Supreme Court proceeding
2 The proceeding was commenced on 7 February 2020 in the Supreme Court of the Australian Capital Territory (ACTSC) by the filing of an originating application and affidavit by the applicants, Louisa Meng Li Sijabat and Nick Jim Combis, the joint and several Trustees of the Bankrupt Estate of the first respondent, Tien Dung Do, also known as Tein Dung Do.
3 The originating application sought various "substantive" and "interim" orders on the following grounds:
1. The Affected Property is currently the subject of the FCCA Proceedings between the [Trustees] and the First [Respondent].
2. The [Trustees] are seeking orders in the FCCA Proceedings pursuant to sections 19(1) and 30 of the Bankruptcy Act 1966 (Cth) (Act) in the form of declarations that:
a. The Affected Property is not held on trust for the Andrew Superannuation Fund; and
b. The First [Respondent] is the registered proprietor and sole beneficial owner of the Affected Property, and as such, the Affected Property vests in the [Trustees] pursuant to section 58 of the Act; and
c. The Andrew Superannuation Fund does not have any beneficial interest in the Affected Property; and
d. The Affected Property is divisible amongst the creditors of the bankrupt estate of the First [Defendant].
3. The [Trustees] accordingly require for there to be no changes made to the title of the Affected Property until the FCCA Proceedings have come to a resolution.
(Emphasis in original.)
4 The Trustees sought seven substantive orders, four of which are relevant for present purposes: first, the operation of caveat 2064609 lodged by the Trustees is extended until further order or until such other time ordered by the ACTSC; two, that the notice of appointment of trustee (instrument number 2259644) (Notice), which had been lodged for registration on the property known as Unit 4 of Unit Plan 2983, Block 6-13 on Deposited Plan 10267, Section 14, Gungahlin in the Australian Capital Territory (ACT), also known as Unit 4, 38 Gozzard Street, Gunaghlin ACT 2912 (Affected Property), is stayed until further order or until such other time ordered by the ACTSC; third, the notice to caveator of lodgement of instrument for registration dated 24 January 2020, which was served on the Trustees in relation to the Notice on or about 31 January 2020, is stayed until further order or until such other time ordered by the ACTSC; fourth, that the matter is returnable before the ACTSC on a date suitable to the court, but after final orders are entered in a related Circuit Court proceeding (file number CAG 74 of 2019) (Circuit Court proceeding). The remaining substantive orders sought by the Trustees related to or concerned costs. The interim orders that were sought related to or concerned the commencement of the proceeding, including orders pertaining to the service of documents.
5 The originating application was stated to be supported by an affidavit of Ms Sijabat affirmed on 6 February 2020. A copy of that affidavit was not provided to or filed in this Court. The Court was provided, however, with a copy of an affidavit of Neil Samir Bookseller affirmed on 7 February 2020. Mr Bookseller, a solicitor of the law firm retained by the Trustees, deposed that: on 6 February 2020, he emailed an unsealed copy of the originating application and the affidavit of Ms Sijabat to the first respondent; he received an email from the first respondent confirming receipt of those documents on the same day; and that on 7 February 2020, he emailed the first respondent with the listing time of the hearing of the originating application.
6 Two points should be briefly noted about Mr Bookseller's affidavit. First, while the first respondent did reply to Mr Bookseller's first email and thereby acknowledged receipt of it, the first respondent's reply was to contest the basis of the orders sought. In brief terms, the first respondent claimed that the Affected Property "belong[ed] to Andrew Superannuation Fund since 2010", that the Trustees were therefore operating under a "wrong assumption", and that, if this were to persist, he would seek a "subpoena … so the court could easily see the [true] fact". Second, while Mr Bookseller's second email to the first respondent informed him that the matter was listed in the ACTSC at 10.00 am on 7 February 2020, that email was sent at or around 9.13 am on the same day.
7 It is, perhaps, somewhat unsurprising that, in light of the above information, the orders of Crowe AJ only list an appearance for the Trustees when the matter was heard before his Honour on 7 February 2020. The orders also state that the affidavits of Ms Sijabat and Mr Bookseller were read by the Trustees. No other information has been provided to this Court regarding what was submitted to or raised before his Honour.
8 The orders of Crowe AJ made on 7 February 2020 were as follows:
1. The operation of caveat 2064609 lodged by the [Trustees] on 8 December 2016 on the property known as Unit 4 of Unit Plan 2983, Block 6-13 on Deposited Plan 10267, Section 14, Gungahlin in the Australian Capital Territory, also known as Unit 4, 38 Gozzard Street, Gunaghlin ACT 2912 (Property) is extended until further order of the Court.
2. The Registrar-General of the Australian Capital Territory be restrained from registering any dealing on the Property until further order of the Court.
3. The [Trustees] to give notice of these orders to the First [Respondent] by taking the steps outlined in [a]-[d] of order 2 as sought in the originating application dated 6 February 2020.
4. The hearing of this application is adjourned to 10:00 a.m. on 14 February 2020.
(Emphasis in original.)
9 No documents were provided to or filed in this Court explaining or summarising what occurred, if anything, in the intervening period between his Honour's orders and 14 February 2020. The Trustees did, however, file the orders made by Crowe AJ on 14 February 2020. Those orders indicate that the first respondent attended the hearing on that date, the Trustees were again legally represented at the hearing, and that the affidavit of Ms Sijabat was again read. No transcript or other document detailing what was said at that hearing was provided to this Court.
10 The orders of Crowe AJ made on 14 February 2020 were as follows:
1. The Courts [sic] grants leave for the affidavit of Mr Bookseller (sworn on 07 February 2020) to be filed in Court and placed with the papers.
2. The Court orders, by consent, that the proceedings be transferred to the Federal Court of Australia pursuant to s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).
11 It is apparent from the above orders that both the Trustees and the first respondent agreed to transfer the ACTSC proceeding to this Court. The basis for their proposed order appeared to rely on s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (ACT Cross-vesting Act), which provides as follows:
6 Special federal matters - general rules
(1) If -
(a) a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter; and
(b) the court does not make an order under subsection (3) in respect of the matter;
the court shall transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2)(b).
12 As adverted to, it is unclear to what extent the parties and Crowe AJ had regard to the terms of s 6(1) of the ACT Cross-vesting Act. Nor is this the appropriate occasion for a treatise on that provision. However, a cursory glance of the legislation suggests that insufficient attention was given to the scope and operation of the relevant provisions. In that regard, the following points should be noted.
13 First, a "special federal matter" is defined in the Dictionary of the ACT Cross-vesting Act as having the same definition as that given to the phrase in s 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), which provides thus:
special federal matter means:
(a) a matter arising under Part IV of the Competition and Consumer Act 2010 (other than under section 45D, 45DA, 45DB, 45E or 45EA); or
(aa) a matter arising under the Competition Code (as defined in section 150A of the Competition and Consumer Act 2010) of the Australian Capital Territory or the Northern Territory; or
(ab) a matter arising under section 60G of the Family Law Act 1975 in a court other than the Family Court of Western Australia or the Supreme Court of the Northern Territory; or
(b) a matter involving the determination of questions of law on appeal from a decision of, or of questions of law referred or stated by, a tribunal or other body established by an Act or a person holding office under an Act, not being a matter for determination in an appeal or a reference or case stated to the Supreme Court of a State or Territory under a law of the Commonwealth that specifically provides for such an appeal, reference or case stated to such a court; or
(c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e)[sic] a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.
14 Second, as is apparent from the above definition, bankruptcy notices over real property do not, at first blush, appear to constitute a "special federal matter".
15 Third, how or why it came to be concluded before Crowe AJ that this provision was applicable to the ACTSC proceeding was not addressed in any of the documents provided to or filed in this Court. While the mandatory word "shall" in s 6(1) suggests that the ACTSC must transfer a proceeding to this Court if the relevant conditions have been satisfied, there was no information before this Court to suggest that the matter could, or should, have been viewed as a "special federal matter". To the contrary, the information that has been provided to this Court, including the "[g]rounds of application" stated in the originating application, suggest that there may have been no proper legal basis for the orders made on 14 February 2020.
16 In short summary, the basis upon which the parties submitted, and Crowe AJ ultimately accepted and ordered, that the ACTSC proceeding be transferred to this Court was and is, in all the circumstances, somewhat dubious and questionable. It does, however, perhaps provide some explanation as to why the parties now seek for this proceeding to be transferred from this Court to the Circuit Court.