mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.
Case: Termijtelen v Van Arkel [1974] 1 NSWLR 525
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.
Case: Myer Queenstown Garden Plaza Pty Ltd v City of Adelaide Port Adelaide (1975) 33 LGRA 70
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.
Case: Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955
Outcome: cited
The making of the declaratory order sought is a little more problematical. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth): see Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-2. The circumstances in which that power may be exercised are not circumscribed by strict rules: see per Gibbs J in Forster v Jododex Australia Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437. However, there has been a long held view that a declaration, a judicial act, should be made only on evidence and not simply on admissions or (as in this case) on deemed admissions: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401; Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 533; Wallersteiner v Moir [1974] 1 WLR 911 at 1029. In addition, it is appropriate to be cautious because a declaration may have effects more broadly than as between the particular litigants: Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70 at 82 per Wells J; Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955.
Case: Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510
Outcome: cited
If the applicant succeeds in this proceeding the applicant will not thereby be entitled to resume his employment. He will succeed only to the extent that he is entitled to have the impugned decision quashed and to have the matter remitted to the decision-maker to make a decision according to law. He cannot expect the Court to make the decision as to whether his employment should have been terminated. The purpose of judicial review is to require the decision-maker to make his or her decision in accordance with the law: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36. The merits of the decision are for the person in whom the power to make the decision reposes: Attorney-General v Quin [1990] HCA 21 ; 170 CLR 1 at 36; Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 579-580. Therefore, even if the applicant is successful, no property rights will accrue to the applicant and therefore to his estate. If he succeeds he will be given the right to have a decision which affects him made according to law.
Case: Affleck v Hammond [1912] 3 KB 162
Outcome: cited
Even so however, in Affleck v Hammond [1912] 3 KB 162 at 165, Vaughan Williams referred to these earnings as personal earnings. In that case, the Court of Appeal held that a bankrupt was not obliged to give security for costs in a suit for unpaid commission because the bankrupt was not a mere nominal plaintiff. The commission earnings were his "personal earnings" and did not pass to his trustee in bankruptcy. 81 In Geia v Palm Island Aboriginal Council 152 FLR 135 the bankrupt sued for damages for breach of contract or for moneys due and payable under a contract of employment. The bankrupt sought $109,692.30 in relation to a contract of employment which was for three years but which was terminated by the employer some weeks before the bankruptcy. The argument before the lower Court was whether the action was one falling within s 116(2)(g). That was rejected by the District Court Judge and not pursued in the Court of Appeal. In that court, the bankrupt argued that the cause of action was exempt under the "common law of bankruptcy". The critical issue in Geia v Palm Island Aboriginal Council 152 FLR 135 was explained (at 137): We were referred to Affleck v Hammond [1912] 3 KB 162 and to Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700 , in both of which Bailey v Thurston &amp; Co Ltd was relied on; but each of those cases concerned a different point, which was whether the bankrupt could sue for "moneys which, by his personal effort, he had earned": see Thistlethwayte (at 702). We have mentioned above that it is conceded that no such moneys are in issue in this case, where the plaintiff says he has a right to damages, or to be paid at the agreed rate past the date when his employment was terminated.
Case: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
If the applicant succeeds in this proceeding the applicant will not thereby be entitled to resume his employment. He will succeed only to the extent that he is entitled to have the impugned decision quashed and to have the matter remitted to the decision-maker to make a decision according to law. He cannot expect the Court to make the decision as to whether his employment should have been terminated. The purpose of judicial review is to require the decision-maker to make his or her decision in accordance with the law: Attorney-General v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36. The merits of the decision are for the person in whom the power to make the decision reposes: Attorney-General v Quin [1990] HCA 21 ; 170 CLR 1 at 36; Abebe v The Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 579-580. Therefore, even if the applicant is successful, no property rights will accrue to the applicant and therefore to his estate. If he succeeds he will be given the right to have a decision which affects him made according to law.
Case: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463
Outcome: cited
That would establish that he is impecunious but, as I have said, impecuniosity itself is not a bar to bringing a proceeding: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 ; James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 ; Knight v Beyond Properties Pty Ltd [2005] FCA 764.
Case: Chippendall v Tomlinson (1785) L Co Bank L 428
Outcome: applied
What is important for the purpose of this application is that the Act continues to recognise, as s 131 previously did, that the bankrupt's income is not part of the bankrupt's property except to the extent that a contribution is made. If it were otherwise, there would be no need for the Division 4B machinery because the trustee would be entitled to the bankrupt's income and wages. The Act continues to recognise the principle enunciated by Dixon J in Nette v Howarth [1935] HCA 22 ; 53 CLR 55 and recognises, as the law has since 1785, that income and earnings do not form part of the bankrupt's estate: Chippendall v Tomlinson (1785) L Co Bank L 428 per Lord Mansfield at 432; and 99 ER 900 at 902. 76 The right to seek a review of the respondent's decision to terminate the applicant's employment remains with the applicant. The trustee has no interest in seeking a review of that decision. The trustee, for example, could not ensure that if the decision were reversed that the applicant would resume employment. If the trustee was interested in the proceeding and brought the proceeding and the decision was quashed as the applicant seeks in this proceeding, there would be no property in the result which would be divisible among the applicant's creditors. The right to seek an order quashing the decision of the respondent to terminate the applicant's employment is not a right which can be exercised beneficially for the creditors, even in circumstances where the applicant seeks the further orders which may result in a sum of money being paid to him by way of compensation. Whether if the bankrupt received compensation that money would become after-acquired property for which he would have to account to his trustee does not need to be determined on this application: see Chippendall v Tomlinson (1785) L Co Bank L 428; 99 ER 900.
Case: Cirillo v City Corp Australia [2004] SASC 293 
Outcome: cited
The respondents argued that the concept of property is a very broad one and has to be understood in light of the principle that the creditors are to have the benefit of "every beneficial interest which the bankrupt has, every species of right or which by any possibility of profit can be made": Cirillo v City Corp Australia [2004] SASC 293 at [78] (citing re Buckle (1969) 15 FLR 460 at 466). 24 The respondents contended that the applicant's proceeding falls within s 116(1)(b) and thus s 58 because the proceeding involves the capacity to exercise powers in respect of property as might have been exercised by the bankrupt for his own benefit. Thus it is that the proceeding, the respondents contended, vests in the trustee.
Case: Clyne v Deputy Commissioner of Taxation [1984] HCA 44 ; (1984) 154 CLR 589
Outcome: cited
The purpose of the Bankruptcy Act is to ensure that all of the bankrupt's property, both real and personal at the time of the sequestration order and any property acquired by the bankrupt after the sequestration order, vests in the bankrupt's trustee in order that it is available to be divided among the bankrupt's creditors. At the same time as the property vests the bankrupt's creditors lose the right to recover their debts from the bankrupt in exchange for a right to prove their debts in the administration of the bankrupt's estate: s 58(3) ; Clyne v Deputy Commissioner of Taxation [1984] HCA 44 ; (1984) 154 CLR 589 at 594. The scheme is that the bankrupt's property will be distributed equally or rateably among the bankrupt's creditors: Cummings [1996] HCA 19 ; 185 CLR 124.
Case: Cox v Journeaux [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
Section 60(4) is part of the scheme of the Act which excises from the bankrupt's property at the time of the sequestration order property that would otherwise be divisible among the bankrupt's creditors being any action for personal injury or wrong done to the bankrupt, the bankrupt's spouse or member of the family, or any action for the death of the bankrupt's spouse or member of the family by allowing the bankrupt to continue the action notwithstanding the sequestration order. An action of that kind must be an action in which the damages claimed are assessed by reference "to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property": Cox v Journeaux [1935] HCA 48 ; (1935) 52 CLR 713 at 721. 39 Section 116(2)(g) completes the excision from the bankrupt's estate by excluding from property divisible among the bankrupt's creditors the right to recover damages or compensation for actions of the kind in s 60(4) and specifically excludes any damages or compensation recovered for proceedings of that kind from the property of the bankrupt divisible among the bankrupt's creditors. 40 Section 60(4) and s 116(2)(g) must be understood as allowing the bankrupt to retain a right to bring action and a right to retain damages of property that would be otherwise property divisible among the bankrupt's creditors. In other words, but for s 60(4) and s 116(2)(g), an action to recover damages for personal injury or wrong done to the bankrupt or his or her family and for damages or compensation recovered would be property divisible among the bankrupt's creditors.
Case: Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124
Outcome: referred to
The applicant contended that in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 , the majority of the High Court held that the right to appeal against a money judgment was not property within the meaning of the definition in the Bankruptcy Act . At p 133 Brennan CJ, Gaudron and McHugh JJ said: A right to appeal may be a substantive right, but it is another question whether such a right has the character of property. Some rights created by statute can constitute property, but a right to appeal does not have the character of properly merely because it is the creature of statute. A chose in action may be the property of the person entitled to enforce it, but a liability to satisfy a judgment enforcing a chose in action is not property of the person against whom the judgment is entered. A liability is not property of the person liable. Nor is a right to appeal against a money judgment property of the judgment debtor. Nor does such a right to appeal answer the description of property divisible among creditors defined by s 116(1)(b) , namely, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit". (Footnotes omitted.) 30 The applicant submitted that the question on this application is whether the right to bring an application for judicial review and consequential relief in relation to a decision to terminate a bankrupt's employment is property within the meaning of s 5 of the Bankruptcy Act and, more particularly, is property divisible among the bankrupt's creditors within the meaning of s 116(1)(b) of that Act. 31 The applicant relied upon Cummings [1996] HCA 19 ; 185 CLR 124 and Griffiths v Civil Aviation Authority (1996) 67 FCR 301 , being a decision of the Full Court of this Court in which the Court held that a proceeding in the Federal Court pursuant to s 44 of the Administrative Appeals Tribunal Act to challenge a decision of the Administrative Appeals Tribunal was not property divisible among the creditors of the appellant's estate vesting in the trustee of that estate. 35 The purpose of the Bankruptcy Act is to ensure that all of the bankrupt's property, both real and personal at the time of the sequestration order and any property acquired by the bankrupt after the sequestration order, vests in the bankrupt's trustee in order that it is available to be divided among the bankrupt's creditors. At the same time as the property vests the bankrupt's creditors lose the right to recover their debts from the bankrupt in exchange for a right to prove their debts in the administration of the bankrupt's estate: s 58(3) ; Clyne v Deputy Commissioner of Taxation [1984] HCA 44 ; (1984) 154 CLR 589 at 594. The scheme is that the bankrupt's property will be distributed equally or rateably among the bankrupt's creditors: Cummings [1996] HCA 19 ; 185 CLR 124.
Case: Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45
Outcome: cited
They contended that the exceptions in s 116(2), and in particular s 116(2)(g), do not apply. That exception, it is contended, only applies where damages are to be assessed by reference to "the pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property": Fitzpatrick v Keelty [2008] FCA 35 at [39] - [47] and Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45.
Case: Ex parte Vine; Re Wilson (1878) 8 Ch D 364
Outcome: referred to
The policy underlying the provision was explained by the Court of Appeal in Ex parte Vine; Re Wilson (1878) 8 Ch D 364 at 366-367 where James LJ (Cotton and Thesiger LJJ agreeing) said: The general principle always has been that, until a bankrupt has obtained his discharge, all his property is divisible among his creditors. But an exception was absolutely necessary in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his own living. On that principle the trustee could not sue for moneys due to the bankrupt in respect of his personal labour, and, if the bankrupt could sue for them only for the benefit of his trustee, he would really be without remedy. 43 In those circumstances, the kinds of action contemplated by s 60(4) and s 116(2)(g) do not assist in determining whether the right to bring this proceeding is property divisible among the bankrupt's creditors. This is not a proceeding of the kind contemplated by s 60(4) or s 116(2)(g). The question must be answered by reference to whether a proceeding of the kind brought by the applicant is property divisible among the bankrupt's creditors. That question must be addressed by reference to s 116(1). 44 This proceeding is for an order quashing the respondents' decision to terminate the applicant's employment by reason of a failure by the second respondent to accord the applicant procedural fairness and by the improper exercise of power.
Case: Federal Commissioner of Taxation v The Official Receiver [1956] HCA 24 ; (1956) 95 CLR 300
Outcome: discussed
In Federal Commissioner of Taxation v The Official Receiver [1956] HCA 24 ; (1956) 95 CLR 300 , the High Court was concerned with the precursor to s 131 of the Bankruptcy Act 1966 , viz s 101 of the Bankruptcy Act 1924-1950 (Cth) (the 1924 Bankruptcy Act ). In that case, the bankrupt was entitled to a sum of money from the Federal Commissioner of Taxation which represented an income refund for overpayment of taxation on income earned by the bankrupt. The income had been paid by the bankrupt's employer to the Federal Commissioner of Taxation under the Income Tax and Social Services Contribution Assessment Act 1936-1953 (Cth). The Official Receiver claimed to be entitled to the refund. 63 Section 91 of the 1924 Bankruptcy Act relevantly provided: the property of the bankrupt divisible among his creditors, and in this Act referred to as "the property of the bankrupt" shall ... subject to this Act ... include--(i) all property which belongs to or is vested in the bankrupt at the commencement of bankruptcy, or is acquired by or devolves on him before his discharge. 64 Section 101 relevantly provided: Subject to this Act, where a bankrupt is in receipt of pay, pension, salary, emoluments, profits, wages, earnings or income, the trustee shall receive for distribution amongst the creditors so much thereof as the Court, on the application of the trustee directs: Provided that this section shall not apply to any pay, pension, salary or wages which by any Act or State Act is made exempt from attachment or incapable of being assigned or charged.
Case: Fitzpatrick v Keelty [2008] FCA 35
Outcome: cited
They contended that the exceptions in s 116(2), and in particular s 116(2)(g), do not apply. That exception, it is contended, only applies where damages are to be assessed by reference to "the pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property": Fitzpatrick v Keelty [2008] FCA 35 at [39] - [47] and Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45.
Case: In re Roberts [1900] 1 QB 122
Outcome: cited
The English authorities and Australian authorities diverge in that the English authorities adopted the view that the bankrupt's earnings did form part of his estate "save only what is necessary for his support": In re Roberts [1900] 1 QB 122 at 129.
Case: James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442
Outcome: cited
That would establish that he is impecunious but, as I have said, impecuniosity itself is not a bar to bringing a proceeding: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 ; James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 ; Knight v Beyond Properties Pty Ltd [2005] FCA 764.
Case: Knight v Beyond Properties Pty Ltd [2005] FCA 764
Outcome: cited
That would establish that he is impecunious but, as I have said, impecuniosity itself is not a bar to bringing a proceeding: Barton v Minister for Foreign Affairs [1984] FCA 89 ; (1984) 2 FCR 463 ; James v ANZ Banking Group Ltd (No 1) (1985) 9 FCR 442 ; Knight v Beyond Properties Pty Ltd [2005] FCA 764.
Case: Pearson v Naydler [1977] 3 All ER 531
Outcome: cited
The general rule is that where the applicant is a natural person he or she will not be required to provide security for costs merely because he or she is impecunious: Pearson v Naydler [1977] 3 All ER 531 at 533 per Megarrey VC. That said, however, it is necessary to have regard to the circumstances of the case generally to determine whether the case is an appropriate one for an order for security for costs. 88 The applicant is a bankrupt. After his bankruptcy he obtained employment with the first respondent and during the course of his bankruptcy his employment with the first respondent was terminated. 89 Although there is no direct evidence, having regard to the proceeding itself, it may be inferred that the applicant has not been employed since his employment was terminated on 16 May 2008.