Piepkorn v Minister of Employment and Training

[2004] FCA 1157

FEDERAL COURT OF AUSTRALIA

Piepkorn v Minister of Employment & Training [2004] FCA 1157

HENRIETTE PIEPKORN v MINISTER OF EMPLOYMENT & TRAINING, JANE LOMAX-SMITH & EMPLOYER: CAROMA INDUSTRIES LTD, PETER DUNSTAN

No S 138 of 2004

FINN J
ADELAIDE
20 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 138 OF 2004

BETWEEN:

HENRIETTE PIEPKORN
APPLICANT

AND:

MINISTER OF EMPLOYMENT AND TRAINING:  JANE LOMAX-SMITH
FIRST RESPONDENT

EMPLOYER:  CAROMA INDUSTRIES LTD, PETER DUNSTAN
SECOND RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

20 AUGUST 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of the application. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 138 OF 2004

BETWEEN:

HENRIETTE PIEPKORN
APPLICANT

AND:

MINISTER OF EMPLOYMENT AND TRAINING:  JANE LOMAX-SMITH
FIRST RESPONDENT

EMPLOYER:  CAROMA INDUSTRIES LTD, PETER DUNSTAN
SECOND RESPONDENT

JUDGE:	FINN J
DATE:	20 AUGUST 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. Ms Piepkorn has again filed an application and affidavit in this Court as yet another step in a long running battle which she has pursued to remedy perceived wrongs arising out of her employment with the respondent, Caroma Industries Ltd, in respect of events in 1984.  As von Doussa J indicated in an earlier proceeding (see Piepkorn v State of South Australia [2003] FCA 257 at [8]:

   “The appellant has appeared before this Court on many occasions in the course of pursuing her battle, and on a number of occasions the District Registrar of the Federal Court, pursuant to O 46 r 7A of the Federal Court Rules, has refused to issue proceedings filed by her.  In some instances this has occurred at the direction of a Judge.”

2. In the present proceeding the District Registrar referred Ms Piepkorn’s application to me and I directed that the documentation be accepted. 

3. At the first directions hearing I indicated to Ms Piepkorn that she was to show cause why this proceeding should not be dismissed as disclosing no reasonable cause of action and as being frivolous and vexatious under O 20 r 2(1) of the Federal Court Rules.  She was then given time to prepare her submissions on this matter.

4. When the matter came on for hearing, it became apparent that the proceedings might be incompetent.  The first respondent has filed an affidavit annexed to which is an extract from the National Personal Insolvency Index which is administered by the Insolvency and Trustee Service Australia.  The extract indicates that Ms Piepkorn is an “undischarged bankrupt” and has been such since 13 March 2000.  The Index is created under Part 13 of the Bankruptcy Regulations 1966 (Cth).  The Regulations prescribe that:

   “13.07

   (1)In any proceedings, a document or copy of a document that qualifies under subregulation (2): 

   (a)is proof, in the absence of evidence to the contrary, of information on the Index that is stated in it;  and

   (b)may be tendered in evidence without further proof. 

   (2)      A document or copy qualifies if it:

   (a)purports (irrespective of the form of wording used) to be an extract of information on the Index;  and 

   (b)does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.”

   The annexure in this matter is clearly admissible under this Regulation and I accept it as proof of the information it contains.  In any event, Ms Piepkorn concedes she is an undischarged bankrupt.

5. Under s 58 of the Bankruptcy Act 1966 (Cth), the property of the bankrupt vests in the bankrupt’s trustee. The s 5 definition of “property”, as is well known, extends to choses in action which include rights to litigate: see Re Movitor Pty Ltd (1996) 64 FCR 380 at 391-392; Smith v ANL Ltd (2000) 204 CLR 493 at 504. Because of its present significance, I would refer in particular to GEIA v Palm Island Aboriginal Council (1999) 152 FLR 135; but cf s 116(2)(g) of the Bankruptcy Act.

6. As best I can understand Ms Piepkorn’s claim as revealed in the application and accompanying affidavit, it is simply one for breach of her employment contract or, as I will later indicate, for breach of unspecified statutory duties.  The details of the claim in the application describe the claim as:

   “The settlement of employment contract which was breached by the respondents.”

7. If Ms Piepkorn does in fact have a cause of action arising out of her employment contract, that cause of action vested and remains vested in her trustee in bankruptcy. It is not a cause of action, that is, not divisible property under s 116(2)(g) of the Bankruptcy Act: see Geia’s case, to which I have already referred, and Faulkner v Bluett (1981) 52 FLR 115. There is no evidence that the trustee has assigned this claim to Ms Piepkorn. For this reason, the present proceedings are incompetent and must be dismissed.

8. I would add, though, that even if Ms Piepkorn was competent to institute the proceedings, I would have dismissed it under O 20 r 2.

9. I have already described the details of the claim.  The accompanying affidavit is in the following terms:

   “1.As both the respondents are party to the applicants;  employment contract.  Both respondents are liable to the applicant.  The time from 1982-2020;  with CPI, overtime.  Afternoon rates, as this was the applicants time when contract breached by the respondents. 

   2.As the respondents breached the contract through the legislation of Occupation, Health, Safety and Welfare.  This action is a WELFARE matter of the legislation;  as the labourers law of concilation [sic] and arbitration act of protection of contract.  Conciliation and arbitration act 144A(5).

   3.As the applicant is still employed by Caroma Industries Ltd.  Settlement of contract is sought and liabilities from the third party:-  Minister of Employment & Training.  FOR THIS BUSINESS CONTRACT OF EMPLOYMENT CONTRACT.”

10. Neither the affidavit nor the application specify the relief that is sought in the proceedings.  However, submissions filed in respect of the show cause question claim $2,000,000 plus costs, apparently on the premise that her employment was wrongfully terminated and that she remains employed.

11. The material before the Court discloses no arguable cause of action at all against the second respondent and no recognised cause of action against the Minister.  As to the latter of these, von Doussa J in effect determined this issue in the decision to which I referred above, though those proceedings were in form against the State and not against the Minister.  I would observe that the High Court refused special leave from the decision of von Doussa J in that matter.

12. His Honour observed (at [24]) in terms which seem equally applicable to what I understand to be Ms Piepkorn’s claim against the Minister, that the:

    “complaints appear to rest on dissatisfaction with the exercise of the State’s legislative functions.  A complaint about the wrong exercise of legislative power by the political branches of government is not a judiciable complaint.  The law does not give to a dissatisfied member of the public with such a complaint either a public law or a private law remedy which can be enforced by action in the courts:  Re Limbo (1990) 64 ALJR 241 at 243.”

13. If I am incorrect in discerning what the true nature of Ms Piepkorn’s claim is against the respondent minister, my error is attributable to the impenetrability of the claim itself.  It is impossible to discern what the allegation is that is being made.  As I have said, even if I was satisfied that the proceedings were competent, I would have dismissed them on the grounds that they disclose no reasonable cause of action and were vexatious.  In the event, that question does not arise because as I have already indicated the proceedings are incompetent.  For that reason, I dismiss the application with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:             7 September 2004

The Applicant appeared in person.
Counsel for the First Respondent:	Mr J Swanson
Solicitor for the First Respondent:	Crown Solicitor’s Office
Counsel for the Second Respondent:	Mr W Bourke
Solicitor for the Second Respondent:	EMA Legal
Date of Hearing:	20 August  2004
Date of Judgment:	20 August 2004