Davis v Insolvency and Trustee Service Australia [2009] FCA 729 (30 June 2009)

Last Updated: 8 July 2009

FEDERAL COURT OF AUSTRALIA

Davis v Insolvency and Trustee Service Australia [2009] FCA 729

PETER LEWIS DAVIS v INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA, CHILD SUPPORT REGISTRAR, MAGISTRATES OF NEW SOUTH WALES and D C BEALE, M J HORTON AND A J McMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS
NSD 535 of 2009

GRAHAM J
30 JUNE 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 535 of 2009

BETWEEN:

PETER LEWIS DAVIS Applicant

AND:	INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA First Respondent CHILD SUPPORT REGISTRAR Second Respondent MAGISTRATES OF NEW SOUTH WALES Third Respondent D C BEALE, M J HORTON AND A J McMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS Fourth Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	30 JUNE 2009
WHERE MADE:	SYDNEY

THE COURT GRANTS:

1. Leave to the applicant to file in Court an Amended Notice of Motion dated 29 June 2009.

AND THE COURT NOTES THAT:

2. The second respondent by her solicitor undertakes to the Court that, pending the resolution of proceeding NSD 52 of 2009, the second respondent:

(a) will not instruct the first respondent to take any further action under the enforcement warrant issued pursuant to orders made by the Local Court of New South Wales on 8 November 2005 in respect of 20 St Kevin’s Avenue, Benowna in the State of Queensland.

(b) will not pay out any moneys received from the fourth respondents pursuant to the Notice dated 25 March 2009 that was issued by the second respondent to the fourth respondents under s 72A of the Child Support (Registration and Collection) Act 1988.

AND THE COURT GRANTS:

3. Leave to the applicant to discontinue proceeding number NSD 535 of 2009 so far as concerns the relief sought in paragraph 1 of the Amended Notice of Motion filed in Court on 30 June 2009.

AND THE COURT ORDERS THAT:

4. The applicant pay the second respondent’s costs of the Motion and Amended Notice of Motion
5. The said costs may be taxed and shall be payable forthwith.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 535 of 2009

BETWEEN:

PETER LEWIS DAVIS Applicant

AND:	INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA First Respondent CHILD SUPPORT REGISTRAR Second Respondent MAGISTRATES OF NEW SOUTH WALES Third Respondent D C BEALE, M J HORTON AND A J McMINN AS TRUSTEES OF THE ESTATE OF THE LATE DR ERIC L DAVIS Fourth Respondent

JUDGE:	GRAHAM J
DATE:	30 JUNE 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The matter which is presently before the Court is a Notice of Motion filed 5 June 2009, superseded by an Amended Notice of Motion filed in Court today, in which relief was sought under Order 52 rule 10 of the Federal Court Rules. In order to place the application in context, a convenient starting point is to trace the formal progression of the matter within the Court. The following chronology should suffice for that purpose:
   

20 January 2009	Application filed in proceedings NSD 52 of 2009 in which the applicant, the first respondent and the second respondent were as shown in the Notice of Motion presently before the Court. The third respondent named in the Application was ‘Stipendiary Magistrate Mitchell’
6 March 2009	Amended Application filed in proceedings NSD 52 of 2009 in which the third respondent was identified as ‘Magistrates of New South Wales’, whatever that may mean, rather than ‘Stipendiary Magistrate Mitchell’
24 March 2009	Notice of Motion filed by the second respondent seeking summary dismissal of the Amended Application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’)
24 April 2009	Notice of Motion filed in Court by the applicant seeking interlocutory injunctive relief, leave to further amend the Application and declaratory relief
29 May 2009	Judgment of the primary judge pursuant to which the following substantive orders were made: ‘THE COURT: GRANTS leave to the applicant to amend his Amended Application by: (a) Inserting the words “... pursuant to the Court’s pendant or associated jurisdiction ...” in line 4 of the introductory paragraph in that Application between the words “law” and “to”; (b) Adding par 9A in the terms of par 9A set out in the draft Further Amended Application marked as MFI-1 on 24 April 2009; and (c) Adding par 1A to his Claims for Interlocutory Relief in the terms of par 1A set out in Section B of MFI-1. ... ORDERS that DC Beale, MJ Horton and AJ McMinn be joined as fourth respondent parties to the proceedings. ORDERS that the Notice of Motion filed by the applicant on 24 April 2009 otherwise be dismissed. ...’ (See Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562 (‘the first judgment’))
29 May 2009	Order made by the primary judge as follows: ‘The application by the applicant that [the primary judge] disqualify himself from hearing the Motion that is fixed before him on 29 May 2009 be refused’ (See Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589 (‘the second judgment’))
1 June 2009	Further Amended Application filed in proceedings NSD 52 of 2009 in which D C Beale, M J Horton and A J McMinn ‘as trustees of the Estate of the late Dr Eric L Davis’ were shown as Fourth Respondents
5 June 2009	Notice of Motion filed in proceeding NSD 535 of 2009 seeking leave to appeal from ‘the whole of the judgment and orders of [the primary judge] given on 29 May 2009’ and ‘interim orders restraining the Respondents from taking any steps to sell the land or to execute against the funds and/or estate the subject of these proceedings pending hearing of the appeal’
5 June 2009	Affidavit of Peter Brian McKell, the solicitor for the applicant. Paragraph 5 identified the grounds of the ‘application to appeal’ (sic) as follows: ‘(a) That the learned Judge erred in identifying and applying the principal files (sic) with respect to interim relief; (b) That the learned Judge erred in unnecessarily delaying the decision in the circumstances; [see the second judgment] (c) That the learned judge erred in declining to hear the Applicant’s Notice of Motion filed 22 May 2009, a copy of which is annexed and marked “A” [the copy Notice of Motion attached bore date 22 May 2009, was unsigned and was nominally returnable on 29 May 2009. The substantive orders sought in it were That the Second Respondent’s Notice of Motion be dismissed. Alternatively, that the hearing of the Second Respondent’s Notice of Motion be adjourned to a date to be fixed. Directions for the disposition of the Applicant’s Notice of Motion filed 22 April 2009 ...]; (d) That the learned Judge erred in declining to recuse himself in the circumstances in relation to the Respondent’s application.’
30 June 2009	Amended Notice of Motion filed in proceedings NSD 535 of 2009 seeking leave to appeal from part of the judgment and orders of the primary judge of 29 May 2009 ‘determining the Applicant’s notice of motion filed 24 April 2009, and from the whole of the judgment of his Honour of the same date refusing to recuse himself, and from the whole of the judgment and orders adjourning or refusing to hear the notice of motion of the Applicant filed 25 May 2009’
30 June 2009	Affidavit of Peter Brian McKell sworn 29 June 2009 handed up in Court, presumably as an intended substitute for the somewhat meaningless affidavit filed on 5 June 2009, in which paragraph 5 of the new affidavit read: ‘The grounds of the application to appeal [sic] are: (a) That the learned Judge erred in identifying and applying the correct legal principles with respect to interim relief; (b) That the learned Judge erred in unnecessarily delaying the decision in the circumstances; (c) That the learned Judge erred in declining to hear the Applicant’s Notice of Motion filed 25 May 2009, a copy of which is annexed and marked “A”; (d) That the learned Judge erred in declining to recuse himself, in the circumstances, in relation to the Respondent’s application, or at all.’

2. The Notice of Motion filed by the applicant on 5 June 2009, seeking leave to appeal, was listed for hearing on 29 June 2009. Counsel for the applicant found himself jammed by reason of a matter in which he was appearing in the Supreme Court of New South Wales, running for a longer period of time than was expected. He attempted to acquaint the solicitor for the second respondent with his difficulty by forwarding an email at 9.24 am on 29 June 2009. Unfortunately, he failed to address the email to the solicitor appearing for the second respondent, namely, Mr Gouliaditis. The email, which counsel for the applicant sent, was directed to a Nick Gouliandris. Needless to say, the email did not come to the attention of Mr Gouliaditis at the time at which it was transmitted. It was not until 1.20 pm yesterday that Mr King informed Mr Gouliaditis that he was in difficulty in terms of appearing in the matter when it was listed for hearing on 29 June 2009 at 2.15 pm.
3. It will be apparent from the terms of the Amended Notice of Motion that the applicant sought to expand the application for leave to appeal to include the first judgment, the second judgment and ‘the whole of the judgment and orders adjourning or refusing to hear the notice of motion of the applicant filed 25 May 2009’.
4. When the matter was called for hearing at about 11:45am today counsel for the applicant informed the Court that an agreement had been reached between the applicant and the second respondent that would obviate the need for the Court to consider the Amended Notice of Motion. As it transpires no agreement had been reached, although some terms of a possible agreement would appear to have been reached.
5. After the luncheon adjournment it was indicated that the applicant did not wish to proceed with the hearing of the Amended Notice of Motion and sought leave to discontinue same. Counsel for the applicant then qualified that application to ask for leave to discontinue the application for leave to appeal so far as concerned paragraph 1, which sought leave to appeal. He pressed for interlocutory relief in terms of paragraph 2 which stated:

‘2. The Applicant seeks interim orders restraining the Respondents from taking any steps to sell the land [unspecified] or to execute against the funds and/or estate [unspecified] the subject of these proceedings pending hearing of the appeal.’

6. No evidence was tendered in support of the application for those orders.
7. As it transpires what the applicant sought to achieve was a stay in respect of the sale of the property known as 20 St Kevins Avenue, Benowna, in the State of Queensland and the retention by the second respondent of moneys apparently paid by the fourth respondents to the second respondent, perhaps as recently as today, pursuant to a document entitled ‘NOTICE TO PAY MONEY DIRECTLY TO THE CHILD SUPPORT REGISTRAR PURSUANT TO SECTION 72A Child Support (Registration & Collection) Act 1988’ signed by a State Manager of the Australian Government’s Child Support Agency and expressed to have been given by the State Manager by delegation from the second respondent pursuant to s 15 of the Child Support (Registration & Collection) Act 1988. The amount demanded under that notice was $53,383.11.
8. Rather than embark upon a further interlocutory hearing I invited the solicitor for the second respondent, who had previously provided inter partes undertakings in relation to the land, whether he was in a position to give undertakings to the Court on behalf of the second respondent which would preclude a sale of the Queensland property and a payment out of the moneys received by the second respondent from the fourth respondent pursuant to the notice dated 25 March 2009. After taking instructions the solicitor for the second respondent proffered the following undertakings to the Court. I will note them as follows:

‘The second respondent by her solicitor undertakes to the Court that, pending the resolution of proceeding NSD 52 of 2009 the second respondent:

(a) will not instruct the first respondent to take any further action under the enforcement warrant issued pursuant to orders made by the Local Court of New South Wales on 8 November 2005 in respect of 20 St Kevin’s Avenue, Benowna in the State of Queensland; and

(b) will not pay out any moneys received from the fourth respondents pursuant to the Notice dated 25 March 2009 that was issued by the second respondent to the fourth respondents under s 72A of the Child Support (Registration and Collection) Act 1988.’

9. The second respondent has indicated that she does not oppose a grant of leave to the applicant to discontinue the application for leave to appeal so far as concerns the relief sought in paragraph 1 of the Amended Notice of Motion. The only question is what, if any, order as to costs should be made.
10. It was suggested by counsel for the applicant that either there should be an order for costs made in the applicant’s favour or at least there should be no order for costs, in circumstances where there were problems with the application for leave but they were reasonably explained by the fact that Order 52, rule 10(2A)(b) of the Federal Court Rules only allowed seven days after the date of the judgments of the primary judge of 29 May 2009 within which to seek leave to appeal. Secondly, the appeal, had leave to appeal been pressed and granted, had ‘merit’, and the applicant had been ‘successful’ in obtaining the undertakings proffered to the Court by the second respondent. It seems to me that none of these matters warrant the making of no order as to costs or an order for costs in the applicant’s favour.
11. The second respondent seeks an order that the applicant pay the second respondent’s costs on an indemnity basis. It seems to me that the only live issue that needs to be considered is the basis on which an order for costs in favour of the second respondent should be made. The second respondent was compelled to prepare her case in respect of the Notice of Motion filed 5 June 2009, relying as best she could upon paragraph 5 of the affidavit of Peter Brian McKell sworn 5 June 2009, to discern the basis on which leave to appeal was being sought. As it transpires the second respondent prepared her case only to find that on 30 June 2009 the applicant abandoned any desire to press for leave to appeal from what was then said to be three judgments of the primary judge of 29 May 2009. And, in relation to the undertakings to the Court, it is apparent that these had been the subject of inter partes undertakings, so that only a limited advantage accrued to the applicant by having them recorded as undertakings to the Court.
12. There has been no determination on the merits of any entitlement to injunctive relief. Indeed, the first judgment of the primary judge addressed an application for interlocutory relief of a similar kind and determined that it was an inappropriate case for such injunctive relief to be granted.
13. I am compelled to the view that an order for costs should be made in the second respondent’s favour, but I am not disposed in the exercise of my discretion to order that those costs be paid on an indemnity basis.
14. I have noted the undertakings of the second respondent to the Court. I grant leave to the applicant to discontinue proceeding number NSD 535 of 2009 so far as concerns his claim for relief in paragraph 1 of the Amended Notice of Motion filed in Court on 30 June 2009. I order the applicant to pay the second respondent’s costs of the Motion, and the Amended Notice of Motion.
    

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated: 7 July 2009

Counsel for the Applicant:	P E King
Solicitor for the Applicant:	McKells Solicitors
Solicitor for the Second Respondent:	N Gouliaditis of Australian Government Solicitor

The First, Third and Fourth Respondents filed submitting appearances.

Date of Hearing:	30 June 2009
Date of Judgment:	30 June 2009