Burmingham v Moloney (No.3) - [2013] FMCA 47

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURMINGHAM v MOLONEY (No.3)

[2013] FMCA 47

BANKRUPTCY – Remitted application after successful appeal – the earlier unsuccessful application by the judgment debtor to set aside a sequestration order was remitted for rehearing in respect of one identified error – issue raised as to whether the Court should be differently constituted from the one whose decision was successfully appealed – same Federal Magistrate heard the matter when remitted – evidence led in respect of identified error – application to set aside sequestration order dismissed.

Federal Court of Australia Act 1976, s.28
Federal Magistrates Court Rules 2001, R.16.05

Burmingham & Anor v Hynes & Ors [2005] QCA 274
Commissioner of Taxation (Cth) v Pratt Holdings Ltd (2005) 225 ALR 266
Community & Public Sector Union v Telstra Corporation Ltd (No 2) (2001) 112 FCR 324
DK (Serbia) v Secretary of State for the Home Department [2007] 2 ALL ER 483

Maurice Blackburn Pty Ltd v David Burmingham [2009] VSC 20

Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261

Applicant:

DAVID BURMINGHAM

Respondent:

COLMAN FRANCIS MOLONEY

File Number:

MLG 507 of 2010

Judgment of:

O'Dwyer FM

Hearing date:

7 August 2012

Date of Last Submission:

7 August 2012

Delivered at:

Melbourne

Delivered on:

30 January 2013

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Mr Lapirow

Solicitors for the Respondent:

Davies Moloney

ORDERS

The application, filed on 28 February 2011, to set aside the sequestration order made on 7 February 2011 is dismissed.
The applicant judgment debtor pay the respondent’s costs, which costs be taxed and paid from the estate of the applicant in accordance with the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 507 of 2010

DAVID BURMINGHAM

Applicant

And

COLMAN FRANCIS MOLONEY

Respondent

REASONS FOR JUDGMENT

Introduction

This proceeding has been remitted to the Court for a determination according to law of the applicant’s application to set aside a sequestration order made against him on 7 February 2011.

The remission was made pursuant to an order of the Full Federal Court on 25 November 2011.
It is necessary, in my view, to have an understanding of the background that gives rise to this litigation in order to gain an understanding of the applicant’s approach to litigation in general, the difficulties encountered by those involved in litigation with the applicant and also the difficulties imposed on various Courts in dealing with the applicant.
Hereafter, a statement of fact is to be taken as a finding of fact unless the context suggests otherwise.

Background and history of the proceeding

The genesis of this litigation goes back as far as March 1992 when the applicant was said to have had a mental breakdown at a time when he was a chartered accountant, and had been so for the previous 10 years.

At the time he had income protection insurance with Australian Casualty and Life (later AXA). Under that policy he received regular payments until October 1998. In October…

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 Burmingham v Moloney (No.3)

Details

AGLC: Burmingham v Moloney (No.3) [2013] FMCA 47
Case: [2013] FMCA 47
Decision Date

CaseChat Overview and Summary

The case of Burmingham v Moloney (No.3) involved the interpretation and application of section 28 of the Federal Court of Australia Act 1976, specifically in the context of an appeal and the subsequent remittal of a case back to the primary judge for reconsideration. The central dispute was the nature of the further hearing required after a case has been remitted under section 28(1)(c) of the Federal Court Act, which allows the Court to set aside a judgment and remit the proceeding for further hearing and determination. The case hinged on whether such a remitted hearing constitutes a new trial or a continuation of the original proceedings.

The legal issues before the court were whether the remitted hearing should be treated as a continuation of the original trial or as a new trial, and whether the remitted hearing allows for reopening of cases or merely a reconsideration of unresolved issues based on previously adduced evidence. The court was required to interpret the remittal provisions of section 28(1)(c) of the Federal Court Act and apply it to the procedural context of the remitted hearing.

The court reasoned that the remittal under section 28(1)(c) of the Federal Court Act does not equate to a new trial but rather a continuation of the original proceedings. The court drew on previous cases such as The Community & Public Sector Union v Telstra Corporation Ltd (No 2) and Commissioner of Taxation v Pratt Holdings Pty Ltd to support its interpretation. It concluded that the remittal allows for further written submissions and reconsideration of unresolved issues based on the existing evidence but does not permit the parties to reopen their cases. This approach ensures that the remittal serves as a means to address specific issues left unresolved in the original judgment, without allowing for a wholesale re-examination of the case.

The court's decision clarified the procedural framework for remitted hearings under section 28(1)(c) of the Federal Court Act, affirming that such hearings are continuations of the original proceedings. The court's interpretation ensures that the remittal process is efficient and focused on resolving specific issues, without unnecessary procedural delays or reopening of cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LJ J

Section 28 of the Federal Court of Australia Act 1976 (“the Federal Court Act”) prescribes the orders which the Federal Court may make when disposing of an appeal. Relevantly it states: 28 Form of judgment on appeal(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:(a)affirm, reverse or vary the judgment appealed from;(b)give such judgment, or make such order, as, in all of the circumstances, it thinks fit, or refuse to make an order;(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought or further hearing and determination, subject to such directions as the Court thinks fit;(d)... In TheCommunity & Public Sector Union v Telstra Corporation Ltd (No 2)[1] the Full Court of the Federal Court had set aside the order made at trial and "remitted [the matter] to the primary judge to be determined in accordance with [the Full Court's] reasons for judgment”[2]. The consequence of the Full Court's decision was that Finkelstein J had to determine an issue which he had not resolved initially: CPSU v Telstra Corporation Ltd (No 2)[3]. [1] (2001) 112 FCR 324[2] ibid, at 325 [1][3] ibid, at 326 [4]-[6] Following the return of the matter to Finkelstein J, the question arose as to how the remitted application was to be conducted. In resolving that issue his Honour considered the powers provided by s.28 of the Federal Court Act and concluded that the Full Court's order had been made pursuant to s.28(1)(c). His Honour further concluded that an order under that paragraph does not result in a new trial and that any further hearing which may be ordered pursuant to it is to be conducted on the basis that it is a continuation of the first trial “where the parties can only mend their hand or change course in accordance with well-known rules”[4]. He ruled that it had not been shown that there was a reason why the CPSU should be permitted to reopen its case.[4] ibid, : at 329 [17] In Commissioner of Taxation v Pratt Holdings Pty Ltd[5], Kenny JA also dealt with a remitted matter which required her to consider an issue which she had not considered on the first occasion the matter had been before her. Her Honour followed Finklestein J’s reasons in CPSU v Telstra Corporation Ltd (No 2), saying:Where a matter is remitted pursuant to s.28 (1)(c) of the Federal Court of Australia Act 1976 (Cth), the further hearing is conducted on the basis that it is a continuation of the first trial: see Community and Public Sector Union v Telstra Corp Ltd (No2) (2001) 112 FRC 324 at 329; [2001] FCA 479 at [17] per Finklestein J. Thus, the remaining issues fall to be determined on the evidence that has already been adduced and on the basis of the parties further written submissions ...[6] [5] (2005) 225 ALR 266[6] ibid, (at 270 [8] It is plain from her Honour’s judgment that the further written submissions to which she referred were only to address the issue which had not been considered previously.

Ratio Decidendi

Legal Principle Established

Established by: LJ J

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