Fitzpatrick v Keelty

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

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 17 OF 2006

REASONS FOR JUDGMENT 1 Before the Court are two notices of motion filed by the respondents, one filed in each of two proceedings brought by the applicant. The respondents primarily seek to have the proceedings dismissed or the pleadings struck out. 2 The applicant was formerly employed by the Australian Federal Police. In around July 2004, an internal investigation was commenced into certain complaints made against the applicant. The applicant's employment was ultimately terminated in December 2005. The proceedings brought by the applicant broadly concern this termination and the surrounding events. The applicant has filed an application for an order of review and a statement of claim in both proceedings, as well as a number of subsequent versions of these documents. Numerous causes of action are potentially raised. 3 The matter is complicated by the fact that the applicant is now a bankrupt. It is necessary to consider which if any of the causes of action the applicant maintains can continue in his name, pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth).

History of the proceedings 4 There are two relevant proceedings before this Court, one of which was transferred from the Supreme Court of the Australian Capital Territory. The Supreme Court proceedings were commenced on 14 December 2005, by application for an order of review. That application invokes the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("ADJR Act (ACT)") although other legislation is also referred to, including the Human Rights Act 2004 (ACT). Statements of claim were later filed, the first of which was on 5 June 2006, apparently in response to an order of a judge of the Supreme Court of 4 May 2006. On 1 December 2006, an order was made transferring the proceedings to this Court pursuant to s 5(1)(b)(i) of the Jurisdiction of Courts (Cross Vesting) Act 1993 (ACT). Those proceedings are ACD 35 of 2006. It is unnecessary to address in these reasons, whether the proceedings should have been transferred, though I presently doubt that they should have. 5 On 4 July 2006, when the Supreme Court proceedings had not yet been transferred, the applicant commenced proceedings in this Court, again by way of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") (ACD 17 of 2006). Filed together with the application was an affidavit of the applicant in which he apparently seeks to explain the delay in filing the proceedings in this Court (which is in terms of having first brought proceedings in the Supreme Court). It appears that the applicant would require an extension of time to file the application for an order of review in this Court, being outside the 28 day time limit: see s 11(3) of the ADJR Act. The respondents do not oppose any application for an extension of time. 6 The application primarily invokes the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"), although again various other legislation is also referred to, including the Human Rights Act 2004 (ACT) and the Workplace Relations Act 1996 (Cth) ("WRA"). A draft statement of claim was filed on 11 August 2006, in response to a direction of Gyles J. 7 As noted earlier, the applicant has filed various amended versions of the application for an order of review and the statement of claim in each proceeding. He has also sworn numerous affidavits in the proceedings. The applicant has said that he seeks to rely upon all the documents he has filed to date, including all the pleadings, not merely the most recent versions. The pleadings in particular are discursive and largely in the form of submissions. They tend to be repetitive and difficult to follow. A number of orders have been made by this Court in an attempt to provide the applicant with an opportunity to better, more concisely and precisely articulate his case, as well as to ensure that the respondents are properly informed of the case to be met. Orders were also made by the Supreme Court apparently with the same purpose in mind. The respondents have also been directed to take a number of steps in order to assist the applicant in reformulating his case and to inform the applicant of the respondents' objections to the pleadings he has filed and to provide him with an opportunity to reformulate his case accordingly, should he wish. Unfortunately, despite these measures, the applicant's case is little clearer as a result. A summary of the relevant orders of this Court is as follows. 8 On 20 July 2006, at the first directions hearing, Emmett J directed the applicant to file and serve a statement setting out each decision in respect of which the applicant sought judicial review under the ADJR Act, the person who made that decision and the date on which it was made, the enactment under which the decision was made and the grounds in s 5 of the ADJR Act upon which he sought review. The applicant was also directed to file a draft statement of claim which he sought leave to file. The applicant filed the relevant documents in August 2006. Both the statement and the draft statement of claim are lengthy documents (31 pages and 28 pages respectively) and are generally in the form of submissions. The statement is in very similar terms to the application for an order of review, although it contains some additional references to legislation. In the statement, the applicant has attempted to identify the grounds and the relevant enactments. However, the grounds of the ADJR Act identified include every ground under ss 5 and 6 of the ADJR Act. The enactments he identifies as being those under which the "decisions" were made are numerous sections of several different Acts, including the Privacy Act 1988 (Cth), the WRA and the Evidence Act 1995 (Cth). The document is not readily comprehensible and did not clarify the applicant's case. The draft statement of claim is also difficult to follow. It is similar in content to the application for an order of review and refers to various legislation. It is by no means clear from that document which causes of action the applicant seeks to raise. 9 On 31 August 2006, when the matter was heard for directions by Gyles J, the respondents were directed to write to the applicant advising him of the defects in his statement of claim and application. The applicant was directed to serve an amended statement of claim and amended application for review in response or to advise that he did not intend to do so. His Honour also directed the respondents to either file a notice of motion to object to competency or seeking orders for summary dismissal or strike out, or advise that they did not intend to do so. 10 The respondents' solicitors duly wrote to the applicant by letter dated 14 September 2006, setting out in some detail the various legal difficulties with the applicant's case to assist him to reformulate his claims. The letter is annexed to an affidavit of the respondents' solicitor, Karina Harvey, sworn 21 June 2007. 11 On 25 September 2006, the applicant filed a number of documents. These included an amended application for order of review and an amended statement of claim. In the amended statement of claim, the applicant said that it had not been possible at that time to re-submit a complete version of that document. The applicant also filed an affidavit in which he apparently seeks to explain why he had been unable to file a "complete" document, referring to the lack of legal representation and matters of general background. 12 The matter came before me on 7 November 2006. I directed the applicant to file and serve an amended application for order of review and an amended statement of claim. A direction was also made regarding the respondents in the terms of the directions made by Gyles J on 31 August 2006. 13 The applicant proceeded to file the documents the subject of the direction, as well as another "statement". None of these documents provide any further real assistance, nor are they any more succinct. 14 Both proceedings came before me for directions on 15 December 2006, the transfer order having been made by that stage. The applicant was directed to file all his evidence, in the form of affidavits, on which he intended to rely. This direction was made before the respondents were required to file their response to the pleadings with a view to enabling the applicant to put his case as best he could and to hopefully allow the respondents to distil the causes of action relied upon the applicant and inform them of the case to be met. 15 In response, the applicant filed an affidavit of some 58 pages in length. It is similar in terms to the documents previously filed although contains further detail in some respects. Again, it is generally in the form of submissions and allegations. 16 On 8 March 2007, when the proceedings were again before me for directions, I directed the respondents to write to the applicant identifying what in their understanding were the decisions which the applicant sought to challenge under the ADJR Act. The applicant was directed to respond by indicating which if any of those decisions he sought to impugn. The respondents were directed to then file any notice of motion challenging the contention that such decisions were reviewable. 17 In accordance with the direction, the respondents' solicitors wrote to the applicant by letter dated 28 March 2007, setting out in detail the decisions which it apprehended the applicant was seeking to challenge and including references to the relevant documents filed by the applicant. That letter was also annexed to the affidavit of Ms Harvey sworn 21 June 2007. 18 On 10 April 2007, the applicant filed a statement in response to the letter received by the respondents' solicitors. The applicant took issue with the fact that the letter had apparently only sought to include those "decisions" which the applicant had identified in his most recently filed application for an order of review. The applicant asserted that all the evidence in his affidavit of 19 February 2007 (which was at that date the most recently of the applicant's affidavits) "is capable of being the subject of a judicial review". 19 The respondents' notices of motion were then filed on 3 May 2007.

Summary of causes of action 20 As noted earlier, both proceedings were commenced by way an application for an order of review. Statements of claim and "amended" versions were subsequently filed. In total in both proceedings combined, there are six applications for an order of review and five statements of claim. 21 The applications for an order of review in both proceedings may be considered together for present purposes. It is evident from the applications for an order of review, as well as his written and oral submissions, that the applicant seeks judicial review of a series of events leading up to and surrounding his termination. The applicant seeks to characterise every aspect of the process as an "administrative decision" of which review is sought. Many of these do not appear to be in the nature of decisions, even using that term in a non-technical sense. For example, the original application for order of review filed in ACD 17 of 2006 includes the following as being among the "decisions" of which review is sought: The administrative decisions so made by each of the said named AFP Respondents, to discriminate against the Applicant and deny him his full legal entitlements and procedures required by law, in particular, the rules of natural justice and rights pursuant to, but not limited to, the ACT Human Rights Act 2004… 22 Also among the many "decisions" the applicant identifies as such are the following: · The decision of 9 December 2005 to termination the applicant's employment, made by the second respondent (see s 28 of the Australian Federal Police Act 1979 (Cth) ("AFP Act")); · The serious misconduct declaration made on 9 December 2005 by the third respondent (see s 40K of the AFP Act); · The decision to issue a firearms prohibition order ("prohibition order") on 16 January 2006 by Detective Superintendent Budworth who is not a party to these proceedings. That order was made pursuant to s 111 of the Firearms Act 1996 (ACT) and prohibits the applicant from possessing or using a firearm. 23 The significance of the above three "decisions" is that the respondents concede, at least broadly, that they are amenable to review (although in the case of the prohibition order, not under the ADJR Act). 24 The applicant has resisted confining his case for judicial review to the three "decisions" referred to earlier. It should be noted at this point that in some of the applications for an order of review, the applicant describes the many matters in relation to which judicial review is sought as both a "decision" and "conduct". The term "decision" is used in these reasons, for brevity. 25 Examples of the numerous other "decisions" which the applicant seeks to challenge include the decision by the second respondent to allow the applicant to continue as a serving member of the AFP whilst having a serious "criminal office" substantiated against him, and the "administrative decision" of the second respondent in failing to take proper or sufficient action in response to the eight written reports lodged by the applicant. The respondents' written submissions provide the following summary of the central matters in relation to which judicial review is sought: · An investigation by the fifth respondent, James Anderson, of Professional Standards Investigation, into the two allegations made against the applicant; · A review of that report by the sixth respondent, Allan Spencer, recommending both allegations by substantiated; · A review by the fourth respondent, Allan Scott, Manager of Professional Standards, dated 8 March 2005. In his report, Mr Scott substantiated the two allegations; · A letter by the delegate of the Commissioner, the second respondent, to the applicant, dated 18 November 2005, advising that he was considering terminating the applicant's employment; · A decision of 9 December 2005, pursuant to s 28 of the AFP Act and made by the second respondent, to terminate the applicant's employment; · A decision pursuant to s 40K of the AFP Act made on 9 December 2005 by the third respondent, Deputy Commissioner John Lawler, to make a finding of serious misconduct against the applicant; · A prohibition order pursuant to s 111 of the Firearms Act made on 16 January 2006 by Detective Superintendent Budworth; · As part of the original investigation, a direction to the applicant that he attend a formal interview; · As part of the review of the investigation, a direction to attend a formal interview; · A decision not to pursue formal criminal charges against the applicant in relation to the finding of serious misconduct; · A decision to allow the applicant to remain in full employment notwithstanding that the two allegations had been substantiated; and · As part of the original investigation, the manner in which information was obtained by the respondents. 26 To the above list may be added the handling of the reports lodged by the applicant (or failure to take proper action in relation to those reports). The applicant appears to regard this as an important aspect of his case. 27 In additional to seeking judicial review, the applicant raises numerous other potential causes of action in both the applications for an order of review and the statements of claim. In their written submissions, the respondents summarise these various claims and allegations made by the applicant as follows: · Unfair dismissal under the WRA; · Termination of employment for the purpose of preventing report of possible corrupt conduct; · Discrimination and victimisation; · Breach of privacy of himself and his family; · Malicious or negligent defamation, including defamatory statements made within the reports; · Denial of natural justice; · Unlawfully taking possession of personal property; · Documenting false and defamatory information concerning the applicant; · Bias, prejudice and misleading and deceptive conduct as breaches of the Human Rights Act; · Deprivation of liberty; · Psychological injury arising from the termination and serious misconduct decisions; · Disclosure of confidential personal information about himself and his family; · Negligence in failing to conduct a proper investigation; · Intimidation; · Abuse of public office. 28 To the above list may be added a complaint made by the applicant which appears in various pleadings concerning certain statements allegedly made by a solicitor for the respondents, who is not a party to these proceedings, on an occasion when the matter was in the Supreme Court. 29 The orders which the applicant seeks in the applications for an order of review are numerous. They include reinstatement, setting aside the termination and serious misconduct decisions, an order for the return of property seized from the applicant, and damages. In the statements of claim, the relief sought includes administrative law remedies as well as reinstatement and damages. The damages sought include damages for psychological injury.

Effect of bankruptcy on the proceedings 30 The applicant is a bankrupt, pursuant to orders of the Federal Magistrates Court of 22 May 2007: see Kidney v Fitzpatrick [2007] FCMA 943. An application to set aside the bankruptcy notice had earlier been dismissed by the Federal Magistrates Court: see Fitzpatrick v Kidney [2007] FMCA 942. An appeal from those orders, and certain related orders, was dismissed by a judge of this Court (Madgwick J) on 19 September 2007: see Fitzpatrick v Keelty [2007] FCA 1658. His Honour did not "order a stay or injunction or do anything else of the kind that would prevent the ordinary operation of s 60 of the [Bankruptcy] Act" (see [38] of his Honour's reasons). Other orders had also been made by the Federal Magistrates Court on 3 August 2007 in the context of an application for annulment, which were somewhat unusual: see Fitzpatrick v Kidney [2007] FMCA 1422. The effect of the orders was to make an order for annulment, but to stay the operation of that order for 28 days and subject the annulment to the fulfilment of certain conditions. There has been no suggestion that the conditions the subject of the orders of 3 August 2007 have been satisfied. 31 Section 60 of the Bankruptcy Act relevantlyconcerns the stay of legal proceedings commenced by a person who subsequently becomes a bankrupt. The section provides: (1) … (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (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 a member of his or her family; or (b) the death of his or her spouse or of a member of his or her family. (4A) … (5) In this section, action means any civil proceeding, whether at law or in equity. 32 Prior to the hearing before me, an affidavit was filed by the respondents' solicitor, Ms Harvey, sworn 28 August 2007, deposing that the trustee had been served with notice of the two proceedings on 27 July 2007. The trustee was asked to advise of his election to prosecute or discontinue each of the actions within 28 days. Ms Harvey deposed that no response had been received. Accordingly, the proceedings are deemed abandoned pursuant to s 60(3). The issue is whether the applicant can continue any part of the proceedings in his own name pursuant to s 60(4). 33 At the time of the hearing of the present motions on 31 August 2007, the appeal to this Court (which led to the judgment of Madgwick J of 19 September 2007) was awaiting hearing. At the hearing before me, both parties made submissions concerning the effect of the orders of the Federal Magistrates Court. After Madgwick J's judgment was given, the parties were provided with an opportunity to make written submissions concerning the effect of that judgment on the present proceedings. Submissions were received from the applicant and the respondents. 34 The applicant's submissions, made both orally at the hearing and in written form afterwards, primarily concern the propriety and legality of the Federal Magistrate's orders of 3 August 2007. However, these proceedings do not involve a challenge to the Federal Magistrate's orders, nor were those orders challenged in the proceedings before Madgwick J: see his Honour's reasons at [33]. 35 The applicant also submitted, at the hearing, that the sequestration order has no effect on these proceedings. He indicated that he relied upon s 60(4), although he did not elaborate on these submissions, other than to make allegations of impropriety and illegality of the various orders made by the Federal Magistrates Court. 36 The applicant's written submissions on the bankruptcy issue provided post-hearing are lengthy and contain numerous allegations of impropriety and corruption variously relating to the creditor, the trustee, the respondents' solicitors, the Federal Magistrates by whom the relevant orders were made and the judge of this Court dismissing the appeal, and the processes involved. In terms of the effect of the applicant's bankruptcy, the applicant submits that it would not be appropriate for me to adjudicate on the proceedings he has brought in this Court until "all such complaints and allegations [concerning the bankruptcy action] have been subjected to full and proper independent inquiry/investigation in the interests of justice and, the integrity of our judicial system". 37 The respondents submit that as a result of the deemed abandonment of the proceedings, the stay provided by s 60(2) continues to operate, referring to the discussion by Ipp J in Stobbart v Mocnaj (1996) 16 WAR 318 at 323. The effect of the deemed abandonment of the proceedings, where the applicant may not continue the proceedings in his own name, is that the proceedings are stayed: Daemar v Industrial Commission of New South Wales and Another (No 2) (1990) 99 ALR 789, per Kirby P at 790. 38 The respondents submit that neither of the proceedings fall within the description in s 60(4) (an action in respect of any personal injury or wrong) and thus neither may be continued by the bankrupt. The respondents also submit that to the extent that it could be said that the applicant has identified causes of action which individually fall within s 60(4)(a), those causes of action have not been properly pleaded and should be struck out or dismissed. The respondents identified the latter causes of action as potentially being: · Causes of action for damages and other remedies for injuries allegedly done to the applicant and members of his family; · Unlawful detention and deprivation of liberty; · Unlawful interference with and possession of personal property; and · Damages for injury to credit, character and reputation (defamation).

Meaning of an action in respect of "any personal injury or wrong" (s 60(4)(a)) 39 Subsection 60(5) provides that "action" means any civil proceedings whether at law or in equity. The test as to the meaning of the words "personal injury or wrong done to the bankrupt" is 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: see Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721 per Dixon J. 40 The meaning of s 60(4)(a) was also considered by the Full Court of the Federal Court in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545. O'Loughlin and Merkel JJ concluded that (at 564): … Mr Bryant's causes of action, as pleaded in his statement of claim, are essentially claims which are referable to his financial and property rights. That is not to deny him his right to allege "personal injury or wrong done to" him or members of his family. But if the injury that was suffered or the wrong done arose as a direct result of the alleged infringements of his financial or property rights, as was the case in Faulkner v Bluett, then "the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt". (at 119) To apply the language of Handley JA in Manningell v Hewlett to Mr Bryant's circumstances his claims for stress and suffering were "consequential upon alleged breaches" of duty said to be owed to him by the Bank as a mortgagee or secured creditor and were not claims "without reference to [his] rights of property", within the principle stated by Dixon J in Cox v Journeaux. 41 The Court concluded that the loss complained of arose from direct pecuniary loss to the bankrupt's property. 42 The respondents have in effect submitted that in determining whether s 60(4) applies to the proceedings, the proper approach is to regard the proceedings as stemming from the termination of the applicant's employment. The respondents rely upon Pelechowski v NSW Land and Housing Commission [2000] FCA 233 in support of the proposition that s 60(4) does not apply to such proceedings. In Pelechowski, a judicial registrar had dismissed an application by the applicant for relief, finding that there was no substance in the application and that the applicant had been guilty of serious misconduct. Madgwick J concluded that proceedings for unlawful termination of employment under the WRA did not fall within the Cox test and thus s 60(4) did not apply, because an essential element of the proceeding was that one's economic relations with one's former employer had been disrupted and property rights were at the heart of such proceedings. His Honour's reasons were delivered ex tempore. His Honour noted that the applicant had principally sought reinstatement, that the relief sought was essentially of an economic nature, and that the application did not appear to have made any claim for compensation in the way of damages for personal injury. I am bound to follow this judgment unless I conclude it is plainly wrong. I have not reached that view. 43 Interestingly, in Pelechowski, the applicant had been an employee of the Department of Housing. His Honour noted that "[t]hose economic relations [with one's former employer] depend upon contract, or perhaps in the case of a public servant, a statutory relationship, but nevertheless of a contractual or quasi-contractual kind, that is to say, property rights are at the heart of the proceedings" (at [5]). His Honour's view therefore was that insofar as termination proceedings were concerned, no distinction was to be made between those employed pursuant to statute and other employees in the context of s 60(4). 44 Section 60(4) was also considered by the Court of Appeal of New South Wales in Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45 ("Daemar"). In Daemar, the applicant sought prerogative relief (as well as damages and declaratory relief) in relation to orders made by the Industrial Commission of New South Wales. Pursuant to s 88F of the Industrial Arbitration Act 1940 (NSW), the Commission had declared void a contract between a Mr Sheath (who was the applicant in the proceedings) and a company with which Mr Daemar was associated. The proceedings then commenced by Mr Daemar sought relief in relation to criticism of him by the Commission in its reasons. 45 Kirby P, with whom Samuels and Clarke JJA agreed, held that the proceedings brought by Mr Daemar did not fall within the exemption provided in s 60(4) of the Bankruptcy Act. His Honour noted the terms of s 116 of the Bankruptcy Act which provided for property which was divisible amongst the bankrupt's creditors and lists the exemptions of designated "property". His Honour continued (at 50 - 51): These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. … It could scarcely be otherwise for if it were, valuable interests which a bankrupt might have, in the form of choses in action would not be caught in the net cast by the very wide language of s 116(1). … It is necessary to keep the general purpose of the Act in mind, and the scheme by which those purposes are effected, when approaching the contentious issue about the operation of s 60… 46 His Honour analysed the applicant's proceedings in the context of s 60 as follows (at 54): [t]he "action" commenced by this claimant is undoubtedly one whereby he seeks relief affecting his property. His is not the disinterested act of a public spirited citizen seeking, for whatever reason, to vindicate the rule of law. The whole purpose of his case is to seek specific redress against an order of the Commission which he claims to have been unjust and to have damaged him. His "action" is therefore of the very kind to which s 60(2) was designed to apply. Obviously, the prosecution of litigation commenced before bankruptcy by a person who later becomes bankrupt can involve the potential or actual diminution of the estate of the bankrupt available to his creditors. On occasion, it can, of course, provide a benefit to the creditors. That is precisely why Parliament has provided for the trustee to make an election. 47 His Honour said (at 55 - 56): … the words ["wrong done to the bankrupt"] cannot be taken in isolation. They must, in accordance with the ordinary canons of construction, be read in the context in which they appear. The meaning of the expression, taken from that context, has been explained in numerous cases. In Australia, the classic expression is that contained in the judgment of Dixon J in Cox v Journeaux … Applying that test to the present case, the action brought by the claimant cannot be categorised as he submits. 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"… these contentions are irrelevant to the task of identifying, for the purpose of s 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. … 48 His Honour went on to take into account, in characterising the proceedings, the fact that the "wrong" was "the very source of the financial problems which have led to his bankruptcy" and that the proceedings involved "the very essence of the subject matter to which s 60(2) is addressed" (at 56). In the present proceedings, there is nothing to suggest that the applicant's bankruptcy was connected in any way with the "personal injury" or "wrongs" of which the applicant now complains. However, his Honour's preceding observations concerning the nature of cases in which the exemption in s 60(4) applies are of general application. 49 An issue which has arisen in a number of cases is whether it is possible to sever or separate certain causes of action which would fall within s 60(4) from other aspects of the proceedings. In Byrant, Lockhart J (at 548-549) discussed a number of cases where there were mixed causes of action, some of which were found to have vested in the trustee and others not. From the cases considered by Lockhart J, his Honour distilled the principle that a claim for damages for injury to personal and mental health will not fall within the exemption in s 60(4) where the claim cannot be made without reference to the bankrupt's rights of property. 50 The Supreme Court of Queensland recently considered the issue of severance of claims under s 60(4) in Hamilton v Young [2007] QSC 160. The Court in Hamilton considered the issue of whether a claim for damages for the cost of raising an unplanned child can be characterised as claim for damages for "personal injury or wrong". The Court was not asked to stay the part of the bankrupt's claim for personal injuries, but was asked to stay that part of her action claiming damages for the cost of raising her child. Douglas J (at [11]) considered that the word "wrong" in s 60(4) identified a personal tort affecting the person or feelings of the bankrupt, and not, as in the circumstances in Hamilton, the loss to her of property caused by the expense of bringing up her child.

Whether s 60(4) applies to the proceedings 51 The respondents were unable to point to any authorities concerning s 60(4) in which a question concerning or relating to the termination of employment arose in the context of proceedings for judicial review. In any event, I am satisfied that the judicial review proceedings the applicant has brought bear the same general character as the proceedings considered in Pelechowski and Daemar. In my opinion, all the "decisions" which the applicant seeks to challenge (leaving aside whether they are amenable to review) directly arise from or are incidental to the termination of his employment and do not fall within the exception in s 60(4).

Conclusion regarding causes of action which may fall within s 60(4) 52 As noted at [38], the respondents submit that certain causes of action which the applicant may be seeking to raise in one or both of the two proceedings and which may fall within s 60(4) should be dealt with in accordance with the respondents' motions (that is, that they be struck out or dismissed). The ability for the applicant to continue these causes of action also depends upon these actions being severed from those parts of the proceedings which do not fall within s 60(4). I propose to deal with those causes of action on the assumption that they can be treated, individually, as falling within s 60(4), as the respondents' submissions appeared to accept. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting that part of the proceedings concerning those causes of action and that judgment should be given for the respondents. 53 One of these potential actions is defamation. The pleadings filed by the applicant refer in a general sense to damage to his character and reputation and to "defamation", as well as more specifically in relation to the contents of the reports and statements made by the respondents' solicitor in Court. As the respondents have submitted, the applicant has not particularised the statements, other than in the case of the alleged statements of the solicitor in relation to which he has provided more detail. He has not particularised the effect of any statements on his reputation. As the respondents have submitted, even if statements made by the solicitor were defamatory, the express defence of absolute privilege may well apply. I am satisfied that to the extent that the applicant has raised a cause of action in defamation there is no reasonable prospect of successful prosecution. 54 The respondents submit that to the extent that the applicant has raised claims in negligence which may fall within the Cox test, the proceedings have no reasonable prospect of success. The respondents cited Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 in support of the proposition that an investigating officer does not owe a duty of care to a person whose conduct is under investigation because it is inconsistent with a police officer's duty. Investigators in internal disciplinary investigations also do not owe a duty of care to the employee being investigated: see State of New South Wales v Paige (2002) 60 NSWLR 371. The respondents also submit that there is no suggestion in the material filed by the applicant that the actions complained of occurred outside any officer's course of duty, and that the actions should therefore be dealt with in accordance with the authorities cited. The respondents also submit that to the extent that the applicant seeks damages for psychological injury, damages for negligence are not available for psychological injury falling short of a recognised psychiatric disorder: see Tame v State of New South Wales. The applicant has not pleaded any relevant psychiatric disorder. 55 The applicant's submission at the hearing that the relevant respondents were liable in negligence in the conduct of the investigation was bare assertion. I am satisfied that the pleadings concerning any action in negligence which the applicant seeks to raise should be dealt with on the basis that the applicant has no reasonable prospect of success, noting in this context that the proceedings need not be hopeless or bound to attract the application of s 31A(1) of the Federal Court of Australia Act 1976 (Cth) (see s 31A(3)). The applicant has been given a number of opportunities to re-plead his case. This included opportunities to file amended pleadings following the receipt of each of two letters from the respondents' solicitors, in accordance with directions of this Court. Those letters include details of the specific objections which the respondents had to the applicant's case as it concerned negligence. Notwithstanding this, the applicant's pleadings as they concern negligence do not set out, in an intelligible form, the material facts that make up the action in negligence. For the Court to consider the action in negligence raised by the applicant would, on the pleadings, require a roving inquiry into the investigation of which the applicant complains and the various steps taken as part of the investigatory process. The applicant's case is left at large. As the respondents submitted, they are entitled in justice to have the opposing party's case presented in an intelligible form and in compliance with the rules of pleading: see Davy v Garrett (1877) 7 Ch D 473, James LJ, CA at 486. Although this principle has somewhat less force where a party is unrepresented, the pleadings remain defective in a number of important respects. There would be no utility in affording the applicant any further opportunity to re-plead. 56 To the extent that the pleadings regarding injuries allegedly done to the applicant and members of his family, unlawful detention, deprivation of liberty, unlawful interference with and possession of personal property are intended to raise some cause of action other than negligence, there is no reasonable prospect of the applicant succeeding on those parts of the proceeding. No proper cause of action has been identified, nor have the material facts been pleaded, at least not in an intelligible form. 57 Another matter which may fall within s 60(4) is the potential claim made by the applicant for "misleading and deceptive" conduct, which term appears in a number of instances in the applicant's pleadings. To the extent that any such action could relate to personal injury or wrong, it should be dealt with in accordance with s 31A(1). As the respondents have submitted, if it is intended to relate to actions pursuant to the TPA or the Fair Trading Act 1992 (ACT), such actions only bind the Commonwealth where it is carrying on a business and in respect of conduct in trade or commence, which is not the present context. 58 It is unnecessary to consider whether time should be extended for the filing of the application for an order of review in ACD 17 of 2006 as the action in which an extension of time is required is stayed pursuant to s 60 of the Bankruptcy Act. 59 I have ordered that costs be reserved. My present view is that each party should bear their own costs. If any party wishes to make submissions to the contrary, such submissions should be received by 4 pm on 14 February 2008. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Dated: 31 January 2008 The Applicant appeared in person

Solicitor for the Respondents: Australian Government Solicitor