require any further steps in such court for its effectuation, although ancillary steps may be taken, for example, to provide for costs.
11 The Act appears at least to contemplate that, upon a bankruptcy occurring, persons who have been sued should not be further troubled by the suit unless the independent trustee has formed the opinion that the action is worth pursuing. The mere act of election will not necessarily and does not of its own force expose the trustee to personal liability for costs. It seems that the "preferable opinion" is that the trustee should be substituted as the plaintiff in the action: Ryan v Hopkinson (1993) 16 FAMLR 659 per Priestley JA. If the trustee cannot procure sufficient indemnities from creditors as to costs, he or she will presumably be unwilling to make the election. Actual further prosecution of the action will, generally, at least be made conditional upon the defendants having an undertaking from someone who is not a bankrupt to meet their costs if the plaintiff should prove unsuccessful, but that is a matter for the court which provides the forum for the action. At best, for the defendant(s) in the action, the Act might therefore be said to contemplate that, by the election, the trustee will present himself or herself to the defendant(s), as a presently non-bankrupt individual, to meet the costs if the action is ultimately unsuccessful.
12 However, there is nothing to stop a trustee, after an election to prosecute the action, from assigning the rights of the bankrupt estate in the action to a third party. The third party may then be substituted as the plaintiff. On such an assignment and substitution, the trustee would have no continuing power to influence the course of the proceedings, except by agreement with the assignee. Thus, the purpose of the Bankruptcy Act is not to assure the defendants in an action begun by a bankrupt that, if the trustee elects to prosecute the action, then he or she will necessarily remain personally available to meet costs or to direct the manner of further prosecution of the action.
13 These considerations affect the meaning to be accorded to the expression "to prosecute" in s 60(2). The phrase cannot mean "to prosecute personally" or "to prosecute under the trustee's direction". Once it is appreciated that the phrase, on the contrary, may include the meaning, "to prosecute or to arrange the prosecution of the action by any assignee who is not a bankrupt", the nature of the election is illuminated. The ability so to elect is obviously not retroactively vitiated by the subsequent assignment of the right to conduct the action in question.
14 Neither, in my opinion, is there any warrant to constrict the notion of an "election" in s 60(2) so as to make it impossible for an assignment which pre-dates the election to take effect. To interpret the notion of the trustee's "election" as the respondents contend is apt to have a number of unfortunate effects. One is to give an unwarranted benefit to the defendants in the action. Another is to disappoint the assignee. A third may be to prevent the bankrupt's estate from retaining either the consideration for the assignment or the rights in the action. Further, it is not the case that upon an assignment of the right to the benefit of a particular action, the trustee is irrevocably disconnected from the action: the trustee might buy back such a right. Had the trustee done so here, then, as I apprehend it, the objection taken could not be sustained. The applicant might, indeed, still do so. It would be odd if the ability to elect could be extinguished and then resurrected in that way.
15 It is apparent, from the trustee's having assigned the right to conduct the action, that it was the trustee's intention that the action should continue. It would be the trustee's implied obligation to the assignee not to fail, except for reasonable cause, to take available steps to make the assignment effective. The Act expressly requires no formality of an election except that it be in writing and implicitly it only requires that such election be communicated to the defendant(s) in the action and to the forum court within a reasonable period or periods. The written assignment in this case may therefore have amounted to an election contemplated by the Act. However, it is unnecessary to decide that question.
16 These considerations lead me to think that the expression "to prosecute" in s 60(2) should be interpreted as including the meaning "to arrange the prosecution of the action by an assignee, who is not a bankrupt, whether or not the assignment occurs before or after the trustee's election to prosecute".
17 This view is at odds with remarks expressed by Wheeler J in Temsign v Biscen (1998) 157 ALR 83 at 93. However, that was a case of purported assignment by a trustee to the bankrupt himself. The assignment was held to be contrary to the policy and purposes of the Bankruptcy Act. It was not necessary to decide whether an assignment of the rights in the action might be made to a non-bankrupt assignee. The case should not be read as so deciding and it is, accordingly, distinguishable. In any event, there is no sign that the sorts of considerations that weigh with me were urged before Wheeler J. If that case should be read as supporting a conclusion contrary to my own, then, despite the special importance of seeking uniform interpretation of a much-litigated Commonwealth statute, I would respectfully decline to follow it, believing that aspect of the decision, to be wrong. It will be apparent from my general approach to the present case that I respectfully consider the principal basis for the decision in Temsign to be correct and that I have assumed its correctness in what I have said above.
Grounds upon which to extend time
18 Enough appears from the above discussion of the respondents' first point to indicate why I am unimpressed with the second point, that insufficient grounds have been shown to warrant the exercise of the Court's discretion. What appears is that it was either assumed that a post-assignment election to prosecute would suffice or that the trustee and the assignee failed to turn their minds to the necessity for an election before the assignment occurred. If it was the former, the assumption has been vindicated. If it was the latter, the Court ought, in general, to relieve against oversight.
19 It is, however, certainly true that there was egregious delay, poorly explained by the assignee, in attending to the matter once it was raised by the respondents. The relief sought should therefore be conditional upon the applicant undertaking to pay the respondents' costs of this application on an indemnity basis. Presumably the applicant will not so undertake unless the assignee indemnifies him in relation to such an undertaking. Upon the undertaking being given, I will extend the time for election for 21 days from today.