Worchild v University of Queensland Law Society [2006] FCA 1078

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY – whether proprietary claims - whether bankrupt competent to commence proceedings – whether claims constitute personal injury or wrong within the meaning of the Bankruptcy Act 1966 (Cth)

ABUSE OF PROCESS – whether attempt to re-litigate issues already ventilated before the Court

PRACTICE AND PROCEDURE – pleadings – whether pleadings disclose a reasonable cause of action

Bankruptcy Act 1966 (Cth) ss 5, 58, 116

Federal Court Rules, O 20 r 2, O 10 r 4, O 11 r 2, O 11 r 16

Worchild v The Drink Nightclub (Qld) Pty Ld [2004] FCA 642 referred to.

Andrew Worchild v University of Queensland Law Society Inc & Anor [2005] QDC 161;

CA Judgment 5302/05 referred to.

Worchild v University of Queensland Law Society Inc & Anor [2006] HCATrans 181 referred to.

Daemer v Industrial Commission NSW (1988) 79 ALR 591 referred to.

Cummings v Claremont Petroleum NL (1995 – 1996) 185 CLR 124 applied.

Faulkner v Bluett (1981) 51 FLR 115 referred to.

Cox v Journeaux (No 2) (1935) 52 CLR 713 applied.

Bryant v Commonwealth Bank (1977) 75 FCR 544 followed.

Jambrecina v Official Trustee in Bankruptcy [2003] FCA 1352 followed.

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 referred to.

Walton v Gardiner (1992) 177 CLR 378 applied.

Gould and Birbeck and Bacon v Mount Oxide Mines Ltd. (in Liquidation) (1916) 22 CLR 490 referred to.

Banque Commerciale SA (Enliq) v Akhil Holdings Ltd (1990) 169 CLR 279 referred to.

ANDREW WORCHILD v UNIVERSITY OF QUEENSLAND LAW SOCIETY INC

& ANOR

QUD 149 of 2006

SPENDER J

17 AUGUST 2006

MELBOURNE (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLANDDISTRICT REGISTRY	QUD 149 OF 2006

BETWEEN:	ANDREW WORCHILD APPLICANT
AND:	UNIVERSITY OF QUEENSLAND LAW SOCIETY INC FIRST RESPONDENT CANDICE JACOBS SECOND RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	17 AUGUST 2006
WHERE MADE:	MELBOURNE (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The proceedings be dismissed as incompetent.

2. The applicant pay the costs of the first respondent of the principal proceedings, and of the Notice of Motion, to be taxed if not agreed.

3. The applicant pay the costs of the second respondent of the principal proceedings, and of the Notice of Motion, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLANDDISTRICT REGISTRY	QUD 149 OF 2006

BETWEEN:

ANDREW WORCHILD

APPLICANT

AND:

UNIVERSITY OF QUEENSLAND LAW SOCIETY INC

FIRST RESPONDENT

CANDICE JACOBS

SECOND RESPONDENT

JUDGE:	SPENDER J
DATE:	17 AUGUST 2006
PLACE:	MELBOURNE (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

1 This is a Notice of Motion filed by the second respondent in the principal proceedings on 19 May 2005, and heard by this Court on 23 June 2006. Mr Worchild (‘the applicant’) is the applicant in those proceedings. The Notice of Motion seeks orders:

1. That pursuant to O 20 r 2 and relying upon O 10 r 4 of the Federal Court Rules the applicant’s proceedings be dismissed.

2. In the alternative that the applicant’s proceeding be stayed pursuant to O 20 r 2 and relying upon O 10 r 4 of the Federal Court Rules.

3. The applicant pay the second respondent’s costs of and incidental to this motion and the proceeding.

4. Such further or other orders as the Court deems appropriate.

2 The Notice of Motion is supported by the first respondent.

3 This Notice of Motion was first before the Court on 25 May 2006. On this date I adjourned the Motion, on the basis that the second respondent in the principal proceedings failed to comply with rules in relation to the filing and service of material in accordance with the Federal Court Rules.

4 I also noted at that time that by the hearing on 23 June 2006 I would expect the parties to know of the outcome of the applicant’s appeal against the making of a sequestration order against him. That appeal was heard in May. I adjourned the Motion on the basis that the sequestration order appeal would reveal the competence of these proceedings being brought by the applicant. That appeal has not yet been determined. Mr Worchild on the hearing of the Motion said of his appeal:

‘The matter hasn’t been dealt with as such. But I think it would be safe to assume that the appeal will fail. All my appeals fail, so proceed on that basis.’

I then asked:

‘…if we are to proceed on the basis that at the moment there is a sequestration order against you, why is it then competent to bring these proceedings?’

5 Before dealing with the Notice of Motion it is necessary to briefly set out the history of litigation.

6 On 27 February 2003, the applicant, Mr Worchild, purchased what is commonly referred to as an ‘L Card’ for $10.00 from the Queensland University of Technology Association of Law Students. An ‘L Card’ is a plastic student discount card that entitles its holder to various discounts, including free entry to various venues and discounted drinks.

7 The first respondent, the University of Queensland Law Society (‘UQLS’), is a student organisation. The second respondent, Ms Jacobs, was at the material time the President of the Griffith Gold Coast Student Law Association, the organisation responsible for issuing the ‘L card’ to the applicant.

8 The circumstances which led to the litigation are set out in the judgment of Cooper J in Worchild v The Drink Nightclub (Qld) Pty Ld [2004] FCA 642 at pars 11 – 12:

‘[11] The applicant alleged that over a period of twelve months he had not been able to purchase any drinks at the first respondent´s nightclub, at the discounted rate he alleged was allowable upon presentation of the card, and asserted that from 21 June 2003 he had been denied entry to the nightclub on Saturday nights and Sunday mornings, notwithstanding presentation of the L Card.

[12] He deposes to a conversation with one Candice Jacobs of the Student Law Assn at Griffith University, Gold Coast campus (‘SLA’) on 12 October 2003, wherein it is alleged that she told him that she ‘negotiated the contract’ with the first respondent which contract was confirmed in writing and a facsimile copy of the writing was received by her. She is alleged to have stated in that conversation about a month after the L Cards had been sold that she was contacted by one Andrew Hutchinson of the first respondent, who requested that the terms of the ‘offer be amended to exclude Saturday nights’. The applicant states in his affidavit that the amendment was ‘only made to the Griffith University terms and conditions’.’

9 Cooper J dismissed the applicant’s proceedings against the Drink Nightclub (Qld) Pty Ltd on 24 May 2004, stating at par 37:

‘The Court orders that the proceedings be dismissed pursuant to O 20 r 2 [of the Federal Court Rules] on the basis that they disclose no cause of action, are embarrassing in a pleading sense and there exists no demonstrable basis upon which the applicant may make out on his own behalf, or on behalf of the group members, a cause of action which has a prospect of succeeding at trial.’

A costs order was made against Mr Worchild.

10 On 22 October 2004, the applicant brought proceedings in the District Court of Queensland, seeking damages for the applicant’s time and expense, and for the costs he was ordered to pay in the Federal Court proceedings before Cooper J. It was alleged by the applicant that he was induced to commence the proceedings brought in 2004 in the Federal Court by various representations made by members of the UQLS, namely its secretary Mr Goss, and the second respondent. As a consequence he suffered loss, including costs and other fees, because of the doomed proceedings.

11 On 10 June 2005, in proceedings BD3799 of 2004, McGill DCJ struck out this claim, giving the applicant liberty to re-plead within six weeks, and dismissed the applicant’s application for summary judgment.

12 On 30 June 2005, the applicant filed an application with the Court of Appeal seeking leave to appeal the order made by McGill DCJ, the applicant citing some 28 grounds. He did not replead within the time allowed by McGill J, or at all. On 5 October 2005, the Court of Appeal, McPherson and Gerrard JJA and Douglas J, in judgment Appeal No 5302/05, refused leave.

13 Douglas J, with whom the other judges agreed, said of the applicant:

‘The learned District Court Judge struck out his pleading. In detailed reasons for judgment his Honour concluded that the allegations relied on to support the applicant's claim in fraud did not support such a cause of action both because the representations pleaded could not support such a cause of action and because the pleading did not sufficiently allege that the representations were made with the intention that the plaintiff should act on them by commencing proceedings in the Federal Court. In my view his Honour was correct in that analysis.

His Honour also pointed out that a claim made purportedly for damages for misleading and deceptive conduct contrary to section 52 of the Trade Practices Act 1974 (Commonwealth) failed to allege that the first defendant was a trading corporation, nor was it alleged that any other representations relied on were made by it in trade or commerce, nor, his Honour concluded, was there a proper pleading of a breach of section 52 in respect of which the second defendant could have been knowingly concerned, she being a natural person.

He also pointed to the failure to plead that either defendant was engaged in trade or commerce in respect of a claim purportedly made pursuant to section 38 of the Fair Trading Act 1989 and pointed out that there were no allegations in the pleading of material facts which would show that the plaintiff was a consumer for the purposes of that Act.

His Honour went on to deal in detail with the claim for damages for negligence purportedly made in the pleading. He concluded that part of the pleading dealing with the duty to take reasonable care was defective, but that otherwise the pleading was not sufficiently inadequate to satisfy the test in General Steel Industries Inc v. The Commissioner for Railways (NSW) (1964) 112 CLR 125.

He was of the view, however, that it was clearly not reasonably foreseeable that the plaintiff would respond to the representations alleged, assuming they were made and assuming they involved a breach of duty, by commencing proceedings in the Federal Court against the nightclub and its director. See paragraph 30 of his Honour's decision.’

14 On 20 October 2006, the applicant filed an application for special leave to appeal to the High Court, citing four grounds of appeal. On 12 April 2006 (Worchild v University of Queensland Law Society Inc & Anor [2006] HCATrans 181), the High Court dismissed the application, Gummow J saying:

‘McGill DCJ granted applications by the respondents to strike out the claim and statement of claim on the basis that they disclosed no reasonable cause of action, while giving the applicant liberty to replead and dismissing in turn his application for summary judgment. His Honour found that the representations alleged were incapable of supporting a cause of action in fraud, negligence or under s 52 of the Trade Practices Act or s 38 of the Fair Trading Act 1989 (Q). An application for leave to appeal to the Court of Appeal was refused by McPherson and Jerrard JJA and Douglas J.

The applicant’s written case raises no question of principle nor any reason to doubt the correctness of the decision of McGill DCJ or of the Court of Appeal, and moreover the proceedings before the District Court were interlocutory in nature. There would be no prospects of success on any appeal to this Court. Special leave is refused.’

15 I turn now to the present application before the Court.

16 The applicant is an undischarged bankrupt. A sequestration order was made against him by Rimmer FM on 12 October 2005. The debt on which the bankruptcy proceedings were based were the costs ordered by Cooper J to be paid by Mr Worchild in respect of his failed Federal Court proceedings. The material indicates that he has not filed a Statement of Affairs.

17 A letter from the Insolvency and Trustee Service Australia, by Official Receiver Mr Peter Aburn, dated 15 June 2006, stated:

‘I confirm that the Official Trustee in Bankruptcy has not given Mr Worchild consent or approval to initiate any litigation. Mr Worchild has not contacted the Official Trustee seeking to obtain such consent or approval.

The Official Trustee has not assigned any right or rights vested in it nor given consent to Mr Worchild or any other person to pursue in the Courts any chose in action vested in the Official Trustee as a consequence of the Official Trustee becoming trustee of Mr Worchild’s bankruptcy.’

18 The principal submission by the second respondent, supported by the first respondent, is that it is not competent for the applicant to bring the principal proceedings.

19 On a debtor becoming bankrupt, the Bankruptcy Act 1966 (Cth) (‘the Bankruptcy Act’) s 58 provides:

‘58 Vesting of property upon bankruptcy—general rule

(1) Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

(2) Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.

(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b) except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

(4) After a debtor has become a bankrupt, distress for rent shall not be levied or proceeded with against the property of the bankrupt, whether or not the bankrupt is a tenant of the landlord by whom the distress is sought to be levied.

(5) Nothing in this section affects the right of a secured creditor to realize or otherwise deal with his or her security.

(5A) Nothing in this section shall be taken to prevent a creditor from enforcing any remedy against a bankrupt, or against any property of a bankrupt that is not vested in the trustee of the bankrupt, in respect of any liability of the bankrupt under:

(a) a maintenance agreement; or

(b) a maintenance order;

whether entered into or made, as the case may be, before or after the commencement of this subsection.

(6) In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.’

20 Section 116 of the Bankruptcy Act relevantly provides:

‘116 Property divisible among creditors

(1) Subject to this Act:

(a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge;

(b) 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 or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge;

(c) property that is vested in the trustee of the bankrupt’s estate by or under an order under section 139D or 139DA; and

(d) money that is paid to the trustee of the bankrupt’s estate under an order under section 139E or 139EA;

is property divisible amongst the creditors of the bankrupt.

(2) Subsection (1) does not extend to the following property:

…

(g) any right of the bankrupt to recover damages or compensation:

(i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; or

(ii) in respect of the death of the spouse of the bankrupt or a member of the family of the bankrupt;

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;

…’

(Emphasis added)

21 Property is defined in s 5 of the Bankruptcy Act:

‘property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.’

22 The effect of the above provisions of the Bankruptcy Act was explained by Kirby P in Daemer v Industrial Commission NSW (1988) 79 ALR 591 at 597. Kirby J said at par 116:

‘These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. The trustee has the charge of the estate of the bankrupt. It is then for the trustee to distribute that property as the Act provides, principally for the benefit of the creditors. To secure the benefits and protections which the Act provides to a debtor, the debtor's status is changed, rights are diminished and property is controlled. It could scarcely be otherwise for if it were, valuable interests which a bankrupt might have, in the form of choses in action would not be caught in the net cast by the very wide language of s 116(1). This would be so despite the specific and limited terms of the exemption in the case of rights to recover damages or compensation provided by s 116(2) and the very purposes of gathering in the bankrupt's property. It is necessary to keep the general purpose of the Act in mind, and the scheme by which those purposes are effected, when approaching the contentious issue about the operation of s 60 upon the claimant's amended summons.’

23 In Cummings v Claremont Petroleum NL (1995 – 1996) 185 CLR 124 at p 132, Brennan CJ, Gaudron and McHugh JJ stated:

‘Broadly, and not precisely, the effect of bankruptcy is to divest a bankrupt of his property, to vest that property in a trustee and to make it available for the payment of provable debts. The right to commence or take a fresh step in legal proceedings or to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt are, in general, denied to creditors when sequestration is ordered (s 58(3)). The right of the bankrupt to prosecute proceedings that he has commenced is restricted by s 60(2). The bankrupt's concerns as to the administration of his property and the payment of his creditors can be addressed by the Court in the exercise of its supervisory jurisdiction over the conduct of the trustee. Section 178 of the Act provides:

"If the bankrupt, a creditor or any other person is affected by any act, omission or decision of the trustee, he may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable."’

24 Lockhart J in Faulkner v Bluett (1981) 51 FLR 115 at p 119, after a review of the cases, said:

‘The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee nothwithstanding that it may have produced personal inconvience to the bankrupt: Wetherell v Julius (1850) 10 CB 276; 138 ER 108; Wage on Bankruptcy (1904 ed), p. 201. Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt.

As Erle J said in an oft-cited passage in Beckham v Drake (1849) 2 HLC 579; 9 ER 1213: ‘The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights or property.’

25 In Cox v Journeaux (No 2) (1935) 52 CLR 713 at p 721, Dixon J stated the test to be applied when determining whether an action is for personal injury or wrong:

‘The test appears to be 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 (Wilson v. United Counties Bank Ltd. (1920) AC 102, at pp. 111 and 128 – 133).’

26 Further, in Bryant v Commonwealth Bank (1977) 75 FCR 544, (‘Bryant’) where an applicant initiated an appeal eight days before a sequestration order was made against his estate, it was noted by Lockhart J at p 547 that ‘Mr Bryant may continue in his own name the appeal brought by him from the judgment of Sackville J if the appeal is in respect of a personal injury or wrong done to him, his spouse or a member of his family. If the appeal cannot be so described then he cannot continue the action; the right to do so being vested in his trustee who on the facts is deemed to have abandoned the appeal.’ (Emphasis added)

27 In Bryant, Lockhart J, at pp 547-549, analysed a number of cases, some of which were causes of action that vested in the trustee, and some that did not. After reviewing these authorities, his Honour concluded:

‘When an action has been brought by a person who subsequently becomes bankrupt the nature of the action is determined by examining the initiating process and pleadings and any other relevant documents in the case. How does one determine the nature of an appeal? To determine whether an appeal is in respect of a personal injury or wrong done to the bankrupt, his spouse or a member of his family one must look at the action itself which gave rise to the judgment and the subsequent appeal.’

28 Here, in my judgment, the primary and substantial rights of action that the applicant seeks to pursue are proprietary, notwithstanding the assertion that the facts on which those claims are made also caused him distress, or loss of reputation.

29 In Jambrecina v Official Trustee in Bankruptcy [2003] FCA 1352, Bennett J held that the applicant bankrupt was incompetent to continue proceedings, in circumstances where the Official Trustee of Bankruptcy did not wish to continue the proceedings, and had not assigned the cause of action to the bankrupt.

30 Her Honour referred to the test in Cox v Journeaux (No 2) (1935) 52 CLR 713 at p 721, and noted at pars 16 – 17:

‘[16]The statement of claim represents an indivisible cause of action in tort and contract. There is no separate cause of action pleaded to recover damages for personal injury or wrong. The claims for non-economic loss arise out of the economic loss being sued for; they are not claims ` without reference to his rights of property ´ and, as such, would not be within s 60(4)(a) (Daemar v Industrial Commission of New South Wales(1988) 12 NSWLR 45; Mannigel v Phelps (unreported, New South Wales Court of Appeal, 12 June 1991); Morton v Vouris [1998] FCA 394; Arnoya Holdings Pty Ltd v Metway Leasing Ltd[1999] NSWCA 120).

[17] Thus the rights to the action vest in the respondent pursuant to s 58(1) and are not excluded by reason of s 60(4) and s 116(2) of the Act. The respondent has elected not to prosecute or discontinue the action and not to assign the action to Mr Jambrecina.’

31 Her Honour continued at par 21:

‘[21] On bankruptcy, all rights to pursue appeals notionally pass to the trustee in bankruptcy, who has power to institute appeals (Cummings v Claremont Petroleum NL(1995) 185 CLR 124 (‘Cummings’) per Brennan CJ and Gaudron and McHugh JJ at 138-9; per Dawson and Toohey JJ at 145-6). It is a matter for the trustee, in the proper exercise of discretion and having regard to all the circumstances, to decide whether to pursue an appeal. It may be unjust to leave the institution of an appeal against a judgment which reflects upon the bankrupt´s personal or professional character to the discretion of a trustee whose interests do not necessarily extend to this question (Cummings at 138). However, while the Court´s discretion under s 178 is at large, a Court would be unlikely to permit the bankrupt to pursue his personal interests, in so far as they are not coincident with the due administration of the estate by the trustee, at the expense of the creditors (Cummings at 139).’

32 The question then is, what is the character of the rights of action in the present case?

33 In the principal proceedings, instituted on 26 April 2006, the applicant claims:

A. Declarations pursuant to section 163A of the Trade Practices Act 1974 (Cth) (“the Act”), alternatively section 21 of the Federal Court of Australia Act 1976, that the Respondents have contravened section 52, and/or section 60 and/or section 51A, and/or section 51AC of the Act and/or s 38 of the Fair Trading Act 1989 including declarations that –

1. The Respondents contravened section 52 of the Act by engaging in the conduct referred to in the Statement of Claim;

2. Further, and/or alternatively the Respondents contravened section 60 of the Act by engaging in the conduct referred to in the Statement of Claim;

3. Further, and/or alternatively the Respondents contravened section 51A of the Act by engaging in the conduct referred to in the Statement of Claim;

4. Further, and/or alternatively the Respondents contravened section 51AC of the Act by engaging in the conduct referred to in the Statement of Claim;

5. By the conduct alleged in the Statement of Claim the Respondents were a party to the alleged contravention of section 52, and/or section 60 and/or 51AC and/or 51A of the Act within the meaning of section 75B of the Act; and

6. By the conduct alleged in the Statement of Claim the Respondents was [sic] knowingly concerned in the alleged contravention of section 52, and/or section [sic] 60, 51A, 51AC of the Act within the meaning of section 75B of the Act; and

7. By the conduct alleged in the Statement of Claim the Respondent was involved in contraventions of sections 51A, 51AC, 52, and/or section 60, of the Act within the meaning of section 75B of the Act.

8. The Defendants conduct was negligent and/or constituted fraud/constructive fraud by engaging in the conduct referred to in the Statement of Claim; and/or

B. Damages pursuant to section 82(1) of the Act including aggravated and exemplary damages.

C. Damages pursuant to section 99 of the Fair Trading Act for misleading and deceptive conduct in the sum of $60 000; and/or

D. Such further or other relief and orders as the Court considers appropriate pursuant to section 100 of the Fair Trading Act;

E. Damages for Fraud and/or Constructive Fraud and/or Breach of Duty to disclose supervening falsification and/or Negligence including aggravated, and exemplary damages;

F. Such further or other relief and orders as the Court considers appropriate pursuant to section 87(1) of the Act including orders for the indemnification of the Applicant for all liabilities paid out and work done under and pursuant to all legal proceedings in connection with the Federal Court legal claim including consequential legal proceedings in the District Court, Court of Appeal, High Court, Federal Court, Full Court of the Federal Court and the Federal Magistrates Court; and/or

G. Costs.

H. Interest.

I. Such further relief and other orders as the Court considers appropriate.’

(Emphasis added)

34 Mr Worchild, who represented himself in the hearing of the Motion, argued before the Court that his claim constitutes ‘a personal injury or wrong done to the bankrupt’ within the meaning of s 116(2)(g), and as such he is entitled to bring the proceeding.

35 Also, he submitted that his loss of ‘income’ is a compensatory claim that is exempt, because ‘a bankrupt is entitled to earn an income up to a prescribed amount’.

36 Further, Mr Worchild, in his affidavit filed 16 June 2006 states:

‘6. I propose to amend the Statement of Claim, should the sequestration order not be set aside to seek damages for personal wrong and/or ongoing losses which did not merge into the estate.’

37 The applicant argued that his claim is not a proprietary claim which vests with his trustee. The applicant stated, ‘the property claims which are vested in the trustee are severable from any of the personal injury claims’.

38 In oral submissions the applicant said:

‘Aggravated damages is a form of - it's a personal loss. It's a personal wrong. It's severable from the property claim. So the loss that I may - I may have included monetary loss, but also I incurred loss of - distress, embarrassment, public humiliation, and those rights still vest in me. The property rights are severable. So it's possible that the trustee may have pursued a property right but I'm still entitled to pursue the personal - the aggravated damages claim, and similarly, the exemplary damages claim.’

39 Further the applicant said:

‘… If somebody suffers humiliation or - say a person suffers a wrong such as damage to reputation that - that is an independent cause of action severable from - it's a personal wrong, it's severable from a property right… It's my submission also that the right to recover lost earnings by an action would not be severable - that is, not actually vested in the estate. Notwithstanding that I am bankrupt, but a cause of action for the loss of income would still be recoverable.’

40 In relation to his claim for damages for loss of reputation, it was contended by the applicant that:

‘The respondents engaged in conduct, and by that conduct [the applicant] was induced to seek discounts on goods and services from a third party, or a number of third parties. So the respondents’ conduct set in motion, indirectly, the loss that [the applicant] suffered. A simple "but for" test: if the respondents had not made the representations that they made, if they didn't issue the L card, if they didn't publish what they published, if they didn't continue to make the representations that they did that [the applicant] was entitled to the discounts of goods and services, we wouldn't be here today.’

41 The applicant’s claim for aggravated damages and exemplary damages are claims consequential upon his primary claims for breaches of the Trade Practices Act 1974 (Cth) (‘Trade Practices Act’). These claims are not, as put by the applicant, severable from what he alleges to be breaches of the Trade Practices Act. It is clear that what he is attempting to claim is consequential upon any success of his claims that the actions of the respondents were misleading and deceptive under the Trade Practices Act, or were otherwise actionable in tort.

42 Concerning the applicant’s claim for ‘distress, embarrassment and public humiliation’, and for ‘damage to reputation’, Dawson and Toohey JJ in Cummings v Claremont Petroleum N/L (1995) 185 CLR 124 at p 148, observed:

‘It may be said that the findings of conspiracy to defraud, deceit and contraventions of statutory obligations not to engage in misleading and deceptive conduct affect the appellants. But these are findings in the course of arriving at the orders to be made. Although they affect reputation, they are not themselves a "personal injury or wrong done to the bankrupt" which could form the basis for a separate cause of action (cf Re Kavanagh; Ex parte The Bankrupt v Jackson [1950] 1 All ER 39). The judgment is a judgment for a sum of money which cannot be pursued against the appellants save through the machinery of the Act.’

43 Mr Worchild has no locus standi to bring this action. The essential character of the applicant’s claim is that the respondents, through representations, induced him to commence proceedings in the Federal Court in 2004, which lead to his losses now claimed. Clearly, these alleged losses can only be pursued through the ‘machinery’ of the Bankruptcy Act. They are not claims that can be severed. They are not claims for ‘personal injury or wrong’ under s 116(2)(g)(e) of the Bankruptcy Act. Thus, the applicant is incompetent to bring the principal proceedings: s 58 of the Bankruptcy Act.

44 If, contrary to that finding, the applicant is competent to bring the principal proceedings, I consider that they should be stayed as an abuse of process.

45 For the second respondent, it is argued that Mr Worchild is seeking to bring substantially the same proceedings that were dismissed by order of McGill DCJ on 10 June 2005. It was submitted that the differences between the Statement of Claim in proceeding BD3799/04 in the District Court of Queensland and the current proceedings are ‘minute’, and that the continuance of the proceedings in this Court would, in effect, sanction the acceptance of defective pleadings, and forum shopping.

46 Order 20 r 2 of the Federal Court Rules provides:

‘2 Frivolity

(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

(a) no reasonable cause of action is disclosed;

(b) the proceeding is frivolous or vexatious; or

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).’

47 French J considered the nature of what might constitute an abuse of process in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699. His Honour said in par 67:

‘The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is `a general public interest in the same issue not being litigated over again´. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. In that regard he referred to Reichel v Magrath[[1889] 14 App Cas 665] and Hunter v Chief Constable of the West Midland Police [[1982] AC 529].’

48 Later his Honour continued at pars 69 – 70:

‘[69] The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts - Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas(1994) 48 FCR 535 (at 545 Carr J).

[70] The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court. As Giles CJ said in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64, 089):

`... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice...´

His Honour set out a non-exhaustive list of matters relevant to the determination whether there was an abuse of process in connection with the issue to be litigated in the second proceedings. These factors were:

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

These considerations offer a non-exhaustive guide and an indication of the nature of the Court’s task in such cases. It is now necessary to turn to that task.’

49 The High Court, in a judgment of Mason CJ, Deane and Dawson J, said in Walton v Gardiner (1992) 177 CLR 378 at p 393:

‘… it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at p. 536 as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.’

50 I agree with the comment by French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 in par 62, that ‘the category of `right-thinking people´ is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative’

51 The observations of Dixon J (as he then was) in Cox v Journeaux (No 2) (1935) 52 CLR 713at p 720 still have a profound relevance:

‘The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.’

52 It was submitted on behalf of the second respondent that, apart from amendments by the applicant to the pleadings, adding what are said by the applicant to be independent claims for aggravated and exemplary damages, the amendments are minor and inconsequential.

53 The application in the current proceedings is very similar to the Statement of Claim in the District Court proceedings, BD3799/04. The parties in these proceedings are the same. Mr Worchild has made little attempt to reframe his pleadings.

54 Mr Worchild, in oral submissions before this Court, stated:

‘The reason we are here today is simply because Cooper J dismissed the proceedings, the Part IVA proceedings, and the reason is that Mr Cross - The Drink Nightclub – did not agree to provide the benefits that the respondents promised. They reserved the right to refuse entry… They didn’t agree to provide the discounts on the drinks the respondents promised.’

55 This is not a case of an applicant seeking to raise new and crucial information. The applicant is raising the same issues he did in the earlier litigation. The present proceedings, in my judgment, constitute an abuse of process.

56 The second respondent raises a further complaint. She alleges deficiencies ‘both technical and substantive’ in the pleadings, and claims that ‘Not only does the applicant fail to properly allege and particularise a factual matrix sufficiently to permit recovery, the applicant’s claims have no basis in law…’.

57 The Federal Court Rules O 11 r 2 states:

‘2 Facts not evidence

Subject to these Rules:

(d) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and

(e) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars).’

58 The Federal Court Rules O 11 r 16 states:

‘16 Embarrassment etc

Where a pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.’

59 When asked why he should be allowed to re-agitate his claim in the Federal Court, Mr Worchild contended that, ‘The proceedings were dismissed because of defects in the pleading, not because there was an absence, there was no cause of action against the respondents. McGill [CDJ] took a rather heavy-handed approach’.

60 The applicant did not avail himself of the opportunity by McGill CDJ to replead his case. What he has done, in essence, is replicate in the Federal Court the pleadings analysed in the District Court to be fatally defective.

61 The principle with respect to pleadings and their role as a matter of fairness between the parties was stated by Isaacs and Rich JJ of the High Court, in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd. (in Liquidation) (1916) 22 CLR 490 at p 517:

‘Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars.’

(Emphasis added)

62 Pleadings must set out the material facts on which a party seeks to rely. They must show both the Court and the opposing side what a party will allege at the hearing. In Banque Commerciale SA (Enliq) v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J at pp 286 – 287 noted the essential role of pleadings in framing the dispute before the court:

‘The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.), per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities’.

63 I note the criticism Cooper J made of the proceedings in the Federal Court in 2004. His Honour said at pars 17 - 18, 20 – 21 and 24 – 28:

‘[17] The failure of the applicant to produce any material from or by the promoters of the L Card is significant. The applicant is a solicitor who lives on the Gold Coast. The subpoena for production which he lodged with the Court was directed to the University of Queensland Law Society (‘UQLS’). There is no evidence that the respondents had any dealings whatsoever with the UQLS. There has been no attempt to procure either voluntarily or by Court process from either GULS or SLA, the associations with which the respondents dealt in agreeing to be part of the L Card 2003 program, any of the relevant documentation which the applicant deposed he had been told by Candice Jacobs, the president of the SLA, that she had received.

[18] The documentation is important for many reasons. It is the best evidence of any agreement between the first respondent and GULS and SLA as the promoters of the L Card with which the first respondent dealt. Further, it is the best evidence of the existence or otherwise of pamphlets, the contents of those pamphlets, and the identity of the person responsible for the creation and distribution of the pamphlets.

…

[20] There is no evidence that the respondents, or either of them, advertised, or advertised and published, advertisements on the internet or by pamphlet as alleged in par 7 of the statement of claim or at all. Nor is there any evidence that any servant, agent or person acting within an authority granted by the first or second respondent advertised or advertised and published advertisements as alleged in par 7 of the statement of claim or at all.

[21] It is clear that the applicant makes the allegations which he does in par 7 of the statement of claim solely on the basis of what he says he saw in a pamphlet and on a website during the promotion for sale by four university law student societies of a discount card called the L Card in the period January to March 2003.

…

[24] The material produced by the applicant does not touch upon the conduct of the first or second respondent in respect of statements made in pamphlets or disseminated material on the four university campuses or on the website in connection with the promotion for sale of the L Card by each of UQLS, QUTALS, GULS and SLA. Such material as has been produced by the applicant demonstrates that there were not less than 81 participating businesses in the 2003 L Card program, of which the business of the first respondent was but one. Further, the dissemination of information from the L Card internet website was, on the material available, done by the controllers of that website. That a statement was made by the promoters of the L Card in the course of the conduct of their business of selling the cards which merely touches upon the business of the first respondent, does not make the statements made by the promoters of the L Card or the controllers of the internet site, statements made ‘on behalf of’ the first respondent. Nor does it make any statements made by the promoters of the L Card or the controller of the website, statements made ‘as representatives of’ or ‘for’ the first respondent. Such conduct of the promoters of the L Card or the controllers of the internet website does not take place in the course of the first respondent’s businessaffairs or activities: see NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 186 ALR 442 at [1240] - [1245] and the cases cited there.

[25] I am satisfied that the applicant has no evidence and having failed to obtain any from the controllers of the website or the student law societies promoting the L Card, is unlikely to obtain any evidence to make out the allegations contained in par 7 of the statement of claim. The refusal to particularise the cases as pleaded on the basis that it should be deferred until after discovery satisfies me that the applicant is hoping to find in the documents something in order to make out a case. This is fishing.

[26] The Courts have steadfastly refused to allow proceedings to continue which are, of their nature, fishing: see Lyons v Kern Konstructions (Townsville) Pty Ltd(1983) 47 ALR 114 at 129 - 131.

[27] As the conduct pleaded in par 7 of the statement of claim is an essential element on the pleading required to be proved up to make out a contravention of s 52, s 53(2) or s 56 of the TPA , the applicant is in no position to make out any contravention of that Act.

[28] The common law action in negligence pleaded in pars 13 - 17 inclusive of the statement of claim, is based around ‘a promotional contract with the issuers of the L Card’ which is not particularised, but appears to be the basis of some alleged duty of care owed to the applicant and the group members generally. The claim as pleaded is meaningless and internally inconsistent. It is impossible to see how the allegations pleaded in pars 7, 8, 9 and 10 of the statement of claim amounted to a breach of a duty of care to protect from loss by reason of public misinformation with respect to the matters pleaded in sub-pars 15(a) - (e) inclusive of the statement of claim, when it includes misinformation with respect to a failure to properly train and supervise servants or agents, or a failure to reply and deal with complaints made by the applicant.’

64 When striking out the claim in the District Court on 10 June 2005, McGill DCJ said at par 42:

‘In all the circumstances therefore the [applicant’s] statement of claim should be struck out. The question arises whether there should be liberty to replead, or whether the action should be struck out. It is a very serious step to strike out a pleading without giving liberty to replead. It was submitted on behalf of the defendants that the deficiencies in the pleading have been pointed out to the plaintiff some time ago, but the plaintiff made no attempt to file an amended pleading. Nevertheless, this is the first occasion on which a pleading has been struck out by the court in this action. It does seem clear on the present material that the plaintiff cannot plead a cause of action in negligence against the defendants. The pleading of the statutory causes of action is so defective that it is not possible to tell at the present time whether a proper cause of action can be pleaded.’

65 In the Court of Appeal, Douglas J said:

‘His Honour's decision revealed an orthodox, careful approach to the analysis of the pleadings. One of the surprising criticisms that was made of it on this application was that the reasons were inadequate. That was incorrect. They were detailed reasons which, had the applicant paid heed to them, would have assisted him greatly in producing a more intelligible pleading.

…

The fact that, by his own inaction in failing to replead within time, his action was dismissed is his own fault and not one which should encourage this Court to give leave to appeal. I would refuse the application.’

66 There is no reasonable cause of action properly disclosed by the current pleadings.

67 Notwithstanding that view of the pleadings, and my conclusion that the current Federal Court proceedings constitute an abuse of process and would be stayed on that account, the appropriate order of the court is to dismiss the proceedings as incompetent.

68 No reasons have been shown why costs should not follow the event.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 17 August 2006

Mr Andrew Worchild appeared in person

Counsel for the 1st Respondent:	Peter Applegarth SC Michael Hodge

Solicitor for the 1st Respondent:	Thynne & Macartney Solicitors
Counsel for the 2nd Respondent: Solicitor for the 2nd Respondent:	Quentin Gregan Brian Bartley & Associates
Date of Hearing:	23 June 2006

Date of Judgment:	17 August 2006

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