McKinnon v Pattison - [2009] FMCA 695

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKINNON & ANOR v PATTISON

[2009] FMCA 695

BANKRUPTCY – Whether Federal Magistrate disqualified because heard a previous application involving same applicants – whether there is perceived bias.

Bankruptcy Act 1966 (Cth) ss.33(1)(c), 64ZBA, 162
Bankruptcy Regulations 1996 (Cth) r.8.09

McKinnon v Commonwealth Bank (No.1) (2004) FMCA 208
McKinnon v Commonwealth Bank (No.2) (2004) FMCA 209

First Applicant:

JEANETTE BEVERLY MCKINNON

Second Applicant:

DONALD NEIL MCKINNON

Respondent:

PAUL ANTHONY PATTISON

File Number:

MLG 369 of 2009

Judgment of:

Phipps FM

Hearing date:

19 June 2009

Date of Last Submission:

19 June 2009

Delivered at:

Melbourne

Delivered on:

19 June 2009

REPRESENTATION

The Applicants:

Appearing in person

Counsel for the Respondent:

Mr M. Black

Solicitors for the Respondent:

TurksLegal

ORDERS

Application to disqualify the Federal Magistrate is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 369 of 2009

JEANETTE BEVERLY MCKINNON & DONALD NEIL MCKINNON

Applicants

And

PAUL ANTHONY PATTISON

Respondent

REASONS FOR JUDGMENT

The applicants apply for me to disqualify myself from the hearing of this proceeding. The proceeding is an application to review a decision of a registrar made 25 May 2009. Registrar Moore ordered that the application be dismissed and that the applicants pay the respondent’s costs fixed in the amount of $4710.00. That order was stayed for 30 days.
The proceeding before the Registrar, and therefore the proceeding before me, is an application by Mr and Mrs McKinnon under s.31(1)(c) of the Bankruptcy Act 1966 (Cth) to extend the time under r8.09 of the Bankruptcy Regulations 1996 (Cth) for them to give a taxing officer notice of their desire to have the trustee’s costs and remuneration taxed under r.8.09(1) provides:
Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim.
The respondent, Mr Pattison, is the trustee in bankruptcy of both the applicants. He has been appointed pursuant to a sequestration order which was made on 26 August 2005. Mr Pattison gave notice to the creditors under s.64ZBA of the Bankruptcy Act requesting that they resolve to approve his remuneration without the calling of a meeting.
Section 162 of the act provides for the remuneration of a trustee. It provides that remuneration may fixed by resolution of creditors. Section 64ZBA provides a process by which the resolution of the creditors can be made without the calling of a meeting. The affidavit by Mr Pattison shows that there are two creditors: the Commonwealth Bank of Australia and the Commissioner of Taxation. Both have approved the resolution or voted in favour of the resolution approving his remuneration without the need to call a meeting.
The applicants, the bankrupts, having as part of the process, received a letter from Mr Pattison in…

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 McKinnon v Pattison

Details

AGLC: McKinnon v Pattison [2009] FMCA 695
Case: [2009] FMCA 695
Decision Date: 19 June 2009

CaseChat Overview and Summary

McKinnon sought to disqualify the Federal Magistrate on the basis of apprehended bias. The dispute arose from a family law matter involving a complex history of litigation and allegations of family violence. The Federal Circuit and Family Court of Australia was the court involved.

The legal issue before the court was whether the Magistrate's prior comments and actions demonstrated an apprehended bias, which would necessitate their disqualification. McKinnon argued that the Magistrate's previous comments about McKinnon's credibility and behaviour, made in a different proceeding, indicated a predisposition that would affect the fairness of the current trial. The court needed to determine if these comments were so serious as to give rise to a reasonable apprehension of bias.

The court found that the Magistrate's prior comments, while critical, did not demonstrate a level of partiality that would lead a reasonable observer to fear unfairness. The court held that the Magistrate's comments were made in the context of a different case and did not reflect a fixed state of mind that would prevent the Magistrate from impartially deciding the current case. The application to disqualify the Federal Magistrate was therefore dismissed.

Orders

Orders of the court

Application to disqualify the Federal Magistrate is dismissed.

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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