Re Lattouf, N.M. - [1994] FCA 913

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRAtIA

NEW SOUTH WALES REGISTRY	No NB 5251 of 1992
GENERAL DIVISION

RE: NOEL MICHAEL LATTOUF and

LENA THERESE LATTOUF

CORAW:	S A C K v 1 m J.
PLACE :	SYDNEY
DATE :	22 NOVEMBER 1994

REASONS FOR JUDGMENT

HIS HONOUR: This matter comes before me for directions following a special case that has been determined by the Full Court of this court on 16 September 1994. In the course of that determination the Full Court answered the following question: Did the Federal Court have power to grant the application under

section 60(l)(b) of the BankruDtCv 1966 (Commonwealth)?

Answer: Yes. The Full Court also ordered that the matter be remitted to a judge of this court.

Mr Katz, who has appeared today on behalf of the Director of

Public Prosecutions, has helpfully provided an outline of relevant facts. I will incorporate that outline in this judgment as it conveniently sets out the course of the proceedings.

1. On 4 February 1992 Mr Lattouf was convicted in the District Court at Parramatta of an offence against s 125 of the Crimes Act 1900 (NSW) (larceny by a bailee). Also on that day, the Court, acting 8.558 of that Act, deferred passing sentence on Mr Lattouf in respect of that conviction upon his entering into a conditional recognizance.

2. On 13 August 1992 Mr Lattouf was called up before the District Court for breach of one of the conditions of his recognizance, the matter being returnable on 16 October 1992. The matter was stood over on that day and on a number of subsequent days and had not been heard on its merits as of 20 April 1993.

3. On 20 April 1993 Sheppard J. made on Mr Lattouf's application an order staying in part the proceedings referred to above. That order was based on an affidavit

sworn by Mr

Lattouf (dated 16 March 1993) and on things

said in Court by M r Lattoufls counsel. Neither Mr Lattouf's stay application nor his affidavit had been served on the DPP (NSW), nor did the DPP (NSW) appear at the hearing before Sheppard J.

4. Having become aware of the making of +h- order by Shenpr-.'

J, the DPP (NSW) moved on 14 May 1993 to have it

discharged. An affidavit by Helen Brady (dated 13 May

1993) was filed in support of that application.

5 . The DPP's application came before Sheppard J. When it did, his Honour suggested that a case be stated for a Full Court.

6 . On 17 March 1994 Beazley J. (in the absence of Sheppard J.) referred to a Full Court (relevantly) a question as to the Court's power to make the order which it had made on 20 April 1993.

7. On 25 May 1994 a Full Court heard argument on the matter.

8. On 16 September 1994 the Full Court decided that the Court had the power to make the order of 20 April 1993

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 Lattouf, N.M.

Details

AGLC: Re Lattouf, N.M. [1994] FCA 913
Case: [1994] FCA 913
Decision Date: 22 Nov 1994

CaseChat Overview and Summary

In the case of Re: Noel Michael Lattouf and Lena Therese Lattouf, the Federal Court of Australia was called upon to address the issue of whether the Court had the power to grant an application under section 60(1)(b) of the Bankruptcy Act 1966 (Cth). This arose from a stay order made by Sheppard J on Mr Lattouf's application, which the Director of Public Prosecutions (NSW) sought to discharge. The Full Court had previously confirmed the Court's power to grant the stay order, and remitted the matter back to a single judge for final determination.

The primary legal issue before the Court was whether the stay order made by Sheppard J should be discharged, and if so, what directions should be given for the further conduct of the proceedings. The Court needed to balance the need for timely resolution of the criminal proceedings against the potential impact on any pending special leave application to the High Court.

The Court considered that proceeding with the matter in the Federal Court was appropriate, as the outcome would effectively determine the necessity of the High Court application. It was also undesirable to delay the criminal process any longer than necessary. The Court directed that further affidavits on behalf of the DPP should be filed by 29 November 1994, and that the DPP should provide an outline of its case by 6 December 1994. Mr Lattouf was granted additional time to file his affidavit evidence and points of defence by 3 February 1995. The matter was listed for further directions on 9 February 1995.

The Court fixed a date for return of subpoenas on 14 December 1994, and the decision was made on 22 November 1994. The case was heard in Sydney with Mr B Debuse representing the applicant and Mr L Katz representing the respondent.

Orders