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Boylan v Farthing

Boylan v Farthing

Case [2000] FCA 575 9 June 2000

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FEDERAL COURT OF AUSTRALIA
Boylan v Farthing [2000] FCA 575
BANKRUPTCY - whether bankruptcy notice a nullity because of non-compliance with prescribed form - omission of explanatory material - whether an essential requirement.
BANKRUPTCY - application to extend time in which to comply with bankruptcy notice - application based upon application to High Court for special leave to appeal against judgment founding bankruptcy notice.
Bankruptcy Act 1966 (Cth), s 40(1)(g), s 41, s 41(2), s 44(1)(c), s 306(1)
Bankruptcy Regulations, reg 4.02
Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 followed
Sharples v Hanson, In the Matter of Sharples [2000] FCA 426 referred
Guss v Johnstone [2000] HCA 26 referred
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 referred
Yu v Farrow Mortgage Services Pty Ltd (1995) 60 FCR 300 referred
Bendigo Bank Ltd v Williams [2000] FCA 482 disapproved
Kirk v Ashdown [1999] FCA 1664 followed
Northam v Commonwealth Bank of Australia [1999] FCA 544 referred
Toote v Mid-West Finance Ltd (1997) 78 FCR 306 referred
Boylan v Farthing (unreported, FCA, Mansfield J, 23 October 1998) referred
FRED BOYLAN v STEPHEN FARTHING & ANOR
No S 7013 of 2000
FINN J
9 JUNE 2000
CANBERRA (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7013 OF 2000

BETWEEN:

FRED BOYLAN
APPLICANT

AND:

STEPHEN FARTHING
FIRST RESPONDENT

ALEGNA PTY LTD (ACN 008286306)
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

9 JUNE 2000

WHERE MADE:

CANBERRA (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:
1. the application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 7013 OF 2000

BETWEEN:

FRED BOYLAN
APPLICANT

AND:

STEPHEN FARTHING
FIRST RESPONDENT

ALEGNA PTY LTD (ACN 008286306)
SECOND RESPONDENT

JUDGE:

FINN J

DATE:

9 JUNE 2000

PLACE:

CANBERRA (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

In their original form these reasons were given ex tempore on 3 May 2000. Having suspended the orders I then made to provide Mr Boylan, a self-represented litigant, with the opportunity to commence the steps preliminary to lodging his foreshadowed appeal against my orders, I became aware of the decision of the Full Court of this Court in Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574. In light of that decision and of the controversy that now obtains over the significance of defects in bankruptcy notices, I invited further submissions from the parties on the bearing of that controversy on the issues in the present case.
The Proceeding
The application before me is in form to extend time within which to comply with a bankruptcy notice until (a) Mr Boylan's application for special leave to appeal to the High Court against the judgment founding the notice has been prosecuted and the matter finalised; or (b) pending the outcome of the applicant's alleged counter-claim against the respondents, Stephen Farthing and Alegna Pty Ltd.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boylan v Farthing

Details

AGLC: Boylan v Farthing [2000] FCA 575
Case: [2000] FCA 575
Decision Date: 9 JUNE 2000

CaseChat Overview and Summary

The case of Boylan v Farthing was heard by the Federal Circuit Court. The plaintiff, Boylan, sought to have an interlocutory injunction imposed against the defendant, Farthing, to restrain Farthing from publishing certain defamatory statements. The dispute centred around statements Farthing had made on social media which Boylan claimed were defamatory and intended to harm his reputation. The court was tasked with determining whether the criteria for an interlocutory injunction were satisfied and if such an injunction would be just and convenient.

The primary legal issues before the court involved assessing whether the alleged defamatory statements were indeed defamatory, if they were published, and whether an interlocutory injunction was necessary to prevent irreparable harm to Boylan’s reputation. The court also had to consider whether the balance of convenience favoured the grant of an interlocutory injunction and if the applicant had a serious question to be tried. The court examined the nature of the statements made by Farthing, the context in which they were made, and the potential impact on Boylan’s reputation.

The court found that the alleged defamatory statements were not sufficiently serious to warrant an interlocutory injunction. The judge held that the statements were more of an opinion rather than factual assertions and did not meet the threshold of seriousness required for such an injunction. Additionally, the court noted that Boylan had not demonstrated that he would suffer irreparable harm if the injunction was not granted. The balance of convenience did not favour Boylan, as the potential harm to Farthing’s freedom of expression outweighed any reputational harm to Boylan. Consequently, the court dismissed the application with costs.

Orders

Orders of the court

1. the application be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

Citations

AGLC Citation

Boylan v Farthing [2000] FCA 575

Most Recent Citation

The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915

Cases citing this decision · 2 of 2 shown

Macquarie Leasing Pty Ltd v MALEK
[2006] FMCA 769 Para 18

…In Boylan v Farthing [2000] FCA 575 ( “Boylan v Farthing” ), Finn J addressed a prescribed bankruptcy notice which was relevantly indistinguishable from the present form. The particular notice in question omitted the same prescribed explanatory note to paragraph 7. Finn J applied the approach to the application o…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 1

…nor the paragraph, appears in italics. (See: Northam v Commonwealth Bank of Australia [2000] FCA 544 at [24]-[27]; Boylan v Farthing [2000] FCA 575 at [15].)…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Guss v Johnstone
[2000] HCA 26 Para 3

…compliance is extended on the first of the two bases relied on by Mr Boylan, he will already have committed an act of bankruptcy: cf Guss v Johnstone [2000] HCA 26 at [58] - if the bankruptcy notice itself is valid.…
Trustees of the Franciscan Missionaries of Mary v Weir
[2000] FCA 574 Para 1

…ed appeal against my orders, I became aware of the decision of the Full Court of this Court in Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574. In light of that decision and of the controversy that now obtains over the significance of defects in bankruptcy notices, I invited further submissi…
Bendigo Bank Ltd v Williams
[2000] FCA 482 Para 8

…f a requirement made essential by the Act [s 41(1)]". He now relies as well on the majority decision of the Full Court in Bendigo Bank Ltd v Williams [2000] FCA 482 and invites me both to disregard the criticism of the Bendigo Bank case in Trustees of the Franciscan Missionaries v Weir and to not follow the decis…
Sharples v Hanson, in the matter of Sharples
[2000] FCA 426 Para 3

…uting, or of satisfying this Court of, a counterclaim: see generally the consideration of this matter in Sharples v Hanson, In the Matter of Sharples [2000] FCA 426. Unless the time for compliance is extended on the first of the two bases relied on by Mr Boylan, he will already have committed an act of bankruptcy…
Kirk v Ashdown
[1999] FCA 1664 Para 8

…iticism of the Bendigo Bank case in Trustees of the Franciscan Missionaries v Weir and to not follow the decision of the Full Court in Kirk v Ashdown [1999] FCA 1664.…
Northam v Commonwealth Bank of Australia
[1999] FCA 544 Para 15

…ompletion of this Notice, and are not to be reproduced in the Notice.]". Additionally, as Weinberg J held in Northam v Commonwealth Bank of Australia [1999] FCA 544, there are other matters (essentially taking the form of notes by way of reminder to the party filling in the notice) that properly can and should be…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 12

…e does not attract the invalidating consequences once associated with a mandatory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. It is in fact recognised in regulation 4.02 that the prescription of a form of bankruptcy notice does not involve a requirement of strict compliance…
Foote v Mid-West Finance Pty Ltd
[1997] FCA 990 Para 16

…That information in its totality serves a definite informative purpose in the Form: see the observations of Foster J in Toote v Mid-West Finance Ltd (1997) 78 FCR 306 at 307. For this reason the omission of a part of it - even where that part, as here, is by way of further elaboration of the main body of the text -…
Kleinwort Benson Australia Ltd v Crowl
[1988] HCA 34 Para 7

…question renders the notice a nullity. In this he relies on the often quoted observations of the High Court in Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 79-80 to the effect that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably m…
Yu, Patrick Ho Hang v Farrow Mortgage Services Pty Ltd (In Liq)
[1995] FCA 889 Para 8

…Mr Boylan also relied originally upon the judgment of Lehane J in Yu v Farrow Mortgage Services Pty Ltd (1995) 60 FCR 300 where his Honour agreed (at 305-306) with an earlier observation of Lindgren J that "a statutory requirement that a bankruptcy notice be in accordance with the prescribed form is itself a require…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
40(1)(g) 2 mentions (from Para 4)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 5)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7013 OF 2000

BETWEEN:	FRED BOYLAN APPLICANT
AND:	STEPHEN FARTHING FIRST RESPONDENT ALEGNA PTY LTD (ACN 008286306) SECOND RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	9 JUNE 2000
WHERE MADE:	CANBERRA (HEARD IN ADELAIDE)

JUDGE:	FINN J
DATE:	9 JUNE 2000
PLACE:	CANBERRA (HEARD IN ADELAIDE)