Kerr v American Express Australia Limited [2010] FCA 146 (8 February 2010)

Last Updated: 8 March 2010

FEDERAL COURT OF AUSTRALIA

Kerr v American Express Australia Limited [2010] FCA 146

Citation:		Kerr v American Express Australia Limited [2010] FCA 146
Appeal from:		American Express Australia Limited v Kerr (No. 2) [2008] FMCA 1569
Parties:		JOYE MAREE KERR v AMERICAN EXPRESS AUSTRALIA LIMITED
File number:		NSD 1912 of 2008
Judge:		REEVES J
Date of judgment:		8 February 2010
Legislation:		Bankruptcy Act 1966 (Cth), s 73
Date of hearing:	8 February 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Solicitor for the Appellant:	The applicant appeared in person, assisted by Mr ID Kerr

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1912 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JOYE MAREE KERR Applicant

AND:	AMERICAN EXPRESS AUSTRALIA LIMITED Respondent

JUDGE:	REEVES J
DATE OF ORDER:	8 FEBRUARY 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appellant’s notice of motion filed on 1 February 2010 be dismissed.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1912 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JOYE MAREE KERR Applicant

AND:	AMERICAN EXPRESS AUSTRALIA LIMITED Respondent

JUDGE:	REEVES J
DATE:	8 FEBRUARY 2010
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT
(Corrected from transcript)

1. This is an appeal against a sequestration order made by a Sydney Federal Magistrate on 17 November 2008. The notice of appeal was filed on 9 December 2008. On 10 February 2009 a notice of motion was filed by the appellant seeking to have the matter transferred from the New South Wales Registry to the Queensland Registry of the Court. Emmett J ordered that the proceedings be transferred pursuant to that application on 6 March 2009. The matter was determined by the Chief Justice to be a matter suitable for hearing by a single judge and it was listed for hearing before me on 10 September 2009.
2. On 31 August 2009 Mr Kerr, appearing by leave for Ms Kerr, applied to have that hearing adjourned. The reasons given on that occasion were that Ms Kerr was not aware that the files in the New South Wales Registry had been transferred to the Queensland Registry. Therefore, they had not accessed those files until late August and needed more time to prepare for the appeal. It was also pointed out that since the other parties to the proceedings have not sought to appear, no prejudice would be suffered by them if the matter were to be adjourned. Accordingly, I adjourned the matter to 6 November 2009.
3. On 23 October 2009 the appellant filed a further notice of motion applying to adjourn that adjourned hearing. That matter was heard by Collier J in my absence. The reasons for the application on that occasion were that both Ms Kerr and Mr Kerr had to attend to other proceedings in other courts and that was distracting them from preparation of the appeal and also that certain materials produced on subpoena to the Federal Magistrates Court were apparently omitted from the appeal book. Collier J thought the existence of the other proceedings in other courts did not provide a sufficient reason for an adjournment, but she thought there may be some substance in the absence of the material from the appeal book and, because the other parties had not appeared and would not be adversely affected, her Honour adjourned the hearing that was to be held on 6 November to 18 February 2010.
4. On 1 February 2010, the appellant filed a notice of motion seeking to have the hearing set down for 18 February adjourned. That is, the appellant wanted the hearing adjourned for a third time. She relied upon two affidavits, in particular, one by herself sworn on 28 January 2010 and the other by her husband sworn on 3 February 2010. In her affidavit, the appellant says that she has made an offer under s 73 of the Bankruptcy Act 1966 (Cth) for composition in satisfaction of her debts and there is, or was, to be a meeting of creditors called by the Insolvency Trustee Service of Australia on 18 February 2010 to consider that offer. Ms Kerr asserted that this concurrence of events, that is, the meeting of creditors and the appeal on 18 February, would affect the conduct of the appeal.
5. She also asserted that some, what she referred to as “missing exhibits and subpoena material”, had only been made available by the Queensland Registry on 5 January 2010. In his affidavit, Mr Kerr set out the details of conversations he had with Registrar Baldwin of the Court and also with an officer of the Insolvency Trustee Service Australia about the date of the creditors’ meeting. He stated in his affidavit that so far as he was aware the meeting was now to be held on 5 March 2010. He also referred to the so-called missing material having been made available on 5 January 2010. That material is now in the appeal book. I should note that there is some dispute between the registry staff and Mr Kerr as to whether that material was, in fact, missing, but, in any event, whether or not it was, no claim is now made that the absence of that material has adversely affected the preparation for the appeal hearing on 18 February. Indeed, it is difficult to see how it could have caused any difficulty since the matter was resolved finally some six weeks ahead of the hearing of the appeal and the appellant has now had many months to prepare for this appeal.
6. Therefore, the only reason put forward for an adjournment on this occasion is the creditors’ meeting to be held, apparently, on 5 March 2010. Mr Kerr expressed that in his affidavit in these terms:

The Applicant asserts that if the Composition proposal is accepted at the Creditor’s meeting then that Order sought in the appeal is no longer applicable and different Orders will be sought. The details of these proposed Orders cannot be determined prior to the Creditor’s meeting.

7. The orders sought in the original notice of appeal are that:

The sequestration order made on 17 November 2008 be set aside and the matter be relisted for hearing in the Federal Magistrates Court at Brisbane following the completion of Claim 2035/08, currently afoot in the District Court of Queensland.

8. I do not see how the outcome of the creditors’ meeting can affect the orders sought. The sequestration order was either properly made, or it was not. If it was not, it will be set aside after the hearing of the appeal and there will be no need for a creditors’ meeting. If it was properly made, it will not be set aside and the creditors’ meeting can proceed. I do not consider this issue raises any justification for yet another adjournment of these proceedings. I would add that the Court has now set aside three hearing dates for this matter. Two have been lost so far with a consequent waste of Court resources. The further waste of the resources of the Court involved in adjourning the matter for a third time is something I also take into account in refusing the application.
9. I therefore order that the appellant’s notice of motion filed on 1 February 2010 be dismissed.
   

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 25 February 2010