FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Kiddle v Nguyen [2021] FedCFamC2G 53
File number(s): SYG 1246 of 2020
SYG 2597 of 2020
SYG 2633 of 2020
SYG 2634 of 2020Judgment of: JUDGE MANOUSARIDIS Date of judgment: 17 September 2021 Catchwords: BANKRUPTCY – whether a proceeding in which a claim is made for compensation under s 545 of the Fair Work Act 2009 (Cth) (FW Act) and a claim is made for the payment of a pecuniary penalty under s 546(1) of the FW Act is a proceeding in respect of a “provable debt” within the meaning of s 229(2)(c) of the Bankruptcy Act 1966 (Cth) (Act) – neither a claim for compensation nor a claim for the payment of a pecuniary penalty is a “provable debt” within the meaning of s 229(2)(c) of the Act and therefore the proceeding in which such claims are made is not a proceeding in respect of a “provable debt” within the meaning of s 229(2)(c) of the Act. Legislation: Bankruptcy Act 1966 (Cth) ss 52(1), 58(1), 58(3), 82, 102(1), 109, 187(1), 187(2), 188(1), 188(2), 188(2C), 188(2D), 188(2E), 188(6), 188A(1), 188A(2), 189(1), 189(1A), 204, 216(1), 229, 231
Fair Work Act 2009 (Cth) ss 45, 341(1)(a), 345, 545, 546, 550(1), 550(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Cases cited: ABB Australia Pty Limited v Commissioner of Taxation [2007] FCA 1063
Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347
CFMEU & Ors v RGN Mining Services Pty Ltd & Anor [2018] FCCA 162
Cornelius v Barewa Oil & Mining (NL) (in liq) (1982) 64 FLR 287
Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234
Ex parte Llynvi Coal and Iron Co (1871) LR 7 Ch App 28
Ex parte Ruffle; In re Dummelow (1873) LR 8 Ch App 997
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Klein v Minister for Education [2007] HCA 2
McDermott v Black [1940] HCA 4; (1940) 63 CLR 161
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 26 May 2021 Place: Sydney Counsel for the Applicants: Mr A Britt Solicitor for the Applicants: Fletch Law The Respondent: No appearance by, or on behalf of, the respondent Solicitor for the Trustee of Nguyen: Mr A Rollins of Sage Solicitors ORDERS
SYG 1246 of 2020 THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICHOLAS KIDDLE
Applicant
AND: TRUNG NGUYEN
Respondent
SYG 2597 of 2020 BETWEEN: LUKE WILLERS
Applicant
AND: TRUNG NGUYEN
Respondent
SYG 2633 of 2020 BETWEEN: JOSHUA HALL
Applicant
AND: TRUNG NGUYEN
Respondent
SYG 2634 of 2020 BETWEEN: DOMENIC GRASSO
Applicant
AND: TRUNG NGUYEN
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT…
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CaseChat Overview and Summary
The court examined the nature of the claims made under the FW Act and concluded that neither the claim for compensation nor the claim for the payment of a pecuniary penalty qualified as a “provable debt” as defined by the Act. Consequently, the court held that the proceedings were not proceedings in respect of a “provable debt” within the meaning of section 229(2)(c) of the Act. The court's decision hinged on the interpretation of the statutory language and the distinctions between compensation claims and provable debts.
In reaching its decision, the court carefully considered the statutory definitions and the legislative intent behind the Bankruptcy Act. The court concluded that the claims for compensation and pecuniary penalties under the FW Act were not akin to debts that could be included in a bankruptcy estate, thus the proceedings did not fall under the category of provable debts. The court also noted that these orders were subject to potential review for minor errors or variations as per the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The court then ordered that the proceeding be listed for directions on 1 October 2021.
Orders
Orders of the court
ORDERS
SYG 1246 of 2020
THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
NICHOLAS KIDDLE
Applicant
AND:
TRUNG NGUYEN
Respondent
SYG 2597 of 2020
BETWEEN:
LUKE WILLERS
Applicant
AND:
TRUNG NGUYEN
Respondent
SYG 2633 of 2020
BETWEEN:
JOSHUA HALL
Applicant
AND:
TRUNG NGUYEN
Respondent
SYG 2634 of 2020
BETWEEN:
DOMENIC GRASSO
Applicant
AND:
TRUNG NGUYEN
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT DECLARES THAT:
1. No part of this proceeding is in respect of a “provable debt” within the meaning of s 229(2)(c) of the Bankruptcy Act 1966 (Cth).
THE COURT ORDERS THAT:
2. The proceeding is listed for directions at 9:30 am on 1 October 2021.
THE COURT NOTES THAT:
3. These orders are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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