Case: Wenkart v Pantzer [2008] FCA 1387
Outcome: cited
present proceeding arises out of an order made by Branson J in September 2008 that an inquiry be held pursuant to O 39 r 2 of the Federal Court Rules : Wenkart v Pantzer [2008] FCA 1387. An inquiry was held and a Certificate subsequently issued by a Deputy District Registrar on 28 May 2009. An " objection " has been taken to this Certificate and the present proceeding before the Court is a " hearing " pursuant to O 39 r 10(3) of the Federal Court Rules . Subsequent to the publication of those reasons for decision, two Notices of Motion were filed on behalf of Dr Wenkart seeking that further consideration be given by the Court to some of the conclusions then reached. One Notice of Motion was filed on 2 June and another on 5 June 2008. Her Honour dismissed both Motions in September 2008: [2008] FCA 1387. In doing so, Her Honour expressed her conclusions and made orders as follows: CONCLUSION [30] The parties have not reached an agreement as to the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer's cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart's Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer's cross-claim. Her Honour's orders were as follows: 1. The applications made pursuant to the notices of motion filed on 2 June 2008 and 5 June 2008 respectively be dismissed. 2. A Registrar conduct an inquiry to determine the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66. 3. The proceeding be otherwise stood over to a date to be fixed. Consequent upon this decision of Branson J, Deputy District Registrar Hannigan conducted the inquiry which had been ordered and issued her Certificate in May 2009. That Certificate stated as follows: Certificate pursuant to Order 39 Rule 10 of the Federal Court Rules . I, Paddy Hannigan, a Deputy District Registrar of the Federal Court of Australia certify that the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr. Pantzer is lawfully entitled from Dr. Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005. Order 1 r 4 of the Federal Court Rules , it should perhaps be noted, defines " Registrar " as including " a Deputy District Registrar ". The functions and manner of appointment of Registrars are addressed in Part IIA , Div 1 and 2 of the Federal Court of Australia Act 1976 (Cth). Counsel on behalf of Mr Pantzer took a more confined view as to the task presently confronting the Court. She maintained that the Certificate should be given such weight that the Court should conclude that the date calculated by the Deputy District Registrar (namely 10 January 2005) was the date on which the 28 day period referred to in the order of Beaumont J as made on 11 March 2002 expired. Counsel on behalf of Mr Pantzer further maintained that the only task confronting the Court when conducting the " hearing " provided for in O 39 r 10 was the task of determining the " weight " to be given to the Certificate . Excluded from consideration, on this approach, was any task of revisiting the orders as made by Branson J or the constraints imposed by Her Honour upon those who were to carry out the " inquiry ". Indeed, on this approach, and given the findings as made by Branson J, the task performed by the Deputy District Registrar was a simple mathematical calculation of amounts and the correlation of expenditure with dates. The confined nature of the current " hearing ", it was contended, was not only dictated by the terms of O 39 r 10 but also by the fact that Branson J had herself been previously asked to revisit the findings she had made and declined to do so in her September 2008 judgment: [2008] FCA 1387. The utility of ordering such an inquiry to be undertaken was queried. But the inquiry having been undertaken and the date identified, the outstanding task according to Counsel for Mr Pantzer was now for this Court to conduct a " hearing " confined to the resolution of such " objections " as were now properly sought to be raised for consideration. Dr Wenkart had sought such a " hearing ", as is his entitlement under O 39 r 10(3) of the Federal Court Rules . That " hearing " and that " hearing " alone, it was contended, should now proceed. Whatever subsequent appeals may be filed or other applications made all remained matters for another day. The fundamental divergence of approach exposed by the exchange of written submissions thus focussed upon those matters which could be canvassed and resolved in a " hearing " conducted for the purposes of O 39 r 10(3). It is considered that the more wide-ranging " hearing " envisaged by Counsel on behalf of Dr Wenkart is to be rejected.