Shirreff v Beck Legal Pty Ltd

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Whelan FM delivered on 10 September 2010 and published as Shirreff v Beck Legal Pty Ltd [2010] FMCA 697. The Federal Magistrate dismissed an application of the appellant Mr Shirreff, to have the sequestration order made against him on 30 July 2009 set aside and to have his bankruptcy annulled. The matter is listed before me this morning. An application without prior notice has been made this morning by Mr Shirreff for the adjournment of the hearing of the appeal. 2 For the reasons that follow, I have determined that the application for an adjournment should be dismissed. 3 The background to these proceedings was usefully summarised by Dodds-Streeton J in a judgment published as Shirreff v Beck Legal Pty Ltd [2010] FCA 1407. At [8] to [14], her Honour said: 8. As appears from the affidavits and exhibits on 30 July 2009, Mr Shirreff was made bankrupt pursuant to the order of Registrar Luxton who, in Mr Shirreff's absence, made a sequestration order against his estate. 9. On 30 July 2009, Mr Shirreff applied for a review of the sequestration order made on that day. 10. On 16 September 2009, on the application of Beck Legal, the petitioning creditor, David Lofthouse, was appointed trustee of the bankrupt estate in substitution for the original trustee, ITSA. 11. On 3 March 2010, Burchardt FM dismissed Mr Shirreff's application for review and affirmed the 30 July 2009 sequestration order. 12. On 17 March 2010, Mr Shirreff lodged an appeal against Burchardt FMs decision, but, subsequently, on legal advice, abandoned it in order to apply instead for annulment of the sequestration order. The appeal was dismissed on 30 April 2010. 13. On 18 May 2010, Mr Shirreff applied to set aside the sequestration order made on 30 July 2009 and for the annulment of his bankruptcy. 14. On 10 September 2010, Whelan FM dismissed that application. 4 Subsequently on 1 October 2010, Mr Shirreff filed a notice of appeal in this Court. Various orders have been made by the Court, including orders requiring Mr Shirreff to file and serve appeal books and his outline of submission in order to facilitate the hearing of this appeal. In particular, on 17 November 2010 Registrar Caporale made orders settling the index for the appeal book and ordering Mr Shirreff to file and serve two appeal books by 22 January 2011. Those orders were not complied with. Due to the failure by Mr Shirreff to comply with Court orders and file and serve appeal books, and with the trial dates imminent, I determined to list the matter for mention at 9.30 am on 25 February 2011. On that day, Mr Shirreff appeared in person. The respondent was represented by Mr Bowyer. 5 Mr Shirreff on that day informed me that he was about to engage solicitors who would represent him on the appeal. He applied for the impending appeal to be vacated. In order that Mr Shirreff have a further opportunity to rectify his non-compliance with orders made by the Court, and in the expectation that the solicitors would now be engaged to assist him, I made orders vacating the listing of the appeal for 28 February 2011, and re-listed the appeal for today. I also made orders in relation to the filing and service of an appeal book, and that Mr Shirreff file and serve his outline of submissions on or before 7 March 2011. 6 Those orders have not been complied with. Once again, Mr Shirreff is in significant default of Court orders. 7 Mr Shirreff again appeared in person today. He remains unrepresented. He seeks an adjournment on the basis that he wants to approach the Trustee and seek the authority of the Trustee to fund this appeal. No affidavit material has been filed by Mr Shirreff in support of his application for an adjournment. That application is opposed by the respondent. 8 In an attempt to explain his circumstances, Mr Shirreff informed the Court that since the matter was last before me on 25 February 2011, he had approached a solicitor, that he had experienced some difficulty in finding an appropriate barrister, that legal representation was unaffordable to him, and that he had made some attempt to sell property in order to be able to afford legal representation. He informed the Court that his efforts came to nothing, because some of the property in question was stolen. 9 Mr Shirreff was unable to tell the Court the basis upon which he could afford legal representation in the future, other than to say that he sought to obtain the authority of the Trustee to fund the appeal. Mr Shirreff has not identified any basis for his failure to have approached the Trustee at an earlier time, nor has he put anything before the Court which can give me any confidence that any approach that may be made to the Trustee would likely result in the Trustee authorising the funding of the appeal. 10 In those circumstances, I do not consider there to be a proper basis for the grant of the adjournment, in that Mr Shirreff has neither explained to my satisfaction the fact that he was unable to obtain legal representation since the matter was last before me, and nor has he satisfied me that his position is likely to change should an adjournment be granted. 11 Additionally, in considering the application for an adjournment, I need to take into account the interests of the respondent. The respondent has incurred costs, and will likely continue to incur costs, and those costs are likely to be greater still if today's hearing is adjourned and the hearing of the appeal is yet again put off to another date. In circumstances where Mr Shirreff has been declared bankrupt, it is likely that any costs orders either already made or to be made will not be able to be realised. There is also prejudice to the respondent by the fact that Mr Shirreff is unable to prosecute the proceedings in a timely way, and bring the litigation to finality. 12 Further, if I was to accede to the adjournment application, a further day of court time would be lost. That would be in addition to the day lost on the day that the appeal was first listed for hearing. The dates that have been allocated for the hearing of this appeal have precluded those dates being available to other litigants. That involves inefficiencies and a waste of Court resources. The High Court's decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations, including the proper use of court resources, and the interests of other litigants before the court, are germane to the exercise of my discretion on an application such as this. I refer to and rely in particular upon the reasons for judgment of French CJ at paragraphs [5], [6], [30] and [35] and the reasons for judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at paragraphs [92] to [103], and also at [111] to [113]. The case management considerations that I have referred to weigh against the vacation of the hearing. 13 For all of those reasons, I decline Mr Shirreff's application for an adjournment. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.