Hy-Tec Industries v Constable (No 2) - [2006] FMCA 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HY-TEC INDUSTRIES v CONSTABLE & ORS (NO 2)

[2006] FMCA 966

PRACTICE & PROCEDURE – Application to disqualify for apprehended bias – where after judgment representations are made to court by interested and named non party – where court writes to parties indicating a preliminary view of representations and writes to all parties inviting representations – whether views expressed could be considered immutable – whether apprehended bias is thus established.

Re J.R.L; Ex parte C.J.L [1986] 161 CLR 342
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22
Hy-Tec Industries v Constable & Ors [2006] FMCA 704

Applicant:

HY-TEC INDUSTRIES PTY LIMITED

ACN 070 100 702

First Respondent:

STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Second Respondent:

GEOFFREY DAVID MCDONALD AS TRUSTEE OF THE BANKRUPT ESTATE OF STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Third Respondent:

SIMON ROBERT BEVERLY

File Number:

SYG648 of 2005

Applicant:

HY-TEC INDUSTRIES PTY LIMITED

ACN 070 100 702

First Respondent:

STEPHEN CONSTABLE ALSO KNOWN AS STEVEN CONSTABLE

File Number:	SYG612 of 2006
Judgment of:	Raphael FM

Hearing date:

27 June 2006

Date of Last Submission:

27 June 2006

Delivered at:

Sydney

Delivered on:

27 June 2006

REPRESENTATION

Solicitors for the Applicant:

TurksLegal

For the first Respondent:

No Appearance

Counsel for the second Respondent:

Mr S Golledge

Solicitors for the second Respondent:

Yates Beaggi Lawyers

Counsel for the Third Respondent:

Mr J Johnson

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG648 of 2005

HY-TEC INDUSTRIES PTY LIMITED

ACN 070 100 702

Applicant

And

STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

First Respondent

GEOFFREY DAVID MCDONALD AS TRUSTEE OF THE BANKRUPT ESTATE OF STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Second Respondent

SIMON ROBERT BEVERLY

Third Respondent

SYG612 of 2006

HY-TEC INDUSTRIES PTY LIMITED

ACN 070 100 702

Applicant

And

STEPHEN CONSTABLE ALSO KNOWN AS STEVE CONSTABLE

Respondent

REASONS FOR JUDGMENT

On 10 May 2006 I heard an application of a rather unusual type. The applicant was a petitioning creditor who sought to have the sequestration order that was made by this court against the debtor set aside or alternatively annulled. The basis for this application, which was unusual because it is the type of application that is normally made by a debtor, is set out in my judgment Hy-Tec Industries v Constable & Ors [2006] FMCA 704 but in short, it arose because prior to the hearing of the application for the sequestration order an arrangement had been entered into between the judgment debtor and the creditor for payment of the debt by instalments. This arrangement was not communicated to relevant parties and the proceedings went ahead.
The judgment creditor had been represented by a solicitor known as Mr Hodges following the withdrawal of instructions to the solicitor who was acting on its behalf in relation to the application for the sequestration order. Mr Hodges then ceased to act and another firm was instructed.
In paragraph 15 of my judgment I said:
“Hy-Tec…

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 Hy-Tec Industries v Constable (No 2)

Details

AGLC: Hy-Tec Industries v Constable (No 2) [2006] FMCA 966
Case: [2006] FMCA 966
Decision Date: 27 June 2006

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Hy-Tec Industries v Constable and others involved a creditor, Hy-Tec Industries, seeking to set aside or annul a sequestration order made against the debtor, Stephen Constable. The case raised issues regarding the communication between the court and a non-party, Mr Hodges, who had previously represented the applicant. This led to an application by counsel for one of the respondents, Mr Johnson, for the Federal Magistrate to disqualify himself due to apprehended bias.

The primary legal issues the court had to decide were whether the communication between the court and Mr Hodges, and the subsequent invitation for representations from all parties, could be considered as forming an immutable view that would amount to apprehended bias. This involved comparing the current situation with precedents set by the High Court in Re J.R.L; Ex parte C.J.L and the New South Wales Court of Appeal in The Anderson Group Pty Ltd v Tynan Motors Pty Ltd. The court also had to consider whether the communication and invitation for representations were fair and open, allowing all parties to make submissions.

The court found that the communication from the court to Mr Hodges, and the subsequent invitation for representations, did not indicate any fixed and immutable view that could not be changed. The letter clearly stated that no final determination would be made until all representations were heard and considered. The court was open to changing its preliminary view after hearing from any of the parties. The court also rejected the comparison with the cited precedents, as in those cases the judges had private communications that affected the final judgment without disclosing them. Here, the communication was made public, and the judgment had not yet been altered. The court concluded that the letter did not express a preliminary opinion that could be considered fixed, and therefore, the application for the Federal Magistrate to disqualify himself was dismissed.

In conclusion, the Federal Magistrate decided that the application for disqualification was without merit, and the court would proceed to hear the application on the merits, allowing all parties to make their submissions. The court emphasized that the communication and invitation for representations were fair and transparent, ensuring all parties had the opportunity to be heard.

Orders