Cristovao v Geoffrey DUTTON t/as DUTTON LEGAL [No 3]
[2017] WADC 140
•13 NOVEMBER 2017
CRISTOVAO -v- GEOFFREY DUTTON t/as DUTTON LEGAL [No 3] [2017] WADC 140
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 140 | |
| Case No: | CIV:1628/2015 | 26 OCTOBER 2017 | |
| Coram: | DEPUTY REGISTRAR HEWITT | 13/11/17 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Action stayed with leave to apply on determination of proceedings to set aside sequestration order | ||
| PDF Version |
| Parties: | ROGERIO MARTINS CRISTOVAO GEOFFREY DUTTON t/as DUTTON LEGAL |
Catchwords: | Practice and procedure Bankrupt plaintiff Whether the action pursued relates to a personal injury or wrong pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) |
Legislation: | Bankruptcy Act 1966 (Cth) |
Case References: | Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 Cox v Journeaux [No 2] (1935) 52 CLR 713 Fletcher v Westpac [2012] WASCA 154 Mannigel v Hewlett Phelps [1991] NSWCA 186 Moss v Eaglestone [2011] NSWCA 404 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
GEOFFREY DUTTON t/as DUTTON LEGAL
Defendant
Catchwords:
Practice and procedure - Bankrupt plaintiff - Whether the action pursued relates to a personal injury or wrong pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth)
Legislation:
Bankruptcy Act 1966 (Cth)
Result:
Action stayed with leave to apply on determination of proceedings to set aside sequestration order
Representation:
Counsel:
Plaintiff : In person
Defendant : Ms C E Moss
Solicitors:
Plaintiff : Not applicable
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Cox v Journeaux [No 2] (1935) 52 CLR 713
Fletcher v Westpac [2012] WASCA 154
Mannigel v Hewlett Phelps [1991] NSWCA 186
Moss v Eaglestone [2011] NSWCA 404
1 DEPUTY REGISTRAR HEWITT: This action was commenced by the plaintiff on 11 May 2015 claiming certain sums of money said to be recoverable from the defendant by virtue of his negligence as a solicitor in proceedings commenced by the plaintiff against a company known as Forensic Documents Examiners Pty Ltd and additionally the cost of procuring accommodation within Australia during the duration of the proceedings and additionally pain and suffering caused by the defendant to the plaintiff as a result of these matters.
2 On 13 July 2017 the Federal Court of Australia made an order sequestrating the property of the plaintiff under the provisions of the Bankruptcy Act 1966 (Cth) (the Act).
3 Following that decision the defendant sent a letter to the trustee in bankruptcy of the plaintiff's estate requiring the trustee to make an election to prosecute or discontinue the action within 28 days pursuant to s 60(3) of the Act. There was no response to that communication and s 60(3) therefore applies and the trustee is deemed to have abandoned the action.
4 Against that background the defendant has applied for orders that the action be discontinued and the plaintiff pay the defendant's costs of the action to be taxed if not agreed.
5 The plaintiff opposes that application and relies on s 60(4) of the Act. That section provides:
Notwithstanding anything 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 the respect of:
(a) any personal injury or wrong done to the bankrupt, his or her spouse or defacto partner or member of his or her family.
6 The plaintiff relies on this section as a basis upon which he should be entitled to continue to pursue his action in this court. The determination of this matter obviously relies upon the interpretation of s 60(4)(a).
7 No statement of claim has been filed in this matter but it appears that the parties have accepted that the endorsement of claim is sufficiently particularised to allow the action to proceed and the defendant has filed a defence to it. Relevantly the claim seeks damages effectively quantified as various expenses incurred by the plaintiff and pain and suffering caused to him as a result of the defendant's handling of his claim. It is the latter portion of the proceeding which it is argued attracts the provision of s 60(4)(a) of the Act and in order to determine whether that is so, it is necessary to look at the relevant authorities. Counsel for the defendant has referred me to a decision of the Supreme Court of Western Australia in Fletcher v Westpac [2012] WASCA 154, a decision delivered on 9 August 2012 in which the Court of Appeal upheld the decision of a single judge to stay an appeal of a bankrupt. Within that judgment is a reference to, and reliance on, comments made by Dixon J in Cox v Journeaux [No 2] (1935) 52 CLR 713 when his Honour considered the meaning of a 'personal injury or wrong' within the meaning of s 60(4). His Honour said (721):
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.
8 Similarly, in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 it was held that damages for loss of business reputation, loss of standing in the community, loss of amenities of family life, stress and suffering and exemplary damages are consequential upon loss and damage referable to proprietary claim and were not within s 60(4) as they rose as a result of the infringement of financial or property rights. Similarly, in Mannigel v Hewlett Phelps [1991] NSWCA 186, in a claim in which the plaintiffs sued their former solicitors for professional negligence in connection with the purchase of land and construction of a home on that land, it was held that loss of credit, reputation, inconvenience, and for mental distress and strain were the consequences of the economic loss and therefore not within the provisions of s 60(4). Again, in Moss v Eaglestone [2011] NSWCA 404 it was held that [77]:
To the extent that damages for personal injury or wrong are inseverable from or directly consequential upon interference with property rights, a claim for them does not survive the stay brought about by s 60(2).
9 In the light of these decisions it is my view that it is no longer competent for the plaintiff to this action to pursue the claim which he commenced in this action and that it should be permanently stayed. In recognition of the possibility that the sequestration order might be set aside, there shall be liberty to apply to set aside the stay in the event of such an outcome and furthermore there shall be liberty to apply, by the defendant, for costs of the action in the event that the plaintiff's efforts to set aside the sequestration order are unavailing.
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