Genovese v BGC Construction Pty Ltd
[2006] FMCA 1507
•19 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENOVESE v BGC CONSTRUCTION PTY LTD | [2006] FMCA 1507 |
| PRACTICE AND PROCEDURE – BANKRUPTCY – Application for transfer to Federal Court – factors to be considered – question of general importance – costs and convenience of hearing and determination – interests of administration of justice – application refused. |
| Federal Magistrates Act 1999 (Cth), ss.39(1),(2),(3) and (6) Federal Magistrates Court Rules 2001 (Cth), rr.1.03(1) and 8.02(2) and (4)(a)-(d) Federal Court Act 1976 (Cth), ss.24(1)(a) and (d), 25(1A) |
| Baumer v R (1988) 166 CLR 51 MZXJR v The Minister for Immigration [2006] FMCA 652 Noble v Cotton (1830) Dowling’s Proceedings of the Supreme Court, Vol 34 |
| Applicant: | HERCOLE PIETRO GENOVESE |
| Respondent: | BGC CONSTRUCTION PTY LTD |
| File Number: | PEG121 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 18 and 19 September 2006 |
| Date of Last Submission: | 19 September 2006 |
| Delivered at: | Perth |
| Delivered on: | 19 September 2006 |
REPRESENTATION
| Applicant: | Mr Genovese appeared for himself |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Hotchkin Hanly |
ORDERS
Application dismissed.
Costs in the sum of $705.00 payable by the applicant to the respondent with 42 days to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG121 of 2006
| HERCOLE PIETRO GENOVESE |
Applicant
And
| BGC CONSTRUCTION PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript and further amended)
This is an application made by the applicant on 14 September 2006 for transfer to the Federal Court of the proceedings in this matter.
The matter was listed before me yesterday for mention and in conjunction with a directions hearing in this matter. The directions hearing related to applications by the respondent concerning submissions, cross-examination and the admissibility of affidavit evidence.
The parties agreed that the application for transfer to the Federal Court ought be dealt with prior to dealing with those other interlocutory matters. I heard argument on the application following an adjournment which I granted to allow the applicant more time than he indicated he needed to prepare such submissions as were necessary (given his self-explanatory affidavit in support of the application).
The substantive application in this matter was filed on 12 May 2006 together with an accompanying affidavit. It is an application to set aside a bankruptcy notice (No WA82-2006). The application contained details of claim. They sought that the relevant bankruptcy notice be struck out as an abuse of process, contend that that bankruptcy notice is based on an invalid judgment and orders, and indicate that the applicant has instituted proceedings to set aside the judgment debts or orders in respect of which the bankruptcy notice has been issued.
On 17 July 2006 the applicant filed an amended bankruptcy notice, claiming that:
1.1The bankruptcy notice is based on an invalid judgment and orders;
1.2The applicant has instituted proceedings to set aside the judgment debt or orders in respect of which this bankruptcy notice has been issued;
1.3The applicant submits the bankruptcy notice is based on a judgment obtained by fraud and invites the Court to go behind the judgment of the Local Court No PE 18423 of 2001;
1.4The applicant submits the bankruptcy notice abuses and confronts the doctrine of respondent judicata;
1.5The applicant submits the bankruptcy notice abuses and confronts several doctrines of estoppel;
1.6The applicant submits the bankruptcy notice abuses and confronts the doctrine of approbation and reprobation;
1.7The applicant submits the bankruptcy notice abuses and confronts the doctrine of privity of contract;
1.8The applicant submits the bankruptcy notice is based on illegality.
The present bankruptcy notice stands alone. It is not the subject of other proceedings involving the applicant (a fact which he confirmed yesterday when asked by me), but I do note there are apparently proceedings pending seeking to set aside the judgment debt orders.
It also appears on the face of the papers before the Court that there is considerable referral back to prior proceedings. That is hardly surprising given the history of litigation between these parties and the respondent’s predecessor prior to this bankruptcy notice: see for example Genovese v Homestyle Pty Ltd (2004) 187 FLR 13, [2004] FMCA 673; Genovese v BGC Construction Pty Ltd [2004] FMCA 850; Genovese v BGC Construction Pty Ltd (2005) 215 ALR 440, (2005) 3 ABC(NS) 163, [2005] FCA 215; Genovese v BGC Construction Pty Ltd [2006] FCA 105. That said, the affidavits filed by the applicant make claims not unusual in bankruptcy proceedings in this Court.
This is not the first application by the applicant for transfer of these proceedings to the Federal Court. Smith FM in Genovese v BGC Construction Pty Ltd (2006) FMCA 919 dealt with the application then made for transfer of these proceedings to the Federal Court. I quote from par [21]:
The applicant requested that his application should again be transferred to the Federal Court. The respondent opposed a transfer. On my own present consideration of the material I am not persuaded that the application raises any issue or is of such a nature that of itself justifies a transfer. However, there may be logistic or other local reasons which support a transfer and I shall therefore refer this issue to the list coordinator. The parties did not seek any further opportunity to make submissions on this issue and I indicated to them that they would be informed of the outcome by the court.
As I understand it, the informing of that outcome was constituted by advice that the matter had been listed, for hearing on 28 and
29 September 2006. It might be argued, as the respondent's counsel briefly adverted to yesterday, that the matter has in fact already been determined by this Court by reason of the listing for hearing. I do not find it necessary to deal with that particular argument as I have heard the current application and propose to deal with it on its merits.
The making of an order to transfer proceedings from this Court to the Federal Court is discretionary: s.39(1) and (2) Federal Magistrates Act 1999 (Cth). The order is not able to be appealed: s.39(6) Federal Magistrates Act. There are, however, factors which it is mandatory for the Court to take into account under s.39(3)(a)-(d) of the Federal Magistrates Act, which provide as follows:
(a)any Rules of Court made for the purposes of subsection 40(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
Rule 8.02(4)(a)-(f) of the Federal Magistrates Court Rules, 2001 (Cth) provides for other factors to be considered as follows:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings is not transferred;
(c)whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties;
(f)for family law or child support proceedings, whether the hearing of the proceeding is likely to take longer than 2 days.
Pending proceedings in an associated matter in the Federal Court
The applicant advised the Court that there are no pending proceedings in any associated matter in the Federal Court.
Sufficiency of resources of the Federal Magistrates Court to hear and determine the proceeding
The applicant did not take issue with the fact that this Court has sufficient resources to hear and determine this matter over the two days, 28 and 29 September 2006, on which it has been listed.
Question of general importance
This raises the question of what constitutes a question of general importance.
A question of general importance might arise where:
(a)the issue to be determined is of general importance to the public at large or a significant class of persons or type or series of cases: MZXJR v The Minister for Immigration [2006] FMCA 652 at par [38] per McInnis FM;
(b)the case relates to the revenues of a Commonwealth or State: Noble v Cotton in Dowling, Proceedings of the Supreme Court, Vol 34 1 at p.10 per Dowling and Stephen JJ (and in that case relating to revenues of the then colony of New South Wales);
(c)significant human rights issues are at stake such as in Karner v Austria (2003) ECHR 395, where the European Court of Human Rights had to deal with differential treatment of homosexuals in succession to tenants under Austrian law as involving a question of general importance not just for Austria but for other state parties to the relevant convention;
(d)an issue as to the proper construction of legislation arises: Baumer v R (1988) 166 CLR 51;
(e)some important or exceptional point of principle arises: Veen v R (1979) 143 CLR 458 at p.461 per Stephen J, p.468 per Mason J and pp.497-498 per Aickin J;
(f)the particular area of law or the case law concerning that area is, "an area of some complexity": Spencer & Rutherford v Horizon Holidays & Ors [2006] FMCA 386 at par [7] per Connolly FM, or is a “substantial commercial dispute which involves a number of complex issues”: Spencer & Rutherford at par [10] per Connolly FM.
Nothing in this matter strikes me as being a question of general importance or sufficient complexity to warrant transfer to the Federal Court. This particular bankruptcy notice, like some of the others before it in the bankruptcy battle between these parties (and the respondent’s predecessor), might be taking a twisted and turning path, but it is not complex, or sufficiently complex, to warrant its transfer to the Federal Court.
Nothing to which I have been taken or which the applicant has identified in this matter takes it outside of the everyday run of applications to set aside bankruptcy notices which are heard by this Court.
I note that the applicant has referred, at par 7 of his affidavit in support of the transfer application sworn on 14 September 2006 (“the transfer affidavit”), to a view expressed by Walters FM in transcript to support his contention that the matter is complex, thereby justifying transfer to the Federal Court. A copy of the relevant portion of the transcript is attached to the transfer affidavit. In relation thereto I note that:
a)the view was not expressed in relation to the current application to set aside bankruptcy notice WA82-2006, but an earlier bankruptcy notice; and
b)the view was expressly said to be “preliminary”.
I note that this is a separate and further application to set aside a further bankruptcy notice. As I have already indicated, it does not appear to me to be complex. The observations of Walters FM in relation to the earlier application are not relevant to the current application, but, if they are relevant, then I respectfully disagree with them.
Costs and convenience of hearing a determination
The applicant put no real argument on this point save to say that transfer to the Federal Court would save an appeal and enable the matter to be dealt with to finality by the Federal Court.
I do not accept that it would save an appeal. Matters transferred to the Federal Court would involve a right of appeal from a single judge to the Full Federal Court: s.24(1)(a) Federal Court Act 1976 (Cth).
There may be an appeal to the Federal Court from a bankruptcy decision of this Court: s.24(1)(d) Federal Court Act, 1976. Such an appeal must be heard by a Full Court of the Federal Court unless the Chief Justice of the Federal Court considers it appropriate for the appellate jurisdiction of the Court to be exercised by a single judge: s.24(1A) Federal Court Act. A decision made by a single judge of the Federal Court exercising the appellate jurisdiction of the Federal Court is generally not appealable to the Full Court, the two being true alternatives in the exercise of the appellate jurisdiction of the Federal Court: Reid v Nairn (1985) 60 ALR 419 at p.421 per Fox and Forster JJ; Thomas Borthwick & Sons (Pacific Holidays) Ltd & Ors vTrade Practices Commission (1988) 18 FCR 424 at pp.431-433 per Bowen CJ, Lockhart and Sheppard JJ, Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274 at pp.280-282 per French J, [2005] FCA 227 at pars [28]-[32] (and the cases therein cited). There would be no more finality on transfer to a single judge of the Federal Court than if this Court were to hear the matter. In any event, this argument cannot logically succeed.
As Lindsay FM observed in Benefit Strategies Group v Prider [2005] FMCA 1117 at pars [29] and [30] the argument put by the applicant might apply to each and every dispute that comes before the Federal Magistrates Court, and therefore some other distinguishing or differentiating circumstance or factor needs to be identified. None has been identified in this case by the applicant.
With the hearing of the matter so close, it having been listed for 28 and 29 September 2006 and having been so listed since early August, I do not consider that a transfer to the Federal Court will be less costly and more convenient to the parties, and the appeal and finality points apart, the contrary was not seriously contended before the Court yesterday.
Earlier hearing of proceedings
The matter is listed, as I have indicated, for hearing in this Court on
28 and 29 September 2006. As I understand the state of the Federal Court lists, there is no realistic prospect of this matter being heard earlier than that by the Federal Court.
Availability of particular procedures appropriate for the class of proceedings
Given the concurrent jurisdiction of the Federal Court of Australia and the Federal Magistrates of Australia in bankruptcy and the harmonisation of the bankruptcy rules between the two Courts, this point does not have any force in relation to the application for transfer.
Wishes of the parties
The applicant wishes the proceedings to be transferred. That is opposed by the respondent. This factor is neutral in my consideration of the issues.
The interests of the administration of justice
In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
In considering the above issues I have had due regard to the factors cited in the dicta from Schultz.
In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.
Pursuant to the Federal Magistrates Court Rules, specifically r.1.03(1), proceedings are to be resolved as efficiently and economically as possible.
Applications should in the interests of the administration of justice be heard as soon as possible. In my view that is best achieved by these proceedings remaining in the Federal Magistrates Court list and being heard on 28 and 29 September 2006.
I also note that the matter has been listed for some time and that save some exigent circumstance there appears to be no good reason for it otherwise to be transferred in the interests of the administration of justice. No such circumstance has been identified by the applicant in these proceedings.
It is also appropriate in the interests of the administration of justice that an application such as this be heard by a Court appropriate to the nature of the application. The vast majority of bankruptcy cases are dealt with by this Court. In 2004/2005 92 per cent of the bankruptcy cases in Australia at first instance were heard by this Court: Federal Magistrates Court of Australia, Annual Report 2004-2005, p.22. This is therefore an appropriate Court for the application given the other factors that I have outlined which in my view do not distinguish this application from many others which come to this Court.
Finally, in respect of the interests of the administration of justice I note r.8.02(2) of the Federal Magistrates Court Rules which provides that unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceedings. The current application, that is, the application lately made on 14 September 2006, is not an application which conforms with that Rule. Ordinarily that might not be a factor to which I would attribute much weight, but in the circumstances of this case it is simply another indicator that it is not appropriate to grant the application for transfer to the Federal Court and that the application for transfer would not be in the interests of the administration of justice.
Conclusion
I therefore conclude, on a consideration of all of the factors required to be considered by the Court, that the application discloses no reason for the Court to exercise its discretion to order a transfer of these proceedings to the Federal Court. Accordingly, I determine that no transfer is to be ordered, that the application for transfer is dismissed, and I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 11 October 2006
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