Rose v Piscopo

[2009] FCA 261

FEDERAL COURT OF AUSTRALIA

Rose v Piscopo [2009] FCA 261

LEAVE TO APPEAL – leave to appeal from interlocutory rulings of Federal Magistrate –application before Federal Magistrate to set aside examination summonses – parties in course of two day hearing – line of questioning permitted by Federal Magistrate in cross-examination said to render application nugatory by achieving purpose applicants seek to prevent on their application to set aside examination summonses – application for leave to appeal dismissed – undertakings given by counsel for respondent not to permit cross-examination before Federal Magistrate to amount to dress-rehearsal of examination summons and to seek confidentiality order

ELENA ROSE, MICHAEL O'NEILL and TERRY HILL v SAMUEL PISCOPO

NSD 231 of 2009

JACOBSON J
20 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 231 of 2009

BETWEEN:

ELENA ROSE
First Applicant

MICHAEL O'NEILL
Second Applicant

TERRY HILL
Third Applicant

AND:

SAMUEL PISCOPO
Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	20 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

THE COURT NOTES THAT:

2.The following undertakings were given to the Court by Senior Counsel for the Respondent:

(a)That Senior Counsel for the Respondent will not permit the cross-examination of Mr Hill before the Federal Magistrate to amount to a dress-rehearsal of the examination summons.

(b)That Senior Counsel for the Respondent will seek an order from the Federal Magistrate that the transcript of the cross-examination of Mr Hill be kept confidential to the legal representatives of the parties and not be disclosed without the leave of the Court.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 231 of 2009

BETWEEN:

ELENA ROSE
First Applicant

MICHAEL O'NEILL
Second Applicant

TERRY HILL
Third Applicant

AND:

SAMUEL PISCOPO
Respondent

JUDGE:	JACOBSON J
DATE:	20 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter has come before me as a matter of urgency in the duty judge list.  It arises in somewhat unusual circumstances.  The applicants are presently in the course of a two-day hearing before Lloyd-Jones FM in which they seek orders that examination summonses issued to the bankrupt, Mr Terry Donald Hill, and to Ms Rose, Mr O’Neill and Mr Nicholas Eddy be discharged. 

2. The applicants also seek orders before Lloyd-Jones FM that certain subpoenas be set aside and seek an inquiry into the conduct of the respondent, Mr Piscopo, who is the trustee in bankruptcy of Mr Hill. This order is sought under section 179(1) of the Bankruptcy Act 1966 (Cth) and, indeed, the applicants in the proceeding before the Federal Magistrate seek the removal of Mr Piscopo from the office of trustee.

3. The applicants seek leave to appeal from two interlocutory rulings made by the learned Federal Magistrate this morning.  These rulings are as follows:

   ·A decision to permit a question in cross-examination of Mr Hill which is said to be part of a proposed line of questioning of Mr Hill as to his examinable affairs.

   ·The refusal of the Federal Magistrate to grant an adjournment of the proceedings to have the matter determined in the Federal Court. 

   The applicants also seek a stay of the proceedings before the Federal Magistrate pending the outcome of their application for leave to appeal. 

4. The substance of the applicants’ argument this morning before me is that to permit the present line of cross-examination being pursued before the Federal Magistrate would render the entire application before the Federal Magistrate nugatory.  This is because it would achieve the very purpose that the applicants seek to prevent on their application to set aside the examination summonses. 

5. The ground on which the application before the Federal Magistrate is made is that the trusteeship is being used to oppress Mr Hill and his wife as well as his lawyer, Mr O’Neill, and his former lawyer, Mr Eddy.  Certain other bases for the allegation of abuse of process are set out in Section A of the particulars of abuse of process which are relied upon in the Federal Magistrates Court. 

6. It is well established that, ordinarily, a trial of a matter will not be interrupted in order to permit a party to seek leave to appeal to determine an interlocutory question which would have the effect of interrupting the hearing of the matter.  However, there is force in Mr Marshall’s proposition that there may be special circumstances in this case, namely, that if the cross-examination is to be conducted in a way which would render the proceeding before the Federal Magistrate nugatory, there may be an exception to the ordinary rule.

7. Mr Dubler SC, who appears for the trustee, submitted this morning that his cross-examination is not being used for that purpose.  It is, of course, impossible for me to determine one way or the other whether the competing contentions are correct.  That is one of the reasons for the ordinary rule that the ruling on such objections is a matter to be determined by the trial judge. 

8. However, given the circumstances of this case and the urgency in which the application is brought this morning, it seemed to me to be appropriate to ask Mr Dubler to give an undertaking which would enable the matter to proceed this afternoon before the Federal Magistrate.  The undertaking which Mr Dubler is prepared to give is that he will not permit the cross-examination of Mr Hill to amount to a dress rehearsal of the examination summons. 

9. Mr Dubler, also, fairly offered to seek an order from the Federal Magistrate that the transcript of his cross-examination of Mr Hill be kept confidential to the parties and their legal advisors and that it not be disclosed without leave of the Federal Magistrates Court. 

10. It seems to me that these are appropriate undertakings to be given as a condition for my refusal of leave to appeal.  I will therefore, upon the undertakings to the Court that have been offered by Mr Dubler, refuse the application for leave to appeal.

11. There will be no order as to costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        20 March 2009

Counsel for the Applicants:	Mr R. Marshall with Ms R. Francois
Solicitor for the Applicants:	NOT Lawyers
Counsel for the Respondent:	Mr R. Dubler SC with Mr D. Allen
Solicitor for the Respondent:	Proctor and Associates

Date of Hearing:	20 March 2009
Date of Judgment:	20 March 2009