2 December 1994 Please replace the original 851-94 judgment with the attached 851-94. Thank you SE Judgments Clerk JUDGMENT No. suo SeLanal och bon FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NB 1486 of 1992 GENERAL DIVISION BETWEEN: LESLIE JAMES PARKER Bankrupt AND: BEVERLEY ANN NICHOLLS Applicant -1 DEC 1994 FEDERAL COURT OF AND: AUSTRALIA PRINCIPAL Raaierny OFFICIAL TRUSTEE IN BANKRUPTCY Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 4 NOVEMBER 1994 REASONS FOR JUDGMENT HIS HONOUR: In this matter the applicant filed an application in the bankruptcy of Leslie James Parker. That application was made on 30 September 1994. In it the applicant sought an order "preventing the transfer of the property comprised in certificate of title folio identifier 49/751255 (lot 49 Budgong Road, Budgong) from orders made on 15 March 1993 and 23 September 1994 in the Family Court in favour of Lorraine Anne Parker" The matter was first before the Court on Friday, 30 September 1994 when it was stood over until the bankruptcy list on 4 October 1994 At that time Mr Friedman appeared at the hearing on behalf of the Insolvency Trustee Service and the Official Trustee. | treated the application made by the applicant as a claim for interim relief. In the result | decided that the applicant was not entitled to any relief in the proceedings as they were then constituted. | published reasons for judgment for that effect on 5 October 1994. In the course of that judgment | indicated as | had stated in the course of argument that it was desirable that the applicant should have legal assistance to press what was a complex case. The judgment also pointed out that it may well be the case, or may have been the case that the applicant had proceeded in the wrong jurisdiction. On a subsequent occasion the matter was before the court for a directions hearing. At that time Mr Locke, solicitor, appeared on behalf of the applicant. Mr Locke indicated that he knew little about the matter but had been asked to appear by Mr Goldberg, solicitor, who represented the applicant. The Court was told at that time that Mr Goldberg had been instructed by the applicant; certain directions were made for the conduct of the matter including the filing of affidavits. Today Miss Wong has appeared on behaif of the applicant. Miss Wong has indicated that advice has been given to the applicant that the proceedings were commenced in the wrong jurisdiction. Accordingly, Miss Wong has indicated that she wishes to have the proceedings dismissed. | have made an order to that effect. | should add that Mr Golcdrera presumably as a courtesy to the Court, appeared. Mr Goldberg indicated that he had not been instructed in the manner that had been indicated to the court on the last occasion in that he had received a request from the bankrupt only very shortly before the hearing to appear on behalf of the applicant. | should record that Mr Goldberg was excused from further appearance. | should also record that Mr Goldberg had previously filed a notice of ceasing to act. The proceedings having been dismissed, Mr Friedman, who again appears for the Official Trustee, has sought an order for the costs of the proceedings, presumably including also costs on the occasions when | directed that costs be reserved. Miss Wong has made a number of points on behalf of the applicant. She has pointed out that the applicant was not legally represented, at least effectively, until today. She had, so Miss Wong submitted, been badly advised by Mr Parker in that she had been advised to commence proceedings in the Federal Court. That, however, was the incorrect forum and it was appropriate that her claim be pressed, if at all, in the Family Court rather than in the Federal Court. Miss Wong also pointed out that the Official Trustee had been represented at all times. She submitted that the Official Trustee had not advised the applicant that she was proceeding in the incorrect jurisdiction. Miss Wong also made the point that the applicant has very few resources and that she had previously sought legal advice through the Law Society. However, she had not been able to obtain appropriate legal representation. Mr Friedman, in response, pointed out, | think correctly, that the proceedings had been instituted by way of application on 30 September 1994. They had been served upon the Official Trustee only late in that day and were returnable on 4 October - that is, the first sitting day after a long weekend. Mr Friedman submitted that the Official Trustee had not engaged in any conduct that could be described as improper. Indeed the Official Trustee had raised the jurisdictional point at precisely the first opportunity he had to do so, that is, when the hearing commenced on 4 October 1994. Mr Friedman submits that the Official Trustee was bound to answer the claim made in the application which was, as he correctly states, treated by me as an application for interim relief. Mr Friedman also makes the point - again | think correctly - that the Official Trustee has acted properly in this matter No technical problems were placed in the path of the applicant pursuing such remedies as might have been available to her. Kt is not, of course, the responsibility of the Official Trustee to structure the manner in which an application is made before the court. | accept the factual background for the purposes of this application as stated by Miss Wong. The matter is an unfortunate one. It is always a cause for regret that an unrepresented litigant is defeated without an opportunity to have the merits determined by reason as in this case, of a failure to join the correct parties or a failure to proceed in the appropriate forum. Nonetheless the general principle in my opinion is that costs ought to follow the event. There certainly are circumstances where that principle might be departed from However, in this case, an application has been made and has been dismissed on the application of the applicant because of a recognition that it was misconceived. Furthermore, as | have indicated, the response of the Official Trustee was in my view, quite appropriate to the proceedings as insiituted. Accordingly, in my opinion, there are no grounds for departing from the general rule, namely that the unsuccessful applicant ought to meet the costs in this case of the Official Trustee. While that may be a conclusion that 1s regrettable in some senses, nonetheless tt seems to me the appropriate order to make in the circumstances of this case. Accordingly, the proceedings having been dismissed, | order the applicant to pay the costs of the Official Trustee of the proceedings including the costs reserved on such previous occasion or occasions when they were reserved. I thank the legal representatives and Miss Wong for your attendance today. Heard: Place: Decision: Appearances: | certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: A oe (- ce Dated: 16 November, 1994 4 November, 1994 Sydney 4 November, 1994 Miss Wong of Briggs Pau) Dowding, Solicitors, appeared for the applicant. Mr Freidman of Maurice Freidman & Company, Solicitors, appeared on behalf of the Official Trustee in Bankruptcy.