Piepkorn v Scott [2005] FCAFC 88 (13 May 2005)

Last Updated: 18 May 2005

FEDERAL COURT OF AUSTRALIA

Piepkorn v Scott [2005] FCAFC 88

BANKRUPTCY – sequestration order against appellant’s estate made five years ago –application to annul bankruptcy – application dismissed – appeal – whether appeal involved a matter arising under the Constitution or involving its interpretation

Bankruptcy Act 1966 (Cth) s 54(1) s 149(4), s 153B(1)

Bankruptcy Amendment Act 1991 s 27

Constitution of the Commonwealth s 51, s 75

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules O 20 r 2

Green v Jones [1979] 2 NSWLR 812 cited

Glennan v Commissioner of Taxation (2003) 198 ALR 250 cited

HENRIETTE PIEPKORN v ALAN SCOTT

SAD 1 of 2005

BRANSON, JACOBSON AND LANDER JJ

13 MAY 2005

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 1 of 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HENRIETTE PIEPKORN APPELLANT
AND:	ALAN SCOTT RESPONDENT
JUDGE:	BRANSON, JACOBSON AND LANDER JJ
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The trustee’s costs be paid out of the bankrupt’s estate.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 1 of 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HENRIETTE PIEPKORN APPELLANT
AND:	ALAN SCOTT RESPONDENT

JUDGE:	BRANSON, JACOBSON AND LANDER JJ
DATE:	13 MAY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 For the following reasons, the present appeal must be dismissed.

2 On 13 March 2000 a sequestration order was made against the estate of the appellant by a judge of this Court (Mansfield J). The respondent (Mr Scott) was appointed as trustee of the appellant’s bankrupt estate.

3 An appeal from the judgment by which the sequestration order was made was dismissed by the Full Court of this Court on 28 August 2000. Nonetheless, the appellant failed, despite repeated requests from Mr Scott that she do so, to file her statement of affairs (see s 54(1) of the Bankruptcy Act 1966 (Cth) (‘the Act’)). For this reason the appellant’s bankruptcy has not been automatically discharged under s 149(4) of the Act as it otherwise would have been. Section 149(4) provides that if the bankrupt becomes a bankrupt after the commencement of s 27 of the Bankruptcy Amendment Act 1991, as the appellant did, the bankruptcy is discharged at the end of the period of three years from the date on which the bankrupt filed his or her statement of affairs.

4 On 20 August 2004 a judge of this Court (Finn J) dismissed an application filed by the appellant whereby she sought relief against her former employer, Caroma Industries Ltd, in respect of events that allegedly occurred in 1984. His Honour concluded that any cause of action that the appellant might have against her former employer had vested in her trustee in bankruptcy and there was no evidence that Mr Scott had assigned the cause of action to the appellant. His Honour noted that even if the appellant were competent to institute the proceeding he would have dismissed the proceeding under O 20 r 2 of the Federal Court Rules. Order 20 r 2 authorises the Court to dismiss a proceeding summarily if no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious or the proceeding is otherwise an abuse of the process of the Court.

5 As a consequence of the judgment of Finn J of 20 August 2004, the appellant made an application to the Court whereby she sought an order under s 153B(1) of the Act annulling her bankruptcy. Section 153B(1) authorises the Court to annul a bankruptcy if the Court is satisfied that the sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver.

6 By an order dated 7 December 2004 Finn J dismissed the application for an order annulling the appellant’s bankruptcy. His Honour was not satisfied that the sequestration order against the appellant’s estate that had been made by Mansfield J on 13 March 2000 ought not to have been made. It was not suggested before his Honour, nor it seems could it sensibly have been suggested, that the relevant debtor’s petition ought not to have been presented or ought not to have been accepted by the Official Receiver. His Honour observed that even if he were satisfied that the sequestration order ought not to have been made, in the light of the appellant’s conduct since it was made and the four year lapse of time between the making of the order and the application to have the order annulled, he would have refused to annul the order in any event. It is from this judgment that the appellant now appeals.

7 The appellant has filed a document in respect of this appeal headed ‘Summary of Appeal’. By this document the appellant has suggested that the appeal involves questions arising under, or involving the interpretation of, sections 51 and 75 of the Constitution. If this case involves a matter arising under the Constitution or involving its interpretation it is the duty of the Court not to proceed in the cause unless and until satisfied that appropriate notice of the cause has been given to the Attorney-General of the Commonwealth and of the States (s 78B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’)). However, a cause does not involve a matter arising under the Constitution or involving its interpretation merely because a party forms a belief that it does (Green v Jones [1979] 2 NSWLR 812; Glennan v Commissioner of Taxation [2003] HCA 31; 198 ALR 250 at [14]).

8 We are satisfied that the Court is entitled to hear and determine this appeal without notices having been given under s 78B of the Judiciary Act. The application made to Finn J was bound to fail. No question arising under, or involving the interpretation of, the Constitution could lead to a conclusion that his Honour erred in dismissing the application.

9 Nothing was identified before his Honour or this Court that was capable of amounting to a reason why the sequestration order made against the appellant’s estate on 13 March 2000 ought not to have been made. The appellant has acknowledged that she did not suggest to his Honour that his previous involvement in a proceeding instituted by the appellant gave rise to an apprehension that his Honour might be, or be thought to be, unable fairly to deal with the application before him. Nor did the appellant suggest to his Honour that for any other reason he ought not to hear and determine the application for annulment made by the appellant. The material relied upon by the appellant as indicating bias on the part of the primary judge does not do so. The appellant’s claim that his Honour was biased reflects a misunderstanding on her part of the nature of the application which his Honour was required to hear and determine. It was not open to his Honour on the evidence before him to annul the appellant’s bankruptcy. Nor is it open to this Full Court to accede to the appellant’s request that her bankruptcy be annulled.

10 The appeal is dismissed. The trustee’s costs are to be paid out of the bankrupt’s estate.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Jacobson and Lander.

Associate:

Dated: 18 May 2005

Counsel for the Appellant:	The appellant appeared in person

Counsel for the Respondent:	G McAvaney

Solicitor for the Respondent:	Minter Ellison

Date of Hearing:	13 May 2005

Date of Judgment:	13 May 2005

1.	The appeal be dismissed.
2.	The trustee’s costs be paid out of the bankrupt’s estate.

Subsequent Judicial Consideration1

Treatment Over Time

Referred to (1)