Torney, Ex parte- Re Colina - [1998] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 1998

In the matter of -
An application for Writ of Prohibition against HERMIE GENEROSO COLINA (Marshal of the FAMILY COURT OF AUSTRALIA) and THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA
Respondents

Ex parte -
PRESIDENT TREVOR DONALD TORNEY
Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 9 NOVEMBER 1998, AT 10.30 AM

MR D.A.PERKINS: If your Honour pleases, I appear for Mr Torney. (instructed by Kuek & Associates)

MR H.J. LANGMEAD: If your Honour pleases, I appear for the respondents in opposition to the application. (instructed by the Australian Government Solicitor)

HIS HONOUR: Now, do you appear both for the Marshal and for the Judge, Mr Langmead, or just for the marshal?

MR LANGMEAD: No, I appear for both, your Honour.

HIS HONOUR: Yes, thank you. Now, Mr Perkins.

MR PERKINS: In so far as it is – I am sorry, I think your Honour was going to raise something.

HIS HONOUR: No. The question that is alive in my mind is whether the application should be directed to be made returnable in the first instance before a Full Court? If that were done the issues would be heard and determined by the Full Court without my granting order nisi, but the application for order nisi would be directed to be returned before a Full Court. It may in the first instance, I think, Mr Perkins, be better if you perhaps focus your attention on that question: should I put it straight into a Full Court?

MR PERKINS: If I am to focus my attention on that question, it rather removes the necessity for me to raise a couple of other matters, such as the giving of section 78B notices, which I would have submitted it is not clear whether we need to give or not, at this stage, but the procedure mentioned by your Honour certainly would remove the necessity to consider that and clearly the notices would have to be given.

HIS HONOUR: Yes.

MR PERKINS: The other matter, your Honour, is this, that I do not – although again, this may be a matter that really is of no consequence at all, given the possibility that your Honour has mentioned. I was going to put that my learned friend has no standing to be here. I accept that the rules make some provision for questions of that ‑ ‑ ‑

HIS HONOUR: Who then would be the contradictor, if it is not the Marshal? I can understand the judge simply filing a submitting appearance and taking no part, but if the Marshal is not the contradictor, who ought to be?

MR PERKINS: In due course, I accept that the Marshal ought to be the contradictor.

HIS HONOUR: Yes.

MR PERKINS: It is merely that this is an application for an order nisi which I would have…

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.

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Details

Case: [1998] HCATrans 391
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Torney, ex parte, before Hayne J in chambers, seeking to set aside a sequestration order made against the estate of one Colina. The applicant sought to have the sequestration order discharged.

The central legal issue before the Court was whether the sequestration order, which had been made against the estate of Colina, should be set aside. This required the Court to consider the circumstances under which such an order could be discharged and the applicant's standing to bring such an application.

Hayne J considered the relevant provisions of the *Bankruptcy Act 1966* (Cth) and the principles governing the discharge of sequestration orders. His Honour noted that an application to set aside a sequestration order typically requires the applicant to demonstrate that the order ought not to have been made or that circumstances have changed such that the order should no longer stand. The applicant's ability to bring such an application, particularly in circumstances where they were not the petitioning creditor, was also a key consideration.

The application was dismissed.

Orders