FEDERAL CIRCUIT COURT OF AUSTRALIA
| JONES v OFFICIAL RECEIVER & ANOR (No 3) | [2016] FCCA 3451 |
| Catchwords: PRACTICE & PROCEDURE – Interlocutory application – application for recusal. |
| Legislation: Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r.2.06 |
| Cases cited: ALA15 v Minister for Immigration & Border Protection (2016) FCAFC 30 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Jones v Thomson & Anor (No. 2) [2016] FCCA 931 |
| Applicant: | RICHARD JONES |
| First Respondent: | OFFICIAL RECEIVER |
| Second Respondents: | JASON PORTER PAUL GERARD WESTON |
| File Number: | SYG 2492 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 October 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Second Respondents: | Mr A. Spencer |
| Solicitors for the Second Respondents: | Bamford Lawyers |
ORDERS
The interim application seeking the recusal of Judge Smith be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2492 of 2014
| RICHARD JONES |
Applicant
And
| OFFICIAL RECEIVER |
First Respondent
| JASON PORTER AND PAUL GERARD WESTON |
Second Respondents
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
The applicant has made an application that I recuse myself. Initially that application was made on the basis of a reasonable apprehension of bias. However, at the hearing the applicant added the ground that I was actually biased. It is well established that, although there are degrees of seriousness between the two, both of such allegations must be clearly made and clearly established: see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia Legeng”) at 531, [69] per Gleeson CJ and Gummow J. I will deal with apprehension of bias issue first.
The test for apprehension of bias is relatively well settled, although often difficult in application. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits: see for example, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283.
There is a two-stage process described by the High Court in Ebner and followed since. In ALA15 v Minister for Immigration & Border Protection (2016) FCAFC 30 at [36], the Full Court of the Federal Court described the approach:
(a)At least the following two steps are involved in a case involving an allegation of apprehended bias:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii)there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a…
Continue reading Jones v Official RECEIVER (No 3)
Sign in free to access the full text
- AGLC
- Jones v Official RECEIVER (No 3) [2016] FCCA 3451
- Case
- [2016] FCCA 3451
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the debt claimed by the Official Receiver was sufficiently certain and presently owing to support the issuance of a bankruptcy notice. This involved determining if the applicant had a valid defence or counterclaim that would prevent the debt from being considered liquidated and payable.
Judge Smith reasoned that a bankruptcy notice can only be founded on a judgment debt or a debt that is liquidated and presently payable. The court found that the applicant had raised a substantial and bona fide counterclaim that went to the root of the debt. This counterclaim, if successful, would extinguish or significantly reduce the amount claimed by the Official Receiver. Consequently, the debt was not considered liquidated and presently payable for the purposes of a bankruptcy notice.
The court ordered that the bankruptcy notice be set aside.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.