Health Services Union v Jackson (No 3) - [2015] FCA 694

FEDERAL COURT OF AUSTRALIA
Health Services Union v Jackson (No 3) [2015] FCA 694

Citation: Health Services Union v Jackson (No 3) [2015] FCA 694

Parties: HEALTH SERVICES UNION v KATHERINE JACKSON; KATHERINE JACKSON v HEALTH SERVICES UNION

ROBERT ELLIOTT v HEALTH SERVICES UNION; HEALTH SERVICES UNION v ROBERT ELLIOTT, MICHAEL WILLIAMSON AND KATHERINE JACKSON

File numbers: VID 1042 of 2013
NSD 1501 of 2013

Judge: TRACEY J

Date of judgment: 3 July 2015

Catchwords: PRACTICE AND PROCEDURE – bankruptcy – application for leave to proceed under s 58(3) of the Bankruptcy Act 1966 (Cth)

Legislation: Bankruptcy Act 1966 (Cth) ss 55, 58(3), 82(1), 82(2)
Corporations Act 2001 (Cth) s 1317H
Fair Work (Registered Organisations) Act 2009 (Cth) s 307

Cases cited: Health Services Union v Jackson [2014] FCA 1215 – cited
SBA Music Pty Ltd v Hall (No 2) [2014] FCA 1116 – cited
7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328 – cited
Re Rose; Ex parte Devaban Pty Ltd (Unreported, Federal Court of Australia, Hill J, 7 October 1994) – cited

Date of hearing: 3 July 2015

Place: Melbourne

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: Mr MA Irving and Mr T Borgeest

Solicitor for the Applicant: Holding Redlich

Counsel for the Respondent/Third Cross-Respondent: The Respondent/Third Cross-Respondent did not appear

Counsel for the Trustee for the Respondent/Third Cross-Respondent: Mr RD Marshall and Ms J Muir

Solicitor for the Trustee for the Respondent/Third Cross-Respondent: Mills Oakley Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1042 of 2013

BETWEEN:
HEALTH SERVICES UNION
Applicant

AND:
KATHERINE JACKSON
Respondent

AND BETWEEN:
KATHERINE JACKSON
Cross-Claimant

AND: HEALTH SERVICES UNION
Cross-Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

3 JULY 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The trustee of Ms Jackson’s bankrupt estate forthwith file and serve on the Health Services Union a copy of the statement of affairs lodged by her and dated 23 June 2015.
2.The subpoena to give evidence directed to Olga Gountras, which required her attendance on 29 June 2015 be set aside.
3.If and to the extent that it is necessary by reason of the provisions of s 58(3) of the Bankruptcy Act 1966 (Cth), the Health Services Union be granted leave to take fresh steps in and to continue with Federal Court of Australia proceedings VID 1042 of 2013 and NSD 1501 of 2013, including any further interlocutory applications made in those proceedings.
4.The trial be fixed to commence on 7 July 2015 at 10.15 am.
5.Costs reserved.
6.Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 1501 of 2013

BETWEEN:
ROBERT ELLIOTT
Applicant

AND:
HEATH SERVICES UNION
Respondent

AND BETWEEN:
HEALTH SERVICES UNION
Cross-Claimant

AND:
ROBERT ELLIOTT
First Cross-Respondent

MICHAEL WILLIAMSON
Second Cross-Respondent

KATHERINE JACKSON
Third Cross-Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

3…

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.

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Details

Case: [2015] FCA 694
Decision Date: 3 July 2015

CaseChat Overview and Summary

The Health Services Union (HSU) made an application in the Federal Court for leave to proceed with their proceedings against Ms Jackson, who was declared bankrupt. The HSU sought leave under section 58(3) of the Bankruptcy Act 1966 (Cth), arguing that the court should allow them to continue their action against Ms Jackson despite her bankruptcy. The dispute related to proceedings VID 1042 of 2013 and NSD 1501 of 2013, which were ongoing in the Federal Court.

The court had to determine whether the HSU met the criteria set out in section 58(3) of the Bankruptcy Act. This section allows a creditor to continue proceedings against a bankrupt if they can demonstrate that the creditor has a claim that is not dependent on the bankrupt's personal liability and that the claim arose before the bankruptcy. The court needed to consider the nature and origin of the HSU's claims against Ms Jackson, as well as whether these claims fell within the scope of section 58(3).

The court found that the HSU's claims were not contingent on Ms Jackson's personal liability and that they arose prior to her bankruptcy. Consequently, the court granted the HSU leave to proceed with their proceedings. The court also ordered the trustee of Ms Jackson's estate to provide the HSU with a copy of the statement of affairs and set aside a subpoena that had been issued to a third party. The trial was scheduled to commence on 7 July 2015, and costs were reserved for a later determination.

The final orders included the requirement for the trustee to serve a copy of the statement of affairs on the HSU, the setting aside of a subpoena to a third party, the granting of leave to the HSU to continue their proceedings, and the scheduling of the trial. Costs were reserved, and the parties were granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1. The trustee of Ms Jackson’s bankrupt estate forthwith file and serve on the Health Services Union a copy of the statement of affairs lodged by her and dated 23 June 2015.

2. The subpoena to give evidence directed to Olga Gountras, which required her attendance on 29 June 2015 be set aside.

3. If and to the extent that it is necessary by reason of the provisions of s 58(3) of the Bankruptcy Act 1966 (Cth), the Health Services Union be granted leave to take fresh steps in and to continue with Federal Court of Australia proceedings VID 1042 of 2013 and NSD 1501 of 2013, including any further interlocutory applications made in those proceedings.

4. The trial be fixed to commence on 7 July 2015 at 10.15 am.

5. Costs reserved.

6. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

BETWEEN:	ROBERT ELLIOTT Applicant
AND:	HEATH SERVICES UNION Respondent
AND BETWEEN:	HEALTH SERVICES UNION Cross-Claimant
AND:	ROBERT ELLIOTT First Cross-Respondent
MICHAEL WILLIAMSON Second Cross-Respondent
KATHERINE JACKSON Third Cross-Respondent

Citation:	Health Services Union v Jackson (No 3) [2015] FCA 694
Parties:	HEALTH SERVICES UNION v KATHERINE JACKSON; KATHERINE JACKSON v HEALTH SERVICES UNION
ROBERT ELLIOTT v HEALTH SERVICES UNION; HEALTH SERVICES UNION v ROBERT ELLIOTT, MICHAEL WILLIAMSON AND KATHERINE JACKSON
File numbers:	VID 1042 of 2013 NSD 1501 of 2013
Judge:	TRACEY J
Date of judgment:	3 July 2015
Catchwords:	PRACTICE AND PROCEDURE – bankruptcy – application for leave to proceed under s 58(3) of the Bankruptcy Act 1966 (Cth)
Legislation:	Bankruptcy Act 1966 (Cth) ss 55, 58(3), 82(1), 82(2) Corporations Act 2001 (Cth) s 1317H Fair Work (Registered Organisations) Act 2009 (Cth) s 307
Cases cited:	Health Services Union v Jackson [2014] FCA 1215 – cited SBA Music Pty Ltd v Hall (No 2) [2014] FCA 1116 – cited 7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328 – cited Re Rose; Ex parte Devaban Pty Ltd (Unreported, Federal Court of Australia, Hill J, 7 October 1994) – cited
Date of hearing:	3 July 2015
Place:	Melbourne
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Applicant:	Mr MA Irving and Mr T Borgeest
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent/Third Cross-Respondent:	The Respondent/Third Cross-Respondent did not appear
Counsel for the Trustee for the Respondent/Third Cross-Respondent:	Mr RD Marshall and Ms J Muir
Solicitor for the Trustee for the Respondent/Third Cross-Respondent:	Mills Oakley Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1042 of 2013

BETWEEN:	HEALTH SERVICES UNION Applicant
AND:	KATHERINE JACKSON Respondent
AND BETWEEN:	KATHERINE JACKSON Cross-Claimant
AND:	HEALTH SERVICES UNION Cross-Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	3 JULY 2015
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 1501 of 2013