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Sir Terence O'Rort
6 November, 2006  
Trying to breathe life into a dead parrot

Delays and fudging are all due to overwork at the Brisvegas federal magistrates’ court. How a former “Young Lawyer of the Year” slipped on the “slip rule”

imageFederal Magistrate Michael “Humpty Dumpty” Baumann has suffered severe contusions to his shell as a result of slipping off the wall of the Federal Magistrates Court in Brisvegas.

Spender, Dowsett and Collier, on guard at the full Federal Court, spelled out the saga in Griffiths v Boral Resources (Qld) Pty Ltd.

Just like Lewis Carroll’s Humpty, Baumann wants his words to mean only what he chooses them to mean, not what they say.

H. Dumpty was appointed to the FMC in June 2000 after a glittering career spanning a Gold Coast family law practice, presidency of the Queensland Bore Society and the Queensland Legal Aid Commission. In 1991 the Law Council even gonged him as “Young Lawyer of the Year”.

Since his elevation he has kept the full court busy racking up a game record of about 17-2 against his decisions, mostly in general federal law proceedings, including bankruptcy.

Griffiths is no exception. Poor old Boral had its creditor’s petition heard by Dumpty on November 11, 2003 after presenting it on September 11, 2003.

On March 15, 2005 the magistrate said he was inclined to grant a sequestration order but grudgingly fessed-up that things were now out of time:

“Had I been aware (as perhaps I should have) that the petition was to expire, then delivery of these reasons would have been expedited…”

Every article clerk knows that a creditors petition lapses after 12 months and, while it can be extended for another year, an order to extend must be made within the initial 12 months period.

imageOn April 19, 2005 Baumann (snap) heard further submissions and then on August 2, 2005 (just short of two years since the presentation of the petition) he ordered that his “order” reserving his decision made in November 2003 be varied by extending the life of the petition for two years from that date. He said:

“At the conclusion of the matter I adjourned the matter to a date to be fixed to consider my decision. This is the effect of ‘reserving judgment’.”

In what amounted to pure Jabberwocky he sought to characterise the reservation of his decision as an “order” for an adjournment so he could take advantage of the “slip rule”, which might have got him off the hook, but which only applies to orders, not judgments.

Baumann bankrupted Griffith but deprived Boral of the costs of the appearances associated with his error.

His Honour took 16 months to make the bankruptcy decision and a further five months to arrive at his final orders. However, the petition had expired in September 2004, some five months before the decision to bankrupt Griffiths. There was no order extending the petition.

Griffiths appealed.

Unfortunately, Dumpty’s sleight of hand in trying to suggest that reserving his decision was in fact an order for adjournment didn’t get past the full federal watchdogs.

imageSpender, Dowsett and Collier refrained from calling H-D (snap) a bad egg, but still they has to sort out the yolky mess and set aside Dumpty’s carefully evolved “orders”.

“On their face, the words ‘I will reserve my decision’ indicate that the hearing is at an end and that judgment will be delivered at a later stage. They do not suggest an order for adjournment or any other order.”

The full judges absolved Boral of any fault by delicately stating:

“At the time the judgment was reserved, almost 10 months remained until the expiry of the petition… It is most unlikely that with 10 months to run, anybody would have anticipated that judgment might not be given within the lifetime of the petition.”

They went on to say the whole mishap could be put down to pressure of work:

“We do not make any criticism of the federal magistrate’s delay, although its length is far from acceptable in a case of this kind. It is well known that the federal magistrates in Brisbane are seriously overworked. We have no doubt that his Honour did the best that he could in the circumstances.”

If best in the circumstances is good enough for the full ones, it’s good enough for me.

Phil Ruddock weighed-in with an announcement that over the past year he has appointed 10 new federal magistrates since June 30, adding:

“I am confident these additional appointments will greatly assist litigants to obtain a speedy resolution of their disputes.”

Sir Terence O’Rort reporting


Reader Comments

Posted by: Anonymous
Date: November 8, 2006, 6:42 pm

Vince Bruce could have done better