Schepis v Osborne

Case [2015] FCA 192

FEDERAL COURT OF AUSTRALIA

Schepis v Osborne [2015] FCA 192

Citation: Schepis v Osborne [2015] FCA 192
Appeal from: Osborne & Ors v Schepis [2014] FCCA 531
Parties: ASHLEY MARIE SCHEPIS v KEITH ROBERTSON OSBORNE, NICHOLAS JOHN SATOURIS and ANDREW MICHAEL CHRISTOPOULOS
File number: QUD 88 of 2014
Judge: RANGIAH J
Date of judgment: 13 March 2015
Catchwords:

PRACTICE AND PROCEDURE – denial of procedural fairness – sequestration order made by registrar in appellant’s absence – Federal Circuit Court required to conduct de novo review – appellant afforded no reasonable opportunity to make submissions on review – judgment set aside

BANKRUPTCY AND INSOLVENCY – appeal against judgment of Federal Circuit Court dismissing application for review of sequestration order – costs order against appellant – solicitor for appellant ordered to indemnify appellant – indemnification not forthcoming – bankruptcy notice served on appellant – sequestration order made by registrar – review required to be conducted de novo – no reasonable opportunity to make submissions – judgment set aside

Legislation: Bankruptcy Act 1966 (Cth) ss 27, 43(1), 52 and 60(2)
Federal Circuit Court of Australia Act 1999 (Cth) ss 102(2) and 104
Federal Circuit Court Rules 2001 (Cth) r 20.03
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) r 2.02
Cases cited: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 cited
Annetts v McCann (1990) 170 CLR 596 cited
De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544 cited
Dobbie v Department of Social Security [1995] FCA 303 cited
Edwards v Edwards [1958] P 235 cited
Hamilton v Warne (1907) 4 CLR 1293 cited
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited
Myers v Elman [1940] AC 282 cited
Stead v State Government Insurance Commission (1986) 161 CLR at 141 cited
Sullivan v Department of Transport (1978) 20 ALR 323 cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 cited
The Queen  v Conciliation & Arbitration Commission; Ex parte Angliss (1969) 122 CLR 546 cited
The Queen v Windridge, Ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180 cited
Totev v Sfar (2008) 167 FCR 193 cited
Date of hearing: 20 August 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 35
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondents: The respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 88 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

ASHLEY MARIE SCHEPIS
Appellant
AND:

KEITH ROBERTSON OSBORNE
First Respondent

NICHOLAS JOHN SATOURIS
Second Respondent

ANDREW MICHAEL CHRISTOPOULOS
Third Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

13 MARCH 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The judgment of the Federal Circuit Court of Australia given on…

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AGLC
Schepis v Osborne [2015] FCA 192
Case
[2015] FCA 192
Decision Date

CaseChat Overview and Summary

The appellant, Schepis, appealed against the decision of the Federal Circuit Court which dismissed his application for review of a sequestration order made in his absence by a registrar. The Federal Circuit Court had also ordered the appellant to pay the respondent’s costs and directed the appellant’s solicitor to indemnify the appellant against those costs. The appellant argued that the Federal Circuit Court failed to afford him procedural fairness when it dismissed his application, and that he was not given a reasonable opportunity to make submissions on the review. The appellant’s solicitor had also failed to indemnify him against the costs ordered by the Federal Circuit Court.

The legal issues before the court were whether the Federal Circuit Court’s dismissal of the appellant’s application for review of the sequestration order was a nullity due to the denial of procedural fairness and whether the appellant was given a reasonable opportunity to make submissions on the review. The court also had to determine whether the Federal Circuit Court’s costs order against the appellant was valid.

The court found that the Federal Circuit Court’s decision to dismiss the appellant’s application for review of the sequestration order was a nullity due to the denial of procedural fairness. The court held that the Federal Circuit Court was required to conduct a de novo review of the sequestration order, and that the appellant was not given a reasonable opportunity to make submissions on the review. The court also found that the Federal Circuit Court’s costs order against the appellant was invalid because the appellant’s solicitor had failed to indemnify him against those costs. The court set aside the judgment of the Federal Circuit Court and remitted the matter to that court for further hearing and determination.

The appeal was allowed, and the judgment of the Federal Circuit Court of Australia given on 19 February 2014 was set aside. The matter was remitted to the Federal Circuit Court of Australia for further hearing and determination.

Orders

Orders of the court

1. The appeal is allowed.

2. The judgment of the Federal Circuit Court of Australia given on 19 February 2014 is set aside.

3. The matter is remitted to the Federal Circuit Court of Australia for further hearing and determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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