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Federal Court of Bankruptcy

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The Federal Court of Bankruptcy was an Australian court that was established in 1930,[1] pursuant to Chapter III of the Constitution. The jurisdiction in bankruptcy was shared with state courts.[2] On 1 February 1977 the bankruptcy jurisdiction was transferred to the newly established Federal Court of Australia.[3][4][5] No new cases could commence in the Federal Court of Bankruptcy after 1 February 1977,[6] however the Court was not formally abolished until 1995,[7] after the last judge, Charles Sweeney retired.[8]

History

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Section 51 of the Constitution states:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xvii) bankruptcy and insolvency;[9]

The first Commonwealth Bankruptcy Act was not passed until 1924.[10] The bankruptcy jurisdiction was exercised by state courts. In proposing the establishment of the Federal Court of Bankruptcy, the Attorney-General, Frank Brennan, said that it was necessary because the number of bankruptcy cases had been increasing due to the Great Depression and the 1929 decision of the High Court,[11] which held that the arrangement in relation to registrars in bankruptcy was invalid. The federal court would have one judge and it was anticipated that judge would sit primarily in Sydney and Melbourne as they were the courts with the highest case load.[12]

When the court was established it was constituted by a single judge, Lionel Lukin. When he was ill the Chief Judge of the Commonwealth Court of Conciliation and Arbitration, George Dethridge, was appointed to the court to deal with any urgent matters.[13] The court remained constituted by a single judge until 1973 when a second judge was appointed. The court rarely sat outside of Sydney and Melbourne. Any appeal was directly to the High Court.[14]

The establishment of a Federal Court was proposed in 1967,[15] however it was not until 1977 that the Federal Court was established, incorporating the jurisdiction of the Commonwealth Industrial Court and the Federal Bankruptcy Court. Both judges of the Federal Bankruptcy Court were appointed to the new Federal Court.[5] The Federal Bankruptcy Court, despite having no jurisdiction or cases, continued in existence until the last judge had retired in 1995.

List of judges

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Position Name From To Term Comments Notes
Judge Lionel Lukin 6 August 1930 31 October 1943 13 years, 86 days Formerly a judge of the Supreme Court (Qld), judge of the Commonwealth Court of Conciliation and Arbitration.
Subsequently a judge of the Supreme Court (ACT)		 [16][17]
George Dethridge 12 July 1935 29 December 1938 3 years, 170 days Chief Judge of the Commonwealth Court of Conciliation and Arbitration [18][19]
Sir Thomas Clyne 11 July 1942 12 April 1967 24 years, 275 days Formerly a judge of the County Court of Victoria (1939-1942)
Subsequently a judge of the Supreme Court (ACT) (1943-1945)		 [20][21]
Harry Gibbs 26 June 1967 3 August 1970 3 years, 38 days Judge of the Supreme Court (Qld) (1961–67) judge of the Supreme Court (ACT) (1967–70)
Appointed to the High Court (1970–87)		 [22]
Charles Sweeney CBE 22 October 1970 29 June 1995 24 years, 250 days Judge of the Commonwealth Industrial Court, Supreme Court (ACT) and Supreme Court (NT).
Subsequently appointed to the Federal Court		 [23]
Bernard Riley 22 October 1973 4 August 1978 4 years, 286 days Appointed to the Federal Court [24][25]

References

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  1. ^ Bankruptcy Act 1930 (Cth).
  2. ^ Kenny, S. "Federal Courts and Australian National Identity". (2015) 38(3) Melbourne University Law Review 996
  3. ^ Bankruptcy Amendment Act 1976 (Cth) An Act to make Provision for the Transfer of Jurisdiction from the Federal Court of Bankruptcy to the Federal Court of Australia and for the Abolition of the first-mentioned Court.
  4. ^ a b "Proclamation: date on which the Bankruptcy Amendment Act 1976 shall come into operation" (PDF). Commonwealth of Australia Gazette. No. S 3. 18 January 1977. p. 2. Retrieved 2 November 2018.
  5. ^ a b Black, M, The Federal Court of Australia: The first 30 years (PDF) (2007) 31(3) Melbourne University Law Review 1017.
  6. ^ Bankruptcy Amendment Act 1976 (Cth) s 7 Transfer of certain jurisdiction. Commenced 1 February 1977.[4]
  7. ^ "Proclamation: abolition of Federal Court of Bankruptcy" (PDF). Commonwealth of Australia Gazette. No. GN 38. 19 September 1995. p. 3611. Retrieved 2 November 2018.
  8. ^ French, R (1 May 2014). "Federal Circuit Court – History Repeats Itself" (PDF). High Court. Retrieved 18 October 2018.
  9. ^ Constitution (Cth) s 52 Legislative powers of the Parliament.
  10. ^ Bankruptcy Act 1924 (Cth).
  11. ^ Le Mesurier v Connor [1924] HCA 41, (1929) 42 CLR 481 (10 December 1929), High Court.
  12. ^ Frank Brennan, Attorney General (2 May 1930). "Bankruptcy Bill" (PDF). Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. pp. 2045–2046.
  13. ^ "Judge in Bankruptcy: difficulty overcome Judge Detheridge to act". The Argus (Melbourne). 6 July 1935. p. 23. Retrieved 18 October 2018 – via National Library of Australia.
  14. ^ Black, M, Such Other Federal Courts as the Parliament Creates: 100 Years of Evolution (PDF) (2004) 30(1) Monash University Law Review 1.
  15. ^ Nigel Bowen, Attorney General (18 May 1967). "Commonwealth Superior Court: Ministerial Statement" (PDF). Parliamentary Debates (Hansard). Commonwealth of Australia: House of Representatives. pp. 2335–2046.
  16. ^ "Lionel Lukin appointed to Federal Court of Bankruptcy". Commonwealth of Australia Gazette. No. 72. 14 August 1930. p. 1697. Retrieved 18 October 2018 – via National Library of Australia.
  17. ^ Gill, JCH. "Lukin, Lionel Oscar (1868–1944) (1863–1938)". Australian Dictionary of Biography. Canberra: National Centre of Biography, Australian National University. ISBN 978-0-522-84459-7. ISSN 1833-7538. OCLC 70677943.
  18. ^ "George Dethridge appointed to Federal Court of Bankruptcy". Commonwealth of Australia Gazette. No. 39. 18 July 1935. p. 1001. Retrieved 18 October 2018 – via National Library of Australia.
  19. ^ Sharp, IG. "Dethridge, George James (1863–1938)". Australian Dictionary of Biography. Canberra: National Centre of Biography, Australian National University. ISBN 978-0-522-84459-7. ISSN 1833-7538. OCLC 70677943.
  20. ^ "Thomas Stuart Clyne appointed to Federal Court of Bankruptcy". Commonwealth of Australia Gazette. No. 299. 12 November 1942. p. 2630. Retrieved 18 October 2018 – via National Library of Australia.
  21. ^ "Obituaries: Sir Thomas Clyne" (PDF). (1967) 2(2) Australian Bar Gazette 15.
  22. ^ "Bankruptcy judge: Mr Justice Gibbs". The Canberra Times. 17 June 1967. p. 3. Retrieved 18 October 2018 – via National Library of Australia.
  23. ^ "Charles Augustine Sweeney appointed to Federal Court of Bankruptcy". Commonwealth of Australia Gazette. No. 97. 5 November 1970. p. 7366. Retrieved 18 October 2018 – via National Library of Australia.
  24. ^ "Bernard Blomfield Riley appointed to Federal Court of Bankruptcy". Australian Government Gazette. No. 171. 8 November 1973. p. 2. Retrieved 18 October 2018 – via National Library of Australia.
  25. ^ Persse, J.W.De B. "Riley, Bernard Blomfield (1912–1978)". Australian Dictionary of Biography. Canberra: National Centre of Biography, Australian National University. ISBN 978-0-522-84459-7. ISSN 1833-7538. OCLC 70677943.


References

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