Pitman v Johnson - [2015] FCCA 3405

FEDERAL CIRCUIT COURT OF AUSTRALIA

PITMAN & ORS v JOHNSON & ANOR

[2015] FCCA 3405

Catchwords:
BANKRUPTCY – Application for issue of warrant pursuant to section 130 of the Bankruptcy Act by trustee in bankruptcy – warrant directed to securing property lodged at storage facility by bankrupt – nature of proceedings – eligible judge – distinction between administrative and judicial proceedings.

PROCEDURE – Application to intervene – matters to be considered.

Legislation:

Bankruptcy Act 1966, ss.54(1); 58(1)(a); 77; 129(1); 129A; 130; 130(1); 130(2); 130(4)

Federal Circuit Court Rules 2011, rr.1.05(1); 9.12(1); 9.12(2), 11.02

Portellos v GE Finance Australasia Pty Ltd [2013] FCCA 1044
Trop Nominees Pty Ltd v Liquor Licencing Commissioner (1987) 46 SASR 255
Trollope v The Honourable Justice Middleton& Jesse Rambaldi (as trustee of the bankrupt estate of Barry Barton Trollope) [2008] FCA 564
Commercial & General Law (SA) Pty Ltd v Law Society of South Australia [2015] SASC 16

Applicants:

PHILIP JOHN PITMAN, DEAN CLIFT & DOROTHEA TOMAZOS

First Respondent:

GREGG ROBERTSON JOHNSON AS TRUSTEE OF THE BANKRUPT ESTATE OF SOTIRIOS PORTELLOS

Second Respondent:

RECALL INFORMATION MANAGEMENT PTY LTD

File Number:

ADG 349 of 2013

Judgment of:

Judge Brown

Hearing date:

5 November 2015

Date of Last Submission:

5 November 2015

Delivered at:

Adelaide

Delivered on:

22 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Ryder

Solicitors for the Applicant:

O'Loughlins Lawyers

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

No appearance

Counsel for Proposed Intervenors:

Mr Strawbridge

Solicitors for Proposed Intervenors:

Neil Strawbridge

ORDERS

The application filed on 4 June 2015 is dismissed.
The applicants pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 349 of 2013

PHILIP JOHN PITMAN, DEAN CLIFT & DOROTHEA TOMAZOS

Applicants

And

GREGG ROBERTSON JOHNSON AS TRUSTEE OF THE BANKRUPT ESTATE OF SOTIRIOS PORTELLOS

First Respondent

And

RECALL INFORMATION MANAGEMENT PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceeding arise by virtue of an application in a case filed by Philip John Pitman, Dean Clift and Dorothea Tomazos, in which they seek to intervene in proceedings arising between Gregg Robertson Johnson, in his capacity as trustee of the bankrupt estate of Sotirios Portellos and Recall Information Management Pty Ltd “Recall”.
Recall operates storage facilities throughout Australia. It was Mr Johnson’s position that Mr Portellos had lodged property, in one of Recall’s facilities, which had vested in him as a result of Mr Portellos’ bankruptcy.
As a consequence of his view, Mr Johnson applied to an eligible judge of this court to search the premises of Recall to locate this property and secure it. Warrants to this effect have been issued by the court on two separate occasions.
It is the submission of his counsel, Mr Ryder that the issue of the relevant warrants, by the court, was essentially administrative in character and with their execution its function was complete. As such, he contends that there are currently no proceedings on foot and certainly not ones…

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: [2015] FCCA 3405
Decision Date: 22 December 2015

CaseChat Overview and Summary

In *Pitman v Johnson*, the trustee in bankruptcy applied to the Federal Court of Australia for a warrant under section 130 of the *Bankruptcy Act 1966* (Cth) to secure property held at a storage facility by the bankrupt. The nature of these proceedings, specifically whether they were administrative or judicial in character, and the eligibility of the judge to issue such a warrant, were central to the dispute. An application to intervene in these proceedings was also considered.

The primary legal issue before the Court was whether the application for a warrant under section 130 of the *Bankruptcy Act* constituted a judicial proceeding, thereby requiring it to be heard by an eligible judge. This distinction was critical because the *Bankruptcy Act* confers certain powers on eligible judges, and the nature of the proceeding determined whether the application fell within the scope of those powers.

Judge Brown determined that an application for a warrant under section 130 of the *Bankruptcy Act* is a judicial proceeding. The Court reasoned that such an application involves the exercise of judicial power, as it requires the judge to make a determination based on evidence and legal principles, rather than merely performing an administrative function. Consequently, the application could only be heard and determined by an eligible judge. The Court also considered the principles governing applications to intervene in such proceedings.

Orders