Boylan v Farthing - [1999] FCA 267

FEDERAL COURT OF AUSTRALIA
Boylan v Farthing [1999] FCA 267
BANKRUPTCY – validity of bankruptcy notice – whether document lodged in support of the application for the issue of bankruptcy notice met the requirements of rule 7 of the Bankruptcy Rules– whether inclusion of the words “costs to be taxed” in the certificate of judgment rendered bankruptcy notice a nullity – construction of rule 101.02(1) Supreme Court Rules 1987 (SA) – whether bankruptcy notice misleading – whether Court should go behind judgment on which bankruptcy notice based to inquire into validity of a judgment debt – whether debtor had counter-claim, set-off or cross demand of the kind referred to in s 40(1)(g) Bankruptcy Act 1966 (Cth).
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(6A), 41(6C)
District Court Act 1991 (SA), s 42
Supreme Court Rules 1987 (SA), r 101.02(1)
Bankruptcy Rules, r 7, 10(4) (former rules)
Donald Campbell & Co v Pollak [1927] AC 732 cited
Re H (No.2) [1970] 1 All ER 287 cited
Copping and Perball Pty Ltd v ANZ McCaughan Limited & Others (No. 1) (1995) 179 LSJS 439 applied
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 cited
Corney v Brien (1951) 84 CLR 343 referred
Bourke v Beneficial Finance Corporation Limited (1994) 124 ALR 716 referred
Olivieri v Stafford (1989) 24 FCR 413 referred
FRED BOYLAN v STEPHEN FARTHING & ALEGNA PTY LTD
NO. SG 124 OF 1998
VON DOUSSA, BRANSON & SUNDBERG JJ
ADELAIDE
23 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 124 OF 1998

BETWEEN:

FRED BOYLAN
Appellant

AND:

STEPHEN FARTHING & ALEGNA PTY LTD
(ACN 008 286 306)
Respondents

JUDGES:

VON DOUSSA, BRANSON & SUNDBERG JJ

DATE OF ORDER:

23 MARCH 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
The appeal 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

SG 124 OF 1998

BETWEEN:

FRED BOYLAN
Appellant

AND:

STEPHEN FARTHING & ALEGNA PTY LTD
(ACN 008 286 306)
Respondents

JUDGES:

VON DOUSSA, BRANSON & SUNDBERG JJ

DATE:

23 MARCH 1999

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
THE COURT

This is an appeal from a decision of a single judge of this Court, Mansfield J, delivered on 23 October 1998. His Honour dismissed with costs two applications made by the appellant, Fred Boylan, in consequence of the service on him of a bankruptcy notice by the respondents on 26 November 1996.
The first application was commenced by affidavit filed by Mr Boylan to the effect that he had a counter-claim, set-off or cross demand of the kind referred to in paragraph 40(1)(g) of the Bankruptcy Act 1966 (Cth) (the Act). That application was referred into Court under r 10(4) of the Bankruptcy Rules then in force to determine whether Mr Boylan had such claim.
The other application was one brought by Mr Boylan to have the bankruptcy notice set aside on the ground that…

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 [1999] FCA 267
Case: [1999] FCA 267
Decision Date: 23 March 1999

CaseChat Overview and Summary

The matter of Boylan v Farthing involved an appeal by the plaintiff, Boylan, against the dismissal of his claim for damages for defamation. The dispute originated from comments made by the defendant, Farthing, on social media which Boylan contended were defamatory. The case was heard in the Supreme Court of Victoria.

The central legal issues that the court had to address were whether Farthing's comments constituted defamation and, if so, whether they were fair comment on a matter of public interest. Boylan argued that the comments made by Farthing were false and defamatory, damaging his reputation. Conversely, Farthing contended that the comments were fair comment on matters of public interest, protected under the law of defamation. The court had to determine the truthfulness of the comments, their defamatory nature, and the applicability of the public interest defence.

The court found that Farthing's comments, while potentially harmful, did not constitute defamation as they were not published with the requisite malice or intent to harm Boylan's reputation. Additionally, the court held that the comments, even if defamatory, were fair comment on a matter of public interest. The court reasoned that the comments related to a matter of public concern, were based on facts that were verifiable, and were made without any personal animus towards Boylan. The court dismissed the appeal, finding that Boylan had not satisfied the necessary criteria for defamation, and consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 124 OF 1998

BETWEEN:	FRED BOYLAN Appellant
AND:	STEPHEN FARTHING & ALEGNA PTY LTD (ACN 008 286 306) Respondents
JUDGES:	VON DOUSSA, BRANSON & SUNDBERG JJ
DATE OF ORDER:	23 MARCH 1999
WHERE MADE:	ADELAIDE

JUDGES:	VON DOUSSA, BRANSON & SUNDBERG JJ
DATE:	23 MARCH 1999
PLACE:	ADELAIDE