FEDERAL COURT OF AUSTRALIA
Storry v Weir [2022] FCA 794
Appeal from: Weir v Storry [2022] FedCFamC2G 183 File number: QUD 103 of 2022 Judgment of: THOMAS J Date of judgment: 7 July 2022 Catchwords: BANKRUPTCY – Bankruptcy Act 1966 (Cth) – appeal against decision of the Federal Circuit and Family Court of Australia – further application for interlocutory relief –where primary judge made sequestration order against the appellant – whether primary judge erred in making findings about prospects of success of further appeal – whether reason for primary judge to look behind the judgment debt to determine whether there was “in truth and reality a debt due to the petitioning creditor” – whether primary judge failed to consider appellant’s pending application and appeal in the District Court – appeal and interlocutory application dismissed with costs Legislation: Bankruptcy Act 1966 (Cth)
Magistrates Courts Act 1921 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Cases cited: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132; [2017] HCA 28
Sandell v Porter (1966) 115 CLR 666
Storry v Commissioner of Police [2017] QDC 282
Storry v Commissioner of Police [2018] QCA 291
Tu v Chang (No 2) [2016] FCA 1568
Wanstall v Burke [1925] St R Qd 295
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 91 Date of hearing: 20 June 2022 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr P Van Grinsven Solicitor for the Respondent: SLF Lawyers Counsel for the Chief Executive of the Office of Fair Trading: Mr D Keane Solicitor for the Chief Executive of the Office of Fair Trading: Crown Solicitor of Queensland ORDERS
QUD 103 of 2022 BETWEEN: VENETIA LOUISE STORRY
Appellant
AND: JONATHON DAVID WEIR
Respondent
ORDER MADE BY:
THOMAS J
DATE OF ORDER:
7 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The respondent’s costs of the appeal, to be taxed if not agreed, be paid from the appellant’s estate.
3.The appellant’s interlocutory application filed on 26 May 2022 is dismissed.
4.The respondent’s costs of the application filed on 26 May 2022, to be taxed if not agreed, be paid from the appellant’s estate.
5.The appellant’s oral application to join the Chief Executive of the Office of Fair Trading as the second respondent to the interlocutory application filed on 26 May 2022 is dismissed.
6.The costs of the Chief Executive of the Office of Fair Trading with respect to the interlocutory application filed on 26 May 2022, to be taxed if not agreed, be paid from the appellant’s estate.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THOMAS J:
This is an appeal from a decision of the Federal Circuit and…
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CaseChat Overview and Summary
The case of Storry v Weir concerns an appeal by the appellant against a decision made by the Federal Circuit and Family Court of Australia (the Court). The appellant challenged the sequestration order made against her estate by Judge Egan on 18 March 2022. The appellant had previously been involved in a lengthy series of legal proceedings with the respondent, stemming from a motor vehicle accident that occurred on 27 July 2016. This included criminal proceedings that resulted in a conviction and subsequent civil proceedings that led to a judgment against the appellant. Following these proceedings, the respondent served a bankruptcy notice on the appellant on 29 September 2021, and a creditor's petition was subsequently filed on 14 December 2021.
The central legal issues in this case revolved around whether the primary judge made an error in his findings regarding the prospects of success of the further appeal and whether there was a reason for the primary judge to look behind the judgment debt to determine if there was "in truth and reality a debt due to the petitioning creditor". Additionally, the court had to consider whether the primary judge failed to take into account the appellant's pending application and appeal in the District Court.
In dismissing the appeal and the interlocutory application, the Court found that there was no error in the primary judge's decision. The Court concluded that the appellant's appeals against the criminal and civil decisions were unlikely to succeed, and thus, the primary judge's findings regarding the prospects of success were correct. The Court also held that there was no need for the primary judge to look behind the judgment debt because the debt was undisputed and established by the civil judgment. Furthermore, the Court found that the primary judge had considered the appellant's pending application and appeal in the District Court, and there was no failure to take these matters into account.
The Court dismissed the appeal and interlocutory application and ordered that the respondent's costs of the appeal and the interlocutory application be paid from the appellant's estate. The Court also dismissed the appellant's oral application to join the Chief Executive of the Office of Fair Trading as the second respondent to the interlocutory application, with costs to be paid from the appellant's estate.
The central legal issues in this case revolved around whether the primary judge made an error in his findings regarding the prospects of success of the further appeal and whether there was a reason for the primary judge to look behind the judgment debt to determine if there was "in truth and reality a debt due to the petitioning creditor". Additionally, the court had to consider whether the primary judge failed to take into account the appellant's pending application and appeal in the District Court.
In dismissing the appeal and the interlocutory application, the Court found that there was no error in the primary judge's decision. The Court concluded that the appellant's appeals against the criminal and civil decisions were unlikely to succeed, and thus, the primary judge's findings regarding the prospects of success were correct. The Court also held that there was no need for the primary judge to look behind the judgment debt because the debt was undisputed and established by the civil judgment. Furthermore, the Court found that the primary judge had considered the appellant's pending application and appeal in the District Court, and there was no failure to take these matters into account.
The Court dismissed the appeal and interlocutory application and ordered that the respondent's costs of the appeal and the interlocutory application be paid from the appellant's estate. The Court also dismissed the appellant's oral application to join the Chief Executive of the Office of Fair Trading as the second respondent to the interlocutory application, with costs to be paid from the appellant's estate.
Orders
Orders of the court
1. The appeal is dismissed.
2. The respondent’s costs of the appeal, to be taxed if not agreed, be paid from the appellant’s estate.
3. The appellant’s interlocutory application filed on 26 May 2022 is dismissed.
4. The respondent’s costs of the application filed on 26 May 2022, to be taxed if not agreed, be paid from the appellant’s estate.
5. The appellant’s oral application to join the Chief Executive of the Office of Fair Trading as the second respondent to the interlocutory application filed on 26 May 2022 is dismissed.
6. The costs of the Chief Executive of the Office of Fair Trading with respect to the interlocutory application filed on 26 May 2022, to be taxed if not agreed, be paid from the appellant’s estate.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By a handwritten addition to the schedule of parties to her interlocutory application, the name “the Office of Fair Trading” (the OFT) was inserted. No formal application for leave to join an additional party to the notice of appeal was made by the appellant. While not served with the interlocutory application, the Chief Executive of the OFT was represented by counsel at the hearing. The appellant made an oral application for leave to join the OFT as the second respondent to that application.BACKGROUND There is a lengthy litigation history between the appellant the respondent which stems from an incident on 27 July 2016, when the parties were involved in a motor vehicle accident which resulted in the issuance of a traffic infringement notice to the appellant for failing to give way to a vehicle at an intersection with a stop sign. Criminal and civil proceedings followed.Criminal proceedings The matter with respect to the traffic infringement was heard by the Magistrates Court of Queensland. On 24 March 2017, Magistrate Coates convicted the appellant, imposed a fine of $475.00 and ordered that the appellant pay costs to the Magistrates Court of $93.20 in addition to witness expenses of $104.00 (the Magistrate’s criminal decision). On 25 October 2017, the District Court heard the appellant’s appeal from the Magistrate’s criminal decision and judgment was delivered on 1 December 2017 dismissing the appeal (the District Court’s criminal decision): Storry v Commissioner of Police [2017] QDC 282. The appellant appealed from the District Court’s criminal decision and the Queensland Court of Appeal heard the appeal on 16 August 2018. On 26 October 2018 the appeal was dismissed with costs (Storry v Commissioner of Police [2018] QCA 291) (the Court of Appeal’s criminal decision).Civil proceedings On 24 May 2017, the respondent’s motor vehicle insurer commenced a subrogated civil claim in the Magistrates Court against the appellant seeking to recover loss and damage in respect of the respondent’s vehicle in the amount of $13,396.06. The civil proceeding was put on hold pending the finalisation of the appeal against the Magistrate’s criminal decision in the District Court of Queensland. Following the District Court’s criminal decision, the respondent (by his insurer) proceeded with the civil claim against the appellant in the Magistrates Court. On 4 December 2020, Acting Magistrate Smith delivered judgment against the appellant for the total sum of $39,506.86, comprising the amount claimed by the respondent for loss and damage ($13,396.06) plus costs ($22,741.52), interest ($3,086.62) and witness expense ($282.66) (the Magistrate’s civil decision). On 15 January 2021, the appellant filed an appeal in the Queensland Court of Appeal which referred to both the Magistrate’s civil decision and the Court of Appeal’s criminal decision. On 16 February 2021, the Court of Appeal dismissed the appeal (the Court of Appeal’s civil decision).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 15 January 2021, the appellant filed an appeal in the Queensland Court of Appeal which referred to both the Magistrate’s civil decision and the Court of Appeal’s criminal decision. On 16 February 2021, the Court of Appeal dismissed the appeal (the Court of Appeal’s civil decision). On 15 October 2021, the appellant filed a stay application in the Queensland Court of Appeal against the Court of Appeal’s civil decision. This application was dismissed by Fraser J on 26 October 2021. On 20 October 2021, the appellant filed a stay application in the Magistrates Court against the Magistrate’s civil decision. This application was dismissed by Acting Magistrate Turra on 7 December 2021 (the Magistrate’s refusal of stay). On 25 October 2021, the appellant filed an application in the High Court of Australia seeking special leave to appeal against the Court of Appeal’s civil decision. The application was dismissed by Keane and Edelman JJ on 16 March 2022. On 11 March 2022, the appellant filed an appeal in the District Court of Queensland against the Magistrate’s refusal of stay. At approximately 4 pm on 18 March 2022, the appellant filed and served an urgent application in the District Court of Queensland seeking leave/extension of time for her appeal filed on 11 March 2022. On 25 March 2022, Judge Porter QC dismissed the appellant’s urgent application filed 18 March 2022 and her appeal filed on 11 March 2022.Bankruptcy On 29 September 2021, the respondent served a bankruptcy notice on the appellant. As at the date of service of that notice, the appellant had not filed her appeal against the Court of Appeal’s civil decision. Following service of the bankruptcy notice, the appellant proceeded to file a series of stay applications (outlined above in [16]-[21]). On 14 December 2021, a creditor’s petition was filed against the appellant seeking a sequestration order against her estate. On 17 March 2022, the creditor’s petition was heard in the Federal Circuit and Family Court of Australia before Judge Egan. On 18 March 2022 at approximately 2.00 pm, his Honour made a sequestration order against the appellant’s estate. It is this decision which is the subject of the present appeal.LEGISLATIVE PROVISIONS Sections 52(1) and 60(1)(b)(ii) of the Bankruptcy Act provide:52 Proceedings and order on creditor’s petition(1) At the hearing of a creditor’s petition, the Court shall require proof of:(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);(b)service of the petition; and(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.…60 Stay of legal proceedings(1)The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: …(b)stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:…(ii)in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;…DECISION – FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Ratio Decidendi
Legal Principle Established
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