Lanciana v Gangemi [2011] FCA 115 (4 February 2011)

Last Updated: 24 February 2011

FEDERAL COURT OF AUSTRALIA

Lanciana v Gangemi [2011] FCA 115

Citation:		Lanciana v Gangemi [2011] FCA 115
Parties:		PASQUALE LANCIANA, RICHARD OSBORNE and KOUROSH JAFFARI v ANTONIO GANGEMI, STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) and JOHN ADAMS ( AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR)
File number:		VID 742 of 2009
Judge:		BROMBERG J
Date of judgment:		4 February 2011
Catchwords:		PRACTICE AND PROCEDURE – Late application for discovery – Application for vacation of trial dates – Case management considerations – Applications refused
Cases cited:		Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Date of hearing:	4 February 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the First Applicant:	First Applicant appeared in person
Counsel for the Second Applicant:	Mr M. Gronow
Solicitor for the Second Applicant:	Christopher Bunnett Lawyers
Counsel for the Third Applicant:	Mr Strang
Solicitor for the Third Applicant:	Melbourne Legal Partners
Counsel for the First Respondent:	First Respondent appeared in person
Counsel for the Second and Third Respondents:	Mr P. Agardy
Solicitor for the Second and Third Respondents:	Lewis Haldway Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 742 of 2009

BETWEEN:	PASQUALE LANCIANA First Applicant RICHARD OSBORNE Second Applicant KOUROSH JAFFARI Third Applicant
AND:	ANTONIO GANGEMI First Respondent STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) Second Respondent JOHN ADAMS ( AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) Third Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	4 FEBRUARY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The first respondent’s notice of motion of 3 February 2011 is dismissed.
2. The first respondent pay the second and third applicants’ costs of the notice of motion.
3. The second and third respondents’ costs of the notice of motion are reserved.
4. Leave is granted to the first applicant to withdraw as a party to the proceedings.
5. The question of any costs incurred by the second and third respondents in relation to the application of the first applicant is reserved.
6. The first applicant is ordered to attend at Court at 10:15 am on 7 Feb 2011 for the purpose of being examined in this proceeding and remain until excused from further attendance.
   

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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 742 of 2009

BETWEEN:	PASQUALE LANCIANA First Applicant RICHARD OSBORNE Second Applicant KOUROSH JAFFARI Third Applicant
AND:	ANTONIO GANGEMI First Respondent STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) Second Respondent JOHN ADAMS ( AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) Third Respondent

JUDGE:	BROMBERG J
DATE:	4 FEBRUARY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In the proceeding before me, the applicants press for the following relief: firstly, that the personal insolvency agreement entered into by the first respondent, Mr Gangemi, under Part X of the Bankruptcy Act 1966 (Cth) on or about 7 September 2009 be set aside; secondly, a sequestration order against the estate of Mr Gangemi is sought; and thirdly, orders as to costs.
2. This proceeding was listed to commence and be heard on Monday 7 February 2011. By notice of motion dated 3 February 2011, Mr Gangemi relevantly seeks the following orders: firstly, that the second applicant, Mr Osborne, and the third applicant, Mr Jafari, file and serve notices of discovery; secondly, Mr Gangemi’s notice of motion seeks leave to issue and serve a subpoena upon the Commonwealth Bank of Australia; and thirdly, he seeks that the trial dates for this proceeding, 7 and 8 February 2011, be vacated and that a new date be fixed for trial.
3. By reason of the proximity of the trial, Mr Gangemi’s notice of motion has been listed today for urgent hearing. In this proceeding, orders for mutual discovery were made on 2 November 2009. At that time, neither Mr Osborne nor Mr Jafari were parties to the proceeding, and the orders made for discovery did not extend to them. Mr Osborne and Mr Jafari were added as applicants by orders made on 19 April 2010.
4. No orders for discovery from Mr Osborne or Mr Jafari were pursued by Mr Gangemi at that time, nor were such orders sought by Mr Gangemi on 4 June 2010 when the last set of procedural orders were made in the matter. On that date, the matter was listed for trial on the basis that, other than the procedural steps required by the orders made on 4 June 2010, the matter was otherwise ready for trial. Nor have any orders seeking discovery from Mr Osborne and Mr Jafari been sought by Mr Gangemi since 4 June 2010 and prior to this current application, made some two working days before the matter was due to commence at trial.
5. An ex parte application for leave to issue a subpoena to the Commonwealth Bank was made by Mr Gangemi on 31 December 2010, and it was rejected by me on 5 January 2011. It was rejected on the basis that I was not satisfied by the material put before me at that time that the documents sought were relevant to the proceeding, and nor was I satisfied that a non-party should be encumbered with the production of the documents sought in circumstances where discovery had not been sought against a party likely to have the documents in question.
6. Mr Gangemi appears in support of his notice of motion. He is not legally represented. I sought an explanation from him as to the lateness of his quest for further discovery. No adequate explanation for that lateness has been provided by Mr Gangemi. As I understand his affidavit filed in support of his notice of motion, to some extent, the lateness in relation to some of the categories of documents that he seeks could be explained by reference to what he says is information he received from Mr Jafari in or about October of 2010. However, there is no adequate explanation as to why, in circumstances in which Mr Gangemi knew that the trial was proximate, he took no action to apply to the court for discovery since October of 2010.
7. The inevitable consequence of any order allowing further discovery or the issuing of the subpoena sought would be that the trial would not proceed on 7 or 8 February 2011. The Court may have been able to accommodate a delay in the start of the trial of a day or two, but that would not likely have been sufficient to deal with the discovery of documents if discovery is ordered. Given the Court’s other commitments, a vacation of the trial dates beyond next week would likely result in a delay of some several months in the hearing of this trial.
8. Furthermore, although the application before me is an application for general discovery, Mr Gangemi has identified in his affidavit the categories of documents which he seems desirous of obtaining. Whilst at this juncture, a wide view of relevance ought to be taken in relation to discovery, Mr Gangemi has failed to satisfy me that the documents he seeks are relevant to any of the issues in the case or at least sufficiently relevant as to warrant a vacation of the trial dates and the consequences of that vacation.
9. The documents which seem to be sought by Mr Gangemi fall into categories which, as I understand it, are in support of three contentions. As best as I can understand the argument, the first contention seems to be that Mr Osborne is no longer a creditor of Mr Gangemi, because he has been paid a sum of money by Mr Lanciana. The second contention relied upon by Mr Gangemi is that Mr Osborne failed to advise the trustee of his interest in a property in Mitchell Street and failed to do so including in the proof of debt lodged by Mr Osborne. The third contention that seems to be being relied upon by Mr Gangemi is that Mr Jafari did not have authority to lodge a proof of debt lodged with the trustees on behalf of 63 Buckley Street Pty Ltd.
10. It is not apparent how by establishing the second and/or third contention that I have referred to Mr Gangemi’s case would be assisted at trial and the orders sought to set aside his Part X agreement would be avoided. As to Mr Gangemi’s contention that Mr Osborne is no longer a creditor, the basis of that contention seems to be an allegation, as I said, that a sum of money, namely $250,000, has been paid by Mr Lanciana to Mr Osborne. It is not apparent how the payment of any moneys to Mr Osborne by Mr Lanciana would operate to discharge the judgment debt owed by Mr Gangemi to Mr Osborne, and I note in that respect, that the judgment debt is the sum of $387,405.51.
11. Even if I had been satisfied in relation to the relevance of the discovery sought, given the lateness of the application and the consequences for the trial, I would not have granted orders for discovery or leave to issue the subpoena. The consequences, as I have said, of the making of the discovery sought or the subpoena sought would have inevitably led to the vacation of the trial and inevitably led to delay and cost being occasioned upon the applicants. There is also prejudice in any delay in the trial to the interests of other creditors, and I take that matter into account.
12. Further, there is potential prejudice to the efficiency of the workings of the court, and in that respect, the High Court’s decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 makes it clear that case management considerations and the proper use of court resources, including the interests of litigants generally in the efficient workings of the Court, are germane to the exercise of my discretion in an application such as this.
13. I have taken into account evidence from Mr Gangemi that sadly, his brother recently died in Italy and that he departed for Italy on 23 January 2011 and after a difficult flight returned to Melbourne in the last few days. The Court appreciates the difficulties Mr Gangemi faces, particularly given that he is not legally represented. The Court also appreciates that Mr Gangemi is under some stress as a result of the matters that I have identified. However, the Court’s task is to balance all of the relevant considerations before it, including the prejudice that would be occasioned if the trial is vacated. In the end, I do not take the view that the difficulties that may be experienced by Mr Gangemi outweigh the prejudice that would otherwise be occasioned.
14. Accordingly, I will make the following orders:

(1) The first respondent’s notice of motion of 3 February 2011 is dismissed.

(2) The first respondent pay the second and third applicants’ costs of the notice of motion.

(3) The second and third respondents’ costs of the notice of motion are reserved.

(4) Leave is granted to the first applicant to withdraw as a party to the proceeding.

(5) The question of any costs incurred by the second and third respondents in relation to the application of the first applicant is reserved.

(6) The first applicant is ordered to attend at the court at 10.15 am on 7 February 2011 for the purpose of being examined in this proceeding.

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

Associate:

Dated: 4 February 2011