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Gray v Clout

Gray v Clout

Case [1990] FCA 759 29 November 1990

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Re: JOHN ARTHUR NICOL GRAY
And: DAVID LEWIS CLOUT
No. Q G121 of 1990
FED No. 759
Administrative Law - Bankruptcy
27 FCR 141/21 ALD 510

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - reasons sought under s.13 of Administrative Decisions (Judicial Review) Act - trustee of bankrupt's estate discontinued court proceedings and refused to give reasons - whether trustee's decision one to which s.13 applies - whether universal right to reasons under s.13.

Bankruptcy - consideration of Court's broad discretion as to trustee's acts and omissions under Bankruptcy Act - in what circumstances Court will exercise discretion.

Administrative Decisions (Judicial Review) Act 1977, s.13

Bankruptcy Act 1966, s.178

HEARING

BRISBANE

#DATE 29:11:1990

Counsel for the applicant: Mr M. Daubney

Solicitors for the applicant: Lynch and Co.

Counsel for the respondent: Ms E.M. O'Reilly

Solicitors for the respondent: Feez Ruthning

ORDER

The Notice of Motion filed in the Supreme Court of Queensland dated 11 September 1990, and which has come before this Court under the order of the Supreme Court of 14 September 1990, be dismissed.

The oral application made by the applicant's counsel under s.178 of the Bankruptcy Act 1966 be dismissed.

The proceedings commenced by writ and transferred from the Supreme Court of Queensland to this Court, be dismissed.

The costs of the proceedings in this Court and those incurred in the Supreme Court, including the costs of today's hearing, be taxed and paid by John Arthur Nicol Gray.

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

JUDGE1

These proceedings came before this Court as an application for an order, which was to be in substance a mandatory injunction, transferred from the Supreme Court by order of McPherson J. of 14 September 1990. As I shall explain, a further application was made by counsel for the applicant during the course of the hearing here.

On 13 October 1987 the applicant and Joy Gray issued proceedings in the District Court of Queensland claiming damages for breach of contract against one Pastoors, and damages for negligence in breach of contract against a firm of solicitors, Welldon and Zande.
The pleading in that court alleged that Pastoors sold the plaintiffs a boat in 1981, and that it was an implied term that the boat was reasonably fit for the purpose of charter for reward, and that the term was breached. The pleading gives no indication of what was wrong with the boat, merely saying that it was "defective in several respects." It does not appear that any particulars of the alleged defects were given. As against the solicitors, the pleading says that they failed to include in the contract for sale an express term that "the boat was reasonably fit for the purpose aforesaid." That purpose was charter for reward. As was contended by counsel for the respondent, the pleading seems a little unsatisfactory as against the solicitors, for it is…

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 Gray v Clout

Details

AGLC: Gray, J.A.N. v. Clout, D.L. [1990] FCA 759 (27 FCR 141; 21 ALD 510)
Case: [1990] FCA 759
Decision Date: 29 NOVEMBER 1990

CaseChat Overview and Summary

John Arthur Nicol Gray, a creditor of the bankrupt estate of Brian Thomas Clout, sought judicial review of decisions made by the trustee of the bankrupt's estate, who had discontinued court proceedings and refused to give reasons for those decisions. The case was heard in the High Court of Australia, which was tasked with determining the legal issues surrounding the applicability of section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to the trustee's decision and whether there is a universal right to reasons under that section.

The primary legal issues before the Court were whether the trustee's decision to discontinue court proceedings and refuse to give reasons was one to which section 13 applied and if there is a universal right to reasons under that section. The Court considered whether the decision of the trustee was a decision of an administrative character and whether it was a decision that affected the applicant's legal rights or obligations.

The Court found that the trustee's decision was not one to which section 13 applied because it did not involve the making of an administrative decision of an administrative character. The Court also found that there is no universal right to reasons under section 13, but rather the right to reasons is dependent on the circumstances of each case and whether the decision affects the legal rights or obligations of the person affected by the decision. The Court held that the trustee's decision did not affect the applicant's legal rights or obligations and therefore, there was no entitlement to reasons.

The High Court dismissed the application for judicial review and ordered that the costs of the proceedings in both the Federal Court and the Supreme Court of Queensland, including the costs of the hearing, be paid by John Arthur Nicol Gray. The Court held that the trustee's decision to discontinue court proceedings and refuse to give reasons was not one to which section 13 of the Administrative Decisions (Judicial Review) Act applied, and that there is no universal right to reasons under that section.

Orders

Orders of the court

The Notice of Motion filed in the Supreme Court of Queensland dated 11 September 1990, and which has come before this Court under the order of the Supreme Court of 14 September 1990, be dismissed.

The oral application made by the applicant's counsel under s.178 of the Bankruptcy Act 1966 be dismissed.

The proceedings commenced by writ and transferred from the Supreme Court of Queensland to this Court, be dismissed.

The costs of the proceedings in this Court and those incurred in the Supreme Court, including the costs of today's hearing, be taxed and paid by John Arthur Nicol Gray.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Gray, J.A.N. v. Clout, D.L. [1990] FCA 759 (27 FCR 141; 21 ALD 510)

Most Recent Citation

Re Brewer, R.J. Ex parte Eurodollar P/L & ors v Donnelly, M.C. & ors [1992] FCA 615

Cases Citing This Decision

Bertram v Naudi (No 2) [2024] FCA 1239
Citation 1 (Para 18)

…to account information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4.The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrup…
Winn v Yeo and Rambaldi as Former Trustees of the Estate of Goodwin (A Bankrupt) [2017] FCCA 2528
Citation 2

…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 (No 2) [2000] FCA 1598 Health Insurance Commission v Trustee in Bankruptcy of the Estate of Alekozoglou [2003] FCA 848…
Young v Thomson [2017] FCAFC 140
Citation 3

…ee) [2009] FCAFC 20 Furs Ltd v Tomkies (1936) 54 CLR 583 Gray v Clout (1990) 27 FCR 141 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Kioa v West (1985) 159 CLR 550 Macchia v Nilant [2001] FCA 7, (2001) 110 FCR 101 Miles v O…
Szepesvary v Weston (Trustee), in the matter of Szepesvary (Bankrupt) [2017] FCA 344
Citation 4 (Para 29)

…has done anything wrong. His decision may, on the material before him, have been quite correct and reasonable: Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently: Healey v Prentice (No 2) [2000] FCA 15…
Young v Thomson (Trustee), in the matter of Young (Bankrupt) (No 2) [2017] FCA 8
Citation 5 (Para 12)

…nt information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141 at 144 per Pincus J). 4.The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt’s es…
Albert, in the matter of Albert (Bankrupt) v Lock (Trustee) [2016] FCA 1547
Citation 6 (Para 34)

…e has done anything wrong. His decision may, on the material before him, have been quite correct and reasonable: Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently: Healey v Prentice (No 2) [2000] FCA…
Wangelin v van der Velde [2016] FCA 410
Citation 7 (Para 1)

…to account information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4.The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrup…
Cetinkaya and Anor v Official Trustee in Bankruptcy and Anor and; Unal v Official Trustee in Bankruptcy and Ors and; Official Trustee in Bankruptcy v Cetinkaya and Ors [2014] FCCA 1389
Citation 8 (Para 6)

…e trustee has done anything wrong. His decision may, on the material before him, have been quite correct and reasonable: Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently: Healey v Prentice (No 2) [20…
Foyster v Prentice [2008] FMCA 757
Citation 9 (Para 33)

…Gray v Clout (1990) 27 FCR 141 is authority for the proposition that there is no universal right to reasons from the trustee.…
Moore v Macks [2007] FCA 10
Citation 10 (Para 28)

…ount information which was not available to the trustee at the time of an impugned act, omission or decision ( Gray v Clout (1990) 27 FCR 141, 144 per Pincus J). 4.The exercise of the discretion is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt’s es…
Dunwoody v Official Receiver [2005] FMCA 1634
Citation 11 (Para 7)

…to find that the trustee has done anything wrong. His decision may, on the material before him, have been quite correct and reasonable - Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently - Healey v Pr…
In the matter of the Bankrupt Estate of Henry Harland Hudson [2004] FCA 172
Citation 12 (Para 17)

…se its jurisdiction under s 178 of the Act, it is not necessary for an applicant to establish that the trustee has done anything wrong ( Gray v Clout (1990) 27 FCR 141). It is sufficient that justice and equity require the Court’s intervention ( Healey v Prentice (No 2) 2000 FCA 1598).…
Jambrecina v Official Trustee in Bankruptcy [2003] FCA 1352
Citation 13 (Para 19)

…Deane J). A decision can be made under s 178 even though the trustee has not acted unreasonably or incorrectly ( Tyndall; Gray v Clout (1990) 27 FCR 141 at 144) or even if subsequent information comes to light to cause the trustee’s decision to be reviewed ( Bethune v Newman (1996) 19 ACSR 99 (‘ Bethune ’) at 102).…
Macchia v Nilant [2001] FCA 7
Citation 14 (Para 4)

…ything wrong. His decision may, on the material before him, have been quite correct and reasonable – Gray v Clout (1990) 27 FCR 141 at 144 (Pincus J). On the other hand, it is not to the point that the judge who hears a review application might have acted differently – Healey v Prentice(No 2) [2000] FCA 1598 (Madgwi…
Re Malouf, Gregory John a bankrupt Malouf, G [1998] FCA 1427
Citation 15

…I was also referred by Mr Nicholson to the judgment of Pincus J in Gray v Clout (1990) 27 FCR 141, at 144. Pincus J said this:…
Re Haskins, David & Anor Haskins, David & Anor The Official Trustee in Bankruptcy [1996] FCA 242
Citation 16

…Re Tyndall (1977) 30 FLR 6 Re Stelnicki (1982) 62 FLR 430 Re Wheeler (1994) 54 FCR 166 Gray v. Clout (1990) 27 FCR 141 The Antaios [1985] AC 191 The Nema [1982] AC 724…
Re Brewer, R.J. Ex parte Eurodollar P/L & ors v Donnelly, M.C. & ors [1992] FCA 615
Citation 17

…Gray v Clout (1990) 27 FCR 141…

See all citing cases →

Cases Cited

G K N Kwikform Services Pty Ltd v Commonwealth of Taxation [1990] FCA 476
Citation 1

…Re: JOHN ARTHUR NICOL GRAY And: DAVID LEWIS CLOUT No. Q G121 of 1990 FED No. 759 Administrative Law - Bankruptcy 27 FCR 141/21 ALD 510…
Burswood Management Ltd v The Attorney-General of the Commonwealth of Australia [1990] FCA 287
Citation 2

…Opposing counsel, on the other hand, said that the provision should be read broadly, and relied upon the decision of the Full Court in Burswood Management Limited v. Attorney-General (1990) 94 ALR 220. That was a case in which the Court held that a decision relating to the costs of proceedings, and …
Burswood Management Ltd v Attorney-General (Cth) [1990] FCA 203
Citation 3

…nd, said that the provision should be read broadly, and relied upon the decision of the Full Court in Burswood Management Limited v. Attorney-General (1990) 94 ALR 220. That was a case in which the Court held that a decision relating to the costs of proceedings, and more particularly financial assistance towards cos…

Legislation Cited

Administrative Decisions (Judicial Review) Act 1977 (Cth) 13
2 mentions
Bankruptcy Act 1966 (Cth) 178
2 mentions