Spencer v Neo Rock Pty Ltd

Mr Spencer says that, as a result, he was not heard on the merits of his application before Greenwood J. This appeared to be a complaint that he was denied procedural fairness. 4 In his decision, Spencer v Neo Rock Pty Ltd [2009] FCA 845 at [5], Greenwood J set out the circumstances surrounding the hearing before him on 3 August 2009. He noted that, on the day before the hearing, Mr Spencer wrote a letter to the Court seeking, among other things, an adjournment of the matter for a week or so. Greenwood J noted that the letter concluded with this statement:

In the alternative, [the Court] may be minded to determine the matters 'on the papers' if there is power to do so as appears may be the case. I have no objection to that course.

5 Mr Spencer says that that statement was only directed to Greenwood J determining his application for leave to act as a director under s 471A of the Corporations Act 2001 (Cth) ("the Act") and not to his application for leave to appeal the decision of Logan J. As a result, he says he was adversely affected by the fact that Greenwood J proceeded to deal with the application for leave to appeal, because he was not present and able to put his case in person and act as a contradictor. I note in passing that Ms Walker has pointed out that, in the lead up to the hearing on 3 August 2009, directions were given that made it clear that there would be no further adjournment of the matter beyond 3 August 2009. 6 Even if I were to accept that Mr Spencer was acting under a misapprehension when he stated that he agreed to the court dealing with the matter on 3 August in his absence, I do not consider his absence on 3 August caused him any prejudice in the sense that he was denied procedural fairness. This is so because Greenwood J recorded (at [6] of his decision) he had before him written submissions by Mr Spencer directed to the issues involved in both his applications for leave under s 471A of the Act and for leave to appeal. 7 Based on the latter submissions, Greenwood J considered the decision of Logan J, particularly his approach to s 459S of the Act and the authorities relating to that, and concluded that Logan J was not in error in the approach he took to s 459S: at [10] - [12]. Having reached that conclusion, Greenwood J then considered Mr Spencer's written submissions directed to the application of that section in the circumstances, in particular, as to whether or not the company had established that it was solvent in accordance with the approach Logan J had taken to s 459S of the Act. At [17] to [19] of his decision, Greenwood J dealt with each of Mr Spencer's submissions in turn on this issue, and rejected them. In summary, he concluded that there was no material before the Court which would go to establish that the company was, indeed, solvent, as Mr Spencer claimed. He, therefore, refused both the application for leave to appeal the decision of Logan J and, as a necessary consequence, the application for Mr Spencer to have leave to act as a director under s 471A of the Act: at [19]. 8 Given those circumstances and the fact that Greenwood J considered all of the submissions Mr Spencer had put before the court in his written submissions on his application for leave to appeal, I reject Mr Spencer's submission that he was denied procedural fairness, or that this provides any basis for distinguishing the decision in Reid v Nairn (1985) 60 ALR 419. It follows that it is not open to Mr Spencer to seek to appeal the decision of Greenwood J, refusing to grant him leave to appeal the decision of Logan J. For these reasons, I order that Mr Spencer's application for an extension of time to file and serve a notice of appeal be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 10 November 2009 Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent did not appear

Solicitor for the Second Respondent: A Walker appearing pursuant to s 15(1)(b) of the Taxation Administration Act 1953 (Cth)