Re Brownlie; Ex parte Trustee of the Property of Julian Mark Brownlie [2001] FCA 839 (26 June 2001)

Last Updated: 4 July 2001

FEDERAL COURT OF AUSTRALIA

Re Brownlie; Ex parte Trustee of the Property of Julian Mark Brownlie [2001] FCA 839

BANKRUPTCY - bankrupt with assets in England - request by this Court for the assistance of the English courts.

Re Ayres; Ex parte Evans (1981) 51 FLR 395, referred to

Hardy Rubber Company Pty Limited v General Tire & Rubber Company [1971] HCA 24; (1973) 129 CLR 521, referred to

IN THE MATTER OF JULIAN MARK BROWNLIE

Re JULIAN MARK BROWNLIE; Ex parte TRUSTEE OF THE PROPERTY OF JULIAN MARK BROWNLIE

N7298 of 2001

MADGWICK J

26 JUNE 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7298 of 2001

BETWEEN:	EX PARTE: TRUSTEE OF THE PROPERTY OF JULIAN MARK BROWNLIE APPLICANT
AND:	JULIAN MARK BROWNLIE RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	26 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. A request be issued by the Court to the Justices of the English High Court of Justice.

2. Until further order of the Court, the applicant attempt to effect personal service of these orders and of the request, application and supporting affidavits which have given rise to these orders upon the respondent.

3. The respondent is to be notified of the application and orders by way of:

(a) a suitable transmission to the email address given by the respondent to the applicant;

(b) suitable notices directing him to the solicitors for the applicant, to be placed in the Sydney Morning Herald and such other publication as the applicant may be expertly advised is most likely to reach participants in information technology businesses such as those with which the respondent has been associated with; and

(c) by leaving the relevant documents at the registered offices of Blue Gum Accessories Pty Limited and Energetic Holdings Pty Limited.

4. The respondent pay the costs of the application and of the applicant's furthering the request.

5. The respondent has liberty to apply on three days notice within seven days of the request to the English High Court of Justice coming to his attention.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7298 of 2001

BETWEEN:	EX PARTE: TRUSTEE OF THE PROPERTY OF JULIAN MARK BROWNLIE APPLICANT
AND:	JULIAN MARK BROWNLIE RESPONDENT

JUDGE:	MADGWICK
DATE:	26 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 In this matter, it has been satisfactorily shown to the Court that Julian Mark Brownlie is a bankrupt, that he owns real property in England which is imminently to be sold, and that there is real reason to believe that he owns or has an interest in other property or assets in England. The applicant seeks that the Court issue a request to the English High Court of Justice, which has jurisdiction in bankruptcy, to act in aid of and to be auxiliary to this Court in the matter of the respondent's bankruptcy. It is proposed that this be done by a formal letter of request addressed to the Justices of the English High Court of Justice.

2 The applicant trustee appears to have acted with all due dispatch in relation to this matter which is plainly one of urgency. However, personal service has not been effected as yet on the respondent. The respondent has been active in various capacities in the information technology industry and he recently furnished the applicant with an email address. Adequate notice of these proceedings was forwarded to that address and I am informed was accepted at that address.

3 It seems to me that the appropriate course is to order, ex parte, that the request issue in the form proposed to the High Court of Justice, to require that such other steps as seem reasonable be taken urgently to attempt to bring the matter to the formal notice of the respondent and to require also that attempts to serve him personally be continued. He will be given liberty to apply on three days notice for an order that the Court withdraw the request to the English High Court of Justice or vary it, within seven days of knowledge of the request coming to his attention.

4 Ms Nash, who appears for the applicant trustee, has very properly drawn my attention to Re Ayres; Ex parte Evans (1981) 51 FLR 395 in which Lockhart J said at 397:

"There have been very few occasions in the past when the aid of this court has been sought by letters of request. The procedure to be followed in cases of this kind has not been prescribed, so I directed the official assignee to file applications and serve them on the bankrupt.

The course taken in these matters satisfies me of the desirability generally of ensuring, when future letters of request are issued by foreign courts seeking the aid of this Court, that the bankrupt is served with notice thereof and that evidence is given by the moving party as to the administration of the estate including the assets and liabilities of the bankrupt and the countries in which the creditors reside."

5 There is, in principle, where circumstances permit, no reason why, as Ms Nash implicitly acknowledges, a similar approach should not be taken where it is asked that this Court request the court of another country to assist it. This Court should not be a party, except in a proper case, to asking for the aid of another court. However, Hardy Rubber Company Pty Ltd v General Tire & Rubber Company [1971] HCA 24; (1973) 129 CLR 521 is precedent for a court to act ex parte. In that case, Barwick CJ requested the proper Japanese tribunal to assist the High Court in an action for the infringement of a patent.

6 In these proceedings, the respondent is in breach of his legal obligation to notify his trustee in bankruptcy of his apparent change of address. The respondent has also declined an opportunity to facilitate delivery to him of proper notice of these proceedings. In a case such as this, the Court and the law would be brought into disrepute if the Court failed to make an ex parte order with proper safeguards permitting it to be undone or varied if justice should so require.

7 I will therefore order:

i. That a request be issued by the Court to the Justices of the English High Court of Justice.

ii. That until further order of the Court, the applicant attempt to effect personal service of these orders and of the request, application and supporting affidavits which have given rise to these orders upon the respondent.

iii. The respondent is to be notified of the application and orders by way of:

(a) a suitable transmission to the email address given by the respondent to the applicant;

(b) suitable notices directing him to the solicitors for the applicant, to be placed in the Sydney Morning Herald and such other publication as the applicant may be expertly advised is most likely to reach participants in information technology businesses such as those with which the respondent has been associated with; and

(c) by leaving the relevant documents at the registered offices of Blue Gum Accessories Pty Limited and Energetic Holdings Pty Limited.

iv. The respondent pay the costs of the application and of the applicant's furthering the request.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated: 2 July 2001

Solicitor for the Applicant:	Sally Nash & Co.
Date of Hearing:	26 June 2001
Date of Judgment:	26 June 2001