Jones v Porter

Case [2022] FCA 1219


FEDERAL COURT OF AUSTRALIA

Jones v Porter [2022] FCA 1219

File number(s): NSD 169 of 2021
Judgment of: CHEESEMAN J
Date of judgment: 14 October 2022
Catchwords: PRACTICE AND PROCEDURE – where the competency of the appeal from a decision of the then Federal Circuit Court to refuse an application for an inquiry under s 90-15 of the Insolvency Practice Schedule (Bankruptcy), Sch 2 to the Bankruptcy Act 1966 (Cth) into the administration of the bankrupt estate was challenged by the respondents – whether leave to appeal required – whether judgment below is interlocutory or final – Held: appeal dismissed as incompetent.
Legislation:

Bankruptcy Act 1966 (Cth), ss 30, Sch 2, 90-10

Federal Court of Australia Act 1976 (Cth), ss 24(1)(d), 24(1A)

Insolvency Law Reform Act 2016 (Cth)

Cases cited:

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225

Borg v de Vries (Trustee), in the matter of the Bankrupt Estate of David Morton Bertram [2018] FCA 2116

Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246

Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43

Frigger v Trenfield (No.10) [2021] FCA 1500; 397 ALR 24

Hall v Poolman [2009] NSWCA 64; 75 NSWLR 99

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564

Macchia v Nilant [2001] FCA 7; 110 FCR 101

Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; 119 ALR 206

O’Neill v Piscopo (No 3) [2012] FCA 1036

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; 361 ALR 8

Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262

Re Gault; Gault v Law (1981) 57 FLR 165

Vink v Tuckwell [2008] VSCA 204; 68 ACSR 265

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 39
Date of hearing: Determined on the papers.
Counsel for the Appellant: The appellant is self-represented in the proceedings.
Counsel for the Respondents: Mr A Spencer

ORDERS

NSD 169 of 2021
BETWEEN:

RICHARD JONES

Appellant

AND:

JASON PORTER

First Respondent

PAUL WESTON

Second Respondent

ORDER MADE BY:

CHEESEMAN J

DATE OF ORDER:

14 OCTOBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed as not competent.

2.The appellant pay the respondents’ costs.

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


REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

  1. These reasons address an objection to the competency of an appeal from a judgment of the Federal Circuit Court (now the Federal Circuit and Family Court of Australia) in which the Circuit Court refused to order an inquiry into the administration of the appellant’s bankrupt estate: Jones v Porter [2021] FCCA 234 (PJ).

  2. The proceedings in this Court have a protracted history. The conduct of the proceedings has been impacted by the arrangements put in place to manage the…

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AGLC
Jones v Porter [2022] FCA 1219
Case
[2022] FCA 1219
Decision Date

CaseChat Overview and Summary

In the case of Jones v Porter, the appellant, Mr Jones, sought to appeal against the refusal of an application for an inquiry into the administration of a bankrupt estate, as per section 90-15 of the Insolvency Practice Schedule (Bankruptcy), schedule 2 to the Bankruptcy Act 1966 (Cth). The respondents, the trustees, challenged the competency of the appeal, arguing that it required leave to proceed. The primary issue before the court was whether the judgment of the primary judge was interlocutory or final, and consequently, whether leave to appeal was necessary.

The court considered the relevant statutory provisions and relevant case law, including authorities relating to the former section 179 of the Bankruptcy Act and the former section 536 of the Corporations Act. The court held that the decision of the primary judge to refuse an inquiry under section 90-10 of schedule 2 to the Act was an interlocutory decision. As such, leave to appeal was required, and the appeal was deemed incompetent because Mr Jones had not sought leave to appeal. The court dismissed the appeal and ordered that the appellant pay the respondents' costs.

The court found that the decision of the primary judge did not preclude a further application for an inquiry being brought in the future. The authorities relied on by the respondents demonstrated that decisions made under similar provisions in the past were interlocutory. Mr Jones' argument that the decision should be characterised as final was rejected, as the court found no legal basis to preclude a future application. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.

Orders

Orders of the court

1. The appeal be dismissed as not competent.

2. The appellant pay the respondents’ costs.

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

The decision of the primary judge does not preclude a further application for an inquiry being brought in the future. While it is correct that as a matter of practicality any future application may be struck out if it is an abuse of process, the decision of the primary judge does not, as a matter of law, preclude such an application being made. Consistently with the authorities in respect of the former s 179 of the Act and the former s 536 of the Corporations Act, and for the reasons given, I am satisfied that the decision of the primary judge to refuse to order an inquiry under s 90-10 of schedule 2 to the Act is an interlocutory decision. There is no appeal from an interlocutory decision except by leave: FCA Act, s 24(1A). Mr Jones was provided with an opportunity to make an application for leave and declined to make the application. The appeal is incompetent and must be dismissed with costs.CONCLUSION For the reasons given, I will make orders dismissing the proceedings.

Ratio Decidendi

Legal Principle Established

The trustees relied on authority in respect of the now repealed s 179 of the Bankruptcy Act 1966 (Cth), the predecessor of s 90-10. Those authorities determined that decisions made under s 179 in relation to an inquiry into the conduct of the bankruptcy trustee were interlocutory and thus attracted the requirement for leave to appeal. The trustees also relied on authority to similar effect in relation to the analogous provision in respect of an inquiry into the conduct of a liquidator under the now repealed s 536 of the Corporations Act 2001 (Cth). Mr Jones sought to distinguish the authorities relied on by the respondents in respect of the former s 179. His principal contention was that the primary judge’s decision should be characterised as final because the orders made by the primary judge dismissed the application for an inquiry “in toto”. He further submitted that, contrary to the respondents’ contention, the primary judge’s decision precluded him from bringing a further application for an inquiry into the trustees’ conduct and that was another reason that the decision should be characterised as final. Section 30(2) of the Act relevantly provides:(2)The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched. Section 90-10 of the Insolvency Practice Schedule (Bankruptcy), schedule 2 to the Act, relevantly provides:(1) The Court may, on the application of a person mentioned in subsection (2), inquire into the administration of a regulated debtor’s estate.(2) Each of the following persons may make an application for an inquiry:(a) a person with a financial interest in the administration of the regulated debtor’s estate;(b) if the committee of inspection (if any) so resolves—a creditor, on behalf of the committee;(c) the Inspector‑General.… Section 90-10 was introduced into the Act by the Insolvency Law Reform Act 2016 (Cth), with one of its objects being to create common rules applicable to both corporate and personal insolvencies. The introduction of common provisions in the Corporations Act and the Act means that decisions under each legislation are of assistance in the application of the other: see Borg v de Vries (Trustee), in the matter of the Bankrupt Estate of David Morton Bertram [2018] FCA 2116 at [24]–[28]; Frigger v Trenfield (No.10) [2021] FCA 1500; 397 ALR 24 at [552]. Prior to the introduction of the Insolvency Practice Schedule (Bankruptcy) (which is schedule 2 to the Act), the power of the Court to order an inquiry was contained in s 179(1) of the Act. Section 179(1) provided:179 Control of trustees by the Court(1) The Court may, on the application of the Inspector‑General, a creditor or the bankrupt, inquire into the conduct of a trustee in relation to a bankruptcy and may do one or both of the following:(a) remove the trustee from office; and(b) make such order as it thinks proper.