FEDERAL COURT OF AUSTRALIA Woodward v De Silva [2012] FCA 685 Citation: Woodward v De Silva [2012] FCA 685 Parties: LUCINDA WOODWARD v DAVID DE SILVA (OFFICER OF THE MINDIL BEACH SUNSET MARKETS ASSOCIATION INC) AND MINDIL BEACH SUNSET MARKETS ASSOCIATION INCORPORATED File number: NTD 15 of 2012 Judge: LANDER J Date of judgment: 25 June 2012 Date of hearing: 25 June 2012 Place: Darwin Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr G Clift Solicitor for the Respondent: De Silva Hebron IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 15 of 2012 BETWEEN: LUCINDA WOODWARD Applicant AND: DAVID DE SILVA (OFFICER OF THE MINDIL BEACH SUNSET MARKETS ASSOCIATION INC) AND MINDIL BEACH SUNSET MARKETS ASSOCIATION INCORPORATED Respondent JUDGE: LANDER J DATE OF ORDER: 25 JUNE 2012 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. The proceeding be adjourned sine die. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 15 of 2012 BETWEEN: LUCINDA WOODWARD Applicant AND: DAVID DE SILVA (OFFICER OF THE MINDIL BEACH SUNSET MARKETS ASSOCIATION INC) AND MINDIL BEACH SUNSET MARKETS ASSOCIATION INCORPORATED Respondent JUDGE: LANDER J DATE: 25 JUNE 2012 PLACE: DARWIN REASONS FOR JUDGMENT 1 The applicant commenced this proceeding on 19 March 2012 by filing an originating application and a statement of claim. In the originating application the applicant sought the following relief: 1. I am seeking relief under the authority of the Australian Constitution. 2. The Australian Constitution Chapter V Section 118 Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State. 3. I have been denied the right to have a matter brought before the Local Darwin Magistrates and Supreme Court under the authority of the Northern Territory of Australia Associations Act to be dealt with in accordance with the requirements contained within that Act. 4. I am seeking relief under the Authority of the Trade Practices Act 1974. 5. Trade Practices Act 1974 Part IVA – Unconscionable conduct 51AA Unconscionable conduct within the meaning of the unwritten law of the States and Territories 51AC Unconscionable conduct in business transactions 51ACAA Concurrent operation of State and Territory laws 6. I am seeking relief under the Authority of the Competition and Consumer Act 2010 which has superseded the 1974 Act. 7. Competition and Consumer Act 2010. Dealing with businesses and consumers (s. 21) Factors the court will consider when deciding whether conduct is unconscionable (s. 22) 8. I am requesting the Court to examine the matter of David De Silva (Officer of the Mindil Beach Sunset Markets Association Incorporated) AND Lucinda Woodward (oppressed member of the Mindil Beach Sunset Markets Association Incorporated) 9. I am seeking relief for damage done to the reputation, value and future earnings of the small business T/A Tinker Traders. 10. I am seeking relief for damage done to the personal reputation, health, well being and future lifestyle of the owner operator of the small business T/A Tinker Traders. 2 On 21 March 2012 the respondents filed their notice of address for service. 3 On 3 May 2012 the respondents filed an interlocutory application seeking to have the applicant's proceeding struck out as scandalous and/or vexatious and/or oppressive. In the alternative, they sought an order that the originating motion, as they described it, be removed from the Court file as being scandalous and/or vexatious and/or oppressive. In the third alternative, they sought the striking out of the statement of claim on the same grounds. 4 On 9 May 2012 I held a directions hearing, at which time I raised with the applicant the Court's jurisdiction to entertain her proceeding. I indicated at that time that on the hearing today I would hear as preliminary issues: first, the question of jurisdiction; and secondly, if I was persuaded that the Court had jurisdiction, the application to strike out the applicant's proceeding and/or statement of claim. 5 On 20 June 2012 the respondent's solicitors exhibited to an affidavit sworn by Josene Marie Weinberg on the same day, a sequestration order made in the Federal Magistrates Court by Registrar Christie. A sequestration order was made on 12 June 2012 against the applicant's estate. The Official Trustee is acting as the applicant's trustee in bankruptcy. 6 The sequestration order has the effect of engaging s 60 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), which provides that an action commenced by a person who subsequently becomes bankrupt is, upon her becoming bankrupt, stayed until a trustee makes election in writing to prosecute or discontinue the action: s 60(2). 7 There are exceptions to the broad rule stated in s 60(4), but those exceptions do not apply to this proceeding, and therefore to this applicant. 8 Section 60(3) of the Bankruptcy Act provides that 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. 9 Ms Weinberg's affidavit shows that, on 18 June 2012, the respondent's solicitors wrote to the Official Trustee in Bankruptcy enclosing a copy of the documents filed in a proceeding brought in the Local Court of Darwin and the documents filed in this proceeding, and asking the Official Trustee whether he was in a position to determine whether he will continue to prosecute those claims on behalf of Ms Woodward's bankrupt estate. The Official Trustee was advised in that letter that the proceeding was listed for hearing today on a preliminary point as to whether the Federal Court has jurisdiction to deal with the dispute. 10 The letter asked the Official Trustee: If you are not in a position to indicate whether you will be prosecuting the claims, would you please provide an indication as to how long a period of time you will require to determine, so that we may inform each Court on the next mention or hearing date. 11 I am advised by Mr Clift, counsel for the respondent, that as at close of business on Friday, 22 June, the Official Trustee had not replied to the respondent's solicitors' letter. The letter of 18 June 2012 would constitute a notice upon the trustee for the purpose of s 60(3) of the Bankruptcy Act. However, the trustee has not yet made an election and the time provided for the trustee to make such an election has not yet expired. In those circumstances, s 60(3) does not operate to deem the proceeding to have been abandoned. 12 The end result is that the proceeding is simply stayed by the operation of s 60(2). That means, as I explained to Ms Woodward, she cannot prosecute the proceeding before me today and that she should inform the Official Trustee of the merits of her claim, so that the Official Trustee can make an informed decision as to whether or not the Official Trustee would wish to prosecute the proceeding. I also indicated to Mr Clift that, in my opinion, his client's application to strike out the originating application and the statement of claim cannot be determined today again, because of the operation of s 60(2), the proceeding is stayed. 13 For those reasons, I decline at this stage to determine whether the Court has jurisdiction or whether the originating application or the statement of claim should be struck out. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 28 June 2012