Laginha v Williams [2000] FCA 249

FEDERAL COURT OF AUSTRALIA

Laginha v Williams [2000] FCA 249 EDUARDO LAGINHA v TREVOR WILLIAMS N 8270 of 1999 LINDGREN J 2 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 8270 of 1999

BETWEEN: EDUARDO LAGINHA

APPLICANT

AND: TREVOR WILLIAMS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 2 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an adjournment of the hearing be refused. 2. The application be dismissed. 3. The respondent creditor's costs of the present application be treated as if they were part of his costs as petitioning creditor for the purpose of s 109(1)(a) of the Bankruptcy Act 1966. 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 N 8270 of 1999

BETWEEN: EDUARDO LAGINHA

APPLICANT

AND: TREVOR WILLIAMS

RESPONDENT

JUDGE: LINDGREN J

DATE: 2 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

Introduction 1 The applicant ("Mr Laginha") applies for an order under s 153B of the Bankruptcy Act 1966 that a sequestration order made against him on 21 September 1999 be annulled. On 15 February last I fixed the application for hearing today. Mr Laginha has appeared in person, Mr Francis, solicitor, has appeared for the respondent petitioning creditor and Ms Banfield of Sally Nash & Co has appeared for the Official Trustee in Bankruptcy who is the trustee in bankruptcy of Mr Laginha's bankrupt estate.

Pro bono assistance 2 Mr Laginha, who is a solicitor, has asked me to make an order referring the matter for pro bono assistance under O 80 of the Court's rules. The only affidavit which he has filed is a brief one dated 28 October 1999 which conveys the idea that the issue sought to be raised in the proceeding is that the sequestration order was made by Registrar Tesoriero in the absence of Mr Laginha in circumstances in which there had been prior correspondence between him and the solicitors for the creditor, as a result of which, so the submission goes, Mr Laginha was entitled to assume that a sequestration order would not be made in his absence on 21 September last. 3 Order 80 subrule 1(5) makes it clear that nothing in O 80 requires the Court to make a referral or even require it to consider a litigant's case for referral under O 80. Notwithstanding this, I have allowed Mr Laginha to make submissions as to why a referral should be made. He has pointed out that although he is a solicitor his practice is in the area of criminal law with some elements of family law and that he is inexperienced in bankruptcy law and practice. I accept what he says. He submits that he should therefore be treated as a litigant in person for the purpose of O 80. Although I do not entirely agree, I do accept that inexperience in bankruptcy law and practice means that he would be aided if he were advised or represented by a solicitor or barrister who had such experience. 4 But I do not propose to consider any further the case for referral. The case appears to involve no issue of legal difficulty or complexity on which the Court would wish to have assistance and there are no other special circumstances distinguishing the case from the many in which an unrepresented litigant would be assisted by legal aid. Indeed, in so far as Mr Laginha is a solicitor, his need for legal assistance is at least somewhat less than that of the "average" litigant in person. This is not a case in which I would wish to exercise my discretion to refer the proceeding under O 80. It would be possible to discuss at some length the background to O 80 and its purpose as that background reveals it. It would also be possible to refer to the practice of the Court in so far as judges' decisions to refer under the Order reveal that practice. But to do all of this is to do the very thing that subrule 1(5) says is not required.