Nathan v Burness - [2010] FCA 718

FEDERAL COURT OF AUSTRALIA
Nathan v Burness [2010] FCA 718

Citation: Nathan v Burness [2010] FCA 718

Appeal from: Burness & Anor v Nathan [2010] FMCA 495

Parties: KAILAI NATHAN v PAUL BURNESS

File number(s): VID 530 of 2010

Judge: BROMBERG J

Date of judgment: 5 July 2010

Catchwords: PRACTICE AND PROCEDURE – Bail Application – applicable principles for grant of bail pending hearing of appeal from sentence of imprisonment – Bail granted.

Legislation: Bankruptcy Act 1966 Cth ss 81, 264C
Federal Court of Australia Act 1976 (Cth) ss 59(1)(f), 29(1)(b)
Federal Court Rules O 52 r 35(3)

Cases cited: Chamberlain v The Queen (1983) 69 FLR 445
Clarke v R [2000] FCA 171
Re Cooper’s Application for Bail [1961] ALR 584
Roddan v R [2002] WASCA 69

Date of hearing: 5 July 2010

Date of last submissions: 5 July 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Applicant appeared in person via video link

Counsel for the Respondent: Mr Begg

Solicitor for the Respondent: Lennon Mazzeo Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 530 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
KAILAI NATHAN
Applicant

AND:
PAUL BURNESS
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

5 JULY 2010

WHERE MADE:

MELBOURNE

UNDERTAKINGS:
On the appellant giving the following undertakings that, until the hearing and determination of the appeal or further order, he:

Not make any application for any passport;

Not leave the State of Victoria without the prior written approval of the District Registrar of the Victorian Registry of the Court (“District Registrar”);

Report to the Keilor Downs Police Station on each Wednesday and Saturday between the hours of 8am and 9pm and produce his Victorian driver’s licence or other form of photographic identification; and

Reside at 160 Gordon Street, Footscray in the State of Victoria or such other address as provided in writing to the District Registrar.

THE COURT ORDERS THAT:
1.Subject to the appellant surrendering his Australian passport to the District Registrar:
a)as of 4.30pm on 5 July 2010, the further operation of Order 2 of the Orders of Federal Magistrate Burchardt of 17 June 2010 be suspended pending the hearing and determination of the appeal;
b)the appellant be released on bail with a duty to surrender to the Court at Melbourne on a date and time to be notified to the appellant by the District Registrar;

2.Pursuant to Order 80 rule 4 of the Federal Court Rules, the appellant be referred to the Registrar for referral to a legal practitioner on the Pro Bono Panel, for legal assistance in relation to the appeal.
3.Costs be reserved.

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 530 of 2010

ON APPEAL FROM THE FEDERAL…

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 Nathan v Burness

Details

AGLC: Nathan v Burness [2010] FCA 718
Case: [2010] FCA 718
Decision Date

CaseChat Overview and Summary

Kailai Nathan appeals against the sentence of imprisonment for one month imposed on him by Burchardt FM for contempt of court. Nathan argues that he should be released on bail pending the hearing of his appeal. The appeal is heard by Bromberg J in the Federal Court of Australia. The court must decide whether bail should be granted to Nathan pending the hearing of his appeal, considering the exceptional circumstances and the merits of the appeal.

The court considers whether there are exceptional circumstances to justify granting bail pending the appeal. The sentence imposed is relatively short, and Nathan has already served more than 18 days of his sentence. If the appeal is not heard before the end of his sentence, it will likely be rendered nugatory or substantially so. The court also takes into account the potential merit of the appeal, as there are questions regarding whether Nathan was properly charged with contempt and whether the events before the Federal Magistrate could constitute contempt in the face of the court. Additionally, there is no evidence suggesting that Nathan is a danger to the community or that he will abscond if released on bail.

The court grants bail to Nathan, subject to specific conditions and undertakings being met. These include surrendering his Australian passport, reporting to the police on certain days, and residing at a specified address. The court also orders that Nathan be referred to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to the appeal.

The court orders that Nathan be released on bail, subject to the aforementioned conditions and undertakings. The costs of the appeal are reserved.

Orders