FEDERAL COURT OF AUSTRALIA
Jackson v Health Services Union [2015] FCAFC 188
Citation: Jackson v Health Services Union [2015] FCAFC 188 Appeal from: Health Services Union v Jackson (No 4) [2015] FCA 865 Parties: KATHERINE JACKSON v HEALTH SERVICES UNION File numbers: VID 515 of 2015
VID 516 of 2015Judges: JESSUP, GRIFFITHS AND WHITE JJ Date of judgment: 17 December 2015 Catchwords: INDUSTRIAL LAW – objections to competency to appeals from interlocutory judgments of the Federal Court of Australia (‘FCA’) – where appellant is a bankrupt – where appellant had not sought leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) – appellant’s standing to initiate appeals
PRACTICE AND PROCEDURE – application for adjournment
Legislation: Bankruptcy Act 1966 (Cth) ss 55, 58(3), 82(1), 178
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1E)
Federal Court Rules 2011 rr 36.01, 36.72(2)Cases cited: Bagshaw v Scott [2002] FCAFC 362; (2002) 146 FCR 27
Bourke v State Bank of New South Wales [1995] FCA 1122
Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124
Health Services Union v Jackson (No 2) [2015] FCA 670
Health Services Union v Jackson (No 3) [2015] FCA 6
Health Services Union v Jackson (No 4) [2015] FCA 865
Shannon v Commonwealth Bank of Australia [2014] FCAFC 108Date of hearing: 19 November 2015 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the Appellant: There was no appearance by the appellant Counsel for the Respondent: Mr M Irving Solicitor for the Respondent: Holding Redlich
Table of Corrections 21 December 2015 In paragraph 7, “1.34m” has been replaced with “927,000”.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 515 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KATHERINE JACKSON
AppellantAND: HEALTH SERVICES UNION
Respondent
JUDGES:
JESSUP, GRIFFITHS AND WHITE JJ
DATE OF ORDER:
17 DECEMBER 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The objection to competency be upheld.
2.The appeal be dismissed.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 516 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KATHERINE JACKSON
AppellantAND: HEALTH SERVICES UNION
Respondent
JUDGES:
JESSUP, GRIFFITHS AND WHITE JJ
DATE OF ORDER:
17 DECEMBER 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The objection to competency be upheld.
2.The appeal be dismissed.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 515 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KATHERINE JACKSON
AppellantAND: HEALTH SERVICES UNION
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 516…
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- Jackson v Health Services Union [2015] FCAFC 188
- Case
- [2015] FCAFC 188
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether Ms Jackson had standing to bring the appeals in her own name, given that she was a bankrupt and had no financial interest in the proceedings. The court considered whether Ms Jackson had discharged the burden of establishing the competency of her appeals, and whether she had standing to challenge the interlocutory orders made in the proceedings. The court noted that, in Cummings and Bagshaw, it was held that a bankrupt has no financial interest which would confer locus standi to appeal in their own name against a judgment. The court also considered whether Ms Jackson had standing to bring the appeals on the basis of the effect of the primary judge's findings on her personal reputation, and rejected this contention.
The court held that the objections to competency should be upheld, as Ms Jackson had not discharged the burden of establishing the competency of her appeals. The court found that, having regard to authorities such as Cummings and Bagshaw, Ms Jackson had no financial interest which gave her standing to appeal in her own name. Additionally, the court held that any right of appeal in respect of the interlocutory orders had vested in her trustee in bankruptcy, and Ms Jackson had no standing to bring the appeals. The court rejected Ms Jackson's contention that she had standing to bring the appeals on the basis of the effect of the primary judge's findings on her personal reputation.
The court dismissed the appeal and made no order as to costs. The Full Court's decision in Jackson v Health Services Union is an important reminder that a bankrupt has no financial interest which would confer locus standi to appeal in their own name, and that any right of appeal in respect of interlocutory orders vests in the trustee in bankruptcy. The decision also highlights the importance of establishing the competency of an appeal, and the potential consequences for an appellant who fails to do so.
Orders
Orders of the court
1. The objection to competency be upheld.
2. The appeal be dismissed.
3. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Secondly, Ms Jackson submitted that the primary judge’s findings reflected adversely on her personal reputation, and that those matters did not vest in her trustee in bankruptcy; however, she submitted that she had standing to challenge those “underlying factual findings”. Consideration and disposition of the objections to competency For the following reasons, HSU’s objections to competency must be upheld. First, it is incontrovertible that Ms Jackson has the burden of establishing the competency of her appeals (see r 36.72(2) of the FCRs). The HSU submitted that the Court should find that this burden was not discharged simply because Ms Jackson did not file her written submissions by the appointed time. That submission should not be accepted in circumstances where the Court subsequently extended the time within which that was to occur. There are other reasons, however, why Ms Jackson has failed to discharge her burden. Secondly, as noted above, Ms Jackson did not contest the HSU’s primary submission that, having regard to authorities such as Cummings and Bagshaw, she had no financial interest which gave her standing to appeal in her own name. As the plurality observed in Cummings at [13] (footnotes omitted):So far as a judgment entered in an action against a bankrupt creates or evidences a provable debt, we respectfully agree that the bankrupt has no financial interest which would confer locus standi to appeal in his own name against the judgment. That is because it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts. It may be noted that Cummings involved appeals against a judgment which had been entered against the appellants. In the proceedings here, the orders made by the primary judge on 19 August 2015 were entered on 19 November 2015. Thus Cummings is directly in point. In any event, having regard to the definition of “provable debt” in s 82(1) of the Bankruptcy Act we strongly doubt that it would have made any difference to the outcome of the HSU’s objections to competency if, final orders having been made by the primary judge, they had not formally been entered. Thirdly, as to that part of the appeals which relates to the dismissal of Ms Jackson’s cross-claim, we accept the HSU’s submission that this claim was part of Ms Jackson’s property and vested in her trustee when she became a bankrupt. Any right of appeal in respect of that self-executing order also vested in the trustee and Ms Jackson has no standing (see Cummings at [13]-[14] and Bagshaw at [26]-[32]). Fourthly, Ms Jackson’s contention that she had standing to bring these appeals because the primary judge made adverse findings which affected her personal reputation should not be accepted for the following reasons. The first reason is that her contention is inconsistent with Cummings. In that case, the appellants made a similar submission to the effect that, independently of the trustee’s interests, the effect on their personal reputation of the trial judge’s findings that they had been involved in conspiracy to defraud, deceit and contraventions of statutory obligations not to engage in misleading or deceptive conduct gave them standing to appeal. Both the plurality and the minority in Cummings rejected that submission, albeit on different grounds: (a)at [14] of Cummings, the plurality observed that if a trustee declined to sue or appeal against such a judgment, the appropriate relief for the bankrupt was to make an application under s 178 of the Bankruptcy Act and the Court could make an order “as it thinks just and equitable”. The plurality did not consider that a bankrupt’s personal reputation provided a sufficient basis for standing independently of an order made under s 178; and(b)at [29], the minority in Cummings (Dawson and Toohey JJ) stated that findings of conspiracy to defraud, deceit and contraventions of such statutory obligation could affect the appellants’ reputations, but such findings were made in the course of arriving at orders to be made and (footnotes omitted):Although they affect reputation, they are not themselves a “personal injury or wrong done to the bankrupt” which could form the basis for a separate cause of action”.