 8 On 2 December 2011 Ms Tangsilsat filed a notice of intention to cease to act and on 27 January 2012 she filed a notice of ceasing to act, giving in it Mr Dunlop's last known residential or business address. Mr Dunlop, himself, filed a notice of address for service on 20 December 2011, which provided his residential address and his partner's email address. 9 At a directions hearing on 5 December 2011, at which Mr Dunlop appeared for himself, I made orders relating to the filing and serving of any further affidavits and submissions, and any request for cross-examination of any deponent. I also ordered that any party wanting an oral hearing notify my chambers by 2 March 2012 and that, in the event that I decided to proceed by way of oral hearing, that hearing would take place on 26 March 2012. On 2 March 2012 Mr Dunlop (alone amongst the parties) advised that he wanted an oral hearing and I granted his request, confirming the hearing date fixed on 5 December 2011. 10 Mr Dunlop has filed three affidavits in support of his application, Mr Chubb one, the petitioning creditors none. The parties have also filed submissions. Mr Dunlop's submissions were written by Ms Tangsilsat and annexed to one of his affidavits. 11 On 7 March 2012 Mr Chubb advised the Registry that there was no money remaining in Mr Dunlop's estate to pay a lawyer and that he would now be representing himself. He also advised that he would be out of the country until the day the matter was fixed for hearing and asked that the matter be stood over for hearing the next day. 12 On 8 March 2012 the Registry advised the parties that Mr Chubb was overseas until 26 March 2012 and that I proposed to hear the matter the following day. On 14 March 2012 I formally vacated the order for a hearing on 26 March 2012 and listed the application for hearing the next day. 13 The same day, that is, 14 March 2012, Mr Dunlop advised the Court that he wanted Mr Chubb and Mr Campbell to be available for cross-examination. This request was well outside the time he was required to notify the court under the orders I made on 5 December 2011. Mr Dunlop also advised that 27 March was "not suitable as my representative has other commitments and is unable to attend" but that any date after 7 April 2012 was fine with him. The reference to a representative was puzzling. This was the first time I had been told that Mr Dunlop had a representative. No lawyer has filed a notice of acting as required by the Federal Court Rules 2011 (Cth) (r 4.03). In all the circumstances I confirmed that the hearing would take place on 27 March 2012. 14 On 20 March 2012, a week before the scheduled hearing, the Registry received a letter from Mr Dunlop marked for my attention. The letter was not apparently copied to the other parties. It reads: I write with concern of bias and or a miscarriage of justice in my appeal and ask your immediate removal from presiding over my hearing. As you are aware the defendant Lawyers - Michael George Fishburn and John James Watson are acquainted to you, which may prejudice my case, in the least there is a conflict of interest. I no longer use my former lawyer, as I was deeply concerned that she allowed your continuance after it was made known your long acquaintance with Mr Michael George Fishburn and Mr John James Watson. I have written to Chief Justice Keane at the Federal Court of Australia QLD asking the same, and to reschedule the hearing date to coincide equally for all parties. I am in no position to attend Court on 27 March 2012. Should Court proceed in my absence it would leave no alternative but to take the matter further to find justice. I trust in your understanding.