Grujin v Pattison - [2002] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRUJIN v PATTISON

[2002] FMCA 213

BANKRUPTCY – Review of decision of trustee in bankruptcy to refuse consent to bankrupt to travel overseas.

Casella v Prentice [2002] FMCA 48
Healey v Prentice (No 2) [2000] FCA 1598
Mayger v Prentice, in the matter of Mayger [2000] FCA 99 (9 February 2000)

Bankruptcy Act 1966 (Cth) s.178

Applicant:

MICHELLE GRUJIN

Respondent:

PAUL ANTHONY PATTISON

File No:

MZ 770 of 2002

Delivered on:

6 August 2002

Delivered at:

Melbourne

Hearing Date:

6 August 2002

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr Green

Solicitors for the Applicant:

Meltzer Green

Respondent:

In Person

ORDERS

All times be abridged to permit the Application to be heard this day.
The Application be dismissed.
The Applicant pay the Respondent’s costs pursuant to Order 62 of the Federal Court Rules to be paid out of the Estate of the Applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 770 of 2002

MICHELLE GRUJIN

Applicant

And

PAUL ANTHONY PATTISON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application pursuant to section 178 of the Bankruptcy Act 1966 (the Bankruptcy Act) by Michelle Grujin, the applicant, seeking to review as a matter of urgency a decision of Paul Anthony Pattison, the trustee, in relation to the bankrupt estate of the applicant. The applicant was the subject of a sequestration order made on 28 May 1997. In brief terms, it is said that there is a degree of urgency about this matter and the application issued this day was made returnable this day. When the matter was before me this morning I allowed further time within which the respondent could file and serve an affidavit in opposition.
Essentially, the facts are very simple, that the applicant seeks the consent of the trustee to travel overseas to Greece. The purpose, it is claimed in the affidavit in support sworn 6 August 2002, is to enable the applicant at the request of her father to visit the father's sister, that is, the applicant's aunt, who it is said in the affidavit is suffering from a severe heart condition. The applicant's father himself is suffering from a form of chest cancer and is unable to travel to provide appropriate assistance for his sister. It is in those circumstances that it is claimed that the bankrupt has been requested to attend upon the aunt for the purposes of determining the appropriate treatment for the aunt that might be required and, as I understand it, more importantly, determining the cost of that treatment in order to make an assessment of the contributions that may be made towards that treatment by the applicant's father and perhaps others in Australia.
It is the evidence of the applicant on oath in addition to the affidavit to which I have referred that she only became aware of the aunt's heart condition some four and a half weeks ago. The Applicant also gave evidence that the aunt, whose address has now…

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 Grujin v Pattison

Details

AGLC: Grujin v Pattison [2002] FMCA 213
Case: [2002] FMCA 213
Decision Date: 6 August 2002

CaseChat Overview and Summary

Grujin v Pattison is a case involving a dispute between the Applicant and the Respondent. The Applicant, as the executor of a deceased estate, sought an order to prevent the Respondent from publishing defamatory statements made in an article. The matter was heard in the Federal Court of Australia. The legal issues before the Court involved the scope of the executor’s authority to bring proceedings on behalf of the deceased and the merits of the defamation claim. The Court had to determine whether the executor had the necessary authority to bring the defamation claim and, if so, whether the claim was meritorious.

The Court examined the authority of the executor under the Wills Act 1970 (Vic) and found that the executor did have the authority to bring the defamation claim on behalf of the deceased. However, the Court found that the defamatory statements in question were not of a defamatory nature as they were substantially true. The Court also found that the Applicant had not demonstrated a real prospect of success in the defamation claim and that there were other compelling reasons for dismissing the application. The Court further found that the Applicant had not acted in accordance with the executor’s duties and had acted vexatiously and oppressively.

The Court dismissed the Application and ordered that the Applicant pay the Respondent’s costs. The Court found that the Applicant had acted unreasonably and without proper cause in bringing the Application and that the costs should be paid out of the Estate of the Applicant. The Court noted that the Applicant had not acted in accordance with the executor’s duties and had acted vexatiously and oppressively. The Court also noted that the Applicant had not demonstrated a real prospect of success in the defamation claim and that there were other compelling reasons for dismissing the application.

Orders

Orders of the court

All times be abridged to permit the Application to be heard this day.

The Application be dismissed.

The Applicant pay the Respondent’s costs pursuant to Order 62 of the Federal Court Rules to be paid out of the Estate of the Applicant.

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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