Ambrose v Badcock

[2021] FCA 881

FEDERAL COURT OF AUSTRALIA

Ambrose v Badcock [2021] FCA 881

File number:

SAD 134 of 2021

Judgment of:

CHARLESWORTH J

Date of judgment:

8 July 2021

Date of publication of reasons:

30 July 2021

Catchwords:

PRACTICE AND PROCEDURE – application for an order that interim relief be granted on an ex parte basis – application requiring consideration to be given to likely cooperativeness of the absent respondent – presiding judge having prior dealings with the absent respondent in prior litigation – combination of facts and circumstances giving rise to an apprehension of bias

Legislation:

Bankruptcy Act 1966 (Cth)

Cases cited:

Badcock v Channel Seven Adelaide Pty Ltd & Ors [2005] SADC 32

Badcock v Channel Seven Adelaide P/L & Ors [2006] SADC 7

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Division:

General Division

Registry:

South Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

17

Date of hearing:

8 July 2021

Counsel for the Applicant:

Mr G Gretsas

Solicitor for the Applicant:

Gretsas & Associates

Counsel for the Respondent:

The Respondent did not appear

ORDERS

SAD 134 of 2021

BETWEEN:

COLIN LOUIS AMBROSE

Applicant

AND:

ROBERT JOHN BADCOCK

Respondent

ORDER MADE BY:	CHARLESWORTH J
DATE OF ORDER:	8 JULY 2021

THE COURT ORDERS THAT:

1.The originating application be allocated to another judge of the Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

1. On 8 July 2021 I determined, in the absence of the respondent, that I should disqualify myself from presiding in this matter.  I made an order that the matter be reallocated to another justice of the Court and delivered reasons for judgment ex tempore.  I indicated to the applicant that publication of written reasons would be delayed until such time as the respondent had been served with the originating process.  The respondent has now been served.  What follows is a written record of the reasons previously given orally, with some minor amendments.

2. The applicant is the Trustee of the bankrupt estate of the respondent, Mr Robert John Badcock.  The Trustee alleges that Mr Badcock has conducted, and continues to conduct, a business for the sale of motor vehicles.  Among other things, the Trustee alleges that the motor vehicles in Mr Badcock’s possession form a part of the after acquired property of Mr Badcock for the purposes of the Bankruptcy Act 1966 (Cth) and so vest in him.

3. The originating application seeks relief described as “interim relief”.  Proposed order 1 is to the effect that the application for injunctions by way of interim relief be initially heard on an ex parte basis without a requirement to serve or notify the respondent prior to the initial nominated hearing.

4. The matter was allocated to me in the usual course, including for determination of whether an ex parte hearing should proceed.

5. The proposed interim injunctions are those contained in [11] and [12] of the originating process, namely,…