Re Gargan, Peter Alexander Ex parte Gargan, Peter Alexander & The Official Trustee in Bankruptcy

[1996] FCA 872

CATCHWORDS

BANKRUPTCY - application for annulment

Bankruptcy Act 1966 s 153B

Re:  Peter Alexander Gargan ex parte the Abovenamed and The Official Trustee in Bankruptcy
No QB 697 of 1993
Kiefel J  Brisbane  2 October 1996

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

No QB 697 of 1993

RE:

PETER ALEXANDER GARGAN

EX PARTE:
  THE ABOVENAMED

Applicant

AND:
  THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE MAKING ORDER:  Kiefel J
DATE OF ORDER:  2 October 1996
WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application of 29 August 1996 is dismissed. 

2. That part of the application filed 7 July 1995 seeking an order for annulment and that the Court examine evidence to determine that question is also dismissed.

3. The applicant, Peter Alexander Gargan, pay the Official Trustee in Bankrupcty’s costs of and incidental to the two motions to be taxed.

Note:Settlement and Entry of Orders is dealt with in Rule 124 of the Bankruptcy Act.

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLAND

No QB 697 of 1993

RE:

PETER ALEXANDER GARGAN

EX PARTE:
  THE ABOVENAMED

Applicant

AND:
  THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

CORAM:Kiefel J

DATE:2 October 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

When I gave judgment with respect to that part of Mr Gargan's application filed on 7 July 1995, which sought to have an inquiry into the Trustee’s conduct, I adjourned the application for annulment.  Directions then made were to the effect that Mr Gargan file any further affidavits which he intended to rely on by a particular date.  This was in the background of my having adverted to difficulties I foresaw in him successfully arguing for an annulment because he had not opposed the making of the sequestration order.  Further, he did not pursue an appeal from the judgment on which it was founded.

On 29 August 1996, Mr Gargan filed another application and an affidavit.  It seeks to have me rescind or vary my earlier order.  The affidavit filed in support is in some respects offensive in its remarks relating to judges who have heard Mr Gargan's applications.  In any event, I have no power to reconsider the orders then made.  Mr
Gargan's submissions to the contrary are in error.  The consequential orders sought that the Court deal with persons alleged to have given false evidence and engaged in fraudulent conduct, form part of the case Mr Gargan then presented and which I have rejected.

They are, I consider, without apparent foundation.  Mr Gargan's further application also sought a jury hearing of his application for annulment.  I have previously declined an order relating to a jury hearing.  There is simply no warrant for it on normal principles.  Mr Gargan's submission that it is necessary because judges should not reconsider the judgments of other judges, is without any substance.  It is not given weight by his adding to it similar objections by his supporters.

With respect to the question of annulment, Mr Gargan's limited argument, and the arguments advanced for and on his behalf by others, misapprehend what needs to be established to obtain such an order. This is not a matter of mere technicality. It is incumbent upon any applicant for annulment under s 153B, in a case such as this, to satisfy the Court that had the judge making the sequestration order known what are now shown to be the true facts, the order would not have been made. This position is not reached by Mr Gargan and others simply demanding the right to a complete rehearing of the dispute between he and his brother, which was concluded in the Supreme Court of Queensland in 1993. It is not enough that they believe that Mr Gargan should have succeeded in that action. Indeed, on this application Mr Gargan did not attempt to establish grounds why the order should not have been made, but based his submissions upon his interpretation of the Bankruptcy Act 1966 and The Constitution, which
submissions I do not accept.

That is not to say of course that the allegations of false evidence, wrong findings of fact, or inaccurate legal reasoning in that judgment, have not been gone over previously.  Far from Mr Gargan not having had an opportunity to make out some case with respect to the incorrectness of the judgment, it seems to me that he has had opportunities to do so.  It is simply that his submissions have not met with success.

I should add that the application for annulment has not been served on all creditors, in particular, those who might be thought likely to oppose it have not been served.  Those who support Mr Gargan in his application, have however been heard, and I have taken their written submissions into account. 

The application of 29 August 1996 will be dismissed.  That part of the application filed 7 July 1995 seeking an order for annulment, and that the Court examine evidence to determine that question, is also dismissed.  There will be a further order that the applicant, Peter Alexander Gargan, pay the Trustee’s costs of and incidental to the two motions to be taxed.

I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:2 October 1996

The applicant:  In Person

Solicitors for the respondent:                Australian Government Solicitor

Date of Hearing:  30 September 1996
Place of Hearing:  Brisbane
Place of Judgment:  Brisbane
Date of Judgment:  2 October 1996