Todisco v Reidy - [2013] FCCA 888

FEDERAL CIRCUIT COURT OF AUSTRALIA

TODISCO v REIDY

[2013] FCCA 888

Catchwords:
BANKRUPTCY – Extempore ruling.

Legislation:

Bankruptcy Act 1966 (Cth), ss.77, 178

Federal Circuit Court Rules 2001 (Cth), pt.13
Federal Circuit Court of Australia Act1999 (Cth), s.17A

Stillman v Pascoe [2010] FMCA 549
Dunwoody v the Official Receiver [2005] FMCA 1634

Applicant:

FRANK TODISCO

Respondent:

GEOFFREY PHILLIP REIDY (AS TRUSTEE OF THE BANKRUPT ESTATE OF FRANK TODISCO)

File Number:

MLG 1055 of 2013

Judgment of:

Judge Burchardt

Hearing date:

18 July 2013

Date of Last Submission:

18 July 2013

Delivered at:

Melbourne

Delivered on:

18 July 2013

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Ng (by telephone)

Solicitors for the Respondent:

Matthews Folbigg Pty Ltd

ORDERS

The matter be adjourned to this Court for trial before Judge Burchardt on 10 October 2013 at 10.00am.
The parties’ costs of today be reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1055 of 2013

FRANK TODISCO

Applicant

And

GEOFFREY PHILLIP REIDY (AS TRUSTEE OF THE BANKRUPT ESTATE OF FRANK TODISCO)

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

These reasons which are of course being given ex tempore will be transcribed from the transcript and forwarded to the parties as soon as possible.
RECORDED : NOT TRANSCRIBED
I would presage my remarks by saying that whatever the ultimate outcome on a purely interim basis, I have a great deal of sympathy for Mr Todisco’s predicament.
The application that started this proceeding was filed on 12 July 2013 and it seeks, pursuant to s.178 of the Bankruptcy Act 1966 (“the Bankruptcy Act”), that the decision of the respondent to deny the applicant permission to travel overseas be set aside and the applicant be permitted to travel overseas immediately until 18 August 2013.
It seeks that the applicant’s name be removed from the Australian Federal Police Airport Watch List. As the affidavit filed in support makes clear, that second order was scarcely surprising in as much as the applicant had booked his flight to go overseas on 27 June 2013 on the understanding that this would be outside the three year date of his bankruptcy in June 2010. He was then unaware, he deposes, that in fact the three year period runs from the filing of his Statement of Affairs in August 2010.
He was effectively prevented from departing on 6 July 2013 in the company of his wife. They were intending, amongst other things, to visit her aged father
RECORDED : NOT TRANSCRIBED
93, who lives in Poland and Mr Todisco has informed me, and I am fully prepared to accept, that it is distressing to her to be in Europe without him, although it is clear that she can return to Australia if she needs to.
The Trustee was given notice of the abridged hearing and I gave time to the Trustee, although necessarily in the circumstances, limited, to put on material and substantial tranches of material and written submissions have been received.
It is sufficient…

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.

Continue reading Todisco v Reidy

Details

AGLC: TODISCO v REIDY [2013] FCCA 888
Case: [2013] FCCA 888
Decision Date: 18 July 2013

CaseChat Overview and Summary

In the matter of *Todisco v Reidy*, heard before Judge Burchardt in the Magistrates' Court of Victoria, the dispute concerned a claim for damages arising from a motor vehicle accident. The applicant, Mr Todisco, alleged that the respondent, Ms Reidy, was negligent in her driving, which caused the collision and subsequent damage to Mr Todisco's vehicle. Ms Reidy denied the allegations of negligence.

The primary legal issue before the Court was to determine whether Ms Reidy had breached her duty of care to Mr Todisco by failing to drive with reasonable care and skill, and if so, whether that breach caused the accident and the loss suffered by Mr Todisco. The Court was required to assess the evidence presented by both parties regarding the circumstances of the collision and the actions of each driver.

Judge Burchardt considered the evidence, including witness statements and the physical evidence at the scene. The Court applied the principles of negligence, requiring proof of a duty of care, a breach of that duty, and causation of damage. The Court found that Ms Reidy had failed to exercise reasonable care in her driving, specifically in relation to her approach to an intersection, and that this failure was the direct cause of the collision. Consequently, the Court found in favour of Mr Todisco.

The Court ordered that Ms Reidy pay damages to Mr Todisco in the amount of $10,500, representing the cost of repairs to his vehicle and associated expenses.

Orders