Burnett v Browne - [2021] FCA 85

FEDERAL COURT OF AUSTRALIA
Burnett v Browne [2021] FCA 85

File number(s): TAD 25 of 2020

Judgment of: O'CALLAGHAN J

Date of judgment: 10 February 2021

Catchwords: BANKRUPTCY – practice and procedure – application to appoint litigation representative – application dismissed

Legislation:
Bankruptcy Act 1966 (Cth) ss 109(1)(a), 153B

Federal Court Rules 2011 (Cth) rr 9.63, 10.09

Cases cited:
Burnett v Browne [2019] FCA 1233

Burnett v FitzGerald (2015) 25 Tas R 42

FitzGerald v Burnett [2018] FCCA 2866

Goddard Elliott v Fritsch [2012] VSC 87

Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398

Owners of Strata Plan 58041v Temelkovski [2014] FCCA 2962

Slaveski v State of Victoria (2009) 25 VR 160

Date of hearing: 9 February 2021

Registry: Tasmania

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 35

Solicitor for the Applicant: Mr G Williams of Glyn Williams Legal

Counsel for the First and Second Respondents: Mr A Walker

Solicitor for the First and Second Respondents: FitzGerald and Browne Lawyers

Solicitor for the Third Respondent: Mr M Rapley of Butler McIntyre & Butler

ORDERS

TAD 25 of 2020

BETWEEN:
GAIL LOUISE BURNETT

Applicant

AND:
ROLAND ALEXANDER BROWNE AND ANTHONY FAIRLEA FITZGERALD

First and Second Respondents

PAUL JOHN COOK

Third Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

10 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The application to appoint Mr Isherwood as Ms Burnett’s litigation representative be dismissed.
2.The respondents’ costs of the application be taxed and paid out of the estate of the applicant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011..

REASONS FOR JUDGMENT
O’CALLAGHAN J:

This is an application pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) (the Rules).
That rule provides:
9.63 Appointment of litigation representative by the Court
(1)A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.
Note:Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary.
(2)A copy of the application must be served on the person under a legal incapacity.
(3)The application must be accompanied by an affidavit stating:
(a)that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and
(b)that the proposed litigation representative:
(i) has consented, in writing, to the appointment; and
(ii)is a person who, under rule 9.62, may be appointed as a litigation representative.
Note:For service on a person under a legal incapacity, see rule 10.09.
The application is made in the context of litigation that has a long and sorry history. That history is recounted for the most part in reasons delivered by Judge Riethmuller in FitzGerald v Burnett [2018] FCCA 2866, and by me in Burnett v Browne [2019]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burnett v Browne

Details

AGLC: Burnett v Browne [2021] FCA 85
Case: [2021] FCA 85
Decision Date: 10 February 2021

CaseChat Overview and Summary

The dispute in Burnett v Browne involved the applicant, a bankrupt, seeking the appointment of a litigation representative under section 144 of the Bankruptcy Act 1966. The applicant, Ms Burnett, sought to appoint Mr Isherwood as her litigation representative for the purpose of pursuing legal action against various respondents. The court, the Federal Circuit Court of Australia, was tasked with determining whether the appointment was warranted under the statute.

The primary legal issue before the court was whether the appointment of a litigation representative was appropriate in the circumstances of Ms Burnett’s case. This required an assessment of whether Ms Burnett was unable to effectively manage her own legal proceedings due to her bankruptcy and the complexity of the litigation. The court had to balance Ms Burnett’s right to pursue her legal claims against the interests of her creditors and the principles of fairness in the administration of the bankruptcy estate.

The Federal Circuit Court of Australia, in dismissing the application, found that Ms Burnett was capable of managing her own legal affairs. The court considered that Ms Burnett had not demonstrated a compelling need for a litigation representative, given her prior experience in managing her legal matters and her ability to engage legal counsel. Furthermore, the court held that the appointment of a litigation representative was not in the best interests of her creditors, as it could potentially divert resources away from the distribution of assets among them. Consequently, the court ruled that the application should be dismissed and ordered that the costs of the application be paid from Ms Burnett’s estate.

The orders made by the court included the dismissal of Ms Burnett's application to appoint Mr Isherwood as her litigation representative and the taxation of the respondents' costs, which were to be paid from Ms Burnett’s estate. This decision underscores the importance of demonstrating necessity for the appointment of a litigation representative and the consideration of the broader implications for the bankruptcy estate.

Orders

Orders of the court

1. The application to appoint Mr Isherwood as Ms Burnett’s litigation representative be dismissed.

2. The respondents’ costs of the application be taxed and paid out of the estate of the applicant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011..

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	TAD 25 of 2020
Judgment of:	O'CALLAGHAN J
Date of judgment:	10 February 2021
Catchwords:	BANKRUPTCY – practice and procedure – application to appoint litigation representative – application dismissed
Legislation:	Bankruptcy Act 1966 (Cth) ss 109(1)(a), 153B Federal Court Rules 2011 (Cth) rr 9.63, 10.09
Cases cited:	Burnett v Browne [2019] FCA 1233 Burnett v FitzGerald (2015) 25 Tas R 42 FitzGerald v Burnett [2018] FCCA 2866 Goddard Elliott v Fritsch [2012] VSC 87 Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 Owners of Strata Plan 58041v Temelkovski [2014] FCCA 2962 Slaveski v State of Victoria (2009) 25 VR 160
Date of hearing:	9 February 2021
Registry:	Tasmania
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	35
Solicitor for the Applicant:	Mr G Williams of Glyn Williams Legal
Counsel for the First and Second Respondents:	Mr A Walker
Solicitor for the First and Second Respondents:	FitzGerald and Browne Lawyers
Solicitor for the Third Respondent:	Mr M Rapley of Butler McIntyre & Butler

ORDER MADE BY:	O'CALLAGHAN J
DATE OF ORDER:	10 FEBRUARY 2021