Fiore v Roufeil - [2019] FCA 1774

FEDERAL COURT OF AUSTRALIA
Fiore v Roufeil [2019] FCA 1774

File number: WAD 535 of 2019

Judge: COLVIN J

Date of judgment: 29 October 2019

Catchwords:
BANKRUPTCY - application for interim relief restraining the production of documents pursuant to a notice under s 77A of the Bankruptcy Act 1966 (Cth) - where it is claimed that the documents the subject of the notice were privileged - where it is claimed that the notice is an abuse of process - where grounds relied upon to set aside the notice lacked merit - where balance of convenience against the grant of relief - application refused

PRACTICE AND PROCEDURE - application for deemed service under r 10.23 of the Federal Court Rules 2011 (Cth) - where steps were taken to notify lawyers on the record for the respondents in related proceedings - where those lawyers provided a substantive response - where not sensible to require personal service in the circumstances - orders made for deemed service

Legislation: Bankruptcy Act 1966 (Cth) ss 19AA, 30, 77A

Cases cited:
Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500

Frigger v Trenfield [2019] FCA 1746

Re Excel Finance Corporation Ltd (Receiver and Manager Appointed), Worthley v England (1994) 52 FCR 69

Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 687

Roufeil v Fiore (No 2), in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 916

Roufeil v Fiore (No 3), in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 1231

Date of hearing: 28-29 October 2019

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 29

Counsel for the Applicants: Mr MGS Crowley

Solicitor for the Applicants: Diana Velevski

Counsel for the Respondents: The Respondents did not appear

ORDERS

WAD 535 of 2019

BETWEEN:
PETER ANDREW FIORE

First Applicant

KATHRYN ERICA JANE MCKELT

Second Applicant

AND:
MARK DAMIAN ROUFEIL

First Respondent

SB LAW PTY LTD

Second Respondent

JUDGE:

COLVIN J

DATE OF ORDER:

29 OCTOBER 2019

THE COURT ORDERS THAT:
1.Pursuant to r 10.23 of the Federal Court Rules 2011 (Cth), the application dated 25 October 2019 and the accompanying affidavit, both filed 28 October 2019, is deemed to have been served on the first and second respondents on 28 October 2019.
2.The application is refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
COLVIN J:

Mr Peter Fiore is a bankrupt. His trustee is Mr Mark Roufeil. On 4 October 2019, Mr Roufeil issued a notice under s 77A of the Bankruptcy Act 1966 (Cth) addressed to Stephen Browne Personal Injury Lawyers, Attention: Mr Stephen Browne (Notice). I will refer to the law firm as described in the Notice as the Lawyers.
The Notice sought production of the following documents:
•A copy of payment receipts for all payments made by your…

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.

Continue reading Fiore v Roufeil

Details

AGLC: Fiore v Roufeil [2019] FCA 1774
Case: [2019] FCA 1774
Decision Date: 29 October 2019

CaseChat Overview and Summary

The case of Fiore v Roufeil involved an application for interim relief in the Federal Court. The applicant sought to restrain the production of documents pursuant to a notice under section 77A of the Bankruptcy Act 1966 (Cth). The dispute centred on whether the documents in question were privileged and if the notice was an abuse of process. The applicant also argued that the grounds to set aside the notice lacked merit and that the balance of convenience did not favour granting the relief.

The court had to determine if the applicant had established a serious question to be tried regarding the privilege of the documents and whether the notice was an abuse of process. Additionally, the court needed to assess the merit of the grounds for setting aside the notice and consider the balance of convenience. After reviewing the evidence, the court found that the applicant had not established the necessary criteria for relief. The court noted that the privilege claimed over the documents was not compelling, and the notice did not constitute an abuse of process. Consequently, the balance of convenience did not favour the applicant.

The court refused the application for interim relief and granted the application for deemed service. The relief application was denied because the applicant failed to demonstrate a serious question to be tried or that the notice was an abuse of process. The court also ruled that the balance of convenience did not support the applicant's position. The deemed service order was made under rule 10.23 of the Federal Court Rules 2011 (Cth), as the respondents' lawyers had already provided a substantive response.

Orders

Orders of the court

1. Pursuant to r 10.23 of the Federal Court Rules 2011 (Cth), the application dated 25 October 2019 and the accompanying affidavit, both filed 28 October 2019, is deemed to have been served on the first and second respondents on 28 October 2019.

2. The application is refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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File number:	WAD 535 of 2019
Judge:	COLVIN J
Date of judgment:	29 October 2019
Catchwords:	BANKRUPTCY - application for interim relief restraining the production of documents pursuant to a notice under s 77A of the Bankruptcy Act 1966 (Cth) - where it is claimed that the documents the subject of the notice were privileged - where it is claimed that the notice is an abuse of process - where grounds relied upon to set aside the notice lacked merit - where balance of convenience against the grant of relief - application refused PRACTICE AND PROCEDURE - application for deemed service under r 10.23 of the Federal Court Rules 2011 (Cth) - where steps were taken to notify lawyers on the record for the respondents in related proceedings - where those lawyers provided a substantive response - where not sensible to require personal service in the circumstances - orders made for deemed service
Legislation:	Bankruptcy Act 1966 (Cth) ss 19AA, 30, 77A
Cases cited:	Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 Frigger v Trenfield [2019] FCA 1746 Re Excel Finance Corporation Ltd (Receiver and Manager Appointed), Worthley v England (1994) 52 FCR 69 Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 687 Roufeil v Fiore (No 2), in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 916 Roufeil v Fiore (No 3), in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 1231
Date of hearing:	28-29 October 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Applicants:	Mr MGS Crowley
Solicitor for the Applicants:	Diana Velevski
Counsel for the Respondents:	The Respondents did not appear