O'Neill v Piscopo (No 3) [2012] FCA 1036

FEDERAL COURT OF AUSTRALIA

O'Neill v Piscopo (No 3) [2012] FCA 1036 Citation: O'Neill v Piscopo (No 3) [2012] FCA 1036

Appeal from: Rose & Ors v Piscopo [2010] FMCA 948

Parties: MICHAEL O'NEILL v SAMUEL PISCOPO and TERRY HILL

File number: NSD 52 of 2011

Judge: COLLIER J

Date of judgment: 19 September 2012

Catchwords: BANKRUPTCY – s 179 Bankruptcy Act 1966 (Cth) – nature of Court's discretion under s 179 – decision of Federal Magistrate to refuse inquiry into conduct of trustee in bankruptcy or order removal pursuant to s 179 – appellant the solicitor of bankrupt – trustee funded by third party – high level of acrimony between bankrupt and appellant, and third party – claim that trustee controlled by third party – claim that third party motivated by vengeance and desire to oppress and harass bankrupt and his wife – extensive history of litigation involving parties PRACTICE AND PROCEDURE – whether leave to appeal necessary – interlocutory or final decision – whether judgment in relation to s 179 Bankruptcy Act interlocutory of final – principles in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 PRACTICE AND PROCEDURE – nature of appeal against decision of Federal Magistrate – principles in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 – whether delay in delivery of judgment affected quality of reasons PRACTICE AND PROCEDURE – whether replicating written submissions of parties in judgments constitutes failure of Federal Magistrate to give real and conscientious consideration to the issues – obligation of Federal Magistrate to provide adequate reasons for decision PRACTICE AND PROCEDURE – examination summons – need for disclosure of material facts – whether failure to include letter from liquidator of New Zealand company in material before Court constituted material non-disclosure – power to issue examination summons exercised in the interests of creditors – whether technical or restrictive approach to the use of the power appropriate – whether trustee should place before Court voluminous material or elaborate statements or reasons PRACTICE AND PROCEDURE – whether Jones v Dunkel inference to be drawn from wrongful claim of privilege