Shephard v Chiquita Brands (South Pacific) Ltd [2002] FCA 466

FEDERAL COURT OF AUSTRALIA

Shephard v Chiquita Brands (South Pacific) Ltd

[2002] FCA 466

BANKRUPTCY – whether bankruptcy notice defective – where creditor's address alleged not to be accurate BANKRUPTCY – existence of counterclaim, set off or cross demand – whether mutuality of counter-claims ISSUE ESTOPPEL – where Federal Magistrate held issue estoppel applied so as to preclude party arguing matters previously ventilated on application to set aside bankruptcy notice – whether issue estoppel can flow from obiter dicta – whether issue estoppel can flow from findings from which no automatic right of appeal because debtor successful on other grounds ABUSE OF PROCESS – whether issues found against debtor on previous application to set aside a bankruptcy notice might be raised on another application where debtor could not appeal from initial findings as successful on another ground COURTS – waiver of allegations of bias by unrepresented party PRACTICE AND PROCEDURE – whether proceeding should be returned for rehearing WORDS AND PHRASES – "mutuality" Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(7) Re Nugent; Ex parte Nugent (1985) 5 FCR 161 referred to Blair v Curran (1939) 62 CLR 464 followed Guss v Johnstone (2000) 74 ALJR 884 referred to Ramsay v Pigram (1968) 118 CLR 271 distinguished A Pak Plastics Pty Ltd v Menhone Pty Ltd (1995) 120 FCR 277 distinguished Vakauta v Kelly (1989) 167 CLR 568 applied Stead v State Government Insurance Commission (1986) 161 CLR 141 applied Re EJ Brown (1923) 40 WN 73 referred to Re Wedd [1962] WAR 42 referred to Re Camilleri; ex parte Maguire (unreported, Federal Court, Olney J, 8 May 1996) referred to Van Reesema v Australian Growth Corporation Pty Ltd (Receivers & Managers appointed) (1987) 75 ALR 33 referred to DEREK GEORGE SHEPHARD v CHIQUITA BRANDS (SOUTH PACIFIC) LIMITED N 1335 OF 2001 GYLES J SYDNEY 15 APRIL 2002