Dubs v Rahman

Case [2012] FMCA 664

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUBS v RAHMAN [2012] FMCA 664

PRACTICE AND PROCEDURE – Application to transfer matter to Federal Court or High Court on grounds of no jurisdiction – whether court has jurisdiction – where application to disqualify on grounds of apprehended bias – where orders made for submissions to be clarified – whether to disqualify – where applicant overseas – whether to waive complete compliance with R.4.06 of Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).

CONSTITUTIONAL LAW – Judicial power – whether Federal Magistrates Court has power to make findings in relation to constitutional matters – whether issuance of Bankruptcy Notice a judicial act – whether Official receiver has power to issue Bankruptcy Notice – where Bankruptcy notice based on judgment of state court – whether sequestration order may be made by a federal court.

BANKRUPTCY – Creditors petition – whether change of solicitors’ firm name affects proceedings – whether Bankruptcy Notice served – where application to appeal judgments upon which Bankruptcy Notice founded – where judgments result of costs assessment process – whether respondent has an arguable case – whether to adjourn – whether to make sequestration order.
Bankruptcy Act 1966 (Cth) ss.41, 52
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
Federal Magistrates Act 1999 (Cth)
Judiciary Act1903 (Cth) ss.23, 72, 78
Commonwealth of Australia Constitution Act
Legal Profession Act 2004 (NSW)
Capital Finance Australia Ltd v Vellar [2012] FMCA 285
Australian Litigation Fund Pty Ltd v Mearns (No.3) [2005] FMCA 1870
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Re Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Applicant: ROSALIND V DUBS
Respondent: MOHAMMAD TABIBAR RAHMAN
File Number: SYG 922 of 2012
Judgment of: Raphael FM
Hearing date: 19 July 2012
Date of Last Submission: 19 July 2012
Delivered at: Sydney
Delivered on: 19 July 2012

REPRESENTATION

Solicitors for the Applicant: Norton Rose
For the Respondent: In person

ORDERS

  1. Compliance with R.4.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 be effected by the filing of an affidavit of debt dated 27 June 2012.

  2. Notice of objection dismissed.

  3. A sequestration order be made against the estate of Mohammad Tabibar Rahman.

  4. The applicant’s costs be fixed in the amount of $3,639.50 and paid from the estate of the Respondent in accordance with the Act.

  5. Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

  6. All proceedings under this order be stayed for a period of 21 days.

THE COURT NOTES:

  1. That the date of the act of bankruptcy is 10 April 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 922 of 2012

ROSALIND V DUBS

Applicant

And

MOHAMMAD TABIBAR RAHMAN

Respondent

REASONS FOR JUDGMENT

  1. On 25 June 2012 this matter came before me in the Bankruptcy Duty List.  The applicant sought a sequestration order against the estate of respondent.  The respondent came to court…

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AGLC
Dubs v Rahman [2012] FMCA 664
Case
[2012] FMCA 664
Decision Date

CaseChat Overview and Summary

The case of Dubs v Rahman involved the applicant, Dubs, making an application to the Federal Magistrates Court for the respondent, Rahman, to be declared bankrupt. The dispute centered around the jurisdiction of the Federal Magistrates Court to make such a declaration, particularly in light of the Bankruptcy Notice issued by the Official Receiver based on a state court judgment. Additionally, the case questioned whether the Federal Magistrates Court had the power to make findings in relation to constitutional matters and if the issuance of a Bankruptcy Notice constituted a judicial act.

The court had to determine several legal issues, including whether the Federal Magistrates Court had jurisdiction to hear the matter, particularly in light of the respondent’s application to disqualify the hearing officer on grounds of apprehended bias. It also needed to decide if the Bankruptcy Notice was validly issued, and if the Federal Magistrates Court could make a sequestration order based on a state court judgment. Furthermore, the court considered whether the change of solicitors' firm name affected the proceedings and if the respondent had an arguable case for an appeal against the judgments upon which the Bankruptcy Notice was founded.

The court found that the Federal Magistrates Court did have jurisdiction to hear the matter, even though the applicant was overseas. It determined that the court could waive complete compliance with Rule 4.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) to allow the matter to proceed. The court held that the Bankruptcy Notice was validly issued, and the Federal Magistrates Court had the power to make a sequestration order based on the state court judgment. The change of solicitors' firm name did not affect the proceedings, and the respondent had an arguable case for appeal. The court also found that there was no apprehended bias in the hearing officer.

The final order made by the court was to direct the applicant to clarify the submissions and to adjourn the matter to allow the respondent to file and serve an appeal against the underlying judgments.

Orders

Orders of the court

1.

Compliance with R.4.06 of the

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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