The Changing world and service problems in bankruptcy

In an age where financial transactions are conducted worldwide and mobility of citizens throughout the world is common, lawyers seeking to serve Bankruptcy Notices and Creditor’s Petitions encounter many problems. To assist lawyers in overcoming some of the service problems that are arising as a result of this changing world, a number of recent cases are considered that highlight a number of issues, including American Express Australia Limited v Michaels [2010] FMCA 103, Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7, Battenberg v Restom & Ors (2005) 223 ALR 692; upheld by the Full Federal Court in Battenberg v Restrom and Ors (2006) 149 FCR 128 at 133; [2006] FCAFC 20 and Envee Energy Pty Ltd (In Liquidation) v Stockford [2007] FMCA 1426. While the fact situation of every bankruptcy case will differ, recent decisions may assist lawyers in dealing effectively with bankruptcy matters in these times of transition. Lawyers can facilitate completion of the litigious process within the relevant legislative framework in order to satisfy their responsibility to clients and to the Court by considering this case law.

Catch me if you can : the effective service of bankruptcy documents in a changing world

This article discusses some recent judicial decisions to assist legal practitioners to overcome some of the problems encountered when serving Bankruptcy Notices and Creditor’s Petitions. Some of the issues covered in the discussion are: What the valid last-known address of the debtor can be, whether a Bankruptcy Notice can be validly served by email on a debtor who is located outside Australia, whether service of a Bankruptcy Notice is valid when the debtor is outside Australia when service on the debtor occurs in Australia, whether the creditor’s failure to obtain leave for service of a Bankruptcy Notice can be excused, what can be done regarding personal service of a Creditor’s Petition when a debtor is outside Australia and whether the Court can set aside a sequestration order. The article goes on to place the issues in the context of broader bankruptcy policies noting that effective service of bankruptcy documents is challenging in a world where mobility of debtors is global and new modes of communication ever changing.

Voluntary bankruptcy

"Voluntary bankruptcy occurs where a debtor commences the process of bankruptcy against himself or herself. One of the policies underlying the modern law of bankruptcy is that a person in a hopeless financial position should be given an opportunity to start again without the burden of previous debts.1 This has long been recognised by the courts; for example as Kennedy J. stated in relation to the position in the UK..."

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Weather variability, tides, and Barmah Forest Virus Disease in the Gladstone region, Australia

In this study we examined the impact of weather variability and tides on the transmission of Barmah Forest virus (BFV) disease and developed a weather-based forecasting model for BFV disease in the Gladstone region, Australia. We used seasonal autoregressive integrated moving-average (SARIMA) models to determine the contribution of weather variables to BFV transmission after the time-series data of response and explanatory variables were made stationary through seasonal differencing. We obtained data on the monthly counts of BFV cases, weather variables (e.g., mean minimum and maximum temperature, total rainfall, and mean relative humidity), high and low tides, and the population size in the Gladstone region between January 1992 and December 2001 from the Queensland Department of Health, Australian Bureau of Meteorology, Queensland Department of Transport, and Australian Bureau of Statistics, respectively. The SARIMA model shows that the 5-month moving average of minimum temperature (β = 0.15, p-value < 0.001) was statistically significantly and positively associated with BFV disease, whereas high tide in the current month (β = −1.03, p-value = 0.04) was statistically significantly and inversely associated with it. However, no significant association was found for other variables. These results may be applied to forecast the occurrence of BFV disease and to use public health resources in BFV control and prevention.