Present: Patricia Christie, Registrar, Federal Court
Pat Tragauer, ITSA
Erica Verrusio, ITSA
Lenneke van Wageningen, ATO
Rosemarie Bastiampillai, ATO
Liam Reynolds, Lindquist Partners
Alex Marshall, Marshalls
Justin Stewart-Rattray, Stewart-Rattray Lawyers
Apologies: Karen Olsson, Mellor Olsson
Nick Economos, Economos Lawyers
Kym Ryder, O’Loughlins Lawyers
Ivars Martirovs, Martirovs & Co
Natalie Abela, Cowell Clarke
Amy Nolan, Kelly & Co
John Taylor, Randle & Taylor
Natasha Riach, Minter Ellison
Tyneil Flaherty, Minter Ellison
1. Welcome
Patricia welcomed those present and thanked them for their interest in attending.
2. Practice issues:
2.1 Emailing of orders to be sought
Patricia noted that some practitioners currently email to Colleen deLaine details of the orders which are to be sought in the bankruptcy list. Patricia indicated that this assists Colleen in preparation for the list, potentially reducing the amount of printing that needs to be done during the list and the congestion just prior to the beginning of the list when practitioners tend to arrive all at the same time and provide details of what they are seeking. Patricia indicated that any practitioner who wishes to take up this practice is encouraged to do so preferably prior to 12 noon on the morning of a Monday list.
2.2 Length of lists
Patricia noted that there had been a significant surge in filings in the month of February which had meant that a number of lists are quite large at the moment. She noted however that although there are a number of matters listed they have not in her view been taking unduly lengthy periods of time. On that basis she indicated that she did not think practitioners were being put to any particular inconvenience by virtue of the length of the lists at this stage. She indicated however that if filings increased further, and the time taken for the lists increased too dramatically, consideration might be given to alternative arrangements. Practitioners indicated that there may be some increase in filings over the next few months.
2.3 Update re lump sum costs for dispensation with personal service applications
Patricia noted that on the last occasion a practitioner had raised for consideration whether or not it might be appropriate for a lump sum to be provided in the Rules for substituted service applications rather than practitioners having to make some attempt at calculating an appropriate amount in the course of their normal costs orders. Patricia indicated that she had liaised with other Registrars regarding the issue and they were supportive. It will hopefully be considered further at the next meeting of Registrars which is to occur in June.
2.4 Searching of affidavit forming part of petition
Patricia noted that there had also been a query at the last meeting regarding whether the affidavit which now forms part of the Creditor’s Petition should be treated as part of the Creditor’s Petition for the purposes of filing documents with ITSA and for searching of the Court files. Patricia indicated that, having given this matter consideration and after seeking the views of other Registrars, it was agreed that the affidavit should be treated as forming part of the petition for these purposes.
3. Recent cases of interest
ANZ Banking Group Ltd v Menso [2006] FMCA 1522
Patricia noted this was one of a number of cases which had been handed down since the High Court decision in Adams v Lambert [2006] HCA 10 dealing with the concept of when an error in a Bankruptcy Notice might fall within the terms of s 306 of the Bankruptcy Act 1966. Patricia noted that there was a comprehensive discussion in this case of various legislation in relation to costs orders and whether or not they are final orders for the purposes of determining what documents should be attached to a Bankruptcy Notice. In the circumstances of this case the Federal Magistrate concluded that a “Registrar’s order for costs assessed” from the District Court in Queensland was not a final order or judgment for these purposes and as a result no valid judgment was considered to have been attached to the Bankruptcy Notice. In those circumstances the Federal Magistrate concluded that as there had been complete non compliance with an essential requirement of the Act the Bankruptcy Notice was invalid. Patricia noted that the position in South Australia, at least with respect to allocaturs issued out of the Supreme Court, is somewhat different.
World Best Holdings Ltd v Sarker [2006] FMCA 1876
Patricia advised that this case involved an application for costs where a Creditor’s Petition was dismissed as a result of payment on the day of a resumed hearing. She noted that costs orders are often sought in this situation and Federal Magistrate Smith in that case considered in detail the issues which should be taken into account in determining whether or not a costs order in favour of the creditor should be made in that situation. The Federal Magistrate concluded that the Court’s discretion should be exercised after focussing attention on the reasonableness of the bringing, pursuit and discontinuance of the Creditor’s Petition, weighed against the reasonableness of the debtor’s failure to pay the debt before the petitioner incurred its costs in the bankruptcy proceedings. In that particular case, where there had never been a dispute as to the indebtedness of the debtor, the Federal Magistrate considered that the Court should be hesitant to form a conclusion that discontinuance as a result of late payment of the debt did not provide justification for an award of costs to the petitioner.
Jensen v Queensland Law Society Incorporated [2006] FCA 1206
Patricia indicated that this was a decision of Justice Keifel of the Federal Court of Australia and although it dealt with a number of different issues, of particular interest was the question of whether a wrong date given for the act of bankruptcy in the petition could be so prejudicial to a debtor as to result in the petition being invalidated. Patricia noted that her Honour held that, at least where the act of bankruptcy is a failure to comply with the Bankruptcy Notice and there has been personal service of that Bankruptcy Notice, the debtor would be able to calculate the date when the act of bankruptcy was committed and that an incorrect date did not provide a reason to invalidate the petition. However, a number of examples were given where a different conclusion was reached. Her Honour also noted that if a debtor is prejudiced by an error as to the date of the act of bankruptcy then the petition might well be invalidated. Patricia noted that although leave is generally given for amendment of the petition to correct the date, this case is a reminder that care should be taken by practitioners in drawing a petition.
4. Practitioner issues/suggestions
One of the practitioners present expressed concern about the apparent lack of knowledge regarding court etiquette by some new practitioners. In particular it was noted:
they do not always know which side of the Bar Table they should be at;
they sometimes leave the Bar Table prior to being released or the next matter being called on;
they do not always immediately stand when speaking or being spoken to; and
they do not always address the Registrar with the correct title (‘Registrar’).
It was suggested that the Court consider putting a notice regarding what is expected in the Court for the assistance of unrepresented litigants or any new practitioners who may not be aware of usual protocol. Alex Marshall indicated that he might also enquire of the Law Society whether ‘court protocol’ might be an appropriate article for TheBulletin as he has noticed these issues generally in a number of courts.
5. Other Business (including any corporate insolvency issues)
5.1 ITSA debt agreement amendment training
Patricia noted that there would be changes to the law regarding debt agreements under the Bankruptcy Act on 1 July 2007 and that ITSA is running free information sessions on how those might work in practice. Pat Tragauer indicated that two types of sessions were being held – one a 4 hour detailed session and one a 1 hour overview. Both will be held on 20 April 2007. Pat indicated that solicitors were welcome to attend and that if anybody wished to attend that they should contact Erica Verrusio at ITSA. Information is also available on the ITSA website under ‘reforms’.
5.2 Bag screening
Patricia advised that an issue had recently arisen at a Court liaison committee meeting with practitioners that on occasions practitioners bring heavy bags to the Court which are too heavy for them to safely lift onto the conveyer belts. Patricia noted that in those circumstances, if they advise security personnel the bag will be hand searched or hand screened as appropriate. There subsequently ensued some discussion about security screening and the need for practitioners to undergo this, however practitioners confirmed that there is generally no significant delay as a result of passing through the screening arrangements.
Next Meeting
The next meeting will be held in approximately 6 months.
