Davis v Insolvency and Trustee Service Australia (No 2)

[2009] FCA 589

FEDERAL COURT OF AUSTRALIA

Davis v Insolvency and Trustee Service Australia (No 2) [2009] FCA 589

Federal Court of Australia Act 1976 (Cth), s 31A

Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562 related

PETER LEWIS DAVIS v INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA, CHILD SUPPORT REGISTRAR, MAGISTRATES OF NEW SOUTH WALES and DC BEALE, MJ HORTON AND AJ MCMINN

NSD 52 of 2009

FOSTER J
29 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 52 of 2009

BETWEEN:

PETER LEWIS DAVIS
Applicant

AND:

INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
First Respondent

CHILD SUPPORT REGISTRAR
Second Respondent

MAGISTRATES OF NEW SOUTH WALES
Third Respondent

DC BEALE, MJ HORTON AND AJ MCMINN
Fourth Respondents

JUDGE:	FOSTER J
DATE OF ORDER:	29 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application by the applicant that Foster J disqualify himself from hearing the Motion that is fixed before him on 29 May 2009 be refused.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 52 of 2009

BETWEEN:

PETER LEWIS DAVIS
Applicant

AND:

INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
First Respondent

CHILD SUPPORT REGISTRAR
Second Respondent

MAGISTRATES OF NEW SOUTH WALES
Third Respondent

DC BEALE, MJ HORTON AND AJ MCMINN
Fourth Respondents

JUDGE:	FOSTER J
DATE:	29 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this matter was called on at 10.15 am this morning, Counsel for the applicant made an application that I should disqualify myself from hearing the Motion that is fixed before me today on the basis that either I am actually biased against the applicant or that there is a reasonable apprehension of bias on my part against the applicant. Counsel did not make clear which of these alternative allegations was being made. I had the impression that both were being asserted. By Motion fixed before me today, the second respondent seeks an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) that the proceedings be dismissed.

2. The basis of the disqualification application is that, in light of a judgment which I delivered at 9.45 am this morning (Davis v Insolvency and Trustee Service Australia (No 1) [2009] FCA 562), I should not proceed to hear the Motion because I had come to final views in respect of matters which inevitably arise for decision on that Motion. In support of that submission, Counsel for the applicant drew my attention to several passages in this morning’s judgment and submitted that, in those passages, I had travelled beyond what was required by the relevant principles and made conclusive findings of fact.

3. At [48] and [49] of that judgment, I set out what I considered to be the relevant principles governing the grant of interlocutory injunctive relief in aid of private rights.  Counsel for the applicant has repeatedly submitted that all that I was obliged to do was ascertain whether there was a triable issue in respect of the claims being advanced in support of the relief sought on 24 April 2009.  I disagree.  I made clear at [48] and [49] of the judgment delivered earlier this morning that the principles which are in play here are those set out in those paragraphs.  What is required is more than a triable issue. 

4. In my view, in order to determine the application for interlocutory relief made by the applicant on 24 April 2009, it was necessary for me to consider whether there was a serious question to be tried in respect of the claims which were said to support that application and also to address, if necessary, the balance of convenience and justice.  That is what I did.

5. The substance of what has been put to me this morning in support of the disqualification application is that I have made definitive findings on matters which are up for consideration in the Motion which is to be called on before me shortly.  I do not agree.  As I have already mentioned, in the paragraphs to which my attention has been drawn, I was addressing whether or not there was a serious question to be tried.  That was made clear by the heading to [61] and by the way in which I expressed the conclusion which I reached (at [73]) on the claim for an interlocutory injunction in respect of the s 72A Notice, that is to say, that the applicant had failed to establish that there was a serious question to be tried in relation to the relief sought.

6. Given the types of arguments that were advanced in respect of the s 72A Notice which was the subject of the interlocutory application determined by this morning’s judgment, in my opinion, I was required to look at that Notice and come to a view about those arguments for the purpose of considering whether or not there was any serious question to be tried.  I do not think that being required to undertake that exercise in the context in

   
   

   which I did, precludes me from hearing the present application.  For those reasons I decline to disqualify myself. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        1 June 2009

Counsel for the Applicant:	Mr PE King
Solicitor for the Applicant:	McKells Solicitors
The First Respondent did not appear
Solicitor for the Second Respondent:	Mr N Gouliaditis of Australian Government Solicitor
The Third Respondent did not appear
The Fourth Respondent did not appear

Date of Hearing:	29 May 2009
Date of Judgment:	29 May 2009