Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 (23 February 2007)

PRACTICE AND PROCEDURE – consideration of an application to extend time for the filing and service of a notice of appeal – consideration of whether the judgment appealed from is an interlocutory or final judgment – consideration of an application for summary dismissal of the proceedings under both s 31A of the Federal Court of Australia Act 1976 (Cth) and Order 20, rule 2 of the Federal Court Rules – consideration of the relationship between approaches to the striking out of a pleading and entering summary judgment pursuant to either s 31A of the Act or Order 20, rule 2 of the Federal Court Rules.

BANKRUPTCY – consideration of the nature of a claim falling within the exemption contained in s 116(2)(g) of the Bankruptcy Act 1966 (Cth) and whether the applicant in the proceedings has standing to maintain the particular claim.

Federal Court of Australia Act 1976 (Cth) – s 24(1), s 24(1A), s 25
Federal Court Rules – Order 52, rule 10; Order 52, rule 15(1); Order 52, rule 15(2)
Bankruptcy Act 1966 (Cth) – s 116(2)(g)
Trade Practices Act 1974 (Cth) – ss 52, 51AA, 60, 82, 87(1D)

Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 - quoted
Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 - cited
Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 - cited
Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 - quoted
Munnings v Australian Government Solicitor [1994] HCA 12; (1994) 120 ALR 586 - cited
Tampion v Anderson (1974) 3 ALR 414 - cited
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 - cited
Little v Victoria (1998) 4 VR 596 - cited
Wickstead v Browne (1992) 30 NSWLR 1 - cited
Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWCA 399 - cited
Johnston v Cameron [2002] FCAFC 251; (2002) 124 FCR 160 - cited
Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41; (1980) 147 CLR 35 - cited
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 - cited
Ogawa v University of Melbourne (No. 2) [2004] FCA 1275 - cited
Jess v Scott and Others (1986) 12 FCR 187 - cited
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 427 - cited
Cox v Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713 - cited
Beckham v Drake (1849) 2 HLC 579 - cited
Wilson v United Counties Bank Ltd (1920) AC 102 - cited
Faulkner v Bluett (1981) 52 FLR 115 - cited
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 - cited
Mannigel v Hewlett Phelps BC9101907 - cited
Daemar v Industrial Commission of New South Wales & Ors (1988) 79 ALR 591 - cited
Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401 - cited
Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 - cited
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 - cited
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425 - cited
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 - cited
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 – cited

GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD, ASSET LOAN COMPANY PTY LTD, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE AND RIVERSTONE NOMINEES PTY LTD CAN

QUD504 OF 2006

GREENWOOD J
23 FEBRUARY 2007
BRISBANE

BETWEEN:	GREGORY ERIC ROGERS Applicant
AND:	ASSET LOAN CO PTY LTD ACN 107 746 798 First Respondent ASSET LOAN COMPANY PTY LTD ACN 101 054 997 Second Respondent PAUL ALEXANDER SYDNEY HARE Third Respondent RUSSELL FRANK PERCIVAL Fourth Respondent JUDITH LORRAINE HARE As Trustee for the Hare Property Trust Fifth Respondent RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 As Trustee for the Percival Family Trust No. 2 Sixth Respondent
JUDGE:	GREENWOOD J
DATE OF ORDER:	23 FEBRUARY 2007
WHERE MADE:	BRISBANE

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

BETWEEN:

GREGORY ERIC ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE
As Trustee for the Hare Property Trust
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546
As Trustee for the Percival Family Trust No. 2
Sixth Respondent

1 I have before me an application by the applicant in the proceedings for ‘an extension of time in which to file and serve a notice of appeal from the judgment of her Honour Justice Collier given on 7 & 11 December’. The application together with a supporting affidavit of the applicant was filed on 15 December 2006. The affidavit, however, does not exhibit a notice of appeal setting out the grounds of appeal thus identifying the applicant’s contentions as to an arguable error in the judgment appealed from.

2 On 7 December 2006, her Honour Collier J made orders that proceedings QUD130 of 2006 commenced by application filed on 7 April 2006 by the applicant be dismissed and that the applicant pay the costs of and incidental to the proceedings to be taxed if not agreed (Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708). Those orders were made consequent upon an application by the respondents by notice of motion that the applicant’s proceedings be dismissed or alternatively that the proceedings be permanently stayed.

3 In support of the application for an extension of time to file and serve a notice of appeal, the applicant deposes to these matters. On 7 December 2006, Collier J published judgment at 4.30pm. The parties were present by telephone. The reasons for judgment were posted to the parties and the applicant received the reasons on Monday, 11 December 2006. On 11 December 2006, her Honour amended the reasons for judgment and the amended reasons were posted to the applicant on or about 12 December 2006. The applicant says he ‘discovered’ the new material in his post office box on 14 December 2006. The applicant says that his statement of claim in the principal proceeding is 67 pages, her Honour’s judgment is 37 pages, the judgment of her Honour is a ‘final judgment’ and thus he has 21 days from publication of the judgment to file a notice of appeal.

4 The applicant further says that alternatively, her Honour’s judgment may be an ‘interlocutory judgment’ in which event, he says, he has ‘seven days to file a notice of appeal’. The applicant contends that because the judgment was first published at 4.30pm on the relevant day; the reasons were posted to the applicant thus deferring access to the reasons; the reasons are lengthy and receipt of the reasons on 14 December 2006 on the cusp of the Christmas/New Year holiday period made it impossible for the applicant to prepare a notice of appeal and supporting documents within either 7 days or 21 days from the date of publication of the judgment, a discretion ought to be exercised to extend time to enable the applicant to formulate a notice of appeal precisely identifying the proposed grounds of appeal.

6 At paragraphs 20 and 21 of his affidavit, the applicant deposes to perjury charges having been laid against the third and fourth respondents, Mr Paul Hare and Mr Russell Percival and that aspects of those matters relate to material facts pleaded by the applicant in his statement of claim and relied upon for relief in the principal proceedings. The applicant further says that he will need to gain access to some material in the possession of the Queensland Police Service as part of his appeal preparation and that having regard to the complexity of the issues, the applicant seeks an extension of time to file and serve a notice of appeal.

8 Accordingly, in formulating these reasons, I principally address the applicant in setting out the principles governing the determination of the application although, of course, the reasons are addressed to all parties.

9 By s 24(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) the court has jurisdiction to hear and determine appeals from judgments of the court constituted by a single judge. By s 24(1A) an appeal shall not be brought from a judgment that is an interlocutory judgment unless the court or a judge gives leave to appeal. Section 25 of the Act sets out the manner of exercise of the appellate jurisdiction of the court. Section 25(2) provides that applications for leave to appeal to the court or for an extension of time within which to institute an appeal to the court may be heard and determined by a single judge or by a Full Court.

10 Order 52, rule 10 of the Federal Court Rules provides that an application for leave to appeal from an interlocutory judgment may be made by notice of motion, relevantly in this case, within seven days after the date on which the interlocutory judgment was pronounced or within such further time as the court or a judge may allow.

11 Order 52, rule 15(1) of the Federal Court Rules provides for the timeframe within which a notice of appeal must be filed and served (compliance with both of which constitutes properly instituting an appeal). Accordingly, a notice of appeal is to be filed and served, for present purposes, within 21 days after:

12 Alternatively, the notice of appeal is to be filed and served within such further time as the court allows, upon application made by notice of motion filed within the period of 21 days mentioned previously. Notwithstanding the time periods contemplated by Order 52, rule 15(1), Order 52, rule 15(2) provides that the court or a judge for special reasons may at any time give leave to file and serve a notice of appeal. An application made under Order 52, rule 15(2) is to be in accordance with Form 54A which contemplates that an applicant will seek not just leave to appeal but an extension of time to file and serve the notice of appeal. Such an application is to be supported by an affidavit which is to set out the relevant facts informing the exercise of the discretion conferred upon the court and, most particularly, the proposed grounds of appeal should leave be given.

13 Because Mr Rogers has failed to formulate a proposed notice of appeal and exhibit the document to his affidavit or depose in the body of the affidavit to the proposed grounds of appeal, it is impossible to identify from the papers the contended arguable error on the part of her Honour. Mr Rogers did not seek an adjournment of the application and sought to have the application determined on the return date supported by oral submissions as to the contended arguable error and thus the proposed grounds of appeal.

14 The essential contentions of the respondents before Collier J (who were then the applicants on the motion) were these. Firstly, that Mr Rogers has no standing to maintain the claims to be drawn from the statement of claim because none of those claims falls within the exemption contained in s 116(2)(g) of the Bankruptcy Act 1966 (Cth) as a claim properly characterised as any right of the bankrupt to recover damages or compensation for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt. Secondly, that to the extent Mr Rogers relies upon conduct in contravention of s 60 of the Trade Practices Act 1974 (Cth) (‘the TPA’) as the source of the legal right giving rise to a claim for damages or compensation for personal injury or a wrong done to Mr Rogers, serious doubt surrounds whether s 60 can properly ground such a claim. Thirdly, the statement of claim formulated by Mr Rogers comprehensively fails to plead material facts demonstrating conduct on the part of the respondents within the scope of s 60 of the TPA giving rise to particularised personal injury in Mr Rogers in any particularised quantum notwithstanding a general claim for damages of $45 million. Mr Rogers also relied upon contraventions of s 52 and s 51AA of the TPA as the source of an exempted right for the purposes of s 116(2)(g) of the Bankruptcy Act.

15 Her Honour comprehensively addressed each of the claims formulated by Mr Rogers within the statement of claim which contains an introduction to all of the respondents, a description of a sequence of property transactions affecting Mr Rogers and in respect of which one or more of the respondents were participants, 29 specific claims or ‘counts’ said to be within the scope of s 116(2)(g), a ‘special pleading’ identifying facts said to be particularly relevant to the grant of relief pursuant to s 87(1D) of the TPA, a claim for $45 million for ‘personal injury, harm or wrongs’ and 32 contentions at paragraph 706 of the statement of claim said to demonstrate ‘special aggravating circumstances’.

16 Having examined all of these matters, her Honour concluded that the statement of claim wholly fails to plead material facts demonstrating relevant conduct on the part of the respondents, the attraction and enlivening of ss 52, 51AA and 60 of the TPA, a contravention of any of those sections or other tortious conduct on the part of the respondents, damage or injury arising out of the contended contravening conduct, the scope and character of the personal injury or wrong alleged to fall within the exemption and proper particulars of the quantum of the damage.

18 Her Honour concluded that the statement of claim failed to disclose any reasonable cause of action and rather than plead material facts, the pleading contained confusing and irrelevant material, adopted ambiguous terms and simply asserted conclusions and opinions. Moreover, her Honour concluded that the defective parts of the pleading are so inextricably intertwined with offending material, an oppressive burden is necessarily cast upon the respondents in identifying the causes of action to which they must respond. Because of these difficulties, her Honour took the view that the statement of claim ought to be struck out in its entirety and in so finding, her Honour relied upon Australian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071 per Lander J and Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 per Lockhart J.

19 Her Honour then considered the question of whether leave ought to be given to deliver a further amended statement of claim. In considering that matter, her Honour had regard to the previous attempts on the part of Mr Rogers to formulate a claim properly falling within the scope of s 116(2)(g) of the Bankruptcy Act. The particular matters of relevance were these. Mr Rogers previously sought various orders against the present respondents including interlocutory relief restraining the respondents from exercising a power of sale and relief in respect of a number of loan agreements, deeds of settlement, mortgages and other instruments relating to various properties (Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434; particularly note paragraphs [8] to [27] of the reasons). In that decision, the court determined that the majority of the claims made by Mr Rogers for final relief involved claims relating to the legal or beneficial interests of Mr Rogers in property which vested in his trustee in bankruptcy and accordingly, the applicant had no standing to institute proceedings for relief in respect of those matters ([2006] FCA 434 at [35]). However, Mr Rogers also contended that he sought to assert a claim for final relief arising out of conduct on the part of the respondents which, properly formulated, fell within the exemption contemplated by s 116(2)(g) of the Bankruptcy Act. Although the majority of the claims made by Mr Rogers were dismissed, the court made it clear (Rogers v Asset Loan Co [48]), that the task confronting Mr Rogers was to formulate a statement of claim which in terms of its material facts, properly identified a claim to recover damages or compensation for personal injury or wrong done to the bankrupt arising out of conduct in contravention of the relevant provisions of the TPA upon which Mr Rogers relies.

20 Accordingly, the applicant filed and served a statement of claim on 15 June 2006. An amended statement of claim was filed on 19 June 2006. In the context of the application by the respondents before Collier J, the respondents consented to an adjournment of their application in order to allow Mr Rogers an opportunity to re-plead the amended statement of claim. The application was then adjourned until 4 August 2006 and Mr Rogers was given leave to file and serve a further amended statement of claim by 21 July 2006. Mr Rogers filed a further amended statement of claim on 10 July 2006 and a further further amended statement of claim on 20 July 2006 although the further further amended statement of claim of 20 July 2006 apparently was not served on the respondents until the resumption of the application before Collier J.

21 Having regard to this chronology, her Honour concluded that this is a case where the applicant so misconceives the cause of action open to him and in respect of which relief is sought that the action ought to be brought to an end. Accordingly, her Honour refused leave to deliver a further further further amended statement of claim.

22 In so concluding, her Honour relied upon the observations of Mason CJ and Brennan and Toohey JJ in Munnings v Australian Government Solicitor [1994] HCA 12; (1994) 120 ALR 586 at 589.

23 Her Honour then turned to the dispositive orders that ought to be made. Her Honour relied upon s 31A of the Act and Order 20, rule 2 of the Federal Court Rules and concluded that the application of the applicant filed on 7 April 2006 ought to be dismissed in accordance with either s 31A of the Act or, alternatively, on the footing that the requirements of Order 20, rule 2 of the Federal Court Rules were satisfied. Her Honour made an order that the application be dismissed and ordered the applicant to pay the respondents’ costs of the proceeding. In relying upon s 31A of the Act, her Honour ‘gave judgment’ (s 31A(2)) for the respondents. In concluding that Order 20, rule 2 of the Federal Court Rules was satisfied, her Honour concluded that the proceeding ought to be dismissed generally on the footing, having regard to other conclusions, that no reasonable cause of action is disclosed by the statement of claim and that the applicant so misconceived the cause of action available to him that the proceeding is an abuse of the process of the court.

24 Mr Rogers says the arguable error on the part of her Honour is this. The respondents conceded in argument that a contravention of the TPA may give rise to a claim for personal injury. Her Honour observed at paragraph 120 of the judgment that: ‘It is arguable that the applicant was coerced.’ Having regard to those two matters, her Honour was in error it is said, in concluding that the statement of claim does not disclose any connection or nexus between conduct on the part of the respondents and a claim for personal injury on the part of the applicant. This error is described by Mr Rogers as the ‘main ground of my application for a notice of appeal’. Mr Rogers says that it is quite clear from his pleading that allegations of coercion on the part of the respondents towards Mr Rogers occurred, that such conduct occurred only by reason of the provision of services by relevant respondents to Mr Rogers and that coercive conduct in contravention of s 60 gave rise to the present claim for damages or compensation for personal injury or the wrong done to him. Mr Rogers says that the coercion is clear or at least clearly arguable; it occurred in the context of a contravention of s 60 of the Act; and, the contravening conduct gave rise to the injury.

25 Mr Rogers says that the only arguable error on the part of her Honour is in relation to the matters said to be in contravention of s 60 of the TPA.

26 The second ground of appeal identified by Mr Rogers is that her Honour having found arguable coercion of the applicant, the offending parts of the statement of claim ought to have been dismissed leaving those paragraphs reliant upon s 60 extant. Mr Rogers says that ‘this little precious gem’ was ‘good and it shouldn’t have been thrown out and that’s why I’m here today’. Further, Mr Rogers says that having struck out the statement of claim, her Honour ought not to have dismissed the application because she ought not to have found that there was no prospect of success in the proceeding having identified an arguable case of coercion.

27 As to the concession on the part of the respondents, the respondents say that they simply recognise the proposition of law that a claim for personal injury might properly arise out of a contravention of a provision of the TPA but no such claim is properly raised on the statement of claim in this case.

28 As to the question of whether a claim for personal injury based upon a contravention of s 60 of the TPA might give rise to a claim within s 116(2)(g) of the Bankruptcy Act, her Honour said this at [32]:

29 Justice Collier pronounced judgment on 7 December 2006. The method of pronouncement adopted was to publish the dispositive orders made by her Honour that day and to post the reasons for judgment to the parties. The date of ‘pronouncement’ of a judgment must necessarily be informed by the method selected by the judge to effect communication of the dispositive orders and particularly the reasons for judgment to the parties. Mr Rogers contends that notwithstanding the pronouncement of the dispositive orders on 7 December 2006 at 4.30pm by means of a telephone conference, the reasons were not received until 11 December 2006 and then by reason of the changes, the final reasons were received on 14 December 2006. It seems to me that if the judgment of her Honour is an interlocutory judgment, an application for leave to appeal ought to have been made within seven days of 14 December 2006 or, alternatively, within 7 days of 11 December 2006.

30 The application by Mr Rogers was filed on 15 December 2006 and is thus within time. If, however, the publication of the dispositive orders by means of a telephone conference and the selection of a method of communication of the reasons to the parties by post constitutes a ‘pronouncement’ of the judgment on 7 December 2006, the applicant is out of time by one day. However, having regard to the chronology of events, I am satisfied that the applicant has sufficiently explained any failure to file an application for leave to appeal from the orders of her Honour within the time required by the rules on the assumption that the operative date of pronouncement is 7 December 2006.

31 The more fundamental question is whether the applicant has established an arguable error on the part of her Honour.

32 The respondents contend that her Honour’s judgment is an interlocutory judgment and although her Honour’s order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties (Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc & Ors v Commissioner of Taxation [2005] NSWCA 399 [24] – [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has ‘the practical effect’ of determining the claim of an applicant to a remedial order (Johnston v Cameron [2002] FCAFC 251; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata. If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason & Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41; (1980) 147 CLR 35 at 38.

33 If the judgment is an interlocutory judgment, Mr Rogers must demonstrate that in all the circumstances the decision of her Honour is attended by sufficient doubt to warrant its being reconsidered by the Full Court and secondly, that substantial injustice would result if leave was refused supposing the decision to be wrong (Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v University of Melbourne (No. 2) [2004] FCA 1275).

34 If her Honour’s order is a final order, the court must be satisfied that special reasons have been made out in order to grant leave to file and serve a notice of appeal out of time. The expression ‘special reasons’ describes a flexible discretionary power conferred upon the court in those cases where some distinguishing or differentiating feature about the case justifies departure from the orthodoxy of filing and serving a notice of appeal within the time expressly limited by the rules. The flexibility of the discretion conditioned by the interests of justice is not constrained in its amplitude by any narrow approach to the expression (Jess v Scott and Others (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ). Nevertheless, an applicant seeking leave must demonstrate some feature about the case which persuasively warrants departure from the orthodox position (see also Jess v Scott per The Court at 195).

35 In this case, however, Mr Rogers has sought to bring an application within Order 52, rule 15(1)(b). In other words, Mr Rogers has made an application within 21 days of pronouncement of the judgment by which Mr Rogers seeks further time or an extension of time to file and serve a notice of appeal. Order 52, rule 15(1)(b) does not in terms require an applicant to demonstrate ‘special reasons’ in seeking an allowance of further time by the court. The reference in Order 52, rule 15(2) to ‘notwithstanding anything in the preceding sub-rule’, is intended to make clear that the scope of the discretion is not in any way limited by the terms of Order 52, rule 15(1). It seems to me that an application made within 21 days of the date of pronouncement of judgment by which an applicant seeks further time for the filing and serving of a notice of appeal is not to be subsumed within a requirement to establish special reasons as if an application had been made beyond the 21 day period at the outset.

36 Nevertheless, there must be some demonstrated circumstances upon which the court might act in allowing further time. The particular circumstance advanced by Mr Rogers is that during the period between pronouncement of the judgment and the hearing of this application in February 2007, Mr Rogers has not been in a position to prepare a notice of appeal and therefore he proceeded on the footing that an application ought to be made within 21 days seeking an extension of time within which to prepare, file and serve a notice of appeal. At the date of filing the application (15 December 2006), Mr Rogers anticipated that he would be in a position by 22 January 2007 to have obtained advice and formulated, filed and served a notice of appeal.

37 Because the application was listed for determination in February 2007, Mr Rogers has not taken steps to prepare a notice of appeal by 22 January 2007 or at all. Rather, Mr Rogers seeks to identify by oral submissions grounds going to an arguable error on the part of her Honour, secure an allowance for such further time as the court determines and then file and serve a notice of appeal within such time as might be allowed.

39 Since the respondents contend that the effect of her Honour’s order would be to bring about a res judicata in respect of the claims Mr Rogers has sought to agitate in his further further amended statement of claim, I propose to treat her Honour’s judgment as a final judgment. In determining the question of whether further time ought be allowed to file and serve a notice of appeal for the purposes of Order 52, rule 15(1)(b), I propose to determine whether the applicant has demonstrated an arguable error on the part of her Honour and, if so, whether substantial injustice would arise should an extension of time be refused. In that sense, I propose to essentially apply the test identified in Décor Corp Pty Ltd v Dart Industries Inc (supra).

40 In applying this test, I have had regard to not only the judgment of her Honour but also the further further amended statement of claim filed on 20 July 2006. The matters to be considered are set out hereafter.

41 The applicant contends that the respondents engaged in conduct in contravention of s 60 of the TPA.

42 The applicant thus contends that the corporate respondents by their officers, servants or agents engaged in physical force and undue harassment or coercion in connection with the supply of services to the applicant as a consumer of the relevant services, or, that such conduct occurred in connection with the payment for such services.

43 The applicant contends that the third and fourth respondents were the authors of the conduct, with others, and were persons ‘involved in the contravention’ for the purposes of the TPA.

44 The statement of claim fails to plead facts which establish the service supplied or to be supplied by the corporate respondents for the purposes of s 60 of the TPA; the conduct on the part of the relevant respondents ‘in connection with’ that supply or possible supply relied upon by the applicant; the price of the relevant services; or any facts that establish supply or possible supply to the applicant as a consumer for the purposes of s 4B(1)(b) of the TPA (see generally Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 427 [44] – [66], per Hill J). Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls ‘does not apply to the supply, or possible supply, of services that are financial services’. The relevant statutory instrument regulating financial services is the Australian Securities and Investments Commission Act 2001 (Cth). In addition, the statement of claim does not assert a claim for damages pursuant to s 82 of the TPA in reliance upon a contravention of s 60 and the reference to s 87(1D) relates to a contravention of a provision of Part IVA and not Part V.

45 The applicant fails to plead facts that demonstrate a claim to recover damages or compensation for personal injury, stress, anxiety or wrong done to Mr Rogers arising out of the contravening conduct. Rather, the claim asserts harassment and coercion as a fact. The true character of the claim and its relationship with s 116(2)(g) of the Bankruptcy Act is not pleaded and nor is any particularisation given of the estimated quantum of the claim, that is, $45 million. In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers.

46 A contravention of s 60 of the TPA is the only cause of action relied upon by the applicant as the foundation ‘right of the bankrupt’ for the purposes of s 116(2)(g) of the Bankruptcy Act.

47 Accordingly, the statement of claim wholly fails to plead any claim that might be open to Mr Rogers.

48 As to the standing to maintain a claim arising out of conduct in contravention of s 60 of the TPA, it seems to me that a contravention of s 60, properly pleaded, may give rise to rights, claims and entitlements vested in the trustee of Mr Rogers and also a claim in Mr Rogers where the damages are to be estimated by immediate reference to any pain felt by the bankrupt and without regard to his rights in property. The mere fact that a contravention of s 60 necessarily involves a transaction of supply or possible supply of services to a consumer does not have the effect of vesting all claims arising out of the contravention in the trustee. In that regard, I would, with respect, disagree with the conclusion reached by her Honour at [32] of her Honour’s reasons for judgment.

49 The question seems to be whether any part of the damages arising out of the contravention 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. In Cox v Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713 at 721, Sir Owen Dixon in formulating the accepted test had regard to the test formulated in similar terms by Earle J in Beckham v Drake (1849) 2 HLC 579 at 604 although Earle J adopted a qualification on the estimation of the damages by use of the phrase ‘and without immediate reference to his rights of property’ whereas Dixon J qualified the estimation of the damages by reference to the phrase ‘and without reference to his rights of property’.

50 Accordingly, if the estimation of any part of the damages claimed by the bankrupt involves a reference to the bankrupt’s rights of property, the common law exception adopted in the Bankruptcy Act and reflected in s 116(2)(g), may not be enlivened. His Honour Dixon J also had regard to the decision of the House in Wilson v United Counties Bank Ltd (1920) AC 102 in which a bankrupt claimant, Major Wilson, was held entitled to maintain a claim for damages for defamation (personal injury to his credit and reputation) by reason of the bank’s negligent management of Major Wilson’s financial affairs whilst he was out of England engaged in war service during the course of the 1^st World War. That claim arose out of the same cause of action vested in the trustee of Major Wilson who properly maintained a claim for the benefit of the creditors for damages for economic loss due to the negligent management of Major Wilson’s financial affairs.

51 In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J described the common thread running through the cases as establishing a proposition that where the primary and substantial right of action is direct pecuniary loss to the property or the estate of the bankrupt, the right to sue passes to the trustee. In that case, Lockhart J also concluded that any damages to which the applicant may be entitled would be ‘estimated’ by ‘immediate reference to her rights of property and not to pain felt by her in respect of her body, mind or character’ [emphasis added]. In Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, O’Loughlin and Merkel JJ described the exemption as ‘limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors’ [emphasis added].

52 In Bryant’s case, the wrong complained of by the bankrupt, said by the bankrupt to be severable from the legitimate entitlement of the creditors, was found to be the ‘very source of the financial problems which have led to his bankruptcy’ which could not be ‘classified’ as an exempted wrong. Such a claim was the ‘very essence’ of property divisible among the creditors and vested in the trustee (s 58(1), s 116(1)).

53 In this case, although Mr Rogers contends with real difficulty that conduct in contravention of s 60 occurred and is properly pleaded, it seems to me that a theoretical claim for damages estimated by reference to anxiety and stress arising out of the contended contravention is not the ‘very essence’ of matters that might be agitated by the trustee but is, in principle, severable.

54 In Mannigel v Hewlett Phelps BC9101907, the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor’s conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were ‘a consequence of’ the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales & Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims ‘without reference to their rights of property’ as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra).

55 Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation, to the bankrupt’s rights of property. The claim by Major Wilson considered by Dixon J was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.

56 Although I would not ordinarily canvass these authorities in any detail in an application of the kind brought by Mr Rogers, I have elected to do so having regard to Mr Rogers’s capacity as self-represented and because I have, with respect, taken a different view about this aspect of the matter to that of her Honour Collier J. In any event, it seems to me that there is at least sufficient doubt in relation to the standing question.

57 However, the decisive matter is the inadequacy of the applicant’s statement of claim by reason of the matters set out at [41] to [47]. I am not satisfied that there is any arguable error on the part of Collier J in concluding that the entirety of the statement of claim should be struck out. The statement of claim fails to adequately plead any claim for damages which might be severable in the manner previously described. I am not satisfied that there is, to use the language of Mr Rogers, a demonstrated ‘precious gem’ of a claim in the various factual allegations assembled in the statement of claim.

58 The statement of claim is ‘embarrassing’ in the technical sense in which lawyers use that term in connection with a pleading not merely because of inadequacy in the lay crafting of the document but more importantly because the statement of claim comprehensively fails to address any claim that might be open to Mr Rogers as a matter of law or plead or set up the material facts going to each element of such a claim. The ultimate order was not that the statement of claim be struck out but rather that because the statement of claim wholly failed in the manner described that leave to re-plead ought not to be given and, as a result, the proceeding ought to be dismissed with costs. Mr Rogers took objection to the description by her Honour of the pleading as essentially ‘a written tirade by the applicant accompanied by extensive repetition and a large volume of irrelevant information’. Although Mr Rogers contended in oral submissions that her Honour’s observation reflected a pre-judgment of issues, Mr Rogers accepted that her Honour’s observation was a description of a failure on the part of Mr Rogers to plead disciplined sequential material facts establishing conduct, a contravention, a wrong, loss or injury contemplated by s 116(2)(g) of the Bankruptcy Act arising out of the relevant conduct, and a particularisation of the damages said to have been suffered.

59 The further question is whether her Honour arguably erred in refusing leave to deliver a further further further amended statement of claim wholly re-pleading any claim in respect of which Mr Rogers might demonstrate standing and whether her Honour arguably erred in dismissing the proceedings pursuant to s 31A of the Act and also in reliance upon Order 20, rule 2 of the Federal Court Rules. Recently, French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401 observed that s 31A is not a vehicle for simply striking out parts of a pleading that are deficient. His Honour observed that alternative remedies arise under the Federal Court Rules to deal with deficient pleadings and that, in principle, recourse ought not to be had to s 31A of the Act which deals with entering summary ‘judgment’ in ‘a proceeding’. His Honour, in consequence, respectfully disagreed with the approach adopted by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which Heerey J observed that s 31A of the Act was introduced to establish a lower standard for ‘strike outs’. The question, relevantly in this case, the court asks, for the purposes of s 31A of the Act, is whether it can be satisfied that the applicant in the proceeding has no reasonable prospect of successfully prosecuting the proceeding. That state of satisfaction will rarely be achieved (except in the most transparent of cases) on the strength of a conclusion that the applicant’s statement of claim is deficient either in whole or in part because, as French J observes, leave to re-plead might reveal material facts within a properly identified legal framework that, upon proof, gives rise to a recognised remedy.

60 Section 31A(3) recognises that in determining whether a proceeding has no reasonable prospect of success, the proceeding need not be hopeless or bound to fail. A court might conclude that a proceeding grounded upon a statement of claim which wholly fails is a proceeding which has no prospect of success as formulated even though the statement of claim suggests that a proceeding taken to trial and thus adjudication of the controversy is not hopeless or bound to fail. However, such a finding would be unlikely to result in a conclusion that the proceeding has no prospect of success. Cases may well arise and this is one of them where the court reaches a state of satisfaction not just by reference to the inadequacies in the pleading but having regard to those inadequacies and other factors such as the history of the previous applications, the sequence of amended pleadings already filed by an applicant, the nature of the rights asserted by the applicant, the standing of the applicant to assert the particular claim or claims or in other words all of the matters identified at [40]-[58].

61 Order 20, rule 2 contemplates that a proceeding may be stayed or dismissed generally in circumstances where the court is satisfied that the proceeding discloses no reasonable cause of action; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. In reaching the relevant state of satisfaction, the court will examine the claims and allegations of the applicant to determine whether the contentions are so clearly untenable that they cannot possibly succeed in the sense contemplated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 recognising that the principles stated by the Chief Justice ought not to be given ‘canonical force’ (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425 at 437, per Gleason CJ, Gummow, Hayne and Crennan JJ) and the test to be applied by the court is whether the court can be satisfied of a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’ (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 575-6 [57] per Gaudron, McHugh, Gummow and Hayne JJ) in determining whether the issues in the proceeding should be decided ‘in a summary way’.

62 Having regard to the matters discussed at [40] – [58], I am satisfied that there is no prospect of the applicant succeeding in the proceeding if it were allowed to go to trial in the ordinary way and thus there is a high degree of certainty of the ultimate outcome. That degree of certainty is informed not just by deficiencies in the pleading but by reason of the weight to be given to all of the factors discussed at [40] – [58]. In addition to the chronology identified at [20] of these reasons, the applicant has agitated these same matters previously and the history of those steps is identified at [26] and [27] in the Reasons for Judgment in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434, which also deals with the legal standing of Mr Rogers to maintain the collection of claims set out in his application in the present proceeding (see [28] – [53]). Accordingly, it seems to me that there is no arguable error on the part of her Honour in concluding that the statement of claim must fail in its entirety and that the appropriate order pursuant to Order 20, rule 2 of the Federal Court Rules is that the action be dismissed generally.

63 It should also be remembered that an order dismissing the statement of claim coupled with an order for leave to re-plead and a compensatory order for costs in favour of the respondents (applicants before Collier J) is no compensation as the applicant in the proceeding is an undischarged bankrupt.

64 Having regard to all of those matters, it seems to me that no arguable error on the part of her Honour has been identified in the making of an order pursuant to s 31A of the Act in dismissing the proceedings. Perhaps the test in determining a reasonable prospect of successful prosecution of a proceeding is whether there is a demonstrated ‘real (as opposed to fanciful) issue of fact to be decided’ (Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, per Rares J [31] – [48]). However, the ‘real issue of fact’ must be framed within a comprehensible cause of action (in respect of which the applicant has standing) so that findings of fact in favour of the applicant give rise to a recognised remedy.

65 Accordingly, the application before me for an extension of time in which to file and serve a notice of appeal from the judgment of her Honour Justice Collier given on 7 and 11 December 2006 must be dismissed with costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Counsel for the Applicant:	Applicant - Self Represented

Solicitor for the Applicant:	Applicant - Self Represented

Counsel for the Respondents:	Mr C D Coulsen

Solicitor for the Respondents:	Whittle Lawyers

Date of Hearing:	6 February 2007

Date of Judgment:	23 February 2007

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD504 OF 2006

JUDGE:	GREENWOOD J
DATE:	23 FEBRUARY 2007
PLACE:	BRISBANE