Blueprint Printing Pty Ltd v Winn (No.2) [2010] FMCA 959 (26 November 2010)

Last Updated: 13 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLUEPRINT PRINTING PTY LTD v WINN (No.2)

[2010] FMCA 959

BANKRUPTCY – Respondent made application to appear by telephone on hearing of creditor’s petition – application opposed – application refused.

Applicant:

BLUEPRINT PRINTING PTY LTD

Respondent:

JULENE MARGUERITE WINN

File Number:

MLG 95 of 2010

Judgment of:

Hartnett FM

Hearing date:

26 November 2010

Delivered at:

Melbourne

Delivered on:

26 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Scotter

Solicitors for the Applicant:

Herbert Geer Lawyers

Counsel for the Supporting Creditor:

Mr Moon

Solicitors for the Supporting Creditor:

Garland Hawthorn Brahe Lawyers Pty Ltd

ORDERS

(1) The respondent’s application to appear by telephone is refused.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 95 of 2010

BLUEPRINT PRINTING PTY LTD

Applicant

And

JULENE MARGUERITE WINN

Respondent

REASONS FOR JUDGMENT

1. A creditor’s petition was filed by the applicant, then Blueprint Printing Proprietary Limited, on 25 January 2010. It is now November in the same year. The creditor’s petition has still not been determined. It is listed for hearing today. It was so listed by order of 24 August 2010. That is a period of some three months ago. In the intervening period there has been – nor was there at the time of listing – any application by any party to appear by telephone, video link, or means other than in person or legally represented for the orderly and usual running of an application of this type.
2. Yesterday at approximately 10.16am, a facsimile was received by the court from Ms Winn, requesting that Ms Winn appear today by telephone. Ms Winn has been contacted by the court this morning and is on the telephone for the purposes of hearing her application to appear by telephone in the hearing of the creditor’s petition. Ms Winn’s request to appear in that manner is opposed by counsel for the applicant and also by counsel for the supporting creditor
3. Ms Winn has had a three-month period in which to make any arrangements for a possible telephone mention that she may have desired, and has failed to do so until the day before this hearing. That is notice which is too late and prejudicial to the other parties. The basis of that request is – and I quote from Ms Winn’s facsimile:
   • “I currently reside in Brisbane and, as a result of being unwell for some weeks, I am in the process of a series of medical tests, investigations, procedures and medication, including ...”

and she then sets out various dates on which various procedures are said to have taken, or be taking, place. There is no medical evidence before me. There is, as Mr Scotter said, the bare assertions of Ms Winn as to these matters. Further, although Ms Winn has been unwell for some weeks, she has not seen fit to make a request for a telephone mention until yesterday, the day before this hearing. There is, in the chronology provided by her, no medical attendances between 22 November and 6 December. There is no reason on the face of this document as to why Ms Winn could not have attended on the hearing of this creditor’s petition which has been outstanding, as I say, since January this year.

4. Further, I note the submissions of Mr Scotter and Mr Moon in opposition to Ms Win’s application and I concur with them. They are essentially the prejudicial nature of the delay in the request, the lack of availability of Ms Winn to sight written submissions as to the substantive matter and importantly the lack of sufficient material in Ms Winn’s facsimile to justify the court departing from its usual procedure. There is no explanation as to why solicitors and/or counsel could not have appeared on instructions from Ms Winn nor of course is there any proper explanation as to why Ms Winn could not herself have appeared in person.
5. Accordingly, Ms Winn’s application is refused and I shall now proceed to hear the creditor’s petition without input from her although she is welcome to remain on the telephone to listen to the proceedings.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 8 December 2010