Martin v RORKE
[2003] FMCA 206
•20 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARTIN v RORKE & ORS | [2003] FMCA 206 |
| BANKRUPTCY – PRACTICE AND PROCEDURE – Dismissal of claim where no consent granted by bankruptcy trustee and no jurisdiction of Federal Magistrates Court. |
Bankruptcy Act 1966 (Cth), ss.58, 116
Trade Practices Act 1974
| Applicant: | COLIN ANDREW MARTIN |
| First Respondent: | GINA RORKE |
| Second Respondent: | BILL RORKE |
| Third Respondent: | TRADEBANC EXCHANGE LTD |
| File No: | AZ 295 of 2002 |
| Delivered on: | 20 May 2003 |
| Delivered at: | Adelaide |
| Hearing Date: | 20 May 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Mr P Scerri |
ORDERS
Application dismissed.
Applicant pay the respondent's costs pursuant to Part 21, Rule 21.10, noting that I believe it appropriate that the costs be limited to those contained in Schedule 1, Part 1, Stage 1.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 295 of 2002
| COLIN ANDREW MARTIN |
Applicant
And
| GINA RORKE |
First Respondent
| BILL RORKE |
Second Respondent
| TRADEBANC EXCHANGE LTD |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant has brought proceedings filed on 15 November 2002. The applicant filed an affidavit in support of his application on the same date. The application relates to unpaid commissions and seeks what is described as “the maximum compensation of $200,000.00.”
The applicant is bankrupt. As a result any chose in action belonging to him vests in his trustee by virtue of s.58 of the Bankruptcy Act 1966 (Cth). He is not entitled to commence proceedings in his own name, other than proceedings which seek to recover damages for personal injuries, unless he receives the consent in writing of his bankruptcy trustee.
Such consent had not been received when this matter came before Driver FM on 8 April 2003. On that day His Honour ordered that the applicant was to file and serve upon the respondent the consent of his trustee or a written statement from the trustee that such consent was not required on or before 22 April 2003; that no further steps were to be taken in the proceedings other than as has been ordered until 23 April 2003.
The applicant filed on 16 May 2003 a copy of a letter from his bankruptcy trustee, dated 16 April 2003. That letter merely confirmed the provisions of s.116 of the Bankruptcy Act 1966 (Cth) and the fact that the applicant required the consent of the trustee to pursue proceedings other than those for personal injury. The letter does not constitute the trustee's consent.
I am equally concerned that the statement of claim and the affidavit in support do not in fact establish or even suggest a claim under the Trade Practices Act 1974. From what I have heard from Mr Martin in person, it would appear that his claim is one in debt. That is not a matter in respect of which the Federal Magistrates Court has jurisdiction.
When the matter came before me today I asked Mr Scerri, who appears on behalf of the respondent, what he wished to do. In fairness to him, he had only just seen the letter from the trustee and he suggested an adjournment. In my view an adjournment is not appropriate. This case cannot proceed and in all probability should not even have been commenced in this court.
I dismiss the application. I order that the applicant pay the respondent’s costs.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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