Tu v Chang

[2016] FCA 1567

FEDERAL COURT OF AUSTRALIA

Tu v Chang [2016] FCA 1567

File number:

NSD 927 of 2016

Judge:

BROMWICH J

Date of judgment:

20 October 2016

Catchwords:

PRACTICE AND PROCEDURE – application under r 9.63 of the Federal Court Rules 2011 (Cth) that the NSW Trustee and Guardian be appointed as the applicant’s litigation representative – consent and certificate filed in compliance with r 9.64 – NSW Trustee and Guardian appointed as applicant’s litigation representative

Legislation:

Federal Court Rules 2011 (Cth), rr 9.61, 9.62, 9.63, 9.64

NSW Trustee and Guardian Act 2009 (NSW), ss 3(1), 5, 11(1)(a), 11(1)(b)

Date of hearing:

20 October 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

Mr M Klooster

Solicitor for the Applicant:

Shaw McDonald Lawyers

Counsel for the Respondent:

Mr G McDonald

Solicitor for the Respondent:

CCSG Legal Pty Ltd

ORDERS

NSD 927 of 2016

BETWEEN:

DAT QUYEN TU BY HIS LITIGATION REPRESENTATIVE THE NSW TRUSTEE & GUARDIAN

Applicant

AND:

LAI WAH CHANG

Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	20 OCTOBER 2016

THE COURT ORDERS THAT:

1.The NSW Trustee and Guardian be appointed as the applicant’s litigation representative pursuant to rule 9.63 of the Federal Court Rules 2011 (Cth) with effect from the date of the filing of the application on 10 June 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

BROMWICH J:

1. The following short reasons were delivered ex tempore at the commencement of the hearing of this matter in response to an application that the NSW Trustee and Guardian be appointed as the applicant’s litigation representative pursuant to r 9.63 of the Federal Court Rules 2011 (Cth). These reasons do not go to the applicant’s substantive application to set aside a bankruptcy notice pursuant to s 41 of the Bankruptcy Act 1966 (Cth).

2. Rule 9.61 of the Federal Court Rules provides that:

   A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative.  [note omitted]

3. The Dictionary to the Federal Court Rules defines “litigation representative” as meaning a person who has been appointed for a proceeding as a litigation representative for a person under a legal incapacity, and a “person under a legal incapacity” as meaning a minor or a mentally disabled person. 

4. Rule 9.62 provides who may be a litigation representative. Rule 9.63 provides for the appointment of a litigation representative by the Court. Rule 9.64 provides that a litigation representative must not take a step in the proceedings unless there has been filed that litigation representative’s consent together with a certificate that the litigation representative has no interest in the proceedings that is adverse to the interest of the person under a legal incapacity, signed by the litigation representative if that person is a lawyer, or, if that person is not a…