Fisher v Transport for NSW [2016] NSWSC 1888

Supreme Court New South Wales

Medium Neutral Citation: Fisher v Transport for NSW [2016] NSWSC 1888 Hearing dates: 8 June 2016 Decision date: 22 December 2016 Jurisdiction: Common Law Before: McCallum J Decision: I make the following orders: (1) that the order of the registrar made 30 July 2015 dismissing the proceedings be set aside; (2) that the order of the registrar made 30 July 2015 ordering Mr Fisher to pay the defendants' costs be set aside; (3) that the proceedings be listed before the registrar on 2 February 2017 for directions. Catchwords: BANKRUPTCY – judicial review – whether proceedings stayed by operation of s 60(2) of Bankruptcy Act – where trustee indicates not to pursue matter in writing but does not file notice of discontinuance – where plaintiff seeks to continue proceedings in his own name

BANKRUPTCY - whether plaintiff's proceedings is an "action" within s 60(2) – whether the "action" is "in respect of any personal injury or wrong done" within s 60(4) – where adverse administrative decision finds plaintiff's character "not fit and proper" Legislation Cited: Bankruptcy Act 1966 (Cth), ss 27, 58, 60 Industrial Arbitration Act 1940 (NSW) Passenger Transport Act 1990 (NSW), s 11 Supreme Court Act 1970 (NSW), s 121 Uniform Civil Procedure Rules 2005 (NSW), r 49.19 Cases Cited: Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 Fitzpatrick v Keelty [2008] FCA 35 Garrett v The Commissioner of Taxation [2015] FCA 665; 233 FCR 226 Griffiths v Civil Aviation Authority (1996) 67 FCR 301; [1996] FCA 1502 Meriton Apartments Pty Limited v Industrial Court of New South Wales [2008] FCAFC 172 Moss v Eaglestone [2011] NSWCA 404 Pelechowski v NSW Land and Housing Commission [2000] FCA 233 Tomko v Palasty (No 2) [2007] NSWCA 369 Category: Principal judgment Parties: Brian Stanley Fisher (plaintiff) Transport for New South Wales (first defendant) Roads and Maritime Service (second defendant) Administrative Decisions Tribunal (third defendant) Representation: Counsel: Plaintiff self-represented B K Baker (defendants)

Solicitors: Hunt & Hunt (defendants) File Number(s): 2014/242718

Judgment 1. HER HONOUR: These proceedings raise an interesting question as to a person's entitlement to continue proceedings for judicial review after becoming a bankrupt. The plaintiff, Mr Brian Fisher, formerly conducted business as a bus operator and driver. He and his wife built the business over many years, operating tours and bus runs in several rural areas in northern New South Wales. 2. As a driver of public passenger vehicles, Mr Fisher was required by law to hold an authority under the Passenger Transport Act 1990 (NSW). In July 2011, Mr Fisher's driver authority was cancelled by the first defendant. Mr Fisher seeks judicial review of a series of decisions concerning the cancellation. 3. The proceedings were commenced by summons filed 18 August 2014. In April 2015, Mr Fisher became a bankrupt. The defendants subsequently wrote to Mr Fisher's trustee in bankruptcy requesting him to make an election to prosecute or discontinue the action, as contemplated by s 60(2) of the Bankruptcy Act 1966 (Cth). The trustee indicated that he would not be pursuing the matter further but did not file a notice of discontinuance. In the circumstances, a registrar of the court, after hearing from Mr Fisher, took the view that the appropriate order was to dismiss the proceedings. By notice of motion filed 27 August 2015, Mr Fisher seeks review of the registrar's decision. 4. The power to review a decision of a registrar is found in s 121(3) of the Supreme Court Act 1970 (NSW) and r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW): Tomko v Palasty (No 2) (2007) 71 NSWLR 61; NSWCA 369 per Hodgson JA at [4], per Basten JA at [40]-[42]; Ipp JA agreeing at [17]. While a review under those provisions does not require demonstration of error (the Court being required to exercise its own discretion), it may be noted that the issue raised by the present application is a question of law concerning the proper construction of ss 60(2) and 60(4) of the Bankruptcy Act. The determination of that question does not entail the exercise of jurisdiction in bankruptcy, which under s 27 of the Act is exclusive to the Federal Court and the Federal Circuit Court: Meriton Apartments Pty Limited v Industrial Court of New South Wales (2008) 251 ALR 19; FCAFC 172 per Branson J at [8], per Greenwood J at [117]; per Perram J at [197]. 5. For the following reasons, I have determined that the registrar's order dismissing the proceedings should be set aside. These are my reasons for reaching that conclusion. 6. The registrar's decision turned on the application of s 60 of the Bankruptcy Act 1966 (Cth), which relevantly provides: (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or (b) the death of his or her spouse or de facto partner or of a member of his or her family. 1. The registrar's decision records that the defendants sought to have the proceedings dismissed. The source of any power sought to be invoked to have the proceedings dismissed in the circumstances is not identified in the material before me. Where a trustee has not made an election under s 60(2), the action stands stayed by the operation of s 60(2) of the Bankruptcy Act, the bankrupt having the right to renew it after the conclusion of the bankruptcy: see Garrett v The Commissioner of Taxation (2015) 233 FCR 226; FCA 665 (Kenny J) at [8]. As already noted, in the present case, the trustee stated in writing that he would not be pursuing the matter further but did not file a notice of discontinuance. The registrar was satisfied that an election had been made in accordance with the section and appears to have taken the view, perhaps not unreasonably, that dismissal of the proceeding was the appropriate mechanism to give effect to that election failing the formality of a notice of discontinuance. 2. In any event, the critical question is whether s 60 operated to prevent Mr Fisher from continuing the proceeding in his own name. The determination of that question raises two matters concerning the proper construction of s 60: 1. whether Mr Fisher's proceeding is an "action" within the meaning of s 60(2); 2. if so, whether the action is nonetheless spared from the operation of s 60(2) because it is "an action…in respect of any personal injury or wrong done" to Mr Fisher within the meaning of s 60(4).

Is the proceeding an "action" within the meaning of s 60(2)? 1. Section 60(5) of the Bankruptcy Act defines "action" for the purpose of the section to mean "any civil proceeding, whether at law or in equity". The first question is whether the proceeding falls within that definition. If it does not, it is not governed by s 60 at all. Uninformed by authority, I would have thought there was a respectable argument that s 60 was not intended to govern proceedings for judicial review of administrative decisions. However, the defendants' submissions have persuaded me that the weight of authority is to the contrary. 2. The relevant authorities are comprehensively reviewed in the judgment of Kenny J in Garrett. The applicant in that case was the subject of a vexatious proceedings order. He applied for leave to appeal against that order but was subsequently made a bankrupt. The question accordingly arose as to whether the application for leave to appeal was stayed under s 60(2) of the Bankruptcy Act. The applicant argued that the application for leave to appeal was not an "action" within the meaning of that section because it lacked the necessary connection with the applicant's bankrupt estate. Kenny J rejected the existence of any such requirement. 3. As her Honour's careful analysis reveals, overwhelmingly the approach to s 60(2) has been that the term "action" should be broadly construed and not read down by any restriction of the kind suggested. Only two decisions identified by her Honour supported any qualification to that broad approach. 4. The first was the decision of the Court of Appeal in Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45. In that case, the applicant sought orders for relief in the nature of the prerogative writs directed to the Industrial Commission of New South Wales. In the proceedings in the Commission, Mr Daemar had been a respondent to an application pursuant to the Industrial Arbitration Act 1940 (NSW) to have a contract declared void. The precise nature of the contract is not stated in the judgment but it was described by Kirby P as "one whereby he seeks relief affecting his property" (at p 54). 5. After the commencement of the proceedings for prerogative relief in the Court of Appeal, Mr Daemar became a bankrupt. As in Garrett, the question accordingly arose whether the action was stayed by operation of s 60(2) of the Bankruptcy Act. The Court of Appeal unanimously held that it was. 6. In so holding, Kirby P acknowledged (at p 53): There may be cases where an "action" commenced by a person who subsequently becomes a bankrupt, and who is seeking relief prerogative in nature, would indeed fall outside the provisions of s 60(2), as that subsection was intended by the Parliament to operate" (emphasis added). 1. In Garrett, Kenny J remarked at [14] that this was "the nearest his Honour came to allowing for the possibility that s 60(2) might not apply to an action that lacked the necessary connection with a bankrupt's estate". 2. The second authority identified by Kenny J as providing potential support for that proposition was Griffiths v Civil Aviation Authority (1996) 67 FCR 301. The applicant in that case was a commercial pilot. The Civil Aviation Authority had made a decision varying the conditions of his commercial pilot licences following a finding that he was not a "fit and proper person" to hold the licences. The applicant then became a bankrupt. Following his bankruptcy, the Administrative Appeals Tribunal affirmed the decision of the Civil Aviation Authority. The pilot commenced proceedings in the Federal Court for judicial review of that decision. The Civil Aviation Authority contended that the pilot's right to appeal to the Court formed part of the "property of the bankrupt" vesting in the trustee in accordance with s 58 of the Bankruptcy Act. Keifel J felt bound by authority to hold that it did and dismissed the appeal as incompetent. The pilot appealed to the Full Court of the Federal Court. 3. The Full Court held unanimously that the pilot's right to appeal to the Federal Court did not vest in the trustee. As the bankruptcy preceded the commencement of the proceedings in the Federal Court, the decision was not concerned with the application of s 60(2). However, the judgment of Cooper J included remarks (at [14]) suggesting support for the view that s 60(2) is limited to actions in which the trustee has a "proper interest". His Honour concluded (at [33]): There is a unity of object and purpose in the operation of ss 58, 60 and 116 of the Act if it is recognised that the consistent focus of attention is upon rights which the trustee can turn to advantage for the benefit of creditors or upon rights the exercise of which will adversely affect or delay the administration of the estate. It is these rights which fall within the definition of "property" in s 5 and the enforcement of which by action are stayed by s 60(2) upon a person becoming bankrupt. To interpret "property" for the purposes of s 5 in this way avoids the injustice of denying to the bankrupt the power to exercise a right in which the trustee has no interest and the exercise of which cannot operate adversely on the property of the bankrupt or the administration of the bankrupt's estate. 1. In Garrett, Kenny J noted that it was only those remarks in the reasons of Cooper J which might be thought to support the proposition that s 60(2) may not apply to an action that lacks the necessary connection with a bankrupt's estate. Her Honour did not embrace those remarks. 2. While I can still see some force in the proposition that certain applications for prerogative relief unrelated to the property of the bankrupt might fall outside the provisions of s 60(2), I must respectfully acknowledge that the weight of authority appears to be against that view. In the circumstances, the appropriate course is to proceed on the assumption that the present proceeding is an "action" within the meaning of s 60(2) as defined in s 60(5).

Is the action "an action…in respect of any personal injury or wrong done"? 1. The more difficult question is whether Mr Fisher is entitled to continue the action in his own name in accordance with s 60(4)(a), that is, whether the action is one commenced "in respect of a personal injury or wrong done" to Mr Fisher. 2. As noted in the registrar's decision, the test for determining that question was stated in the decision of the High Court in Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 as being: whether the damages or part of them are to be estimated 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. 1. The cause of action asserted in that case was conspiracy to injure; the formulation of a test by reference to the measure of damages made sense in that context. However, in the legal context explained above, where the scope of actions to which s 60(2) applies is as broad as the notion of civil proceedings, a test formulated by reference to a single remedy cannot serve as a comprehensive test. While the test stated in Cox v Journeaux provides some assistance in understanding the notion of "a personal injury or wrong done to the bankrupt", it is necessary in the circumstances of the present case to analyse the injury or wrong in respect of which Mr Fisher seeks a remedy more closely. 2. The application for judicial review arises out of the cancellation of Mr Fisher's authority to drive a public passenger service. Section 11 of the Passenger Transport Act provides: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. (3) The regulations may create categories or grades of authority. 1. It may be seen that the requirements to hold an authority under that section are: 1. that the person is considered to be of good repute; 2. that the person is considered to be in all other respects a fit and proper person to be the driver of a public passenger vehicle; 3. that the person is considered to have sufficient responsibility and aptitude to drive the vehicles to which the authority relates in accordance with the conditions under which a public passenger service is operated; 4. that the person is considered to have sufficient responsibility and aptitude to drive the vehicles to which the authority relates in accordance with law and custom. 1. Mr Fisher held an authority to drive a public passenger service from 1 July 2003 (exhibit 1). On 6 June 2011, that authority was suspended by the first defendant. By separate letter of the same date, Mr Fisher was afforded 21 days to "show cause" why the authority should not be cancelled. On 14 July 2011, no response having been provided by Mr Fisher, his authority was cancelled with immediate effect. 2. On 25 May 2012, the Administrative Decisions Tribunal affirmed each of those decisions. The Tribunal expressly made no finding as to element (a) above, namely, Mr Fisher's repute: at [131]. However, the Tribunal made a finding at [128] that Mr Fisher was "not a fit and proper person to hold a drivers authority". The Tribunal made further adverse findings at [127]-[130] evidently directed to elements (c) and (d) above although not in the precise terms of the relevant provisions of the Passenger Transport Act. 3. Mr Fisher subsequently appealed to the Appeal Panel of the Administrative Decisions Tribunal. However, on the day it was listed for hearing, 4 October 2012, that appeal was withdrawn after the Appeal Panel refused an application by Mr Fisher (then represented by counsel) to vacate the hearing. The Appeal Panel formally dismissed the appeal, noting that it was withdrawn. Mr Fisher asserts that the indication by counsel to the Appeal Panel that the appeal was withdrawn was not made on his instructions. 4. On 31 October 2013, Mr Fisher filed a further notice of appeal. That application was out of time and required leave. 5. On 1 January 2014, the functions of the Administrative Decisions Tribunal were assigned to the newly-constituted Civil and Administrative Tribunal of New South Wales (known as NCAT). On 21 May 2014 the application for leave to appeal out of time was refused by NCAT on the basis that it had "poor prospects of success". 6. The original summons in these proceedings was filed on 18 August 2014. The summons sought judicial review of the decision of NCAT refusing leave to appeal to the Appeal Panel out of time. It also sought judicial review of the decision of the Administrative Decisions Tribunal made on 25 May 2012 upholding the decision to cancel the authority. I note that the original summons in these proceedings named the Administrative Decisions Tribunal as third defendant but it has been omitted from subsequent versions of the summons and NCAT has never been named as a defendant. 7. An amended summons was filed on 20 October 2014. The amended summons sought review of the same two decisions (the decision refusing leave to appeal to the NCAT Appeal Panel out of time and the decision upholding the decision cancelling Mr Fisher's bus driver's authority). It also sought review of the original decision of the first defendant to cancel Mr Fisher's driver's authority. 8. A further amended summons was filed on 25 May 2015, after the appointment of Mr Fisher's trustee in bankruptcy. The further amended summons seeks judicial review of the decision made on 6 June 2011 suspending Mr Fisher's authority, the decision made on 14 July 2011 cancelling the authority, the decision of the ADT made on 25 May 2012 upholding the decision cancelling the authority and NCAT's determination made on 21 May 2014 refusing leave to appeal out of time. 9. Mr Fisher appears for himself in the proceedings but has had the benefit of assistance from a legal practitioner in the preparation of his written submissions. He submits that the proper characterisation of the present proceeding is that it is a proceeding brought in respect of a personal injury or wrong done to him within the meaning of s 60(4) of the Bankruptcy Act. In particular, Mr Fisher contends that at the heart of the determination to cancel his authority as a bus driver is the finding that he is not a fit and proper person to hold such authority. He submitted that such a finding is a finding as to character, which falls within the scope of s 60(4)(a), being a personal injury or wrong done to the bankrupt. 10. Mr Fisher further submitted, addressing the language of the test stated in Cox v Journeaux, that the authority to drive a public passenger vehicle is in the nature of a privilege and lacks any indicia of property or ownership in the conventional sense or at all. 11. Mr Fisher relied on the decision of the Court of Appeal in Moss v Eaglestone (2011) 83 NSWLR 476; NSWCA 404 which he submits stands for the principle that, in applying s 60(4), the Court must look to the underlying substance of the claim. That was a case concerning a claim in defamation, which the court held fell within the exception under s 60(4). Mr Fisher submitted that the relief sought in the present case is best characterised as the reversal of an adverse character finding. 12. In my view, there is much force in those submissions. As explained above, I must determine this issue on the premise that an application for judicial review of an administrative decision is an "action" to which s 60(2) of the Bankruptcy Act applies. The meaning of the term "personal injury or wrong done to the bankrupt" in s 60(4) must be determined in that legal context. The broad interpretation of the statute explained in the authorities considered above necessarily comprehends the proposition that the notion of "personal injury or wrong" might include an adverse administrative decision. 13. If this was an action for damages for defamation arising from the publication of the imputation that Mr Fisher is not a fit and proper person to engage in his chosen occupation of a bus driver, the decision in Moss v Eaglestone would hold that the action fell within the exception in s 60(4). Mr Fisher would of course be unable to sue on that cause of action in the present case because the impugned decisions are plainly protected by absolute privilege; my point is a different one. It seems to me that, for coherence, the law should similarly regard an action seeking to impugn an administrative finding that Mr Fisher is not a fit and proper person to engage in the occupation of a bus driver to be an action "in respect of" a personal injury or wrong. 14. The defendants submitted that the present action is to be likened to applications alleging unlawful termination of employment, which have been held not to fall within the exception in s 60(4): see Pelechowski v NSW Land and Housing Commission [2000] FCA 233 and Fitzpatrick v Keelty [2008] FCA 35. However, a critical consideration in each of those cases was the fact that the essential element of the action was that an economic relation (whether dependent upon contract or statute) had been disrupted. The connection with the bankrupt's rights of property in that context is clear. I do not think those decisions determine the issue raised in the present case. 15. Similarly, in Daemar, the action which the Court held was stayed by the operation of s 60(2) was described by Kirby P as being "undoubtedly one whereby [the applicant] seeks relief affecting his property ....." 16. While I acknowledge that the decision in Griffiths did not concern the application of s 60, that decision does provide some support for the conclusion that the present action relates to a "personal injury or wrong done to the bankrupt" within the meaning of s 60(4). The test in Cox v Journeaux directs attention to the issue whether the remedy sought in the action relates to the bankrupt's mind, body or character "without reference to his rights of property". The present action relates to Mr Fisher's character; the decision in Griffiths holds that the action does not relate to Mr Fisher's property. 17. For those reasons, I am satisfied that Mr Fisher's action falls within the exception to s 60(4) of the Bankruptcy Act and accordingly that s 60(2) had no application. In my view, the action is one Mr Fisher is entitled to continue in his own name. 18. In supplementary submissions, the defendants submitted that the proceedings should be dismissed in any event as being of no utility. The basis for that submission was that the period of Mr Fisher's authority to drive a public passenger vehicle has now expired and that it is accordingly open to him to apply for a fresh authority. 19. Mr Fisher has in fact done just that. He tendered a letter from the first defendant refusing his fresh application. The reasons for that decision recited the grounds on which his earlier authority was cancelled. Ms Baker, who appears for the defendants, frankly (and very properly) acknowledged that the submission as to the futility of the present proceedings was made in ignorance of that letter. I am not persuaded that the proceedings are futile; on the contrary, the letter tendered by Mr Fisher makes plain that the underlying decision he seeks to impugn (if he is successful in reversing the decision refusing leave to appeal out of time) remains an important impediment to his obtaining authority to drive a public passenger vehicle in the future. 20. For those reasons, I make the following orders: 1. that the order of the registrar made 30 July 2015 dismissing the proceedings be set aside; 2. that the order of the registrar made 30 July 2015 ordering Mr Fisher to pay the defendants' costs be set aside; 3. that the proceedings be listed before the registrar on 2 February 2017 for directions. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2016