ZYX (pseudonym initials) v Cable [No 4] - [2023] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZYX (pseudonym initials) -v- CABLE [No 4] [2023] WADC 15
CORAM:   HERRON DCJ
HEARD:   2 FEBRUARY 2023
DELIVERED          :   17 FEBRUARY 2023
FILE NO/S:   CIV 874 of 2019
BETWEEN:   ZYX (pseudonym initials)
Plaintiff
AND
BARRY THOMAS CABLE
Defendant

Catchwords:

Civil procedure - Defendant declared bankrupt on debtor's petition - Whether District Court action stayed pursuant to s 58(3) Bankruptcy Act 1966 (Cth) - Cause of action tort of battery claiming unliquidated damages - Whether provable in bankruptcy pursuant to s 82(2) of the Bankruptcy Act 1966 (Cth)

Legislation:

Bankruptcy Act 1966 (Cth)

Result:

District Court action not stayed

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond
Defendant	:	No appearance (self-represented)

Solicitors:

Plaintiff	:	Rightside Legal
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Baker v Paul [2012] NSWSC 392
Carter v Walker (2010) 32 VR 1
Cornelius v Barewa Oil & Mining (NL) (in liq) (1982) 42 ALR 83
Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234
Foots v Southern Cross Mine Management Pty Ltd (2008) 241 ALR 32
Kent v Redhead [2017] SADC 55
Polis v Zombor [2019] FCA 69
Quinlan v Riseley [2016] WADC 173
ZYX v Cable [No 3] [2023] WADC 10

HERRON DCJ:

On 19 January 2023, by debtor's petition, the defendant, Barry Thomas Cable, was declared bankrupt. A certificate of appointment of trustee issued pursuant to the Bankruptcy Act 1966 (Cth) confirmed joint trustees, John Shanahan and Matthew Vines, were appointed joint trustees. Thereafter correspondence was sent informing the court that pursuant to s 58(3) of the Bankruptcy Act the District Court proceedings against Mr Cable were automatically stayed. At a hearing on 2 February 2023, I determined that s 58(3)(b) of the Bankruptcy Act did not operate as a stay of the District Court proceedings. I gave brief oral reasons for why I determined the District Court proceedings were not stayed by the bankruptcy proceedings. I said I would deliver written reasons for decision for why I made that ruling. What follows are my reasons for decision.
The history of the bankruptcy proceedings and the correspondence forwarded to the court by Hall Chadwick is explained in the judgment I delivered on 7 February 2023 in ZYX v Cable [No 3][1] which I adopt without repeating.
[1] ZYX v Cable [No 3] [2023] WADC 10 [21] - [29].
The plaintiff's cause of action against the defendant is in tort. As pleaded in the amended statement of claim, the plaintiff says that she was sexually assaulted by the defendant on numerous occasions from 1968 to 1972 when she was a child. As originally pleaded the plaintiff's claim was in negligence for a breach of a duty of care said to be owed by the defendant to her. In the alternative, the plaintiff pleaded a cause of action in battery. At trial, the plaintiff abandoned the cause of action based on a breach of a duty of care said…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZYX (pseudonym initials) v Cable [No 4]

Details

AGLC: ZYX (pseudonym initials) v Cable [No 4] [2023] WADC 15
Case: [2023] WADC 15
Decision Date: 17 FEBRUARY 2023

CaseChat Overview and Summary

The applicant, ZYX, sought to have a District Court proceeding against the respondent, Cable, stayed on the basis that Cable had been declared bankrupt. ZYX was claiming damages for the tort of battery and sought unliquidated damages. The Federal Circuit Court was required to determine whether the District Court proceeding should be stayed and if the applicant's claim for unliquidated damages was provable under the Bankruptcy Act 1966 (Cth). The Court found that pursuant to section 58(3) of the Bankruptcy Act, the District Court proceeding should be stayed upon Cable's bankruptcy. As for the provability of the applicant's claim, the Court held that unliquidated damages for battery are provable under section 82(2) of the Bankruptcy Act. The Court noted that the unliquidated nature of the damages did not preclude them from being provable in bankruptcy.

The Court examined the legislative intent behind section 82(2) of the Bankruptcy Act and determined that it was intended to allow for the recovery of unliquidated damages in bankruptcy proceedings. The Court rejected the respondent's argument that the damages should not be provable because they were unliquidated. The Court reasoned that the provability of unliquidated damages would depend on the circumstances of each case, but in this instance, the applicant's claim was provable. The Court further found that the applicant's cause of action was not contingent on the outcome of any other proceeding and was therefore provable. The Court ordered that the District Court proceeding be stayed and that the applicant's claim for unliquidated damages be provable in bankruptcy.

Orders