Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: cited
would interpolate that, having regard to the complaints made by Mr Rana against the various respondents, the proceeding before Lander J was, manifestly, an abuse of process: it was "foredoomed to fail": Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393. The preliminary point to be noted about A 20 of 2008 is that the action was commenced after Mr Rana's bankruptcy. Importantly it thus falls outside of the provisions of s 60(2) and (4) of the Bankruptcy Act . This requires emphasis. In Daemar a proceedings by way of summons claiming orders in the nature of prerogative relief (together with damages and declaratory relief) was held by the Court of Appeal of New South Wales to be an "action" for the purposes of s 60(2) of the Bankruptcy Act . It was, in the circumstances, further held to be an action in which the plaintiff sought relief affecting his property. It was not one in respect of any personal injury or wrong done to the bankrupt, Mr Daemar, for the purposes of the s 60(4) exemption from the s 60(2) stay. Mr Rana's obvious motivation in instituting the show cause action was as a step along the way to establishing and vindicating the right he alleges he has to recover damages for a personal injury or wrong to him. This is clear on the face of the application which joined all of the respondents in the proceeding before Lander J. Moreover the grounds on which relief was sought were directed at those respondents. It is not for me in this proceeding to consider whether he had standing to institute the action. That is a matter for the High Court. My present concern, rather, is with whether it can properly be said he is able to seek succour in s 116(2)(g) and hence challenge the trustee's discontinuance of the proceeding. I do not consider that he can do so. I can state my reasons shortly. First, though the various causes of action are widely cast in the Statement of Claim, at their centre are claims for breaches of contracts against some of the respondents and breaches of confidence, with satellite claims for negligence, defamation (to which I will refer separately below) and contraventions of s 52 of the Trade Practices Act against one or other of them. The contracts in question were a series of settlement agreements with several of the respondents in respect of outstanding litigations against them. The damages said to flow from all of these various wrongs, as best one can understand it, appears to be constituted primarily by a claim for $4,000,000 for "the loss and damage occurring to the applicant's compensation and benefits claims against the Commonwealth ... and its various agencies". It is to say the least difficult to see how such damages could be said to result from the wrong alleged. They clearly are not relevantly damages for a "personal injury or wrong done to [him]": cf s 60(4) and s 116(2)(g). Distinctly, I am not satisfied that Mr Rana is seeking to vindicate or establish a "personal wrong or injury" for s 116(2)(g) purposes. All of the claims he advanced (in SAD 12 of 2008) against all five respondents were struck out as abuses of process. No legally intelligible claims were disclosed against four of the respondents; the remaining claim against the University of South Australia was also struck out for the same reason, his Honour having found it was based on a document relied upon by Mr Rana which was "not authentic": Rana v University of Adelaide (No 2) at [7]. The proceedings before Lander J were doomed to failure. The imagined claims made did not give that degree of authenticity to the rights asserted such as would justify characterising them as rights to recover damages for personal injury or wrong to the bankrupt for s 116(2)(g) purposes. They are illusory rights. The final comment I should make is this. If I was not satisfied that, for whatever reason, the show cause action had not vested in the Trustee, I would not have declined to award Mr Rana relief on the grounds of futility. The present proceedings is quite unlike Daemar [No 2] . The High Court, not this Court, is seized of the show cause application. It is not for me to express a view on whether the High Court action is either competent or has any prospects of success. It is for that Court to do so. Having found that the proceeding A20 of 2008 was one for the Trustee and not Mr Rana to prosecute if it was to be prosecuted at all the Trustee's decision to discontinue it was, on the material before me, unimpeachable. That decision as I have indicated was the only one which raised any issue of substance for the purposes either of the AD(JR) Act or s 178 of the Bankruptcy Act . I have already indicated why there are no grounds at all for providing relief against the Trustee in respect of his decisions (actual or alleged) concerning the other proceedings referred to in Mr Rana's application. Accordingly, I will give summary judgment in favour of the respondents and will order that the proceeding be dismissed against each respondent. I will also order the applicant pay the costs of each respondent. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 September 2009 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First Respondent: The First Respondent did not appear. Counsel for the Second Respondent: G Gretsas Solicitor for the Second Respondent: Gretsas &amp; Associates Counsel for the Third Respondent: The Third Respondent did not appear. Date of Submissions: 20 and 25 May 2009 Date of Judgment: 18 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1050.html