The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345

Federal Court of Australia

The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345 File number: VID 361 of 2021

Judgment of: SARAH C DERRINGTON J

Date of judgment: 12 November 2024

Date of publication of reasons: 21 November 2024

Catchwords: PRACTICE AND PROCEDURE – discontinuation of proceeding – where respondent does not consent – application for leave pursuant to r 26.12(2)(c) of the Federal Court Rules 2011 (Cth) – where applicant agrees to pay respondent's costs of the proceeding and not to recover its own costs from the bankrupt estate – where respondent nevertheless seeks determination of extant interlocutory application PRACTICE AND PROCEDURE – application for disqualification of judge on the basis of apprehended bias – where respondent has already raised claims of procedural unfairness in primary hearing on appeal – where leave to appeal refused – whether logical connection between factor discerned to be of concern to the respondent and the determination of the application for leave to discontinue the proceeding against the respondent

Legislation: Bankruptcy Act 1966 (Cth), Sch 2 Federal Court Rules 2011 (Cth) rr 1.34, 15.11(b), 26.12 Insolvency Practice Rules (Bankruptcy) 2016 (Cth), ss 70–56, 90-1, 90-2, 90-5, 90-10, 90-15 and 90-20

Cases cited: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; 242 CLR 283 Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 McKenzie v Cash Converters International (No 3) [2019] FCA 10 R v Watson; ex parte Armstrong [1976] HCA 39; 136 CLR 248 Shaw v The Official Trustee in Bankruptcy [2024] FCA 137 The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178