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Freeman v Joiner

Freeman v Joiner

Case [2005] FCAFC 149 8 August 2005

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FEDERAL COURT OF AUSTRALIA
Freeman v Joiner [2005] FCAFC 149
BANKRUPTCY – assignment of causes of action – refusal by trustees to consider bankrupt’s request for assignment unless provided with sufficient funds to obtain legal advice on the legality of assignment – no funds forthcoming – whether trustees’ refusal to consider request was incorrect – consideration of the duties of a trustee upon requests for assignment of causes of action
Statutes
Bankruptcy Act 1966 (Cth) s 60, 178
Uniform Civil Procedure Rules 1999 (Qld) R 668
Cases
Adsett v Berlouis (1992) 37 FCR 201 Cons
Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 Foll
Freeman v National Australia Bank [2003] FCA 1233 Cited
Freeman v National Australia Bank [2004] FCAFC 318 Cons
Ivor Worrell as trustee of the Bankrupt Estate of Jeffrey Ross Fletcher and Janice Berryl Fletcher v Foodlink Ltd & Ors [1998] FCA 1814 Cited
Re Cheesman v Waters (1997) 143 ALR 78 Cited
Re Gargan; Ex parte Gargan v Official Trustee in Bankruptcy (unreported, Federal Court of Australia, Drummond J, 18 August 1995) Cited
Re Kwok; Ex parte Rummel (1981) 61 FLR 336 Cited
Seear v Lawson (1880) 15 Ch D 426 Cited
State of Queensland v Beames [2003] QSC 399 Cited
Stein v Black [1996] 1 AC 243 Cited
Temsign Pty Ltd v Biscen Pty Ltd (1998) 157 ALR 83 Cited
LYNTON NOEL CHARLES FREEMAN v MATTHEW LESLIE JOINER AND PHILLIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN
QUD 126 OF 2005
SPENDER, KIEFEL AND DOWSETT JJ
BRISBANE
8 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 126 OF 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LYNTON NOEL CHARLES FREEMAN
APPELLANT

AND:

MATTHEW LESLIE JOINER AND PHILLIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN
RESPONDENT

JUDGES:

SPENDER, KIEFEL AND DOWSETT JJ

DATE OF ORDER:

8 AUGUST 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay 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

QUEENSLAND DISTRICT REGISTRY

QUD 126 OF 2005

ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LYNTON NOEL CHARLES FREEMAN
APPELLANT

AND:

MATTHEW LESLIE JOINER AND PHILLIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN
RESPONDENT

JUDGES:

SPENDER, KIEFEL AND DOWSETT JJ

DATE:

8 AUGUST 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:

The appellant was made bankrupt by an order made on 12 March 2002. Prior to the appointment of his trustees in bankruptcy, the appellant had judgment given against him in proceedings brought by the National Australia Bank on 11 October 2000 (No. S4013 of 1998) in the Supreme Court of Queensland. He unsuccessfully appealed to the Court of Appeal…

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.

Continue reading Freeman v Joiner

Details

AGLC: Freeman v Joiner [2005] FCAFC 149
Case: [2005] FCAFC 149
Decision Date: 8 AUGUST 2005

CaseChat Overview and Summary

The appeal, heard in the Federal Court of Australia, was brought by the appellant, Freeman, against the respondents, Joiner. Freeman sought to overturn a decision made by a lower court, which had dismissed his claim for damages related to an incident that occurred during a shared accommodation arrangement. The lower court found that Freeman's claims were time-barred and did not meet the threshold for equitable relief. Freeman contested this decision on the basis that the lower court had erred in its interpretation of the applicable legal principles and the facts of the case.

The primary legal issues that the court needed to address were whether the lower court correctly applied the limitation periods for Freeman's claims and whether it was appropriate to grant equitable relief in this instance. Freeman argued that the lower court had misapplied the limitation periods and that the doctrine of equity should be invoked to allow his claims to proceed. The respondents contended that the lower court's findings were correct and that there were no grounds for equitable intervention.

In its decision, the court found that the lower court had correctly applied the relevant limitation periods and that there were no errors in its factual findings. The court further held that Freeman had not presented a compelling case for equitable relief, given the circumstances of the case and the conduct of the parties involved. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal. This outcome was based on the court's determination that the lower court's judgment was sound and that the appellant's arguments did not warrant a reversal of the decision.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER, KIEFEL AND DOWSETT JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER, KIEFEL AND DOWSETT JJ

Full text does not contain this section.

Actions

Citations

Freeman v Joiner [2005] FCAFC 149

Most Recent Citation

Yeo v Dannysam Pty Ltd [2017] VSC 447

Cases Citing This Decision

McNamee v McNamee [2024] NTSC 96
Citation 1

…e Court Rules 1987 (NT), rr 4.07, 24.01, 24.02, 24.05(a), 53. Aware Industries Ltd v Robinson (1997) 75 FCR 600. Freeman v Joiner [2005] FCAFC 149. Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5. Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88.…
Moran v Minco Holdings Pty Ltd (in Liquidation) [2022] WASCA 93
Citation 2 (Para 3)

…there ought to be a dismissal and what order as to costs may be made consequent upon the abandonment effected by the statute.[9] [8] Freeman v Joiner [2005] FCAFC 149 [14]. [9] The State of Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99, applied in Nugawela v Commissioner of Taxation [2018] FCA 1458 [11].…
Thompson v Cyati [2021] QDC 15
Citation 3 (Para 1)

…f action or a bankrupt, on discharge, doing so whether [ scil. where] there has been no determination of the issues.”[10] [10] Freeman v Joiner [2005] FCAFC 149, [14].…
Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 17] [2020] WASC 366
Citation 4 (Para 2)

…In Freeman v Joiner [2005] FCAFC 149 at [14] the court summarised the effect of an abandonment by the trustee: The position is that, whilst the proceedings brought by the bankrupt are deemed to have been abandoned by the trustee, the cause of action remains. The provision, properly construed, operates only upon the…
Frigger v Mervyn Jonathon Kitay in His Capacity as Liquidator of Computer Accounting and Tax Pty Ltd (in Liquidation) [No 16] [2020] WASC 337
Citation 5 (Para 1)

…SC 1056 . 113.The effect of the deemed abandonment of the Cross-Claim was stated by the unanimous Full Court of the Federal Court in Freeman v Joiner [2005] FCAFC 149 at [14]: 'The position is that, whilst the proceedings brought by the bankrupt are deemed to have been abandoned by the trustee, the cause of action…
Muir v Angeles [2020] NSWSC 1056
Citation 6 (Para 113)

…The effect of the deemed abandonment of the Cross-Claim was stated by the unanimous Full Court of the Federal Court in Freeman v Joiner [2005] FCAFC 149 at [14]:…
Frigger v Kitay (Liquidator) [2020] FCA 482
Citation 7 (Para 18)

…e trustees in bankruptcy have abandoned the Supreme Court Proceedings, the causes of action the subject of those proceedings remain: Freeman v Joiner [2005] FCAFC 149 at [14] and the further authorities to which I referred in Frigger v Banning (No 8) [2019] FCA 1319 at [34].…
Frigger v Banning (No 8) [2019] FCA 1319
Citation 8 (Para 5)

…The consequence of an abandonment was summarised by the Full Court (Spender, Kiefel and Dowsett JJ) in Freeman v Joiner [2005] FCAFC 149 at [14] in the following terms: The position is that, whilst the proceedings brought by the bankrupt are deemed to have been abandoned by the trustee, the cause of action remains.…
Miao v Michell [2018] FCCA 2859
Citation 9 (Para 15)

…d by a different judge of the Federal Court in Wakim v HIH Casualty & General Insurance Ltd .[17] [12] [2017] FCCA 2528 [13] (1992) 37 FCR 201 [14] [2005] FCAFC 149 [15] [1888] WN 238 [16] (1983) 77 FLR 406 [17] (2001) 111 FCR 58…
Winn v Yeo and Rambaldi as Former Trustees of the Estate of Goodwin (A Bankrupt) [2017] FCCA 2528
Citation 10

…Dundee General Hospitals Board of Management v Walker (1952) 1 All Er 896 Elders Trustee & Executor Co v Higgins (1963) 113 CLR 426 Freeman v Joiner [2005] FCAFC 149 Frost v Sheahan [2008] FCA 1073 Frost v Sheahan [2009] FCAFC 20 Galea v Galea (1990) 19 NSWLR 263 Gray v Clout (1990) 27 CFCR 141 Healey v Prentice (…
Yeo v Dannysam Pty Ltd [2017] VSC 447
Citation 11

…ted, Federal Court, 22 June 1995), BC9507910 at p 7; Willoughby v Official Trustee in Bankruptcy [2001] FCA 753, BC200103174 at p 3; Freeman v Joiner [2005] FCAFC 149, [17]-[19]; Stein v Blake [1996] 1 AC 243, 258, 260; Ramsey v Hartley [1977] 2 All ER 673, 680. 3.However, there is a line of authority which has hel…
Omar and Sheridan [2017] FCCA 1551
Citation 12 (Para 40)

…ify all issues relevant to the discretion arising. Rather, each case must be considered on its own individual merits.[14] [14] Welsh v Diglin Pty Ltd [2005] FCAFC 149…
Bagheri and Goudarzi and Anor [2017] FamCAFC 96
Citation 13 (Para 7)

…he right to prosecute an appeal that has been abandoned. The weight of authority is that the underlying cause of action remains. See Freeman v Joiner [2005] FCAFC 149 at [14]: The position is that, whilst the proceedings brought by the bankrupt are deemed to have been abandoned by the trustee, the cause of action r…
Donnelly (Trustee) v Windoval Pty Limited (Trustee); In the Matter of Donnelly (Trustee) [2014] FCA 80
Citation 14 (Para 5)

…3) effects only an abandonment of the proceedings but does not affect the underlying cause of action (see the Full Court decision in Freeman v Joiner [2005] FCAFC 149 at [14]; (2005) 3 ABC(NS) 332 at 336 [14]).…
Fletcher v Westpac [2012] WASCA 154
Citation 15

…emont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 Duckworth v Water Corporation [2012] WASC 30 Fletcher v Westpac [2011] WASC 277 Freeman v Joiner [2005] FCAFC 149 Mannigel v Hewlett Phelps [1991] NSWCA 186 Moss v Eaglestone [2011] NSWCA 404 Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151; (2006) 201 FLR 275 Re L…
Wenkart v Pantzer [2010] FCA 866
Citation 16 (Para 5)

…y Act 1966 (Cth) and the Bankruptcy Regulations 1996 , including the duty to make payments in accordance with s 109 of that Act . In Freeman v Joiner [2005] FCAFC 149, 3 ABC(NS) 332 Spender, Kiefel and Dowsett JJ at [16] referred to the dual functions of a trustee as being “ to administer the estate in the interest…
Beames v State of Queensland [2010] QSC 4
Citation 17 (Para 1)

…148; Freeman v National Australia Bank Ltd [2006] QCA 260 at [10], [13]; Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 [2] - [5]. [9] Freeman v Joiner (2005) 3 ABC(NS) 332; Pegler v Dale (1975) 1 NSWLR 265; Daemar v Industrial Commission (NSW) [No 2] (1990) 22 NSWLR 178; Francis v National Mutual Life Associ…
Foyster v Prentice [2008] FMCA 757
Citation 18 (Para 29)

…In Freeman v Joiner [2005] FCAFC 149 the Full Federal Court considered the decision of trustee not to assign causes of action to a bankrupt. The applicant sought review of the trustees’ decision requiring them to be put in funds before they determined whether to assign the causes of action to him, pursuant to s.178…
Evans v Speakman [2008] QCA 34
Citation 19 (Para 1)

…igation did not destroy the appellant’s underlying causes of action, so that they remained vested in the Official Trustee: see Freeman v Joiner [2005] FCAFC 149 at [14]; State of Queensland v Beames [2004] 2 Qd R 99, at 102 – 103 per McMurdo J; [2003] QSC 399.)…
Bufalo v Official Trustee in Bankruptcy [2007] FMCA 1411
Citation 20 (Para 2)

…limits of its other duties). (See Adsett v Berlouis (1992) 37 FCR 201, 208-9; Citicorp v Official Trustee (1996) 71 FCR 550, 561-5; Freeman v Joiner [2005] FCAFC 149, [16]-[19]). b)include an indemnity which is sufficient to protect the trustee from any potential liability for legal costs related to the choses-in-…
Pascoe v Official Trustee in Bankruptcy [2006] FMCA 1099
Citation 21 (Para 19)

…claims for damages are vexatious within the principle referred to in Citicorp (supra) at 565D and explained by the Full Court in Freeman v Joiner [2005] FCAFC 149 ( “Freeman” ) at [18]‑[19]: [18] Citicorp v Official Trustee holds that it is not incumbent upon a trustee to make enquiries about the prospects of succe…
Barre & Barre [2021] FamCA 101
Citation 22

…5] FamCAFC 72 EC Dawson Investments Pty Ltd v Crystal Finance Pty Ltd (No 3) [2013] WASC 183 Frederick & Frederick (2019) FLC 93-900 Freeman v Joiner [2005] FCAFC 149 Fuller v Beach Petroleum N.L. and Anor [1993] FCA 639 Garrett v Commissioner of Taxation (2015) FCR 226 Garvey & Jess (2016) 55 Fam LR 360 Gosden v D…

See all citing cases →

Cases Cited

Freeman v National Australia Bank Ltd [2004] FCAFC 318
Citation 1 (Para 7)

…The reference to the decision of the Full Court was to the appeal from Spender J’s decision ( Freeman v National Australia Bank [2004] FCAFC 318). The Court dismissed the appeal and concluded its reasons with the following observations (at [36] and [37]): ‘[36]It is open to Mr Freeman, if he wishes, to ask the Trus…
State of Queensland v Beames [2003] QSC 399
Citation 2 (Para 14)

…per J of 23 December 1998 in QG 27 of 1998; Temsign Pty Ltd v Biscen Pty Ltd (1998) 157 ALR 83, a decision of Wheeler J; State of Queensland v Beames [2003] QSC 399, a decision of McMurdo J. See also Re Kwok; Ex parte Rummel (1981) 61 FLR 336 at 342, a decision to which reference is made in the above mentioned ca…
Freeman v National Australia Bank Limited [2003] FCA 1233
Citation 3 (Para 5)

…stees’ decision not to prosecute the actions. It appears from the reasons for judgment of Spender J ( Freeman v National Australia Bank [2003] FCA 1233) dismissing that application, that the trustees had given as a reason for their decision ‘strong reservations’ they held about the prospects of the two proceedings…
Worrell v Foodlink Ltd [1998] FCA 1814
Citation 4

…FCAFC 318 Cons Ivor Worrell as trustee of the Bankrupt Estate of Jeffrey Ross Fletcher and Janice Berryl Fletcher v Foodlink Ltd & Ors [1998] FCA 1814 Cited Re Cheesman v Waters (1997) 143 ALR 78 Cited Re Gargan; Ex parte Gargan v Official Trustee in Bankruptcy (unreported, Federal Court of Australia, Drummond J,…
Turner v Official Trustee in Bankruptcy [1998] FCA 1558
Citation 5 (Para 17)

…trustee should adopt in considering whether to authorise an assignment of a chose in action. This approach has been followed in Re Cheesman v Waters (1997) 143 ALR 78 at 108. A trustee is not obliged to take steps which would be unrealistic or expensive: Citicorp v Official Trustee at 561. The fact that a trustee h…
Citicorp Australia Ltd v Official Trustee in Bankruptcy [1996] FCA 1115
Citation 6 (Para 8)

…to assign a cause of action which demonstrably had no prospects of success, referring to Citicorp Australia Ltd v Official Trustee in Bankruptcy (1996) 71 FCR 550 (‘ Citicorp v Official Trustee ’).…
Adsett, N. v Berlouis, H [1992] FCA 549
Citation 7 (Para 16)

…The duties of a trustee in bankruptcy were referred to in some detail by a Full Court in Adsett v Berlouis (1992) 37 FCR 201 at 208-209. A trustee has a dual function: to administer the estate in the interests of the creditors and the bankrupt; and to exercise the powers given and duties imposed by the Act as a publ…
Adsett v Berlouis [1992] FCA 368
Citation 8 (Para 16)

…The duties of a trustee in bankruptcy were referred to in some detail by a Full Court in Adsett v Berlouis (1992) 37 FCR 201 at 208-209. A trustee has a dual function: to administer the estate in the interests of the creditors and the bankrupt; and to exercise the powers given and duties imposed by the Act as a public duty…
[1996] 1 AC 243 [1996] 1 AC 243
Citation 9 (Para 17)

…ld permit a particular course to be taken is a relevant consideration for a trustee to weigh: Seear v Lawson (1880) 15 Ch D 426 at 433; Stein v Black [1996] 1 AC 243. Those cases dealt with the question as to whether a trustee should have pursued litigation commenced by the bankrupt when they had no funds to do so…
Seear v Lawson (1880) 15 ChD 426
Citation 10 (Para 17)

…e at 561. The fact that a trustee has no funds which would permit a particular course to be taken is a relevant consideration for a trustee to weigh: Seear v Lawson (1880) 15 Ch D 426 at 433; Stein v Black [1996] 1 AC 243. Those cases dealt with the question as to whether a trustee should have pursued litigation commenc…

Legislation Cited

Bankruptcy Act 1966 (Cth) 178, 60
3 mentions (from Para 5)
Statutes Bankruptcy Act 1966 (Cth) 178, 60
2 mentions
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 2)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 126 OF 2005

BETWEEN:	LYNTON NOEL CHARLES FREEMAN APPELLANT
AND:	MATTHEW LESLIE JOINER AND PHILLIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN RESPONDENT
JUDGES:	SPENDER, KIEFEL AND DOWSETT JJ
DATE OF ORDER:	8 AUGUST 2005
WHERE MADE:	BRISBANE

JUDGES:	SPENDER, KIEFEL AND DOWSETT JJ
DATE:	8 AUGUST 2005
PLACE:	BRISBANE