35 The Court, in the end, refused to permit the proceedings to go forward even if so confined because it would lack utility. This was because it would still affect impermissibly the third party's award against Mr Daemar.
36 It is, with respect, difficult to extract a simple explanation from the reasoning of the Daemar cases as to the force and effect of the Bankruptcy Act on an "action" for relief in the nature of prerogative relief. If, as I have suggested above, s 60(2) is premised upon the action in question being the bankrupt's property and thus having vested in the trustee, then, for the reasons given by Kirby P in Daemar [No 2], I would with respect have some difficulty in characterising an "action" that was simply for relief in the nature of a constitutional writ, as being the personal property of a bankrupt: and cf the definition of "property" in s 5(1) of the Act. My difficulty is compounded by Kirby P's description of a claim for prerogative relief as not belonging to the trustee "as a private chose in action even after the claimant's discharge from bankruptcy". If this suggests it changes its proprietary character on discharge it is difficult to see why this should be so.
37 Perhaps the better explanation of the two decisions is that (i) s 60(2) encompasses all of the bankrupt's actions (for prerogative relief or otherwise) save for those exempted by s 60(4), but that the bankrupt has the clear statutory right under s 178(1) to challenge the trustee's election not to prosecute or to discontinue such an action; and (ii) after the bankrupt is discharged, he or she is entitled to initiate new proceedings for prerogative relief but that the fate of those proceedings may be influenced by its affects upon the continuing administration of the bankrupt's estate and, in particular, by whether the prerogative relief sought can properly be characterised as being, in substance, in respect of the property of the bankrupt.
38 The present, as I have noted, is not a s 60 case, and neither is Mr Rana an undischarged bankrupt. Nonetheless I consider I am obliged to follow the reasoning of the Daemar cases insofar as it has a direct bearing upon the matter before me: cf Farar Constructions. Whatever my own concerns, they are decisions of long standing which have been considered and applied without demur including in decisions of this Court: see eg Madden v Madden [1995] FCA 297; Fitzpatrick v Keelty [2008] FCA 35.
39 For present purposes, the first Daemar decision would seem to be authority for at least the proposition that an action for prerogative relief in relation to orders made in a proceeding in which (i) a cause of action is asserted by or against the applicant and (ii) the applicant is unsuccessful in prosecuting or resisting that claim, is to be characterised as an action to which s 60 applies if it is instituted prior to the applicant's bankruptcy. In other words the action for prerogative relief takes its character, in part at least, from the character of the rights sought to be vindicated in the proceedings in which the orders were made which have become the subject of the prerogative relief sought. Hence there was the concern in the first Daemar decision with whether the "action" in that case affected Daemar's "property" or his "personal interests" only for s 60(2) and (4) purposes.
40 Though Kirby P adverted to the potential for "serious disharmony" between proceedings instituted prior to, and those commenced subsequent to, bankruptcy if s 58(1) and s 60(2) had differing compasses, I do not consider that such in fact is the legislative intention disclosed by these two provisions in the scheme of the Act at least insofar as it applies to an action having the character I have described in the preceding paragraph. My view in this is reinforced by what I consider to be the clear legislative intent to exempt from control by the trustee, an action by the bankrupt which is in respect of any personal injury or wrong done to the bankrupt and this irrespective of when the action was instituted: cf s 60(4) and s 116(2)(g)(i). I conclude in consequence that such an action for prerogative relief, if it is not exempted by s 116(2)(g)(i), is vested in the trustee in bankruptcy and as such can be prosecuted, defended, compromised or discontinued by the trustee in the exercise of his or her powers under s 134(e), (j) and (o) of the Act.
41 Mr Rana's obvious motivation in instituting the show cause action was as a step along the way to establishing and vindicating the right he alleges he has to recover damages for a personal injury or wrong to him. This is clear on the face of the application which joined all of the respondents in the proceeding before Lander J. Moreover the grounds on which relief was sought were directed at those respondents. It is not for me in this proceeding to consider whether he had standing to institute the action. That is a matter for the High Court. My present concern, rather, is with whether it can properly be said he is able to seek succour in s 116(2)(g) and hence challenge the trustee's discontinuance of the proceeding. I do not consider that he can do so.
42 I can state my reasons shortly. First, though the various causes of action are widely cast in the Statement of Claim, at their centre are claims for breaches of contracts against some of the respondents and breaches of confidence, with satellite claims for negligence, defamation (to which I will refer separately below) and contraventions of s 52 of the Trade Practices Act against one or other of them. The contracts in question were a series of settlement agreements with several of the respondents in respect of outstanding litigations against them. The damages said to flow from all of these various wrongs, as best one can understand it, appears to be constituted primarily by a claim for $4,000,000 for "the loss and damage occurring to the applicant's compensation and benefits claims against the Commonwealth … and its various agencies". It is to say the least difficult to see how such damages could be said to result from the wrong alleged. They clearly are not relevantly damages for a "personal injury or wrong done to [him]": cf s 60(4) and s 116(2)(g).
43 In Cox v Journeux [No 2] (1935) 52 CLR 713 Dixon J indicated (at 721) that the test whether the above Bankruptcy Act formula was satisfied was -
… 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.
The losses of compensation and benefits from the Commonwealth which Mr Rana claims by way of damages are manifestly not so estimated. Rather, they are presumably referable to entitlements which he alleges he has against the Commonwealth and its agencies but of which he has been deprived. To the extent that these make up the major part of the damages he claims, then the causes of action to which they relate have passed to the Trustee to the exclusion of Mr Rana.
44 As to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted.
45 Distinctly, I am not satisfied that Mr Rana is seeking to vindicate or establish a "personal wrong or injury" for s 116(2)(g) purposes. All of the claims he advanced (in SAD 12 of 2008) against all five respondents were struck out as abuses of process. No legally intelligible claims were disclosed against four of the respondents; the remaining claim against the University of South Australia was also struck out for the same reason, his Honour having found it was based on a document relied upon by Mr Rana which was "not authentic": Rana v University of Adelaide (No 2) at [7]. The proceedings before Lander J were doomed to failure. The imagined claims made did not give that degree of authenticity to the rights asserted such as would justify characterising them as rights to recover damages for personal injury or wrong to the bankrupt for s 116(2)(g) purposes. They are illusory rights.
46 The final comment I should make is this. If I was not satisfied that, for whatever reason, the show cause action had not vested in the Trustee, I would not have declined to award Mr Rana relief on the grounds of futility. The present proceedings is quite unlike Daemar [No 2]. The High Court, not this Court, is seized of the show cause application. It is not for me to express a view on whether the High Court action is either competent or has any prospects of success. It is for that Court to do so.