Rowe v Official Trustee in Bankruptcy (No.2)

[2014] FCCA 3014

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE v OFFICIAL TRUSTEE IN BANKRUPTCY (No.2) [2014] FCCA 3014

Catchwords:
BANKRUPTCY – Application for orders that Trustees election under s.60(2) of the Bankruptcy Act 1966 (Cth) be set aside – form of order.

Legislation:

Bankruptcy Act 1966 (Cth), s.60(2)

Applicant: CHAD EVERETT ROWE

Respondent: OFFICIAL TRUSTEE IN BANKRUPTCY

File Number: BRG 567 of 2014

Judgment of: Judge Jarrett

Hearing date: 9 December 2014

Date of Last Submission: 9 December 2014

Delivered at: Brisbane

Delivered on: 9 December 2014

REPRESENTATION

The Applicant appearing on his own behalf

Solicitor for the Respondent: Mr Muller

Solicitors for the Respondent: Rodgers Barnes & Green Lawyers

ORDERS

1. The election made by the Respondent on 12 March 2014 to discontinue the following matters:

   (a)In Federal Circuit Court of Australia proceedings number BRC 4993 of 2011:

   (i)The child support appeal filed on 7 February 2012;

   (ii)The child support appeal filed on 23 May 2012;

   (iii)The child support appeal filed on 9 May 2013;

   (iv)An application in a case filed on 6 December 2013; and

   (v)The child support appeal filed on 23 December 2013

   (b)The appeal to the Full Court of the Family Court of Australia in proceedings number NA 34 of 2013 commenced on 10 July 2013

   (i)be set aside.

2. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 567 of 2014

CHAD EVERETT ROWE

Applicant

And

OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

1. The applicant commenced these proceedings by an application on 8 May 2014.  I dealt with the application after a hearing and gave judgment on 26 November 2014.  I didn’t pronounce the orders that I – that should be made.  I delivered my reasons and then sought submissions from the parties about the form of order that might be made.

2. The respondent’s solicitor discharging his duty to the court has indicated that there is an error in the reasoning in the sense that I determined not to grant to the applicant relief in respect of a particular matter because I determined that it related only to the question of costs, and for reasons which are apparent from the principal reasons I delivered on 26 November, I did not propose to give relief in respect of that matter.

3. Mr Muller for the respondent has suggested that I overlooked or perhaps intended to deal rather with another item of litigation described in my reasons for judgment on page 3 at item 3 in the list that appears on that page.  That application, or indeed that appeal, has a different character to the application which is item number 4 to which I have referred in the body of the reasons.

4. Item number 3, an appeal to the Full Court against the decision of the Federal Circuit Court dismissing an SSAT appeal is of the same nature and attracts the same reasoning by which I determined to grant relief in respect of the applications that appear in items 7, 8, 9, 10 and 11 on the same page in my reasons for judgment.  I have clearly misapprehended the nature of the application in 3 and 4.

5. Consistent with the intentions set out in my reasons, it seems to me that it is appropriate, whether it is either done by reason of a simple error or under the slip rule, to indicate now that there ought to be a grant of relief in respect of matter number 34 of 2013, being an appeal to the Full Court against the decision of the Federal Circuit Court dismissing the SSAT appeal. 

6. I’m not so sure that it is an application under the slip rule as it was put by the respondent’s solicitor, given that the slip rule applies to orders rather than reasons for judgment, but I’m indebted to the solicitor for the respondent for raising the issue and creating an opportunity for it to be clarified. 

RECORDED : NOT TRANSCRIBED

1. By his amended application that was filed on 17 June 2014, the applicant seeks the following relief:

   Pursuant to section 178 of the Bankruptcy Act 1966, the applicant seeks orders that the trustee continues the legal actions numbered 4, 7, 8, 9, 10, 11 in their letter to the applicant dated 12 March 2014, which has been attached as annexure CER3 of the affidavit of Chad Everett Rowe dated 7 May 2014 and filed in these proceedings. Alternatively, that the applicant be permitted to continue the matters listed above in the name of the trustee.

2. Despite the form of relief that the applicant sought, his case really was that he wished for the election that had been made by his trustee in bankruptcy pursuant to s.60(2) of the Bankruptcy Act1966 (Cth) to be set aside. He wished to continue some child support appeals and other proceedings which he said had a benefit to him personally and which had either not vested in his estate in bankruptcy or which the trustee ought to have, as part of his obligations under the trusteeship, prosecuted on his behalf.

3. I’ve already indicated that on 26 November 2014 I delivered reasons for judgment in the application.  There were some 15 separate pieces of litigation in respect of which the applicant sought relief, ranging from applications for special leave in the High Court of Australia, appeals in the Full Court of the Family Court of Australia, an application in the Family Court, appeals under the child support legislation in this court and appeals in the District Court of Queensland.

4. For the reasons that I gave, I determined that the applications in this court which were appeals against decisions of the Social Securities Appeals Tribunal fixing child support rates were not actions that were caught by s.60(2) of the Bankruptcy Act, they were not property that vested in the trustee in bankruptcy, and that the trustee’s elections in respect of those matters was unauthorised. The trustee was not in a position to make an election to discontinue the proceedings under s.60(2) of the Bankruptcy Act.

5. I asked the parties to make submissions today about the form of order that was appropriate having regard to my reasons. Two forms of order have been presented.  Neither form of order follows the form of relief that is sought in the amended application. 

6. The applicant contends that there should be an order that provides for the respondent to do all acts and things necessary to assist the applicant, effect the reinstatement of the following proceedings discontinued by the respondent and thereafter he sets out the relevant proceedings, and for that purpose the respondent should cover all costs, including any legal costs incurred by the applicant immediately upon demand by the applicant when and where incurred. He seeks an order that the respondent indemnify and keep indemnified in respect of all loss arising as a result of any actions taken by the applicant or respondent in relation to the reinstatement of the proceedings. He seeks an order that should such reinstatement of the proceedings be unavailable, the applicant may, by seven days’ notice to the respondent, request the matter to be re‑listed. 

7. On the other hand, the respondent says that the only order that ought to be made is that the election made by the respondent on 12 March 2014 to discontinue the relevant matters be set aside. 

8. The applicant’s argument about the form of orders proceeds on the basis of a number of misconceptions.  One of the misconceptions was one under which I laboured when I delivered my reasons for judgment.  It seemed that there was information available to me, wrong as it turned out, that all of the relevant proceedings have been discontinued by the filing of a notice of discontinuance.  That is not so, I’m told this morning.  The only application that has been discontinued is the appeal in the Full Court of the Family Court of Australia.  The other appeals in this court have not been discontinued formally by the filing of such a notice.  In that respect, therefore, those proceedings are on foot.

9. As to the Full Court Appeal, the matter has been before the Full Court of the Family Court and reasons for judgment were published by the Full Court in relation to an application by Mr Rowe for an adjournment of his appeal in the Full Court, pending the application that was to be determined by me.  In that Full Court decision the reasons for judgment were delivered by Murphy J.  Ainslie‑Wallace and May JJ agreed with the reasons and the orders that Murphy J proposed.

10. His Honour said this in the reasons for judgment:

    18.  If the husband succeeds in the application to the Federal Court, pursuant to section 178, it follows axiomatically, as it seems to me, that the notice of discontinuance in this appeal is ineffective for lack of standing by the person filing it, and such actions as might occur in respect of the husbands 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.

11. Having regard to that paragraph and paragraph 15 of the same judgement, it seems that the Full Court may have been labouring under the same misapprehension that I was, namely that notices of discontinuance have been filed in all of the relevant child support appeals.  But whether that’s the case or not, as Murphy J points out, if the election is set aside, the discontinuance has been filed by somebody who had no standing to file it, and in those circumstances the filing of the notice of discontinuance is entirely ineffective.  For those reasons it seems to me that it’s not necessary for there to be the types of orders that Mr Rowe proposes.

12. The second issue that he raises is that there is a risk, he describes it as a risk, that his applications will not be reinstated, but again that misapprehends the position.  They don’t need to be reinstated.  They exist already.  The notice of discontinuance in the appeal court was filed without authority and there are reasons of the Full Court to that effect.  There is just no risk.

13. In respect of the child support applications in this court, whatever risk there might be can be obviated by me simply listing the matters for directions now so that they can come before the judge who deals with child support appeals and directions can be made for the further conduct of those proceedings.  There is simply no risk.

14. In all of those circumstances, the appropriate form of order is that proposed by the trustee.  I therefore order in terms of the minutes that have been handed up by the trustee, which I will initial and place with the papers.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  23 December 2014