Rose v Majak
[2022] FedCFamC2G 978
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rose v Majak [2022] FedCFamC2G 978
File number(s): SYG 1133 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 21 October 2022 Catchwords: BANKRUPTCY – application to transfer matter to Federal Circuit and Family Court of Australia (Division 1) – proceeding not a family law matter.
CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) section 78B notices – no matter arising under the Constitution.
Legislation: Constitution
Federal Circuit and Family Court of Australia Act 2021 (Cth) s.8(1)
Judiciary Act 1903 (Cth) s.78B
Division: General Number of paragraphs: 12 Date of hearing: 21 October 2022 Place: Sydney Counsel for the Applicant: Mr McDonald Solicitor for the Applicant: Russell C Byrnes Solicitor For the Respondent: The Respondent appeared in person ORDERS
SYG 1133 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF ZOFIA MAJAK
BETWEEN: ALAN WESLEY ROSE
Applicant
AND: ZOFIA MAJAK
Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The matter be listed for hearing in person on 1 December at 10:15am.
2.The respondent file and serve an outline of written submissions and any application in a proceeding on or before 17 November 2022.
3.The applicant file and serve an outline of written submissions and any evidence in response to an application in a proceeding filed by the respondent on or before 24 November 2022.
4.The parties have liberty to apply on 3 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant creditor, Mr Rose, seeks the listing of his creditor's petition for hearing and the respondent debtor, Ms Majak, opposes that. Notwithstanding the submissions which I have just received from Ms Majak, the matter will be listed for hearing. Her submissions - first, that the matter might be transferred to the Family Court of Australia in its present guise as the Federal Circuit and Family Court of Australia Division 1 ("Family Court") (see s.8(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) and, secondly, that that the matter might perhaps be referred to the High Court because it raises a constitutional issue - are misconceived. The fact that there is some family law litigation between Ms Majak and her former partner does not mean that the present proceeding is, in essence, a family law case or that it raises the sort of constitutional issue that engages s.78B of the Judiciary Act 1903 (Cth).
In relation to those matters I make the following observations.
BACKGROUND
The act of bankruptcy on which the creditor's petition is based is the failure to comply with a bankruptcy notice issued on 12 October 2021. That bankruptcy notice was based on a Family Court costs judgment for $30,000. The creditor's petition was filed on 4 August 2022 and alleges a debt of $67,638.33 arising out of a judgment of the District Court of New South Wales dated 15 November 2019. The act of bankruptcy occurred on 15 July 2022, and the debt on which the creditor's petition is based accrued on 15 November 2019 – that is to say, before the act of bankruptcy, which is the relevant issue.
In her notice of grounds of opposition, Ms Majak alleges that she is not insolvent but, implicitly, cannot presently pay her debts because her assets are illiquid and subject to an unresolved family law dispute.
On 5 September 2022, Ms Majak also issued a notice of constitutional matter under s.78B of the Judiciary Act. That section relevantly provides that:
Notice to Attorneys-General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3)For the purposes of subsection (1), a notice in respect of a cause:
(a)shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
…
Ms Majak deposes to having served that notice on the Family Court and on the attorneys-general. So far, responses have been received from New South Wales, Victoria and South Australia only, and those three States do not presently propose to intervene.
SUBMISSIONS & CONSIDERATION
Family Court Proceeding
This proceeding is not part of the family law proceeding. Consequently, the possibility suggested today by Ms Majak that the Family Court costs order might be set aside is not relevant to this creditor's petition proceeding. That is to say, it is not relevant to the fact that a bankruptcy notice was issued and not complied with or set aside.
Further, the fact that the creditor's petition is based on a debt different from the one grounding the bankruptcy notice, which was an issue raised on the last occasion the matter came before the Court, is also not material to the present proceeding..
Section 78B Notice
In her affidavit affirmed on 23 September 2022, Ms Majak argued that:
(a)the s.78B notice referred to orders that were made in relation to real estate which was the subject of the family law proceeding; and
(b)a registrar of the Family Court had executed documents to allow the registration of a strata plan on the title of that property, which also involved the creation of an owners corporation, which the Family Court did not have the power to do.
This matter, however, is concerned with whether the respondent can pay her debts as and when they fall due from immediately available cash resources or from any other money that she can procure within a short time, relative to the nature and amount of the debt and to her circumstances. Whether the Family Court order was properly made and effectuated is not presently relevant to that question. It is not a real and substantial issue in this case as pleaded. For that reason, this matter does not involve a matter arising under the Constitution or involving its interpretation as contended for by Ms Majak and so does not engage s.78B of the Judiciary Act.
I am also inclined to the view that the various attorneys-general, as well as the Family Court, have had a reasonable time to consider the s.78B notice which was served on them, and there is no reason, therefore, why the matter cannot proceed to hearing.
CONCLUSION
The matter will be listed for hearing.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 21 October 2022
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