Fitzpatrick v Keelty

Case [2008] FCA 35

FEDERAL COURT OF AUSTRALIA

Fitzpatrick v Keelty [2008] FCA 35

PRACTICE AND PROCEDURE – consideration of motions for summary dismissal where applicant in proceedings became a bankrupt after proceedings commenced

BANKRUPTCY – where applicant became a bankrupt after proceedings commenced – where proceedings raise numerous causes of action, including claims under Administrative Decisions (Judicial Review) Act 1977 (Cth), relating to termination of the applicant’s employment with the Australian Federal Police – where trustee deemed to have abandoned proceedings - whether applicant can continue proceedings in own name under s 60(4) of the Bankruptcy Act 1966 (Cth)

Bankruptcy Act 1966 (Cth), ss 60

Bryant v Commonwealth Bank of Australia (1997) FCR 545 referred to
Cox v Journeaux (No 2) (1935) 52 CLR 713 applied
Daemar v Industrial Commission of New South Wales and Another (No 2) (1990) 99 ALR 789 referred to
Daemar v Industrial Commission of New South Wales and Others (1988) 79 ALR 591 referred to
Fitzpatrick v Keelty [2007] FCA 1658 referred to
Hamilton v Young [2007] QSC 1 referred to
Pelechowski v NSW Land & Housing Commission [2000] FCA 233 followed

RAYMOND ARTHUR FITZPATRICK v MICHAEL JOSEPH KEELTY, MARK NEY, JOHN ADRIAN LAWLER, ALAN SEAN SCOTT, JAMES ANDERSON, ALLAN SPENCER, WARRICK ARBLASTER, MARK LEFEBVRE AND COMMONWEALTH OF AUSTRALIA
ACD 17 OF 2006

RAYMOND ARTHUR FITZPATRICK v MICHAEL JOSEPH KEELTY, MARK NEY, JOHN ADRIAN LAWLER, ALAN SEAN SCOTT, JAMES ANDERSON, ALLAN SPENCER, WARRICK ARBLASTER, MARK LEFEBVRE AND COMMONWEALTH OF AUSTRALIA
ACD 35 OF 2006

MOORE J
31 JANUARY 2008
SYDNEY (VIA VIDEOLINK TO CANBERRA)


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 17 OF 2006

BETWEEN:

RAYMOND ARTHUR FITZPATRICK
Applicant

AND:

MICHAEL JOSEPH KEELTY
First Respondent

MARK NEY
Second Respondent

JOHN ADRIAN LAWLER
Third Respondent

ALAN SEAN SCOTT
Fourth Respondent

JAMES ANDERSON
Fifth Respondent

ALLAN SPENCER
Sixth Respondent

WARRICK ARBLASTER
Seventh Respondent

MARK LEFEBVRE
Eighth Respondent

COMMONWEALTH OF AUSTRALIA
Ninth Respondent

JUDGE:

MOORE J

DATE OF ORDER:

31 JANUARY 2008

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth), the proceedings be dismissed.

2.Costs be reserved.

3.The parties file and serve any submission on costs by 4 pm on 14 February 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 35 OF 2006

BETWEEN:

RAYMOND ARTHUR FITZPATRICK
Applicant

AND:

MICHAEL JOSEPH KEELTY
First Respondent

MARK NEY
Second Respondent

JOHN ADRIAN LAWLER
Third Respondent

ALAN SEAN SCOTT
Fourth Respondent

JAMES ANDERSON
Fifth Respondent

ALLAN SPENCER
Sixth Respondent

WARRICK ARBLASTER
Seventh Respondent

MARK LEFEBVRE
Eighth Respondent

COMMONWEALTH OF AUSTRALIA
Ninth Respondent

JUDGE:

MOORE J

DATE OF ORDER:

31 JANUARY 2008

WHERE MADE:

SYDNEY (VIA VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:

1.To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth),…

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AGLC
Fitzpatrick v Keelty [2008] FCA 35
Case
[2008] FCA 35
Decision Date

CaseChat Overview and Summary

Fitzpatrick v Keelty was a case heard in the Federal Court of Australia. The applicant, Fitzpatrick, brought proceedings against the respondents, Keelty, for judicial review and other claims relating to his termination of employment. The primary legal issue before the court was whether the applicant's claims fell within the exception in section 60(4) of the Bankruptcy Act 1966 (Cth), which prevents the court from exercising its jurisdiction in relation to certain proceedings concerning the termination of employment. The court found that the applicant's claims did not fall within this exception, and thus the court had jurisdiction to hear the case.

The court reasoned that the applicant's claims arose directly from or were incidental to the termination of his employment and therefore did not fall within the exception in section 60(4). The court also noted that the applicant had not particularised the statements or their effect on his reputation in his pleadings, and that the defence of absolute privilege may apply to any potential defamation claims. The court further found that the applicant had no reasonable prospect of successfully prosecuting his claims for negligence or psychological injury, as investigators do not owe a duty of care to the employee being investigated and damages are not available for psychological injury falling short of a recognised psychiatric disorder.

The court dismissed the proceedings to the extent that they were not stayed by operation of section 60 of the Bankruptcy Act 1966 (Cth) and reserved costs. The parties were required to file and serve any submissions on costs by a specified date.

Orders

Orders of the court

1. To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth), the proceedings be dismissed.

2. Costs be reserved.

3. The parties file and serve any submission on costs by 4 pm on 14 February 2008.

1. To the extent that the proceedings are not stayed by operation of s 60 of the Bankruptcy Act 1966 (Cth), the proceedings be dismissed.

2. Costs be reserved.

3. The parties file and serve any submissions on costs by 4 pm on 14 February 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE J
The respondents were unable to point to any authorities concerning s 60(4) in which a question concerning or relating to the termination of employment arose in the context of proceedings for judicial review. In any event, I am satisfied that the judicial review proceedings the applicant has brought bear the same general character as the proceedings considered in Pelechowski and Daemar. In my opinion, all the "decisions" which the applicant seeks to challenge (leaving aside whether they are amenable to review) directly arise from or are incidental to the termination of his employment and do not fall within the exception in s 60(4). Conclusion regarding causes of action which may fall within s 60(4) As noted at [38], the respondents submit that certain causes of action which the applicant may be seeking to raise in one or both of the two proceedings and which may fall within s 60(4) should be dealt with in accordance with the respondents’ motions (that is, that they be struck out or dismissed). The ability for the applicant to continue these causes of action also depends upon these actions being severed from those parts of the proceedings which do not fall within s 60(4). I propose to deal with those causes of action on the assumption that they can be treated, individually, as falling within s 60(4), as the respondents’ submissions appeared to accept. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting that part of the proceedings concerning those causes of action and that judgment should be given for the respondents. One of these potential actions is defamation. The pleadings filed by the applicant refer in a general sense to damage to his character and reputation and to "defamation", as well as more specifically in relation to the contents of the reports and statements made by the respondents' solicitor in Court. As the respondents have submitted, the applicant has not particularised the statements, other than in the case of the alleged statements of the solicitor in relation to which he has provided more detail. He has not particularised the effect of any statements on his reputation. As the respondents have submitted, even if statements made by the solicitor were defamatory, the express defence of absolute privilege may well apply. I am satisfied that to the extent that the applicant has raised a cause of action in defamation there is no reasonable prospect of successful prosecution. The respondents submit that to the extent that the applicant has raised claims in negligence which may fall within the Cox test, the proceedings have no reasonable prospect of success. The respondents cited Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 in support of the proposition that an investigating officer does not owe a duty of care to a person whose conduct is under investigation because it is inconsistent with a police officer's duty. Investigators in internal disciplinary investigations also do not owe a duty of care to the employee being investigated: see State of New South Wales v Paige (2002) 60 NSWLR 371. The respondents also submit that there is no suggestion in the material filed by the applicant that the actions complained of occurred outside any officer's course of duty, and that the actions should therefore be dealt with in accordance with the authorities cited. The respondents also submit that to the extent that the applicant seeks damages for psychological injury, damages for negligence are not available for psychological injury falling short of a recognised psychiatric disorder: see Tame v State of New South Wales. The applicant has not pleaded any relevant psychiatric disorder.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

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