Toogood v Gott

Case [2019] FCA 1792

FEDERAL COURT OF AUSTRALIA

Toogood v Gott, in the matter of Toogood [2019] FCA 1792

File number(s): QUD 202 of 2019
Judge(s): GREENWOOD J
Date of judgment: 31 October 2019
Catchwords: BANKRUPTCY – consideration of an application for review of a Registrar’s decision to refuse to set aside a Bankruptcy Notice
Legislation:

Bankruptcy Act 1966 (Cth), ss 5, 30, 40, 50, 51, 52

Federal Court Act 1976 (Cth), s 35A

Federal Court Rules 2011 (Cth), r 3

Uniform Civil Proceedings Rules 1999 (Qld), r 740

Cases cited:

Brookfield v Real Estate Now Pty Ltd [2019] FCA 993

Compton v Ramsay Health Care Australia Pty Ltd (2016) 246 FCR 508

Corney v Brien (1951) 84 CLR 343

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46

Gye v McIntyre (unreported, Beaumont J, 26 May 1992)

In re Vitoria; Ex parte Vitoria [1894] 2 QB 387

King v Henderson [1898] AC 720

Lee v New South Wales Crime Commission (2013) 251 CLR 196

Makhoul v Barnes (1995) 60 FCR 572

Ramsay Health Care Pty Ltd v Compton [2015] FCA 1207

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Toogood & Anor v Cassowary Coast Regional Council [2019] QSC 60

Waterton v Lafferty [2019] FCA 1267

Wren v Mahoney (1972) 126 CLR 212
Date of hearing: 31 July 2019
Date of last submissions: 31 July 2019
Registry: Queensland
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 72
Counsel for the Applicants: The applicants appeared in person
Counsel for the Respondents: A L Raeburn
Solicitor for the Respondents: Connolly Suthers Lawyers

ORDERS

QUD 202 of 2019

IN THE MATTER OF STEVEN PAUL TOOGOOD AND JULIANNE TOOGOOD
BETWEEN:

STEVEN PAUL TOOGOOD

First Applicant

JULIANNE TOOGOOD

Second Applicant
AND:

JAMES PATRICK CECIL GOTT (and others named in the Schedule)

First Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

31 OCTOBER 2019

THE COURT ORDERS THAT:

1.The application filed 22 April 2019 be dismissed.

2.The applicants pay the respondents’ costs of and incidental to the application. 

3.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. 

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


REASONS FOR JUDGMENT

GREENWOOD J:

  1. Mr Steven Paul Toogood and Ms Julianne Toogood (the “applicants”) have filed an application for review of orders made by Registrar Buckingham of this Court on 3 April 2019 dismissing an application of the applicants filed on 25 March 2019 (the “principal application”) for orders relating to a bankruptcy notice issued on 5 March 2019 by the Official Receiver by which the respondents assert that they are creditors of the applicants in the sum of $74,767.48. 

  2. By their principal application, the applicants sought the following orders:

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Details
AGLC
Toogood v Gott [2019] FCA 1792
Case
[2019] FCA 1792
Decision Date

CaseChat Overview and Summary

The case of Toogood v Gott involves an application for review of a Registrar’s decision to refuse to set aside a Bankruptcy Notice. The applicants, Ms Toogood and Mr Toogood, were the subject of the Bankruptcy Notice issued by Mr Gott, the Chief Executive Officer of the Cassowary Shire Council. The application was brought in the Federal Court of Australia. The applicants sought to set aside a Bankruptcy Notice on the basis that they had a bona fide defence to the debt claimed by Mr Gott. The legal issues that the court had to determine included whether the applicants had a bona fide defence to the debt claimed and whether the Registrar's decision to refuse to set aside the Bankruptcy Notice was correct.

The court considered the evidence and submissions of the parties and concluded that the applicants did not have a bona fide defence to the debt claimed. The court found that the applicants had sent a series of emails to various recipients, including Mr Gott, which contained defamatory statements or imputations. The court held that the applicants' conduct in sending these emails was unreasonable and that the applicants were not acting in good faith. The court further found that the applicants had not shown any evidence to support their claim that they had a bona fide defence to the debt claimed. The court held that the Registrar's decision to refuse to set aside the Bankruptcy Notice was correct and dismissed the application. The applicants were ordered to pay the respondents' costs of and incidental to the application.

The orders of the court are that the application filed 22 April 2019 be dismissed and that the applicants pay the respondents' costs of and incidental to the application. The reasons for judgment in support of these orders are made and published from Chambers. The orders and reasons for judgment are made pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application filed 22 April 2019 be dismissed.

2. The applicants pay the respondents’ costs of and incidental to the application.

3. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

Background

Background to the litigation

Accordingly, it is necessary to consider aspects of the procedural background to this matter and any related proceedings relevant to the questions now in issue. Background Ms Toogood was, at the relevant time, an owner of a property located at Bingil Bay which fell within the local government area of the Cassowary Shire Council (the “Council”). In July 2016, the Council brought proceedings against Ms Toogood seeking recovery of rates said to be unpaid and owing by Ms Toogood to the Council in respect of the Bingil Bay property. It seems that the recovery action was defended. It also seems that, ultimately, the Council succeeded in those proceedings. It was, apparently, this dispute which was the “catalyst” (to use the terminology of Judge Lynham in reasons for judgment delivered on 26 April 2018 in proceeding D169/17 in the District Court of Queensland, at [3] of those reasons), for the applicants making a complaint to the Council concerning the conduct of the Deputy Mayor of the Council (the “complaint”). The background events suggest, clearly enough, that the applicants were not satisfied with the investigation undertaken by the Council concerning their complaint. The applicants proceeded to send a number of emails from 23 March 2017 to 14 July 2017 (eight in all) to various Councillors, Council staff and others such as the Hon Curtis Pitt MP (the Treasurer in the Queensland Government at the time) and Mr John O’Halloran (the Far North Queensland Manager, Department of Infrastructure, Local Government and Planning). Those emails were said to contain defamatory statements or imputations about the Chief Executive Officer of the Council, Mr James Patrick Gott. At [3] of the reasons of Lynham DCJ, eight emails are identified which were said to contain the defamatory statements or imputations. It is not necessary to further identify the details of those emails in these reasons. It should be noted that in the District Court proceedings, the present applicants who were the defendants in those proceedings filed a counterclaim alleging that they had been defamed by Mr Gott. Four additional defendants were added by counterclaim to that proceeding. As to those four defendants, the present applicants asserted that they had been defamed by them. Those four defendants by counterclaim were the Council, Ms Tracey Taylor, Rickey Taylor and John Kremastos. Mr Gott, the Council, Ms Taylor, Mr Taylor and Mr Kremastos are the respondents to the present application. It is relevant to also note that Mr Gott (and the other respondents) also relied upon the contents of a telephone conversation between the applicants and Councillor Kimberley on 29 May 2017 in which the applicants were said to have made comments or remarks defamatory of Mr Gott. The particular matters said to constitute the defamatory imputations about Mr Gott contained in the eight emails and the telephone conversation were pleaded at paras 14 to 43 of the statement of claim filed on behalf of Mr Gott, together with particulars.

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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