Present: FM Morcombe, Federal Magistrates Court
Patricia Christie, Registrar, Federal Court
Pat Tragauer, ITSA
Erica Verrusio, ITSA
Liam Reynolds, Lindquist Partners
Nick Economos, Economos Lawyers
Amy Nolan, Kelly & Co
Tyneil Flaherty, Minter Ellison
Nic Parkyn, AGS
Janelle Wilksch, Finlaysons
Alex Marshall, Marshalls
Steven Hailstone, Donaldson Walsh Lawyers
Karen Olsson, Mellor Olsson
John Taylor, Randle & Taylor
Apologies: FM Lindsay, Federal Magistrates Court
FM Simpson, Federal Magistrates Court
Kym Ryder, O’Loughlins Lawyers
Kate White, O’Loughlins Lawyers
Ivars Martirovs, Martirovs & Co
Natalie Abela, Cowell Clarke
Rebecca Smith, ATO
Dusan Uglesic, AGS
James Neate, Lynch Meyer
Justin Stewart-Rattray, Stewart-Rattray Lawyers
Fidelis McGarrigan, Fisher Jeffries
Anita Caruso, Fisher Jeffries
1. Welcome
Patricia welcomed those present and thanked them for their interest in attending.
2. Practice issues:
2.1 Affidavits of debt
Patricia noted that there remained a tendency on the part of some practitioners to file affidavits of debt which have been sworn on information and belief only. She noted that the making of a sequestration order is a final order and as a result there is a risk in swearing affidavits on information and belief when seeking such an order. She noted that there should be no need for this to occur with the ability to file affidavits of debt by facsimile.
2.2 Affidavit verifying petition predating petition
Patricia noted that although the likelihood of this occurring has reduced as a result of the new format creditors petition, which attaches one of the affidavits verifying it as part of that form, there have still been one or two instances where people were attempting to file creditors petitions which were verified by affidavits which actually predate the petitions.
2.3 Last minute filing of substituted service orders
Patricia noted that although the Court endeavours to accommodate practitioners who, through circumstances beyond their control, need to file substituted service applications on the morning of a bankruptcy list, there appear to have been an increase in the tendency for these to be filed at the last minute. She noted that there was a significant risk in these situations that the Court would be unable to deal with that application during the listing of the matter that afternoon. She therefore requested the parties to make every endeavour to file such material in a timely manner.
2.4 Next meeting of the Harmonised Rules Monitoring Committee
Patricia noted that the Harmonised Rules Monitoring Committee, which is responsible for agreement in relation to the harmonised bankruptcy rules, is next meeting at the end of November. She further noted that a number of minor amendments to the rules had been referred to the committee. In particular amendments:
to shorten the timeframes within which to serve and notify in relation to the review of a Registrar’s decision, to ensure there is no undue delay in the hearing of the review application which may lead to administration and other costs being incurred unnecessarily;
to the requirements of Rule 4.06 in relation to the affidavit of search such that what needs to be deposed to is that no details of the debt agreement exists on the day the search is made rather than on the day the petition is presented;
in relation to the affidavit of debt which currently allows fax filing of those affidavits but only on the basis that the original is subsequently filed. The proposed new rule will allow fax filing with no original being required to be filed at that time, so long as the original is kept and is available to be produced if the Court so directs; and
of a minor nature to some forms.
Patricia noted that another issue to be put to the committee relates to the issue of a lump sum cost amount for substituted service applications. Patricia noted that although District Registrars have agreed that this would be useful, no amount has yet been determined to put to the committee and that issue might require further work. She noted that the inclusion of a lump sum amount for substituted service applications had been suggested at a previous meeting of this user group.
It is hoped that these amendments might be in place early next year.
2.4.1 Costs
Patricia noted that the Federal Costs Advisory Committee (‘FCAC’) has been disbanded, however a Joint Costs Advisory Committee has been created in its place. This committee will meet shortly and it is hoped that an increase in the schedule costs amounts will occur in the first half of next year.
2.5 Filing of sufficient copies of petitions
Patricia indicated that the Registry staff had asked her to remind practitioners that it is important that the right number of creditors petitions are produced for the Registry (one copy for each debtor, one for the affidavit of service, one for the Court and one for the practitioner’s file if required).
2.6 Length of lists
Patricia queried whether practitioners had any concerns with the lengths of lists and noted that there had been a couple of longer lists recently, although that may have been in part caused by a combination of a public holiday and a reduced list in a week that she was on leave. Practitioners indicated that they had no concerns with the lengths of the lists and Alex Marshall noted how well the lists were dealt with in South Australia in comparison with other experiences that he has had. Patricia noted that if practitioners thought that the lists were too lengthy she would consider putting in place a second listing day or look at other alternatives. One such alternative is whether it might be possible to deal with substituted service of bankruptcy notice applications separately from the normal list. Some discussion ensured about this and various suggestions included:
separate listings of the applications;
dealing with these applications at the start of the Monday list;
a separate multiple listing time on Mondays;
dealing with them in chambers or with the applicant present by telephone; or
dealing with them on the papers.
Patricia indicated that she would give this issue some thought.
Action: Patricia to consider the most appropriate method of dealing with substituted service of bankruptcy notice applications.
2.7 Emailing of orders to be sought
Patricia provided practitioners with a summary of the process for obtaining entered orders where they have not been entered in court (emailing the Registry after checking the details on e-search on the Federal Court website).
3. Recent cases of interest
Irani v Hollyburton UK Limited [2007] FCA 1447
Patricia indicated that this case is one of a number that consider the position in relation to interest calculations since the Adams v Lambert (2006) 225 ALR 396 decision of the High Court and that practitioners might find it of interest in that regard.
O’Meara v Hitwise Pty Ltd [2007] FCAFC 114
Patricia indicated that this is a Full Federal Court decision involving what was described in the judgment as an apparently previously unexplored issue of bankruptcy procedure being whether, where a Court is reviewing a sequestration order made by a Registrar, the proceeding can be amended by substitution of the petitioning creditor. She noted that the Court found that as the hearing was a hearing de novo, should the original petitioning creditor wish to withdraw when the review was pending and another creditor substitute, that was permissible.
4. Practitioner issues/suggestions
4.1 Filing of facsimile copies of affidavits of debt
Patricia noted that this item had been raised by the Taxation Office however no representatives were present at the meeting. This issue may have been covered in the discussion of facsimile filing of the affidavits of debt in 2.4 above.
4.2 Telephone listings
Patricia indicated that this was also an item raised by the Taxation Office. She thought it may relate to the whether practitioners could appear by telephone where an adjournment was being sought. She noted that although the Court attempts to accommodate debtors that may not live near the Court or those who are ill or otherwise unable to attend Court by allowing telephone attendances, the preference, certainly in relation to city litigants and practitioners, was that they attend in person and that, in any event, in most situations most practitioners appear to have more than one matter in the list.
5. Other Business (including any corporate insolvency issues)
5.1 Information on Court protocol for Self Represented Llitigants
Patricia noted that as a result of a suggestion of a previous user group meeting information on Court protocol for Self Represented Litigants has been produced and placed on the bar table. She noted that it was hoped that those litigants would read it and would then feel somewhat more comfortable about what was required when appearing in Court. One of the practitioners present indicated that he had noted a number of people had been reading the protocol.
5.2 Bankruptcy guides/information and the need for information sessions
Patricia noted that the Court also has available a number of pamphlets and brochures on bankruptcy and information on the website. She further noted that the Federal Court had commenced running a series of information sessions and that topics to date have included Federal Procedure and Federal Jurisdiction. Patricia noted that if practitioners felt that there might be a need for information sessions in relation to insolvency issues Patricia would be happy to consider organising such.
5.3 Notification filing of debtors petitions by ITSA
In answer to a question from Patricia, ITSA representatives noted that they are only required to notify the Court of the filing of a presentation of the debtors petition, however, agreed that it may be very useful to practitioners if they were advised as soon as these were presented so that any issues in relation to costs can be canvassed with trustees prior to the next listing of the matter. Pat Tragauer indicated that she saw no problem with changing ITSA procedures to allow notification of a petitioning creditor as well as the Court on the filing of a debtors petition.
5.4 Attendance of ITSA representatives attending Bankruptcy Lists
Patricia noted that ITSA representatives had attended bankruptcy lists on a number of occasions but were not now doing so and queried whether there was any intention for this to occur again in the future. Pat Tragauer noted that ITSA had decided that, as there had been few queries raised by litigants in the 10 weeks that staff had attended, it had been decided that it was not necessary to continue to do so. She indicated, however, that she was more than happy for Court staff to provide their contact details for any litigants who might be seeking advice.
Next Meeting
The next meeting will be held in approximately 6 months.
