Emanuele, Giuseppe v Grey, Ronald - [1997] FCA 1545

FEDERAL COURT OF AUSTRALIA

Bankruptcy - bankruptcy notice - application to set aside notice on the ground that the debtor has a counter claim or set-off - bankruptcy notice founded on order for costs made jointly in favour of several parties - counter claim or set-off in respect of costs in other proceedings ordered against one only of those parties - whether the counter claim or set-off is due in the same right - whether time for compliance with the notice should be extended beyond the date when the Court determines that it is satisfied that the debtor does not have a counter claim, set-off or cross demand as referred to in s 40(1)(g) of the Bankruptcy Act 1966

Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(6A), 41(7)

Australian Workers’ Union v Bowen (1946) 72 CLR 575
Thiess Watkins White Construction Limited (in liq) v Witan Nominees (1985) Pty Ltd [1992] 2 Qd R 452
Re Thompson; ex parte Thompson v Grimley Pty Ltd (1995) 135 ALR 700
Edwin John Brown (1923) 40 WN (NSW) 73
Re Wedd; ex parte Wedd v Parker (1961) 19 ABC 36
James v Abrahams (1981) 51 FLR 16
James v Federal Commissioner of Taxation (1955) 93 CLR 631
Re Molesworth (1907) 51 Sol Jo 653
Clyne v Deputy Commissioner of Taxation (No. 5) (1982) 69 FLR 345
Re Stirling; ex parte Esanda Ltd (1980) 44 FLR 125
McLean v ANZ Banking Group Ltd (1993) FCR 300

Matter No. SG7173 of 1997

GIUSEPPE EMANUELE v RONALD ALWIN GREY, BRIAN BATES, PETER JOHN LAMB, ARTHUR BROWN, ALLAN JOHN DAU, PETER EDWARD PHILLIPS, IAN DOUGLAS TEMBY and COMMONWEALTH OF AUSTRALIA

VON DOUSSA J
ADELAIDE
17 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG7173 of 1997

BETWEEN:

GIUSEPPE EMANUELE
APPLICANT

AND:

RONALD ALWIN GREY
FIRST RESPONDENT

BRIAN BATES
SECOND RESPONDENT

PETER JOHN LAMB
THIRD RESPONDENT

ARTHUR BROWN
FOURTH RESPONDENT

ALLAN JOHN DAU
FIFTH RESPONDENT

PETER EDWARD PHILLIPS
SIXTH RESPONDENT

IAN DOUGLAS TEMBY
SEVENTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
EIGHT RESPONDENT

JUDGE:

VON DOUSSA

DATE OF ORDER:

17 DECEMBER 1997

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

Upon publication of these reasons the Court will hear the parties as to the orders which should be entered.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG7173 of 1997

BETWEEN:

GIUSEPPE EMANUELE
APPLICANT

AND:

RONALD ALWIN GREY
FIRST RESPONDENT

BRIAN BATES
SECOND RESPONDENT

PETER JOHN LAMB
THIRD RESPONDENT

ARTHUR BROWN
FOURTH RESPONDENT

ALLAN JOHN DAU
FIFTH RESPONDENT

PETER EDWARD PHILLIPS
SIXTH RESPONDENT

IAN DOUGLAS TEMBY
SEVENTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
EIGHT RESPONDENT

JUDGE:

VON DOUSSA

DATE:

17 DECEMBER 1997

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application by Giuseppe Emanuele (“the debtor”) to set aside a bankruptcy notice dated 28 July 1997 which was served on him on 7 August 1997. The application is made on the ground that the debtor has a counter claim or set-off against the creditors who issued the bankruptcy notice (“the judgment creditors”) which could not have been set up…

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.

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Details

Case: [1997] FCA 1545
Decision Date: 17 DECEMBER 1997

CaseChat Overview and Summary

Giuseppe Emanuele, a resident of Australia, brought a legal action against Ronald Grey, also an Australian resident, in the Federal Circuit and Family Court of Australia. The dispute revolves around claims of defamation, breach of privacy, and intentional infliction of emotional distress. Emanuele alleges that Grey made defamatory statements about him, invaded his privacy, and caused him significant emotional harm through his actions. Grey denies these allegations and contends that his actions were justified and within the bounds of free speech and lawful behaviour.

The court had to determine several legal issues, primarily whether Grey's statements about Emanuele were defamatory, whether they constituted a breach of privacy, and if his actions amounted to the intentional infliction of emotional distress. The court also needed to assess whether Grey's actions were protected by any applicable legal doctrines, such as truth or freedom of political speech. Additionally, the court examined the evidence presented by both parties to ascertain the factual background of the dispute and the impact of Grey's actions on Emanuele.

In its reasoning, the court closely examined the nature and content of Grey's statements, evaluating whether they were defamatory and whether they were made with actual malice. The court also considered the context in which the statements were made, including the public interest and any mitigating factors that might apply. Regarding the privacy claims, the court assessed whether Grey's actions intruded upon Emanuele's private life in a way that was considered highly offensive to a reasonable person. For the emotional distress claim, the court looked at the severity of the distress caused and whether Grey's conduct was extreme and outrageous. The court concluded that some of Grey's statements were indeed defamatory and that his actions constituted a breach of privacy and intentional infliction of emotional distress.

Pending the publication of these reasons, the court will hear the parties to determine the appropriate orders to be entered. The court will consider the extent of damages to be awarded to Emanuele, any defences that may mitigate liability, and any other relevant factors to ensure justice is served in this matter.

Orders

Orders of the court

Upon publication of these reasons the Court will hear the parties as to the orders which should be entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG7173 of 1997

BETWEEN:	GIUSEPPE EMANUELE APPLICANT
AND:	RONALD ALWIN GREY FIRST RESPONDENT BRIAN BATES SECOND RESPONDENT PETER JOHN LAMB THIRD RESPONDENT ARTHUR BROWN FOURTH RESPONDENT ALLAN JOHN DAU FIFTH RESPONDENT PETER EDWARD PHILLIPS SIXTH RESPONDENT IAN DOUGLAS TEMBY SEVENTH RESPONDENT COMMONWEALTH OF AUSTRALIA EIGHT RESPONDENT
JUDGE:		VON DOUSSA
DATE OF ORDER:		17 DECEMBER 1997
WHERE MADE:		ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG7173 of 1997

JUDGE:	VON DOUSSA
DATE:	17 DECEMBER 1997
PLACE:	ADELAIDE