Cirillo v Consolidated Press Property Pty Ltd
[2006] FMCA 1852
•12 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CIRILLO v CONSOLIDATED PRESS PROPERTY PTY LTD & ORS | [2006] FMCA 1852 |
| PRACTICE & PROCEDURE – Transfer to Federal Court − where associated proceeding to set aside the bankruptcy notice has been commenced in the Federal Court − where application has been made but not yet determined to have that proceeding struck out − whether the court can determine whether a proceeding in a higher court is an abuse of process − whether proceeding should be transferred under s.39 Federal Magistrates Act 1999. |
| Bankruptcy Act 1966, s.40(1)(g) Federal Magistrates Act 1999, ss.39, 40 Federal Magistrates Court Rules 2001, Part 8 |
| Applicant: | VINCENZO GIOVANNI CIRILLO |
| First Respondent: | CONSOLIDATED PRESS PROPERTY PTY LTD (FORMERLY KNOWN AS CITICORP AUSTRALIA LIMITED) |
| Second Respondent: | CW CONSTRUCTION (RECEIVERS AND MANAGERS APPOINTED) |
| Third Respondent: | JOHN HAROLD HEARD |
| Fourth Respondent: | STEPHEN ELLIOT YOUNG |
| File Number: | ADG 200 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 12 December 2006 |
| Date of Last Submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Ribbands |
| Solicitors for the Applicant: | McNamara Business & Property Law |
| Counsel for the Respondent: | Mr B. Ericson |
| Solicitors for the Respondent: | Finlaysons |
ORDERS
Proceedings transferred to the Federal Court of Australia pursuant to ss.39 and 40 of the Federal Magistrates Act 1999 and Part 8 of the Federal Magistrates Court Rules 2001.
Costs of the proceedings in this court shall be reserved to the Federal Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
ADG 200 of 2006
| VINCENZO GIOVANNI CIRILLO |
Applicant
And
| CONSOLIDATED PRESS PROPERTY PTY LTD & ORS |
Respondents
REASONS FOR JUDGMENT
There comes before me today an application to set aside a bankruptcy notice. The matter comes before me by virtue of a reference from Registrar Christie, before whom it was in the course of being heard when certain events took place, which I shall adumbrate shortly.
The applicant was a director of a company which went into liquidation some considerable time ago. It was alleged that that company borrowed money from a company known as Citicorp Australia Limited and gave as security for the borrowing of a piece of earth-moving equipment. At some stage, Citicorp, the company in liquidation, and its receivers sought and obtained from the Supreme Court of South Australia injunctive relief against the applicant who had possession of the piece of earth-moving equipment, restraining him from dealing with it or utilising it.
After many years, that injunction was dissolved when the proceedings were discontinued. The applicant sought to persuade the Supreme Court of South Australia that he was entitled to damages, pursuant to the undertaking given to that Court. He was unsuccessful. By way of consent judgment the sum of $500 000.00 costs was awarded against him.
At a stage after the original proceedings had been discontinued, and after the proceedings seeking damages had been commenced, certain events took place within Citicorp Australia Limited, as a result of which the ownership of that company changed and it is alleged the right title and interest in the piece of earth-moving equipment was transferred. It is alleged by the applicant that this information was not provided to him and the failure to provide that information forms the basis of certain proceedings which he has now commenced in the Federal Court of Australia. Those proceedings form the basis of his claim to have a cross-claim, cross-demand or set-off equal to or exceeding the amount of the judgment debt so that he is entitled to have the bankruptcy notice set aside pursuant to s.40(1)(g) of the Bankruptcy Act 1966.
At the time the matter was before Registrar Christie, the proceeding that is now in the Federal Court was not on foot. What Registrar Christie was being told was that there was a proceeding contemplated in the Supreme Court of South Australia. She had not completed the hearing of the case and the giving of a decision when the proceeding in the Federal Court was commenced. When this was discovered, she called the parties back to a hearing and ordered that the matter be referred to this court.
I have now been informed that the Federal Court proceeding has been issued, it has been assigned into the docket of Finn J and that an application is being made by the respondents at that proceeding, who are the respondents to these proceedings also, to have that proceeding struck out as an abuse of the process of the Court. I am informed that such a hearing will take place in late January. I am aware, from the excellent written submissions provided to me by Mr Ericson on behalf of the respondents, that one of the many issues which I would be required to try would be the nature of those proceedings in the Federal Court and whether or not they are an abuse of process.
Section 39 of the Federal Magistrates Act 1999 provides that if a proceeding is pending in this court, it may, by order, transfer the proceeding into the Federal Court, either on the application of a party or on its own initiative. I am obliged, under s.39(3) to consider the Federal Magistrates Court Rules 2001 made for the purposes of s.40(2) of the Federal Magistrates Act and whether proceedings in respect of an associated matter are pending in the Federal Court, as well as the interests of the administration of justice. The relevant rule of the Federal Magistrates Court Rules is Rule 8.02.
Rule 8.02(4) provides certain matters which I shall also take into account. One of those things that I must take into account is whether, if the proceedings are transferred, it is likely that they will be heard and determined at least cost and more convenience than if the matter is not transferred, whether they will be heard earlier in this court and the wishes of the parties. I am of the view that another important issue for me to consider is whether or not it is appropriate that a lower court should be asked to determine, as part of its decision-making process, an issue of whether or not proceedings in a higher court are an abuse of the processes of that court, in circumstances where that very question is being asked in the higher court itself.
I am firmly of the view that this court should not entertain such an application. I am satisfied given the fact of the forthcoming Christmas holidays and the early return date of the Notice of Motion that due expedition will be given to the transferred proceedings. I am, of course, satisfied that the Federal Court has the jurisdiction to hear and will properly hear and determine all the matters in issue between these parties, of which the existence of the Federal Court proceedings is an important part.
For these reasons, and although noting and understanding the objections put by Mr Ericson on behalf of the respondents, I am minded to make the transfer that I foreshadowed to the parties at the commencement of the hearing. The points raised in the parties' written submissions will, to my mind, not really need to be much changed by the fact that the application is to be heard by his Honour rather than by myself and I think it is therefore a convenient and appropriate step to take. I therefore order that these proceedings be transferred into the Federal Court of Australia, pursuant to ss.39 and 40 of the Federal Magistrates Act and Part 8 of the Federal Magistrates Court Rules. The cost of the proceedings in this Court shall be reserved to the Federal Court.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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