Griffiths, R.F. v Civil Aviation Authority

[1994] FCA 938

ROY FREDERICK GRIFFITHS v. CIVIL AVIATION AUTHORITY
No. QG82 of 1994
FED No. 938/94
Number of pages - 2
Dismissal of Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Dismissal of Appeal - statutory right to appeal - institution of appeal after sequestration - whether statutory right of appeal is property which vested in trustee.

Federal Court Rules O 52, r 18
Bankruptcy Act 1966 s 60

Fuller v. Beach Petroleum NL and Anor (1993) 43 FCR 60

HEARING

BRISBANE, 1 December 1994
#DATE 2:12:1994

Counsel for the Applicant: Mr D.P. O'Gorman

Solicitors for the Applicant: L.W. Hewitt

Counsel for the Respondents: Mr D.G. Ryan

Solicitors for the Respondents: Mallesons Stephen Jacques

ORDER

The Court Orders That:
1. The appeal be dismissed as incompetent.
2. The appellant pay the respondent's costs of the motion and
of the appeal to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

KIEFEL J The Civil Aviation Authority is the respondent to an appeal instituted by Mr Griffiths on 28 June 1994 and moves the Court on notice under O 52 r 18 for a dismissal of the appeal as incompetent on the basis that, prior to its institution, Mr Griffith's property had been sequestrated.

1. The appeal to this Court was from a decision of the Administrative Appeals Tribunal affirming the decision of the Civil Aviation Authority varying Mr Griffith's licences to fly helicopters and aeroplane by imposing restrictions. The relevant dates are:
   

8/2/94 Hearing concluded before the

Tribunal and decision reserved 18/5/94 Sequestration

31/5/94 Tribunal delivers its decision 28/6/94 Notice of Appeal filed

1. As Mr Ryan for the respondent observed in his submissions the chronology bears a striking resemblance to the sequence of events in Fuller v. Beach Petroleum NL and Anor (1993) 43 FCR 60. The majority of the Full Court (Gummow and Whitlam JJ) there held that an appeal was an action commenced within the meaning of s 60 of the Bankruptcy Act. Where it was brought after, and not before, sequestration it was not then governed by the provisions as to the stay of proceedings in s 60, and the matter fell to be determined on the question whether the statutory right of appeal was "property" which vested in the trustee. In that regard the majority held that the statutory right to prosecute the appeal given by s 24 of the Federal Court Act fell within the meaning of the expression "personal property of every description" and therefore within the definition of "property" in s 5(1), as a result of which it vested in the bankrupt's trustee. That was so, in their Honour's view, even though the statutory right of appeal they were there concerned with was from a judgment creating a liability in the bankrupts (and involving findings of personal misconduct). In particular (66,67) their Honours pointed to the exclusion in s 116 from property divisible amongst the creditors of particular actions, from which it might be concluded that were it not for the exclusion bare rights of action, not ordinarily assignable, were nevertheless to be treated as property divisible amongst the creditors and therefore as property which vested under s 58(1). In their Honour's view such a result was consistent with what was perceived to be the policy of the Bankruptcy Act that "after sequestration of the estates of unsuccessful litigants the successful party not be put at the risk of sustaining further costs of appellate litigation".

2. Mr O'Gorman who appeared for Mr Griffiths raised the question of the nature of the right or interest in the licences which were the subject of appeal although he did not press the submission. The effect of the Tribunal's decision, upholding a finding that Mr Griffiths was not a fit and proper person to have an unrestricted licence, seriously curtails his ability to earn an income. It is a matter in which creditors might also have an interest although the trustee here has been notified of the respondent's intention to bring this motion but this has elicited no response and I infer then that the trustee has no interest in the matter.

3. In Fuller Hill J in a dissenting judgment was of the view that the subject matter of the action in question could not be regarded as "property" and was not property divisible among creditors and further than the bankruptcy legislation did not vest a "bare right of action" in the trustee. His Honour (73) did not consider it correct to widen the interpretation of s 116(1) by reference to the exclusion provisions. As against the policy view expressed by the majority His Honour pointed to the inability of the bankrupt to pursue an appeal which involves findings of fraud against the bankrupt and that questions of costs could be addressed on a motion for security for costs. With respect to the majority, I consider there is much force in the reasons for judgment of Hill J and were I free to conclude the matter otherwise I would be inclined to follow them. The decisions of Gummow and Whitlam JJ however stand as the decision of the Full Court in relation to bankrupt's rights of appeal regardless of its subject matter.

4. I therefore order that the appeal be dismissed as incompetent.