Luna v Pattison - [2004] FMCA 237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUNA v PATTISON

[2004] FMCA 237

BANKRUPCTY – Application pursuant to section 178 of the Bankruptcy Act 1966 to set aside the Trustee’s rejection to return to the bankrupt his passport and to give his written consent to leave Australia – whether the bankrupt’s departure overseas would hamper the administration of the estate – whether the bankrupt’s travel purposes were genuine – application dismissed.

Bankruptcy Act 1966 (Cth), ss.77, 77a(ii), 178, 272

Federal Court Rules

Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182
Re Hicks; Ex parte Lamb (Heerey J, 4 March 1994 VB 1473 of 1993)
Casella v Prentice [2002] FMCA 48
Mayger v Prentice (Gyles, unreported) BC200000252 (2000) FCA 99
Healey v Prentice (No 2) (2000) FCA 1598
Re Wheeler; Ex parte Wheeler v House (1994) 54 FCR 166

Applicant:

PASQUALE LUNA

Respondent:

PAUL ANTHONY PATTISON

File No:

MZ 383 of 2004

Delivered on:

19 April 2004

Delivered at:

Melbourne

Hearing Date:

19 April 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr P Fary

Solicitors for the Applicant:

Serry White & Co Solicitors

Counsel for the Respondent:

Mr E Fice

Solicitors for the Respondent:

Christopher Wray Lawyer

ORDERS

That the application be dismissed.
That the applicant pay the respondent's costs of this application to be taxed, if not agreed, pursuant to the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 383 of 2004

PASQUALE LUNA

Applicant

and

PAUL ANTHONY PATTISON

Respondent

REASONS FOR JUDGMENT

I have before me an application by the bankrupt pursuant to s.178 of the Bankruptcy Act 1966 (Cth) (the Act) to set aside the Trustee's refusal to return to him his passport and to give his written consent to him to leave Australia.
The legislative basis for the Trustee's refusal and the matter coming before the Court is that upon becoming bankrupt a person is obliged to surrender his or her passport to the Trustee in bankruptcy pursuant to s.77a(ii) of the Act.
Section 272 of the Act provides that after a person has become a bankrupt and before being discharged from bankruptcy without the consent in writing of the Trustee of his or her estate leaves Australia or does an act preparatory to leaving Australia is guilty of an offence and is punishable, on conviction, by imprisonment for a period not exceeding three years.
It is clear, therefore, that the applicant needs to seek the permission of the Trustee to depart from Australia and for the return of his passport for that purpose.
The bankrupt became a bankrupt on 13 February 2003 by virtue of a sequestration order made on that day upon a petition of the National Australia Bank Ltd. A Statement of Affairs was filed on 20 March 2003. The applicant in an affidavit sworn 16 April 2004 swears that he is employed by a company called Mikasa Pty Ltd as its international retail buyer on an annual salary of $35,000 per annum. He swears that he…

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 Luna v Pattison

Details

AGLC: Luna v Pattison [2004] FMCA 237
Case: [2004] FMCA 237
Decision Date: 19 April 2004

CaseChat Overview and Summary

The case of Luna v Pattison was heard before the Federal Court, where the plaintiff sought to overturn a decision made by the respondent. The plaintiff, Luna, was dissatisfied with the outcome of a particular matter and sought to appeal the decision made by Pattison. Pattison, acting in an official capacity, had made a ruling that Luna believed to be erroneous and detrimental to their interests.

The central legal issue before the court was whether the decision made by Pattison was lawful and properly exercised. Luna argued that the decision was flawed and should be overturned. The court had to examine whether the decision-making process adhered to the relevant legal standards and whether there were any procedural errors that warranted a reversal of the decision.

In its judgment, the court found that the decision made by Pattison was lawful and correctly exercised. The court held that the decision-making process followed the required legal standards, and there were no procedural errors that would necessitate a reversal of the decision. The court was satisfied that Pattison had acted within their authority and that the decision was justifiable under the relevant legal framework. As a result, the court dismissed Luna's application and ordered Luna to pay Pattison's costs of the application.

Orders

Orders of the court

That the application be dismissed.

That the applicant pay the respondent's costs of this application to be taxed, if not agreed, pursuant to the Federal Court Rules.

Background

Background to the litigation

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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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