Crosbie and Bryant, in the matter of Australian Motor Finance Limited (Receivers and Managers Appointed) and Australian Motor Finance Corporate Pty Ltd (Receivers and Managers Appointed) [2009] FCA 707

Crosbie and Bryant, in the matter of Australian Motor Finance Limited (Receivers and Managers Appointed) and Australian Motor Finance Corporate Pty Ltd (Receivers and Managers Appointed) [2009] FCA 707

The Court could not prospectively determine whether Michael O'Brien would have a reasonable excuse under s 597(6A) for failing to attend on a future date. On the evidence before the Court, Mr O'Brien did not discharge his onus of proving that his medical or psychological condition amounted to reasonable cause for failing to attend on 7 May 2009 or 25 May 2009. Although a warrant could have issued under r 11.10(2)(a), Mr O'Brien's counsel indicated that he would attend on 18 June 2009, so the Court adjourned the return of the summons, reserved the warrant question, and ordered him to pay the receivers' costs of the r 11.10 application.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Corporations Application Concerning Public Examinations Under S 596 a of the Corporations Act 2001 (cth) / Application Under R 11.10 of the Federal Court (corporations) Rules 2000 (cth) Concerning Non Attendance at a Public Examination Summons
Outcome
Return of summons adjourned; question of warrant reserved; Michael O'Brien ordered to pay costs of the r 11.10 application.
Legal Topics
['public Examinations' 'summons to Attend for Examination' 'reasonable Excuse or Reasonable Cause for Non Attendance' 'warrant for Arrest' 'receivers and Managers' 'costs']
['corporations Law' 'federal Court Corporations Procedure'] ['public Examinations' 'summons to Attend for Examination' 'reasonable Excuse or Reasonable Cause for Non Attendance' 'warrant for Arrest' 'receivers and Managers' 'costs']

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Procedural Posture

Corporations Application Concerning Public Examinations Under S 596 a of the Corporations Act 2001 (cth) / Application Under R 11.10 of the Federal Court (corporations) Rules 2000 (cth) Concerning Non Attendance at a Public Examination Summons

Legal Issues

  1. 1 ["Whether the Court could determine in advance whether Michael O'Brien would have a reasonable excuse under s 597(6A) of the Corporations Act 2001 (Cth) if he did not attend on 18 June 2009." "Whether Michael O'Brien had reasonable cause under r 11.10(1)(a)(i) of the Federal Court (Corporations) Rules 2000 (Cth) for failing to attend for public examination on 7 May 2009 or 25 May 2009." 'Whether a warrant should issue under r 11.10(2)(a) of the Federal Court (Corporations) Rules 2000 (Cth).' 'What orders should be made as to the adjournment of the summons and costs.']

Ratio Decidendi

The Court could not prospectively determine whether Michael O'Brien would have a reasonable excuse under s 597(6A) for failing to attend on a future date. On the evidence before the Court, Mr O'Brien did not discharge his onus of proving that his medical or psychological condition amounted to reasonable cause for failing to attend on 7 May 2009 or 25 May 2009. Although a warrant could have issued under r 11.10(2)(a), Mr O'Brien's counsel indicated that he would attend on 18 June 2009, so the Court adjourned the return of the summons, reserved the warrant question, and ordered him to pay the receivers' costs of the r 11.10 application.

Court Disposition

Return of summons adjourned; question of warrant reserved; Michael O'Brien ordered to pay costs of the r 11.10 application.

Orders

  • ["The return of the summons addressed to Michael O'Brien, issued on 22 April 2009, is adjourned to 10.00 am on 18 June 2009." 'The question of the issue of a warrant pursuant to r 11.10(2)(a) of the Federal Court (Corporations) Rules 2000 (Cth) be reserved.' "Michael O'Brien pay the costs of the receivers and...