ty AUSTRALIA yur Wath the Compliments of Gate PM Hefel Sup h hed VCcunl ANatiesy Auttonty "& 0G PL of 19GE Sef lad / Qe JUDGES' CHAMBERS FEDERAL COURT OF AUSTRALIA 119 NORTH QUAY BRISBANE 4000 AUSTRALIA JUDGMENT No. sonal Soul ocd in CA WORDS DISMISSAL OF APPEAL - statutory right to appeal - imstitution of appeal after sequestration - whether statutory right of appeal is property which vested in trustee Federal Court Rules O 52, r 18 Bankruptcy Act 1966 s 60 Fuller v, Beach Petroleum NL & Anor (1993) 43 FCR 60 FE iths v. Civil Aviation Authont "5 DE No. QG82 of 1994 C 1994 FEDERAL COURT oF AUSTRALIA PRINCIPAL REGISTRY efel isbane, 2 December 1994 E COU F AUSTRALIA No.OG82 of 1994 SLAND D EGISTRY GENERAL DIVISION On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President Miss S A Forgie (Presidential Member), Brigadier T R Gibson (Member) and Mr H G Julian (Member) BETWEEN: ROY FREDERICK GRIFFITHS AND: CIVIL AVIATION AUTHORITY JUDGE MAKING ORDER: Kiefel J DATE OF ORDER: 2 December 1994 WHERE MADE: Brisbane MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The appeal be dismissed as incompetent. 2. The appellant pay the respondent's costs of the motion and of the appeal to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION On appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President Miss S A Forgie (Presidential Member), Brigadier T R Gibson (Member) and Mr H G Julian (Member) BETWEEN: (0) ERICK GRIFFITHS AND: Vv. V. (@) CORAM: _Kiefel J DATE: 2 December 1994 PLACE: Brisbane REASONS FOR JUDGMENT The Civil Aviation Authority 1s the respondent to an appeal mstituted by Mr Griffiths on 28 June 1994 and moves the Court on notice under O 52 r 18 for a dismissal of the appeal as incompetent on the basis that, prior to its institution, Mr Griffith's property had been sequestrated. The appeal to this Court was from a decision of the Administrative Appeals Tribunal affirming the decision of the Civil Aviation Authority varying Mr Griffith's licences to fly helicopters and aeroplane by imposing restrictions. The relevant dates are: 8/2/94 Hearing concluded before the Tribunal and decision reserved 18/5/94 Sequestration 31/5/94 Tribunal delivers its decision 28/6/94 Notice of Appeal filed As Mr Ryan for the respondent observed in his submissions the chronology bears a striking resemblance to the sequence of events in Fuller v, Beach Petroleum NL & Anor (1993) 43 FCR 60. The majority of the Full Court (Gummow and Whitlam JJ) there held that an appeal was an action commenced within the meaning of s 60 of the Bankruptcy Act. Where it was brought after, and not before, sequestration it was not then governed by the provisions as to the stay of proceedings in s 60, and the matter fell to be determined on the question whether the statutory mght of appeal was "property" which vested in the trustee. In that regard the majority held that the statutory right to prosecute the appeal given by s 24 of the Federal Court Act fell within the meaning of the expression "personal property of every description" and therefore within the definition of "property" in s 5(1), as a result of which it vested in the bankrupt's trustee. That was so, in their Honour's view, even though the statutory right of appeal they were there concerned with was from a judgment creating a lability in the bankrupts (and involving findings of personal misconduct). In particular (66,67) their Honours pointed to the exclusion in s 116 from property divisible amongst the creditors of particular actions, from which it might be concluded that were it not for the exclusion bare nghts of action, not ordinarily assignable, were nevertheless to be treated as property divisible amongst the creditors and therefore as property which vested under s 58(1). In their Honour's view such a result was consistent with what was percerved to be the policy of the Bankruptcy Act that "after sequestration of the estates of unsuccessful litigants the successful party not be put at the risk of sustaining further costs of appellate litigation". Mr O'Gorman who appeared for Mr Griffiths raised the question of the nature of the right or interest in the licences which were the subject of appeal although he did not press the submission. The effect of the Tribunal's decision, upholding a finding that Mr Griffiths was not a fit and proper person to have an unrestricted licence, seriously curtails his ability to earn an income. It 3s a matter in which creditors might also have an interest although the trustee here has been notified of the respondent's intention to bring this motion but this has elicited no response and I infer then that the trustee has no interest in the matter. In Fuller Hill J in a dissenting judgment was of the view that the subject matter of the action in question could not be regarded as "property" and was not property divisible among creditors and further than the bankruptcy legislation did not vest a "bare right of action" in the trustee. His Honour (73) did not consider it correct to widen the interpretation of s 116(1) by reference to the exclusion provisions. As against the policy view expressed by the majority His Honour pointed to the inability of the bankrupt to pursue an appeal which involves findings of fraud against the bankrupt and that questions of costs could be addressed on a motion for security for costs. With respect to the majority, I consider there is much force in the reasons for judgment of Hill J and were I free to conclude the matter otherwise I would be inclined to follow them. The decisions of Gummow and Whitlam JJ however stand as the decision of the Full Court in relation to bankrupt's rights of appeal regardless of its subject matter. I therefore order that the appeal be dismissed as incompetent. I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Date: 2 December 1994 Associate Counsel for the applicant: Mr D P O'Gorman Solicitors for the applicant: L W Hewttt Counsel for the respondents: Mr D G Ryan Solicitors for the respondents: Mallesons Stephen Jacques Date of Hearing: 1 December 1994