Moore v Wilson

[2006] FCA 79

FEDERAL COURT OF AUSTRALIA

Moore v Wilson [2006] FCA 79

BANKRUPTCY – sequestration order made by Registrar – rehearing of petition by Federal Magistrate – whether valid service of bankruptcy notice – whether appellant was solvent

PROCEDURAL FAIRNESS – where appellant self-represented – whether appellant given sufficient time to present evidence and submissions on review application – whether motion to adduce further evidence should have been allowed – whether cross-examination on affidavits should have been allowed – magistrate – ostensibly biased against applicant

Federal Magistrates Act 1999 (Cth)
Bankruptcy Regulations 1996
Federal Court of Australia Act 1976 (Cth)
Evidence Act 1995 (Cth)
Bankruptcy Act 1966 (Cth)

St George Bank Ltd v Helfenbaum [1999] FCA 1337 cited
Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 referred to
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 cited
Meehan v Alfaro (1999) 93 FCR 201 cited
Adelaide Bank Ltd v Badcock [2002] FMCA 10 cited
Clancy v Robinson [2002] FMCA 47 cited
Johnson v Johnson (2000) 201 CLR 488 referred to
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 referred to
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15 cited
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293 referred to
Browne v Dunn (1893) 6 R 67 referred to

DAVID GERALD MOORE v WAYNE STEPHEN WILSON & GAYLE LAWTON

SAD 170 of 2005

MANSFIELD J
10 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 170 OF 2006

BETWEEN:

DAVID GERALD MOORE
APPELLANT

AND:

WAYNE STEPHEN WILSON
FIRST RESPONDENT

GAYLE LAWTON
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

10 FEBRUARY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 170 OF 2006

BETWEEN:

DAVID GERALD MOORE
APPELLANT

AND:

WAYNE STEPHEN WILSON
FIRST RESPONDENT

GAYLE LAWTON
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	10 FEBRUARY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. On 21 January 2005 a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (the Act) was made by Registrar Christie in the Federal Magistrates Court over the estate of the appellant. The order was made on the petition of the respondents of 7 October 2004 in respect of a debt of $4,600, for which they had obtained a judgment by default in the Magistrates Court of South Australia on 11 June 2004 (the costs judgment). The petition was based upon an act of bankruptcy committed on 16 September 2004, namely the failure to comply with a bankruptcy notice served on the appellant on 26 August 2004 itself based upon the costs judgment.

2. The appellant did not attend the hearing on 21 January 2005. It is not important to inquire into why he did not do so. That is simply because he had, and exercised,…