Practice and Procedure ~ Federal Proceedings (Costs) Act - Bankruptcy Act - application to stay proceedings adjourned ~ respondent received no notice of hearing date - applicant seeks costs certificate in respect of day of adjournment under s.10 - adjournment not equivalent to discontinuance of hearing. Bankruptcy Act 1966 -37(1) (a) Federal Federal Proceedings (Costs) Act 1981 3.10 RE: CHARLES RICHARD MORRIS and PAMELA MORRIS t/as "COUNTRY WIFE": "EXTRA MEATY SAUSAGES" "THE AUSTRALIAN SAUSAGE CO." CHARLES RICHARD MORRIS and PAMELA MORRIS, Applicants and JOHN MAROUDAS and SHIRLEY JANET MAROUDAS Respondents No. 105 of 1983X% MUIRHEAD J. PERTH 6 JUNE 1986 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA No. 105 of 1986X RE: CHARLES RICHARD MORRIS and PAMELA MORRIS t/as "COUNTRY WIFE": "EXTRA MEATY SAUSAGES": "THE AUSTRALIAN SAUSAGE CO." BETWEEN: CHARLES RICHARD MORRIS and PAMELA MORRIS Applicants and JOHN MAROUDAS and SHIRLEY JANET MAROUDAS Respondents MINUTE OF ORDER JUDGE MAKING ORDER: MUIRHEAD J. DATE OF ORDER: 6 June 1986 WHERE MADE: Perth THE COURT ORDERS THAT: Application for costs certificate refused. Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. TH THE PEDEPLO Comet wT SUSTES ETF SHUEPAL OL LISI BRIIVRUPT. 2 DLLTRIOT OF THE STS TE oF URS TEPU SMU TRSLCL. FE. BETWEEN : and CORAM: MUIRHEAD J. 6& dune 1986 No, 165 of LORIN WHERLPS PICHSRD MePPLS and C2 MORPIZ tac 'Iounrey HIFR": "ETP. MEATY SSUBAGFS": "THE iVETRALIAN SAUSAGR oC." CHAPLES RICHARD MORRIS and PAMELA MORRIS Applicants JOHN MAROUDAS and SHIRLEY JANET MAROUDAS Respondents REASONS FOR DECISION This was an application to stay proceedings in exccution of judament of the District Court of Western Australia. On the 26 May I published my decision dismissing the application. tT ordered that respondents' costs. the applicants should pay the The applicants' counsel has submitted that I should grant aocosts certificate pursuant to the Federal Proceedings Costs) Act 1981 in respect of an earlier occasion when the matter was before the teurct and was adisurned on the apwlicatisn of the respondents' counsel. In March 1986 the Deputy Registrar of this court set down the application for hearing on 10 April. By letter dated 12 March the court purported to notify the respondents' solicitors that the matter was listed for hearing on that date. A duplicate of the letter correctly addressed is on file. For present purposes I accept the letter was not received, at least by those responsible for conduct of the application. On 8 April, two days before the scheduled hearing, the respondents' solicitor wrote to the Deputy Registrar stating that he had, only the day before, become aware of the fixture when the applicants' solicitor communicated with him concerning inspection of documents. He then advised an adjournment would be sought. On 10 April, the applicants were ready to proceed. The respondents' counsel sought an adjournment which I considered in all the circumstances should be granted. The applicants seek a certificate for legal costs, confined to 10 April, pursuant to s.10 of the Act. For relevant purposes this section reads as follows: ne ee (2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, log TAe@ Clurt Mav. Cn Chae aveliizacisn of a party to tne eroceedings, Geant to that oarty a costs certificate in respect of the proceedings. (3) Subject to this Act. where - (a) the hearing of any proceedings 1n a court to which this section applies is discontinued and a new hearing is ordered; and (b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings. (4) The certificate that may be granted under sub-section (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings." Counsel for the applicants, who relies on sub-s.(3) submits that the adjournment ordered through no fault of his clients was tantamount to a discontinuance of the hearing of the proceedings. The word discontinuance has a well established meaning. It envisages the cessation of something that was on foot. It is a word which is not to be found in the Bankruptcy Act 1966 and as far as I can see there are no specific provisions for discontinuance of an application as opposed to adjournment or dismissal. Sub-section 33(1)(a) of the Bankruptcy Act empowers the court to adjourn matters before it. The adjournment I granted was not a discontinuance of the hearing of the application. The hearing had not commenced. p Nor did I order a "new hearing" as a hearing had neither bean conducted nor initiated. I simply postponed the hearing toa later date. In my opinion sub-s.(3) as is the case with sub-s.(2), seeks to grant relief to litigants whose liability for costs 1s increased by reason of the fact that a hearing on foot is aborted by circumstances not contributed to by fault or neglect of any party to the proceedings. It is in my view an extension to the relief granted in sub-s.(2) which is more specific in setting out the circumstances. It may for instance be referable to cases where the sickness or death of counsel intervenes under circumstances which require a discontinuance of the hearing which is under way at the time - probably a rare event - but one which as a matter of justice may persuade a court in the interests of justice to recommence the hearing de novo. It may also apply to disruption of a hearing or interference with the court's capacity to continue the hearing by external causes. Finally I comment that had the legislature intended to cover adjournments it would surely have inserted the words "or adjourned", or "adjournment" after the words "discontinued" and "discontinuance" respectively in sub-3.10(3). To grant a certificate in the present circumstances would be to place an interpretation on the sub-section which would m . x, al sods ~ ode . "he shoswaullouncduly etrain the wording of the sub-section in a manne rs rf contrary to the apparent legislative intent. For the above reasons I decline to grant a certificate. I certify that this and the four preceding pages are a true copy of the Reasons for Decision herein of his Honour Mr Justice Muirhead. Vf Miget~© " for Associate Dated: 6 June 1986 SR % te nein Oo Steet cp. PT ee aft es es Tefavt B i