O'Neill v Piscopo (No 2)

FEDERAL COURT OF AUSTRALIA

O’Neill v Piscopo (No 2) [2011] FCA 774

Citation:	O’Neill v Piscopo (No 2) [2011] FCA 774
Appeal from:	Rose & Ors v Piscopo [2010] FMCA 948
Parties:	MICHAEL O’NEILL v SAMUEL PISCOPO and TERRY DONALD HILL
File number(s):	NSD 52 of 2011
Judge:	EMMETT J
Date of judgment:	30 June 2011
Legislation:	Bankruptcy Act 1966 (Cth) s 179
Cases cited:	Jones v Dunkel (1959) 101 CLR 298 O’Neill v Piscopo [2011] FCA 773
Date of hearing:	30 June 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	11
Counsel for the appellant:	R D Marshall with D Bampton
Solicitor for the appellant:	O’Neill Partners
Counsel for the respondents:	R Dubler SC with D Allen
Solicitor for the respondents:	Proctor & Associates

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 52 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MICHAEL O’NEILL
Appellant

AND:

SAMUEL PISCOPO
First Respondent

TERRY DONALD HILL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	30 JUNE 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellant file a further draft supplementary notice of appeal no later than 12 July 2011.

2.The question of whether leave to appeal should be granted in respect of the refusal to make an order under s 179 of the Bankruptcy Act 1966 (Cth) be stood over to the hearing of the appeal on 4 August 2011.

3.The question of any amendment to the proposed grounds of appeal be determined by the appeal judge.

4.The appellant pay the first respondent’s costs of today.

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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 52 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MICHAEL O’NEILL
Appellant

AND:

SAMUEL PISCOPO
First Respondent

TERRY DONALD HILL
Second Respondent

JUDGE:	EMMETT J
DATE:	30 JUNE 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The first respondent seeks summary dismissal of this proceeding as incompetent, or, alternatively, on the basis that the grounds of appeal do not disclose a reasonably arguable case.  After argument on 28 June 2011, for the reasons that I then gave (see O’Neill v Piscopo [2011] FCA 773), I directed the prospective appellant, Mr O’Neill, to file a draft supplementary notice of appeal. That was filed. However, I do not regard the document as satisfactorily describing separate and specific grounds upon which an appellate court could conclude that there was error on the part of the Federal Magistrates Court in failing to direct an inquiry under s 179 of the Bankruptcy Act 1966 (Cth).

2. The argument today has served some purpose in clarifying, to some extent, the contentions to be advanced on behalf Mr O’Neill.  As I understand the contentions, they are twofold.  First, the appellant seeks…