Re Lambie - [2018] HCATrans 7

[2018] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Canberra No C27 of 2017

B e t w e e n -
IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MS JACQUI LAMBIE

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 FEBRUARY 2018, AT 10.16 AM

MR C.R.C. NEWLINDS, SC: May it please the Court, I appear with MR P. KULEVSKI and we appear for Ms Katrina McCulloch. (instructed by Holman Webb Lawyers)

MR P.H. SOLOMON, QC: If your Honours please, with MR C.O.H. PARKINSON I appear for Mr Martin. (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE, QC, Solicitor‑General for the Commonwealth: May it please the Court, I appear with MS Z.E. MAUD and MR B.K. LIM for the Commonwealth Attorney‑General. (instructed by the Australian Government Solicitor)

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MR M. HOSKING for the Attorney‑General for the State of Victoria intervening. (instructed by the Victorian Government Solicitor)

KIEFEL CJ: Yes, Mr Newlinds.

MR NEWLINDS: What brings us here, your Honours, is an argument arising out of what the Attorney sought in paragraph 2 of his summons filed on 12 December 2017, which is at page 74 of court book number 1. Justice Nettle made an order which is at page 68 of that same book on 8 December giving my client and others leave to be heard in relation to that matter and at page 92 Justice Nettle in paragraph 12 of some orders made on that day reserved this question for the consideration of the Full Court.

The question is, is the mayor of Devonport an office of profit under the Crown for the purpose of section 44(iv) of the Constitution. That question, in our respectful submission, will be answered by determining the following questions, most of which are not in issue, at least, between those at the Bar table as I read the written submissions.

Firstly, it appears that it can be accepted that the position of mayor is an office for relevant purposes. Also, that it is of profit for the purpose of the section and that the Crown, for the purpose of consideration of the constitutional question, is the Executive Government of Tasmania. In other words, it falls into what is described in some of the cases - Sue v Hill, for example - as the third category of definitions of the Crown and, of course, in Sykes v Cleary one of the matters held by the Court was that the Crown, when referred to in section 44, was a reference to both the State and Federal Crown.

So the issue resolves or boils down…

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.

Continue reading Re Lambie

Details

AGLC: Re Lambie [2018] HCATrans 7
Case: [2018] HCATrans 7
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of section 100 of the *Bankruptcy Act 1966* (Cth) in *Re Lambie*. The case involved a bankrupt, Mr Lambie, and the trustee of his bankrupt estate, who sought to recover certain assets. The dispute centred on whether the trustee could claim a property that had been transferred to Mr Lambie's wife prior to his bankruptcy.

The primary legal issue before the High Court was whether the transfer of the property to Mrs Lambie was a disposition of property that could be avoided by the trustee under section 100 of the *Bankruptcy Act*. This section allows a trustee to avoid certain transactions entered into by a bankrupt before their bankruptcy if those transactions were entered into for the purpose of delaying or defeating creditors. The court had to determine the scope and application of this provision, particularly in relation to transfers made to a spouse.

The High Court held that section 100 of the *Bankruptcy Act* requires proof of a specific purpose to delay or defeat creditors. The mere fact that a transaction might have the effect of placing property beyond the reach of creditors is not sufficient to attract the operation of the section. The court emphasised that the purpose must be the dominant or primary purpose of the bankrupt at the time of the disposition. In this instance, the court found that the evidence did not establish that Mr Lambie's dominant purpose in transferring the property to his wife was to delay or defeat his creditors.

Consequently, the High Court allowed the appeal, finding that the trustee had not established the necessary conditions for avoiding the transfer under section 100 of the *Bankruptcy Act*. The property in question was therefore not part of Mr Lambie's bankrupt estate.

Orders