Irwin v Irwin - [2016] FCCA 1767

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRWIN v IRWIN

[2016] FCCA 1767

Catchwords:
BANKRUPTCY – Creditor’s petition – whether carrying on business in Australia.

CONSTITUTIONAL LAW – S.78B Notice – no constitutional issue raised.

Legislation:

Bankruptcy Act 1966 (Cth), ss.43(1), 52(1) & 52B

Judiciary Act 1903 (Cth), s.78B

Cases cited:

Nikolic v MGICA Ltd [1999] FCA 849

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others (1999) 167 ALR 303
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Jones v Dunkel (1959) 101 CLR 298
Turner v Trevorrow & Another (1994) 49 FCR 566
Westpac Banking Corporation v Faress [2011] FMCA 26
Sandell v Porter (1966) 115 CLR 666

Applicant:

ANGUS WILLIAM IRWIN

Respondent:

CAMPBELL CREAGHE IRWIN

File Number:

ADG 69 of 2016

Judgment of:

Judge Heffernan

Hearing date:

20 June 2016

Date of Last Submission:

20 June 2016

Delivered at:

Adelaide

Delivered on:	23 June 2016
(ex tempore)

REPRESENTATION

Counsel for the Applicant:

Mr S Ower

Solicitors for the Applicant:

Iles Selley Lawyers

The Respondent:

No appearance

UPON NOTING THAT Mr Robert William Naudi and Mr Stuart George Reid have agreed to act as joint and several trustees in bankruptcy

ORDERS

A sequestration order be made against the estate of CAMPBELL CREAGHE IRWIN.
The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 8 January 2016

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 69 of 2016

ANGUS WILLIAM IRWIN

Applicant

And

CAMPBELL CREAGHE IRWIN

Respondent

REASONS FOR JUDGMENT

(Settled from transcript)

This is the Creditor’s Petition of Angus William Irwin against the respondent debtor, Campbell Creaghe Irwin.
I note that a preliminary issue arose on Monday on which I have already ruled. The respondent, Mr Campbell Creaghe Irwin, filed a s.78B Notice of a Constitutional Matter and as a result sought that proceedings be adjourned pending the determination of that issue.
I was referred, and referred to, the authorities Nikolic v MGICA Ltd[1] and Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others[2], both decisions of his Honour French J, as he then was. I note that in Berbatis Holdings, his Honour at paragraph 14 made the following observation:
“Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.”
[1] [1999] FCA 849.
[2] (1999) 167 ALR 303.
His Honour also referred to the decision in Re Finlayson; Ex parte Finlayson[3], a decision of 1997 of his Honour, Toohey J, where his Honour observed in terms of s.78B of…

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 Irwin v Irwin

Details

AGLC: Irwin v Irwin [2016] FCCA 1767
Case: [2016] FCCA 1767
Decision Date: 23 June 2016

CaseChat Overview and Summary

In *Irwin v Irwin*, the Federal Court of Australia considered a creditor’s petition. The petition was brought by the respondent creditor against the applicant debtor.

The primary legal issue before the Court was whether the debtor was carrying on business in Australia for the purposes of the *Bankruptcy Act 1966* (Cth). A secondary issue arose concerning whether a notice under s 78B of the *Judiciary Act 1903* (Cth) was required, although the Court found no constitutional issue had been raised.

Justice Heffernan determined that the debtor was not carrying on business in Australia. The Court applied the principles established in cases concerning the meaning of "carrying on business" in the context of bankruptcy proceedings, focusing on the nature and extent of the debtor's activities within Australia. The Court found that the debtor's limited and sporadic involvement did not amount to carrying on a business. As no constitutional issue was raised, the s 78B notice was deemed unnecessary.

The creditor's petition was dismissed.

Orders