Bourke, Michael Vincent v Young, Phillip Charles

[1993] FCA 1058

JUDGMENT NO. .1.Q&& ..U.

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY No. NG 387 of 1990

)

GENERAL DIVISION )

BETWEEN : MICHAEL VINCENT BOURKE & ORS

Applicant

AND:  PHILLIP CHARLES YOUNG & ORS

Respondent

15 April 1993

REASONS FOR JUDGMENT

LOCKHART J.

There is before the Court today a notice of motion which was filed on 18 February 1993 and purports to be a motion of the nine applicants thereinmentioned. The first two applicants, Michael Vincent Bourke andTerrence Masterman Bourke, are brothers. The first applicant, Michael Vincent Bourke, is the only person who has sought to appear today on behalf of the applicants or any of them. The notice of motion has been filed by the first applicant and it seeks four orders: first, an order that the order of H111 J of 10 February 1993 in matter number G387 of 1990 be stayed until the finalisation of an appeal therefrom; second, that leave be granted to appeal from the order and judgment of Hill J; third, any such other order as the Court may direct; and, fourth, an order that time to file this notice of motion

will be extended to 18 February 1993.

The respondents to the motion are all 21 of the respondents to the proceeding.

It is necessary to say something about the judgment of Hill

J that is the subject of the motion. His Honour, on 10 February

1993 heard three motions by respondents to strike out the

statement of claim of the applicants. His Honour, in the course of his reasons for judgment, noted that the first two applicants were made bankrupt on the petitlon of Beneficial Finance Corporation Limited on 14 February 1992 and that, in consequence, proceeding G387 of 1990 was stayed pursuant to S. 60 (2) of the BankruptcyAct 1966. His Honour noted further, at page 7 that:

"The trustee, having been notified of the proceedings, has not made any election in writing to prosecute or discontinue the action with the result that it is deemed to

have abandoned i t by force of S. 60 (31 .

His Honour noted at the same page of his reasons also that:

"Another consequence of the bankruptcy of	the first two applicants is that as a result
they ceased to be directors of the remaining
applicants .

The minutes of order record that on 10 February his Honour declared that by force of the Bankruptcy Act the proceedings against the first two applicants are stayed; but his Honour made two orders, numbers 2 and 3, namely (2) that the proceedlngs brought by the third to ninth applicants against the first to seventeenth respondents is struck out and ( 3 ) that the applicants, other than the first two applicants, were to pay the costs of the respondents in respect of whom the proceedings stood dismissed.

The motion presently before the Court purports, as I have said, to be brought by all applicants - that is, the two natural applicants and the seven corporate applicants. In my opinion, the motion in so far as it relates to the first applicant is necessarily incompetent because the first applicant is, as Hill J noted, an undischarged bankrupt. The force of the Bankruptcy

Act is such that the proceeding before his Honour that is under attack is one which has been stayed by operation of law and, indeed, has been abandoned by the trustee - see S. 60 ( 3 ) , of the Bankruptcy Act 1966. The motion before the Court can, in my view, gain no higher status than the actlon which supports it and in respect of which Hill J has given ludgment. Therefore, as the case before his Honour was incompetent so, it seems to me,

the motlon must be incompetent. But I would add a further

independent reason for that conclusion, namely, that such rights

as the undischarged bankrupts may have in relation to a motion of this kind are vested in the trustee and not in the bankrupt itself. The same must also apply to the second applicant, who is also, as I have said, an undischarged bankrupt.

So far as the seven corporate applicants are concerned, there is no evidence before the Court to satisfy me that they have, in fact, become applicants in accordance with the law, nor are they before the Court. As corporations, they must appear before the court either by counsel or solicitors, which they do not. The Court can, of course, grant leave for them to be represented by some other person. I have read the first applicant's motion before the Court today as including also a request for an order that he be permitted to represent both his brother, the second applicant , and all seven corporate applicants.

I have already dealt with the case of the first and second applicants. So far as the corporate applicants are concerned, it is a matter for the discretion of the court as to whether I would allow the first applicant to represent them. I do not thlnk it would be proper to take that course: there is no evidence before me as to why I should and, second, I do not think, in the circumstances it would be right, that the first applicant as an undischarged bankrupt should represent the

will proceed to deal with other points that have arisen. The companies involved in the proceedings. Those items are sufficient to dispose of the motion, but I

motion proceeds on the assumption that there is no appeal as of right from Hill J. 'S reasons for judgment of 10 February but that it must lie only by leave of the Court. Leave to appeal can, of course, be granted by elther a Full Court or a single judge, including the trlal judge, so there is no doubt about my power sitting as a judge of the Court alone today to grant leave to appeal in an appropriate case.

But as the appeal from Hill J' s judgment in relation to the first to seventeenth respondents seems to me to be a final order and judgment, leave to appeal is not necessary. The eighteenth andnineteenth respondents are represented today before the Court but that is, as I understand it, not because there are orders against them, but because they are parties to the motlon and have been brought here. Even if the appeal were interlocutory in character there is nothing before the Court which would persuade me that it is appropriate to grant leave to appeal.

It seems to me, on the material that I have, to be an appeal
that is doomed to fail and it therefore is not one properly to

be the sub-~ect of an order for leave.

The motion also seeks an order that time be extended to file a notice of appeal, a copy of a draft of which is attached to the
form of motion.	That is, I think, necessarily treated as a

motlon pursuant to 0. 52, r. 15 (2) . The notice of appeal (as there is an appeal as of right) is one which is plainly out of time. The fact that it is out of time by something less than two months is not a consideration that I would hold agalnst the applicants, because they have filed this motion, albeit on a false premise, and they have gone to the trouble of drafting a notice of appeal. I: am not persuaded that hardship would be caused to the respondents by extending the time to appeal if it were otherwise competent and proper to do so. But I must have regard to the merits of the matter to some degree and, taking the broadest view, as I do, of the merits of the matter on the material before me including the contents of the draft notice of appeal, it is not a case in which it would be appropriate to extend time for filing the notice of appeal. For those reasons the motion of the applicants filed on 18 February 1993 is dismissed.

Certain of the respondents seek costs against the corporate applicants to the motion. I think there is an inherent problem

in this. The motion purports to be filed slmply by Michael Vincent Bourke, though it is true, as I have said already, that he purports to do so on behalf of all the applicants including the seven corporate applicants. But there is no evidence that they are before the Court or, indeed, were entitled ever to be before the court. I think there is difficulty for an order for costs against the corporate applicants. Orders for costs are

not sought against the first two applicants so I make no order

as to the costs of any party to the motion.

I certify that this and the preceding five

(5) pages are a true copy of the reasons for

judgment herein of the Honourable Mr.

Justice Lockhart.

Associate
Dated: 15 April 1993

Michael Bourke appeared for hlmself.

Solicitors for First to

Eleventh Respondents	P.	W. Kearns
Solicitors for Thirteenth and

Fourteenth Respondents	Middleton Moore & Bevins
Counsel and Solicitors for
Fifteenth, Sixteenth and	M Clark instructed by
Seventeenth Respondents	Minter Ellison Morris Fletcher
Solicitors for Eighteenth
and Nineteenth Respondents	Murray Stewart Fogarty
Date of Hearing	15 April 1993
Date of Judgment	15 April 1993