Campbell v Metway Leasing Ltd

[2001] FCA 1311

FEDERAL COURT OF AUSTRALIA

Campbell v Metway Leasing Ltd [2001] FCA 1311

CONSTITUTIONAL LAW – whether Bankruptcy Act 1966 (Cth) ss 60(2) and 60(3) invalid – where Bankruptcy Act 1966 (Cth) s 60(2) provides that if person commences ‘action’ then becomes bankrupt action stayed until trustee elects to prosecute or discontinue it – where Bankruptcy Act 1966 (Cth) s 60(3) provides that if trustee fails to do so within 28 days of service of notice of action trustee deemed to have elected to discontinue action – where applicants’ appeal to NSW Court of Appeal attracts Bankruptcy Act 1966 (Cth) s 60 because constitutes ‘action’ and commenced before applicants became bankrupts – where applicants’ application to High Court for special leave to appeal from NSW Court of Appeal decision and applicants’ present application before Federal Court on remitter from High Court do not attract Bankruptcy Act 1966 (Cth) s 60 because while both ‘action’ neither commenced before applicants became bankrupts.

CONSTITUTIONAL LAW – whether Bankruptcy Act 1966 (Cth) s 60(2) involves impermissible interference with State court’s exercise of judicial power – where State court exercising federal jurisdiction – whether Bankruptcy Act 1966 (Cth) s 60(2) confers function on State court in manner which Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 prohibits – whether Beaumont J’s concurring reasons for judgment in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 applicable – whether Bankruptcy Act 1966 (Cth) s 60(2) regulates State court’s procedure in its exercise of federal jurisdiction – whether Bankruptcy Act 1966 (Cth) s 60(2) antithesis of law that does so because alters State court’s constitution or organisation – whether prohibition on federal legislation restricting or controlling a State in its exercise of its governmental powers applicable where relevant restriction or control of State court in its exercise of federal jurisdiction.

CONSTITUTIONAL LAW – whether Bankruptcy Act 1966 (Cth) s 60(3) involves impermissible interference with State court’s exercise of judicial power – where prohibition on federal legislation restricting or controlling a State in its exercise of governmental powers not applicable – whether court seized of action which trustee deemed to have elected to discontinue under Bankruptcy Act 1966 (Cth) s 60(3) should stay action until further order or dismiss it – whether Bankruptcy Act 1966 (Cth) s 60(3) operates in personam or on State court – whether Bankruptcy Act 1966 (Cth) s 60(3) gives ‘defendant or other party to the action’ entitlement to particular judicial order in defined set of circumstances.

BANKRUPTCY – whether applicants have standing to prosecute application to High Court for special leave to appeal from NSW Court of Appeal decision – where appeal to NSW Court of Appeal deemed abandoned under Bankruptcy Act 1966 (Cth) s 60(3) – where applicants purported to commence application for special leave while bankrupts – where applicants later discharged from bankruptcy – where discharge prospective – effect of Theissbacher v MacGregor Garrick & Co