mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 pp 348-9
Outcome: discussed
principles to be considered when deciding whether to extend time for the filing of an application were clearly enunciated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. That case concerned s 11(1)(c) of the Administrative Decisions (Judicial Review) 1977 (Cth) which is similar, in terms, to s 46PO(2). Wilcox J noted that although the section did not place any onus of proof upon an applicant for an extension of time, an application had to be made. Special circumstances did not need to be shown but the Court would not grant the application unless positively satisfied that it was proper to do so. The "proscribed period" (28 days in that case) was not to be ignored. Indeed, it was the prima facie rule that proceedings commenced outside the proscribed period would not be entertained. An applicant for an extension had to show an "acceptable explanation of the delay" and that it was "fair and equitable" in the circumstances to extend time. His Honour set out other relevant factors, which ought guide the exercise of the Court's discretion. These included the question of prejudice to the respondent. However, the mere absence of prejudice was not enough to justify the grant of an extension. Importantly, he added that the merits of the substantial application were properly to be taken into account in considering whether an extension of time should be granted.
Case: Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at [12]
Outcome: followed
Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 , Cowdroy J held (at [12]) that those principles were relevant to an application under s 46PO. I am of the same view. In support of her application to extend time, Ms Bahonko tendered a number of medical certificates. She submitted that those certificates explained that she had been ill during the delay period. Although the medical certificates were not exhibited or attached to any affidavit, the respondents did not object to Ms Bahonko relying on them. Accordingly, the certificates were accepted into evidence.
Case: Meadow Springs v Balanced Securities (2007) 25 ACLC 1 ,433
Outcome: cited
Mr Buckley helpfully referred me to a recent decision of French J, Meadow Springs v Balanced Securities (2007) 25 ACLC 1 ,433. In that case French J at [48] pointed out that a direction given or a question determined under s 511 would protect the liquidator who acts in accordance with the direction or determination. His Honour thought it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application, but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it.
Case: Boles v Official Trustee in Bankruptcy [2001] FCA 639 , 183 ALR 239
Outcome: cited
In the present proceeding Ms Samootin did not establish any reason why the sequestration order " ought not to have been made ". And the task to be undertaken pursuant to that provision is not a task of the Court reviewing afresh the facts as at the date of the making of the sequestration order, but rather the very much more confined task of considering whether the person making the order was " bound " not to have made it: cf Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 403. Fisher J there concluded: In the light of the various contrasting avenues open to a bankrupt to approach the court to have the sequestration order set aside, it is in my opinion necessary to attach significance to the "careful provisions" of s 154 , and in particular the words "ought not to have been made". In my opinion it can be said that a judge "ought" not to have made an order only if he was "bound" not to make the order. In circumstances where it was open to a judge to make an order in the exercise of his discretion, it can only be said he "ought not to have made the order" if none of the circumstances could justify the making of an order. Alternatively it can be established that an order "ought" not to have been made because subsequent evidence discloses that all of the true facts were not before the court when the order was made: Re Cook (1946) 13 ABC 245 at 249. F'lld: Boles v Official Trustee in Bankruptcy [2001] FCA 639 at [16] , [2001] FCA 639 ; 183 ALR 239 at 243 per Emmett J (Katz and Conti JJ agreeing). There is certainly no basis upon which such a state of " satisfaction " could be reached in the present proceeding. Even if it were permissible to simply review the facts as known when the sequestration order was made, nothing has emerged other than to confirm that the order was then properly made; certainly, Ms Samootin has not been able to point to any " evidence of previously unknown facts " as at the date of the making of the order.
Case: BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834
Outcome: followed
It should further be noted that Counsel for the Official Trustee also produced documents during the course of the hearing on 4 July 2008. Purported Notices to Produce had been served by Ms Samootin. Objection was formally taken to producing the documents (inter alia ) upon the grounds that the terms in which they were expressed were oppressive and one of the Notices had been served upon a non-party. Notices to Produce can, of course, only be served upon a party ( Federal Court Rules , O 33, r 12(1)) and no leave is required to serve such a Notice : BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 834. The requirement to obtain leave to compel the production of documents by a non-party by way of a subpoena imposed by O 27A, r 2 of the Federal Court Rules is not to be circumvented by an impermissible recourse to Notices to Produce . Presumably in the present proceeding Ms Samootin may well have been unaware of that distinction. Such documents as could be located in the time permitted, however, were produced. What further information or documents (if any) which Ms Samootin sought to be produced by the Official Trustee was not thereafter identified. 29 Insofar as the Amended Application sought the production by the Official Trustee of certain information, Ms Samootin accepted on 24 June 2008 that the information initially sought had since been produced. 30 It was not considered that either Ms Nash or Mr Golledge could give any evidence of relevance to the matters properly before this Court.
Case: Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307
Outcome: followed
A person who seeks an annulment carries a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] per Tracey J. It is for an applicant who seeks an annulment to " bring himself within the section and satisfy the Court, that the sequestration order ought not to have been made ": Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 at 4153 per Carr J, citing Riley J in Re Calderon (Unreported, Federal Court of Bankruptcy, 31 May 1977).
Case: Calverley v Green (1984) 155 CLR 242
Outcome: cited
On 4 July 2008 Ms Samootin added what she identified as a further three matters to be agitated, namely: (vii) an application for a finding that she has been the victim of " financial abuse ", the persons committing that " abuse " being her former husband and the First Respondent; (viii) an application for a finding that she has been the victim of " legal and civil abuse ", those committing that abuse being the Supreme Court of New South Wales, the Third Respondent and the solicitor and Counsel now representing the Third Respondent; and (ix) an application that a finding be made that Palmer J erred in " utilising ... the principles set out in Calverley v Green " (1984) 155 CLR 242. 26 On 30 June 2008 Ms Samootin also sought leave to issue Subpoenas addressed to: (a) Mr Stephen Golledge; (b) Ms Sally Nash; and (c) Mr Tibor Karolyi, an Assistant Official Receiver. Leave to issue those Subpoenas was then refused but the application was stood over to the resumed hearing on 4 July 2008 in order to further explore the matter, should Ms Samootin have then seen fit to do so. 27 The deponent to the Affidavit which had been filed on behalf of the Official Trustee was Mr Karolyi. At the resumed hearing, Counsel for the Official Trustee read that Affidavit and the deponent was available for cross-examination. No question thereafter arose as to any necessity to issue a subpoena to him. The questions asked of him by Ms Samootin, it is further considered, plainly provided an account to her as to the realisation of assets and the payment of debts. 49 Nor is it a matter for this Court to comment upon any error alleged by the Applicant to have been made by his Honour Justice Palmer in respect to his application of " the principles set out in Calverley v Green ". 50 As was made very apparent to Ms Samootin during the course of the hearing on 4 July 2008, it was considered that any submission that there had been " legal and civil abuse " was (at the very least) misplaced. That phrase was explained in her further Outline of Written Submissions as meaning a "[d] enial of access to justice or legal systems that are available to other citizens ". 51 No further particulars of the complaint have been provided. The facts deny any support whatsoever to the submission. Rather than being denied " access to justice ", even a cursory review of the proceedings in which Ms Samootin has been involved exposes her being extended every opportunity (and repeated opportunities) to ventilate her grievances.
Case: Delph Sing v Wood [1918] HCA 69 , 25 CLR 497
Outcome: considered
Moreover, s 153B confers a discretion -- even if the Court is satisfied that an order " ought not to have been made ", there thereafter remains a discretion as to whether a bankruptcy should be annulled: cf Delph Sing v Wood [1918] HCA 69 , 25 CLR 497 at 498 9, 505 per Barton, Gavan Duffy and Rich JJ; Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Deriu (1970) 16 FLR 420 at 421 per Gibbs J. Relevant to the exercise of that discretion is Ms Samootin's solvency. Such evidence as is before the Court shows that she remains insolvent. The further Affidavit as filed on 17 July 2008 does not lead to any different conclusion. If the occasion for the exercise of the discretion had arisen, it would have been exercised adversely to her.
Case: Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315
Outcome: followed
The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J.
Case: Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148
Outcome: followed
A person who seeks an annulment carries a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] per Tracey J. It is for an applicant who seeks an annulment to " bring himself within the section and satisfy the Court, that the sequestration order ought not to have been made ": Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 at 4153 per Carr J, citing Riley J in Re Calderon (Unreported, Federal Court of Bankruptcy, 31 May 1977).
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: followed
The annulment of the bankruptcy was acknowledged by Ms Samootin as a primary claim for relief. But, and as was pointed out to her during the proceeding, the issues which she now wishes to pursue have previously been the subject of judicial determination. The observation as made by Palmer J in 2003 is equally as apposite today as it was in 2003. The tortuous path of litigation which has been pursued by Ms Samootin, involving both herself and others, is truly " tragic ". But at the end of the day there is a need for finality in litigation, and the issues presently sought to be pursued have either previously been resolved, or are so closely aligned with issues previously resolved that Ms Samootin should not now be permitted to relitigate afresh the issues encompassed by her Amended Application : Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589.
Case: Re Calderon (Unreported, Federal Court of Bankruptcy, Riley J, 31 May 1977)
Outcome: cited
A person who seeks an annulment carries a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] per Tracey J. It is for an applicant who seeks an annulment to " bring himself within the section and satisfy the Court, that the sequestration order ought not to have been made ": Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 at 4153 per Carr J, citing Riley J in Re Calderon (Unreported, Federal Court of Bankruptcy, 31 May 1977).
Case: Re Deriu (1970) 16 FLR 420
Outcome: considered
The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. 40 Moreover, s 153B confers a discretion -- even if the Court is satisfied that an order " ought not to have been made ", there thereafter remains a discretion as to whether a bankruptcy should be annulled: cf Delph Sing v Wood [1918] HCA 69 , 25 CLR 497 at 498 9, 505 per Barton, Gavan Duffy and Rich JJ; Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Deriu (1970) 16 FLR 420 at 421 per Gibbs J. Relevant to the exercise of that discretion is Ms Samootin's solvency. Such evidence as is before the Court shows that she remains insolvent. The further Affidavit as filed on 17 July 2008 does not lead to any different conclusion. If the occasion for the exercise of the discretion had arisen, it would have been exercised adversely to her.
Case: Re Papps; Ex parte Tapp (1997) 78 FCR 524
Outcome: followed
A person who seeks an annulment carries a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] per Tracey J. It is for an applicant who seeks an annulment to " bring himself within the section and satisfy the Court, that the sequestration order ought not to have been made ": Pollock v Deputy Commissioner of Taxation (1994) 94 ATC 4148 at 4153 per Carr J, citing Riley J in Re Calderon (Unreported, Federal Court of Bankruptcy, 31 May 1977).
Case: Re Williams (1968) 13 FLR 10
Outcome: considered
The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. 40 Moreover, s 153B confers a discretion -- even if the Court is satisfied that an order " ought not to have been made ", there thereafter remains a discretion as to whether a bankruptcy should be annulled: cf Delph Sing v Wood [1918] HCA 69 , 25 CLR 497 at 498 9, 505 per Barton, Gavan Duffy and Rich JJ; Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Deriu (1970) 16 FLR 420 at 421 per Gibbs J. Relevant to the exercise of that discretion is Ms Samootin's solvency. Such evidence as is before the Court shows that she remains insolvent. The further Affidavit as filed on 17 July 2008 does not lead to any different conclusion. If the occasion for the exercise of the discretion had arisen, it would have been exercised adversely to her.
Case: Rigg v Baker [2006] FCAFC 179 , 155 FCR 531
Outcome: followed
The manner in which s 153B is to be applied has been summarised as follows by Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315: [20] The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The section thus contemplates two elements: the Court reaching a state of satisfaction that an order " ought not to have been made " and an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J.
Case: Samootin v Official Trustee in Bankruptcy [2008] FCA 914
Outcome: cited
An appeal against the decision of Jacobson J was dismissed when there was no appearance by Ms Samootin: Samootin v Official Trustee in Bankruptcy [2008] FCA 914. 24 The Amended Application presently before the Court, and as explained by the Applicant on 24 June 2008, was understood to be: (i) an application to annul the bankruptcy order previously made on 24 May 2006; (ii) an application to " void the Consent Orders made by M/s Sally Nash "; (iii) an application that orders be made against the Official Trustee for the production to the Court of certain information; (iv) an application that this Court should make " observations " (in the event that it annuls the bankruptcy) to the effect that the Respondents should be " responsible " for their own costs incurred in other proceedings -- including proceedings in the Supreme Court; (v) an application that the Third Respondent should provide an " account " as to monies alleged to be remaining in the possession of Mr Deans but which should be paid to the estate of the Applicant; and (vi) an application that the First Respondent, Ms Wagner, should be found " guilty of professional negligence ".
Case: Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004)
Outcome: cited
On 3 June 2004 the decision of Palmer J came before the Court of Appeal. Leave to appeal was granted but limited to the form of the orders as made by the trial judge: Samootin v Shea (No 3) (Unreported, NSWCA, Handley, Sheller and Ipp JJA, 3 June 2004). In doing so, Handley JA, with whom Sheller and Ipp JJA agreed, said: [14] The Court has heard Ms Samootin on her application for leave to appeal generally, and at greater length than would be allowed to a party who was legally represented. Despite her submissions, there is no reason to doubt the substantial correctness of the judgment of Palmer J of 1 August 2003, nor is there any reason to think that there has been any miscarriage of justice as a result of his Honour's rulings on evidence and procedure during the trial. [15] I would, therefore, refuse general leave to appeal and grant leave to appeal limited to the formal orders made by Palmer J on 29 September 2003.