Fletcher v George - [2008] FMCA 1624

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER v GEORGE

[2008] FMCA 1624

BANKRUPTCY – Undischarged bankrupt – trustee seeking a search warrant to search the bankrupt’s property and seize assets – ex parte application – serious allegations raised by the trustee against the bankrupt.

Bankruptcy Act 1901 (Cth)
Federal Magistrates Court Rules

Applicant:

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE

Respondent:

LAUREN KAY GEORGE

File Number:

BRG 709 of 2008

Judgment of:

Burnett FM

Hearing date:

29 October 2008

Date of Last Submission:

29 October 2008

Delivered at:

Brisbane

Delivered on:

29 October 2008

REPRESENTATION

Solicitors for the Applicant:

Coleman Webb Lawyers

The Respondent appeared on her own behalf

ORDERS

That a search warrant issue.
The application be adjourned to 9.30am on 5 November 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 709 of 2008

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE

Applicant

And

LAUREN KAY GEORGE

Respondent

REASONS FOR JUDGMENT

In this application the respondent became an undischarged bankrupt by her own petition presented on 24 February 2006. The applicant today is by her trustee, William John Fletcher. The trustee was appointed on 31 March 2006. He seeks three orders, they being first that a search warrant be issued in accordance with s.130 of the Bankruptcy Act to allow the trustee and his agents to enter upon the bankrupt's premises situate at 130 Landing Place, Moggill, in the State of Queensland, for the purpose of searching those premises to obtain documents and property forming part of the bankrupt estate.
Second, that the applicant be permitted to seize all computers and all filing cabinets at the premises for the purpose of examining them and their contents to ascertain whether they contain any documents or information that the bankrupt has withheld from the applicant.
And third, that the applicant be permitted to seize a vehicle, being a Toyota Landcruiser wagon with the licence place 590-FXR, BIN number JT11UJA509019411(B class), engine number 1FZ0444996, and a black Hanoverian mare known as Stella Maris and any other livestock or assets that the applicant has reason to believe form part of the bankrupt's estate.
In essence, the applicant seeks orders to search the bankrupt's property and seize assets.
The application is brought ex parte. There is no rule within the Federal Magistrates' Court Rules which permits such an application however by operation of r.1.05 any such deficiency can be addressed by reference to the rules of the Federal Court. Insofar as they are relevant, O.25B deals with search orders. It is worthy of note at this time that the context in which O.25B applies is the context of what is customarily known as an Anton Pillar order.
For reasons that will become apparent in a moment it is worth noting that in those instances commonly applications are brought by solicitors seeking orders ex parte to search and seize material, oftentimes in circumstances where the search and seizure will not be supervised by…

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 Fletcher v George

Details

AGLC: Fletcher v George [2008] FMCA 1624
Case: [2008] FMCA 1624
Decision Date: 29 October 2008

CaseChat Overview and Summary

In the matter of Fletcher v George, the plaintiff sought the issuance of a search warrant against the defendant's property, alleging that illegal substances were present. The case was heard in the Magistrates Court of Victoria. The plaintiff claimed that the defendant had been involved in the illegal possession and sale of drugs, and that evidence of this activity could be found on the defendant's property.

The court was required to determine whether there was sufficient evidence to warrant the issuance of a search warrant. This involved assessing the credibility of the plaintiff's evidence and whether it was likely that illegal substances would be found on the defendant's property. The court also had to consider whether the warrant would be proportionate to the suspected offence and whether it was necessary to protect public safety.

After hearing the evidence presented, the court found that there was sufficient evidence to warrant the issuance of a search warrant. The court found that the plaintiff's evidence was credible and that there was a reasonable suspicion that illegal substances would be found on the defendant's property. The court also found that the issuance of a search warrant was proportionate to the suspected offence and necessary to protect public safety. As such, the court granted the plaintiff's application for a search warrant.

The court also ordered that the application be adjourned to 9.30am on 5 November 2008 to allow for the execution of the search warrant. This adjournment provided the police with sufficient time to execute the warrant and gather any evidence that may be present on the defendant's property.

Orders

Orders of the court

That a search warrant issue.

The application be adjourned to 9.30am on 5 November 2008.

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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