Thompson v Hird

Case [2023] FCA 1530


FEDERAL COURT OF AUSTRALIA

Thompson v Hird [2023] FCA 1530

File number(s): QUD 286 of 2023
Judgment of: DOWNES J
Date of judgment: 6 December 2023
Catchwords: ADMINISTRATIVE LAW – application for judicial
review of a Registrar’s decision to refuse to accept documents for filing – no error of law shown – relief sought would have been refused in any event as proposed application was an abuse of process – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Bankruptcy Act 1966 (Cth) ss 55(4A), 77, 153B

Federal Court Rules 2011 (Cth) r 2.26

Cases cited:

Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 6) [2018] FCA 577

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134

Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516; [2005] FCAFC 248

Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234

Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75

Spalla v St George Motor Finance (No 5) [2004] FCA 1262

Storry v Parkyn [2023] FCA 1141

Storry v Weir (No 2) [2022] FCA 1360

Thompson v Lane (Trustee) (2023) 410 ALR 439; [2023] FCAFC 32

Thompson v Lane (Trustee) (No 3) [2022] FCA 128

Tov-Lev v Lowbeer (No 2) [2014] FCA 379

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 39
Date of hearing: 15 November 2023
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a submitting notice

ORDERS

QUD 286 of 2023
BETWEEN:

EMMA NARELLE CATHRYN THOMPSON

Applicant

AND:

REGISTRAR HIRD

Respondent

ORDER MADE BY:

DOWNES J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:

1.The originating application be dismissed.

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


REASONS FOR JUDGMENT

DOWNES J:

Introduction

  1. On 1 July 2020, the applicant was made bankrupt pursuant to s 55(4A) of the Bankruptcy Act 1966 (Cth), upon the Official Receiver accepting the debtor’s petition presented by her on 26 June 2020.

  2. On 14 April 2021, the applicant filed an annulment application, which was dismissed on 18 February 2022: Thompson v Lane (Trustee) (No 3) [2022] FCA 128 (Logan J) (J).  An appeal from that decision was dismissed on 10 March 2023: Thompson v Lane (Trustee) (2023) 410 ALR 439; [2023] FCAFC 32 (Charlesworth, Downes and Goodman JJ) (FC J). The following appears at [68]–[70] FC J, which I reiterate by way of relevant background:

    In 2014, the appellant acquired a unit in a residential complex called Arila Lodge located in Toowong, Queensland, and has resided in that unit since at least 2016.  There is a body corporate for a community titles scheme relating to that complex.  The body corporate is the…

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Details
AGLC
Thompson v Hird [2023] FCA 1530
Case
[2023] FCA 1530
Decision Date

CaseChat Overview and Summary

The matter of Thompson v Hird was heard in the Federal Court of Australia. The applicant, Ms Thompson, sought judicial review of a decision by the Registrar to refuse to accept documents for filing. Ms Thompson contended that there was fraud upon the Court as Mr Morgan Lane, a trustee of her bankrupt estate, had provided false evidence. The case was assessed on the basis of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The primary legal issue was whether the Registrar's decision was subject to judicial review and if any error of law was made in the decision. The court found that the Registrar’s decision was indeed subject to review under s 5 of the ADJR Act. However, the court found no error of law in the Registrar's decision. The applicant’s argument that Mr Lane provided false evidence was rejected as the information in the Worrells file supported Mr Lane's evidence and the conclusion that Ms Thompson was insolvent. The court found that Ms Thompson's reliance on the Worrells file was misconceived and did not establish any fraud.

The court dismissed the originating application and concluded that even if there had been an error of law, the proposed application would have been an abuse of process. The court's decision was based on the lack of any demonstrated error of law and the misconceived nature of Ms Thompson's argument regarding the trustee’s evidence.

ORDERS:
1. The originating application be dismissed.

Orders

Orders of the court

1. The originating application be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FC J FC J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FC J, FC J

For the following reasons, the originating application will be dismissed.Consideration A Registrar’s decision under r 2.26 of the Federal Court Rules 2011 (Cth) is amenable to review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 (Barker, Banks-Smith and Colvin JJ) at [32], [41]. Although the applicant did not identify the basis of my jurisdiction to review the Registrar’s decision, I will proceed on the basis that judicial review was sought under s 5 of the ADJR Act. By her submissions, the applicant contended that there was “fraud upon the Court caused by [Mr] Morgan Lane providing false evidence and same being encapsulated in par [37] of the Decision of Logan J”. That paragraph stated:Ms Thompson’s trustee, Mr Lane, who is qualified to express an opinion on the subject and whose opinion is relevant, has expressed the opinion that Ms Thompson is not solvent. That is because, in his view, the claims of creditors as reflected in proofs of debt received by him exceed the likely recoveries in the administration of Ms Thompson’s bankrupt estate. He disclosed in detail in his evidence the basis for holding this opinion. Mr Lane is a principal of Worrells, and he was appointed trustee of the applicant’s bankrupt estate on 1 July 2020: [70] By one of her affidavits in this application (but which was not filed with the interim application), the applicant exhibits and relies upon information extracted from the Worrells file to attempt to demonstrate that Mr Lane’s evidence was false. However, the extract from the Worrells file relied upon by the applicant shows that 18 creditors have been recorded, with 13 proofs of debt received by the trustee valued at a total of $1,356,534.00. None of the proofs of debt have been admitted; however, there is a notation which states that: “Proofs of Debt will generally only be ‘admitted’ in preparation for the payment of a dividend”. A further note states that “[t]here is no pending dividend”. The Worrells file also shows that total receipts are $523,528.37, a figure which falls well short of the total proofs of debt. As best as I can understand her submissions, the applicant appears to interpret the information in the Worrells file as meaning that, because no amount has been paid from the bankrupt estate to the Body Corporate pursuant to its proof of debt, this has the consequence that she was in fact never insolvent, the evidence given by Mr Lane was therefore false evidence and the finding by, and decision of, Logan J was thus obtained by fraud. However, having regard to the notations in the file, such an interpretation of these records is misconceived. That is because the information in the Worrells file is consistent with and supports the evidence given by Mr Lane before Logan J (as referred to at [37] J), and fortifies the conclusion reached by Logan J at [84] J (and upheld on appeal: [52], [135] FC J) that the applicant was insolvent, as the claims of the creditors (as reflected in the proofs of debt received by Mr Lane in his role as trustee) exceed the recoveries in the administration of the bankrupt estate.