FEDERAL COURT OF AUSTRALIA
Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313
File number: WAD 549 of 2017 Judge: BESANKO J Date of judgment: 14 March 2018 Catchwords: BANKRUPTCY AND INSOLVENCY – whether a sequestration order should not have been made against the applicant’s estate – whether an order ought to be made setting aside or annulling a sequestration order against the applicant’s estate
CONSTITUTIONAL LAW – whether the applicant’s place as a Senator for the State of Western Australia should not have been declared vacant – where the Court does not have jurisdiction to make findings or orders in relation to proceedings in the Senate
PRIVILEGE – whether matters are justiciable having regard to s 16 of the Parliamentary Privileges Act 1987 (Cth)
PRACTICE AND PROCEDURE – whether the applicant’s application ought to be dismissed pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) and s 31A of the Federal Court of Australia Act 1976 (Cth) – whether the applicant’s application ought to be permanently stayed – where there are no reasonable prospects of success
PRACTICE AND PROCEDURE – where no power to order that an appeal be heard by the Supreme Court of Western Australia – where no power to refer any matter to the Senate or to order that a Senator stand aside – where no power to make orders either as to subpoenas or costs in the reference proceeding – where no basis for orders sought
COSTS –the first respondent’s costs of the application dated 1 November 2017, including the costs of the interlocutory application dated 27 November 2017 to be paid in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth)
Legislation: Constitution ss 44, 47
Bankruptcy Act 1966 (Cth) ss 7, 27, 37, 47, 54, 109, 153B
Commonwealth Electoral Act 1918 (Cth) s 376
Federal Court of Australia Act 1976 (Cth) s 31A
Parliamentary Privileges Act 1987 (Cth) s 16
Federal Court Rules 2011 (Cth) rr 26.01, 39.05
Federal Court (Bankruptcy) Rules 2016 (Cth) rr 4.05, 4.06, 7.02
Cases cited: Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578
Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307; (2007) 5 ABC(NS) 122
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632
Horvath v Pattison [1999] FCA 924
Leeth v Commonwealth of Australia (1992) 174 CLR 455
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 345 ALR 534
Re Culleton [2016] FCA 1193
Re Culleton [2017] HCA 3; (2017) 91 ALJR 302
Re Culleton [No 2] [2017] HCA 4; (2017) 91 ALJR 311
Rigg v Baker (2006) 155 FCR 531
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332
Date of hearing: 19 December 2017 Registry:
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- Case
- [2018] FCA 313
- Decision Date
CaseChat Overview and Summary
The court was required to decide several key legal issues. These included whether the sequestration order should not have been made against the applicant’s estate, whether the order should be set aside or annulled, and whether the applicant’s position as a Senator should be declared vacant. The court also needed to determine if it had jurisdiction to make findings or orders in relation to proceedings in the Senate, whether the matters were justiciable under the Parliamentary Privileges Act 1987 (Cth), and if the application should be dismissed or permanently stayed due to lack of reasonable prospects of success.
The court concluded that the sequestration order was validly made and that there were no grounds to set it aside or annul it. It held that it did not have the jurisdiction to make findings or orders regarding proceedings in the Senate or to declare the applicant's position as a Senator vacant. The court further found that the matters were not justiciable due to parliamentary privilege, and that the application was an abuse of process with no reasonable prospects of success. Consequently, the court dismissed the application and ordered that the costs of the application be paid by the applicant's estate.
Orders
Orders of the court
1. There be judgment for the respondents against the applicant.
2. The first respondent’s costs of the application dated 1 November 2017, including the costs of the interlocutory application dated 27 November 2017, be paid from the estate of the applicant bankrupt in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).
3. The parties be heard as to the second respondent’s costs of the application dated 1 November 2017, including the costs of the interlocutory application dated 27 November 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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