Julie McEwan v Daniel Burke

[2023] QSC 114

SUPREME COURT OF QUEENSLAND

CITATION:

Julie McEwan v Daniel Burke & Others [2023] QSC 114

PARTIES:

JULIE MCEWAN

(applicant)

v
DANIEL BURKE

(first respondent)

ANDREW HEERS
(second respondent)

AFSA – OFFICIAL TRUSTEE
(third respondent)

FILE NO/S:

3408/23

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2023; Further written submissions received by the first and third respondents on 10 May 2023; and by the applicant on 11 May 2023.

JUDGE:

Muir J

ORDER:

Subject to hearing further from the parties about any necessary leave to amend the name of the third respondent and about the issue of costs, it is declared and ordered that:

1.   The Supreme Court of Queensland does not have jurisdiction to hear and determine the originating application filed on 17 March 2023.

2. The originating application filed 17 March 2023 is transferred to the Federal Court of Australia pursuant to s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

3.   The applications for disclosure filed by the applicant in this proceeding are dismissed.

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – whether matters claimed by the bankrupt fall within the exclusive jurisdiction of the Federal Court and the Federal Circuit Court

BANKRUPTCY – SUMMARY DISMISSAL – whether a claim by the bankrupt that a discharge objection filed by the trustee is to be declared invalid is within the exclusive jurisdiction of the federal court – whether a claim by the bankrupt that the extension of five years to her bankruptcy term as authorised by the trustee be reversed is within the exclusive jurisdiction of the federal court – whether a claim for compensatory, aggravated and exemplary damages against the bankrupt’s current and former relevant trustee arising from the discharge objection, the extension of the bankruptcy term and the trustees overall conduct is within the exclusive jurisdiction of the federal court

TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION – SPECIAL FEDERAL MATTERS – whether the Jurisdiction of Courts (Cross-vesting) Act 1987 gives the Supreme Court jurisdiction to hear the applicant’s claim – whether the claim is a special federal matter – whether a special federal court matter must be transferred to the Federal Court of Australia

Cordes v Dr Peter Ironside Pty Ltd [2009] 2 Qd R 235
Fardon v Attorney-General (Qld) (2004) 210 ALR 50

Jakimowicz v Jacks [2016] VSCA 42

Montgomery v Porter [2021] NSWSC 1378
Scott v Bagshaw [2000] 99 FCR 573

McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547

Meriton Apartments & Anor v Industrial Court of New South Wales & Anor (2008) 171 FCR 380
Re Ansett; Ex parte Ansett v Pattison (1995) 56 FCR 526
Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174
Turner v Gorkowski (2014) 285 FLR 66
Wright and Others v Nixon [2015] QSC 357

Bankruptcy Act 1966 (Cth)
Constitution of Queensland 2001
Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

The applicant appeared on her own behalf
CJ Conway for the first and third respondents

Mr S Williamson (sol) for the second respondent

SOLICITORS:

The applicant appeared on her own behalf
Thomson Geer Solicitors for the first and third respondents
Sparke Helmore Lawyers for the second respondent

Introduction

1. Ms Julie McEwan (who is also known as ‘Julie Anne-Marie Van Eps’ and ‘Julie Anne-Maree Vaneps’[1]) is an undischarged bankrupt. By way of an originating application and a supporting affidavit filed on 17 March 2023, she initiated a proceeding in this court against the first respondent, Mr Daniel Burke who is the acting director of the Official Trustee in Bankruptcy (employed by the Australian Financial Security Authority (AFSA)); the second respondent, Mr Andrew Heers, one of the former trustees of her bankrupt estate; and the third respondent, the Official Trustee (who is her current trustee in bankruptcy).[2] The relief sought by Ms McEwan includes declarations that the discharge objections filed by Mr Heers (and the consequential extension of her bankruptcy by five years) are invalid and should be set aside. She also claims compensatory, aggravated and exemplary damages in the sum of $175,000.00 against all three respondents for their variously alleged unreasonable, vexatious and malicious conduct towards her in their respective roles during the course of her bankruptcy. 

   [1]As per the Sequestration Order.

   [2]Nothing was said to particularly turn on it but the respondents pointed to the third respondent being incorrectly named in the court heading. 

2. By an interlocutory application made pursuant to r 16 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”), the respondents seek a declaration that the proceeding has not been properly started for want of jurisdiction and that it should be set aside, struck out or dismissed.[3] Ms McEwan opposes this application and maintains that this court has jurisdiction to hear (and should hear) her claims, relying on the provisions of the Bankruptcy Act 1966 (Cth), Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), and the Constitution of Queensland 2001. Upon jurisdiction being established she also seeks orders for disclosure against the respondents and other non-parties.[4]

   [3]This application is filed by the first and third applicants (who are separately represented to avoid

   protracted argument over alleged issues of conflict raised by Ms McEwan). The second respondent’s solicitor appeared at the application and supports the application by the other respondents.  For convenience, I have therefore referred to the trustee respondents as the respondents.

   [4]Pursuant to an application filed on 17 March 2023. Nothing turns on it, but it appears that the same application was filed again on 27 April 2023 and then again on 5 May 2023.

   Preliminary issue

3. During the hearing on 8 May 2023, the respondents’ submissions were underpinned by the following two contentions:

   (a)First, that “these are proceedings that arise under or by virtue” of the Bankruptcy Act and “the Federal Courts have exclusive jurisdiction over them”;[5] and

   (b)Secondly, that “this proceeding is a special federal matter and as such must be commenced in the Federal Court”.[6]

   [5]Submissions of the first and third respondents  at para 22.

   [6]Submissions of the first and third respondents  at para 30.

4. After the hearing, I reserved my decision. But after an initial consideration of the respective arguments and upon a plain reading of the Cross-vesting Act, some confusion in the parties’ contentions emerged.  

5. That is, on the one hand, the respondents submitted that the Cross-vesting Act has no application because the proceeding is a special federal matter and yet they also submitted that the court should “have regard” to ss 3 and 6 of the Cross-vesting Act as providing some “general rules” in relation to “special federal matters” including that “matters must be transferred to the Federal Court unless the court is satisfied there are special reasons for hearing it other than the reasons that are relevant to the convenience of the parties.”[7]  

   [7]T1040 lines 33 to 38.

6. But on the other hand, the respondents submitted as follows:[8]

   “If there’s no jurisdiction, there’s no jurisdiction. The Cross-vesting Act might allow for matters to be transferred where correct process has been followed, but this matter has been commenced in the wrong forum, so cross-vesting laws don’t remedy that where there’s no application for transfer and where the reasons for being in this forum relate to convenience…”[9].

   [8]T1-40 lines 43 to 48; Also see T1-40 lines 29 to 42 and T 1-40 lines 1 to 20.

   [9]With reference to Wright and Others v Nixon [2015] QSC 357 per Atkinson J; But this case does not in my respectful view support the respondents’ submission on this point rather it supports a contrary position – that is if I am satisfied that this is a special federal matter – I must transfer it to the Federal Court.

7. These submissions appear to be inconsistent. I therefore sought further submissions from the parties about whether – if I were to find that this court does not have jurisdiction to hear the proceeding and I was satisfied that this was a special federal matter – the proceeding must be transferred to the Federal Court under s. 6 of the Cross-vesting Act.[10]

   [10]My associate’s email to the parties is marked for identification “a”.

8. In response to my request:

   (a)The respondents reiterated that the proceeding is a special federal court matter within the meaning of s 3(1) (e) of the Cross-vesting Act but submitted that the mandatory provisions of the Cross-vesting Act have no application in the present case as that Act was not properly engaged by Ms McEwan under Chapter 2 Part 7 of the UCPR; that their submissions referring to the Cross-vesting Act were only made by way of reply; and that where there was no application to transfer by either party under that Act, the court need not consider the matter of transfer further.[11]

   (b)Ms McEwan reiterated her earlier submissions about this court’s jurisdiction. But she also sought leave (if necessary) to amend her originating application to include a reference to the Cross-vesting Act and otherwise (reluctantly) requested a transfer of the proceedings to the Federal Court.[12]  

   [11]Supplementary submissions of the first and third respondents filed 10 May 2023. The respondents submitted that if Ms McEwan had sought to engage the Cross-Vesting Act in an orthodox way, the proceedings ought to have been commenced under Chapter 2 Part 7 of the UCPR. The respondents specifically referred to there being no application to transfer the proceeding out of the Supreme Court pursuant to this Act; and that there was no application under r 53(6) of the UCPR for particulars or notices as required by r 54 of the UCPR, and that the mandatory application for directions under r 56 of the UCPR had not been made or served.

   [12]See Ms McEwan’s written submissions (headed respondent’s submissions) filed on 11 May 2023.

9. Having considered this matter further, I reject the respondents’ submissions that this court does not need (or ought not) consider the transfer of the proceeding under s 6 of the Cross-vesting Act (or at all) for five reasons:

   (a)First, while there is no reference to the relevant provisions of the UCPR or the Cross-vesting Act on the face of the originating application, Ms McEwan’s written submissions of 22 March 2023 expressly refer to s 4 and s 11 of the Cross-vesting Act as invoking this court’s jurisdiction (albeit in a misconceived way – as my reasons below under that heading reveal); and her written submissions also expressly refer to UCPR r 53 and set it out in full as follows:

   “Rule 53 Starting proceedings

   (1) A proceeding in which a party relies on the cross-vesting laws must be started under this part.

   (2) However, if there is doubt or difficulty about how a proceeding should be started, the court, on application to it, may give directions.

   (3) An application for directions may be made without notice to another person.

   (4) A party who relies on the cross-vesting laws must include in the process by which the laws are invoked a statement identifying each claim or ground of defence about which the cross-vesting laws are invoked.

   (5) A failure to comply with subrule (4)does not invalidate the process.

   (6) If a party who has not complied with subrule (4)wishes to invoke the cross-vesting laws, the court, on application by the party, may give directions.”

   (b)Secondly, I do not accept that the respondents’ submissions about the proceedings being a special federal matter were necessarily made in response to Ms McEwan’s misconceived reliance on s 4 and s 11. Rather, both the respondents’ written and oral submissions expressly relied upon the definition of a special federal matter under the Cross-vesting Act to support their (ultimately correct) submission that this court does not have jurisdiction to hear this proceeding. For example, the respondents written submissions (relied upon at the hearing) culminated in the following proposition being made:

   ‘”[t]he crux of the matters sits wholly within the operation of the Bankruptcy Act 1966. Accordingly because is it a special federal matter, it must be heard in the Federal Court”;[13]

   (c)Thirdly, and as can be seen from the previous two reasons, the issue of the application and relevance of the Cross-vesting Act was squarely in issue and ventilated before me. Further and by way of example:

   (i)Ms McEwan’s submissions in reply of 5 May 2023, referred to the Cross-vesting Act as empowering the Supreme Court to hear matters relating to bankruptcy. She also challenged the respondents’ claim that the proceeding was a special federal matter – submitting that it did not fall within that meaning as defined under the Cross-vesting Act; and

   (ii)When pressed about whether it was necessary for this Court to consider whether the matter was a special federal court matter, it was submitted on behalf of the respondents that the Cross-vesting Act had no application because the matter is a special federal matter which must be heard in the Federal Court.

   (d)Fourthly, I accept Ms McEwan failed to comply with UCPR rrr 53, 54 and 56.[14] However, given that the history of the matter leading up to the hearing before me included two reviews before other judges and in light of the way the case was ultimately ventilated before me, I find her noncompliance to be a technical one.[15]

   (e)Fifthly, I find that Ms McEwan’s technical non-compliance with UCPR rrr 53, 54 and 56 is an irregularity which under UCPR r 371, does not render the originating proceeding a nullity. This finding is consistent with the interests of justice and the philosophy of UCPR r 5.

   [13]Submissions of the first and third respondents dated 21 April 2023 at para 22. The reference to special federal matter being to that expression as defined under the Cross-vesting Act. 

   [14]Rule 54 provides inter alia for the determination of proceedings that raise for decision a special federal matter and that either the plaintiff or the defendant are to give particulars of the special matter required under r 53(4); Rule 56 provides (amongst other things) that an application for directions must be made by the party seeking to invoke the cross-vesting laws.

   [15]On 22 March 2023, the applications judge (Justice Kelly) ordered that the proceeding be placed on the self-represented supervised case list. He also made various directions for the hearing of Ms McEwan’s applications including directions about the respondents filing an application for the summary dismissal of the proceedings and the exchange of written submissions; On 29 March 2023, the applications came before the supervised case list (self-represented litigant) judge (Justice Freeburn), who then listed the hearing of the respondents’ current application and Ms McEwan’s application for disclosure to a date to be fixed. Those hearing were then allocated a hearing date of 8 May 2023.

10. I am therefore satisfied that the issue of the potential transfer of the proceedings to the Federal Court is a live issue for my determination in this case.  

Issues for my determination

1. It follows that the following three questions potentially emerge for my determination:

   (a)First: Does this court have jurisdiction to hear Ms McEwan’s claims? 

   (b)Secondly: If this court has jurisdiction, should the requested orders for disclosure be made?

   (c)Thirdly:  If this court does not have jurisdiction to hear the claims, should the proceeding be transferred to the Federal Court?  

2. The answers to these questions are relevantly informed by an understanding of the relevant background and the nature of the claims (and relief) sought by Ms McEwan in this jurisdiction.[16]   

   [16]As elicited from Ms McEwan’s supporting affidavit material and from her written and oral submissions.

   Relevant Background

3. Ms McEwan was made a bankrupt on 26 November 2019 following a sequestration order being made in the Federal Court at Brisbane at the request of a petitioning creditor, Mr Guiseppe Pulitano.[17] The sequestration order was underpinned by a judgment obtained by Mr Pulitano against Ms McEwan in the Brisbane Supreme Court on 1 November 2018, following a dispute over the settlement of a property.[18]

   [17]The full name of the petitioning creditor being Giuseppe Pulitano as trustee for 4-8 Welwyn Crescent

   Trust.

   [18]Although, I note Ms McEwan identified the root cause of her bankruptcy to stem from a false complaint made to the police about her by the Brisbane Angels.

4. At the time the sequestration order was made, Mr Heers and Mr Mark Pearce from the insolvency firm “Pearce & Heers” were appointed trustees of the bankrupt estate.[19]

   [19]Mr Heers had the day-to-day management of the administration of the bankrupt estate assisted by two

   staff members from the firm “Pearce & Heers”.

5. In August 2021 Ms McEwan was told by Mr Heers that she was required to pay income contributions of $99,555.58. She repeatedly told Mr Heers that she had no money to payout the bankruptcy and that she considered his request to pay income contributions misconceived and without any evidentiary basis. She also wrote and spoke to Mr Heers on numerous occasions including in August 2021, when she accused him of having fabricated and made up the income assessment. During this period Ms McEwan also raised issues of conflict alleging that Mr Pearce and Mr Heers had previously acted for the Brisbane Angels and for Mr Pulitano. Her frustration and lament about what happened is best articulated in her affidavit as follows:

   “ I was set up and framed for fraud, what made matters worse, Pearce and Heers were engaged to control my life and the estate for the duration of the three year bankruptcy.” 

6. In the usual course, the applicant was to be discharged from her bankruptcy on 5 May 2023 (being three years after she lodged her statement of affairs on 4 May 2020).[20]  But on 24 January 2022, Mr Heers lodged notices of objection to discharge, seeking to extend Ms McEwan’s bankruptcy on the basis that Ms McEwan had allegedly failed to pay the income contributions; failed to disclose particulars of income or expected income; and failed to comply with a written request for such information.

   [20]Under s.149 (2) (c) of the Bankruptcy Act 1966.

7. Under the notices of objection, Ms McEwan was entitled to dispute the grounds of objection by requesting the Inspector-General to review Mr Heers decision to lodge objections within 60 days. Ms McEwan did not do this. But instead, on 20 December 2022 (some 11 months after receiving the notices of objection), she submitted an application for review of objection with the AFSA. She was subsequently informed by that authority that this application was out of time.

8. For reasons apparently related to Ms McEwan’s overall dissatisfaction with the administration of her bankrupt estate by her trustees, Mr Heers and Mr Pearce were replaced with the Official Trustee on 7 July 2022.

9. On 4 January 2023, Mr Burke wrote to Ms McEwan and attached a link to the AFSA’s website. Relevantly, this correspondence identified: sections 149K and 149Q of the Bankruptcy Act as entitling Ms McEwan to seek a review of Mr Heers’ decisions (by requesting the Inspector-General to undertake a review of the objections); and that a review of that decision or a refusal to undertake a review, was available in the Administrative Appeals Tribunal.

1. Ms McEwan did not make any attempt to avail herself of either of these processes. Her explanations for why she did not do so were varied.  Ms McEwan obviously knew she was out of time and therefore needed to apply for an extension of time, but I accept that at the time she felt she had no capacity to engage legal representation and that she was “drowning” with issues in her bankruptcy and a number of “other” legal disputes. She also appears to have been under the misapprehension that Mr Heers would “come to reason” and reverse his decision.

2. It is against this background that Ms McEwan decided to litigate for reasons that she unabashedly admitted included “to teach these people never to behave like this again.”[21] She chose the Supreme Court because (in her view) it has jurisdiction to determine disputes in relation to the Bankruptcy Act and it is more convenient, expeditious and easier to navigate as a self-represented litigant than the Federal Court.

   [21]T1-31 line 36.

3. Ms McEwan’s originating application was filed on 17 March 2023, together with an affidavit in support sworn by her.  The relief sought in the originating application is as follows:

   1.     A declaration that the discharge objection filed by the Trustee Andrew Heers be deemed invalid.

   2.     A declaration that the extension of 5 years to the applicant’s bankruptcy terms as authorised by Andrew Heers be reversed to 5 May 2023.

   3.     Costs.

   4.     Compensatory, aggravated and Exemplary Damages $175,000

   Grounds:

   (i)To deter the respondents from repeating the behaviour in the future.

   (ii)Failure to mitigate injury suffered by the applicant.

   (iii)The Trustee Andrew Heers was conflicted when making decisions, he was not objective and should have recused himself and his firm from acting;

   (iv)The extension of 5 years is an abuse of process, grossly unreasonable, malicious and vexatious;

   (v)The Official Trustee failed to act, failed to investigate and failed to protect the rights of the applicant. The Trustee was recklessly indifferent to the injury suffered by the applicant.

   (vi)The applicant was forced to file proceedings to seek a resolution of the matter, otherwise no action would have been taken by either of the Trustees.

   (vii)Pain and suffering, humiliation, injury and abuse caused by the Trustees. The conduct is an abuse in public office.”

4. There are no pleadings in this case. But what emerges from the material (and is consistent with what is stated on the face of the originating application) is that Ms McEwan is seeking declarations and orders that will result in the following three outcomes:

   (a)First, her bankruptcy ending; 

   (b)Secondly, an award of damages to punish and deter the respondents for their role in abuse of process as trustees in allowing the bankruptcy to be maintained and extended; and 

   (c)Thirdly, an award of damages for the pain and suffering she personally endured as a result of the trustees abuse of process as trustees in allowing her bankruptcy to be maintained and extended. 

5. Against this background it is necessary to turn to the first of the three questions that fall for determination.   

Issue one: Does this court have jurisdiction to hear Ms McEwan’s claims?

1. The question of jurisdiction is critical – it is, unsurprisingly, the “first duty of a court.”[22]

   [22]Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 183 [32].

2. The starting point is that Part III Division 2 of the Bankruptcy Act which provides for the “jurisdiction and powers of courts in bankruptcy”. Relevantly, s 27 provides in part as follows:

   “27    Bankruptcy courts 

   (1)     The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than:

   (a)     the jurisdiction of the High Court under section 75 of the Constitution; or

   (b) the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under section 35 or 35A of this Act.”

3. The term “bankruptcy” in relation to jurisdiction or proceedings is defined in s. 5 to mean “any jurisdiction of proceedings under or by virtue” of the Bankruptcy Act.

4. The term “proceeding” is defined to mean “a proceeding under” the Bankruptcy Act.

5. Jurisdiction in bankruptcy (that is, proceedings under or by virtue of the Bankruptcy Act) is vested exclusively in the Federal Court by s.27 of the Bankruptcy Act.[23] But  the conferral of exclusive jurisdiction on a Federal Court does not deprive a state court of the ability to determine matters which are necessary to engage its jurisdiction.[24] Nor does exclusive jurisdiction mean that state courts cease to have jurisdiction as soon as a proceeding acquires a “bankruptcy aspect” to it. For example, if all the court is doing is applying the Bankruptcy Act it is not necessarily exercising jurisdiction in bankruptcy.[25]

   [23]Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380 at 407.

   [24]Meriton Apartments at 388.

   [25]See Jakimowicz v Jacks [2016] VSCA 42.

6. In Cordes v Dr Peter Ironside Pty Ltd [2009] 2 Qd R 235, the Queensland Court of Appeal relevantly observed that the exclusive jurisdiction of the Federal Court ought not be confined to those matters required by a specific provision of the Bankruptcy Act.[26] Rather the court found that a “wide view” of the exclusive jurisdiction conferred by s27(1) of the Bankruptcy Act ought to be taken.[27]

   [26]For example one of the provisions under s.31(1) of the Bankruptcy Act which for example provides inter alia that in exercising jurisdiction under that Act the Court shall hear and determine matters such as applications to set aside or avoid a charge [31(1) (e)] or an application to declare for or against the title of the trustee to any property [31(1) (f)].

   [27]Cordes at 246.

7. The real issue is whether the proceeding filed by Ms McEwan requires the determination or effects a matter falling within the concept of jurisdiction in bankruptcy. That is, whether the proceeding arises “under or by virtue” of the Bankruptcy Act.[28]

   [28]Meriton Apartments at [4], [81] [111] to [114] with reference to Scott v Bagshaw [2000] FCA 816; 99 FCR 573.

8. Before determining this issue, it is necessary to observe that a “matter” is a single justiciable controversy not an individual proceeding.[29]

   [29]Palmer v Ayres (2017) 259 CLR 478 at [26] per Kiefel CJ, Keane, Nettle and Gordon JJ.

9. The respondents submitted that the Federal Court has exclusive jurisdiction over the proceeding but did not point to any particular legislative provision other than that empowering Ms McEwan to apply to extend the time for filing an application for review of the trustees decision.[30] There are conflicting views about whether the Federal Court’s power to review a decision by a trustee to file a notice of objection is limited to questions of law.[31]  However, the Full Court of the Federal Court appears to have left open that question.[32] Overall, I am satisfied that given the nature and effect of the claims, the proceeding is one that falls within the exclusive jurisdiction of the Federal Court exercising its original jurisdiction under the Bankruptcy Act. This finding is consistent with the respondents (two of whom are trustees) submitting it does.

   [30]Section 29(7) of the Administrative Appeals Tribunal Act1975 (Cth).

   [31]Re Ansett; Ex parte Ansett v Pattison (1995) 56 FCR 526; cf Re Ellis: Ex parte Jefferson (FCA, Drummond J QB 1914 of 1993, 17 February 1995, unreported).

   [32]McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547; 119 ALR 253.

10. Whilst I have some concern about how the relief sought in paragraph 4 of the originating application (the claim for damages against the respondents) arises from any reasonable cause of action (in any jurisdiction) – that issue was not the focus of any substantive argument by the parties before me. Overall, I am satisfied that this damages claim is intrinsically linked to the relief sought in paragraph 1 and 2 of the originating application. This finding is consistent with:

    (a)The respondents written submission that Ms McEwan has commenced the proceedings “ in the wrong forum”; that this court “does not have jurisdiction” and that the proceeding should be commenced in the Federal  Court;[33] and

    (b)Both parties concession before me that the claim for damages is not a standalone claim but arises from the declarations sought in paragraph 1 and 2 of the originating application.[34]

    [33]Submissions of the first and third respondents dated 21 April 2023 at paras 16, 30 and 38.

    [34]T1-6 lines 5 to 20.

11. In the present case, the proceedings filed and as articulated by Ms McEwan do not just have a bankruptcy aspect lurking about them, rather the declarations and orders sought seek to strike at the heart of Ms McEwan’s bankruptcy by challenging its length and the decision making and actions of those who acted as trustees.

12. I therefore find that the proceeding is caught by the exclusive jurisdiction provisions of s 27.

13. This is not the end of the matter. McEwan appears to accept that her claims arise “under or by virtue” of the Bankruptcy Act. But she points to three sources of power which she submitted empower this court with jurisdiction to hear her claims. Each of those alleged sources of jurisdiction are addressed in turn under their headings in the following section.

    Other potential sources of jurisdiction    

    Sections 29 and 30 of the Bankruptcy Act.

14. Ms McEwan referred to ss 29 and 30 of the Bankruptcy Act as providing the Supreme Court with the necessary jurisdiction to hear her claims.

15. Section 29 (which appears under the heading “Courts to help each other”) relevantly provides as follows:

    (1) All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy.

    (2)  In all matters of bankruptcy, the Court:

    (a)  shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and

    (b)  may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy.

    (3)  Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the matter had arisen within its own jurisdiction.

    (4)….

    (5)…”

16. I reject Ms McEwan’s submission that this section empowers this court (or as she developed orally before me – any court in the world) to hear her claims. It simply does not. Rather, an ordinary reading of the section reveals that the reference to Courts aiding and assisting each other is to “Courts” that have been empowered with jurisdiction in bankruptcy under the Bankruptcy Act or otherwise.

17. Relevantly, the Court is defined in s5(1) of the Bankruptcy Act as meaning “...a Court having jurisdiction in bankruptcy under this Act”. This court is not such a Court.

18. Section 30 provides for the “General power of Courts in bankruptcy”. But this section does not advance Ms McEwan’s argument any further as again, it refers to “the Court”.

    Queensland Constitution

19. Ms McEwan also relied on s 58 of the Constitution of Queensland 2001 as empowering this court with jurisdiction to hear her claim. This provision states as follows:

    58 Supreme Court’s superior jurisdiction

    (1)The Supreme Court has all jurisdiction necessary for the administration of justice in Queensland.

    (2)     Without limiting subsection (1), the court—

    (a) is the superior court of record in Queensland and the supreme court of general jurisdiction in and for the State; and

    (b) has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.

20. Ms McEwan does not develop her argument and the respondents did not address this issue in their submissions. But it is reasonable to infer that Ms McEwan contends that the administration of justice in her case warrants the Supreme Court having the necessary jurisdiction by virtue of this section. But this submission overlooks that the Constitution does not give this court power or jurisdiction in bankruptcy. Rather the Queensland Constitution gives the Queensland Parliament the power to enact laws consistent with its constitution and relevant jurisdiction, subject to the Commonwealth Constitution.[35] Relevantly (and as discussed above) the Commonwealth Parliament has legislated such that jurisdiction in bankruptcy is within the exclusive realm of the Federal Court. It is also relevant to observe that, to the extent there is any inconsistency, Commonwealth provisions prevail.[36]

    [35]Fardon v Attorney-General (Qld) (2004) 210 ALR 50 at 64.

    [36]Commonwealth Constitution s 109.

    Power under the Cross-vesting Act

21. Ms McEwan also referred to s 4 and s 11 of the Cross-vesting Act as a source of this court’s jurisdiction. The purpose of this act as the name suggests is set out in the preamble as follows:

    WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable—

    (a)    to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court; and

    (b)    to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and

    (c)     if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

22. Section 4 of the Cross-vesting Act provides for the vesting of additional jurisdiction in certain courts relevantly as follows:

    “(1)  Where:

    (a)  the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

    (b)  the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

    (c)  ………….

    (d) 

    (2)  Where:

    (a)  ……..

    (b)  ………

    jurisdiction is conferred on the court referred to in paragraph (b) with respect to that matter.

    (3) Where a proceeding is transferred to the Federal Court, the Federal    Circuit and Family Court of Australia (Division 1) or a State Family Court of a State, that court has, by virtue of this subsection, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this subsection.

    (4)  ……….

    [Emphasis added]

23. The respondents submitted that this section does not apply to the facts of this case as the proceedings are a “special federal matter” under s 6 of the Cross-vesting Act and as such must be commenced in the Federal Court.  

24. Section 6 relevantly provides the general rules for special federal matters to be as follows:
    “(1)  If:

    (a)  a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and

    (b)  the court does not make an order under subsection (3) in respect of the matter;

    the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).

Note: ……….

(1A) However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.

(2)  If the court orders that a proceeding or part of a proceeding be  transferred, the proceeding or part of the proceeding must be transferred:

(a)  if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c) or (e) of the definition of special federal matterin subsection 3(1)--to the Federal Court; or

(b)  ………..

(3)  The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.

(4)  Before making an order under subsection (3), the court must be satisfied that:
(a)  a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State or Territory where the proceeding is pending; and

(b)  a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding.

(5)  For the purposes of subsection (4), the court:

(a) may adjourn the proceeding for such time as the court thinks necessary    and may make such order as to costs in relation to an adjournment as it thinks fit; and

(b) may direct a party to the proceeding to give a notice in accordance with that subsection.

(6)  In considering whether there are special reasons for the purposes   of subsection (3), the court must:

(a)  have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in paragraph (2)(b), whichever is appropriate in the particular case; and

(b)  take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).

(7)  ………..

(8)  ………...

(9) …………..

(10)  …….

[Emphasis added]

1. Section 3(1) (e) of the Cross-vesting Act relevantly defines a “special federal matter” to include a matter that is within the original jurisdiction of the Federal Court by virtue of s 39B of the Judiciary Act1903 (Cth) (Judiciary Act); being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.

2. Ms McEwan submitted that this is not a special federal matter because it is not a “special case” and pointed to the fact that the proceeding does not relate to property vested in a trustee (as was the case in Cordes) but (in part) is a claim for damages against the conduct of the parties.[37] I reject Ms McEwan’s submission for two reasons:

   (a)First: She misapprehends the correct test and fails to grapple with the definition of special federal matter under the Cross-vesting Act; and

   (b)Secondly: For the reasons articulated at paragraph 34 above, I am satisfied that the claim for damages is intrinsically linked to the other claims that fall squarely within the  original jurisdiction of the Federal Court.     

   [37]Ms McEwan’s supplementary submissions dated 8 May 2023 at paras 11 and 17.

3. The respondents submitted that “this matter is a special federal matter” because the crux of the matter sits wholly within the operation of the Bankruptcy Act which, by virtue of s 39 B of the Judiciary Act, falls within the original jurisdiction of the Federal Court.[38]  I accept this submission for the reasons set out in paragraphs 26 to 36 above.     

   [38]Submissions of first and third respondents dated 21 April 2023 at paras 33 and 34.

1. I therefore find that the proceeding is a special federal matter.[39]

   [39]It is relevant to note that the High Court has held that in a case where the Federal Court has exclusive jurisdiction to determine an aspect of the matter it also has accrued jurisdiction to determine the non-federal aspects provided the federal aspect is at least a substantial one; Fencott v Muller (1983) 152 CLR 570 at 609.

2. Under s 6(3) this court may order the proceeding be determined by it if it is satisfied  that there are special reasons for doing so in the particular circumstances of the proceeding – other than reasons relevant to the convenience of the parties.  But such an order cannot be made unless written notice to the Attorney General of the Commonwealth and the State have been given under s 6(4) as required. Ms McEwan has not given such notice. But that is hardly surprising as her case is that the proceedings do not involve a special federal matter.

3. But even if notice has been given, I am not satisfied that there are special reasons in this case which warrant Ms McEwan’s proceedings being determined by this court. Special reasons do not require unique or extraordinary circumstances but there must be some matter which is unusual or uncommon in character or degree which differs from the ordinary or usual.[40] Ms McEwan herself conceded that there is nothing exceptional about these proceedings.[41] The main reason agitated by her related to this court being a more convenient forum for her to navigate. Convenience of the parties is not a determinative factor in concluding whether there are special reasons that justify the proceedings being heard in the Supreme Court.[42] Overall I am not satisfied that the other (belated) reasons proffered by Ms McEwan, which included submissions that the extension of five years has caused serious injustice, and that every day that passes is an injustice to her is a special reason within this section. None of the reasons submitted by Ms McEwan justify this court hearing a proceeding, the heart of which is a dispute about the actions and decisions of her trustees in bankruptcy – appointed and regulated by the provisions of the Bankruptcy Act .

   [40]Montgomery v Porter [2021] NSWSC 1378 at [19].

   [41]In her supplementary submission of 8 May 2023 at para 18.

   [42]Montgomery v Porter [2021] NSWSC 1378 at [20] per Sackar J.

4. Section 11 of the Cross-vesting Act provides for the conduct of proceedings that are ultimately conducted in this court exercising jurisdiction under the Cross-vesting Act. It does not of itself provide this court with jurisdiction to hear Ms McEwan’s claim. Given my finding above that the proceeding is a special federal matter this section is otherwise not relevant to my determination.  

1. In answer to the first question posed, I therefore find that the Supreme Court of Queensland does not have jurisdiction to determine the proceeding.

2. It follows from this finding that this court does not have jurisdiction to make the orders for disclosure sought by Ms McEwan, so it is unnecessary to consider the substantive application(s) or the second question (potentially) posed. All the applications for disclosure on foot are therefore dismissed.

   Should the proceeding be transferred to the Federal Court?  

3. The final question for my determination is whether the proceeding should be transferred to the Federal Court.  I am satisfied that the answer is plainly yes for the following reasons:

   (a)First, for the reasons discussed in paragraph 9 above I am satisfied that the Cross-vesting Act is properly invoked and applicable and it is unnecessary for a formal order for transfer by either party.

   (b)Secondly, for the reasons discussed at paragraphs 26 to 36 above, I am satisfied that the proceeding is one within the jurisdiction of the Federal Court.

   (c)Thirdly, having found that the proceeding is a special federal matter and there are no special reasons justifying this court determining it, the mandatory provisions of s6(1) of the Cross-vesting Act provide that I “must” transfer the proceeding.

   (d)Fourthly, (and regardless): this court has the power to order the transfer of its own volition under s 5 (1) of the Cross-vesting Act. That is a power I would have otherwise exercised if necessary because for the reasons discussed at 35 and 51 above it is more appropriate that the proceeding be determined by the Federal Court than this court.

   Proposed Orders and declarations

4. I direct that by 4.00pm Tuesday 23 May 2023, the first and second respondent’s legal representatives prepare and email Ms McEwan and the court (by emailing my associate) a draft order consistent with my findings that:

   (a)There is a declaration that the Supreme Court of Queensland does not have jurisdiction to determine the originating application filed 17 March 2023;

   (b)The originating application filed 17 March 2023 is transferred to the Federal Court pursuant to s 6(1) of the Jurisdiction of Court (Cross-vesting ) Act 1987 (Cth); and

   (c)The applications for disclosure filed in this proceeding are dismissed.[43]

   [43]It is unnecessary for these applications to be transferred as the Federal Court has its own disclosure regime.

5. I will hear the parties shortly about costs and any necessary leave to amend the name of the third respondent. Any orders I then make are to be included in the draft order I have directed in the previous paragraphs.  I will then initial that order which will be placed with the file.