Draper v Official Receiver for the Bankrupt Estate of Keith Lawrence Draper [2004] FCA 1379 (12 October 2004)

Draper v Official Receiver for the Bankrupt Estate of Keith Lawrence Draper [2004] FCA 1379

KEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER v PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER & BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER

SAD 187 of 2004

MANSFIELD J
12 OCTOBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 187 OF 2004

BETWEEN:	KEITH LAWRENCE DRAPER FIRST APPELLANT BARBARA OLIVE DRAPER SECOND APPELLANT
AND:	PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER FIRST RESPONDENT BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	12 OCTOBER 2004
WHERE MADE:	ADELAIDE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 187 OF 2004

BETWEEN:	KEITH LAWRENCE DRAPER FIRST APPELLANT BARBARA OLIVE DRAPER SECOND APPELLANT
AND:	PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER FIRST RESPONDENT BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER SECOND RESPONDENT

1 This appeal was instituted on 26 August 2004 and was amended on 5 October 2004. It is an appeal from a decision of a Federal Magistrate given on 22 July 2004, said to have been amended on 13 August 2004. To the extent to which there was any need for an extension of time within which to have instituted the appeal, an order was made on 28 September 2004, extending that time. The decision summarily dismissed the appellants’ application.

2 The appeal is under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Under s 25(1A), the jurisdiction of the Court on such an appeal is to be exercised by the Full Court, unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single judge. The Chief Justice has directed that the appellate jurisdiction of the Court in relation to this appeal be exercised by a single judge.

3 The appellants have sought an order that the appeal be heard before a jury. There are several provisions to which the appellants have referred, either explicitly or by implication, in support of that application. The first is s 80 of the Constitution. It clearly does not apply. It applies to trial on indictments of any offence against the law of the Commonwealth. This appeal is not such a proceeding. Nor was the application before the Federal Magistrate which was the subject of the order on 22 July 2004 from which the appeal is brought.

4 The appellants have also invoked O 31 of the Federal Court Rules. That order refers back to the power of the Court under ss 39 and 40 of the Federal Court of Australia Act 1976. Section 39 requires a specific order of the Court or a judge if a suit in the Court is to be tried otherwise than by a judge without a jury. Section 40 indicates that the Court may make an order that the trial shall be with a jury in a suit in which the ends of justice appear to render it expedient to do so. I do not think those provisions are applicable to the sort of proceeding which this is, namely an appeal from a Federal Magistrate. In any event, I do not consider that it is expedient in the interests of justice to make an order that the appeal be heard before a jury. I have reached that view for two reasons. The first, as I said, is because the nature of the appeal does not lend itself to such a procedure. Secondly, and more explicitly, the appellants have indicated that on the appeal, they propose to rely only upon the information which was before the learned magistrate at first instance. They do not intend to adduce fresh evidence. Although the appeal under s 24 is generally by way of a rehearing, the Court will conduct that rehearing on the basis of the material before the magistrate and not on any additional or further material. It is inappropriate in the interests of justice that an appeal of that nature be conducted in the presence of a jury, or that a jury be asked to address any factual issue in relation to the issues before the Court.

5 Lest it be thought that I have overlooked it, I have also had regard to s 30(3) of the Bankruptcy Act 1966 (Cth). It relates to proceedings before the Court under that Act where a question of fact arises that a party desires to have tried before a jury. That provision also does not apply to this proceeding for the reasons I have already given. In any event, I would not consider it appropriate to direct that the trial of any factual question be had before a jury. In my judgment, the appeal is more efficiently and fairly disposed of on the materials which will be included in the appeal book when it is prepared in the normal manner, that is, before a judge alone.

6 The application for the hearing of the appeal to be heard before a jury is refused.

7 I have considered whether there is any issue of fact which on the appeal ought to be heard and determined before a jury, rather than the appeal generally. The applicants have not expressed, by document or in oral submissions, a particular fact or facts which might be so determined on the appeal. Nevertheless, I have considered the reasons for judgment of the learned magistrate. He assumed in favour of the appellants all of the facts which they asserted on their application before determining to dismiss the application summarily. On that basis, any facts which the appellants have sought to prove through the material before the magistrate has been assumed to be correct. He took their case at its highest. So, too, will the appeal when it considers whether the learned magistrate was correct in law to reach the conclusion that the grounds of the application are simply untenable on those assumed favourable facts. I express no view at present as to whether or not the appeal itself might succeed.

8 For those reasons, in my judgment, it is inappropriate to accede to the present application, and it will be refused. Subject to submissions, I would propose to order that the costs of the application for the hearing of the appeal to be before a jury be the respondents' costs in the cause.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Appellants:	The Appellants appeared in person

Counsel for the First Respondent:	G Gretsas

Solicitor for the First Respondent:	Gretsas Chrzaszcz

Counsel for the Second Respondent:	P Britten-Jones

Solicitor for the Second Respondent:	Cowell Clarke

Date of Hearing:	12 October 2004

Date of Judgment:	12 October 2004

1.	The application by the appellants to have the appeal heard by a jury be refused.
2.	The costs of the application be the respondents’ costs in the cause.

JUDGE:	MANSFIELD J
DATE:	12 OCTOBER 2004
PLACE:	ADELAIDE