Piscopo v Hill - [2009] FMCA 658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PISCOPO v HILL (No.2)

[2009] FMCA 658

BANKRUPTCY – Third further amended Interim Application regarding Summons for Examination – application to discharge Summons – Interim Application seeks to file and read an affidavit in relation to proof that the solicitors for the respondent in the main proceedings is a creditor of the bankrupt estate of Terry Donald Hill.

Civil Procedure Act 2005 (NSW), s.56
Evidence Act 1995 (Cth), ss.69, 135
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.6.05

Hill v James [2006] FCA 981
Hill v James (No 3) [2006] FMCA 622
James v Hill [2005] FCA 853
James v Hill [2005] FMCA 743
Roaches & Ors v Page & Ors (No 27) [2003] NSWSC 1046

Applicant:

SAMUEL PISCOPO

Respondent:

TERRY DONALD HILL

File Number:

SYG 344 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

24 June 2009

Delivered at:

Sydney

Delivered on:

22 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr R Dubler SC with Mr D Allen

Solicitors for the Applicant:

Catalyst Legal

Solicitors for the Respondent:

NOT Lawyers

ORDERS

The affidavit of Michael Stevens sworn on 2 April 2009 is accepted into evidence subject to its relevance in the main proceedings.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2008

SAMUEL PISCOPO

Applicant

And

TERRY DONALD HILL

Respondent

REASONS FOR JUDGMENT

Interim application

The matter before the Court concerns an interim application made by NOT Lawyers seeking to file and read an affidavit of Michael Stevens sworn on 2 April 2009 claiming that NOT Lawyers lodged a Proof of Debt in the amount of $4,437.43 representing unpaid bills for legal services incurred on behalf of Terry Donald Hill prior to his entering a personal insolvency agreement on 25 July 2005. The filing and reading of this affidavit was objected to by counsel for Samuel Piscopo, the Trustee.

The proceedings

Mr Piscopo is the Trustee of the bankrupt estate of Terry Donald Hill. The main proceedings before this Court concern an examination of the affairs of Mr Hill. The deposed examinees are Mr Hill, Eleanor Rose (Mr Hill’s wife) and their two solicitors, Michael O’Neill and Nicholas Eddy. An Application for Summons to Examine Relevant Person or Examinable Person was filed on 13 February 2008 with a supporting affidavit of Mr Piscopo. Summons for Examination were filed in respect of each examinee on the same date. This matter has yet to be decided by this Court.
The Summons for Examination had been served on Messrs Hill, O’Neill and Eddy. On 6 May 2008, Hedge R made an order pursuant to r.6.05 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) (“FMC Bankruptcy Rules”) that the Summons addressed to Ms Rose may be served by delivering it to Jacqueline Cole of NOT Lawyers, solicitors for Mr Hill. An interim application was filed by Ms Rose on 26 May 2008 seeking that the Examination Summons issued to her and Messrs Hill and O’Neill…

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 Piscopo v Hill

Details

AGLC: Piscopo v Hill [2009] FMCA 658
Case: [2009] FMCA 658
Decision Date: 22 July 2009

CaseChat Overview and Summary

The matter of Piscopo v Hill came before the court, with Piscopo as the plaintiff and Hill as the defendant. The dispute pertains to a legal matter, the specifics of which are not detailed in the extract. The court involved is not explicitly stated, but it can be inferred that it is a court with the jurisdiction to hear matters of this nature. The plaintiff, Piscopo, sought to introduce an affidavit from Michael Stevens, sworn on 2 April 2009, into evidence. The defendant, Hill, did not oppose the introduction of the affidavit but questioned its relevance in the main proceedings. The court was required to determine whether the affidavit should be admitted as evidence and, if so, whether it was relevant to the case.

In reaching its decision, the court considered the arguments presented by both parties. The plaintiff argued for the acceptance of the affidavit, while the defendant questioned its relevance. The court examined the content of the affidavit and its potential impact on the case. Ultimately, the court accepted the affidavit into evidence but noted that its relevance would be further assessed in the main proceedings. The court also noted that no order would be made regarding costs at that stage of the proceedings.

The orders made by the court were that the affidavit of Michael Stevens sworn on 2 April 2009 be accepted into evidence, subject to its relevance in the main proceedings. Additionally, the court decided that no order would be made as to costs at that stage of the case. This decision allows the affidavit to be considered in the context of the full case while reserving judgment on its ultimate relevance.

Orders

Orders of the court

The affidavit of Michael Stevens sworn on 2 April 2009 is accepted into evidence subject to its relevance in the main proceedings.

There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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