Ray v Perrett - [2007] FCA 1672

FEDERAL COURT OF AUSTRALIA
Ray v Perrett [2007] FCA 1672
GREG RAY v PAUL PERRETT
NSD 1975 OF 2007
GRAHAM J
26 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1975 OF 2007

BETWEEN:

GREG RAY
Applicant

AND:

PAUL PERRETT
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

26 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT:
1.Orders that the Amended Notice of Motion filed 16 October 2007 be dismissed.
2.Orders that the respondent [the applicant in the motion] pay the applicant’s [the respondent in the motion] costs and that such costs be taxed on an indemnity basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1975 OF 2007

BETWEEN:

GREG RAY
Applicant

AND:

PAUL PERRETT
Respondent

JUDGE:

GRAHAM J

DATE:

26 OCTOBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for a direction that the trial of certain questions of fact, or so-called questions of fact, be had before a jury when the Creditor’s Petition filed 12 July 2007 is heard.
Section 30(3) of the Bankruptcy Act 1966 (Cth) (‘the Act’) provides:
‘30(3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.
When this matter was last before the Court on 11 October 2007, the Court was asked to give a direction under s 30(3) of the Act in respect of what were said to be 18 questions of fact. In my reasons for judgment of 11 October 2007 (see Ray v Perrett [2007] FCA 1624 at 20 – 21) I said:
‘20The ‘questions of fact’ so called referred to in the respondent’s motion filed 8 October 2007 are 18 in number. Not one of them answers the description of a question of fact within the meaning of s 30(3) of the Act. However, the motion is listed before the Court today for directions only. Whilst it may be that the Court can be persuaded, contrary to the view which I have just expressed, that the 18 questions are indeed questions of fact or that some of them are questions of fact, it is necessary to fix a date for the hearing of the Notice of Motion.
21Given the observation which I have just made in relation to questions of fact within the meaning of s 30(3) of the Act, I will grant leave to the respondent to file and serve an Amended Notice of Motion so that he may give consideration to whether he wishes to redefine questions of fact which may warrant trial by a…

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: [2007] FCA 1672
Decision Date: 26 October 2007

CaseChat Overview and Summary

In the Federal Court of Australia, Greg Ray, the applicant, has filed a Creditor’s Petition against Paul Perrett, the respondent, seeking to have Perrett declared bankrupt. The case involves a dispute over whether certain questions of fact identified by Perrett should be tried by a jury. Justice Graham presided over the matter, which was heard on 26 October 2007 in Sydney. The primary legal issue before the court was whether the questions of fact identified by Perrett in his Amended Notice of Motion warranted a trial by jury under section 30(3) of the Bankruptcy Act 1966. Section 30(3) of the Act provides that the Federal Court may direct a trial of questions of fact before a jury if a party desires such a trial. The court was required to determine if the questions identified by Perrett qualified as questions of fact under this provision.

Justice Graham thoroughly examined the four questions of fact presented by Perrett in his Amended Notice of Motion. The first question pertained to the effect of the Federation of Australia in 1900 on the constitution of federal courts, which the court deemed to be a question of law rather than fact. The second question involved the requirement of a jury in court proceedings, which again was identified as a legal issue. The third question was not a clear question but rather a request for an account under the Act, making it a legal matter. The fourth question sought to join a third party, Newcastle Newspapers Pty Ltd, as a party to the proceedings, which the court found to be an inappropriate application. The court found no merit in any of the questions proposed by Perrett and concluded that they did not qualify as questions of fact for a jury trial. The court also highlighted the procedural irregularities in the filing of the motion and the lack of relevant evidence, leading to a waste of the court’s time and resources.

The court dismissed the Amended Notice of Motion filed by Perrett on 16 October 2007, finding it to be without merit. Justice Graham further ordered that Perrett pay Ray’s costs on an indemnity basis, reflecting the court's view that the motion was frivolous and a waste of judicial resources.

Orders