Redmond & Redmond - [2014] FamCAFC 87

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND AND ORS

[2014] FamCAFC 87

FAMILY LAW – APPEAL – PROCEDURE – where the appellant was declared bankrupt subsequent to the institution of the appeal – where the appeal concerns a decision of a Federal Circuit Court judge to dismiss an appeal by the appellant from a decision of the Social Security Appeals Tribunal in respect of the appellant’s child support assessment – where the trustee in bankruptcy has elected, pursuant to s 60 of the Bankruptcy Act 1966 (Cth) to discontinue the appeal – where the appellant applies to continue the appeal in his own name on the basis that the appeal falls within the exception contained in s 60(4) of the Bankruptcy Act 1966 (Cth) – where at the hearing of the application by the appellant to proceed with the appeal in his own name, the appellant made an oral application for an adjournment – where the appellant seeks the adjournment to allow an appeal against the decision of the trustee in bankruptcy to discontinue this appeal, together with five other appeals currently before the Federal Circuit Court, to be commenced and determined in the Federal Court – whether the adjournment is in the interests of justice – where the proceedings in the Federal Court would determine not only the application in this appeal for the appellant to proceed in his own name, but would also determine whether five other appeals in the Federal Circuit Court ought proceed – where, if the Federal Court determines the trustee in bankruptcy did not have the power to discontinue the proceedings, the appellant could apply to reinstate the appeal – where, in those circumstances, the application for an adjournment and the appellant’s application in an appeal to proceed in his own name ought be dismissed – orders made dismissing those applications – no order as to costs.

Bankruptcy Act 1966 (Cth)

APPELLANT:

Mr Redmond

FIRST RESPONDENT:

Ms Redmond

SECOND RESPONDENT:

Child Support Registrar

THIRD PARTY:

Official Trustee in Bankruptcy

FILE NUMBER:

BRC

4493

2011

APPEAL NUMBER:

2013

DATE DELIVERED::

11 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace, Murphy JJ

HEARING DATE:

11 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

28 June 2013

LOWER COURT MNC:

[2013] FCCA 638

REPRESENTATION

THE APPELLANT:

Self Represented

THE 1ST RESPONDENT:

Self Represented

COUNSEL FOR THE 2ND RESPONDENT:

Dr Brasch

SOLICITOR FOR THE 2ND RESPONDENT:

Australian Government Solicitor

SOLICITOR FOR THE THIRD PARTY:

Mr Muller of Rodgers Barnes & Green

Orders

The husband’s oral application for an adjournment of his application filed 24 March 2014 be dismissed.
The application in an appeal filed 24 March 2014 “that the Appellant be allowed to continue the appeal pursuant to section 60(4) of the Bankruptcy Act 1966 (Cth) (i.e. that the Trustee in Bankruptcy does not hold jurisdiction in these proceedings)” be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 34 of 2013
File Number: BRC 4493 of 2011

Mr Redmond

Appellant

And

Ms Redmond

1^st Respondent

And

Child Support Registrar

2^nd Respondent

And

Official Trustee in Bankruptcy

3^rd Party

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

By a sequestration order made on 5 February 2014 the husband was made bankrupt. He remains undischarged. Prior to being made bankrupt, the husband filed, on 10 July 2013, a Notice of Appeal against orders made by Judge Coates on 28 June 2013.
The orders of Judge Coates dismissed the husband’s appeal from a decision of the Social Security Appeals Tribunal, delivered on 11 January 2012. That decision derived from the husband’s application for review of two decisions of the objections officer within the child support agency.
On 12 February 2014, a week after the husband had been made bankrupt the wife gave notice to the official trustee, pursuant to section 60(3) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), requiring the trustee to make the election contemplated by that section in respect of the husband’s appeal. On 12 March 2014 the trustee gave notice to the husband that it intended discontinuing his appeal and indicated that a formal Notice of Discontinuance would be filed. The file does not reveal the notice of discontinuance having been filed and leave was given for that to occur today.
The substantive appeal flows from initial decisions within the Child Support Agency disallowing the husband’s objections to decisions made by it in respect of child support obligations. Within that appeal the husband has filed an Application in an Appeal. That application seeks the following order:
That the appellant be allowed to continue the appeal pursuant to section 60(4) of the Bankruptcy Act 1966 (Cth) (i.e. that the Trustee in Bankruptcy does not hold jurisdiction in these proceedings).
When the application and the appeal was called on this morning, the husband sought an adjournment. That adjournment is opposed by all other parties.
Save for an important matter about to be discussed, there would be no prospects at all of the husband being granted an adjournment. In particular, the appeal has been listed for some time; the parties have each filed written submissions and prepared for the appeal accordingly; the Child Support Registrar and the Official Trustee appear by counsel and solicitor and have incurred expense as a result; the husband notified the other parties only this morning and then only when he rose to his feet to make submissions; the husband has no capacity to pay costs.
However, the husband seeks an adjournment so as to allow him to apply to the Federal Court of Australia pursuant to section 178 of the Bankruptcy Act. The gravamen of that application is a challenge by him to the decision made by the Official Trustee to discontinue a number of proceedings to which reference will shortly be made.
The application by the husband to that effect has not yet been precisely formulated, let alone filed, but he received only last week reasons from the Official Trustee for its election to discontinue those proceedings, of which this appeal is one. It is important, I think, to record what those proceedings are.
They are set out in an email sent by the Official Trustee to the husband notifying him formally of the decision to discontinue. Relevantly, that decision applies to six separate proceedings.
Firstly, there is the appeal to this Court, (NA34 of 2013). In addition, there are five separate appeals to the Federal Circuit Court challenging decisions of the Social Security Appeals Tribunal in respect of child support decisions made by the agency. Those proceedings are comprised of matters emanating from file number BRC 4493 of 2011, namely an:
·Appeal filed on 7 February 2012;
·Appeal filed on 23 May 2012;
·Appeal filed on 14 May 2013;
·An Application in a Case filed on 6 December 2013 seeking a stay of the collection of child support; and,
·Appeal filed on 23 December 2013.
The husband confirms before us today that the basis of his application to the Federal Court pursuant to s 178 of the Bankruptcy Act centres on s 60(4) of that Act. Indeed, he says “it is the only real basis” of his application.
Relevantly, that section provides an exception to the “vesting” of rights of action in the Official Trustee. Section 60(2) and (3) provide for the Official Trustee to make an election to continue or discontinue proceedings commenced by the bankrupt prior to him becoming bankrupt. As a general principle, those sections provide that all actions commenced by the bankrupt prior to him becoming bankrupt become subject to the Official Trustee’s election.
An exception is provided for in subsection (4)(a) in respect of, relevantly, “any personal injury or wrong done to the bankrupt”. It is that subsection upon which the husband relies and which he tells this Court will found the basis of his application pursuant to s 178 of the Bankruptcy Act.
In that respect it should be noted that the husband does not otherwise challenge the making of the election by the Official Trustee. The sole challenge, it is repeated, pertains to subsection (4) of that section.
It would appear to follow from the failure of the husband’s mooted application to the Federal Court that the six Notices of Discontinuance filed or to be filed in the proceedings to which I have earlier made reference – including, relevantly, this appeal – would be effective to bring to an end those proceedings.
In those circumstances the solicitor for the Official Trustee applies orally before this Court this morning for the instant application in an appeal filed by the husband to be dismissed. The husband effectively concedes that it should be.
The genesis of that application and the husband’s concession is this: if the husband’s application to the Federal Court fails, this appeal has been properly discontinued and is brought to an end by the Notice of Discontinuance filed by the Official Trustee. So too, incidentally, it might be observed, the five proceedings in the Federal Circuit Court, all of which are appeals against reviews of child support decisions as earlier referred to, will also have been effectively discontinued by the Official Trustee on the husband’s behalf.
If the husband succeeds in the application to the Federal Court pursuant to s 178, it follows, axiomatically, as it seems to me, that the Notice of Discontinuance of this appeal is ineffective for lack of standing by the person filing it and such actions as might occur in respect of the husband’s appeal can consequently occur as a result. So too, it might be said, in respect of the five remaining matters in the Federal Circuit Court.
As a result of those factors, if the adjournment is refused, as it otherwise should be, and the husband’s Application in an Appeal dismissed, it seems to me that justice is best effected. In particular that allows of the potential for the Federal Court application to effectively determine both this appeal and five further pending appeals with the obvious consequential saving in time and money involved.
Understandably enough the wife who, although a lawyer, represents herself, points to the length and breadth of litigation in which the husband has involved her and, it might be said, others, and says that an outcome unfavourable to the husband of his Federal Court application will invariably result in an appeal including, as he has twice done before, seeking special leave to appeal to the High Court.
Be that as it may, those considerations, however unfortunate, do not in my view bear upon any injustice in dismissing this current application.
For those reasons I consider that justice requires dismissal of the oral application for an adjournment and the allowing of the oral application on behalf of the Official Trustee that the husband’s Application in an Appeal should be dismissed and I would so order.

AINSLIE-WALLACE J:

I agree with the reasons and the proposed orders of Murphy J and have nothing to add.

May J

I agree with the reasons of Murphy J and make orders accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 April 2014.

Associate:

Date: 15 May 2014