FVA v Commissioner of Police, NSW Police Force

(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 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.

Note: See also subsection 5(6).

(4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law.

(5) In this section, action means any civil proceeding, whether at law or in equity.

1. There are several authorities that support the proposition that an "action", being "any civil proceeding", is not limited to proceedings that concern the property of the bankrupt and, relevantly, support the proposition that s 60 applies to administrative reviews, such as the underlying proceedings and, it would follow, the appeal. These include: Davey v Australian Electoral Commission & Ors [2014] AATA 355 at [16]- [23]; Muir v Angelas [2020] NSWSC 1056 at [63]- [72], [87], [90]; Re Lofthouse (2001) 107 FCR 151; [2001] FCA 25 at [19]- [20]; Deputy of the Commissioner of Taxation v Garrett [2015] VSC 347 at [19]; Fisher v Transport of NSW [2016] NSWSC 1888 (Fisher) at [9]-[11].
2. The appellant submitted that this was not the type of proceeding that was covered by s 60 of the Bankruptcy Act and therefore he had standing to continue to prosecute the miscellaneous application. Contrary to the appellant's submission, given the authorities we have referred to, we are satisfied that s 60 applies in the case of administrative review and is here engaged. Further, we are satisfied that this matter is not one of the types of matters referred to in s 60 as being excluded from its reach.
3. We note that in Fisher, McCallum J held that the exception for a "personal injury or wrong done to the bankrupt" in s 60(4) apprehended proceedings for administrative review where the bankrupt sought to challenge an "administrative finding that Mr Fisher is not a fit and proper person to engage in the occupation of bus driver". This was due to the nature of the challenge which went to Mr Fisher's character and was not related to his property: at [40]. Fisher is distinguishable. The only proceedings, here, concern the release of information held by the respondent and do not directly or indirectly go to the appellant's character. Adopting the test relied on by McCallum J in Fisher from Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 721; [1935] HCA 48, the "action" does not relate to the bankrupt's "mind, body or character".
4. By letter dated 1 April 2025, the trustee wrote to the tribunal stating that he understood that legal proceedings involving the appellant had commenced prior to his appointment and that these are not yet finalised. He confirmed "that I neither consent nor oppose the continuation of the proceedings and also advise I do not intend to participate in the proceedings."
5. We do not read this as the trustee making an "election, in writing, to prosecute or discontinue the action" as contemplated by s 60(2) of the Bankruptcy Act. Nevertheless, as more than 28 days have passed since the trustee became aware of the proceedings in the tribunal, the "action" is deemed to be abandoned, pursuant to s 60(3) of the Bankruptcy Act. It is not apparent whether the trustee has been served with the miscellaneous application. Nonetheless, the miscellaneous application arises in the appeal: it is ancillary or incidental to it. We, accordingly, treat the miscellaneous application as being part of the appeal and deemed to have been abandoned.
6. In the circumstances, the miscellaneous application should be dismissed pursuant to s 55(1)(d) of the NCAT Act on the basis that due to its abandonment, "the Tribunal considers that there has been a want of prosecution of the proceedings". If this were inapposite, we would in any event have been satisfied that this was an appropriate matter to dismiss pursuant to s 55(1)(a) of the NCAT Act, on the basis that its deemed abandonment should be treated as a deemed withdrawal of the miscellaneous application.
7. In his written submissions, the appellant also referred to the remitted matter that is currently before the tribunal. This decision does not concern the appellant's application insofar as it relates to the matter that was remitted to the tribunal by the Appeal Panel. That is not a matter for us, and was, in any event, dismissed by the tribunal on 1 May 2025.
8. The respondent has indicated that she is content for the Appeal Panel to deal with the miscellaneous application "on the papers". We have inferred from the appellant's submissions that he sought an oral hearing of this miscellaneous application.
9. In having regard to whether we would dispense with a hearing in this matter, we have had regard to the importance of the principle of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476. Further, we note that the tribunal's objects include ensuring that the tribunal is accountable and has processes that are open and transparent: s 3(f) of the NCAT Act. This is reinforced by s 49(1) of the NCAT Act which provides that hearings are to be open to the public, unless the tribunal orders otherwise.
10. This decision will, in effect, bring an end to the possibility of any further applications relating to the appeal being prosecuted. Nonetheless, the substantive appeal proceedings have already been the subject of published decisions, after open hearings. As the issue ultimately falls to be determined on the indisputable fact that the appellant's estate was sequestered and further, the trustee is deemed to have abandoned the appeal along with other related proceedings, we are satisfied that this is an appropriate matter to be dealt with without a hearing.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Appeal Panel dispenses with a hearing.

(2) The application for miscellaneous matters is dismissed pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.