Jones v Official RECEIVER (No 3) - [2016] FCCA 3451

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
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jones v Thomson & Anor [2016] FCCA 687

Jones v Thomson & Anor (No. 2) [2016] FCCA 931
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

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…

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 Jones v Official RECEIVER (No 3)

Details

AGLC: Jones v Official RECEIVER (No 3) [2016] FCCA 3451
Case: [2016] FCCA 3451
Decision Date: 28 October 2016

CaseChat Overview and Summary

In *Jones v Official Receiver (No 3)*, the applicant, Mr. Jones, sought to set aside a bankruptcy notice issued against him by the Official Receiver. The dispute centred on whether the debt underpinning the bankruptcy notice was a liquidated sum due and payable.

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