PERRY J:
1 The trustees filed an interlocutory application in early 2023 for the applicant's application to be struck out pursuant to rule 16.21 of the Federal Court Rules 2011. The hearing of that application has been deferred on a number of occasions in the past, including, most recently, on Ms Kimber's application, due to medical treatment she was receiving.
2 By an interlocutory application filed on 25 November 2024, Ms Kimber seeks leave to issue a subpoena. At the case management hearing today called on at her request, Ms Kimber also sought an adjournment of the hearing of the respondent's strike-out application in order to enable her to issue the subpoena. In addition, in oral submissions she sought to expand the terms of the subpoena sought so that it was not limited to requiring Stephen Travis to attend and give evidence, but also required production of the following materials:
(1) all payments from the strata plan to Grace Lawyers (who represent the respondent);
(2) full details of the cost agreements between Grace Lawyers and the respondent; and
(3) correspondence between the respondents and the trustees pertaining to payments to Grace Lawyers, together with the strata committee minutes of meetings dating back to 2008.
3 It was submitted by Ms Kimber that this material was crucial and had not been produced in the past. Ms Kimber also referred to earlier proceedings and orders made in those proceedings in support of her submissions and said that she had not, to date, had a fair hearing with all of the information having been brought forward which was relevant to the case that she wished to bring. Ms Kimber's case in this proceeding is enunciated in her originating application, in which she seeks to have her bankrupt estate annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth) on the ground that she was always solvent and able to pay all of her valid debts.
4 The respondents opposed the issue of the subpoena and the adjournment, contending, first, that there was no sufficient causal connection between the evidence that Ms Kimber sought to subpoena, and any issue raised by her application. Secondly, litigation by Ms Kimber has been on foot for ten years, and she has had ample opportunity to agitate the issues that she now seeks to raise and to obtain evidence in support of that case. Thirdly, the respondent submitted that Ms Kimber misunderstood the nature of these proceedings being adversarial in nature, as a consequence of which it was for Ms Kimber to establish her case and not for the respondents to provide evidence in support of her case. The respondents also referred to the delay in resolving the bankruptcy, the further delay that issuing the subpoena and allowing the adjournment would cause, and to the fact that the administration of the bankruptcy was now being undertaken largely without any funds, as had, in fact, been the case for some time. The respondents further submitted that it was in the public interest for bankrupt estates to be administered speedily, that numerous proceedings brought by Ms Kimber in the past had been unsuccessful, and that it was in the public interest for the proceedings to be finalised.
5 In my view, the application for leave to issue the subpoenas at this time should not be allowed and, therefore, the adjournment refused. My reasons are, first, the lateness of the application for an adjournment, which was brought without notice at the case management hearing today.
6 Secondly, there is a strong public interest, as the respondent submitted, in the speedy administration of bankrupt estates.
7 Thirdly, there is no obvious connection between the material which Ms Kimber seeks to adduce by way of the subpoena, on the one hand, and the grounds on which she seeks an annulment of the bankruptcy, namely, that she was always solvent, on the other hand.
8 Fourthly, it is important for the Court to have regard to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), which requires the court to have regard to the overarching purpose of civil and practice and procedural provisions, namely:
… to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
9 In the present case, it is also important that the adjournment application is made when the Court has had an application to strike out the originating application on foot since March last year. The strike out application is made on the basis that the present proceedings are an abuse of process, vexatious, fail to give rise to any reasonable possibility of relief and that no evidence has been led by the applicant in support of her financial affairs. Given those grounds, I raised with the respondents at the start of the hearing whether what they sought was, as appeared to be the case, in substance an application for summary dismissal. Counsel for the respondents confirmed that this was the case. It is not apparent that the material that the applicant, Ms Kimber, seeks is going to be of assistance to her with respect to defending the summary dismissal application on the grounds articulated by the respondents.
10 Nor, with the summary dismissal application on foot, was it appropriate at this stage of the proceeding to allow the subpoena to issue. I should make it clear however that this ruling does not preclude Ms Kimber from seeking the issue of a subpoena in the future, depending on the outcome of the summary dismissal application by the respondents.
11 Finally, I note that at the hearing today I granted leave to the respondents to amend their interlocutory application for a strike out so as to make it clear, on the face of the application, that what was being sought was summary dismissal of Ms Kimber's application. I have also granted leave to the respondents to amend their submissions so as to set out the applicable principles for a summary dismissal application in plain English. However, I have not granted leave to the respondents in any way to expand the grounds on which they rely in support of their interlocutory application so as to raise anything new. That means leave has been granted to the respondents to amend their submissions purely to ensure that Ms Kimber is given proper notice of the principles that apply to a summary dismissal application.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.