Boensch v City of Parramatta Council - [2020] NSWLEC 163 - NSWLEC 2020 case summary — Zoe

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Boensch v City of Parramatta Council

[2020] NSWLEC 163

Land and Environment Court (NSW)|2020-11-20|Before: Moore J

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Court

Land and Environment Court (NSW)

Decision date

2020-11-20

Before

Moore J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Introduction

Mr Boensch, the Appellant in these proceedings brought pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act), is no stranger to civil litigation as both a represented and as a self-represented litigant. In these proceedings, Mr Boensch is self-represented.
Mr Boensch is an undischarged bankrupt. Mr Boensch's current bankruptcy occurred as a consequence of an order made by the Federal Circuit Court on 12 December 2019 (Somerville Legal Pty Ltd v Boensch [2019] FCCA 3637). This was Mr Boensch's second bankruptcy, his earlier bankruptcy having occurred as a result of a sequestration order made in the (then) Federal Magistrates Court on 23 August 2005.
Two cases, in jurisdictions well outside that vested in this Court pursuant to the Court Act, require noting for differing and tangentially relevant purposes. The first is a decision of the High Court (Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49). This High Court litigation concerned Mr Boensch's first bankruptcy rather than that which gives rise to consideration in these appeal proceedings. Mr Boensch's lucid (if significantly misplaced on these preliminary issues) submissions reflect his litigation familiarity.
The second is a more recent decision (Bailey v Boensch [2020] NSWSC 1391) - a decision given on 25 September 2020 by Parker J in the Supreme Court.
These decisions are but a sample of matters concerning Mr Boensch's rich litigation history that provides a backdrop to that which I need address in this decision.

[2]

[11]

Steps concerning Mr Boensch's bankruptcy prior to the 22 October 2020 hearing

When I read the decision of Parker J earlier cited, I became aware of Mr Boensch's bankrupt status. This caused me to draw this new circumstance to the attention of the Council's legal representatives - inviting them, in doing so, to consider what might necessarily arise in the context of these proceedings by virtue of the operation of s 60 of the Bankruptcy Act.
On 14 October 2020, at 9.05 am, I had my Associate send the following e-mail to the Council's solicitor and to Mr Boensch: Quite serendipitously, his Honour has, this morning, read the decision of Parker J in Bailey v Boensch [2020] NSWSC 1391. Having read that decision, his Honour is now of the view that it is, as a preliminary point, appropriate to request the Council to address the question of whether or not: (a) there is any impediment to Mr Boensch continuing these proceedings, given that his current bankruptcy postdates Commissioner Gray's decision; and/or (b) it is necessary for Mr Boensch's trustees in bankruptcy to be joined as respondents to these proceedings. It may be necessary, depending on responses to this e-mail and his Honour's further consideration of any matters raised with respect to it by the Council or by Mr Boensch, that the hearings on Thursday 22 October 2020 may not be able to proceed further, pending resolution of the above issues. Having raised these matters with the Council, his Honour also invites Mr Boensch to either provide written material on the above matters or be prepared to address the above matters as a preliminary issue at next week's hearing. Should either the Council or Mr Boensch wish to make any written submissions concerning the above matters raised by his Honour, those submissions are to be filed and served by the close of business on Tuesday 20 October 2020.
After a subsequent enquiry from Mr Boensch as to matters going to timing and to what matters he should focus on in preparation for the hearing on 22 October 2020, I had my Associate send the Council's solicitor and Mr Boensch a further e-mail on 15 October 2020.
This e-mail addressed both the nature of the matters to be dealt with on 22 October 2020 and the question of whether or not I should relist the matter earlier. This latter point required further consideration, given that Mr Boensch indicated that he would have difficulty in participating in any earlier relisting of the matter. The further e-mail from my Associate was in the following terms: His Honour has asked me to advise you that, in light of Mr Boensch's e-mail of this morning, his Honour has concluded that the appropriate course to follow is to deal with the bankruptcy-related matters on Thursday 22 October 2020 and, if the proceedings are to continue beyond that date, to address further progression of the matter at that time. As a consequence, his Honour does not propose to relist the matter on Monday 19 October 2020 but leave it as presently listed.
Thus, the three Notices of Motion remained listed for further hearing on 22 October 2020 to deal solely with matters relating to Mr Boensch's bankrupt status.

[12]

The submissions for the 22 October 2020 hearing

Mr Stafford provided preliminary written submissions dated 20 October 2020 addressing the effect of Mr Boensch's bankruptcy. In those submissions, he noted that Mr Boensch had commenced these s 56A appeal proceedings on 16 October 2019, being a date before Mr Boensch became bankrupt.
The following day, Mr Boensch filed written submissions in response. His submissions included the following, at paragraphs 7 to 11: 7) The Respondent is correct in stating that I lodged the original appeal to these proceedings on about the 16 October 2019. 8) However following that, the Respondent argued successfully before the Registrar, that my "appeal was invalid" as being out of time. I had to make an application for leave to lodge this Appeal. 9) Leave was granted in about Feb/March 2020 (I currently cannot locate the records of the exact date) and thereby in reality a valid appeal was lodged when leave was granted. 10) The date, when leave was granted became the date of my Appeal in these proceedings. 11) That date was well after the sequestration order and therefore s60 of the Bankruptcy Act 1966 does not apply. Hence the Trustee in Bankruptcy has no jurisdiction to intervene in these proceedings under, but not limited to, s60 of the Bankruptcy Act 1966.
It will be necessary, later in my consideration of what follows as a consequence of s 60 of the Bankruptcy Act, to explain why I am satisfied that that which is submitted by Mr Boensch in paragraph 10 of the above extract is incorrect.
On 21 October 2020, a letter (dated 20 October 2020) from the Council's legal representatives to the trustees of Mr Boensch's bankrupt estate (trustees appointed as a consequence of his December 2019 bankruptcy) was provided to me. The letter to those trustees was in the following terms: We confirm we act for City of Parramatta Council, the defendant in the above proceedings. We have been advised that the Plaintiff in the above proceedings, Franz Boensch was declared Bankrupt on 12 December 2019, and you have been appointed as trustees. Pursuant to s60(3) of the Bankruptcy Act 1966 (Cth) we put you on notice of the above proceedings. Please find enclosed Summons of Appeal filed 16 October 2019 and the Judgment that is the subject of the appeal which was handed down on 16 August 2019. In our view the appeal has no reasonable prospects of success and is liable to be struck out, for the reasons set out in the enclosed written submissions filed with the Land and Environment Court on behalf of our client. We are instructed to request you pursuant to s60(2) of the Bankruptcy Act to make an election in writing within 28 days whether to prosecute or discontinue the action. Should you not provide a response within 28 days of the date of this letter, our client reserves its right to take further action without further notice.
This letter, from its contents, self-evidently had the effect of drawing the attention of those trustees to these current s 56A appeal proceedings. It also had the effect of triggering the operation of s 60 of the Bankruptcy Act by causing the 28-day period specified by s 60(2) commencing to run and, with that, the (at least potential) inevitability that one of the three outcomes provided for in subs (2) and (3) of s 60 of the Bankruptcy Act occurring at the expiry of that specified 28-day period.
It is to be observed that the above communications on my behalf did not direct that the Council's legal representatives were to send a triggering notice of the type envisaged by s 60(2) of the Bankruptcy Act to the trustees of Mr Boensch's bankrupt estate. Whether or not that was an appropriate step for me to mandate was a matter about which I had intended to have the parties address me on 22 October 2020.
However, the sending of the Council's legal representatives letter to Mr Boensch's trustees on 20 October 2020 rendered nugatory consideration of whether or not the giving of such notice was appropriate or whether there might have been some circumstances (for example, as subsequently revealed to me, Mr Boensch's undetermined annulment application) as to why such notice might, potentially, have been regarded as premature at this time.
Prior to me becoming aware of Mr Boensch's bankrupt status by virtue of reading the decision of Parker J in the Supreme Court, Mr Boensch and Mr Stafford, counsel for the Council, had also both provided extensive written submissions addressing matters arising for consideration in my addressing of the three interlocutory Notices of Motion.
It is not necessary for these to be set out or addressed in this decision.

[14]

Further steps up to the 20 November 2020 hearing

I did not grant Mr Boensch liberty to relist prior to the 20 November 2020 hearing. I did this as it was my view that nothing useful could arise to be dealt with, from his perspective, unless the views of his trustees in bankruptcy were made known or the 28-day statutory time period had expired.
As a consequence, although Mr Boensch filed a further written submission via Online Court on 28 October 2020, a submission which included a request from him that I relist the matter, I declined to do so. I had my Associate inform Mr Boensch and the Council, via Online Court, as follows: In all three Notices of Motion, on 22 October 2020, his Honour adjourned all three Notices of Motion for further hearing on 20 November 2020 before him at 4.15 pm. His Honour granted the Council leave to relist any of the matter on three days' notice. His Honour did not grant such leave to Mr Boensch. His Honour has asked me to advise the parties that, in response to Mr Boensch's written submissions filed on 28 October 2020, he declines to relist the matter prior to 20 November 2020.
On 2 November 2020, I was provided by the Council's legal representatives with a copy of a response (dated 27 October 2020) from Mr Boensch's trustees in bankruptcy. I note that a copy had also been provided to Mr Boensch. The trustees' response was in the following terms: As you are aware, Mr Christopher Palmer and I were appointed Joint Trustees of the Estate, pursuant to a Sequestration Order of the Federal Circuit Court of Australia made on 12 December 2019. Attached hereto is a copy of the Certificate of Appointment as evidence of the appointment. I refer to your letter dated 20 October 2020 in respect to the Proceedings and make comment as follows: (i) On 16 December 2019, the Debtor filed a notice of appeal seeking to set aside the sequestration order. As at the date of this notice, a date for hearing and/or for the delivery of judgment has not been set and there has been no indication as to when the proceedings may be finalised. The continuing appeal against the Debtor's sequestration makes it difficult for us to make an election in respect to the Proceedings. (ii) Based on the information available to us, we see no reason to disagree with your view that the Proceedings are without merit and/or that the Debtor has no reasonable prospects for success. (iii) Based on the information available to us, we see no commercial benefit in the continuance of the Proceedings, nor would we be funded to continue with the Proceedings. (iv) But for the appeal to the sequestration remaining on foot, it would be our intention to elect to discontinue the proceedings pursuant to section 60(2) of the Bankruptcy Act 1966. In light of the foregoing, we do not intend to prosecute nor discontinue the action in respect to the Proceedings.
As a consequence of the above communication from Mr Boensch's trustees in bankruptcy, I immediately had my Associate send the following Online Court communication to the parties: His Honour has been provided, this morning, with a copy of the 27 October 2020 letter from O'Brien Palmer to the Council's legal representatives. On 20 November 2020, when the matter is next before his Honour, his Honour will receive any further submissions by Mr Boensch (whether written or oral) concerning s 60 of the Bankruptcy Act, together with any submissions on behalf of the Council in reply. If Mr Boensch wishes to provide any further written submissions, they should be filed and served by the close of business on Friday 13 November 2020, with any written submissions in reply from the Council to be filed and served by the close of business on Wednesday 18 November 2020. At the conclusion of the hearing on 20 November 2020, his Honour proposes to reserve his decision on matters relating to s 60 of the Bankruptcy Act. As the matter is listed at 4.15 pm that day, his Honour proposes to allow Mr Boensch up to 25 minutes for any oral submissions he might wish to make; the Council to have 10 minutes in reply; and Mr Boensch to have a further 10 minutes in reply to any submissions made by the Council.
On 14 November 2020, Mr Boensch emailed further submissions to my Associate and to the Council's legal representatives concerning matters relating to his bankruptcy and the present proceedings. He also filed electronically, on that date, an affidavit with 41 pages of annexures in support of these submissions. Mr Stafford provided written submissions in response the following day. I have had regard to those submissions in my consideration of the matters here requiring determination.

[17]

Mr Boensch's late-filed affidavit

I have earlier noted, at [50], that Mr Boensch had filed a supplementary affidavit (with an annexure) after I had reserved my decision. The affidavit is one of short compass. It is appropriate that I set out, for completeness in understanding my decision, the entirety of the terms of Mr Boensch's affidavit (noting that paragraphs 13 to 15 of the affidavit are clearly submissions rather than matters for evidence). Under the circumstances, it is appropriate that I receive them and treat them in that fashion. The terms of his late‑filed affidavit were: 1 I am the Appellant. 2 I was named in a Council Order dated 13 September 2018, addressed to 255 Victoria Road Rydalmere. 3 I make this affidavit to assist the court by providing a document I referred to in the hearing today. 4 The Property involved in the Council order and subject to these Proceedings is a Trust Property. 5 I am the Trustee holding the Property for a 3rd Party. 6 I verily believe that carrying out my duties as Trustee, whatever it might be, to administer the Trust Property, are not and should not be restricted or stifled in any way by my personal Bankruptcy. 7 I was made Bankrupt in a related Bankruptcy in 2005. 8 Back then I contacted ITSA and enquired what the effects of my Bankruptcy have on my duties as Trustee of the Trust Property. 9 Mr Robert J. Bob Cruickshank from ITSA (Deputy Official Receiver at the time) replied that I can continue my duties as Trustee of the Property Trust without any effect from my personal Bankruptcy. 10 I presented this information from ITSA to my then Trustee in Bankruptcy Mr Scott Darren Pascoe and a letter in reply dated 1 Sept 2005 was send to me on a Letterhead of "Sims Partners". Annexed here as "A" to this affidavit. 11 Paragraph 2 of this letter from Pascoe reads : ("I believe that Insolvency &Trustee Services Australia's view that you may remain trustee of the Trust and that the bankruptcy proceedings do not affect this duty is correct…") 12 I trust I verily believe that this still applied today to the question of s60(2), s60(3), 60(4) s60(5) 13 My personal Bankruptcy including s60 should not have an effect, in particular but not limited to that these proceedings are discontinued. 14 I trust and verily believe that my personal Bankruptcy has no effect on my duty to administer the Trust Property and as such I should be free of any incumbrance with the administration of my duties as Trustee of the Trust Property. 15 As such I should be free to deal with the relevant Council Order in any way legal and I see fit including Court actions and this appeal.
It is unnecessary to set out the entirety of the letter which was annexed to this affidavit. It is sufficient that I reproduce the terms of paragraph 2 of that letter, a paragraph in the following terms: 2) I believe that Insolvency & Trustee Service Australia's view that you may remain trustee of the trust and that the bankruptcy proceedings do not affect this duty is correct. However, I am still looking into this matter and upon receipt from you of full details of the trust and your Statement of Affairs, I will be in a better position to seek legal advice on this matter.
It is to be observed that the opinion expressed by the author in the paragraph quoted immediately above is a contingent one, with the necessity for the author to seek further legal advice on this point in light of whatever Mr Boensch might then provide "of full details of the trust and your Statement of Affairs". This is not a conclusive statement of opinion based on legal advice. It is a qualified and contingent position expressed by the trustee in bankruptcy and relating to circumstances which existed in September 2005.
It is of no assistance in enabling me to understand what the present position of Mr Boensch in his second bankruptcy might be.
However, it is also irrelevant to the legal framework in 2020 within which I am obliged to address the issues arising from s 60 of the Bankruptcy Act in these proceedings.
As can be seen from the nature of my subsequent discussion, the fact that Mr Boensch is a trustee on behalf of his family trust is a matter to which I have given appropriate consideration and, for this purpose, have assumed that he has no pecuniary interest in that trust's property.
Nonetheless, as can also be seen from the following legal analysis, even under such circumstances, the inevitable consequence of Mr Boensch's December 2019 bankruptcy is that these proceedings must be dismissed for the reasons which follow.

[19]

The timing of commencement of these proceedings

An order nunc pro tunc is made when a court directs that a proceeding is to be dated as if commenced on an earlier date than that upon which it was actually commenced. Mr Boensch, effectively, seeks to have me regard an extension of time within which he is to be permitted to commence this s 56A appeal as being a mirror reverse of such a position.
Mr Boensch commenced these appeal proceedings on 16 October 2019. For him not to have needed an extension of time, he would have needed to have filed the Summons commencing this appeal by 14 September 2019. He did not do so. As a consequence, for this appeal to be permitted to be commenced, he needed in extension of time within which to commence - an extension of time of 33 days, being the period between the end of the ordinary period for the commencement of such an appeal and the date upon which he actually filed the Summons.
In Mr Boensch's Summons, he sought, as order (1), "Leave to appeal from the whole of the decision below if required".
It is also clear that, when Duggan J stayed the Council's order on 18 November 2019, no extension of time to commence the appeal was sought or granted on that occasion.
It is to be interposed that, although Mr Boensch is of the view that such an extension was granted in February 2020, he has no record of the precise date of this happening (annexure to Mr Boensch's affidavit of 15 November 2020, at folio 6, where Mr Boensch noted, at paragraphs (1), (2) and (3) - repeating what he had said in his submissions of 21 October, see [32] earlier): (1) The Respondent is correct in stating that I lodged the original appeal to these proceedings on about the 16 October 2019. (2) However, following that, the Respondent argued successfully before the Registrar, that my "appeal was invalid" as being out of time. I had to make an application for leave to lodge this Appeal. (3) Leave was granted in about Feb/March 2020 (I currently cannot locate the records of the exact date) and thereby in reality a valid appeal was lodged when leave was granted.
The Court's records do not disclose any such extension as having been granted. His application for an extension of time within which to commence the proceedings thus remains to be determined.
It is, therefore, necessary to formalise commencement of the appeal by granting the extension of time sought in the orders to be made at the conclusion of this decision.
All that the granting of this extension of time to commence the appeal does is to eliminate the otherwise exclusionary effect of the effluxion of time over the gap period of 33 days. The appeal commenced from the date upon which it was filed by virtue of the granting of the extension of time by the order I will later make.
Mr Boensch's submission that his appeal did not commence until after the sequestration order was made against him is without foundation.

[20]

The effect, if any, of s 60(4) of the Bankruptcy Act

I next need to address Mr Boensch's submission that this s 56A appeal falls within the savings scope of s 60(4) of the Bankruptcy Act. This savings provision is in the following terms: 60 Stay of legal proceedings (1) … (2) … (3) … (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or (b) the death of his or her spouse or de facto partner or of a member of his or her family.
Earlier bankruptcy legislation, the Bankruptcy Act 1924-1933 (Cth) (the 1924‑1933 Act), addressed, in its s 63, matters now covered by s 60 of the Bankruptcy Act. It contained, as a proviso to its s 63(3), words to the same effect as s 60(4) of the legislation here involved. The proviso was in the following terms: Provided that any bankrupt may continue, in his own name and for his own benefit, any action or proceedings commenced by him previous to his bankruptcy for any personal injury or wrong done to himself or to any member of his family.
Dixon J (as he then was) dealt with the proviso to s 63(3) of the 1924‑1933 Act in Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48. At 721, his Honour described the test as to whether the proviso applied in the following terms 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 [citing Wilson v. United Counties Bank Ltd (1920) A.C. 102, at pp. 111 and 128-133].
In Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 (Daemar), Kirby P (Samuels and Clarke JJA concurring) adopted and applied the above test at 55 to 56. This adoption was also subsequently cited and applied by Handley JA (Kirby P and Meagher JA concurring) in Mannigel v Hewlett Phelps and Ors [1991] NSWCA 186 at page 2, line 34.
Although Mr Stafford, in his written submissions of 19 November 2020, refers to what might be regarded as the modestly expansive approach to s 60(4) adopted by McCallum J in Fisher v Transport for NSW [2016] NSWSC 1888 (her approach being adopted by Full Court of the Federal Court in Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92), such a potential expansion can, properly understood, only be regarded as arising in the context of matters personal to the individuals involved in those proceedings.
In these proceedings, no matters of personal impact are involved. These proceedings are, in effect, purely public law proceedings whereby the Council sought to uphold a relevant applicable regulatory regime. Indeed, in his submissions concerning his status as a trustee with respect to the Rydalmere property, Mr Boensch has repeatedly submitted that he had no personal interest in that property. As a consequence, application of the test set out above in [80] is appropriate to be applied to Mr Boensch's circumstances and the mildly expansionary positions discussed above have no relevant applicability.
Section 60(4) of the Bankruptcy Act can have no applicability to effect preservation of the s 56A appeal commenced by Mr Boensch.

[21]

Is this appeal an "action" for the purposes of s 60 of the Bankruptcy Act?

First, it is to be observed that the institution of an appeal in circumstances such as these prima facie constitutes an "action" for the purposes of s 60(5) of the Bankruptcy Act (Cummings v Claremont Petroleum NL (1995-1996) CLR 124 at 130 and 142 applying Want v Moss (1889) 10 NSWR (L) 274).
The word "action" is defined in s 60(5) of the Bankruptcy Act for the purposes of this section as meaning "any civil proceeding, whether at law or in equity". In light of this definition, the question of how "action" is to be construed in the context of the application of the words "any civil proceeding" was discussed by Gleeson J in a decision of 13 November 2020 (In the matter of St Gregory's Armenian School Inc (in liq) (No 2) [2020] NSWSC 1601). Between [27] and [45], his Honour analysed how the scope of the term "action" might be construed following the decision of the Court of Appeal in Daemar and subsequent decisions.
In particular, his Honour discussed the decision of Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25 (Re Lofthouse) in which the issue of whether an action as dealt with by s 60 of the Bankruptcy Act should be construed as excluding a proceeding in which a bankrupt is carrying on the proceeding as a trustee. His Honour quoted (adding his own emphasis as can be seen) what was said by Gray J in Re Lofthouse, at [20]: In my view, s 60 has been enacted deliberately as a broad provision, so as to encompass any proceeding brought by a bankrupt before bankruptcy. The exceptions have been expressed quite narrowly. The intention is that, once a bankruptcy occurs, no further costs should be incurred in a proceeding unless the trustee in bankruptcy makes an election to continue the proceeding.
This approach, as Gleeson J explained, has been followed elsewhere to the result that a plaintiff (here Mr Boensch as an appellant) who is a trustee for a trust (the position here pressed by Mr Boensch) in proceedings is subject to the operative effect of s 60(2) and (3) of the Bankruptcy Act.
In these proceedings, although the Council's order was initially addressed, personally, to Mr Boensch, it has been an integral part of Mr Boensch's position before the Commissioner and before me that he is a bare trustee with respect to the site which has given rise to the order. Subsequently, Mr Boensch has consistently made clear in his submissions to me in these proceedings - although not formally pleaded to be commenced by him in his role as trustee, that is how he envisages his role in this appeal.
The reasoning set out by Gleeson J in [45] is equally here applicable. Mr Boensch's s 56A appeal proceedings do fall within the broad scope of "action" as defined in s 60 of the Bankruptcy Act.
It is also clear that, as an action such as this appeal does not fall within any exception to be found in s 60(4) of the Bankruptcy Act, it is thus not protected from the operation of the earlier elements of the section (Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545).
Further, the option to adjourn these proceedings to permit Mr Boensch's annulment application in the Federal Court to be determined is not available to me (Arnoya Holdings Pty Limited & Ors v Metway Leasing Limited [1999] NSWCA 120 at [26]).
As necessarily follows, these proceedings require to be dealt with pursuant to the operative effect of the provisions of s 60(2) and (3) of the Bankruptcy Act.

Boensch v City of Parramatta Council

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