Federal Court of Australia Fitzgerald v Fitzgerald [2020] FCA 1445 File number: QUD 107 of 2020 Judgment of: REEVES J Date of judgment: 8 September 2020 Catchwords: PRACTICE AND PROCEDURE – application for leave to file and rely upon affidavits after decision reserved – whether the affidavits are so material it is in the interests of justice to grant leave – whether the affidavits would most probably affect the result of the substantive application – application dismissed Cases cited: Murray v Figge (1974) 4 ALR 612 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 6 Date of hearing: 8 September 2020 Counsel for the Applicant: Mr DR Edwards Solicitor for the Applicant: Lilas & Loel Lawyers Counsel for the First Respondent: Mr C Johnstone Solicitor for the First Respondent: McCullough Robertson Lawyers Counsel for the Second and Third Respondents: The Second and Third Respondents did not appear ORDERS QUD 107 of 2020 BETWEEN: MARK ANDREW FITZGERALD Applicant AND: ROSLYN MARY FITZGERALD First Respondent ROSLYN FITZGERALD PTY LTD (ACN 159 299 171) Second Respondent ROSLYN FITZGERALD NO 3 PTY LTD (ACN 607 478 606) Third Respondent order made by: REEVES J DATE OF ORDER: 8 SEPTEMBER 2020 THE COURT ORDERS THAT: 1. The applicant's interlocutory application filed 17 July 2020 is dismissed. 2. Costs are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT REEVES J: 1 This is an application made by Mr Mark Fitzgerald, the applicant, to reopen his case on his application to review the decision of Registrar Buckingham made on 23 April 2020 refusing his application to set aside a bankruptcy notice served on him on 24 March 2020. I reserved my decision on Mr Fitzgerald's review application on 2 June 2020. When I did that I ordered the parties to provide lists of the affidavit materials upon which they relied and the objections taken to the opposite parties' materials. I did that because more than 2,500 pages of affidavit material had been filed in the application by both parties. As an aside, I note that the lists of objections seem to have continued that trend because they total more than 80 objections. 2 Nonetheless, the main purpose of the present application is for Mr Fitzgerald to rely upon two affidavits, one made by Mr William Cusack, and the other made by a Ms Kathleen Curry, both filed on 17 July 2020. Those affidavits are intended to show what steps Mr Fitzgerald has taken in the Supreme Court proceedings to review the costs assessment which resulted in the issue of the cost certificate which founds the bankruptcy notice. That certificate was issued on 13 February 2020. 3 Mr Edwards, counsel for Mr Fitzgerald, submits that this affidavit material is relevant and it is in the interests of justice that it should now be received because it shows that Mr Fitzgerald has taken steps to challenge the costs assessment in question. Mr Edwards claims that this is relevant to the second leg of Mr Fitzgerald's review application. In that leg, Mr Fitzgerald seeks to have the Court go behind the cost certificate on the ground that it does not reflect a debt which is due and owing by him. 4 Ms Roslyn Fitzgerald, the respondent, opposes this application to reopen. She contends that Mr Fitzgerald has not established any of the matters that the authorities show are necessary for success on an application of this kind. The principles in relation to such an application have been stated on many occasions. More than four decades ago, Muirhead J set them out in his judgment in Murray v Figge (1974) 4 ALR 612. At 613-614, his Honour said that fresh evidence should only be admitted when: (a) it is so material that the interests of justice require it; (b) the evidence, if believed, would most probably affect the result; (c) the evidence could not, by reasonable diligence, have been discovered before; (d) the inadvertence was established; and (e) no prejudice was suffered by the other party by reason of its introduction at a late point of time. 5 Applying those principles to this application, I do not consider the material Mr Fitzgerald now seeks to rely on is "so material that the interests of justice require it" to be relied upon, and nor do I believe that this material will "most probably affect the result" of Mr Fitzgerald's review application. Briefly stated, my reasons for these conclusions are as follows. First, the cost certificate Mr Fitzgerald seeks to go behind relates to an indemnity costs order made by Flanagan J in the Supreme Court of Queensland on 27 May 2019. Mr Fitzgerald has not since that time sought leave to appeal that judgment and nor has he sought a stay of execution with respect to it. 6 As for the cost certificate, while the material Mr Fitzgerald wishes to rely upon appears to show that he is now seeking to review that certificate in the Supreme Court, he has not obtained an order staying the execution of the certificate. That is so despite the fact that the certificate is now more than six months old. The mere fact that Mr Fitzgerald has belatedly sought to challenge the assessment upon which the cost certificate is based, without providing any basis for believing that that assessment may be deficient, is, in my view, immaterial to the question whether the debt the cost certificate concerns is due and owing. For these reasons, I dismiss Mr Fitzgerald's interlocutory application filed 17 July 2020. Because of this ruling, it is not necessary to rule on the objection Mr Johnstone, counsel for Ms Fitzgerald, made to parts of Mr Cusack's affidavit of 17 July 2020. Finally, I will deal with the question of costs when I deliver my decision on Mr Fitzgerald's substantive application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves. Associate: Dated: 15 October 2020