FEDERAL COURT OF AUSTRALIA

McIntosh v Official Trustee in Bankruptcy [2014] FCA 989

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.

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.

Associate:

Dated:    11 September 2014