McKinnon v Pattison (No 2) - [2010] FCA 1315

FEDERAL COURT OF AUSTRALIA
McKinnon v Pattison (No 2) [2010] FCA 1315

Citation: McKinnon v Pattison (No 2) [2010] FCA 1315

Appeal from: Pattison v McKinnon [2010] FMCA 261

Parties: DONALD NEIL MCKINNON and JEANETTE BEVERLY DAWN MCKINNON v PAUL ANTHONY PATTISON

File number: VID 293 of 2010

Judge: NICHOLAS J

Date of judgment: 29 November 2010

Catchwords: BANKRUPTCY – appeal from orders of federal magistrate – appellants failed to file statement of affairs in accordance with federal magistrate’s order– federal magistrate ordered that warrants for arrest issue – source of power to issue warrants – exercise of discretion – no error established – appeal dismissed

Legislation: Bankruptcy Act 1966 (Cth) ss 30(1), 54, 78(1)(f)
Federal Magistrates Court Rules 2001 (Cth) r 3.04

Cases cited: Nilant v Macchia (2000) 104 FCR 238 cited
Tyler v Thomas (2006) FCR 357 cited
Wangman v Official Receiver, Insolvency & Trustee Services Australia [2006] FCA 202 cited

Date of hearing: 18 November 2010

Date of last submissions: 18 November 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

Counsel for the Appellants: The Appellants appeared in person

Counsel for the Respondent: Mr M Gronow

Solicitor for the Respondent: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 293 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
DONALD NEIL MCKINNON
First Appellant

JEANETTE BEVERLY DAWN MCKINNON
Second Appellant

AND:
PAUL ANTHONY PATTISON
Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

29 NOVEMBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The appeal be dismissed.

The costs of the appeal be the trustee’s costs in the administration of the appellants’ bankruptcies.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 293 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
DONALD NEIL MCKINNON
First Appellant

JEANETTE BEVERLY DAWN MCKINNON
Second Appellant

AND:
PAUL ANTHONY PATTISON
Respondent

JUDGE:

NICHOLAS J

DATE:

29 NOVEMBER 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an appeal brought by the appellants against orders made in April 2010 by a Federal Magistrate. Each of the appellants was made bankrupt on 26 August 2005. On that date the respondent was appointed trustee.
It is apparent from the notice of appeal that the appellants seek to appeal against orders made by Federal Magistrate Hartnett on 13 April 2010. An order was made by her Honour on that date under s 78(1)(f) of the Bankruptcy Act 1966 (Cth) (the Act). It provided for the issue of warrants for the arrest of the appellants and their committal to gaol until further order. Other orders made by her Honour stayed the execution of the warrants until 10.00am on 27 April 2010 and provided that if the appellants complied in full with relevant parts of the orders made…

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 (No 2)

Details

AGLC: McKinnon v Pattison (No 2) [2010] FCA 1315
Case: [2010] FCA 1315
Decision Date

CaseChat Overview and Summary

The case of McKinnon v Pattison (No 2) [2010] FCA 1315 concerns an appeal brought by the appellants, Donald Neil McKinnon and Jeanette Beverly Dawn McKinnon, against orders made by a Federal Magistrate. The orders in question pertain to the appellants' failure to comply with their obligations under the Bankruptcy Act 1966 (Cth), specifically their failure to file a proper statement of affairs. The respondent, Paul Anthony Pattison, was appointed as the trustee of the appellants' bankruptcies. The legal issues before the court were whether the Federal Magistrate had the authority to issue the orders for the appellants' arrest and committal to gaol for their failure to comply with the court's earlier orders.

The Federal Court found that the Federal Magistrate had the power to issue the orders for arrest and committal to gaol under section 78(1)(f) of the Bankruptcy Act 1966 (Cth). The court held that the appellants had indeed failed to comply with the orders of the Federal Magistrate, and that it was open to the Federal Magistrate to make the orders in question. The court further held that the appellants' arguments concerning the orders were not well-founded, as they had been given ample opportunity to comply with the orders of the court, and had failed to do so.

The appeal was dismissed by the court, and the costs of the appeal were ordered to be the trustee's costs in the administration of the appellants' bankruptcies. The decision of the Federal Court in McKinnon v Pattison (No 2) [2010] FCA 1315 affirms the power of the Federal Magistrate to enforce compliance with orders made under the Bankruptcy Act 1966 (Cth), and the consequences that may arise from a failure to comply with such orders.

Orders