FEDERAL COURT OF AUSTRALIA
Draper v Tragauer [2004] FCA 1710
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Bankruptcy Act 1966 (Cth) ss 30, 44, 58, 149, 153B, 154(1)(a)
Acts Interpretation Act 1901 (Cth) s 15C
Federal Magistrates Act 1999 (Cth) ss 10, 18
Federal Magistrates Court Rules 2001 (Cth) rule 13.08Sistrom v Urh (1992) 40 FCR 550 cited
Re Prestia, Australia and New Zealand Banking Group Ltd v Prestia [2001] FCA 792 cited
Crofter Hand Woven Harris Tweed Co Ltd v Veitah [1942] AC 435 cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited
Fencott v Muller (1983) 152 CLR 570 cited
Stack v Coast Securitie (No 9) Pty Ltd (1983) 154 CLR 261 cited
Re Wakim; Ex parte McNally (1999) 198 CLR 511 cited
Re Draper; Ex parte Australian Society of Accountants (unreported, 12 July 1989) cited
Re Draper; Ex parte Australian Society of Accountants (unreported, 3 February 1989) cited
Federation of Australian Accountants v Australian Society of Accountants (1987) 9 ATPR 40-796 citedKEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER v PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER & BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER
SAD 187 of 2004
MANSFIELD J
22 DECEMBER 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 187 OF 2004
APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT
BETWEEN:
KEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER
APPELLANTS
AND:
PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER
FIRST RESPONDENT
BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER
SECOND RESPONDENT
JUDGE:
MANSFIELD J
DATE OF ORDER:
22 DECEMBER 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
(1)The appellants amend the amended notice of appeal dated 5 October 2004 by:
(a)deleting ‘5’ twice appearing in par 1 thereof and substituting ‘13’
(b)adding as par 20 on page 9 that part of the document entitled ‘Further Amended Notice of Appeal Pursuant to Order made by Mansfield J in September 2004’ and filed on 29 November 2004 designated as paragraph 9.
(2)The appeal is dismissed.
(3)The appellants pay to the respondents 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
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 187 OF 2004
APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT
BETWEEN:
KEITH LAWRENCE DRAPER & BARBARA OLIVE DRAPER
APPELLANTS
AND:
PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER
FIRST RESPONDENT
BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER
SECOND RESPONDENT
JUDGE:
MANSFIELD J
DATE:
22 DECEMBER 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
INTRODUCTION
The appellants appeal from a decision and order of a Federal Magistrate given on 22 July 2004. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia…
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- AGLC
- Draper v Tragauer [2004] FCA 1710
- Case
- [2004] FCA 1710
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the claims of negligence and other tortious acts were properly within the jurisdiction of the Federal Magistrates Court. The court had to determine whether the claims were indeed tortious in nature and if the Federal Magistrates Court had the authority to hear such claims. The appellants argued that their claims were not solely based on negligence but included other unspecified torts and contempt of court.
The court found that the claims in paragraphs 1-5 and 10 of the amended application were indeed tortious in nature, specifically alleging negligence. The court further concluded that these claims fell outside the jurisdiction of the Federal Magistrates Court, affirming the dismissal by the earlier court. The court also noted that the appellants' claims were not clearly articulated, lacking specificity and focus. The court ordered that the appellants amend their notice of appeal to reflect accurate references and include additional information. Ultimately, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs.
Orders
Orders of the court
(1) The appellants amend the amended notice of appeal dated 5 October 2004 by:
(a) deleting ‘5’ twice appearing in par 1 thereof and substituting ‘13’
(b) adding as par 20 on page 9 that part of the document entitled ‘Further Amended Notice of Appeal Pursuant to Order made by Mansfield J in September 2004’ and filed on 29 November 2004 designated as paragraph 9.
(2) The appeal is dismissed.
(3) The appellants pay to the respondents costs of the appeal.
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
Established by: MANSFIELD J
I have approached the amended notice of appeal and the further (proposed) amended notice of appeal, together with the appellants’ written submissions, in that light. I have also endeavoured to identify clearly what it is that the appellants now seek to claim against the respondents, in part by questions asked of Mr Draper in the course of the hearing. Their present claims (as I now understand them) may be contrasted with the claims as expressed in the amended application which were dismissed on 22 July 2004. In an endeavour to facilitate the further conduct of the proceedings by the appellants in the Federal Magistrates Court, I have also endeavoured briefly to set out below my understanding of their present claims and some of the steps which they will have to take at or prior to the further hearing of that application on 14 February 2004. My observations are not intended to provide them with legal advice as to how their claims should be conducted. That is a matter for them. They are simply perhaps to give them a focus which they presently do not have. My observations do not, and could not, give any indication as to the merits of any of their claims. Nor, of course, are my observations intended to suggest to or direct the learned Federal Magistrate in any way as to how he might conduct the proceedings.CONSIDERATION OF THE APPEAL I turn to address the matters raised on the appeal. The learned Magistrate identified pars 1-5 and 10 of the orders sought on the amended application as being a claim for damages for negligence in the conduct of the Official Receiver (it should be the Official Trustee) in relation to the Marleston property, although his Honour recognised that par 3 may also allege a claim based upon a tortious conspiracy (see e.g. Crofter Hand Woven Harris Tweed Co Ltd v Veitah [1942] AC 435) and that par 2 is expressed so generally as not to indicate clearly whether any other cause of action, or whether any other foundation for the relief claimed, is made. The learned Magistrate then concluded that those causes of action do not lie within the jurisdiction of the Federal Magistrates Court. In my judgment, his Honour has correctly categorised the nature of the cause or causes of action raised in pars 1-5 and 10 of the amended application. They are tortious claims based upon alleged conduct of the Official Trustee in relation to the Marleston property. The appellants, in their discursive amended notice of appeal, describe the cause of action not as negligence but as ‘tortuous (sic) acts referred to number 2 in GROUNDS above’. Paragraph 2 under the heading ‘GROUNDS’ refers to a tort of an unspecified nature, and a contempt of court in proceeding to seek a sequestration order. (There is now a separate proceeding in this Court alleging contempt of court). Negligence is a tort. Pars 1-5 and 10 of the amended application allege ‘negligence’ and that the Official Receiver was ‘negligent’ and identify to some degree conduct which, if proved, could be part of a claim of conduct which might make out a cause of action in negligence. There is no other tortious label which I think is more appropriately given to pars 1-5 of the amended application.