Thompson v Lane

1. The applicant's Interlocutory Application filed 2 December 2021 be dismissed.
2. The costs of the respondent Trustee be costs in the administration of the bankrupt estate.
3. Save aforesaid, costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 By an interlocutory application filed on 2 December 2021, the applicant, Ms Emma Narelle Cathryn Thompson (Ms Thompson), who is presently bankrupt, applied for the reopening of the hearing of her application for the annulment of her bankruptcy, so as to permit the admission into evidence of material annexed to an affidavit made by her or at least purportedly made by her, and on 29 November 2021 but filed on 2 December 2021. It is necessary to say purportedly because, for reasons that are not at all clear to me at the moment, and this may be a failing in the Court's electronic filing system, an affidavit which was neither sworn to nor affirmed by Ms Thompson was nonetheless accepted for filing. That requires quite some internal investigation within the Court. 2 For present purposes, however, the deficiency was remedied by Ms Thompson's adoption today in the witness box of that affidavit. Also then adopted was the draft of an affidavit of 17 December 2021 to which was annexed some further material upon which Ms Thompson sought to rely in the event that the proceeding was reopened. 3 On 30 August 2021 after the completion of the trial, judgment was reserved. It presently remains reserved. 4 There was another aspect to the interlocutory application heard today by which Ms Thompson sought an order that the present trustee of her bankrupt estate, Mr Morgan Lane (Mr Lane), cease to act as trustee, but that question overlaps with the substantive issue upon which I am presently reserved. Ms Thompson accepted that that aspect of the interlocutory application was not apt in those circumstances to be determined today. 5 The reopening of the proceeding for the purpose of adducing the further "evidence" - and that term is one I use loosely at present - was opposed by the body corporate as well as another creditor. The trustee adopted a neutral position in relation to reopening, consistent with that adopted at trial. 6 By an interlocutory order made on 10 June 2021 at a time when another judge of the Court had case management responsibility, it was ordered that the applicant - in other words, Ms Thompson - file and serve her affidavits confirming service of the notice to creditors of annulment application by 17 June 2021 and that she file her submissions in support of her application by 1 July 2021. That order also made provision for the filing of submissions in reply by the respondent and interested parties. The order made that day is annotated: The parties are ready to proceed to hearing on a date after 15 July 2021 with an estimate of half to one day. 7 As mentioned, the case did, indeed, proceed to hearing after 15 July 2021. Some three months after judgment was reserved, the present application was filed. Ms Thompson admitted frankly in her oral submissions today that it was not until November this year that she had focused on particular material relied upon by interested party creditors at the hearing. It was obviously that particular focus which inspired her application to reopen the proceeding. 8 The question as to whether or not to permit reopening in a given case was the subject of observations in a joint judgment of Brennan, Dawson, Toohey and Gaudron JJ in the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256, at 267. Different considerations apply depending on whether the case is one where the hearing is complete or whether the case is one where reasons for judgment have been delivered. As to one where the hearing is complete, the observation made in the joint judgment was that it is difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side. 9 That particular sentiment was embraced by the opposing parties in opposing this particular application. 10 In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, at 478 - 479, it was said in respect of an application for leave to adduce evidence after the close of evidence that the considerations were the likely prejudice to the parties resisting the application, the reason why the evidence was not led in the first place and whether the interests of justice would be better served by the rejection of the application. 11 In this Court, further considerations arise by virtue of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). Adverting to these provisions, White J in F.Y.D Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097, conceived that relevant considerations included the public interest, as well as that of the particular parties in litigation being conducted efficiently and expeditiously: the public interest in the finality of litigation with the consequent expectation that litigants will present all their evidence and submissions at the one hearing; the significance of the proposed new evidence and submissions in the context of the trial; the explanation for the evidence not having been led at trial; that there might be prejudice to the opposing party if the application is allowed; the potential detriment to the applying party if the application is refused; and any delay by an applicant in seeking leave to re-open. 12 Ms Thompson provided in her affidavit an explanation in relation to why the evidence had not earlier been led. I have already adverted to her admission in the course of oral submissions about not having read particular material until November. But her affidavits expand on this by way of an explanation as to the particular personal stress visited upon her by this and earlier litigation. There is an obvious prejudice to each of the opposing parties and the trustee in relation to any re-opening for the purpose of allowing any further evidence. That obvious prejudice is that, necessarily, the case would have to be relisted for trial. It is inherently likely that there would be a need for some further affidavit evidence and related to that, in all probability, cross-examination both of the trustee and also, I apprehend, Mr Schoch. At least one day's further trial would be entailed with all of the attendant costs to the respondent trustee, as well as the opposing parties. 13 I am not at all persuaded that any of the evidence - and that term involves a degree of elevation of the annexed material in terms of its characterisation - could not, with reasonable diligence, have been filed and served, if not within appointed case management times, at least within a reasonable time prior to the appointed trial date, 30 August 2021. If one, as was done on behalf of the body corporate, analyses particular classes of the proposed new material, the most challenging in terms of the interests of justice is a certificate annexing superannuation balances. This evidence, I am quite sure, could readily have been adduced at the trial. 14 On its face, the superannuation balance certification does not indicate an amount which would have been sufficient to have extinguished wholly an apparent deficiency as at the time the debtor's petition was presented or thereafter. It is not at all clear whether or not the whole of the balance concerned would have been readily accessible. There is an intriguing reference to the prevention of foreclosure. But the precise basis upon which access might have occurred and within what timeframe is not apparent. What is apparent from evidence is that Ms Thompson was able to withdraw amounts of $10,000 on 20 April 2020 and 11 July 2020. Inferentially, these withdrawals appear to be the result of an indulgence granted during the period of the present pandemic. 15 Also in the annexed material is yet further material concerning what is said to be a commercial arrangement as between those who have acted for the Body Corporate and the bankruptcy trustee, but the subject was already one canvassed at trial. Another subject covered by the annexed material concerns whether there was lawful authority for the commencement of various litigation by the Body Corporate such that there was no valid costs agreement. This too is no new subject, either in submission or evidence. The material also contains various complaints about the conduct of Mr Lane, the bankruptcy trustee. Once again, this is no new subject. 16 Also in the material is yet further documentation concerning an alleged set off for the cost of replacing windows in an apartment occupied by Ms Thompson. The precise foundation for this set off is not, however, in the evidence. In any event, it is patently evidence that was available at the time of the appointed hearing. Further, the controversy concerned is one which has been the subject of proceedings in other places long ago. 17 Also ventilated in the annexed material is further agitation concerning the foundation for the bankruptcy notice, but this was a subject which was canvassed and should have been canvassed only at trial. 18 It only comes to this. This is an application which, if it were to be made at all, ought to have been made much sooner than three months after reservation of judgment. I am not at all persuaded that any of the affidavit material could not, with due diligence, have been led at trial. Yet further, I am not at all persuaded that any of the evidence concerned is of a character that would make any substantive difference whatsoever to the issues upon which I am presently reserved in terms of whether or not to grant annulment. 19 Litigants in person enjoy no special dispensation from the ordinary rules of court and the ordinary way in which civil litigation is to be conducted. Were it otherwise, the tyranny of ignorance would prevail over the way in which, according to rules of court, civil litigation is to be conducted. There is an overwhelming public interest, never more so than at the present time, in an efficient use of judicial resources in accordance with the ordinary rules of court and practice. Parties, be they represented or unrepresented, must appreciate that it is their particular responsibility to bring forward at an appointed trial date the evidence upon which they seek to rely. 20 Of course, there can be cases where, exceptionally and for cause, evidence which could have been adduced and was not must be permitted in the interests of justice to be adduced, but this is not one of those cases. I therefore dismiss the application. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.