Case: Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 33 For the Respondents it is submitted that none of the damages Mr Rogers claims in the present proceeding would fall for assessment by "immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property". The conjunctive in this proposition, derived from Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, is emphasised on their behalf. It is submitted that the damages which Mr Rogers claims are entirely consequential on damage to Mr Rogers' financial interests as a result of alleged contraventions of the ASIC Act . Mr Rogers presses for an opposing conclusion. 35 The reference to "the principle stated by Dixon J" is a reference to the reasons for judgment of his Honour in Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721 to which reference is made in the passage which I have quoted above from the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195. 57 For all that, what in substance Mr Rogers has done in the present proceeding is to seek to agitate a claim for damages for personal injury, loss and damage pursuant to causes of action said to arise under the ASIC Act . He has not done this before. No submission was made that this absence of seeking to litigate this very cause of action was irrelevant in light of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and the outcome of earlier proceedings in this Court brought by Mr Rogers against some of the Respondents. Further, it is, with respect, as set out above, possible to discern in the reasons for judgment given in certain of the earlier proceedings the inspiration for the present proceeding. Yet further, the application of the principle described by Sir Owen Dixon in Cox v Journeaux (No. 2) in the circumstances of the present case is not without difficulty.