Official Trustee in Bankruptcy v Forrest - [2000] FCA 907

FEDERAL COURT OF AUSTRALIA
Official Trustee in Bankruptcy, in the matter of
Forrest (Bankrupt) v Forrest [2000] FCA 907
COSTS - availability of a costs certificate pursuant to Federal Proceedings (Costs) Act 1981 - where proceedings adjourned, not discontinued, prior to commencement.
Federal Proceedings (Costs) Act 1981 (Cth) s 10(3)
Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106 distinguished
Re Palmdale Insurance Ltd (1994) 122 ACTR 33 distinguished
Re Morris; Morris v Maroudas (1986) 66 ALR 699 applied
THE OFFICIAL TRUSTEE IN BANKRUPTCY v JEFFREY ROY FORREST & JANICE MAY FORREST
Q 7493 OF 1999
KIEFEL J
BRISBANE
7 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7493 OF 1999

BETWEEN:

THE OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANT

AND:

JEFFREY ROY FORREST
FIRST RESPONDENT

JANICE MAY FORREST
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

7 JULY 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The application for a Certificate under s.10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) 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

QUEENSLAND DISTRICT REGISTRY

Q 7493 OF 1999

BETWEEN:

THE OFFICIAL TRUSTEE IN BANKRUPTCY
APPLICANT

AND:

JEFFREY ROY FORREST
FIRST RESPONDENT

JANICE MAY FORREST
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE:

7 JULY 2000

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 19 November 1999, the Official Trustee in Bankruptcy applied to the Court for the issue of summonses for the examination of the bankrupts and their children under s 81 Bankruptcy Act 1966 (Cth). After their issue the examinations were set down for hearing to commence on Monday 13 March 2000 before a Deputy District Registrar. When the Trustee’s legal representatives attended at the Court on that date, they were informed that due to the unavailability of a Deputy District Registrar to hear the matter, the examinations were adjourned to a date to be fixed. I am informed that the Deputy District Registrar who was to hear the matter that day was ill.
The Official Trustee now seeks the costs thrown away by the adjournment, by way of issue of a costs certificate under s 10(3) Federal Proceedings (Costs) Act 1981 (Cth). I have treated the Trustee’s letter as the application required by subs (3). Section 10 is entitled “Costs Certificates – Incomplete Proceedings” and by subs (1) applies to this Court. Subsections (2), (3) and (4) then provide:
“(2)Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3)Subject to this…

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.

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Details

Case: [2000] FCA 907
Decision Date: 7 JULY 2000

CaseChat Overview and Summary

The case involved the Official Trustee in Bankruptcy as the applicant, and Forrest as the defendant. The dispute arose in the context of bankruptcy proceedings and centred on the issue of whether a costs certificate could be issued under section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) following an adjournment of the proceedings. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the proceedings could be considered as having been discontinued, which would have made a costs certificate available under the relevant section of the Act. The court had to determine if the mere fact that the proceedings were adjourned constituted a discontinuation of the proceedings within the meaning of the Act. The court also considered whether the circumstances leading to the adjournment could have any bearing on the availability of a costs certificate.

In dismissing the application, the court held that the proceedings had not been discontinued. The court reasoned that the proceedings had been adjourned, not terminated, and therefore, the conditions for issuing a costs certificate under section 10(3) of the Act were not met. The court found that the distinction between an adjournment and a discontinuation was significant and that the nature of the adjournment did not equate to a discontinuation of the proceedings. Consequently, the application for a Certificate under section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) was dismissed.

The final order of the court was that the application for a Certificate under section 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) was dismissed, reflecting the court's determination that the proceedings had not been discontinued.

Orders

Orders of the court

1. The application for a Certificate under s.10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.

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

KIEFEL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7493 OF 1999

BETWEEN:	THE OFFICIAL TRUSTEE IN BANKRUPTCY APPLICANT
AND:	JEFFREY ROY FORREST FIRST RESPONDENT JANICE MAY FORREST SECOND RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	7 JULY 2000
WHERE MADE:	BRISBANE

JUDGE:	KIEFEL J
DATE:	7 JULY 2000
PLACE:	BRISBANE