Piscopo v Hill & Ors (No.3) - [2010] FMCA 153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PISCOPO v HILL & ORS (No.3)

[2010] FMCA 153

BANKRUPTCY – Third further amended interim application – application for the Examination to be discharged – application for certain subpoenas to be set aside – application pursuant to s.179 of the Bankruptcy Act 1966 (Cth) to inquire into the conduct of the Trustee in relation to the administration of the bankruptcy of Terry Donald Hill – seeking the removal of the Trustee from that office.

PRACTICE & PROCEDURE – Application in a Case to reopen proceedings – whether the availability of fresh evidence warrants reopening – power to grant leave for further evidence in chief to be adduced after trial of proceedings has concluded and judgment reserved.

Bankruptcy Act 1966 (Cth), ss.149, 179, Part X
Evidence Act 1995 (Cth) s.135
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.6.05

BDT Holdings v Piscopo (No 2) [2009] FCA 1126
Gulf Pacific Pty Ltd v Londish [1992] FCA 502
Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
McCartney v McIntyre [2000] FCA 1250
Murray v Figge (1974) 4 ALR 612
Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310
Smith v New South Wales Bar Association (1992) 176 CLR 256
The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Urban Transport Authority of NSW v Nweiser (1992) 28 NSW LR 471

Applicant:

SAMUEL PISCOPO

First Respondent:

TERRY DONALD HILL

Second Respondent:

ELENA ROSE

Third Respondent:

MICHAEL O’NEILL

File Number:

SYG 344 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

15 February 2010

Delivered at:

Sydney

Delivered on:

12 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr D Allen

Solicitors for the Applicant:

J Kekatos of Proctor & Associates

Counsel for the Respondent:

Mr Gleeson

Solicitors for the Respondent:

NOT Lawyers

ORDERS

The Application in a Case to reopen the proceedings is granted.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 344 of 2008

SAMUEL PISCOPO

Applicant

And

TERRY DONALD HILL

First Respondent

ELENA ROSE

Second Respondent

MICHAEL O’NEILL

Third Respondent

REASONS FOR JUDGMENT

Interim application

The proceedings

Mr Piscopo is a Trustee in the bankrupt estate of Terry Donald Hill. The proceedings before this Court concern the examination of the affairs of Mr Hill. The imposed examinees are Mr Hill, Elena Rose (Mr Hill’s wife) and their two solicitors, Michael O’Neill and Nicholas Eddy. An application for summons to examine relevant persons or examinable persons was filed on 13 February 2008 with the supporting affidavit of Mr Piscopo. Summons of examination were filed in respect of each examinee on the same date.
The summonses of examination have been served on Messrs Hill and Neil and Eddy. On 6 May 2008 Registrar Hedge 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…

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: [2010] FMCA 153
Decision Date: 12 March 2010

CaseChat Overview and Summary

In the matter of Piscopo versus Hill and Others, the applicant, Mr. Piscopo, filed a third further amended interim application in the Federal Court of Australia. The case concerns the administration of the bankruptcy of Terry Donald Hill. The applicant sought the discharge of an Examination and the setting aside of certain subpoenas. Additionally, Mr. Piscopo applied under section 179 of the Bankruptcy Act 1966 (Cth) to inquire into the conduct of the Trustee in relation to the administration of Mr. Hill's bankruptcy, and requested the removal of the Trustee from office. The central legal issues the court had to address included whether the availability of fresh evidence justified reopening the proceedings, and whether the court had the authority to allow further evidence to be introduced after the trial had concluded and judgment had been reserved.

The court examined the application to reopen the proceedings, considering whether the fresh evidence provided a valid reason to revisit the case. It assessed the circumstances under which such evidence could be deemed significant enough to warrant reopening, and the procedural implications of allowing further evidence after the trial. The court also scrutinized the application for leave to adduce further evidence in chief after the trial had concluded and judgment had been reserved. In its reasoning, the court determined that the availability of fresh evidence did indeed warrant reopening the proceedings. Furthermore, the court concluded that it possessed the necessary authority to permit the introduction of additional evidence in these exceptional circumstances.

As a result, the court granted the application in a case to reopen the proceedings. This decision allowed the introduction of fresh evidence, thereby providing an opportunity for a more comprehensive examination of the issues at hand. The court's decision provided relief to the applicant and allowed the case to be reconsidered with the new evidence in light.

Orders

Orders of the court

The Application in a Case to reopen the proceedings is granted.

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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