FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILLTOPS COUNCIL v PARRIS | [2017] FCCA 1789 |
| Catchwords: BANKRUPTCY – Review of Registrar’s decision to make a sequestration Order – Debtor claims health and other reasons should have resulted in him being granted an adjournment – an adjournment was granted by the Registrar – Debtor also challenges the amount in issue between the parties – however no action taken by the Debtor following consent orders made in the Land and Environment Court (NSW) that included orders for the Debtor to pay the Council’s costs – costs certificates issued and ultimately entered as judgment debts in the District Court of New South Wales – onus on Debtor to establish solvency or other relevant reason – general claims made by the Debtor not sufficient to discharge the onus – no assets and no income (other than a pension) – other general claims by the Debtor not established – Application for Review dismissed. |
| Legislation: Bankruptcy Act 1966, ss.32, 52, 153B |
| Applicant: | HILLTOPS COUNCIL (ABN 33 984 256 429) |
| Respondent: | GEORGE PARRIS |
| File Number: | CAG 81 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 June 2017 |
| Date of Last Submission: | 13 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 11 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Bradley Allen Love Lawyers |
| Counsel for the Respondent: | Self-represented |
ON A FINAL BASIS, THE COURT ORDERS THAT:
Pursuant to section 52(3) of the Bankruptcy Act 1966 (Cth), Orders 1 and 2 of Orders made by Registrar Wall on 16 December 2016 be stayed for 21 days, that is until close of business on 1 September 2017.
Should the Respondent not have paid the sum owing to the Applicant, being $109,180.59 by close of business on 1 September 2017, the Application for Review filed by the Respondent on 30 May 2017 will be dismissed with no further notice given to the parties.
Should the Respondent not have paid the sum owing to the Applicant, being $109,180.59 by close of business on 1 September 2017, the Respondent Debtor shall pay the Applicant Council’s costs, either as agreed or taxed.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
THE COURT NOTES THAT:
(A)The costs of these proceedings to be paid by the Applicant in the event that the debt is not paid in Order 3 are to include the costs of the Application before Registrar Wall on 16 December 2016, being $8,099.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG…
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Details
- AGLC
- Hilltops Council v Parris [2017] FCCA 1789
- Case
- [2017] FCCA 1789
- Decision Date
CaseChat Overview and Summary
In this matter before Judge Neville, the dispute concerned the validity of a delegation of power to a registrar of the Federal Magistrates Court. The core of the issue revolved around whether the review process for decisions made by a registrar provided a sufficient safeguard to ensure that the court's original jurisdiction was being exercised by a judge.
The legal issues before the court were whether a delegation of power to a registrar of the Federal Magistrates Court was valid, and what standard of review was required for such a delegation to be considered valid. Specifically, the court had to determine if an appeal or a hearing de novo was necessary to ensure that the registrar's powers were subject to judicial oversight.
Judge Neville reasoned that for a delegation of power to a registrar to be valid, the registrar's functions must be subject to review by a judge on questions of both fact and law. The judge held that a hearing de novo, which involves a complete rehearing of the facts and law as they exist at the time of the review, is essential. This is because a hearing de novo allows the judge to exercise the original jurisdiction of the court afresh, rather than merely reviewing the registrar's decision. The judge distinguished a hearing de novo from an appeal stricto sensu or an appeal by way of rehearing, emphasising that in a hearing de novo, the judge must independently satisfy themselves of all the necessary elements, including the matters stated in the petition, service, and the existence of the debt, and must also exercise any relevant discretions afresh.
The legal issues before the court were whether a delegation of power to a registrar of the Federal Magistrates Court was valid, and what standard of review was required for such a delegation to be considered valid. Specifically, the court had to determine if an appeal or a hearing de novo was necessary to ensure that the registrar's powers were subject to judicial oversight.
Judge Neville reasoned that for a delegation of power to a registrar to be valid, the registrar's functions must be subject to review by a judge on questions of both fact and law. The judge held that a hearing de novo, which involves a complete rehearing of the facts and law as they exist at the time of the review, is essential. This is because a hearing de novo allows the judge to exercise the original jurisdiction of the court afresh, rather than merely reviewing the registrar's decision. The judge distinguished a hearing de novo from an appeal stricto sensu or an appeal by way of rehearing, emphasising that in a hearing de novo, the judge must independently satisfy themselves of all the necessary elements, including the matters stated in the petition, service, and the existence of the debt, and must also exercise any relevant discretions afresh.
Orders
Orders of the court
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Background
Background to the litigation
Then at [10] – [14], his Honour relevantly said (emphasis added):[10] For a delegation of power to a registrar of the Federal Magistrates Court to be valid, the powers and functions of the registrar must be subject to review by a judge of the Federal Magistrates Court on questions of both fact and law. If the review of the exercise of the power by the registrar is by way of hearing de novo, the delegation will be valid (Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 95). Indeed, on one view, nothing less than a hearing de novo would be sufficient. That is to say, there must be a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar; otherwise, the registrar, and not the judges of the Court, would be exercising the original jurisdiction of the Court (Harris v Caladine at 164).[11] It may be arguable that subjecting the exercise of powers or functions by a registrar to an appeal would be sufficient (Harris v Caladine at 95). However, that is not the safeguard that has been adopted in relation to the delegation of powers and functions to registrars of the Federal Magistrates Court. It is clear from r 20.03 of the General Rules that the review of a registrar’s sequestration order is to be by way of a hearing de novo.[12] A hearing de novo is different from an appeal stricto sensu and is different from an appeal by way of rehearing. In the case of an appeal stricto sensu, the question would be whether, upon the material before the registrar, the conclusion reached by the registrar was correct. In an appeal by way of rehearing, the appellate court would rehear the matter as at the date of the appeal, but on the evidence called before the registrar, subject to a power to receive further evidence where appropriate: the rights of the parties would be determined by reference to the circumstances, including the law, as they existed at the time of rehearing (Harris v Caladine at 125). In each case any question concerning the exercise of discretion would be subject to the restrictions imposed on an appellate court in reviewing the exercise of a discretion (see House v The King [1936] HCA 40; (1936) 55 CLR 499.[13] In the case of a hearing de novo, however, the judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar. The parties commence the proceeding again, subject to any rules concerning the use of evidence adduced before the registrar. The hearing de novo involves the exercise of the original jurisdiction and the petitioner, in the case of a bankruptcy petition, must start again, call witnesses and make out the petitioner’s case (Harris v Caladine at 124).[14] Because the hearing of an application for review of a sequestration order is a hearing de novo, it would not be sufficient for the reviewing judge to be satisfied that the registrar made no error and simply to dismiss the application for review. The judge who hears the review application must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:• the matters stated in the petition;• the service of the petition; and• the fact that the debt or debts on which the petitioning creditor relies is or are still owing.The reviewing judge must also exercise afresh the discretions conferred by s 52(2).
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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