Ray v Perrett (No. 4) [2008] FCA 420

FEDERAL COURT OF AUSTRALIA

Ray v Perrett (No. 4) [2008] FCA 420

GREG RAY v PAUL PERRETT

NSD 1975 of 2007

GRAHAM J

27 MARCH 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1975 of 2007

BETWEEN: GREG RAY

Applicant

AND: PAUL PERRETT

Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 27 MARCH 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application of the respondent, Mr Perrett, for an adjournment of the proceedings be dismissed. 2. Mr Perrett pay the costs of the applicant, Mr Ray, and that such costs be paid on an indemnity basis. 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 NSD 1975 of 2007

BETWEEN: GREG RAY

Applicant

AND: PAUL PERRETT

Respondent

JUDGE: GRAHAM J

DATE: 27 MARCH 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 12 July 2007 a Creditor's Petition was filed in the Federal Magistrates Court of Australia, proceedings number SYG2163 of 2007. In that petition Greg Ray was identified as the applicant and Paul Perrett was identified as the respondent. The address of Paul Perrett was shown as 159 Narrowneck Road Katoomba NSW 2780. On 2 October 2007 Raphael FM ordered that the matter be transferred into this Court whereupon it became identified in this Court as NSD 1975 of 2007. 2 On 8 October 2007 the respondent, Mr Perrett, filed a Notice of Motion in this Court. In that Notice of Motion he identified himself as Paul John Perrett. That Notice of Motion came before the Court constituted by myself on 11 October 2007. On that occasion I granted leave to the respondent to appear on 11 October 2007 by Peter Alexander Gargan of 8/369 Glebe Point Road, Glebe, New South Wales as his agent. Amongst other things I granted leave to the respondent to file and serve such Amended Notice of Motion as he may be advised on or before 19 October 2007. 3 I ordered that the respondent's Notice of Motion filed 8 October 2007 and any Amended Notice of Motion be fixed for hearing before me at 10.15 am on 26 October 2007. On 16 October 2007 the respondent filed an Amended Notice of Motion. That Notice of Motion indicated that it was filed for Paul John Perret (sic) of 159 Narrowneck Road, Katoomba, 2780. The Amended Notice of Motion came before the Court constituted by myself on 26 October 2007. Mr Spencer of counsel, instructed by Freehills solicitors appeared for the applicant on that occasion and Dr J. Walsh, instructed by R.G. Christie, solicitor, appeared for the respondent. 4 Mr Christie filed an appearance in Court on 26 October 2007 and on 29 October 2007 filed a notice of withdrawal of solicitor indicating his withdrawal from the matter as the solicitor for the respondent. On 26 October 2007 I ordered that the Amended Notice of Motion filed 16 October 2007 be dismissed, and ordered that the respondent, who was the applicant in the motion, pay the applicant's, i.e. the respondent in the motion's, costs and that such costs be taxed on an indemnity basis. 5 An application for leave to appeal from the orders made by me on 26 October 2007 was filed on 29 October 2007. That application came before Lindgren J for hearing on 27 November 2007. His Honour ordered that the Notice of Motion filed on 29 October 2007 be dismissed and that the respondent, Mr Perrett, pay the costs of Mr Ray, the applicant in the proceedings on an indemnity basis. 6 His Honour's reasons for judgment indicate that Dr Walsh appeared for Mr Perrett on 27 November 2007, instructed by a Mr D. Knaggs, solicitor and that Mr Spencer of counsel, instructed by Freehills, appeared for Mr Ray. In the course of his reasons for judgment Lindgren J said at [15]: 15 In addition to its obvious futility, there have been other aspects of the present application that have given cause for concern. Dr Walsh said that he was instructed by Mr Knaggs, solicitor, and was troubled by the fact that Mr Knaggs had not appeared at Court, although Dr Walsh said he had seen him in the coffee shop in the Law Courts Building earlier in the morning. Mr Knaggs had not filed a notice of appearance. Mr Spencer, counsel for Mr Ray, expressed his concern over the difficult position in which Mr Ray was placed because there was at least a question as to whether Mr Knaggs had instructed Dr Walsh with Mr Perrett's authority. Dr Walsh confirmed in Court that Mr Perrett did know that Dr Walsh was appearing for him on the application for leave to appeal. His Honour continued at [16]: 16 Mr Spencer then sought an order that Mr Knaggs pay the costs of the present failed application for leave to appeal. I would not order Mr Knaggs to do so without giving him an opportunity to be heard but he was not in Court at the time. While this issue was being discussed Mr Knaggs arrived. He explained that he had, in effect, only "come into" the matter during the course of the morning and had been willing to lend his name to enable Dr Walsh to be instructed by a solicitor. He offered the observation that his own opinion was that the idea of expecting the trial of the questions concerned to take place before a jury was "crazy". As Dr Walsh then aptly responded, that pronouncement by his instructing solicitor seemed to shoot him in the foot. 7 At [17], [18] and [20] Lindgren J said: 17 Mr Knaggs said that he really had no idea what this proceeding was about except that it had to do with a request that a civil matter be determined by a jury. 18 Mr Knaggs also said that it had been his intention, in substance, to ask the Court whether or not he should continue to instruct Dr Walsh, having regard to the unusual circumstances in which he had found himself placed earlier this morning. … 20 It is important to note that the brief to appear had been delivered to Dr Walsh before Mr Knaggs ever came into the picture, and that Dr Walsh had been in possession of the brief for quite some time before he met with Mr Knaggs in the coffee shop of the Law Courts Building this morning. Perhaps the brief was prepared by Mr Christie, solicitor, who, as noted earlier, was the solicitor for Mr Perrett in the bankruptcy proceeding, and instructed Dr Walsh on the motion in that proceeding. On the other hand, the brief to Dr Walsh may have been prepared by Mr Perrett himself. Later at [22] – [23] his Honour continued: 22 The circumstances are, frankly, bizarre. What appears to have happened in both the bankruptcy proceeding and again today is that a solicitor has "come into the matter" on the day of the hearing just for the purpose of formally instructing Dr Walsh. 23 In my opinion, Mr Knaggs should not be ordered to pay the costs that I propose to order Mr Perrett to pay. It seems clear that he has done nothing to encourage the bringing of the present application for leave to appeal, which others have apparently instigated. However, the entire episode does demonstrate the unwisdom of a solicitor's "lending his name" to a proceeding about which he knows virtually nothing, even though the solicitor may feel that he is assisting at a late stage in a difficult situation. Such a solicitor could easily find himself on the receiving end of an adverse costs order. 8 The matter was called this morning at 10.15 am. Mr Golledge of counsel, instructed by Freehills, appeared for the applicant, Mr Ray, and a person who would not identify himself fully sought to address the Court. That person said probably ten times, if he said it once, "I am the party known as 'Paul' in this matter". After a succession of short adjournments I asked the gentleman who wanted to be known as "Paul" whether he had any interest in the proceedings. He persistently refused to answer that question. He was warned about the possibility of an order being made for contempt if he sought to frustrate the interests of justice in proceedings in which he had no interest. 9 It ultimately transpired that he acknowledged that the handwriting appearing in a blue purple, or blue mauve ink on the Court's appearance slip was one which he had completed indicating his name as Paul-John: Perrett. I was satisfied that the person who wished to address the Court was indeed the respondent and I have so addressed him since then. When he originally commenced to address the Court he was reading from a prepared script. He said that he requested a stay of proceedings for eight weeks. 10 After the question of Mr Perrett's right to appear had been determined, Mr Golledge informed me that the matter before the Court was the Creditor's Petition filed 12 July 2007 in the Federal Magistrates Court of Australia and later transferred into this Court. At that stage Mr Perrett made an application for an adjournment for a period of eight weeks. He indicated that the grounds for the requested adjournment was so that the "private administrative process" which had begun could be concluded. 11 A series of bundles of documents were tendered in support of the application. Without going into the detail the impression which I have from a cursory review of them is that they seek to record, under documents which bear headings such as "Letter Rogatory/Honour Draft/Acceptance" that the respondent Mr Perrett would like to settle the proceedings in which he is involved. At this stage it would appear that the applicant's claim would, together with costs, add up to something of the order of $30,000. 12 There is no evidence to indicate that Mr Perrett is in a position to or intends to pay such an amount in cash to the applicant either immediately or in the near term. My understanding from the submission of Mr Perrett is that if there is an adjournment for eight weeks then he "may be able to settle the whole thing and bring it to a closure", to use his words or words to that effect. In my opinion, no proper basis whatsoever for an adjournment has been made out. It is not open to one litigant to appear before the Court and simply say that he wants an adjournment and expect the Court to respond favourably to that request when no proper ground for the adjournment is made out. 13 This matter has been before the Court on numerous occasions and it is time that it was brought to finality. I dismiss the application for an adjournment and I order that Mr Perrett pay the costs of the applicant, Mr Ray, of the application for an adjournment. Given the nature of the application and the material upon which it is based, and the history of the matter it seems to me appropriate that the costs which I have ordered Mr Perrett to pay to Mr Ray should be paid on an indemnity basis. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.