Ferris v Martin

The parties to this matter were Ferris, the plaintiff, and Martin, the defendant. The dispute concerned the plaintiff's right to issue a writ of *ca. sa.* (a writ of attachment for a debtor) against the defendant, who had been made bankrupt on the plaintiff's petition following a judgment in a defamation action. The case was heard by Griffith C.J., Barton and O'Connor JJ.

The central legal issue before the court was whether the plaintiff, having elected to pursue bankruptcy proceedings against the defendant, was precluded from subsequently issuing a writ of *ca. sa.* to enforce the judgment debt. This question involved the interpretation of the interplay between the *Bankruptcy Act* (N.S.W.) and the *Defamation Act* (N.S.W.), specifically concerning the election of remedies available to a judgment creditor in the context of bankruptcy.

The court considered the provisions of section 10(3) of the *Bankruptcy Act* (N.S.W.) and section 24 of the *Defamation Act* (N.S.W.). Section 10(3) of the *Bankruptcy Act* provided that a creditor who had proved a debt in bankruptcy could not, without the leave of the court, take proceedings against the bankrupt's property. Section 24 of the *Defamation Act* dealt with the joinder of causes of action with defamation. The court reasoned that the plaintiff's act of presenting a bankruptcy petition based on the judgment debt constituted an election of remedy. By initiating bankruptcy proceedings, the plaintiff had effectively chosen to pursue the debt through that avenue, thereby precluding the concurrent pursuit of a *ca. sa.* without the court's express permission. The court held that the plaintiff had elected to proceed in bankruptcy and was therefore not entitled to issue the writ of *ca. sa.*.