Pearce (Trustee) v Mulhern (Bankrupt) (No 2) - [2012] FCA 7

FEDERAL COURT OF AUSTRALIA
Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7

Citation: Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7

Parties: MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT) v MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT)

File number: QUD 176 of 2011

Judge: BUCHANAN J

Date of judgment: 12 January 2012

Catchwords: BANKRUPTCY AND INSOLVENCY – arrest warrant – failure to attend public examination – use of an alias – flight risk

Legislation: Bankruptcy Act 1966 (Cth) s 78

Cases cited: Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930

Date of hearing: Heard on the papers

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 4

Solicitor for the Applicant: Lynch Morgan Lawyers

Counsel for the Respondent: Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 176 of 2011

BETWEEN:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT)
Applicant

AND:
MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT)
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

11 JANUARY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.A warrant issue pursuant to section 78(1)(f) of the Bankruptcy Act 1966 (Cth) (“the Act”) in the form of Form 16 of the Federal Court (Bankruptcy) Rules 2005 for the arrest of the respondent bankrupt Michael Richard Mulhern also known as Derek O’Malley and his committal to such gaol as the Court appoints until this Court otherwise orders.
2.The costs of this application including the costs of this day be payable from the estate of the respondent bankrupt with priority in accordance with section 109 of the Act.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 176 of 2011

BETWEEN:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Applicant

AND:
MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Respondent

JUDGE:

BUCHANAN J

DATE:

12 JANUARY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 9 August 2011 Logan J ordered that a warrant be issued pursuant to s 78(1)(f) of the Bankruptcy Act 1966 (Cth) for the arrest of the respondent bankrupt, Michael Richard Mulhern also known as Derek O’Malley and for his committal to gaol (Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930). The arrest warrant directed that Mr Mulhern, when arrested, be delivered to Her Majesty’s Gaol at Brisbane and it directed the Governor or Keeper of that gaol to receive him and keep him in custody until the Court otherwise orders. The arrest warrant also required and authorised the seizure of specified property.
It appears that Mr Mulhern was arrested by the Australian Federal Police at…

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: [2012] FCA 7
Decision Date: 12 January 2012

CaseChat Overview and Summary

The parties involved in this case are Pearce, acting as the trustee of the estate of a bankrupt, and Mulhern, a bankrupt individual. The dispute revolves around Mulhern's failure to attend a public examination and his use of an alias, Derek O'Malley. The matter was heard in the Federal Court of Australia. The court was tasked with determining whether the respondent, Mulhern, had committed an offence under section 78(1)(f) of the Bankruptcy Act 1966 (Cth) by failing to attend a public examination. This provision allows for the arrest and committal of a bankrupt to gaol if they do not appear at a public examination without sufficient cause.

The primary legal issue before the court was whether Mulhern's failure to attend the examination constituted an offence. The court also had to consider whether Mulhern's use of an alias and his potential flight risk were relevant factors in the decision. The trustee argued that Mulhern's actions demonstrated a lack of cooperation with the administration of his bankruptcy estate and posed a flight risk, thereby justifying his arrest and committal.

The court found that Mulhern's failure to attend the examination was indeed an offence under the Act. It considered the seriousness of the offence, Mulhern's use of an alias, and the potential flight risk. The court concluded that these factors warranted the issuance of an arrest warrant for Mulhern. The court ordered that Mulhern be arrested and committed to gaol until further order of the court. Additionally, the court ruled that the costs of the application, including the costs of the day, were to be paid from Mulhern's estate, with priority in accordance with section 109 of the Act.

Orders

Orders of the court

1. A warrant issue pursuant to section 78(1)(f) of the Bankruptcy Act 1966 (Cth) (“the Act”) in the form of Form 16 of the Federal Court (Bankruptcy) Rules 2005 for the arrest of the respondent bankrupt Michael Richard Mulhern also known as Derek O’Malley and his committal to such gaol as the Court appoints until this Court otherwise orders.

2. The costs of this application including the costs of this day be payable from the estate of the respondent bankrupt with priority in accordance with section 109 of the Act.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7
Parties:		MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT) v MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT)
File number:		QUD 176 of 2011
Judge:		BUCHANAN J
Date of judgment:		12 January 2012
Catchwords:		BANKRUPTCY AND INSOLVENCY – arrest warrant – failure to attend public examination – use of an alias – flight risk
Legislation:		Bankruptcy Act 1966 (Cth) s 78
Cases cited:		Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930
Date of hearing:	Heard on the papers
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Solicitor for the Applicant:	Lynch Morgan Lawyers
Counsel for the Respondent:	Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 176 of 2011

BETWEEN:	MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT) Applicant
AND:	MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O’MALLEY (A BANKRUPT) Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	11 JANUARY 2012
WHERE MADE:	SYDNEY

JUDGE:	BUCHANAN J
DATE:	12 JANUARY 2012
PLACE:	SYDNEY