McIntosh v Official Trustee in Bankruptcy [2014] FCA 989

FEDERAL COURT OF AUSTRALIA

McIntosh v Official Trustee in Bankruptcy [2014] FCA 989 Citation: McIntosh v Official Trustee in Bankruptcy [2014] FCA 989

Parties: MORAY MCINTOSH v THE OFFICIAL TRUSTEE IN BANKRUPTCY

File number: QUD 205 of 2014

Judge: DOWSETT J

Date of judgment: 26 June 2014

Legislation: Bankruptcy Act 1996 (Cth) ss 60, 178 Federal Court Rules 2011 rr 1.40, 5.22, 5.23

Date of hearing: 26 June 2014

Place: Brisbane

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 2

Solicitor for the Applicant: The Applicant did not appear

Solicitor for the Respondent: The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 205 of 2014

BETWEEN: MORAY MCINTOSH

Applicant

AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE: DOWSETT J DATE OF ORDER: 26 JUNE 2014 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. the application be dismissed pursuant to rr 1.40, 5.22 and 5.23. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 205 of 2014 BETWEEN: MORAY MCINTOSH

Applicant

AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

JUDGE: DOWSETT J DATE: 26 JUNE 2014 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant has not appeared at a directions hearing listed for today. In those circumstances I am minded to dismiss his application. I have considered the nature of his application as it appears from the material. It seems that his trustee in bankruptcy has declined to proceed with certain litigation which the applicant was pursuing against a Mr Christopher Bathe in the Supreme Court of Queensland. The applicant seeks to appeal from that decision, pursuant to s 178 of the Bankruptcy Act 1966 (Cth) (the "Act") and asserts a right to prosecute the action, himself, pursuant to s 60(4) of the Act. That subsection authorizes the continued prosecution by a bankrupt of proceedings for any personal injury or wrong done to the bankrupt, his spouse, de facto partner or a member of his family. Having regard to the cases, there is no basis upon which it can be said that the claim against Mr Bathe arises out of a personal injury or wrong. To the extent the applicant seeks to establish any right to prosecute the action, he must fail. 2 As to the purported appeal against the exercise by the trustee of the discretion not to proceed with the action against Mr Bathe, no grounds are advanced. In those circumstances, it seems appropriate that I dismiss the application on the basis that the applicant did not appear at the directions hearing scheduled for today. In so doing I act pursuant to rr 1.40, 5.22 and 5.23 of the Federal Court Rules 2011. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.