Dwyer v Housing Industry Association Ltd (Anti-Discrimination) [2009] VCAT 411

1. This complaint be reinstated pursuant to section 120 of the Victorian Civil and Administrative Tribunal Act 1998, but stayed by operation of section 116 of the Bankruptcy Act 1966 (Cth) until further order.

2. The respondent file and serve any submissions in support of any application that the complainant pay the costs of this proceeding by 7 April 2009.

3. The complainant file and serve any submissions in opposition to the respondent's application for costs by the 30 April 2009.

1. Phillip Dwyer is a builder. He lodged a complaint with this Tribunal in October of 2008, the complaint having already been referred to the Victorian Equal Opportunity & Human Rights Commission in September of 2007. His complaint against the respondent is that the respondent has discriminated against him. The attribute that he relies upon is the attribute of industrial activity, although I must say that it appears from looking at his complaint that his complaint may possibly also be described as a complaint of discrimination on the grounds of his political activity.
2. He says that the respondent, which was at the relevant time the sole supplier of insurance to the domestic building industry, refused his application for membership of the respondent because of his outspoken opposition to the respondent's policies and particularly in respect of the respondent's role in the Australian home warranty scheme.
3. Home Warranty Insurance could only be obtained at that time by an individual, not a company. The respondent was the only purveyor of home warranty insurance, which it offered only to its members. Mr Dwyer says that as a direct result of the respondent refusing him membership, he was unable to obtain home warranty insurance for his building business and was therefore unable to operate in the domestic building industry.
4. His complaint has not been formulated by solicitors. It was formulated, as is usual, by the Victorian Equal Opportunity & Human Rights Commission on his behalf. Mr Dwyer confirmed in evidence before me that the statement of complaint prepared by the Commission accurately sets out the way in which he wishes to make this complaint . As it will become apparent, my decision in this case depends upon me being able to accurately identify Mr Dwyer's cause of action.
5. I will therefore quote from the statement of complaint as follows:

"HIA removed my membership during a time when they were the only broker for this mandated insurance. This had a detrimental impact on my business, as I was unable to operate legally in the building industry without it.

I believe HIA in denying me a membership to their organisation, effectively denied me a service. HIA's decision to disallow my application for membership essentially denied me access to the only available builders' warranty insurance at the time. For a two year period, my family-run business stopped and I was unable to generate any income. This was financially crippling and emotionally one of the most stressful periods of my business and private life."

"I believe that the only reason HIA denied me membership and removed me from their organisation was my lobbying and stance against them, which was my industrial activity, which took the form of lobbying and the formation of the Builders' Collective of Australia.

In September 2004, I was finally able to obtain builders' warranty insurance. I have since been trying to revive my family business but the impact of being locked out of the building industry during this two year period due to HIA's decision to deny me membership and the battle to try to change the system has come at an enormous cost."

1. When Mr Dwyer's complaint was referred to this Tribunal by the Equal Opportunity Commission I listed it for a directions hearing. That directions hearing took place on 19 January 2009. Counsel for the respondent appeared at that directions hearing. Mr Dwyer did not appear.
2. I ordered that the proceeding be struck out for non-appearance of Mr Dwyer at the directions hearing.
3. I further ordered that Mr Dwyer pay the respondent's costs of the proceeding to date fixed at $1000.
4. Mr Dwyer has now applied under s120 of the VCAT Act for a review of that order.

The principles to be applied in a review under s120 of the VCAT Act

1. Section 120 of the VCAT Act provides that a person in respect of whom an order is made may apply to the Tribunal for a review of the order if that person did not appear and was not represented at the hearing at which the order was made.
2. Clearly Mr Dwyer did not appear at the hearing and was not represented, so he is entitled to make application under s120 of the Act.
3. Section 120(4)(a) provides that in determining an application under that section I have a discretion to hear and determine the application if I am satisfied that an absent applicant had a reasonable excuse for not attending or being represented at the hearing.
4. Section 120(4)(b) provides that I may, if I think fit, order that the order striking out the proceeding be revoked or varied.
5. Thus it appears to me that there are two aspects which I must take into account when considering a s120 application. The first is whether or not Mr Dwyer had a reasonable excuse for not attending the hearing. The second is a broader question as to whether the order which I have made should be revoked or varied.
6. This dual enquiry under s120 has been commented on in previous decisions. A principle which has been followed in all applications under this section is that this section should be construed liberally (see for example Wahr v Australian Broadcasting Corporation [2000] VCAT 1080) as it operates for the benefit of a party that has not been represented at or appeared at the hearing.
7. In Tomasevic v Victoria [2005] VCAT 1525 the then President of this Tribunal, Justice Morris, considered the ambit of the second aspect of a s120 enquiry. He considered that in order to determine whether it was "fit" that the proceeding should be reinstated, the Tribunal must consider the following factors:

"The Tribunal could choose to hear the evidence that the applicant for the s120 order intended to rely upon in relation to the merits, and take this into account, in making an assessment as to whether to exercise the s120 power. There may be other factors that influence the discretion. ....The important thing to note is that there is no automatic right for a person who does not attend a hearing to have an order made at that hearing revoked. This is so, even if the person seeking to have the order revoked is blameless."

1. This approach has also been commented on with approval in Avonwood Homes Pty Ltd (in liquidation) v Milo Danovic [2005] 23VAR 189..
2. Tomasevic appears to introduce into s120 a similar enquiry to that which a court would make on determining a reinstatement application - that is, whether there is a serious issue to be tried- although perhaps to a lesser degree than the strict application of that test would require.
3. I will deal with this application on the basis that as well as being satisfied that Mr Dwyer has a reasonable excuse for not attending the hearing, I should look at the surrounding circumstances, including the merits of the claim itself, to decide whether it is appropriate that the claim be reinstated.

Does Mr Dwyer have a reasonable excuse for not attending or being represented at the hearing?

1. Mr Dwyer was sent notification of the hearing on 19 January 2009 by a letter from the Tribunal addressed to him at 27 Advantage Road, Highett. This letter appears to have been posted by ordinary mail on 18 November 2008.
2. Mr Dwyer has been sent other correspondence by the Tribunal regarding his claim addressed to the same address, and he has received that correspondence. The address of 27 Advantage Road, Highett is the address of his business.
3. Mr Dwyer gave evidence before me and confirmed that 27 Advantage Road, Highett is his postal address. He has no explanation as to why he did not receive the notification on 19 November 2008. He said that when he received a copy of my order of 19 January 2009 striking out the proceeding he was horrified and immediately made contact with the Tribunal to set in process this application for review.
4. Counsel for the respondent submitted to me that I should not accept Mr Dwyer as a witness of truth. He relied upon the fact that the statement of complaint prepared by the Commission and forwarded to this Tribunal, did not disclose that Mr Dwyer was bankrupt, instead using words which were designed to give the impression that he had narrowly escaped bankruptcy. He suggested that I should be satisfied that Mr Dwyer was not being truthful in his evidence and that I should not therefore be satisfied that he had not received the notification.
5. I reject the respondent's arguments on this issue. There is no evidence before me of the complainant having previously failed to comply with orders of this Tribunal. His sworn evidence was to the effect that he did not receive the notification from the Tribunal. His actions since receiving notification of my order striking out the proceeding have been to immediately take steps to attempt to have the proceeding reinstated. In my view Mr Dwyer gave truthful evidence and has demonstrated by his evidence that he had a reasonable excuse for not attending the hearing.
6. If this were the only criteria provided for in s120, I would have no hesitation in setting aside my order of 19 January 2009 and reinstating this proceeding.

1. There is, however, another significant issue which I must consider in this case. Mr Dwyer has given evidence that he became bankrupt on his own petition on 3 August 2007 and therefore was at the date of referral of this complaint to the Tribunal an undischarged bankrupt.
2. Under s58 of the Bankruptcy Act 1966 the property of a bankrupt vests in that person's trustee in bankruptcy. Further, by s116(1) of the Bankruptcy Act the capacity to exercise, and to take proceedings for exercising, all such powers in or in respect of property becomes property available to be divided amongst the bankrupt's creditors.
3. Property as defined in s58 includes the right to pursue a cause of action, and thus, subject to the considerations which I will shortly discuss, includes the right to bring this complaint of discrimination to this Tribunal. This principle is long established and is reflected in cases such as Pridmore v Magenta Nominees Pty Ltd [2001] FCA815 and Jones & Skelton [1966] 9FCR 318 and re Movitor Pty Ltd [1966] 64FCR at 391-392.
4. The respondent says that I should exercise my discretion under s120(4)(b) to refuse the application because Mr Dwyer has no power to bring this proceeding, that power having by reason of the Bankruptcy Act passed on his bankruptcy to his trustee in bankruptcy. Mr Dwyer gave evidence that he had discussed this proceeding with his trustee and his trustee was not prepared either to initiate or to continue with this proceeding. In those circumstances the respondent says that the proceeding has been brought without lawful authority and should be stayed.
5. There are some circumstances in which a bankrupt can bring or maintain litigation in the courts. Section 116(2) of the Bankruptcy Act removes from the definition of property vested in a trustee in bankruptcy -

"any right of the bankrupt to recover damages or compensation

(i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; or

(ii) in respect of the death of the spouse of the bankrupt or a member of the family of the bankrupt;

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person."

1. The question I have to determine is whether or not Mr Dwyer's claim in this case under the Equal Opportunity Act is properly to be described as a claim for personal injury or wrong done to Mr Dwyer, his spouse or a member of his family . If this claim comes within this definition, then it is appropriately brought by Mr Dywer. If it does not, then the claim must be stayed until it is adopted by his trustee.
2. Mr Dwyer says that this anti-discrimination claim is a claim for personal injury or wrong. In his complaint he says that the actions of the HIA were financially crippling and were emotionally one of the most stressful periods of his business and financial life. In his submissions to me he said that his dispute with HIA, and particularly a defamation action brought against him by HIA, had caused him enormous personal physical and emotional costs. He says that this brings the claim within the terms of section 116(2) of the Bankruptcy Act, and therefore he can pursue the proceeding without the involvement of his trustee in bankruptcy.
3. I will presume for the purpose of this application that Mr Dwyer will be able to establish at the hearing that he has suffered some emotional cost, personal anguish, and grief by reason of the activity of the respondent in respect of which he claims. I make this assumption because it is my view that I should decide this application taking the complainant's case at its highest.
4. It may well be that these matters would not be able to be proved at trial. In particular I note that the loss appears to have been occasioned to a company with whom he has an unspecified connection, rather than to him personally.
5. At the moment the Complainant has not formally filed particulars of Complaint, and I take into account that he is without legal representation. The question for me is whether if he were able to prove such a claim of discrimination, founded as it is on a claim of financial loss, but accompanied by a claim of emotional distress, it would be a claim for personal injury or wrong done to Mr Dwyer, within the meaning of that term in bankruptcy law.

1. From the authorities submitted by the respondent, it is apparent that there is long established authority on the types of personal rights accessible to a trustee in bankruptcy.
2. Some of the authority is quite old. It derives from English cases. As I understand it, the common law in England developed exceptions to the rule that all property of a bankrupt vests in his trustee, at a time when there was no statutory scheme of bankruptcy.
3. A well-known passage is that from Beckham & Drake [1849] 9ER 1213 as follows:

"The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights or property (at p 1222)."

1. The logic of the exemption was expressed in now quite quaint terminology by the English Court of Appeal in 1878 in Ex Parte Vine; re Wilson (1878) 8Ch D364 at page 166 -

"The general principle always has been that, until a bankrupt has obtained his discharge, all his property is divisible amongst his creditors. But an exception was absolutely necessary in order that the bankrupt might not be an outlaw, a mere slave to his trustee; he could not be prevented from earning his own living. On that principle the trustee could not sue for moneys due to the bankrupt in respect of his personal labour, and, if the bankrupt could sue for them only for the benefit of his trustee, he would really be without remedy. If he could not sue for damages in respect of a personal wrong, such as the seduction of his daughter, or anything like that, the courts of the realm would be closed to him for all practical purposes."

1. In Wilson v United Counties Bank Ltd [1920] AC102 this same principle is expressed as follows:

"The right of action does not pass where the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property. Thus it has been laid down that the assignees cannot sue for breach of promise of marriage, for criminal conversation, seduction, defamation, battery, injury to the person by negligence, as by not carrying safely, not curing, not saving from imprisonment by process of law."

1. In Ex Parte Vine: re Wilson (1878) 8ChD 364 the bankrupt had a claim for trespass, where no substantial damage was done to the land or goods the subject of the claim, and where the bankrupt claimed damages for personal annoyance to himself and his family as a result of the trespass. It was held that his right to sue for personal annoyance did not pass to his trustee in bankruptcy, as it was characterised as a completely separate cause of action.
2. In Re Kavanagh; ex parte the bankrupt v Jackson ( 1950)1 All ER 39 an apportionment was made between claim by a bankrupt regarding damage to credit and loss of reputation and other claims.
3. The principles discussed in these cases was identified to be part of the common law of Australia in the early part of the last century, in the case of Cox v Journeaux (No. 2) [1935] 52CLR 713.
4. In Journeaux itself the bankrupt sought to maintain an action for civil conspiracy against certain of his business associates whom he said had combined and conspired together to ruin him financially and discredit him in the minds of the business community and the public. He said that the conspiracy of which he complained ruined him financially. In that case the Court came to the view that the case sought to be agitated by the bankrupt was clearly hopeless. The Court was not prepared to express a view on whether the cause of action pleaded would properly fall within the description of injury and thus remain actionable at the suit of the bankrupt given that it had already concluded that there was no cause of action in fact.
5. But in the course of his judgment Dixon J expressed the applicable principle as follows:

"The plaintiff says that he himself is entitled to prosecute it under the proviso as an action for personal injury or wrong done to himself. 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."

1. The Commonwealth Bankruptcy Act 1966 codified Australian bankruptcy law, and in the course of doing so laid out in section 116 the circumstances in which the trustee in bankruptcy could claim the property of the bankrupt, and the circumstances in which the bankrupt could retain property, including the right to bring or maintain proceedings.
2. Counsel for the respondent provided me with a selection of modern authorities on the scope of s116(2). He submitted to me that the common thread running through those cases which he cited is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to bring the action passes to the trustee notwithstanding that it may be accompanied by a claim of personal inconvenience or injury to the bankrupt. Conversely, where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to bring proceedings remains with the bankrupt.
3. I turn now to the cases provided to me by the respondent.
4. In Faulkner v Bluett [1981] FTFLR115 the bankrupt sought to bring an action for negligent misstatement against the respondents whom she suggested had made representations upon which she had relied and which had led to financial loss to her. The Court referred to the authorities which I have outlined and others to similar effect. At page 119 of the judgment Lockhart J observed -

"The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt. ... when the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt."

1. Lockhart J posed the question as being to determine what is the essential character of the right of action under consideration. He said -

"There is still some doubt whether a right of action passes to the trustee where one and the same cause of action results to substantial damage to the property of the bankrupt as well as substantial injury to his person or annoyance to his feelings....

In England the accepted view seems to be that such a cause of action passes to the trustee so far as it relates to the property of the bankrupt, and remains with the bankrupt so far as it relates to his person or feelings".

1. His Honour concluded that in the case before him, which was a claim for damages for negligent misstatement -

"The right of action of the applicant is directly related to her property or her estate, namely, her shares in Trisal Engineering Pty Ltd and her interests in the patents or the Trisal clips. 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, 'body, mind or character'. (at page 122)."

1. The right of action therefore vested in the trustee.
2. This case illustrates the principle that it will be a question of fact in each case as to what the essential character of the cause of action is. Is it in truth a claim for damages, or a claim in respect of the bankrupt's "body, mind and character"?
3. In Mannigel v Hewlett Phelps (1991) the NSW Court of Appeal considered the application of s60(2) of the Bankruptcy Act. This section is in identical terms to s116 (2). It requires the stay of an action commenced by a bankrupt, save for an action in respect of any "personal injury or wrong" done to the bankrupt. Thus cases where this section have been considered also have application to the principles to be applied under s116(2).
4. The case concerned a claim by a husband and wife against their solicitors for professional negligence. They claimed that as a result of the solicitors' negligence they had suffered economic loss, and that as a consequence of that economic loss they suffered inconvenience, mental distress and strain, lost credit and reputation, and injury to their mental and physical health.
5. The Court characterised the claims for mental and physical distress and injury to mental and physical health as consequential on the economic loss claim, and not as a separate cause of action. Thus s60(4) did not apply and the action was stayed.
6. In that case the pleadings did not disclose a separate cause of action, and most importantly, the bankrupt agreed that the claims which they sought to bring were the consequences of the alleged breaches of duty by the solicitors and had not been caused in some other way.
7. In Arnoya Holdings Pty Ltd and ors v Metway Leasing Limited (1999) NSWCA 120, a bankrupt wished to intervene to take over from his trustee the conduct of a cross-claim where the principal proceeding was apparently a claim for possession of land. The cross-claim which was based on allegations of misrepresentations at the time the various property mortgages had been executed, alleged that the bankrupts had suffered lost profits, loss of investment opportunities, and further or in the alternative injury to reputation and hurt and embarrassment.
8. The Court considered and applied Mannigel and found that it could not be said that the claim for damages for injury to reputation and hurt and embarrassment was a claim without reference to the bankrupt's rights of property, within the principle stated by Dixon J in Cox v Journeaux, to which I have previously referred. The bankrupt was accordingly unsuccessful.
9. Some of these cases were decided well before equal opportunity legislation, granting relief to individuals and protection against discriminatory behaviour, were enacted. As well as promoting equal opportunity within the community, the objectives of such legislation is to provide redress for people who have been discriminated against.
10. The Equal Opportunity Act gives power to this Tribunal to make an order that a respondent refrain from committing a further contravention of the Act, make an order that the respondent pay the complainant an amount to compensate for the loss and damage suffered by reason of the discrimina-tion, or order that the respondent take a positive act to redress the loss.
11. The question for me is how these old and well-established principles should be interpreted when considering a claim under the Equal Opportunity Act - which is legislation giving rights which I am sure would not have been contemplated when these principles were established. The concept that discrimination is a "wrong" in the sense that those who are discriminated against are wronged, is a new concept. Political and industrial discrimination is outlawed under the Act because Parliament wishes to prevent behaviour which it views as inappropriate, and deserving of censure, even if not accompanied by actual financial damage or personal injury. This is reflected in the fact that the Tribunal does not need to be satisfied of actual damage before finding a claim proved. The Tribunal is given the power to make orders to redress the wrong and to order a respondent to refrain from similar conduct in the future.
12. The respondent says that the claim in this case is in truth a claim for damages for the loss of Mr Dwyer's business and for compensation for that loss. The respondent says this claim is inextricably bound up with the applicant's business and the question of how it operated, its capacity to operate and how it failed.
13. There are many different types of anti-discrimination complaints. There are no decided cases on the question of whether or not a claim under the Equal Opportunity Act or under similar social and remedial legislation can be maintained or initiated by a bankrupt under the protection of s116(2) of the Bankruptcy Act.
14. As I have said, I am not aware of any case in which these remedies have been considered in the context of the Bankruptcy Act. The application of the exemption has, however, been considered in several employment cases, in which bankrupt applicants have sought to enforce their rights under industrial law.
15. Daemar v Industrial Commission of NSW and ors (1988) 12 NSLR45 provides a good example. In that case a bankrupt sought to have a decision of the NSW Industrial Arbitration Commission set aside. The Commission had entered judgment against him, and he wanted the decision set aside. He said that he wished to do so to have his name cleared and his standing in the eyes of the community restored. There were procedural questions in that case which do not apply here. However, the Court considered whether the relief which he sought was a "wrong done to a bankrupt" and therefore covered under s60(2) of the Act.
16. As I have said, that section is in identical terms to s116(2) and deals with the circumstances in which an existing proceeding can be exempted from control by a trustee in bankruptcy.
17. The Court decided that the cause of action could not be described as a "wrong", and so could the bankrupt could not claim the section 60(2) exemption. In coming to that conclusion the Court observed -

"Although it is true that the claimant contends that a "wrong" has been done to him and that he has suffered hurt and even "defamation" in the course of the judgments of the Commission, these contentions are irrelevant to the task of identifying, for the purpose of section 60(4)(a) of the Act, the nature of the action exempted from the stay. The exemption is 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. In the present case the so called "wrong" of which the claimant complains is the very source of the financial problems which have led to his bankruptcy. It is therefore to be classified not as a "wrong" which is exempted from the operation of section 60(2) and the statutory stay provided for but as of the very essence of the subject matter to which section 60(2) is addressed."

1. In Pelechowski v NSW a bankrupt sought to continue a claim for unlawful termination of his employment, and the s60 (2) considerations once again were argued. The bankrupt claimed that he had uncovered corruption, and that other employees had conspired together to get rid of him. He said that his claim for reinstatement included personal injury, but he had not pleaded this, and the Court found that if such a claim was mounted it would be "entirely unsustainable".
2. The Court said -

"There is in reality no claim for anything in the nature of damages which would 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."...The essential element of proceedings for illegal termination of employment under the Workplace Relations Act 1966(Cth) is that one's economic relations with one's former employer have been disrupted. Those economic relations depend on contract, or perhaps in the case of a public servant, a statutory relationship, but nevertheless of a contractual or quasicontractual kind, that is to say, property rights are at the heart of the proceedings."

1. In Robyn Smith v Chevelle Developments Pty Ltd (2005) NSWIRComm 109 The New South Wales Industrial Commission was asked to consider whether a bankrupt could commence proceedings in the Commission on her own behalf. She sought an order that her employment agreement be declared void as it was unfair, harsh and unconscionable, and contrary to the public interest. The Court held that the right was after acquired property, which vested in her trustee. It noted that the claim did not assert any claim for compensation for injury to the body, mind or character of the applicant, and so s116 (2) had no application. Citing Pelechowski, it determined that;

"It is property rights which are at the heart of this litigation".

1. In a judgment of the Queensland Court of Appeal in Geia v Palm Island Aboriginal Council [1999] QCA 389; (1999) 152 FLR 135 at 140 the Court said this-

"There appears to have been a collection of exceptions to the general proposition that the bankrupts property vested in the trustee, developed in English cases to fill in what seemed to be gaps in, initially relatively simple, bankruptcy legislation. The Bankruptcy Act 1966(Cth) has elaborate provisions on this subject, particularly in section 116 and, as to income received after Bankruptcy, in division 4B.

Unless there is some pressing reason to do so, such as that it is evident that the Parliament must have intended an exception to be implied, courts should be slow to hold that the statutory scheme to which we have referred has, to some uncertain extent, to be read subject to unstated exceptions, because of the doctrines worked out in older cases, under English statutes"

1. This case was cited in Perfection Dairies Pty Ltd v Finn (2006) NSWIRComm 137 in considering whether or not a right to employment could be regarded as coming within the section 116(2) exemption. Finn appears to have taken a broader approach than the cases I have previously cited. This may be because in the case a distinction was made between "property" available to creditors and the right of a bankrupt to work, which right was enshrined in other sections of the Bankruptcy Act, and the benefit of which is by the Act ordinarily reserved to the bankrupt.
2. Reference was made in Finn to the approach of the full Federal Court in Griffiths v Civil Aviation Authority (1995)137 ALR 521, where the bankrupt's right to bring proceedings to protect his entitlement to a pilot's licence was described as a personal right , holding no interest for the bankrupt's estate. In the course of the judgment Cooper J observed (at p540) -

"It was not the intention of parliament in passing s60(4) and 116(2)(g) nor the predecessors of these sections, to state exhaustively the exceptions to the property in the nature of rights of action which would not pass to the trustee and thereby to identify by omission all other rights as "property" within the meaning of s5 of the Act"

1. In Finn the court appears to have accepted that the right to work was not a personal injury or wrong, but held nonetheless that it was a personal right of the bankrupt which the creditors could not turn into any advantage to themselves.
2. However Finn can be reconciled with the principles I have earlier set out when one realises that the right under consideration in Finn was the right to be able to work itself, not accompanied by a claim for damages or any money sum which could have been used to the benefit of the estate . In the words of Cooper J in Grifffith-

"There is a unity of object and purpose in the operation of S58,S60 and S116 of the Bankruptcy Act if it is recognised that the consistent focus of attention is upon rights which the trustee can turn to advantage for the benefit of creditors or upon rights the exercise of which will adversely affect or delay the administration of the estate."

1. It is clear to me that there are some claims under the Equal Opportunity Act which could by definition be described as claims for personal injury or wrong to the bankrupt. Claims of sexual harassment, for instance, appear to me to fall clearly into this category.
2. There are other claims of discrimination which depending on their subject matter may also be characterised as claims for personal injury or wrong. A claim by a person that he or she had been the subject of ongoing racial discrimination leading to mental or physical might be a good example.
3. However, in this case Mr Dwyer founds his claim on his business relationship with the respondent. The respondent says that to the extent that he makes any claim for personal distress then such a claim is not a claim without reference to the rights of property as that term is used in Journeaux. Instead the claim that he is making is one which only arises in consequence of the damage he alleges to his financial and property interests through his company as a consequence of what he says is discriminatory conduct.
4. Whether Mr Dwyer's claim is to redress a wrong, or for personal injuries, the cases which I have discussed make it clear that his claim must be one which is separate to, and not reliant on, his claim for property loss. Here, whilst the claim does not arise out of contract, the bankrupt's substantial right of action is direct pecuniary loss, to follow the language of Faulkner v Bluett. Any damages calculated would be estimated by immediate reference to his rights of property - as was also found in that case.
5. Mr Dwyer's claim for mental distress and strain are consequent on his economic loss claim - as in Mannigel. The wrong which he claims is the very source of the financial problems which have led to his bankruptcy - as in _Daema_r - and property rights are at the heart of the proceeding - as in Pelechowski.
6. In my view it is not possible for Mr Dwyer's claim for emotional stress, personal anguish and grief to be severed from his claim for financial loss against the respondent. The aspects of wrong, or personal injury are said by him to arise directly from the respondent's action in refusing him insurance.
7. In considering the application of the Bankruptcy Act to claims brought under anti-discrimination legislation, each fact situation must be dealt with on its own merits. I do not say that a bankrupt may never bring or maintain an action under the Equal Opportunity Act. But in this case, the purpose of the action is clearly to reinstate Mr Dwyer and his company to financial health. In my view such a claim does not fit within the protection of s116(2).
8. Accordingly the claim cannot presently be maintained by him as a bankrupt.
9. It is clear, and was conceded by counsel for the respondent, that the claim could be brought by Mr Dwyer's trustee in bankruptcy, should they choose to do so. I have already expressed the opinion that Mr Dwyer has a reasonable excuse for not attending the hearing on 19 January 2009. In those circumstances the appropriate order is to reinstate the claim under s120, but to order that it be stayed until further order by operation of s116 of the Bankruptcy Act.