Fisher v Transport for NSW - [2016] NSWSC 1888

Supreme Court

New South Wales

Medium Neutral Citation: Fisher v Transport for NSW [2016] NSWSC 1888
Hearing dates: 8 June 2016
Decision date: 22 December 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
I make the following orders:
(1)   that the order of the registrar made 30 July 2015 dismissing the proceedings be set aside;
(2)   that the order of the registrar made 30 July 2015 ordering Mr Fisher to pay the defendants’ costs be set aside;
(3)   that the proceedings be listed before the registrar on 2 February 2017 for directions.

Catchwords:
BANKRUPTCY – judicial review – whether proceedings stayed by operation of s 60(2) of Bankruptcy Act – where trustee indicates not to pursue matter in writing but does not file notice of discontinuance – where plaintiff seeks to continue proceedings in his own name
BANKRUPTCY - whether plaintiff’s proceedings is an “action” within s 60(2) – whether the “action” is “in respect of any personal injury or wrong done” within s 60(4) – where adverse administrative decision finds plaintiff’s character “not fit and proper”
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 27, 58, 60
Industrial Arbitration Act 1940 (NSW)
Passenger Transport Act 1990 (NSW), s 11
Supreme Court Act 1970 (NSW), s 121
Uniform Civil Procedure Rules 2005 (NSW), r 49.19
Cases Cited: Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Fitzpatrick v Keelty [2008] FCA 35
Garrett v The Commissioner of Taxation [2015] FCA 665; 233 FCR 226
Griffiths v Civil Aviation Authority (1996) 67 FCR 301; [1996] FCA 1502
Meriton Apartments Pty Limited v Industrial Court of New South Wales [2008] FCAFC 172
Moss v Eaglestone [2011] NSWCA 404
Pelechowski v NSW Land and Housing Commission [2000] FCA 233
Tomko v Palasty (No 2) [2007] NSWCA 369
Category: Principal judgment
Parties: Brian Stanley Fisher (plaintiff)
Transport for New South Wales (first defendant)
Roads and Maritime Service (second defendant)
Administrative Decisions Tribunal (third defendant)
Representation:
Counsel:
Plaintiff self-represented
B K Baker (defendants)
Solicitors:
Hunt & Hunt (defendants)

File Number(s): 2014/242718

Judgment

HER HONOUR: These proceedings raise an interesting question as to a person’s entitlement to continue proceedings for judicial review after becoming a bankrupt. The plaintiff, Mr Brian Fisher, formerly conducted business as a bus operator and driver. He and his wife built the business over many years, operating tours and bus runs in several rural areas in northern New South Wales.
As a driver of public passenger vehicles, Mr Fisher was required by law to hold an authority under the Passenger Transport Act 1990 (NSW). In July 2011, Mr Fisher’s driver authority was cancelled by the first defendant. Mr Fisher seeks judicial review of a series of decisions concerning the cancellation.
The proceedings were commenced by summons filed 18 August 2014. In April 2015, Mr Fisher became a bankrupt. The defendants subsequently wrote to Mr Fisher’s trustee in bankruptcy requesting him to make an election to prosecute or discontinue the action, as contemplated by s 60(2) of the Bankruptcy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1888
Decision Date: 22 December 2016

CaseChat Overview and Summary

The parties involved in this case were Fisher, the plaintiff, and Transport for NSW, the defendant. The dispute centred around a decision by Transport for NSW that Fisher's character was "not fit and proper" for a particular role. Fisher sought to continue legal proceedings against Transport for NSW in his own name after being declared bankrupt, challenging the administrative decision. The matter was brought before the court for judicial review.

The primary legal issues the court needed to decide were whether the statutory provisions of the Bankruptcy Act 1966 (Cth) had stayed the proceedings due to Fisher’s bankruptcy and if the proceedings constituted an "action" within the meaning of section 60(2) of the Act. Additionally, the court had to determine if the "action" related to any personal injury or wrong done within the scope of section 60(4) of the Act. The court was tasked with interpreting these statutory provisions and applying them to the facts of the case.

In its decision, the court held that the statutory provisions did stay the proceedings due to Fisher’s bankruptcy. The court found that Fisher's attempt to continue the proceedings in his own name was ineffective as the trustee had not formally discontinued the proceedings by filing a notice of discontinuance as required by law. The court further held that the proceedings did constitute an "action" under the Act and that they did relate to a personal injury or wrong done, as they arose from the adverse administrative decision regarding Fisher's character. Consequently, the court dismissed Fisher's application.

The final orders of the court were that Fisher's application for judicial review was dismissed and that the proceedings were stayed by operation of the Bankruptcy Act.

Orders