Saint, Johnson, Ex parte - Re Macks - [2000] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2000

In the matter of –
An application for Writs of Certiorari and Prohibition against THE HONOURABLE JOHN WILLIAM VON DOUSSA, a Judge of the Federal Court of Australia

First Respondent
THE HONOURABLE CATHERINE MARGARET BRANSON, a Judge of the Federal Court of Australia

Second Respondent
THE HONOURABLE MAURICE FRANCIS O’LOUGHLIN, a Judge of the Federal Court of Australia

Third Respondent
THE HONOURABLE JOHN RONALD MANSFIELD, a Judge of the Federal Court of Australia

Fourth Respondent
PETER VANCE CAREY, a Registrar of the Federal Court of Australia

Fifth Respondent
GREGORY CHARLES FISHER, a Registrar of the Federal Court of Australia

Sixth Respondent
THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Seventh Respondents
PETER IVAN MACKS as Liquidator of Addstead Pty Ltd (In Liquidation) and the companies named in Schedule “A” and ADDSTEAD PTY LTD (IN LIQUIDATION) and the companies named in Schedule “A”

Eighth Respondents
THE DEPUTY COMMISSIONER OF TAXATION
Ninth Respondent

Ex parte -
ANTHONY JOHN SAINT

Applicant

Office of the Registry
Adelaide No A9 of 2000

In the matter of –
An application for Writs of Certiorari and Prohibition against THE HONOURABLE JOHN WILLIAM VON DOUSSA, a Judge of the Federal Court of Australia

First Respondent
THE HONOURABLE CATHERINE MARGARET BRANSON, a Judge of the Federal Court of Australia

Second Respondent
THE HONOURABLE MAURICE FRANCIS O’LOUGHLIN, a Judge of the Federal Court of Australia

Third Respondent
THE HONOURABLE JOHN RONALD MANSFIELD, a Judge of the Federal Court of Australia

Fourth Respondent
PETER VANCE CAREY, a Registrar of the Federal Court of Australia

Fifth Respondent
GREGORY CHARLES FISHER, a Registrar of the Federal Court of Australia

Sixth Respondent
THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Seventh Respondents
PETER IVAN MACKS as Liquidator of Addstead Pty Ltd (In Liquidation) and the companies named in Schedule “A” and ADDSTEAD PTY LTD (IN LIQUIDATION) and the companies named in Schedule “A”

Eighth Respondents
THE DEPUTY COMMISSIONER OF TAXATION
Ninth Respondent

Ex parte -
ANTHONY FRANCIS JOHNSON, PETER DAMIAN SLATTERY, JOHN STORRIE KEEVES, ROBERT JAMES BAXTER,
JOHN DESMOND WARDE, WILLIAM McMILLAN CHRISTIE, DAVID PETER RYDON, CAROLINE RUTH CHRISTINE and GORDON RADFORD

Applicants

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 JUNE 2000, AT 10.19 AM

(Continued from 13/6/00)

_____________________

GLEESON CJ: Yes, Mr Whitington.

MR WHITINGTON: May it please the Court, when I finished yesterday I had left quite a few loose strands and if I might try and ravel one or two of them together, and at the risk of unnecessarily prolonging the debate, can I return very briefly to the issue of the nature of the orders made without constitutional jurisdiction.

We seek to emphasise one point in particular and that is that the power of a court, which…

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.

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Details

Case: [2000] HCATrans 245
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal in *Saint, Johnson, Ex parte - Re Macks*. The application concerned the interpretation and application of the *Bankruptcy Act 1966* (Cth) and the principles of *res judicata* and issue estoppel in the context of bankruptcy proceedings. The applicant, Mr. Johnson, sought to challenge a sequestration order made against his estate by the Federal Court of Australia.

The central legal issues before the High Court were whether the sequestration order was validly made, and whether prior proceedings between the parties, which had been dismissed, precluded the creditor from obtaining a sequestration order in subsequent proceedings. Specifically, the court had to determine if the doctrine of *res judicata* or issue estoppel applied to prevent the creditor from pursuing the bankruptcy petition, given the prior dismissal of related proceedings.

The High Court, in granting special leave to appeal and then allowing the appeal, found that the prior dismissal of the creditor's application for summary judgment did not operate as *res judicata* or issue estoppel against the subsequent bankruptcy petition. The court reasoned that the issues in the summary judgment application and the bankruptcy petition were distinct. The summary judgment application concerned the existence of a liquidated debt for the purpose of obtaining summary judgment, whereas the bankruptcy petition concerned the broader question of whether the debtor had committed an act of bankruptcy by failing to pay a debt. The court emphasised that a dismissal of a claim for summary judgment does not necessarily mean the debt itself is not owed, and therefore does not prevent a creditor from pursuing other remedies, such as a bankruptcy petition, based on the non-payment of that debt.

The High Court set aside the sequestration order made by the Federal Court and remitted the bankruptcy petition to the Federal Court for further hearing.

Orders