Maxwell-Smith v Donnelly

REASONS FOR JUDGMENT 1 On 8 June 2007 I made orders and gave reasons on the inquiry under s 179 of the Bankruptcy Act 1966 (Cth). Those orders (the "8 June Orders") were as follows: 1. Having inquired into the conduct of the respondent trustee, Max Christopher Donnelly, in relation to the matters in order 3 of the orders of the Full Court of the Federal Court on 27 October 2006 and finding no basis for criticism of the conduct of the said trustee or of his manager, Mrs Angela Margaret Gallucci, the applicants, Mr Eugene and Mrs Inge Maxwell-Smith pay the costs of the respondent, Max Christopher Donnelly, of this inquiry as taxed in accordance with the Bankruptcy Act 1966 (Cth) and that the costs of the respondent trustee of this inquiry before Allsop J form part of the respondent trustee's costs and expenses of the administration of the former bankrupt estate of Mr and Mrs Maxwell-Smith. 2. Time be extended for the filing of any application for leave to appeal from the orders made today to a date 14 days after the date of the signing by the associate to Allsop J of the settled reasons for judgment. 3. Leave be granted to the parties, through counsel only, to file and serve written submissions within seven days as to the form of order pronounced today. 2 The respondent took advantage of order 3 in the 8 June Orders and filed and served submissions based on Pantzer v Wenkart (2006) 153 FCR 466, especially at [43] and [44], to the effect that he should have not only his costs, but also his remuneration and expenses. 3 No submissions were filed or served within 7 days (or indeed prior to 6 July 2007) on behalf of the applicant pursuant to the leave granted in order 3 in the 8 June Orders. Prior to 6 July 2007, I caused my then associate to make inquiries of both Mr Brennan (who had appeared for the applicants at the inquiry) and Mrs Maxwell-Smith. From those inquiries, it was clear that they had received the submissions of the respondent based on Pantzer v Wenkart 153 FCR 466. 4 In these circumstances, I listed the matter on 6 July 2007, and on that day made an order replacing order 1 made on 8 June with an order providing for Mr Donnelly's remuneration and expenses as well as his costs. I published reasons on that date for the orders made. I also made available settled reasons for my oral judgment of 8 June 2007. This order, to which I will refer as the "First 6 July Order" was as follows: Order 1 made on 8 June 2007 be replaced by "Order 1" set out below: 1. Having inquired into the conduct of the respondent trustee, Max Christopher Donnelly, in relation to the matters in Order 3 of the Orders of the Full Court of the Federal Court on 27 October 2006 and finding no basis for criticism of the conduct of the said trustee or of his manager, Mrs Angela Margaret Gallucci, the applicants, Mr Eugene and Mrs Inge Maxwell-Smith pay the costs, charges and expenses of the respondent, Max Christopher Donnelly, of this inquiry as taxed in accordance with the Bankruptcy Act 1966 (Cth) and that the costs, remuneration and expenses of the respondent trustee of this inquiry before Allsop J form part of the respondent trustee's costs and charges and expenses of the administration of the former bankrupt estate of Mr and Mrs Maxwell-Smith. 5 At the time of making the First 6 July Order, Mrs Maxwell-Smith was in court. After I pronounced the order and published my reasons, Mrs Maxwell-Smith addressed me and said that she wanted to file submissions on the issue dealt with by the First 6 July Order and the reasons that accompanied it. Notwithstanding my view that Mrs Maxwell-Smith, through her counsel, had had ample time to deal with the issue, I then pronounced further orders (the "Second 6 July Orders") to protect her position. Those orders were as follows: 1. Order 1 made on 6 July 2007 (replacing order 1 made on 8 June 2007) not be entered and be stayed up until midnight on 20 July 2007, subject to further order. 2. On or before Monday, 16 July 2007, if the first applicant, Mrs Maxwell-Smith and/or Mr Maxwell-Smith wishes to file any submissions about the variations of the orders made on 6 July 2007, he or she file and serve any further written submissions in relation to the written submissions filed on behalf of the respondent about the variation of the orders made on 8 June 2007. 3. The matter stand over to 10:00 am on Friday 20 July 2007 for judgment in relation to any application in relation to varying or staying the order made today, 6 July 2007. 6 No submissions were received by the Court from Mrs Maxwell-Smith until 20 July 2007, after 10.00 am. Mrs Maxwell-Smith apparently sent them by registered post on 13 July 2007. At about 9.00 am on Friday, 20 July 2007 I became concerned from my seeing documents that Mrs Maxwell-Smith had sent the Court about her appeal from the 8 June Orders that the Registry may have misplaced her submissions due to be filed on 16 July 2007. (In fact, as it happens, the Registry had not misplaced them.) However, when the matter was called at 10.00 am on 20 July 2007, I did not have Mrs Maxwell-Smith's submissions and I was unsure as to whether the Registry had received them. Thus, I made further orders holding the position (the "20 July Orders") as follows: 1. The second order made on 6 July 2007 be varied in the following terms: (a) The stay of order 1 first made on 6 July 2007 to midnight on 20 July 2007 be discharged. (b) For clarity, the order made on 6 July 2007 that order 1 first made on 6 July 2007 not be entered remain on foot. (c) The proceeding stand over for judgment to a date to be fixed on question of variation of order 1 made on 6 July 2007 and the question of entry of that order. (d) Costs, expenses and remuneration of today be costs in the proceeding to be subject to previous orders as to costs. 2. If application for leave to appeal be necessary, the applicants' notice of appeal stand as an application for leave to appeal filed within time. 7 I made order 2 in the 20 July Orders to protect Mrs Maxwell-Smith as a potential litigant in person. She had filed a notice of appeal within the time contemplated by order 2 of the 8 June Orders. (The date of signing by my associate of the settled reasons for judgment was 6 July 2007.) 8 I now have the submissions of Mrs Maxwell-Smith filed on 20 July. They are 6 pages long. No part of them deals with the question of the variation of order 1 made in the 8 June Orders. All the submissions relate to the substantive issues dealt with in my reasons as delivered on 8 June 2007. There was no leave to file such submissions. 9 I see no reason to alter the views I expressed on 8 June 2007 and published in settled form on 6 July 2007. 10 Therefore the orders that I propose to make to finalise this matter at first instance are as follows: Order 1 in the "Second 6 July Orders" and order 1(b) in the "20 July 2007 Orders" (as these phrases are defined in these reasons) be discharged, thereby entitling the entry of the "First 6 July Order" (as that phrase is defined in these reasons).