Meriton Apartments Pty Limited v Industrial Court of New South Wales

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 13 October 2008
• Neutral Citation: [2008] FCAFC 172
• Date: 13 October 2008

FEDERAL COURT OF AUSTRALIA

Meriton Apartments Pty Limited v Industrial Court of New South Wales
[2008] FCAFC 172

BANKRUPTCY – jurisdiction “in bankruptcy” – jurisdiction exclusive of jurisdiction of State courts –– determination by State court of whether action in a State court abandoned by trustee – determination by State court of validity of assignment of right to prosecute to the bankrupt before discharge – whether jurisdiction exercised by State court “under or by virtue” of the Bankruptcy Act 1996 (Cth)

BANKRUPTCY – power of trustee in bankruptcy – whether implied prohibition against sale of right to prosecute a proceeding to the bankrupt before discharge – whether relief should be refused on discretionary grounds

COURTS AND JUDICIAL SYSTEM – jurisdiction in bankruptcy – jurisdiction exclusive of jurisdiction of State courts – whether appropriate for Federal Court to set aside or vary orders of a superior court of a State – other avenues of relief – discretionary grounds for refusing relief

Constitution ss 71, 73(ii), 75, 76(ii), 77, 118
Commonwealth of Australia Constitution Act, 63 & 64 Vict, c 12, cl 5
Bankruptcy Act 1924 (Cth) ss 4, 18, 21(d)
Bankruptcy Act 1966 (Cth) ss 5, 27, 30, 30(1), 31(1), 31(1)(f), 33, 51, 58, 60, 60(2), 60(3), 116, 120, 121, 122, 123, 128, 129AA, 134, 134(1)(a), 139K, 139L, 139M, 139N, 139P, 139Q, 139U, 149, 153(5), 177, 178, 179
Bankruptcy Legislation Amendment Act (1996)(Cth)
Federal Court of Australia Act 1976 (Cth) ss 20(1A), 21, 23
Judiciary Act 1903 (Cth) ss 30, 30(a), 39, 39(2), 39B, 39B(1A), 79
Constitution Act 1902 (NSW) Pt 9
Conveyancing Act 1919 (NSW) s 12
Industrial Relations Act 1996 (NSW) ss 105, 106, 108, 145, 151, 152, 153, 179
Bankruptcy Act 1825, 6 Geo 4, c 16, ss 11, 12
Bankruptcy Act 1831, 1 & 2 Wm 4, c 56, s 1
Bankruptcy Act 1841, 5 Vict, c 17, s 104
Bankruptcy Act 1849, 12 & 13 Vict, c 106
Bankruptcy Act 1861, 24 & 25 Vict, c 134
Bankruptcy Act 1869, 32 & 33 Vict, c 71, ss 59, 69, 72
Bankruptcy Act 1887, 51 Vict, c 19, s 127
Bankruptcy Act 1914, 4 & 5 Geo 5, c 59, s 96
Insolvency Act 1813, 53 Geo 3, c 102
Insolvency Act 1897, 61 Vict, c 1513, s 87

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited
Attorney-General (NSW) v 2UE Sydney Pty Ltd (2007) 236 ALR 385 referred to
Baker v Sheridan [2005] NSWCA 408 referred to
Baral v Official Trustee (1999) 89 FCR 422 questioned
Bennett v Gamgee (1887) 36 LT 38 cited
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494 applied
Brien v P & E Phontos (1999) 91 FCR 209 cited
Campbells Cash & Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 cited
Claflin v Houseman (1876) 93 US 130 not followed
Craig v The State of South Australia (1995) 184 CLR 163 cited
CTM v The Queen (2008) 247 ALR 1 cited
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 considered
Ellis v Silber (1872) LR 8 Ch 83 considered
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 considered
Farrow Mortgage Services v Aberratne (1993) 47 FCR 208 referred to
Felton v Mulligan (1971) 124 CLR 367 cited
Foots v Southern Cross Mine Management Pty Ltd (2007) 241 ALR 32 cited
Forshaw v Thompson (1992) 35 FCR 329considered, cited and quoted
Fuller v Beach Petroleum NL (1993) 43 FCR 60 cited and applied
Geia v Palm Island Aboriginal Council [2001] 1 Qd R 245; (1999) 152 FLR 135 questioned, cited and quoted
Green v Schneller [2001] NSWSC 897 cited and quoted
Greener v Schneller (2001) 189 ALR 464 cited
Guy v Churchill (1889) 40 Ch D 481 cited
Howden v Cock (1915) 20 CLR 201 cited and considered
Hunter v Chief Constable of the West Midlands Police [1982] AC 529 cited
Jarrett v Seymour (1993) 46 FCR 521 cited
Kartinyeri v Commonwealth (1998) 195 CLR 337 applied
Kitson v Hardwick [1872] LR CP 473 considered and cited
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 applied
Lorenzo v Carey (1921) 29 CLR 243 referred to
Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443 applied
Morris v Maroudas (1986) 12 FCR 346 followed, cited and quoted
Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273 applied
Porteous v Donnelly (2003) 200 ALR 274 cited
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett
(1945) 70 CLR 141 applied
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 considered
Ramsey v Hartley [1977] 1 WLR 686 cited and referred to
Re Bankrupt Estate of Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576 cited
Re Cirillo; Ex parte Official Trustee in Bankruptcy (1996) 65 FCR 576 considered
Re Dingle; Westpac v Worrell (1993) 47 FCR 478 cited and referred to
Re Gillies; Ex parte Official Trustee in Bankruptcy (1993) 42 FCR 571 considered
Re Harrison; Ex parte Butters (1880) 14 Ch D 265 referred to
Re Hawkesford (1937) 10 ABC 26 followed, cited and quoted
Re Horder [1936] 1 Ch 744 considered
Re Judiciary and Navigation Acts (1921) 29 CLR 257 applied
Re Lamb; Ex parte Melsom (1980) 29 ALR 157 referred to
Re Lamb; Ex parte Melsom; Re Duncan (1980) 29 ALR 157 cited and quoted
Re Nguyen; Ex parte Official Trustee in Bankruptcy (1992) 35 FCR 320 overruled and cited
Re Pollard; Ex parte Dickin (1878) 8 Ch D 377 referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 considered
Re Shanks; Ex parte Swinbanks (1879) 11 Ch D 525 referred to
Rose v Meriton & Anor [2007] NSWIRComm 264 cited and referred to
Scott v Bagshaw (2000) 99 FCR 573 applied, cited and quoted
Second Life Décor Pty Limited v Comptroller-General of Customs (1994) 53 FCR 78 cited
Seear v Lawson (1880) 15 Ch D 426 applied
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129cited
Spalla v St George Motor Finance Ltd [2004] FCA 1699 cited
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 considered
Stein v Blake [1996] AC 243 cited and referred to
Sutherland v Brien (1999) 149 FLR 321; [1999] NSWSC 155 overruled, cited and quoted
Temsign Pty Ltd v Biscen Pty Ltd (1998) 157 ALR 83 cited and referred to
The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 considered
The Queen v Ward (1978) 140 CLR 584 referred to
Walton v Gardiner (1992) 177 CLR 378 cited
Want v Moss (1889) 10 NSWLR 274 cited and followed

Lewis, Australian Bankruptcy Law (2nd ed, Law Book Company of Australasia, 1934)
Lewis, Australian Bankruptcy Law (5th ed, Law Book Company of Australasia, 1967)
Lewis, Australian Bankruptcy Law (10th ed, Law Book Company of Australasia, 1999)
McDonald, Henry and Meek, Australian Bankruptcy Law and Practice (5th ed), para 27.1.03

MERITON APARTMENTS PTY LIMITED and OWNERS CORPORATION SP 56443 v INDUSTRIAL COURT OF NEW SOUTH WALES and JOHN EMMANUEL ROSE

NSD 419 of 2008

BRANSON, GREENWOOD AND PERRAM JJ

13 OCTOBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 419 of 2008

BETWEEN:	MERITON APARTMENTS PTY LIMITED First Applicant OWNERS CORPORATION SP 56443 Second Applicant
AND:	INDUSTRIAL COURT OF NEW SOUTH WALES First Respondent JOHN EMMANUEL ROSE Second Respondent

JUDGES:	BRANSON, GREENWOOD AND PERRAM JJ
DATE OF ORDER:	13 OCTOBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the second respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 419 of 2008

BETWEEN:	MERITON APARTMENTS PTY LIMITED First Applicant OWNERS CORPORATION SP 56443 Second Applicant
AND:	INDUSTRIAL COURT OF NEW SOUTH WALES First Respondent JOHN EMMANUEL ROSE Second Respondent

JUDGES:	BRANSON, GREENWOOD AND PERRAM JJ
DATE:	13 OCTOBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BRANSON J Introduction

1 I have had the advantage of reading in draft the reasons for judgment of Perram and Greenwood JJ. I am grateful to their Honours for setting out the background to, and the history of, this proceeding.

2 The Full Court, exercising the original jurisdiction of the Court, heard together the applicants’ application for declaratory and other relief and the second respondent’s motion for an order setting aside that application. In the circumstances it is unnecessary to give separate consideration to the second respondent’s motion.

Jurisdiction in bankruptcy

3 I agree with the conclusion of Greenwood and Perram JJ that the Industrial Court of New South Wales had jurisdiction to determine whether, on the proper construction of s 60(3) of the Bankruptcy Act 1966 (Cth) (“the Act”), Mr Rose’s trustee in bankruptcy was to be deemed to have abandoned the action brought by Mr Rose in the New South Wales Industrial Relations Commission (“the State proceeding”). I make the following observations in that regard.

4 The jurisdiction conferred on this Court and the Federal Magistrates Court by s 27 of the Act is a wide jurisdiction. It is all jurisdiction and all proceedings “under or by virtue of” the Act. Whatever the outer limits of that jurisdiction it is a jurisdiction which s 27 makes plain cannot be exercised by State courts.

5 Resolution of this proceeding does not require determination of the precise limits of “jurisdiction in bankruptcy” within the meaning of s 27 of the Act. For present purposes it is sufficient, in my view, to consider the following questions. First, the extent of the jurisdiction in bankruptcy conferred by s 60 of the Act. Secondly, whether it is open to the trustee, in purported exercise of the power given to the trustee by s 134(1)(a) of the Act, to assign the right to prosecute a proceeding initiated by the bankrupt before he or she became bankrupt, to the bankrupt ahead of his or her discharge from bankruptcy. Thirdly, assuming that the trustee may assign the right to prosecute a proceeding to the bankrupt in such circumstances, whether the effect of s 58(2) of...