Nathan v Burness [2011] FCA 288

FEDERAL COURT OF AUSTRALIA

Nathan v Burness [2011] FCA 288 Citation: Nathan v Burness [2011] FCA 288

Appeal from: Burness v Nathan [2010] FMCA 495

Parties: KAILAI NATHAN v PAUL BURNESS AND MORGAN GERARD JAMES LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF KAILAI NATHAN and ATTORNEY-GENERAL OF THE COMMONWEALTH

File number: VID 530 of 2010

Judge: TRACEY J

Date of judgment: 31 March 2011

Catchwords: BANKRUPTCY – examination before a Registrar – failure to answer questions – referral to a Federal Magistrate – jurisdiction to deal with contempt – power to deal with contempt – procedural duties to state contempt clearly and give alleged contemnor sufficient opportunity to defend it – no breach of duties – hearing on penalty – whether denial of natural justice affected outcome of case – no affect – no miscarriage of justice – no manifest excess in penalty

Legislation: Bankruptcy Act 1966 (Cth) ss 5, 27, 30, 81, 264, 264A, 264C Evidence Act 1958 (Cth) Federal Court of Australia Act 1976 (Cth) s 31 Federal Court Rules O 40 Federal Magistrates Act 1999 (Cth) ss 7, 15, O 3 Federal Magistrates Court Rules r 19.01

Cases cited: Ambrose (Trustee), in the matter of Peter Athanasas (Bankrupt) (No 2) [2008] FCA 1016 cited Antoun v R (2006) 224 ALR 51 cited Burness v Nathan [2010] FMCA 495 referred to Clampett v Attorney-General of the Commonwealth (2009) 181 FCR 473 cited, compared Conway v The Queen (2002) 209 CLR 203 referred to Coward v Stapleton (1953) 90 CLR 573 applied House v King (1936) 55 CLR 499 applied Nathan v Burness [2010] FCA 718 referred to Re Maher, Maher v Official Trustee in Bankruptcy (1993) 118 ALR 519 considered Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied Stead v State Government Insurance Commission (1986) 161 CLR 141 applied Vakuata v Kelly (1989) 167 CLR 568 compared