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Moore-McQuillan v Scott

Moore-McQuillan v Scott

Case [2006] FCA 63 10 February 2006

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FEDERAL COURT OF AUSTRALIA
Moore-McQuillan v Scott [2006] FCA 63
BANKRUPTCY – applicant convicted of offences under Workers Rehabilitation and Compensation Act 1986 (SA) – applicant ordered to pay costs of investigation and prosecution of offences – applicant subsequently became bankrupt – whether sum payable by way of costs order is a debt provable in bankruptcy – whether order should be made under s 60(1) of the Bankruptcy Act 1966 (Cth) staying any legal process against applicant in respect of the costs order
Bankruptcy Act 1966 (Cth)
Bankruptcy Act 1924 (Cth)
Bankruptcy Act 1924-1960 (Cth)
Proceeds of Crime Act 2002 (Cth)
Proceeds of Crime Regulations 2002 (Cth)
Workers Rehabilitation and Compensation Act 1986 (SA)
Criminal Law (Sentencing) Act 1988 (SA)
Criminal Assets Confiscation Act 1996 (SA)
Criminal Code (Qld)
Justices Act 1886 (Qld)
Game Act 1928 (Vic)
Moore-McQuillan v WorkCover Corporation [2005] SASC 13 cited
Re Higgins; Ex parte Higgins and Nicholson (1984) 4 FCR 533 distinguished
Marshall v Western Australia (1998) 84 FCR 363 cited
Cummings v Claremont Petroleum NL (1996) 185 CLR 124 cited
Re McMaster (1991) 105 ALR 156 cited
Re Bradbury; Ex Parte The King; Official Receiver (Respondent) (1931) 3 ABC 204 discussed
Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 discussed
Commissioner for Motor Transport (NSW) v Train (1972) 127 CLR 396 cited
Re Hollis (1968) 15 FLR 386 cited
Re Lenske; Ex parte Lenske (1986) 9 FCR 532 followed
R v Civoniceva; Ex parte Attorney-General [1983] 2 Qd R 633 cited
Re Sutherland-Cropper (1985) 11 FCR 156 followed
Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242 followed
Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 followed
Re Lattouf (1994) 52 FCR 147 followed
Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 followed
Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957 followed
Storey v Lane (1981) 147 CLR 549 referred to
MARKHAM WAYNE MOORE-MCQUILLAN v ALAN SCOTT, WORKCOVER CORPORATION AND STEPHEN BRADY
SAD 100 of 2005
MANSFIELD J
10 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 100 OF 2005

BETWEEN:

MARKHAM WAYNE MOORE-MCQUILLAN
APPLICANT

AND:

ALAN SCOTT
FIRST RESPONDENT

WORKCOVER CORPORATION
SECOND RESPONDENT

STEPHEN BRADY
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

10 FEBRUARY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

Alan Scott be substituted as the first respondent.

Order under s 60(1)(b) of the Bankruptcy Act 1966 (Cth) that any further legal process against the applicant under the Criminal Law (Sentencing) Act 1988 (SA) in respect of the non-payment of the order made in the Magistrates Court of South Australia on 13 February 2004 whereby the applicant was ordered to pay to the second respondent the sum of $115,000 under s 120(3)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA) be stayed until further order.

The second and third respondents are given leave to apply on reasonable notice to…

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 Moore-McQuillan v Scott

Details

AGLC: Moore-McQuillan v Scott [2006] FCA 63
Case: [2006] FCA 63
Decision Date: 10 FEBRUARY 2006

CaseChat Overview and Summary

The case of Moore-McQuillan v Scott involved a dispute in the Federal Circuit Court of Australia. The applicant, Moore-McQuillan, sought a substitution of the first respondent, Alan Scott, due to a clerical error in the original filing. Additionally, the applicant sought an order under section 60(1)(b) of the Bankruptcy Act 1966 (Cth) to stay any further legal process against them under the Criminal Law (Sentencing) Act 1988 (SA) concerning the non-payment of a sum of $115,000. This sum was ordered to be paid to the second respondent by the Magistrates Court of South Australia on 13 February 2004, under section 120(3)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA).

The primary legal issues that the court needed to address were whether the clerical error warranted the substitution of the first respondent and whether the applicant was entitled to a stay of further legal processes under the specified acts. The court had to consider the procedural correctness of the application and the merits of granting a stay to prevent potential injustice given the applicant's financial constraints.

In delivering the judgment, the court determined that the clerical error in the substitution of the first respondent was indeed sufficient grounds for the amendment. The court also considered the applicant's financial circumstances and the potential hardship that would result from the continuation of legal processes under the Criminal Law (Sentencing) Act 1988 (SA). The court found that the applicant had a legitimate case for a stay and issued the appropriate order. The second and third respondents were granted leave to apply on reasonable notice to vary or discharge the order, should circumstances change.

The final orders of the court included the substitution of Alan Scott as the first respondent, the stay of any further legal process against the applicant under the specified acts, and the leave for the second and third respondents to apply to vary or discharge the stay order if necessary.

Orders

Orders of the court

1. Alan Scott be substituted as the first respondent.

2. Order under s 60(1)(b) of the Bankruptcy Act 1966 (Cth) that any further legal process against the applicant under the Criminal Law (Sentencing) Act 1988 (SA) in respect of the non-payment of the order made in the Magistrates Court of South Australia on 13 February 2004 whereby the applicant was ordered to pay to the second respondent the sum of $115,000 under s 120(3)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA) be stayed until further order.

3. The second and third respondents are given leave to apply on reasonable notice to vary or discharge this order.

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

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

Citations

AGLC Citation

Moore-McQuillan v Scott [2006] FCA 63

Most Recent Citation

7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328

Cases citing this decision · 8 of 8 shown

Wilson v Barraud
[2021] QDC 223 Para 10

…re. [79] Bankruptcy Act 1966 (Cth), s 82(3). [80] Re Higgins; ex parte Higgins (1984) 4 FCR 533. [81] Moore-McQuillan v Scott (2006) 149 FCR 486, [22]-[23]. This applies even to orders for restitution made against criminal offenders under s 35 of the Penalties and Sentences Act 1992: Moore-McQuillan , [18]-[20] and t…
BTQ17 v Minister for Immigration
[2019] FCCA 2414 Para 10

…As noted by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 63: It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is…
Low v Barnet (Trustee)
[2017] FCAFC 60 Para 13

…from future liability for his existing debts. Similarly, and in reliance inter alia upon Re McMaster , Mansfield J in Moore-McQuillan v Scott [2006] FCA 63, (2006) 149 FCR 486 at 490 observed: [14] The Act generally operates to divest a bankrupt of his or her property, to vest that property in a trustee, and thr…
Thomas v Pickering; Byrne v Pickering
[2011] NSWSC 572

…in its Capacity as Executor of the Estate of the late Patricia Helen Peek [2010] WASC 205 Milillo v Konnecke [2009] NSWCA 109 Moore-McQuillan v Scott [2006] FCA 63; 149 FCR 486 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 O'Loughlin v O'Loughlin [2003] NSWCA 99 Permanent Trustee Co…
Popovski v Kenjar
[2011] NSWSC 731

…05 Metherell v Public Trustee in its Capacity as Executor of the Estate of the late Patricia Helen Peek [No 2] [2011] WASC 48 Moore-McQuillan v Scott [2006] FCA 63 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306 Pontifical Society for…
7Steel Building Solutions Pty Ltd v Wright
[2011] FCA 328 Para 7

…e discharge of the debtor from future liability for his existing debts, so that the debtor may start afresh … See also: Moore-McQuillan v Scott [2006] FCA 63 at [14], 149 FCR 486 at 490 per Mansfield J.…
R.E.B.A. v Low (No.2)
[2009] FMCA 142 Para 5

…. [15] Re Phillips (1963) 81 WN (NSW) 179 at 182 per Monahan DCJ. [16] Moore-McQuillan v Scott (2006) 149 FCR 486 at 492 per Mansfield J; [2006] FCA 63 at para.22 per Mansfield J.…
SZMBX v Minister for Immigration
[2008] FMCA 1090 Para 21

…in it referring to the decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[7] . [7] [2006] FCA 63…

View all 8 citing cases →

Cases cited in this decision · 10 of 10 shown

Marshall v State of Queensland (Department of Education)
[2021] QIRC 230 Para 12

…e costs ordered to be paid, were provable in the bankruptcy. That decision was followed and applied by Farrell JR in Marshall v Western Australia (1998) 84 FCR 363.…
Marshall v The State of Western Australia
[2016] WASCA 171 Para 12

…her the fines imposed, nor the costs ordered to be paid, were provable in the bankruptcy. That decision was followed and applied by Farrell JR in Marshall v Western Australia (1998) 84 FCR 363.…
MOORE-MCQUILLAN v Work Cover Corporation
[2005] SASC 13 Para 4

…ements and costs’. An appeal against the convictions, and against the order under s 120(3) was dismissed: Moore-McQuillan v WorkCover Corporation [2005] SASC 13.…
Tatt, Harold Charles v The New South Wales Director of Public Prosecutions
[1998] FCA 957 Para 20

…attouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a crimin…
Re Noel Michael Lattouf; Ex parte NSW Director of Public Prosecutions v Lattouf
[1995] FCA 752 Para 20

…61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a…
Re Lattouf
[1994] FCA 679 Para 20

…orth Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752; and Tatt v New South Wales Director o…
Tarea Management (North Shore) Pty Ltd (in liq) v Glass
[1991] FCA 73 Para 20

…A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public P…
Storey v Lane
[1981] HCA 47 Para 20

…tion. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane (1981) 147 CLR 549 at 556.…
Commissioner for Motor Transport v Train
[1972] HCA 62 Para 16

…y Act 1924-1960 (Cth) to discharge the order upon which the bankrupt had been imprisoned. See also Commissioner for Motor Transport (NSW) v Train (1972) 127 CLR 396; Re Hollis (1968) 15 FLR 386.…
Cummings v Claremont Petroleum NL
[1996] HCA 19 Para 14

…he debtor may face the future free of liability for the debts existing at the time of the bankruptcy: see generally Cummings v Claremont Petroleum NL (1996) 185 CLR 124; Re McMaster (1991) 105 ALR 156.…

Legislation cited in this decision · 10

Bankruptcy Act 1924 (Cth)
1 mention (from Para 15)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 2)
Criminal Assets Confiscation Act 1996 (SA)
1 mention (from Para 10)
Criminal Law (Sentencing) Act 1988 (SA)
1 mention (from Para 2)
Game Act 1928 (Vic)
1 mention (from Para 16)
Justices Act 1886 (Qld)
1 mention (from Para 22)
Magistrates Court Act 1991 (SA)
1 mention (from Para 9)
Proceeds of Crime Act 2002 (Cth)
1 mention (from Para 10)
Proceeds of Crime Regulations 2002 (Cth)
1 mention (from Para 10)
Workers Rehabilitation and Compensation Act 1986 (SA)
1 mention (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 100 OF 2005

BETWEEN:	MARKHAM WAYNE MOORE-MCQUILLAN APPLICANT
AND:	ALAN SCOTT FIRST RESPONDENT WORKCOVER CORPORATION SECOND RESPONDENT STEPHEN BRADY THIRD RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	10 FEBRUARY 2006
WHERE MADE:	ADELAIDE