Garrett v Mildara Blass Limited - [2015] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
GARRETT v MILDARA BLASS LIMITED
[2015] SASC 176
Judgment of The Honourable Justice Peek
6 November 2015
BANKRUPTCY - PROCEDURE AND EVIDENCE - PARTIES
Andrew Garrett, an undischarged bankrupt, purported to bring an interlocutory application in Supreme Court Action 2244 of 1996 for 14 specified orders, including to re-open the application made before Layton J in 2007 to re-open and set aside the consent judgment entered in that action following settlement in 2000.
Section 60(2) of the Bankruptcy Act 1966 (Cth) provides that an action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. Section 60(4)(a) provides an exception to this for an action in respect of any personal injury or wrong done to the bankrupt.
Whether Action 2244 of 1996 is stayed by virtue of s 60(2), Bankruptcy Act and whether Mr Garrett is entitled to bring any interlocutory application in that action. Whether the exception in s 60(4)(a) applies.
Held (dismissing the application):
1. Section 60(4)(a) of the Bankruptcy Act does not apply to this action.
2. Action 2244 of 1996 is stayed by virtue of s 60(2) of the Bankruptcy Act and accordingly Mr Garrett is not entitled to bring any interlocutory application in that action.
Bankruptcy Act 1966 (Cth) s 60(2); s 60(3); s 60(4)(a), referred to.
Garrett & Anor v Mildara Blass Ltd & Ors; Attorney-General for the State of South Australia v Garrett [2009] SASC 19; Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd & Ors [2006] SASC 381; Re Lofthouse (2001) 107 FCR 151, considered.

GARRETT v MILDARA BLASS LIMITED
[2015] SASC 176
Application to a single Judge: Civil
PEEK J.

This application purports to be an interlocutory application brought by Mr Andrew Morton Garrett (Mr Garrett) in Supreme Court Action 2244 of 1996. He applies for some 14 specified orders to be made in that action. Mr Garrett asserted that he originally commenced Action 2244 of 1996 in both his personal capacity and also as a trustee for the Garrett Family Trust and that he sought to appear in both capacities before me.
Application for recusal
Mr Garrett applied for my recusal from continuing to hear this application. I consider that there is no reason for me to do so and I decline to do so.
The background facts
In a judgment of this Court entitled Garrett & Anor v Mildara Blass Ltd & Ors; Attorney-General for the State of South Australia v Garrett,[1] Layton J dealt with two actions which were heard concurrently, namely Action 2244 of 1996 and Action 1342 of 2007 which was instituted by the Attorney-General for the State of South Australia seeking inter alia, a declaration that Mr Garrett has persistently issued vexatious proceedings, and an order that he be prohibited from instituting any proceedings in any court without permission of the Court. Her Honour outlined the status of the matter before her thus:
[1] [2009] SASC 19 ('Judgment').
[1]     There are three applications before me. The first is a Notice for Specific Directions filed on 3 May 2007 by Andrew Morton Garrett in Action Number SCCIV-96-2244 (“Action 2244 of 1996”). Mr Garrett seeks, inter alia, to re-open and set aside the judgment entered in that action.
[2] The second is an application which was filed on 27 June 2007 by the first defendant, Mildara Blass Limited (“Mildara Blass”), now known as Foster’s Wine Estates Ltd (“FWE”), in Action 2244 of 1996. The Notice for Specific Directions seeks orders, pursuant to s 39 of the Supreme Court Act 1935 (SA) (“the Act”), that Mr Garrett be declared a vexatious litigant, that he be prohibited from instituting any proceedings with respect to FWE and related entities without the leave of the Court, and a permanent stay of the proceedings issued by Mr Garrett in Action 2244 of 1996.
[3] The third is an application filed on 10 October 2007 in Action Number SCCIV-07-1342 (“Action 1342 of 2007”), instituted by the Attorney-General for the State of South Australia against Mr Garrett pursuant to s 39 of the Act. This application seeks, inter alia, a declaration that Mr Garrett has persistently issued vexatious proceedings, and an order that he be prohibited from instituting any proceedings in any court without permission of the Court.
[4]     On 16 November 2007, I made an order that the applications in Action 2244 of 1996 be listed for hearing concurrently with Action 1342 of 2007. I also made an order that the applications should be heard both as to evidence and submissions, in the following order: first, the Attorney-General’s application in Action 1342 of 2007; second, the application by FWE in Action 2244 of 1996; and, lastly, Mr Garrett’s application to re-open in Action 2244 of 1996. I also ordered that, subject to relevance, the evidence adduced and submissions made in Action 1342 of 2007 be treated as evidence and submissions in the applications by the first defendant and second plaintiff in Action 2244 of 1996, and vice versa.
[5]     At the hearing, Mr Livesey QC, counsel for FWE, identified and made submissions with respect to two preliminary matters, namely:
• the effect of the declaration made by Anderson J on 17 May 2007 that Mr Garrett had persistently instituted vexatious proceedings as defined by s 39 of the Act; and
•      Mr Garrett’s standing to take out the application in Action 2244 of 1996.
[6]     I will deal with these preliminary issues before moving on to the substantive matters which I will then deal with in the following order:
•      the application made by Mr Garrett to re-open Action 2244 of 1996;
• the application made by the Attorney-General pursuant to s 39 of the Act;
• the application made by FWE pursuant to s 39 of the Act.
As to the first of the three applications referred to by her Honour, that of Mr Garrett in Action 2244 of 1996 to re-open and set aside the judgment entered in that action, Layton J noted that that action had been commenced on 26 November 1996 and had been resolved by a deed of settlement entered into on 26 July 2000. Her Honour stated:
[20]    The second preliminary issue concerns Mr Garrett’s standing. Unlike the first preliminary issue, this second issue affects FWE only in respect of Action 2244 of 1996.
[21]    Mr Livesey submitted that Mr Garrett lacked standing to bring the application for two reasons. First, he was an undischarged bankrupt, and second, Mr Garrett was unable to satisfy the Court that he had been validly appointed as the sole trustee of the Garrett Family Trust (“GFT”) and was therefore unable to establish standing in the capacity as trustee of the GFT.
[22]    Mr Garrett has been an undischarged bankrupt since 24 September 2004. His status as a bankrupt was due to expire in 2007, but Mr Garrett’s bankrupt status has been extended to 24 November 2012.[2]
[2]    Affidavit of Jane Maria Rusalen sworn 9 October 2007, JMR 24.
Layton J referred to the judgment of Anderson J in Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd & Ors[3] where Anderson J had summarised a number of earlier decisions given by the Court in which Mr Garrett had been found to lack standing both in his personal capacity or as trustee of various trusts and had concluded that bankruptcy per se was prima facie evidence that Mr Garrett was unfit to act as a trustee and he therefore lacked standing to appear on behalf of the defendant by counterclaim and as an appellant. Layton J noted that Anderson J had summarised Mr Garrett’s position as follows:[4]
[24] It is not appropriate to allow Mr Garrett to continue to assert that he appears pursuant to the rules for the reasons which I have set out earlier. He cannot continue to lodge appeals and file documents in his personal capacity when a trustee of his bankrupt estate has been appointed and does not consent to such a course of action. Mr Garrett has been told numerous times by different Judges that he does not have valid standing and that he cannot continue to bring actions and lodge appeals without recognised standing. The other parties to this action, namely, the liquidators appointed for Andrew Garrett Wines Resorts P/L, discontinued action 127-04 on 20 September 2005 (FDN 194). A trustee in bankruptcy has been appointed for Mrs Averil Gay Garrett. That trustee has also elected not to assume the conduct of this action. Further, NAB’s counterclaims against Andrew Garrett Wines Resorts P/L, Mrs Garrett and Mr Garrett have been stayed by operation of the Corporations Act and the Bankruptcy Act. It is for these reasons that Mr Garrett does not have standing. If this action is still on foot, it is for all relevant purposes, moribund.
[3] [2006] SASC 381.
[4] Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd & Ors [2006] SASC 381.
Layton J went on to decide:
[28] Applying these principles to the case at bar, the fact that Mr Garrett is an undischarged bankrupt is prima facie a circumstance which suggests that he lacks standing as a fit person to act on behalf of the trust. In this case, rather than there being other information before me which would rebut this presumption, to the contrary, the material before me confirms that he is an unfit person to act for the GFT. Despite having been told on many previous occasions that he lacked valid standing, he has continued to creatively contrive proceedings in this Court using the guise of another legal identity to air his grievances. In endeavouring to establish standing in the name of the GFT for the purpose of resurrecting Action 2244 of 1996, he is exposing the property of the GFT to the risk of detriment, including costs orders against it in the event that the application is dismissed.
[29] I therefore conclude that Mr Garrett has no standing to bring the application to re-open Action 2244 of 1996 by reason of his bankruptcy alone.
I note that her Honour then went on to consider “a second prong to the submission by FWE that Mr Garrett lacks standing, namely, that I could not be satisfied that Mr Garrett was validly appointed as sole trustee of the GFT.”[5] After long and detailed consideration, her Honour concluded:
[54]    In conclusion on this point, the absence of the Original Deed means that I am unable to make any affirmative finding that there were two trustees of the GFT as asserted in the Deed of Variation. However, assuming that were the case, I am not satisfied that Mrs Garrett has been legally discharged from her responsibilities as a trustee and that she no longer remains a joint trustee of the GFT with Mr Garrett. I am not satisfied that Mr Garrett has been validly appointed as an appointor, nor am I satisfied that he is the sole trustee of the GFT. Mr Garrett has no standing to represent the GFT unilaterally[6] and to thereby re-open Action 2244 of 1996. I therefore refuse the leave sought by Mr Garrett.
[5]    Judgment, [30].
[6]    Just, in Estate of (No 1) (1973) 7 SASR 508, 513.
Layton J then stated “Although the result of my earlier findings means that Mr Garrett has no standing as the sole trustee of the GFT to seek to re-open this action, I will nonetheless deal with his application on the merits.” Her Honour proceeded to do so over the course of many paragraphs and concluded thus:
Conclusion on Mr Garrett’s Application to re-open
[105]    Considering the number of years that have elapsed since the matter settled, together with the entirely flawed nature of the application instituted by Mr Garrett to re-open this proceeding, in my view, there is no reasonably arguable basis for the application brought by Mr Garrett. It is a vexatious proceeding instituted by him asserting that a wrong has been done without in any way being able to substantiate his arguments. Moreover, Mr Garrett’s attempt to put this argument on behalf of a trust suggests to me that he is using whatever means he can, in whatever capacity he can, to devise ways to try to establish standing to continue to litigate against FWE.
[106]    The application to re-open was filed on 3 May 2007. It came hot on the heels of a judgment delivered by Finn J on 2 March 2007 in Action Number SAD 12/2007, which Federal Court action in turn had been instituted by Mr Garrett on 24 January 2007.
[107]    In the Federal Court proceedings in Garrett v Foster’s Wines Estates Ltd,[7] Mr Garrett, purporting to act in a number of different capacities, sought to set aside the Asset Sale Agreement between the Wine Company Pty Ltd, Mildara Blass and Suntory Australia Pty Ltd. The application also sought an order that FWE pay to Andrew Morton Garrettâ in his capacity as Trustee of the AGFT No 3 the monies that would have been due under the Garrett Family Licence. The Asset Sale Agreement lay at the heart of the circumstances giving rise to the Deed of Settlement.
[108]    In the course of his reasons, Finn J referred to the Deed of Settlement entered into between FWE and other parties on 26 July 2000. His Honour noted that there was significant reference to this Deed of Settlement in the Statement of Claim, but indicated that Mr Garrett had accepted during the course of the hearings that the Deed of Settlement was not in issue in the proceedings before him.[8] Nonetheless, Finn J noted that the documentation relied on by Mr Garrett with regard to the application sought “impermissibly, but irrelevantly for present purposes, to attack collaterally the leave given in the Supreme Court of Victoria.”[9]
[109]    This application was therefore yet another contrivance by Mr Garrett to re‑agitate similar related matters in the Supreme Court to those which had failed in the Federal Court. This is yet another reason for being satisfied that this application constitutes the institution of a vexatious proceeding by Mr Garrett.
[7] [2007] FCA 253.
[8]    Garrett v Foster’s Wine Estates Limited [2007] FCA 253, [19].
[9] Ibid.
Layton J later dealt with the application of the Attorney General, again over many paragraphs. Her Honour referred to many actions and multiple applications in those actions which her Honour found to be instituted vexatiously. Her Honour referred to the arguments of Mr Garrett and concluded:
[325] In respect of these arguments, I reject them. It is not correct for Mr Garrett to assert that he has only instituted one action in his entire life, being Action 2244 of 1996. The Attorney-General’s application alone indicates that Mr Garrett was the instigator of Actions 127 of 2004, 78 of 2005, 145 of 2005, 257 of 2005, 422 of 2005, 423 of 2005, 1443 of 2005, 590 of 2006, 7132 of 2006, 7624 of 2006, 7625 of 2006 and 780 of 2007. This is quite apart from the numerous proceedings issued by Mr Garrett in which he has sought unconnected substantive relief within actions commenced by others, in order to achieve the same end as if it had been an originating action by him, without the need for the payment of the court fees associated with an originating action.
…
[328] I have also read his 70 page written outline of argument, which canvasses a range of matters, including alleged unacceptable conduct of members of the judiciary; a failure of the Court to “investigate”; alleged conduct against legal practitioners, accusing them of manipulating and swearing false testimony; alleged misrepresentation of arguments by counsel; various submissions concerned with company loans, Springwood Park and matters related to bill facilities. None of the matters contained in that document have persuaded me that the conclusions I have reached on the individual proceedings are in error.
[329] As a result of my findings, I have concluded that 32 proceedings in the Supreme Court, four proceedings in the District Court and four proceedings in the Magistrates Court instituted by Mr Garrett, amounted to vexatious proceedings within the meaning of s 39 of the Act. The period of time over which these proceedings were instituted was from 20 August 2004 to 19 December 2007. The various grounds upon which I have concluded they were vexatious proceedings include being an abuse of process of the Court, re‑litigation of matters decided already by a court, instituting proceedings without reasonable ground or utterly hopeless grounds, numerous attempts by Mr Garrett to find other legal entities by which to take action to agitate his own personal concerns; and also proceedings instituted for the purpose of annoying and harassing named litigants who were often non-parties to the action in which proceedings have been instituted. In my view, these matters alone would have been sufficient for me to conclude that Mr Garrett has persistently instituted vexatious proceedings within the meaning of s 39. This conclusion is fortified when seen in the context of other proceedings issued by him in the Federal Court.
Layton J then referred to other proceedings instituted by Mr Garrett in other jurisdictions particularly, the Federal Court and the Federal Magistrates Court. Her Honour stated:
[332]    Whilst I will not endeavour to comment on each proceeding instituted by Mr Garrett in the Federal Court, I will make the following observations. In the course of the 21 actions, at least 20 proceedings instituted by Mr Garrett in the actions were dismissed, struck-out or refused. Reasons were published for the majority of these decisions, and within these reasons the proceedings instituted by Mr Garrett are described, inter alia, as “hopelessly misconceived”,[10] “incoherent”,[11] “embarrassing”,[12] “vexatious”,[13] “ostensibly untenable”[14] and as having “no reasonable prospect of success”.[15]
[333]    The majority of the proceedings instituted in the Federal Court and the Federal Magistrates Court appear to primarily concern the bankruptcy of Mr Garrett and Mrs Garrett. Mr Garrett instituted proceedings against nearly all parties involved in the steps leading to the respective sequestration orders and the administration of each estate, alleging among other things that the administration of the estates was incompetent. This is similar in pattern to the institution of proceedings in the state jurisdiction against solicitors and other non-parties to primary actions, making accusations about incompetence and alleged criminal conduct. There have also been attempts to use corporate entities in order to air his grievances when he could no longer institute proceedings in his own name.
[334]    There were, however, three actions in the Federal Court which were more directly related to the proceedings in the State jurisdictions, namely Action Number SAD 12/2007, and further, Action Number SAD 29/2005 and Action Number SAD 5/2006 concerning the income stream paid by FWE. I have specifically discussed these three actions and their relevance at [100] to [104] and [107] to [109].
[335]    In summary, the proceedings in the Federal Court fortify my conclusion that the institution of proceedings in the State jurisdiction have been not only vexatious, but persistently vexatious. There are similar patterns of behaviour in both jurisdictions.
[10] Garrett v Macks [2006] FCA 601 [12] per Lander J.
[11] Garrett v Tseng [2007] FCA 93, [41] per Lander J.
[12] Garrett v Foster’s Wine Estates Ltd [2007] FCA 253, [17] per Finn J.
[13] Garrett v Rann [2007] FCA 528 [5] per Mansfield J.
[14] Garrett v National Australia Bank [2007] FCA 530 per Mansfield J.
[15] Garrett v Westpac Banking Corporation [2007] FCA 439, [25] per Finn J.

After further discussion, Layton J made the following orders:[16]
[16] Judgment, [357].
Action 2244 of 1996
1Leave to Mr Garrett to stand in his capacity as trustee of the Garrett Family Trust is refused.
2The application to re-open Action 2244 of 1996 is dismissed.
3The application by Foster’s Wine Estates Limited is allowed.
4I declare that Andrew Morton Garrett has persistently instituted vexatious proceedings as defined by section 39(1) of the Supreme Court Act 1935.
5      Mr Garrett is hereby prohibited from:
a.     instituting in his own name; or
b.     causing others to institute; or
c.     being concerned, whether directly or indirectly, in the institution of
any proceedings in any Court of the State of South Australia against Foster’s Wine Estates Limited, Foster’s Brewing Group Limited, or any related body corporate, employee, agent or adviser of Foster’s Wine Estates Limited and Foster’s Brewing Group Limited without the leave of this Court.
6      Action 2244 of 1996 is permanently stayed.
Action 1342 of 2007
7      The application by the Attorney-General is allowed.
8I declare that Andrew Morton Garrett has persistently instituted vexatious proceedings as defined by section 39(1) of the Supreme Court Act 1935.
9      Mr Garrett is hereby prohibited from:
a.     instituting in his own name; or
b.     causing others to institute; or
c.     being concerned, whether directly or indirectly, in the institution of
any proceedings in any Court of the State of South Australia without the leave of this Court.
Section 60 of the Bankruptcy Act 1966 (Cth)
Mr Garrett admitted on the hearing that a sequestration order was made against Mr Garrett’s estate on 15 May 2015 pursuant to the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). I received on the hearing a short affidavit tendered by the respondent proving the above uncontested matter.
The respondent to this application submits that Action 2244 of 1996 is stayed by virtue of s 60(2) of the Bankruptcy Act and accordingly Mr Garrett is not entitled to bring any interlocutory application in that action. For the following reasons I hold that this submission must be accepted.
Section 60 of the Bankruptcy Act relevantly provides:
60Stay of legal proceedings
…
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or
(b) the death of his or her spouse or de facto partner or of a member of his or her family.
…
...
(5)In this section, action means any civil proceeding, whether at law or in equity.
(Original emphasis)
Mr Garrett does not suggest that any notice has been served on the trustee under s 60(3) or that the trustee has made an election under s 60(2). Since he is the bankrupt, and the party in the best position to know the position, I find that the trustee has not made an election, in writing, to prosecute or discontinue the action.
Accordingly, s 60(2) will therefore operate to stay Action 2244 of 1996 with the result that Mr Garrett’s application to reopen that action cannot succeed.
As I understand it, Mr Garrett submits that this present application before me should be characterised as an “action” and it is to this action that the words “an action commenced by a person” in s 60(2) apply; the submission continues that he became bankrupt before the time of this present application and therefore s 60 does not apply in the present circumstances. This submission is rejected. If one applies the words in 60(2) “an action commenced by a person who subsequently becomes a bankrupt” to Action 2244 of 1996, it is plain that Mr Garrett became bankrupt subsequent to the commencement of that action and that that action is therefore stayed by force of the Bankruptcy Act.
As I understand it, Mr Garrett also submits that even if Action 2244 of 1996 is stayed by force of the Bankruptcy Act as to Mr Garrett personally, the position is somehow different in so far as the action was instituted on behalf of the Garrett Family Trust. This submission is also to be rejected, and for a number of reasons. First, the language of s 60 is clear and intractable; the whole of “the action” referred to is stayed; the statute proceeds by reference to the action itself and not to differing capacities of parties thereto.
In Re Lofthouse, Gray J explained why s 60(2) applies to stay claims brought by a bankrupt in the capacity as trustee thus: [17]
[19] Section 60 is not the provision that vests the right of action in the trustee in bankruptcy. It has a different, and in some respects wider, role. It operates to stay pending proceedings unless the trustee elects to prosecute or discontinue them. It also provides the machinery for a defendant or other party to a pending proceeding to force the making of an election. It is directed towards the protection of the bankrupt's creditors, by preventing the unnecessary dissipation of the assets of the estate in fruitless litigation. In my view, s 60 also has the purpose of protecting a defendant or other party to a pending proceeding. A defendant or other party to a pending proceeding suffers an immediate detriment upon the plaintiff becoming a bankrupt. The detriment is that if the defendant or other party should be successful in the proceeding, and should obtain an order that the plaintiff pay the costs of the proceeding, the order will be effectively unenforceable because of the bankruptcy. The rationale behind s 60(2) and (3) is therefore, at least in part, to protect those whom the bankrupt has been suing. Such protection would be lost if the word "action" in s 60 were to be construed as excluding a proceeding in which the bankrupt has sued as a trustee for someone else.
[20] In my view, s 60 has been enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions have been expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding. If such an election is made, the trustee in bankruptcy will ordinarily become substituted as plaintiff in the pending proceeding, in the capacity of trustee in bankruptcy for the former plaintiff. The trustee in bankruptcy will thereby become liable for the costs of the proceeding in the event that it is unsuccessful and a costs order is made in favour of the defendant in the proceeding or some other party to it. The trustee in bankruptcy may be entitled to an indemnity in respect of those costs out of the bankrupt estate, as expenses of the administration of the estate, to the extent to which the estate has assets. The trustee in bankruptcy will obviously consider whether continuing to prosecute the proceeding will be likely to have any benefit to the estate of the bankrupt, and therefore to the bankrupt's creditors.
[17] (2001) 107 FCR 151, 157-8.
This passage would be well known to the applicant because it has been recently reproduced in a judgment in an action brought by him, Garrett v Cahill,[18] where Riordan J applied that ruling and referred to other judgments where it had been applied.
[18] [2015] VSC 572.
Second, (and quite independently of the first reason), I refer to the clear finding of Layton J referred to above that “Mr Garrett has no standing as the sole trustee of the GFT to seek to re-open this action”, her Honour of course referring to the action before me, Action 2244 of 1996.
Finally, as I understand it, Mr Garrett submits that Action 2244 of 1996 falls within the exception in s 60(4)(a) “any personal injury or wrong done to the bankrupt …” on the basis that the finding that he is a vexatious litigant damaged his body mind and soul.
Again, this submission is rejected. Section s 60(4)(a) focuses on the nature of the action that is brought. Action 2244 of 1996 was purely a commercial case and cannot be characterised as an action brought in relation to “any personal injury or wrong done” in the sense that those words have been interpreted.[19] Thus in the recent decision in Garrett v The Commissioner of Taxation, Kenny J gathered together the authorities concerning the meaning of section 60(4) and stated:[20]
[38] I would reject Mr Garrett’s submission that his application fell within s 60(4) of the Bankruptcy Act. Section 60(4) exempts an action commenced by him before he became a bankrupt in respect of “any personal injury or wrong”. The phrase “any personal injury or wrong” has been considered and interpreted by the courts for some considerable time, as a consequence of which it now has a received meaning. As Edelman J said in Duckworth 261 FLR at 199, “‘[w]rong’ and ‘personal injury’ have the same connotation and derivation.” In Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721, Dixon J said that the test for whether an action is in respect of a “personal injury or wrong” under s 60(4) was “whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property”. This test has been applied in many cases since then, including Faulkner v Bluett (1981) 52 FLR 115, Duckworth 261 FLR 185, Pelechowski [2000] FCA 233 at [5] and Fletcher v Westpac [2012] WASCA 154 at [18]-[24] (and the cases there cited).
[19] It is to be noted that there is authority for the proposition that an action for defamation is within the phrase “any personal injury or wrong done to the bankrupt” but this is of no assistance to the applicant here. See Moss v Eaglestone (2011) 83 NSWLR 476 and Garrett v Cahill [2015] VSC 572.
[20] [2015] FCA 665.
Conclusion
I find that Action 2244 of 1996 is stayed by virtue of s 60(2) of the Bankruptcy Act and that accordingly Mr Garrett is not entitled to bring any interlocutory application in that action.
Orders
The application is dismissed.