Genovese v BGC Construction Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Genovese v BGC Construction Pty Ltd
[2007] FCA 923  

BANKRUPTCY – order sought for summary judgment in relation to appellant’s notice of appeal – whether appellant has a reasonable prospect of success in the appeal – summary judgment granted – appeal dismissed.

Bankruptcy Act 1966 (Cth), ss 4, 25(2B)(aa), 31A, 41(2), 306(1)

Bankruptcy Regulations1996 (Cth), Regs 1.03(1), 4.01, 4.02
Evidence Act 1995 (Cth), s 151(f)
Courts Legislation Amendment and Repeal Act 2004 (WA), s 7

Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441
Boston Commercial ServicesPty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Cavanagh v Bank of New Zealand (1990) 22 FCR 124
General Steel Industries Inc v Commissioner for Railways (New South Wales) 1964 112 CLR 125
Genovese v BGC Construction Pty Ltd [2007] FMCA 71
Jewiss v DCT [2006] FCA 1688
Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753
Proposch v Anne French Investments Pty Ltd [2006] WADC 47
Re Harrison’s share under a settlement; Harrison v Harrison [1955] 1 Ch 260
Salt v Cooper (1880) 16 Ch D 544

HERCOLE PIETRO GENOVESE v BGC CONSTRUCTION PTY LTD
WAD 30 OF 2007

GILMOUR J
19 JUNE 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 30 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HERCOLE PIETRO GENOVESE
Appellant

AND:

BGC CONSTRUCTION PTY LTD
(ACN 008 783 248)
Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

19 JUNE 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appellant’s notice of appeal be dismissed.

2.        The appellant (respondent) pay the respondent’s (applicant’s) costs of the motion.

3.        The appellant pay the costs of the appeal to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 30 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HERCOLE PIETRO GENOVESE
Appellant

AND:

BGC CONSTRUCTION PTY LTD (ACN 008 783 248)
Respondent

JUDGE:

GILMOUR J

DATE:

19 JUNE 2007

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. By notice of motion dated 21 March 2007 BGC Construction Pty Ltd (“BGC”) the applicant in this motion (the respondent), seeks an order for summary judgment in relation to the respondent’s (appellant’s) notice of appeal dated 16 February 2007 alternatively, in effect, summary judgment in relation to each of the grounds of appeal viewed discretely.

  2. The Court may give judgment for an applicant in relation to the whole or any part of a “proceeding” if it is satisfied that the respondent (appellant) has no reasonable prospects of successfully prosecuting the proceeding or that part of the proceeding: s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’).

  3. A single judge of the Federal Court of Australia has jurisdiction to give summary judgment: s 25(2B)(aa) of the Act. “Proceeding” includes an “appeal”: s 4…

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Details
Case
[2007] FCA 923
Decision Date

CaseChat Overview and Summary

In the case of Genovese v BGC Construction Pty Ltd, the appellant, Mr Genovese, sought to appeal the dismissal of his application to set aside a bankruptcy notice served on him by the respondent, BGC Construction Pty Ltd. The application was dismissed by Lucev FM in the Federal Magistrates Court at Perth. The appeal was heard in the Federal Court, where BGC sought summary judgment to dismiss the appeal. The dispute hinged on whether the judgments and orders made by the Local Court of Western Australia, prior to its transition to the Magistrates Court of Western Australia, could be relied upon in bankruptcy proceedings. The appellant contended that such judgments and orders could not be used because they were no longer valid under the new Magistrates Court jurisdiction.

The primary legal issue the court needed to address was the interpretation of section 7 of the Courts Repeal Act 2004 (WA), which dealt with the transition of cases from the Local Court to the Magistrates Court. Specifically, the court had to determine whether the proceedings against Mr Genovese were "pending" at the transition date, and if so, whether they could be continued under the jurisdiction of the Magistrates Court. Additionally, the court had to consider whether the Bankruptcy Act's requirements were strictly adhered to, particularly in relation to the service of the bankruptcy notice.

The Federal Court examined the transition provisions under the Courts Repeal Act and found that the action against Mr Genovese was indeed "pending" at the transition date. This interpretation was based on the reasoning that the action could have been heard and determined by the Magistrates Court under the new legislation. The court held that the term "pending" should be given its widest possible meaning to ensure all cases that could have come before the Local Court were to be heard and determined by the Magistrates Court. Consequently, the court concluded that the bankruptcy notice complied with the requirements of the Bankruptcy Act and that the appeal should be dismissed. The Federal Court also ordered that the appellant pay the respondent's costs of the motion and the costs of the appeal.

Orders

Orders of the court

1. The appellant’s notice of appeal be dismissed.

2. The appellant (respondent) pay the respondent’s (applicant’s) costs of the motion.

3. The appellant pay the costs of the appeal to be taxed.

Background

Background to the litigation

A proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success. Section 31A of the Act has established a lower standard for summary judgments in this context than that imposed in other cases: Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441. However the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [45]. THE BACKGROUND On 17 October 2003, by consent, judgment for $10,000 together with costs was entered against the respondent in favour of BGC in the Local Court at Perth. Thereafter orders were made by the Local Court in relation to various matters but including costs in favour of BGC and against the respondent on 9 June and 28 February 2003. Those costs were taxed and in total amounted to $18,422.69. BGC caused a bankruptcy notice to be served pursuant to s 41(2) of the Bankruptcy Act 1966 and pursuant to Regulation 4.01 and 4.02A of the Bankruptcy Regulations 1996 (Cth) (“Bankruptcy Regulations”). The amount claimed was in respect of the judgment summary costs referred to but by reason of the fact that payments or credits had been allowed in the sum of $2,010.40 the amount the subject of the bankruptcy notice was $26,412.29. The respondent, Mr Genovese, applied in the Federal Magistrates Court at Perth to set aside the bankruptcy notice. The application was heard on 29 September 2006 and was dismissed by Lucev FM on 29 January 2007. The respondent has appealed against this order for dismissal and it is in relation to that appeal that BGC seeks summary judgment. PROCEEDING BEFORE THE FEDERAL MAGISTRATE Mr Genovese contended below that judgments and orders made by the former Local Court of Western Australia (“Local Court”) and not extracted before 2 May 2005 (the ‘transition date’) at which time the Local Court became the Magistrates Court of Western Australia (“Magistrates Court”) could not be relied upon in bankruptcy proceedings because any judgment or orders extracted after the transition date were judgments or orders of the Magistrates Court and not the Local Court. It follows, Mr Genovese contended, that a judgment or orders obtained from the Magistrates Court was not a judgment or orders of the ‘Court’ for the purposes of Regulation 1.03(1) under the Bankruptcy Regulations. By the Courts Legislation Amendment and Repeal Act 2004 (WA) (the Courts Repeal Act), the Local Courts Act 1904 (WA) (the Local Courts Act) was repealed. The Courts Repeal Act was one of a triumvirate of interrelated Acts. The others were the Magistrates Court Act 2004 (WA) and the Magistrate Court (Civil Proceedings) Act 2004 (WA). Each came into operation on 12 May 2005. The Local Court was replaced by the Magistrates Court established under the Magistrates Court Act 2004 (WA) s 4(1). The Magistrates Court (Civil Proceedings) Act 2004 (WA) gives the Magistrates Court the former civil jurisdiction of the Local Court. The date of the commencement of the Magistrates Court and its civil jurisdiction and the abolition of the Local Court and the repeal of its civil jurisdiction was the transition date to which I have referred.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J
It followed, so submitted the applicant, that the provisions of the Bankruptcy Act had not been strictly complied with and the orders could not be saved as being merely formal defects or irregularities under s 306(1) of the Bankruptcy Act. THE DECISION OF THE FEDERAL MAGISTRATE Section 7 – Courts Repeal Act Lucev FM considered the proper construction of s 7 of the Courts Repeal Act and in particular whether at the transition date the action against Mr Genovese in the Local Court was as at the transition date “pending” within the meaning of s 7(a). His Honour concluded that it was. His Honour then considered the meaning to be given to s 7(b) of the Courts Repeal Act. In so finding his Honour applied the reasoning of McCann DCJ in Proposch v Anne French Investments Pty Ltd [2006] WADC 47 and in particular the opinion expressed in that case as follows: (a)“Parliament’s intention was to wholly repeal and extinguish all rights under the Local Courts Act in pending cases in the Local Court … the implied legislative intention was to repeal or exclude the operation of s 37(1) of the Interpretation Act 1984”; [19](b)“s 7 … is not a saving provision in respect of pending actions or matters; rather it is a deeming provision that replaces former rights with new rights, thereby excluding the operation of s 37(2) of the Interpretation Act 1984”; [19] and (c)“the word ‘pending’ in s 7 should be given its widest possible meaning so as to ensure that all or any extant matters that were before, or which could have come before, the Local Court for any reason but for the repeal of the Local Courts Act is to be taken to be a case in the Magistrates Court and is to be heard and determined under the Civil Proceedings Act.” [20] In what I might describe as his primary reasons his Honour was of the opinion that the action was, immediately before the commencement of the Courts Repeal Act, still ‘pending’ before the Local Court because the plaintiff could, until the transition date, have applied to extract a written order in respect of plaint number 18423 of 2001, and it was therefore a matter which could have come before the Local Court, but for the repeal of the Local Courts Act. It did not matter he said, that the extraction of the written order was not sought before the transition date, because what mattered was that it could have been. It followed that the action was taken to then be a case pending before the Magistrates Court. His Honour concluded that upon a proper interpretation of s 7(b) that “hearing and determination” means that an action initiated by plaint, but which the former Local Court had, at the transition date:(a)not yet commenced to hear, is an action which can be heard and determined by the Magistrates Court;(b)commenced to hear, but not finished hearing, is an action to be further heard and determined by the Magistrates Court;(c)heard, but not yet determined, is an action which may be determined by the Magistrates Court; and(d)heard and orally determined, is an action which, where it is necessary for the judgment or order to be served on the other party, is an action which may be further or finally determined by the Magistrates Court extracting the judgment or orders.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.