Re Heerey; Ex parte Heinrich

The applicant, Mr Stephen Heinrich, sought a constitutional writ of mandamus directed to Justices Heerey, Branson, and Lindgren of the Federal Court of Australia. The application was made pursuant to s 75(v) of the Constitution, which grants the High Court original jurisdiction to issue writs of mandamus against officers of the Commonwealth. Mr Heinrich sought to compel the respondent judges to vary an order made by Mansfield J, which had imposed a sequestration order against his estate, by ordering an account of mutual dealings as requested by the applicant. He also sought a stay of all public examination proceedings until this account was taken. The respondent judges constituted the Full Court of the Federal Court, which had previously dismissed Mr Heinrich's appeal from Mansfield J's sequestration order.

The legal issues before the High Court concerned the applicant's entitlement to an order for an account of mutual dealings under s 86 of the *Bankruptcy Act 1966* (Cth) and whether the Federal Court had erred in refusing to grant this relief. Specifically, the court had to consider whether s 86 could be invoked in the circumstances, whether the Federal Court's appellate jurisdiction was engaged in a manner that would permit such an order, and whether the underlying decisions of the Supreme Court of South Australia and the Federal Court disclosed any error.

Kirby J reasoned that s 86 of the *Bankruptcy Act* applies only after a person has become bankrupt and assumes the validity of the sequestration order. The applicant had not contested the sequestration order before the Full Court. Furthermore, s 86 governs the administration of a bankrupt's estate, and the appeal before the Full Court was from a judgment of Mansfield J, not directly concerning the administration of the estate itself. To order an account under s 86, the judgment of Mansfield J would first need to be set aside for error, which had not occurred. The court also noted that the applicant had not appealed from a judgment of the Supreme Court of South Australia, upon which the bankruptcy notice was based, and that judgment remained valid and in force under s 118 of the Constitution. The applicant had also unsuccessfully sought to establish a counterclaim or set-off against the creditor before another Federal Court judge. Consequently, the challenge to the Federal Court's decisions was considered misconceived.

The application for the writ of mandamus was refused.