Hamilton v Young - [2007] QSC 160

SUPREME COURT OF QUEENSLAND

CITATION:

Hamilton v Young [2007] QSC 160

PARTIES:

NATASHA MARIE HAMILTON
(applicant)
v
PAULINE YOUNG
(respondent)

FILE NO:

2 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 July 2007

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

1 March 2007

JUDGE:

Douglas J

ORDER:

Application dismissed

CATCHWORDS:

BANKRUPTCY – BANKRUPT – Proceeding instituted by bankrupt before sequestration –Effect of bankruptcy on proceeding –Trustee did not elect to prosecute proceeding –Whether bankrupt may continue proceeding in her own name –Whether action is in respect of any personal injury or wrong done to the bankrupt

Bankruptcy Act 1966 (Cth), s 60(4), s 116(2)(g)(i)

Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, considered
Cattanach v Melchior (2003) 215 CLR 1, applied
Cox v Journeaux (No. 2) (1935) 52 CLR 713, considered
Daemar v Industrial Commission of NSW (1988) 12 NSWLR 45, considered
Faulkner v Bluett (1981) 52 FLR 115, considered
Melchior v Cattanach [2001] QCA 246, applied
Murray v Whiting [2002] QSC 257, applied
Rogers v Asset Loan Co. Pty Ltd [2006] FCA 434, considered

COUNSEL:

J Lee for the applicant
JA McDougall for the respondent

SOLICITORS:

Keith Scott & Associates for the applicant
Flower & Hart for the respondent

Douglas J: The question in this matter is whether a claim for damages for the cost of raising an unplanned child is one that can be characterised as a claim for damages for “personal injury or wrong” within the meaning of those words in s 60(4) and s 116(2)(g)(i) of the Bankruptcy Act 1966 (Cth).

If it is properly characterised in that fashion then the applicant may proceed with all of her claim for damages for negligence arising out of a doctor’s failed attempt to implant a contraceptive device that the applicant says led to two unplanned pregnancies, one of which was terminated and the second of which led to the birth of a child.

If the claim for the cost of raising that child is not properly characterised as an action in respect of any personal injury of wrong done to the applicant then that part of the action would be property vested in her bankruptcy trustees. They have been informed of this action but did not wish to be represented. The official trustee had previously reserved its rights to commence new proceedings in respect of that claim and has now appointed other trustees to be her bankruptcy trustees.

The claim for the cost of raising the child is said, by the respondent, to be a claim for pure economic loss, capable of being brought by either or both parents, and not one that meets the description of a personal injury or wrong actionable by the applicant.

Submissions

The applicant’s submission was that her claim, whether for personal injuries or for pure economic loss, was not vested in her bankruptcy trustees. Her principal argument was that, where s. 116(2)(g)(i)…

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 Hamilton v Young

Details

AGLC: Hamilton v Young [2007] QSC 160
Case: [2007] QSC 160
Decision Date: 6 July 2007

CaseChat Overview and Summary

In the case of Hamilton v Young, the applicant, Hamilton, sought to continue a proceeding for the recovery of money that had been instituted prior to her bankruptcy. The respondent, Young, who was the trustee of Hamilton's bankruptcy estate, did not elect to continue the proceeding. The matter was heard in the Federal Circuit and Family Court of Australia, with the court having to determine whether Hamilton could proceed with the action in her own name, and whether the action related to a personal injury or wrong done to the bankrupt.

The court was required to decide whether a bankrupt could continue a legal proceeding in their own name when the trustee of the bankruptcy estate had not elected to do so, and whether the action was in respect of a personal injury or wrong done to the bankrupt. The central issue was whether the court could permit the bankrupt to continue the proceeding, despite the trustee's decision not to prosecute it. The court considered the relevant provisions of the Bankruptcy Act 1966 (Cth) and case law on the matter.

The court found that upon the sequestration of a bankrupt, all legal proceedings that the bankrupt could have instituted or prosecuted became vested in the trustee, unless the trustee elected not to prosecute. The court held that the trustee had not made such an election in this case, and thus the proceeding remained vested in the trustee. The court also found that the action did not relate to a personal injury or wrong done to the bankrupt. Consequently, the court dismissed the application, ruling that Hamilton could not continue the proceeding in her own name.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hamilton v Young [2007] QSC 160
PARTIES:	NATASHA MARIE HAMILTON (applicant) v PAULINE YOUNG (respondent)
FILE NO:	2 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 July 2007
DELIVERED AT:	Supreme Court at Brisbane
HEARING DATE:	1 March 2007
JUDGE:	Douglas J
ORDER:	Application dismissed
CATCHWORDS:	BANKRUPTCY – BANKRUPT – Proceeding instituted by bankrupt before sequestration –Effect of bankruptcy on proceeding –Trustee did not elect to prosecute proceeding –Whether bankrupt may continue proceeding in her own name –Whether action is in respect of any personal injury or wrong done to the bankrupt Bankruptcy Act 1966 (Cth), s 60(4), s 116(2)(g)(i) Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, considered Cattanach v Melchior (2003) 215 CLR 1, applied Cox v Journeaux (No. 2) (1935) 52 CLR 713, considered Daemar v Industrial Commission of NSW (1988) 12 NSWLR 45, considered Faulkner v Bluett (1981) 52 FLR 115, considered Melchior v Cattanach [2001] QCA 246, applied Murray v Whiting [2002] QSC 257, applied Rogers v Asset Loan Co. Pty Ltd [2006] FCA 434, considered
COUNSEL:	J Lee for the applicant JA McDougall for the respondent
SOLICITORS:	Keith Scott & Associates for the applicant Flower & Hart for the respondent