Boensch v City of Parramatta Council

[2020] NSWLEC 163

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boensch v City of Parramatta Council [2020] NSWLEC 163

Hearing dates:

13, 20 and 27 March, 15 and 29 May, 21 August, 22 October and 20 November 2020

Date of orders:

27 November 2020

Decision date:

27 November 2020

Jurisdiction:

Class 2

Before:

Moore J

Decision:

See orders at [100]

Catchwords:

APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 against a decision of a Commissioner concerning an order issued pursuant to s 124 of the Local Government Act 1992 - Appellant becomes bankrupt after commencing the appeal - effect of s 60 of the Bankruptcy Act 1966 (Cth) - Council solicitors seek views of bankruptcy trustees - bankruptcy trustees advise they did not intend to prosecute or discontinue the proceedings - bankruptcy trustees’ position triggers the operation of s 60(3) of the Bankruptcy Act deeming that the proceedings are abandoned - meaning of “action” for the purposes of the provision - whether the fact that the appeal has been commenced in circumstances where the applicant is a trustee of real property with no claimed personal interest in the trust property falls within the scope of an “action” for the purposes of s 60 - scope of the term “action” is to be construed as encompassing these appeal proceedings - whether granting an extension of time within which to commence an appeal causes the appeal to be deemed to have commenced from the date upon which the extension is granted - extension merely legitimises the validity of the appeal and does not alter the date of its commencement - whether the proceedings are saved because they fall within the scope of s 60(4) of the Bankruptcy Act - proceedings not saved by s 60(4) of the Bankruptcy Act - necessary consequence of the operation of ss 60(2) and (3) of the Bankruptcy Act is dismissal of the appeal

COSTS - costs ordinarily appropriate to be ordered when proceedings dismissed as a consequence of the operation of s 60 of the Bankruptcy Act - such costs, if ordered, are to be personal to the bankrupt and not provable as a debt in the bankruptcy - Council expressly disclaims seeking any order for costs in these proceedings - costs not to be ordered

Legislation Cited:

Bankruptcy Act 1924-1933 (Cth), s 63

Bankruptcy Act 1966 (Cth), ss 60 and 153B

Land and Environment Court Act 1979, s 56A Local Government Act 1992, s 124

Uniform Civil Procedure Rules 2005, r 50.3

Cases Cited:

Arnoya Holdings Pty Limited & Ors v Metway Leasing Limited [1999] NSWCA 120

Bailey v Boensch [2020] NSWSC 1391

Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49

Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381

Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545

Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48

Cummings v Claremont Petroleum NL (1995‑1996) CLR 124

Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45

Fisher v Transport for NSW [2016] NSWSC 1888

Foots v Southern Cross Mine Management Pty Ltd and Others (2007) 234 CLR 52; [2007] HCA 56

In the matter of St Gregory's Armenian School Inc (in liq) (No 2) [2020] NSWSC 1601

Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92

Mannigel v Hewlett Phelps and Ors [1991] NSWCA 186

Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151

Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25

Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270

Somerville Legal Pty Ltdv Boensch [2019] FCCA 3637

Want v Moss (1889) 10 NSWR (L) 274

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Procedural and other rulings

Parties:

Mr F Boensch (Appellant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
Appellant in person
Mr A Stafford, barrister (Respondent)

Solicitors:
Sparke Helmore (Respondent)

File Number(s):

323474 of 2019

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2019] NSWLEC 1381

Date of Decision:

16 August 2019

Before:

Gray C

File Number(s):

315838 of 2018

TABLE OF CONTENTS

Introduction

A council order concerning a property at Rydalmere

Mr Boensch’s appeal against the Commissioner’s decision

Mr Boensch's bankruptcy

The relevant provision of the Bankruptcy Act 1966 (Cth)

Mr Boensch’s annulment application

The stay of the appealed order

The three interlocutory Notices of Motion

The courtroom processes

Steps leading up to the proposed 22 October hearing on the three Notices of Motion

Steps concerning Mr Boensch’s bankruptcy prior to the 22 October 2020 hearing

The submissions for the 22 October 2020 hearing

The hearing on 22 October 2020

Further steps up to the 20 November 2020 hearing

The 20 November 2020 hearing

Consideration

Introduction

Mr Boensch's late-filed affidavit

Residual matters requiring determination

Introduction

The timing of commencement of these proceedings

The effect, if any, of s 60(4) of the Bankruptcy Act

Is this appeal an “action” for the purposes of s 60 of the Bankruptcy Act?

Conclusion

Costs

Orders

JUDGMENT

Introduction

1. Mr Boensch, the Appellant in these proceedings brought pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act), is no stranger to civil litigation as both a represented and as a self-represented litigant. In these proceedings, Mr Boensch is self-represented.

2. Mr Boensch is an undischarged bankrupt. Mr Boensch's current bankruptcy occurred as a consequence of an order made by the Federal Circuit Court on 12 December 2019 (Somerville Legal Pty Ltdv Boensch [2019] FCCA 3637). This was Mr Boensch's second bankruptcy, his earlier bankruptcy having occurred as a result of a sequestration order made in the (then) Federal Magistrates Court on 23 August 2005.

3. Two cases, in jurisdictions well outside that vested in this Court pursuant to the Court Act, require noting for differing and tangentially relevant purposes. The first is a decision of the High Court (Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49). This High Court litigation concerned Mr Boensch’s first bankruptcy rather than that which gives rise to consideration in these appeal proceedings. Mr Boensch’s lucid (if significantly misplaced on these preliminary issues) submissions reflect his litigation familiarity.

4. The second is a more recent decision (Bailey v Boensch [2020] NSWSC 1391) - a decision given on 25 September 2020 by Parker J in the Supreme Court.

5. These decisions are but a sample of matters concerning Mr Boensch's rich litigation history that provides a backdrop to that which I need address in this decision.

A council order concerning a property at Rydalmere

6. The genesis of these present proceedings in this Court was an order addressed to Mr Boensch concerning vehicles and other material located on the unnamed cul-de-sac adjacent to the rear of 255 Victoria Road, Rydalmere. The order was made by Parramatta City Council (the Council) on 13 September 2018 pursuant to s 124 of the Local Government Act 1992 (the Local Government Act). The order required Mr Boensch to remove the vehicles and other material from that unnamed cul-de-sac.

7. The order was addressed to Mr Boensch because he is the registered proprietor of a property adjacent to the roadway location of the vehicles and other material. Although Mr Boensch is the registered proprietor of the property, I do not understand it to be in dispute in this litigation (and in multiple other cases in various jurisdictions, both state and federal) that he holds title to the property as the trustee for the Boensch Family Trust.

8. On 16 October 2018, Mr Boensch commenced a Class 2 appeal in this Court against the order made by the Council. There is no dispute that, at the time he commenced these proceedings, he had the necessary status to do so. Mr Boensch was self-represented in the Class 2 appeal.

9. Those proceedings were heard by Gray C. The matters put before the Commissioner required lengthy consideration of a range of complex issues relating, primarily, to the legal status of the roadway where the vehicles and other items were located. The learned Commissioner delivered her decision on 16 August 2019 (Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381). She dismissed Mr Boensch’s appeal.

Mr Boensch’s appeal against the Commissioner’s decision

10. On 16 October 2019, Mr Boensch filed a Summons commencing this appeal pursuant to s 56A of the Court Act against the Commissioner's decision. As Mr Boensch’s Summons was filed 61 days after the Commissioner’s decision, it was 33 days out of time (r 50.3 of the Uniform Civil Procedure Rules 2005 - see Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151). An extension of time to commence the appeal was therefore necessary. This requires later further attention.

11. The Summons pleaded 38 separate grounds of appeal. It is unnecessary, for present purposes, to set out those grounds of appeal. It is, however, appropriate to note that, at the conclusion of the list of the 38 grounds of appeal, Mr Boensch added the following:

I am a self-represented litigant and not legally trained and the reasons above are not comprehensive. I intent [sic] to obtain legal representation for these proceedings. The reasons for this appeal above will have to be amended by my legal representative when the Transcript is available.

12. Mr Boensch alleges that Gray C made a number of errors in her decision (appeals pursuant to s 56A of the Court Act being confined to questions of law). For present purposes, it is unnecessary to set out the terms of s 56A of the Court Act. It is sufficient to note that, for the purposes of this appeal, Mr Boensch seeks to traverse a wide range of legal and other issues pressed by him before the Commissioner and with respect to which he asserts that the Commissioner made legal errors.

13. It is also unnecessary to set out in any detail the nature of the matters sought to be pressed by Mr Boensch should his appeal against the Commissioner's decision have progressed to substantive hearing. However, this progression is not to be for reasons later explained.

Mr Boensch's bankruptcy

14. At this point, it is appropriate to note that, throughout these s 56A proceedings in this Court (attendances being principally, but not exclusively, before me), Mr Boensch has been self-represented. It is also the position that, at no time during these proceedings since the determination of the Federal Circuit Court earlier referenced at [2], has Mr Boensch drawn to the attention of this Court that he is now an undischarged bankrupt.

15. I became aware of his status as an undischarged bankrupt as a consequence of my noticing his name (it, self-evidently, being an unusual one) in the daily electronic feed on Caselaw, the publicly accessible archive of decisions of various courts and tribunals of this state. This caused me to read the earlier noted decision of Parker J - a decision where his Honour recorded, at [2], that Mr Boensch was bankrupt - being so made by the earlier noted Federal Circuit Court decision of 12 December 2019. His bankruptcy therefore commenced a little short of two months after his filing of the Summons initiating this s 56A appeal.

The relevant provision of the Bankruptcy Act 1966 (Cth)

16. Although, in the context of other elements of Mr Boensch's litigation history, a number of provisions of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) have required to be addressed by others, I am satisfied only s 60 of that Act presently arises for my detailed consideration in these proceedings. That provision, relevantly, is in the following terms:

60.   Stay of legal proceedings

(1)   …

(2)   An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3)   If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4)   Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)   any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b)   the death of his or her spouse or de facto partner or of a member of his or her family.

(5)   In this section, action means any civil proceeding, whether at law or in equity.

Mr Boensch’s annulment application

17. Although Mr Boensch has pending, in the Federal Court, an application pursuant to s 153B of the Bankruptcy Act to annul his bankruptcy, it is not necessary to set out the terms of this provision.

18. It is not disputed that this annulment application will not be determined until an unknown date in 2021. If his application for annulment is successful, as I understand the position, his current bankruptcy will be set aside, and it will be as if it had never occurred.

19. It is later necessary to address this annulment application and its current non‑determination as informing my consideration in these proceedings.

The stay of the appealed order

20. On 27 September 2019, Mr Boensch and a Mr Chris Campbell are recorded as having filed a Notice of Motion which sought that the Council’s order be stayed pending the initiation of, and outcome from, Mr Boensch's s 56A appeal. The reference to Mr Campbell as the Second Applicant appears to be an inadvertent error on behalf of Mr Boensch in completing the Notice of Motion form (as Mr Campbell was the solicitor appearing for the Council before the Commissioner).

21. This Notice of Motion also sought other ancillary orders (ancillary orders unnecessary if the Council’s order was stayed). On 18 November 2019, this Notice of Motion was dealt with by Duggan J, as the Duty Judge, with the following orders being made:

1.   The Parramatta Council orders made in this matter dated 13 September 2018 by Parramatta City Council NSW in these proceedings, Boensch v City of Parramatta Council (No 2) [2019] NSWLEC 1381, be stayed pending the outcome of appeal lodged by the Applicant;

2.   The Notice of Motion dated 27 September 2019 is otherwise dismissed;

3.   No order as to costs.

The three interlocutory Notices of Motion

22. The Chief Judge has assigned the hearing and determination of Mr Boensch’s s 56A appeal to me. At the present time, I have not yet commenced the process of any substantive hearing of Mr Boensch's appeal against the Commissioner's decision. The interlocutory matters with which I am presently dealing comprise three Notices of Motion raising matters anterior to commencing hearing the substantive appeal proceedings. These Notices of Motion are:

1. A Notice of Motion filed by Mr Boensch on 27 February 2020 seeking leave to rely on new evidence at the hearing of his appeal against the Commissioner's decision;

2. A Notice of Motion filed on behalf of the Council on 17 March 2020 seeking to set aside a Notice to Produce served on the Council by Mr Boensch; and

3. A Notice of Motion filed by the Council on 15 May 2020 seeking the striking out of the Summons of 16 October 2019 filed by Mr Boensch commencing the appeal.

The courtroom processes

23. The various interlocutory hearings have been conducted in accordance with the Court’s COVID-19 Pandemic Arrangements Policy. Mr Boensch and Mr Stafford, the Council’s barrister, and Ms Catherine Morton, his instructing solicitor, have appeared in person. Appropriate social distancing was observed in the courtroom during these appearances in person.

Steps leading up to the proposed 22 October hearing on the three Notices of Motion

24. As can be seen from the dates set out above, the three Notices of Motion were filed sequentially over a period of some two-and-half months. As a consequence, short, purely timetabling hearings were held on 13, 20 and 27 March, 15 and 29 May and 21 August 2020.

25. At the last preliminary hearing on 21 August 2020, I set a final timetable intended to lead up to a full-day hearing on 22 October 2020. At the hearing on that date, it was intended that submissions from Mr Stafford and Mr Boensch would be made addressing all substantive issues engaged for consideration concerning all three Notices of Motion - with me then reserving my decision (to prepare an omnibus decision addressing the outcome determined to be appropriate for each of the three Notices of Motion).

Steps concerning Mr Boensch’s bankruptcy prior to the 22 October 2020 hearing

26. When I read the decision of Parker J earlier cited, I became aware of Mr Boensch's bankrupt status. This caused me to draw this new circumstance to the attention of the Council's legal representatives - inviting them, in doing so, to consider what might necessarily arise in the context of these proceedings by virtue of the operation of s 60 of the Bankruptcy Act.

27. On 14 October 2020, at 9.05 am, I had my Associate send the following e-mail to the Council's solicitor and to Mr Boensch:

Quite serendipitously, his Honour has, this morning, read the decision of Parker J in Bailey v Boensch [2020] NSWSC 1391. Having read that decision, his Honour is now of the view that it is, as a preliminary point, appropriate to request the Council to address the question of whether or not:

(a)   there is any impediment to Mr Boensch continuing these proceedings, given that his current bankruptcy postdates Commissioner Gray’s decision; and/or

(b)   it is necessary for Mr Boensch’s trustees in bankruptcy to be joined as respondents to these proceedings.

It may be necessary, depending on responses to this e-mail and his Honour’s further consideration of any matters raised with respect to it by the Council or by Mr Boensch, that the hearings on Thursday 22 October 2020 may not be able to proceed further, pending resolution of the above issues.

Having raised these matters with the Council, his Honour also invites Mr Boensch to either provide written material on the above matters or be prepared to address the above matters as a preliminary issue at next week’s hearing.

Should either the Council or Mr Boensch wish to make any written submissions concerning the above matters raised by his Honour, those submissions are to be filed and served by the close of business on Tuesday 20 October 2020.

28. After a subsequent enquiry from Mr Boensch as to matters going to timing and to what matters he should focus on in preparation for the hearing on 22 October 2020, I had my Associate send the Council's solicitor and Mr Boensch a further e-mail on 15 October 2020.

29. This e-mail addressed both the nature of the matters to be dealt with on 22 October 2020 and the question of whether or not I should relist the matter earlier. This latter point required further consideration, given that Mr Boensch indicated that he would have difficulty in participating in any earlier relisting of the matter. The further e-mail from my Associate was in the following terms:

His Honour has asked me to advise you that, in light of Mr Boensch’s e-mail of this morning, his Honour has concluded that the appropriate course to follow is to deal with the bankruptcy-related matters on Thursday 22 October 2020 and, if the proceedings are to continue beyond that date, to address further progression of the matter at that time. As a consequence, his Honour does not propose to relist the matter on Monday 19 October 2020 but leave it as presently listed.

30. Thus, the three Notices of Motion remained listed for further hearing on 22 October 2020 to deal solely with matters relating to Mr Boensch’s bankrupt status.

The submissions for the 22 October 2020 hearing

31. Mr Stafford provided preliminary written submissions dated 20 October 2020 addressing the effect of Mr Boensch's bankruptcy. In those submissions, he noted that Mr Boensch had commenced these s 56A appeal proceedings on 16 October 2019, being a date before Mr Boensch became bankrupt.

31. The following day, Mr Boensch filed written submissions in response. His submissions included the following, at paragraphs 7 to 11:

7)   The Respondent is correct in stating that I lodged the original appeal to these proceedings on about the 16 October 2019.

8)   However following that, the Respondent argued successfully before the Registrar, that my “appeal was invalid” as being out of time. I had to make an application for leave to lodge this Appeal.

9)   Leave was granted in about Feb/March 2020 (I currently cannot locate the records of the exact date) and thereby in reality a valid appeal was lodged when leave was granted.

10)   The date, when leave was granted became the date of my Appeal in these proceedings.

11) That date was well after the sequestration order and therefore s60 of the Bankruptcy Act 1966 does not apply. Hence the Trustee in Bankruptcy has no jurisdiction to intervene in these proceedings under, but not limited to, s60 of the Bankruptcy Act 1966.

33. It will be necessary, later in my consideration of what follows as a consequence of s 60 of the Bankruptcy Act, to explain why I am satisfied that that which is submitted by Mr Boensch in paragraph 10 of the above extract is incorrect.

34. On 21 October 2020, a letter (dated 20 October 2020) from the Council's legal representatives to the trustees of Mr Boensch's bankrupt estate (trustees appointed as a consequence of his December 2019 bankruptcy) was provided to me. The letter to those trustees was in the following terms:

We confirm we act for City of Parramatta Council, the defendant in the above proceedings.

We have been advised that the Plaintiff in the above proceedings, Franz Boensch was declared Bankrupt on 12 December 2019, and you have been appointed as trustees.

Pursuant to s60(3) of the Bankruptcy Act 1966 (Cth) we put you on notice of the above proceedings.

Please find enclosed Summons of Appeal filed 16 October 2019 and the Judgment that is the subject of the appeal which was handed down on 16 August 2019.

In our view the appeal has no reasonable prospects of success and is liable to be struck out, for the reasons set out in the enclosed written submissions filed with the Land and Environment Court on behalf of our client.

We are instructed to request you pursuant to s60(2) of the Bankruptcy Act to make an election in writing within 28 days whether to prosecute or discontinue the action.

Should you not provide a response within 28 days of the date of this letter, our client reserves its right to take further action without further notice.

35. This letter, from its contents, self-evidently had the effect of drawing the attention of those trustees to these current s 56A appeal proceedings. It also had the effect of triggering the operation of s 60 of the Bankruptcy Act by causing the 28-day period specified by s 60(2) commencing to run and, with that, the (at least potential) inevitability that one of the three outcomes provided for in subs (2) and (3) of s 60 of the Bankruptcy Act occurring at the expiry of that specified 28-day period.

36. It is to be observed that the above communications on my behalf did not direct that the Council's legal representatives were to send a triggering notice of the type envisaged by s 60(2) of the Bankruptcy Act to the trustees of Mr Boensch's bankrupt estate. Whether or not that was an appropriate step for me to mandate was a matter about which I had intended to have the parties address me on 22 October 2020.

37. However, the sending of the Council's legal representatives letter to Mr Boensch's trustees on 20 October 2020 rendered nugatory consideration of whether or not the giving of such notice was appropriate or whether there might have been some circumstances (for example, as subsequently revealed to me, Mr Boensch's undetermined annulment application) as to why such notice might, potentially, have been regarded as premature at this time.

38. Prior to me becoming aware of Mr Boensch's bankrupt status by virtue of reading the decision of Parker J in the Supreme Court, Mr Boensch and Mr Stafford, counsel for the Council, had also both provided extensive written submissions addressing matters arising for consideration in my addressing of the three interlocutory Notices of Motion.

39. It is not necessary for these to be set out or addressed in this decision.

The hearing on 22 October 2020

40. As the fact of Mr Boensch's bankrupt status required consideration in the context of the impacts on continuation of the proceedings should the provisions of ss (2) and (3) of s 60 of the Bankruptcy Act become engaged by the giving of notice to Mr Boensch's trustees in bankruptcy, I concluded that it was appropriate to address that matter at the hearing on 22 October 2020 otherwise scheduled to address the three Notices of Motion.

41. At that hearing, Mr Boensch gave a preliminary explanation as to why he did not consider that his bankrupt status impacted on these Class 2 proceedings. Mr Stafford supported my suggestion that the appropriate course, given that notice had now been given to Mr Boensch's trustees in bankruptcy, was that I should await a response from the trustees before taking any further steps.

42. I confirmed my initial view that I considered awaiting a response from the trustees was necessary.

43. As a consequence, I adjourned these proceedings until 4.15 pm on Friday 20 November 2020 (being after the expiry of the 28-day period after the giving of the notice to Mr Boensch's trustees in bankruptcy). I granted the Council’s legal representatives (and only the Council’s legal representatives) leave to relist the matter on three days’ notice earlier than that date, if a relevant communication from the trustees was received sooner and the Council considered that earlier relisting was appropriate.

Further steps up to the 20 November 2020 hearing

44. I did not grant Mr Boensch liberty to relist prior to the 20 November 2020 hearing. I did this as it was my view that nothing useful could arise to be dealt with, from his perspective, unless the views of his trustees in bankruptcy were made known or the 28-day statutory time period had expired.

45. As a consequence, although Mr Boensch filed a further written submission via Online Court on 28 October 2020, a submission which included a request from him that I relist the matter, I declined to do so. I had my Associate inform Mr Boensch and the Council, via Online Court, as follows:

In all three Notices of Motion, on 22 October 2020, his Honour adjourned all three Notices of Motion for further hearing on 20 November 2020 before him at 4.15 pm.

His Honour granted the Council leave to relist any of the matter on three days' notice. His Honour did not grant such leave to Mr Boensch.

His Honour has asked me to advise the parties that, in response to Mr Boensch's written submissions filed on 28 October 2020, he declines to relist the matter prior to 20 November 2020.

46. On 2 November 2020, I was provided by the Council’s legal representatives with a copy of a response (dated 27 October 2020) from Mr Boensch's trustees in bankruptcy. I note that a copy had also been provided to Mr Boensch. The trustees’ response was in the following terms:

As you are aware, Mr Christopher Palmer and I were appointed Joint Trustees of the Estate, pursuant to a Sequestration Order of the Federal Circuit Court of Australia made on 12 December 2019. Attached hereto is a copy of the Certificate of Appointment as evidence of the appointment.

I refer to your letter dated 20 October 2020 in respect to the Proceedings and make comment as follows:

(i)   On 16 December 2019, the Debtor filed a notice of appeal seeking to set aside the sequestration order. As at the date of this notice, a date for hearing and/or for the delivery of judgment has not been set and there has been no indication as to when the proceedings may be finalised. The continuing appeal against the Debtor's sequestration makes it difficult for us to make an election in respect to the Proceedings.

(ii)   Based on the information available to us, we see no reason to disagree with your view that the Proceedings are without merit and/or that the Debtor has no reasonable prospects for success.

(iii)   Based on the information available to us, we see no commercial benefit in the continuance of the Proceedings, nor would we be funded to continue with the Proceedings.

(iv) But for the appeal to the sequestration remaining on foot, it would be our intention to elect to discontinue the proceedings pursuant to section 60(2) of the Bankruptcy Act 1966.

In light of the foregoing, we do not intend to prosecute nor discontinue the action in respect to the Proceedings.

47. As a consequence of the above communication from Mr Boensch’s trustees in bankruptcy, I immediately had my Associate send the following Online Court communication to the parties:

His Honour has been provided, this morning, with a copy of the 27 October 2020 letter from O'Brien Palmer to the Council's legal representatives.

On 20 November 2020, when the matter is next before his Honour, his Honour will receive any further submissions by Mr Boensch (whether written or oral) concerning s 60 of the Bankruptcy Act, together with any submissions on behalf of the Council in reply. If Mr Boensch wishes to provide any further written submissions, they should be filed and served by the close of business on Friday 13 November 2020, with any written submissions in reply from the Council to be filed and served by the close of business on Wednesday 18 November 2020.

At the conclusion of the hearing on 20 November 2020, his Honour proposes to reserve his decision on matters relating to s 60 of the Bankruptcy Act. As the matter is listed at 4.15 pm that day, his Honour proposes to allow Mr Boensch up to 25 minutes for any oral submissions he might wish to make; the Council to have 10 minutes in reply; and Mr Boensch to have a further 10 minutes in reply to any submissions made by the Council.

48. On 14 November 2020, Mr Boensch emailed further submissions to my Associate and to the Council's legal representatives concerning matters relating to his bankruptcy and the present proceedings. He also filed electronically, on that date, an affidavit with 41 pages of annexures in support of these submissions. Mr Stafford provided written submissions in response the following day. I have had regard to those submissions in my consideration of the matters here requiring determination.

The 20 November 2020 hearing

49. The hearing on 20 November 2020 was conducted in the fashion outlined above. Mr Boensch’s 14 November 2020 affidavit was read without objection by the Council. At folios 23 to 42 of the annexures to this affidavit of Mr Boensch is correspondence between him and his trustees in bankruptcy.

50. After I had reserved my decision, Mr Boensch filed, at 7.33 pm that evening, a further affidavit. The affidavit was delivered to me by the Court’s registry on Monday 23 November 2020.

51. The affidavit had appended to it, as said by Mr Boensch to be relevant in these proceedings, the first page of a letter dated 1 September 2005 from the trustees of his first bankruptcy to him.

52. Because Mr Boensch has been self-represented in these proceedings, I had my Associate send an e-mail to Mr Boensch and to Ms Morton, the Council's solicitor, concerning this affidavit. The operative element of the e-mail was in the following terms:

His Honour has asked me to advise that, at 7.33 pm last Friday 20 November 2020, Mr Boensch filed an affidavit which he describes as being ‘Affidavit to assist the Court - Pascoe document’. As this affidavit was filed after his Honour reserved his decision that afternoon, his Honour does not propose to pay heed to the contents of the affidavit or its attachment unless the Council indicates it has no objection to him doing so. If the Council raises no objection, his Honour proposes to mark the affidavit as ‘read late’.

53. Ms Morton replied to my Associate a short time later, indicating that she had been instructed that the Council had no objection to me having regard to this affidavit. I have therefore marked it as “read late”. As a consequence, later in this decision, I address that affidavit and an element of the letter annexed to it.

Consideration

Introduction

54. I have carefully read (and reread) the entirety of Mr Boensch’s correspondence with his current trustees in bankruptcy. The overall tenor of it is that Mr Boensch has sought to have his trustees in bankruptcy walk back from the terms of their communication with the Council's legal representatives, dated 27 October 2020, which had indicated that no election was being made by those trustees for the purposes of s 60(2) of the Bankruptcy Act. For reasons earlier explained, that lack of election potentially triggered the operation of s 60(3) of that Act - thus having the effect that the trustees abandoned these proceedings. This would occur unless:

1. Section 60 did not apply; or

2. Section 60(4) did apply and preserved the s 56A appeal proceedings for Mr Boensch to continue them.

55. Mr Boensch submits that both the above carve-outs would apply - with only one of them being necessary to permit his s 56A appeal to continue for determination.

56. The final communication between his trustees and Mr Boensch (at folio 42 of the annexures to Mr Boensch's affidavit) makes it expressly clear that no alteration was going to be made by the trustees to the position that they had advanced in their correspondence with the Council's legal representatives.

57. Whilst Mr Boensch advances, through his submissions; his affidavit; and in the annexures to that affidavit, a range of matters said to require evaluation about the status and nature of his bankruptcy and its relationship with the property at Rydalmere giving rise to the Council’s original order served on him, they are matters that do not require my determination in these proceedings for reasons that are later obvious as they are matters only relevant to the status of his bankruptcy under the Bankruptcy Act and not to the status of this appeal pursuant to the Court Act.

Mr Boensch's late-filed affidavit

58. I have earlier noted, at [50], that Mr Boensch had filed a supplementary affidavit (with an annexure) after I had reserved my decision. The affidavit is one of short compass. It is appropriate that I set out, for completeness in understanding my decision, the entirety of the terms of Mr Boensch's affidavit (noting that paragraphs 13 to 15 of the affidavit are clearly submissions rather than matters for evidence). Under the circumstances, it is appropriate that I receive them and treat them in that fashion. The terms of his late‑filed affidavit were:

1   I am the Appellant.

2   I was named in a Council Order dated 13 September 2018, addressed to 255 Victoria Road Rydalmere.

3   I make this affidavit to assist the court by providing a document I referred to in the hearing today.

4   The Property involved in the Council order and subject to these Proceedings is a Trust Property.

5   I am the Trustee holding the Property for a 3^rd Party.

6   I verily believe that carrying out my duties as Trustee, whatever it might be, to administer the Trust Property, are not and should not be restricted or stifled in any way by my personal Bankruptcy.

7   I was made Bankrupt in a related Bankruptcy in 2005.

8   Back then I contacted ITSA and enquired what the effects of my Bankruptcy have on my duties as Trustee of the Trust Property.

9   Mr Robert J. Bob Cruickshank from ITSA (Deputy Official Receiver at the time) replied that I can continue my duties as Trustee of the Property Trust without any effect from my personal Bankruptcy.

10   I presented this information from ITSA to my then Trustee in Bankruptcy Mr Scott Darren Pascoe and a letter in reply dated 1 Sept 2005 was send to me on a Letterhead of “Sims Partners”. Annexed here as “A” to this affidavit.

11   Paragraph 2 of this letter from Pascoe reads :

(“I believe that Insolvency &Trustee Services Australia’s view that you may remain trustee of the Trust and that the bankruptcy proceedings do not affect this duty is correct…”)

12 I trust I verily believe that this still applied today to the question of s60(2), s60(3), 60(4) s60(5)

13 My personal Bankruptcy including s60 should not have an effect, in particular but not limited to that these proceedings are discontinued.

14   I trust and verily believe that my personal Bankruptcy has no effect on my duty to administer the Trust Property and as such I should be free of any incumbrance with the administration of my duties as Trustee of the Trust Property.

15   As such I should be free to deal with the relevant Council Order in any way legal and I see fit including Court actions and this appeal.

59. It is unnecessary to set out the entirety of the letter which was annexed to this affidavit. It is sufficient that I reproduce the terms of paragraph 2 of that letter, a paragraph in the following terms:

2)   I believe that Insolvency & Trustee Service Australia’s view that you may remain trustee of the trust and that the bankruptcy proceedings do not affect this duty is correct. However, I am still looking into this matter and upon receipt from you of full details of the trust and your Statement of Affairs, I will be in a better position to seek legal advice on this matter.

60. It is to be observed that the opinion expressed by the author in the paragraph quoted immediately above is a contingent one, with the necessity for the author to seek further legal advice on this point in light of whatever Mr Boensch might then provide “of full details of the trust and your Statement of Affairs”. This is not a conclusive statement of opinion based on legal advice. It is a qualified and contingent position expressed by the trustee in bankruptcy and relating to circumstances which existed in September 2005.

61. It is of no assistance in enabling me to understand what the present position of Mr Boensch in his second bankruptcy might be.

62. However, it is also irrelevant to the legal framework in 2020 within which I am obliged to address the issues arising from s 60 of the Bankruptcy Act in these proceedings.

63. As can be seen from the nature of my subsequent discussion, the fact that Mr Boensch is a trustee on behalf of his family trust is a matter to which I have given appropriate consideration and, for this purpose, have assumed that he has no pecuniary interest in that trust’s property.

64. Nonetheless, as can also be seen from the following legal analysis, even under such circumstances, the inevitable consequence of Mr Boensch's December 2019 bankruptcy is that these proceedings must be dismissed for the reasons which follow.

Residual matters requiring determination

Introduction

65. There are two submissions made by Mr Boensch which properly require determination by me prior to me giving effect to what would, otherwise, be the inevitable consequence of Mr Boensch’s trustees in bankruptcy’s response to the Council’s legal representatives.

66. The two submissions are ones whereby Mr Boensch proposes that:

• As a consequence of the necessity for him to be granted an extension of time within which to commence these proceedings, the commencement of the proceedings will be deemed to have taken place on the date when such extension is granted to him (it not being opposed by the Council) rather than the date upon which his s 56A appeal Summons was actually filed.

• His proposition is that, because such an extension of time was not granted until after the date the Federal Circuit Court made the sequestration order against him (indeed such extension has not yet formally been granted to him, although the proceedings appear to have continued on the assumption that that has occurred), these are not proceedings commenced prior to his bankruptcy.

• If this proposition is correct, these proceedings do not fall within the scope of s 60 of the Bankruptcy Act as they would not have been commenced prior to him becoming bankrupt; and

• The limited savings provision in s 60(4) of the Bankruptcy Act is to be interpreted, with respect to this s 56A appeal, as preserving that appeal from the operation of s 60(2) and (3) of the Bankruptcy Act.

67. Each of these propositions requires to be addressed and, if either of them is established as being well-founded, what would otherwise follow from the Council's legal representative writing to Mr Boensch's trustees in bankruptcy and the terms of the reply from those trustees would not impose any obligation on me to dismiss these proceedings.

68. Finally, for completeness, it is also appropriate that I explain why this appeal is an “action” for the purposes of s 60 of the Bankruptcy Act.

The timing of commencement of these proceedings

69. An order nunc pro tunc is made when a court directs that a proceeding is to be dated as if commenced on an earlier date than that upon which it was actually commenced. Mr Boensch, effectively, seeks to have me regard an extension of time within which he is to be permitted to commence this s 56A appeal as being a mirror reverse of such a position.

70. Mr Boensch commenced these appeal proceedings on 16 October 2019. For him not to have needed an extension of time, he would have needed to have filed the Summons commencing this appeal by 14 September 2019. He did not do so. As a consequence, for this appeal to be permitted to be commenced, he needed in extension of time within which to commence - an extension of time of 33 days, being the period between the end of the ordinary period for the commencement of such an appeal and the date upon which he actually filed the Summons.

71. In Mr Boensch's Summons, he sought, as order (1), “Leave to appeal from the whole of the decision below if required”.

72. It is also clear that, when Duggan J stayed the Council’s order on 18 November 2019, no extension of time to commence the appeal was sought or granted on that occasion.

73. It is to be interposed that, although Mr Boensch is of the view that such an extension was granted in February 2020, he has no record of the precise date of this happening (annexure to Mr Boensch's affidavit of 15 November 2020, at folio 6, where Mr Boensch noted, at paragraphs (1), (2) and (3) - repeating what he had said in his submissions of 21 October, see [32] earlier):

(1)   The Respondent is correct in stating that I lodged the original appeal to these proceedings on about the 16 October 2019.

(2)   However, following that, the Respondent argued successfully before the Registrar, that my “appeal was invalid” as being out of time. I had to make an application for leave to lodge this Appeal.

(3)   Leave was granted in about Feb/March 2020 (I currently cannot locate the records of the exact date) and thereby in reality a valid appeal was lodged when leave was granted.

74. The Court’s records do not disclose any such extension as having been granted. His application for an extension of time within which to commence the proceedings thus remains to be determined.

75. It is, therefore, necessary to formalise commencement of the appeal by granting the extension of time sought in the orders to be made at the conclusion of this decision.

76. All that the granting of this extension of time to commence the appeal does is to eliminate the otherwise exclusionary effect of the effluxion of time over the gap period of 33 days. The appeal commenced from the date upon which it was filed by virtue of the granting of the extension of time by the order I will later make.

77. Mr Boensch's submission that his appeal did not commence until after the sequestration order was made against him is without foundation.

The effect, if any, of s 60(4) of the Bankruptcy Act

78. I next need to address Mr Boensch’s submission that this s 56A appeal falls within the savings scope of s 60(4) of the Bankruptcy Act. This savings provision is in the following terms:

60   Stay of legal proceedings

(1)   …

(2)   …

(3)   …

(4)   Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)   any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b)   the death of his or her spouse or de facto partner or of a member of his or her family.

79. Earlier bankruptcy legislation, the Bankruptcy Act 1924-1933 (Cth) (the 1924‑1933 Act), addressed, in its s 63, matters now covered by s 60 of the Bankruptcy Act. It contained, as a proviso to its s 63(3), words to the same effect as s 60(4) of the legislation here involved. The proviso was in the following terms:

Provided that any bankrupt may continue, in his own name and for his own benefit, any action or proceedings commenced by him previous to his bankruptcy for any personal injury or wrong done to himself or to any member of his family.

80. Dixon J (as he then was) dealt with the proviso to s 63(3) of the 1924‑1933 Act in Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48. At 721, his Honour described the test as to whether the proviso applied in the following terms

The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property [citing Wilson v. United Counties Bank Ltd (1920) A.C. 102, at pp. 111 and 128-133].

81. In Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 (Daemar), Kirby P (Samuels and Clarke JJA concurring) adopted and applied the above test at 55 to 56. This adoption was also subsequently cited and applied by Handley JA (Kirby P and Meagher JA concurring) in Mannigel v Hewlett Phelps and Ors [1991] NSWCA 186 at page 2, line 34.

82. Although Mr Stafford, in his written submissions of 19 November 2020, refers to what might be regarded as the modestly expansive approach to s 60(4) adopted by McCallum J in Fisher v Transport for NSW [2016] NSWSC 1888 (her approach being adopted by Full Court of the Federal Court in Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92), such a potential expansion can, properly understood, only be regarded as arising in the context of matters personal to the individuals involved in those proceedings.

83. In these proceedings, no matters of personal impact are involved. These proceedings are, in effect, purely public law proceedings whereby the Council sought to uphold a relevant applicable regulatory regime. Indeed, in his submissions concerning his status as a trustee with respect to the Rydalmere property, Mr Boensch has repeatedly submitted that he had no personal interest in that property. As a consequence, application of the test set out above in [80] is appropriate to be applied to Mr Boensch's circumstances and the mildly expansionary positions discussed above have no relevant applicability.

84. Section 60(4) of the Bankruptcy Act can have no applicability to effect preservation of the s 56A appeal commenced by Mr Boensch.

Is this appeal an “action” for the purposes of s 60 of the Bankruptcy Act?

85. First, it is to be observed that the institution of an appeal in circumstances such as these prima facie constitutes an “action” for the purposes of s 60(5) of the Bankruptcy Act (Cummings v Claremont Petroleum NL (1995-1996) CLR 124 at 130 and 142 applying Want v Moss (1889) 10 NSWR (L) 274).

86. The word “action” is defined in s 60(5) of the Bankruptcy Act for the purposes of this section as meaning “any civil proceeding, whether at law or in equity”. In light of this definition, the question of how “action” is to be construed in the context of the application of the words “any civil proceeding” was discussed by Gleeson J in a decision of 13 November 2020 (In the matter of St Gregory's Armenian School Inc (in liq) (No 2) [2020] NSWSC 1601). Between [27] and [45], his Honour analysed how the scope of the term “action” might be construed following the decision of the Court of Appeal in Daemar and subsequent decisions.

87. In particular, his Honour discussed the decision of Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25 (Re Lofthouse) in which the issue of whether an action as dealt with by s 60 of the Bankruptcy Act should be construed as excluding a proceeding in which a bankrupt is carrying on the proceeding as a trustee. His Honour quoted (adding his own emphasis as can be seen) what was said by Gray J in Re Lofthouse, at [20]:

In my view, s 60 has been enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions have been expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding.

88. This approach, as Gleeson J explained, has been followed elsewhere to the result that a plaintiff (here Mr Boensch as an appellant) who is a trustee for a trust (the position here pressed by Mr Boensch) in proceedings is subject to the operative effect of s 60(2) and (3) of the Bankruptcy Act.

89. In these proceedings, although the Council's order was initially addressed, personally, to Mr Boensch, it has been an integral part of Mr Boensch's position before the Commissioner and before me that he is a bare trustee with respect to the site which has given rise to the order. Subsequently, Mr Boensch has consistently made clear in his submissions to me in these proceedings - although not formally pleaded to be commenced by him in his role as trustee, that is how he envisages his role in this appeal.

90. The reasoning set out by Gleeson J in [45] is equally here applicable. Mr Boensch’s s 56A appeal proceedings do fall within the broad scope of “action” as defined in s 60 of the Bankruptcy Act.

91. It is also clear that, as an action such as this appeal does not fall within any exception to be found in s 60(4) of the Bankruptcy Act, it is thus not protected from the operation of the earlier elements of the section (Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545).

92. Further, the option to adjourn these proceedings to permit Mr Boensch's annulment application in the Federal Court to be determined is not available to me (Arnoya Holdings Pty Limited & Ors v Metway Leasing Limited [1999] NSWCA 120 at [26]).

93. As necessarily follows, these proceedings require to be dealt with pursuant to the operative effect of the provisions of s 60(2) and (3) of the Bankruptcy Act.

Conclusion

94. For my purposes, the Council having elected to seek advice from Mr Boensch’s trustees in bankruptcy and thus commencing the process arising under s 60 of the Bankruptcy Act, all that engages my consideration is the consequence for these proceedings of Mr Boensch's trustees in bankruptcy's response to that communication from the Council's lawyers. Although I did not request that that communication be sent, it was. That which now flows from that communication and the response to it is the inevitable result which the Council has triggered by that letter.

95. The result that naturally follows from the operation of s 60(3) of the Bankruptcy Act is that Mr Boensch's trustees are to be taken to have abandoned these proceedings. As these proceedings are an appeal and not a hearing at first instance, they therefore should be dismissed (Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 at [25]).

96. Whatever might be the position which arises if Mr Boensch's bankruptcy is annulled may depend on what steps are taken in the meantime by the Council in enforcing its order following my dismissal of this appeal - dismissal having the effect of terminating the stay put in place by Duggan J on 18 November 2019.

Costs

97. As dismissal of Mr Boensch's appeal by operation of s 60(2) and (3) of the Bankruptcy Act is not prevented by preservation as a consequence of s 60(4) of that Act, a costs order arising from the dismissal would ordinarily be made against the bankrupt personally. Such liability would not be a debt provable in Mr Boensch’s bankruptcy and would subsist after its conclusion (Foots v Southern Cross Mine Management Pty Ltd and Others (2007) 234 CLR 52; [2007] HCA 56).

98. However, at the hearing on 20 November 2020, I expressly enquired of Mr Stafford what was the position taken by the Council concerning costs in these proceedings (if I was to conclude that I was required to dismiss them as a consequence of the position adopted by Mr Boensch's trustees in bankruptcy as earlier described).

99. Mr Stafford informed me that he was instructed that the Council did not seek a personal costs order against Mr Boensch under the circumstances. Therefore, there will be no order for costs made in these proceedings.

Orders

100. The orders of the Court are:

1. The time for commencement of the appeal is extended until 16 October 2019;

2. The appeal is dismissed; and

3. No order for costs with the intention that each party bears its own costs.

NOTE:

At 6.09 PM on Thursday 26 November, self-evidently after court hours and when the parties had already been notified several days earlier that I intended to hand down my decision in this matter at 8.30 a.m. on Friday 27 November, Mr Boensch filed a further affidavit (without leave to do so). I have earlier dealt with an affidavit filed by him after I had reserved my decision. I dealt with that affidavit on the basis that the Council did not object to me doing so. It has not been possible to seek the Council’s consent to my considering this further affidavit from Mr Boensch. This further affidavit annexes a letter of 26 November 2020 to Mr Boensch from an officer of the Australian Financial Security Authority in response to Mr Boensch's complaint about the stance taken by his trustees in bankruptcy in these proceedings. Under these circumstances, I have chosen to have regard to this further affidavit in the expectation that the Council will not object to this occurring. I have done this for two reasons. First, the letter adds nothing of substance to the matters I have been required to consider and certainly does not cause me, in any fashion whatsoever, to doubt the correctness of the decision I have reached. Second, I have done so because Mr Boensch is self-represented and complex legal issues have been engaged in the matters I have dealt with in this decision.

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Decision last updated: 27 November 2020