O'Bryan v Koskie

[2008] FCA 1366

FEDERAL COURT OF AUSTRALIA

O’Bryan v Koskie [2008] FCA 1366

Acts Interpretation Act 1901 (Cth), s 23(b)
Bankruptcy Act 1966 (Cth), s 153B
Commonwealth Constitution, s 79
County Court Act 1958 (Vic)

Re Bryant and Another; Ex parte Guarino (2001) 178 ALR 57
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309

DARRYL MARK O'BRYAN v OLGA SARAH KOSKIE, CITY OF MONASH and PETER ROBERT VINCE

VID 266 OF 2008

MARSHALL J
4 SEPTEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DARRYL MARK O'BRYAN
Appellant

AND:

OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	4 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first and second respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DARRYL MARK O'BRYAN
Appellant

AND:

OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:	MARSHALL J
DATE:	4 SEPTEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant, Mr O’Bryan, appeals from a judgment of Federal Magistrate Burchardt of 7 April 2008 in which his Honour made a sequestration order against Mr O’Bryan’s estate. When the matter was called on this morning the appellant did not appear. The Court, however, had the benefit of written submissions provided by him and responding submissions provided by the first and second respondents.

2. The Federal Magistrate held that the petitioning creditors had met the formal requirements provided by the Bankruptcy Act 1966 (Cth). His Honour was satisfied that a judgment debt in the sum of $13,271.20 had not been satisfied by Mr O’Bryan. The debt arose from an order made by the County Court of Victoria.

3. The notice of appeal purports to raise an appeal from not only the judgment of the Federal Magistrates Court but also from certain judgments of the County Court. This Court has no jurisdiction with respect to the latter judgments. I will treat the appeal as confined to an appeal from the judgment of Burchardt FM made on 7 April 2008.

4. Mr O’Bryan submitted that the judgment of the County Court is invalid because the order in that Court was made and the proceeding heard by a single judge. Mr O’Bryan submitted that s 79 of the Commonwealth Constitution requires a plurality of judges to hear federal matters. The words of the section do not bear out that submission. They provide:

   The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

   There is nothing to stop that number being one. In Re Bryant and Another; Ex parte Guarino (2001) 178 ALR 57, Hayne J stated (at 59) that “[s]ection 79 is, therefore, concerned with whether federal jurisdiction is to be exercised by a court constituted by one or by more than one judge.” (emphasis added).

5. Section 23(b) of the Acts Interpretation Act 1901 (Cth) provides that, unless the contrary intention appears, words in the singular number include the plural and words in the plural number include the singular. This statutory rule of interpretation is eminently sensible. As the Privy Council commented in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 (at 656) in relation to an equivalent provision of the then Interpretation Act 1897 (NSW), “[s]uch a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording.”

6. Further, as said by O’Connor J in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 368, “[w]here the question is whether the Constitution has used an expression in the wider or the narrower sense … always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object or purpose”.

7. In any event, the County Court was not exercising federal jurisdiction when it made its order against Mr O’Bryan for the payment of $13,271.20.

8. I accept the submission of the first and second respondents that the County Court of Victoria is a properly constituted court established in accordance with the provisions of the County Court Act 1958 (Vic).

9. I also accept that there is no reason in this case to go behind the judgment of the County Court as no valid reason has been advanced which would require the Court to do so. Further no persuasive reason has been advanced to support an annulment of Mr O’Bryan’s bankruptcy under s 153B of the Act.

10. Consequently, the appeal must be dismissed, with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        4 September 2008

There was no appearance for the Appellant.
Counsel for the First and Second Respondents:	Mr K Baker
Solicitor for the First and Second Respondents:	Macpherson & Kelley Lawyers
There was no appearance for the Third Respondent.

Date of Hearing:	4 September 2008
Date of Judgment:	4 September 2008