Cameron, D.J. v Westpac Banking Corporation

[1995] FCA 299

C A T C H W O R D S

BANKRUPTCY - appeal against sequestration order - contention that proceedings for negligent trespass constituted "other sufficient cause" within the meaning of s.52(2) of the Bankruptcy Act 1966 (Cth) - no real substance or prospect of success - matter for the discretion of the trial Judge.

Bankruptcy Act 1966 (Cth) - s40(1)(g), s52(2)
Public Trustee Act 1978 (Qld) s.95

Cabassi v Vila (1940) 64 CLR 130
Giannarelli v Wraith (1988) 165 CLR 543

DONALD JAMES CAMERON v WESTPAC BANKING CORPORATION
No QG 196 of 1994

Davies, Beaumont & Drummond JJ.
26 April 1995
Brisbane

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
QUEENSLAND DISTRICT REGISTRY  )  No. QG 196 of 1994
  )
GENERAL DIVISION  )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF
  AUSTRALIA

BETWEEN:     DONALD JAMES CAMERON

Appellant

AND:              WESTPAC BANKING CORPORATION

Respondent

CORAM:        Davies, Beaumont & Drummond JJ.
DATE:             26 April 1995
PLACE:          Brisbane

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent's costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
QUEENSLAND DISTRICT REGISTRY  )  No. QG 196 of 1994
  )
GENERAL DIVISION  )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF
  AUSTRALIA

BETWEEN:     DONALD JAMES CAMERON

Appellant

AND:              WESTPAC BANKING CORPORATION

Respondent

CORAM:        Davies, Beaumont & Drummond JJ.
DATE:             26 April 1995
PLACE:          Brisbane

REASONS FOR JUDGMENT
Davies J:  This is an appeal brought by Donald James Cameron against a sequestration order made on 21 December 1994 by Kiefel J on the petition of Westpac Banking Corporation.

The defence to the petition with which we are concerned in this appeal was that, at the time of the hearing of the petition, Mr Cameron had on foot proceedings in the Supreme Court of Queensland in which he claimed a large sum of money for negligent trespass.  The writ and the accompanying statement of claim were before Kiefel J, but there was not other material before her Honour concerning the matter.  It must be said that, looking at the statement of claim, it was, in its terms, inadequate to set out the complex matters which Mr Cameron wished to litigate.  Her Honour would have realised

that the statement of claim, as it stood, would have been likely to have been struck out if application had been made.

The basis of the action in the Supreme Court arose from a prosecution which was brought again Mr Cameron and resulted in a trial before a jury.  There was a conviction which was later set aside on appeal.

Mr Cameron apparently alleges that wrong information was given by officers of Westpac to the prosecuting authorities and wrong evidence was given at the trial.  I think that that is the substance of the basis for the claim in the Supreme Court for negligent trespass and the claim for damages for loss of life's enjoyment during the period of his imprisonment, loss of family support and love, loss of contractual earnings, and the like.

The action in the Supreme Court is not, however, the first action which Mr Cameron has instituted claiming relief in respect of these matters. He commenced an action in the Supreme Court of Queensland in 1992 at a time while he was still a prisoner. Subsequently, that action was struck out on the ground that it could not be brought without the consent of the Public Trustee under section 95 of the Public Trustee Act 1978 (Qld).

Mr Cameron instituted two further proceedings in this court seeking to raise the same matters.  One of the proceedings came before Drummond J who dismissed the claim.  His Honour referred to the decisions of the High Court of Australia in Cabassi
v Vila (1940) 64 CLR 130, and Giannarelli v Wraith (1988) 165 CLR 543 and, in particular, to the words of Dawson J in Giannarelli at 595 that:-

"Fundamental to the administration of justice is the opportunity which the law affords to all those who are participants in proceedings in a court to speak and act freely, within the rules laid down unimpeded by the prospect of civil process as a consequence of their having done so."

Drummond J held there was no arguable cause of action.

Further proceedings came before O'Loughlin J.  His Honour struck out the statement of claim in that case.

Appeals from both judgments came before a Full Court of this Court constituted by Wilcox, Spender and Burchett JJ in November 1994.  Their Honours dismissed the appeals from the orders made by Drummond and O'Loughlin JJ.

Although Kiefel J did not deal with the history of the matter in any detail, it is clear that her Honour was aware of what had occurred.  Her Honour referred to the fact that the matters raised in the Supreme Court proceedings on which Mr Cameron relied appeared to be based on the same facts previously sought unsuccessfully to be litigated.

Her Honour then turned to the way in which Mr Cameron put the case. Mr Cameron did not submit that the proceedings in the Supreme Court constituted a counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966 (Cth). He contended that the proceedings in the Supreme Court of Queensland constituted "other sufficient cause" within the meaning of s.52(2) of Bankruptcy Act and that, for that reason, a sequestration order ought not be made.
           Her Honour rejected that view.  She referred to the fact that there was no connection between the creation of the debt and the institution of the proceedings in the Supreme Court.  Her Honour was unable to conclude that the proceedings in the Supreme Court had any real substance or prospect of success.  Her Honour further referred to the fact that Mr Cameron had not sought an extension of time within which to pay the judgment debt on which the petition was based.  These were also relevant matters which her Honour properly took into account.  In my opinion, her Honour was justified in coming to the conclusion that there was no sufficient cause not to make a sequestration order.  It appears to me that her Honour took into account all relevant facts and exercised the discretion which she had in a proper manner.

In this appeal, Mr Cameron has laid particular emphasis upon what he says is a rule of law: that in a case of negligent trespass, once the trespass and damage have been proved, the onus of proof of establishing that there should not be judgment in favour of the injured party lies on the defendant.  The cases upon which Mr Cameron relies, are a long way from the cause of action which he now seeks to litigate.  In the present case, moreover, the matters which Mr Cameron seeks to raise have not reached the level where a cause of action has been demonstrated.  There was not evidence before her Honour which would have permitted her Honour to conclude that an onus of proof fell, at that point of time, upon the Westpac Banking Corporation to negative the allegation.

In my view, for the reasons I have given, the appeal should be dismissed with costs.

BEAUMONT J:          I agree.

DRUMMOND J:        I also agree.

I certify that this and the 4 preceding pages
are a true copy of the reasons for judgment herein of
the Court.

Associate:

Date: 26 April 1995

For the appellant:  Mr Cameron in person

Counsel for the respondent:                  D.K. Doddice

Solicitors for the respondent:     Feez Ruthning Solicitors

Date of hearing:  26 April 1995

Date of judgments:  26 April 1995