Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9

Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9

The applicant failed to establish that any misapprehension by the Court in its earlier judgment was not a result of his own neglect or default in presenting evidence and argument. The requirements for review or rehearing before entry of orders were not satisfied. There was no procedural unfairness and all substantive issues raised were addressed by the Court. Further, the publication of the Court's reasons to AustLII would not infringe any statutory prohibition as the proceedings in question were not 'under' the Family Law Act 1975 or the Collection Act so as to engage s 121 or s 105.

Jurisdiction
Australia
Judgment Date
04 February 2011
Procedural Posture
Application for Reconsideration; Application for Leave to Appeal; Appeal / Post Judgment Motion to Reopen Before Entry of Orders
Outcome
Application for reconsideration dismissed with costs.
Legal Topics
['power of Superior Courts to Review Before Entry of Orders' 'child Support Enforcement' 'publication Prohibitions and Exceptions' 'jurisdiction of Courts in Enforcement Proceedings' 'standing and Constitutional Acquisition of Property']
['civil Procedure' 'family Law' 'administrative Law' 'constitutional Law'] ['power of Superior Courts to Review Before Entry of Orders' 'child Support Enforcement' 'publication Prohibitions and Exceptions' 'jurisdiction of Courts in Enforcement Proceedings' 'standing and Constitutional Acquisition of Property']

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Procedural Posture

Application for Reconsideration; Application for Leave to Appeal; Appeal / Post Judgment Motion to Reopen Before Entry of Orders

Legal Issues

  1. 1 ['Whether the Federal Court should reconsider its prior decision before entry of orders based on alleged misapprehension of facts or law' 'Whether procedural fairness was denied to the applicant concerning evidence of impecuniosity' 'Whether the Court erred in treatment of proprietary/constitutional arguments regarding compulsory sale of property' 'Whether the Court addressed all arguments put by the applicant' 'Whether publication of reasons on AustLII would contravene s 121 Family Law Act 1975 or s 105 Child Support (Registration and Collection) Act 1988']

Ratio Decidendi

The applicant failed to establish that any misapprehension by the Court in its earlier judgment was not a result of his own neglect or default in presenting evidence and argument. The requirements for review or rehearing before entry of orders were not satisfied. There was no procedural unfairness and all substantive issues raised were addressed by the Court. Further, the publication of the Court's reasons to AustLII would not infringe any statutory prohibition as the proceedings in question were not 'under' the Family Law Act 1975 or the Collection Act so as to engage s 121 or s 105.

Court Disposition

Application for reconsideration dismissed with costs.

Orders

  • ["The applicant's Notice of Motion filed on 8 December 2010 be dismissed with costs." 'No direction preventing the release of reasons for judgment to AustLII.']