//
[2014] VSCA 248
General information, not legal advice.
Court of Appeal (Vic)
2014-10-07
Mr J, Richard J, Neave JA, Santamaria JA
Original judgment source is linked above.
Gorkowski v Turner [2014] VSC 200 (Vickery J)
PRACTICE AND PROCEDURE - Whether application seeking a declaration for or against the title of the trustee to a trustee in bankruptcy under s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is a 'special federal matter' within the meaning of s 6(1) of the (Cth) - Whether Supreme Court required to order transfer of matter to the Federal Court - No application made under s 6(3) of the (Cth) for the Supreme Court to hear the proceeding - Appeal allowed - Matter transferred to Federal Court.
1 The applicant, Dennis Anthony Turner (as Trustee for the Bankrupt Estate of Richard J Gorkowski) seeks leave to appeal against the decision of a trial division judge holding that the Supreme Court has jurisdiction to hear and determine a claim by Mrs Gorkowski, to an interest in a property at 6 Julie Court, Ashwood (the 'Ashwood property') and that the matter is not a 'special federal matter' which the Supreme Court is required to transfer to the Federal Court under s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) ('CVA'), unless it makes an order to the contrary under s 6(3).[1]
2 The applicant became trustee of the property of Mr Richard Gorkowski as the consequence of a sequestration order made on 14 October 2010. Richard Gorkowski is the son of Mrs Gorkowski. The applicant is now the registered proprietor of the property, following the making of orders in the Supreme Court for his registration under the Transfer of Land Act 1958. Mrs Gorkowski has a registered mortgage over the property but has not responded to enquiries by the applicant seeking to ascertain the status of the loan allegedly secured by that mortgage.
3 On 13 August 2013, nearly three years after the making of the sequestration order, Mrs Gorkowski filed proceedings in the Supreme Court alleging she had a beneficial interest in the Ashwood property, arising under a common intention constructive trust. In the proceedings below, the applicant contended that the court did not have jurisdiction to hear the matter because it fell within the exclusive jurisdiction of the Federal Court under s 27 of the Bankruptcy Act 1966 (Cth) ('Bankruptcy Act'). The applicant then applied to have the matter struck out.
4 On 9 May 2014, a trial division judge declined to strike the matter out. He held that: [2]
(a) an application seeking a declaration for or against the title of the trustee to a trustee in bankruptcy under s 58(1)(a) of the Bankruptcy Act falls within s 27 of that Act, which confers exclusive jurisdiction 'in bankruptcy' on the Federal Court and the Federal Circuit Court,[3] subject to exceptions relating to the jurisdiction of the High Court and the Family Court;[4]
(b) although s 27 of the Bankruptcy Act deprives the Supreme Court of jurisdiction 'in bankruptcy', the effect of s 4(1) of the CVA is to confer federal jurisdiction on the Supreme Court in relation to matters arising 'in bankruptcy'; and
(c) Mrs Gorkowski's claim did not give rise to a 'special federal matter' within s 6(1) of the CVA, which requires the Supreme Court to transfer such matters to the Federal Court, unless under s 6(3) of the CVA, the Supreme Court orders that the proceedings be determined by that Court because it 'is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties'.
5 Before the Supreme Court makes an order that the proceedings be determined by that Court, s 6(4) of the CVA requires:
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903.
... a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation or validity of the law.
45 Menzies J said in Felton:
A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law.
46 In the same case, Windeyer J said to similar effect:
In my view a matter does not arise for adjudication under a law made by the Commonwealth Parliament unless a statute is relied upon as giving a right claimed or as the direct source of a defence asserted.
7 Because his Honour considered that this was not a 'special federal matter', it was unnecessary for him to consider the operation of s 6(3) of the CVA and the requirements which must be satisfied before the discretion conferred by that section is exercised.
8 The applicant no longer proposes to challenge his Honour's reasons relating to [4(a)] or [4(b)] above. The sole proposed ground of appeal is that 'His Honour erred in law in failing to hold that proceeding number SCI 2013 04159 ... raises a 'special federal matter' arising under the Bankruptcy Act 1966'.
9 The test for a grant of leave to appeal is contained in Niemann v Electronic Industries Ltd[6] and is as follows:
(a) the decision must be wrong or at least attended with sufficient doubt to justify granting leave; and, in addition,
(b) substantial injustice will be done by leaving the decision unreversed.
10 The respondent submits that the applicant will not suffer substantial injustice if the orders are permitted to stand because the effect of the orders was simply to determine that the Supreme Court of Victoria had jurisdiction and they did not affect the substantive rights of the applicant. However, in determining whether leave to appeal should be granted the court may also consider whether the legal issue raised by the proposed appeal is one of general public importance.
11 In our view, the question whether these proceedings amounted to a 'special federal matter' is a question of public importance because it will determine where applications, such as the application made by Mrs Gorkowski, will normally be initiated and heard in the future. We also consider that the decision was attended with sufficient doubt to justify the grant of leave. We would therefore grant leave to appeal. We now turn to the appeal itself.
12 The relevant provisions of the Bankruptcy Act, the CVA and the Judiciary Act 1903 are as follows:
Bankruptcy Act 1966 (Cth)
27 Bankruptcy courts
(1) The Federal Court and the Federal Circuit Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all courts other than:
(a) the jurisdiction of the High Court under section 75 of the Constitution; or
(b) the jurisdiction of the Family Court under section 35 or 35A of this Act.
...
58 Vesting of property upon bankruptcy--general rule
(1) Subject to this Act, where a debtor becomes a bankrupt:
(a) the property of the bankrupt, not being after - acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee...
Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth)
3 Interpretation and application
(1) In this Act, unless the contrary intention appears:
...
special federal matter means:
...
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
...
4 Additional jurisdiction of certain courts
(1) Where:
(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)--that court is invested with federal jurisdiction with respect to that matter; or
...
6 Special federal matters: general rules
(1) If:
(a) a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and
(b) the court does not make an order under subsection (3) in respect of the matter;
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).
Note: This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States).
(1A) However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.
(2) If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred:
(a) if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c) or (e) of the definition of special federal matter in subsection 3(1) - to the Federal Court...
...
(3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
(4) Before making an order under subsection (3), the court must be satisfied that:
(a) a written notice specifying the nature of the special federal matter has been given to the AttorneyGeneral of the Commonwealth and the AttorneyGeneral of the State or Territory where the proceeding is pending; and
(b) a reasonable time has elapsed since the giving of the notice for the AttorneysGeneral to consider whether submissions to the court should be made in relation to the proceeding...
39B Original jurisdiction of Federal Court of Australia
...
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
...
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
13 The respondent contends that the trial judge correctly decided that Mrs Gorkowski's claim did not 'arise under' a law made by the Commonwealth Parliament and hence was not a 'special federal matter'. Counsel for the respondent argues that Mrs Gorkowski's claimed equitable interest did not owe its existence to federal law and that s 58 of the Bankruptcy Act, which provides that the property of the bankrupt vests in the relevant trustee, did not provide the applicant any defence to Mrs Gorkowski's claim. If Mr Gorkowski held the property on trust for his mother, the trustee did not obtain an equitable interest in that property.[7] Counsel submits that although Mrs Gorkowski's claim may have been a matter 'in bankruptcy' for the purposes of s 27 of the Bankruptcy Act, it does not follow that it is a matter 'arising under' a Commonwealth law within s 39B (1A)(c) of the Judiciary Act 1903. Counsel for the respondent relies on Meriton Apartments Pty Ltd v Industrial Court of New South Wales[8] ('Meriton Apartments') in support of the difference between these concepts. The respondent contends that disputes involving a claim made by a stranger to the bankruptcy, such as Mrs Gorkowski, are not disputes 'arising under the Bankruptcy Act'.
14 The applicant contends that the proceedings fell within the exclusive jurisdiction of the Federal Court conferred by s 27 of the Act. The applicants do so on the basis that under s 5 of the Bankruptcy Act:
'bankruptcy' in relation to jurisdiction or proceedings means 'any jurisdiction or proceedings under and by virtue of this Act.
15 The applicant contends, in effect, that if a matter falls within the jurisdiction 'in bankruptcy' under s 27 it necessarily falls within the definition of a 'special federal matter'. Because the proceedings were 'in bankruptcy' they also arose under a law of the Commonwealth Parliament. The applicant argued that this was consistent with the conferring of specialised jurisdiction 'in bankruptcy' on the Federal Court and the Federal Circuit Court.
16 When pressed, counsel for the applicant accepted that there were some proceedings to which a trustee in bankruptcy was a party, which did not fall within the definition of a 'special federal matter'. However, he was unable to indicate the basis for distinction between matters which would or would not be required to be transferred under s 6(1) of the CVA.
17 If the present application involves a matter 'that is within the original jurisdiction of the Federal Court by virtue of s 39B of the Judiciary Act 1903',[9] it is, by reason of the definition contained in paragraph (e) of s 3(1) of the CVA, a 'special federal matter'. Whereas s 4 of the CVA vests broad jurisdiction in the Supreme Court, s 6(1) provides that the Supreme Court must transfer 'special federal matters' to the Federal Court. Accordingly, the question raised for decision is whether the present application is a matter that is within the original jurisdiction of the Federal Court by virtue of s 39B.
18 It is curious that there is no direct authority on the question raised for decision in this appeal. The main authorities cited by the applicant[10] held that s 27 of the Bankruptcy Act, impliedly repealed s 39(2) of the Judiciary Act 1903,[11] in relation to bankruptcy proceedings. Those cases did not consider whether a proceeding by a third party commenced against a trustee in bankruptcy after a sequestration order has been made is a matter 'arising under' a Commonwealth law.
19 The Meriton Apartments case is not directly relevant to that question. In that case the Federal Court heard an application to quash a finding by the Industrial Court of New South Wales that proceedings commenced in that Court by the second respondent had been deemed to be abandoned under ss 60(2) and (3) of the Bankruptcy Act.
20 One of the questions for resolution was whether the Industrial Court had jurisdiction to determine whether ss 60(2) and (3) applied, having regard to the exclusive jurisdiction provision in s 27 of the Bankruptcy Act. It was held that the Industrial Court had such jurisdiction in relation to the status of proceedings which had been commenced in it, before the person became bankrupt, because this simply involved recognition of the binding legal effect of the Bankruptcy Act and not the exercise of jurisdiction 'under and by virtue of the Bankruptcy Act', which fell within s 27.[12]
21 The more difficult question, on which the Court divided, was whether the Industrial Court had jurisdiction to consider whether a purported exercise of powers conferred on the trustee by s 134 of the Bankruptcy Act, was effective. Branson J considered that the trustee had acted within power and that the Industrial Court had jurisdiction to decide that was the case, because again, this simply involved recognition of the legal effect of the Act. Her Honour said that her conclusion was not intended to suggest that the Industrial Court had power to exercise any control over a trustee in bankruptcy. Greenwood J also considered that it was within the jurisdiction of the Industrial Court to resolve that question, but did not give any detailed reasons for reaching that conclusion.[13]
22 Perram J considered that the proceedings were 'in bankruptcy' and consequently fell within the exclusive jurisdiction conferred by s 27. The issues considered by all of the judges related to s 27 of the Bankruptcy Act and none of the judgments make reference to s 6 of the CVA.
23 We now turn to the authorities on the meaning of 'arising under a law of the Parliament.' Ex parte Barrett[14] is the leading authority on this issue. In Barrett Latham CJ said that:
a matter may properly be said to arise under a federal law if the right or duty or question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.[15]
24 Barrett was considered by the High Court in LNC Industries Ltd v BMW (Australia) Ltd[16] where the question for decision was whether an appellant could appeal to the Privy Council from a decision of the New South Wales Court. If the decision was made in the exercise of federal jurisdiction, because it involved a matter arising under the laws of the (federal) Parliament under s 76(ii) of the Constitution, s 39(2)(a) of the Judiciary Act 1903 prevented an appeal to the Privy Council.
25 The dispute between the plaintiff and the defendant was a contractual one. The plaintiff, which held an import licence under Regulations made under the Customs Act 1901(Cth), claimed it had entered into agreements assigning part of its quota entitlement under the licence to the defendant, in return for the defendant's agreement to hold these quota entitlements on trust for the plaintiff, after a certain date. The defendant claimed that the plaintiff had not satisfied certain contractual conditions.
26 The High Court held that because the subject matter of the contract or trust was 'in respect of a right or property which is the creation of federal law, the right arose under federal law'.[17]
The present case is not, to use the words of Windeyer J. in Felton v. Mulligan, one in which the Regulations are merely "lurking in the background". The very subject of the issue between the parties is an entitlement under the Regulations. In substance the plaintiff's primary claim is to the benefit of rights and privileges under the Regulations. In these circumstances the matter involved in the action arose under laws made by the Parliament.[18]
28 In Australian Securities and Investments Commission v Landy DFK Securities[19] ('Landy') the Australian Securities and Investments Commission had applied to wind up a property trust, and have the property held by the trustee vested in the liquidators. One of the properties had previously been leased to a company which failed to pay its rent. The question for decision in Landy was whether the Federal Court had jurisdiction to make an order for possession of the property by the liquidators and to grant an injunction restraining the lessee from interfering with the liquidators and court-appointed trustees possession of the property.
29 It was argued by the lessee that the Federal Court did not have jurisdiction to grant such an injunction because the relief sought related to 'an entirely discrete and severable contractual dispute' between the liquidators, as landlords of the property, and the lessee.[20] Merkel J held that the court did have such jurisdiction because the matter 'arose under a federal enactment'.
' ... When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law.'
In the present case the subject matter of the dispute is not property that exists as a result of federal law.... However, there are a number of significant federal elements in the present dispute between the applicants and Lifetime in relation to possession of the property that indicate that the source of the claims of the applicants is federal law and that the claims depend upon federal law for their enforcement. The dispute arises in a context where:
• ASIC commenced a proceeding in the Court under the Act to wind up the Trust and appoint the applicants as liquidators of the Trust;
• the Court made orders under the Act winding up the Trust and appointing the applicants as liquidators to wind up the Trust and to get in its property for that purpose;
• the Court conferred on the applicants as court appointed liquidators all of the powers necessary to wind up the Trust.
Where a third party calls into question the applicants' rights and the exercise or proposed exercise of their powers as liquidators, as has occurred in the present case, the source of those rights and powers is the Act and the orders of the Court made under the Act. That federal source is not altered by the fact that Lifetime's claims to possession in opposition to the applicants' claims arise under contract and the common law. As was pointed out by Gummow J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd the one proceeding may answer the description of several species of 'matter'. However, in the present case Lifetime's contractual or common law claims to possession of the property are put forward as a defence to the applicants' claims as liquidators of the Trust under a duty arising under the Act and orders of the Court to get in the property of the Trust in order to wind it up.
It is also significant, as I later explain, that insofar as the applicants are acting as liquidators winding up the Trust they are doing so as officers of the Court. The applicant's claims to the property are made in that capacity as part of the winding up of the Trust.
In the present case the existence of federal law (s 601EE of the Act), and orders of the Federal Court winding up the Trust made under that law, constitute the source of the substantive claims made and rights claimed by the applicants (cf Australian Securities and Investments Commission v Edensor Nominees Pty Ltd. A consideration of 'what the parties have done, the relationships between or among them and the laws which attach rights and liabilities to their conduct and relationships' (see Fencott v Muller), and the application of the principles stated in LNC Industries tends to support the conclusion that, in a constitutional sense, there is an underlying controversy which owes its existence to the Act, and Lifetime's contractual or common law claims in respect of the property are part of that controversy and are not severable from it.[23]
31 Merkel J distinguished the decision of this court in Avamure Pty Ltd (in liq) v Fletcher Jones and Staff Pty Ltd.[24] In that case Tadgell JA (Callaway JA agreeing) held that a claim for the recovery of a debt by a liquidator of a company in voluntary liquidation did not 'arise under' the Corporations Law simply because the liquidator relied on the power conferred on him by the Corporations Law to sue in the name of the company for a debt due to the company. Merkel J noted that Avamure was concerned with a voluntary liquidation, rather than a court-ordered liquidation and that the only link with the Corporations Law was that the liquidator relied on the power conferred on him by that Act in order to recover company debts in its name. In addition he found that:
The liquidators' claims in the present case are distinguishable from the claim in Avamure as:
The entitlement of the liquidator in Avamure to sue for a debt of the company is more analogous to the entitlement of the applicants in the present case to sue for the recovery of possession of the property in their capacity as trustees. Thus, if the matter before the Court were based upon or limited to the applicants' role as trustees, rather than as court appointed liquidators, there would be a substantial basis for contending that the matter is not one that arises under the Act.
In my view the above matters lead to the conclusion that the claims of the applicants as liquidators owe their existence to the Act and depend upon the Act for their enforcement with the consequence that the justiciable controversy between the applicants and Lifetime is a matter, or part of a matter, arising under the Act.[25]
32 In this case the claim was brought in the name of Mrs Gorkowski, who by necessity had to seek relief from the applicant, because the property was vested in him by virtue of s 58 of the Bankruptcy Act. However, this was not a case where she had to rely on federal law as the basis for her claim, because that claim was based on equitable principles. The recognition, under s 116(2) of the Bankruptcy Act,[26] of Mrs Gorkowski's equitable interest in the property, did not make this a 'special federal matter'. Section 116 is simply a recognition of the fact that property to which a third party has an equitable or legal title is not available for distribution.
33 On the other hand, the applicant was necessarily a party to the proceedings because legal title to the property had vested in him by virtue of the sequestration order. Federal law was the source of the trustee's legal title, in the sense that s 58 provided the basis on which the trustee could get in the applicant's property and make its value available for distribution among his creditors. Consistently with the words of Latham J in Barrett the trustee relied upon federal law for the enforcement of his powers. It was the Federal Court that made the sequestration order, and that the Court had continuing power to make orders relating to the discharge of the bankrupt[27] and the administration of the bankruptcy. In that respect the situation of the trustee was similar to the situation of the liquidators in the Landy case, and unlike the circumstances in Avamure.
34 The respondent might have argued that the matter to which the application related simply recognised the effect of the Bankruptcy Act, but did not alter the rights and duties of the parties. In the Meriton Apartments case the majority did not regard the fact that the proceedings required recognition of the binding legal effect of the Bankruptcy Act as necessarily requiring the determination of the matter by a court which had the exclusive jurisdiction 'in bankruptcy', conferred by s 27.
35 It could be argued that if the matter did not fall within the exclusive bankruptcy jurisdiction for that reason, it could hardly be regarded as a matter arising under a law of the Commonwealth. But as we have said, the issue which arises here was not considered in Meriton Apartments at all and it would be dangerous to rely on that case as authority for the broader question which must be considered here.
36 There is some authority which indirectly supports the proposition that the words 'arising under any laws made by the parliament' should be interpreted broadly. An example is Australian Solar Mesh Sales Pty Ltd v Anderson[28] where Burchett J said the following:
It is apparent, therefore, that the words 'arising under any laws made by the Parliament' have the same meaning that they have in the Constitution. There are two considerations which, in particular, affect that meaning. On the one hand, s 76(ii) is to be contrasted with s 76(i); the omission of the words 'or involving its interpretation' from subs (ii) narrows the jurisdictional test. On the other hand, the test must still be given the full breadth its language will allow...[29]
37 His Honour cited a number of cases supporting this broad approach. For example, in Knight v F P Special Assets Ltd[30] Gaudron J said that:
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.[31]
38 Similar observations were made by Gaudron and Gummow JJ in Oshlack v Richmond River Council.[32]
39 The difficulty in applying that principle here is that a broad interpretation of the words 'special federal matter' would not expand the jurisdiction of this Court, but rather require it to transfer the matter to the Federal Court, unless the Supreme Court orders to the contrary, having been satisfied that s 6(3) applies. In such circumstances, the principle that provisions conferring jurisdiction should be interpreted broadly provides little assistance.
40 If the proceedings had been initiated before the sequestration order was made, we consider that it could be difficult to contend that the proceedings were a 'special federal matter' which the Supreme Court had to transfer under s 6(1) of the CVA. However, that issue does not arise here and was not argued.
41 Although the matter is not without difficulty, we consider that his Honour should have held that the proceeding was a 'special federal matter.' We reach that conclusion because it was necessary for the trustee in bankruptcy to rely on the sequestration order made under the Bankruptcy Act and the title conferred on him as a consequence of that order,[33] to resist Mrs Gorkowski's claim. Although his title was not 'a defence' to Mrs Gorkowski's claim, s 58 of the Bankruptcy Act, which vested the property of the bankrupt in him, was the basis on which the proceedings had to be brought against him. The onus lay on Mrs Gorkowski to establish her interest in the property, which the trustee claimed was vested in him. This was not a case where the bankruptcy was simply 'lurking in the background' to the proceedings.
42 In the proceedings below it was not submitted that, if this was held to be a 'special federal matter' the Supreme Court should order that the proceeding be determined by it, because there were special reasons for doing so in the particular circumstances. Nor have the requirements of subss 6(4) and (6) been considered.
43 As far as we are aware no proceedings are pending in the Federal Court, so that s 5 of the CVA has no application.[34] If there are such proceedings and we are incorrect in holding that this was a 'special federal matter', it may well have been appropriate for the Supreme Court to transfer the matter to the Federal Court. However, no submissions have been made in support of such an order.
44 The applicant seeks an order that the proceedings be transferred to the Federal Court. In the absence of any application under s 6(3) of the CVA, such an order should be made. The orders of the court are that leave to appeal should be granted and that proceeding number SC I 2013 04159 be transferred to the Federal Court.
[1] The application does not appear to fall within s 13 of the CVA, which prohibits appeals 'in relation to the transfer or removal of a proceeding under this Act'. It was not argued that it did so.
[2] Gorkowski v Turner [2014] VSC 200.
[3] See also s 31(1)(f) which refers to 'applications to declare for and against the title of the trustee to the property'.
[4] Scott v Bagshaw [2000] FCA 816; (2000) 99 FCR 573, 577.
[10] Beaman v Bond [2013] FCA 534; [2013] 212 FCR 350; Green v Schneller [2001] NSWSC 897.
[11] Section 39(2) is the general conferral of Federal jurisdiction on the courts of the States. However, s 27 provides that the jurisdiction of the Federal Court and the Federal Circuit Court in bankruptcy is exclusive of the jurisdiction of all courts other than the High Court under s 75 of the Constitution and the Family Court in certain circumstances.
[12] Meriton Apartments [2008] FCAFC 172; (2008) 171 FCR 380, 385.
[13] Meriton Apartments [2008] FCAFC 172; (2008) 171 FCR 380, 417 [155]. It may be that this was based on the fact that the challenge to the proceedings in the Industrial Court was based on standing issues, rather than made under s 178 of the Bankruptcy Act, see [153].
[22] Gibbs CJ, Mason Wilson Brennan and Deane JJ.
[23] ASIC v Landy DFK Securities Ltd [2002] FCA 1056; (2002) 123 FCR 548, [17]-[21] (citations omitted).
[25] ASIC v Landy DFK Securities Ltd [2002] FCA 1056; (2002) 123 FCR 548, [40]-[42].
[26] Section 116(2) provides that property held by a bankrupt on trust for another person is not divisible among the bankrupt's creditors.
[31] Ibid 205. See also Owners of Ship 'Shin Kobe Maru' v Empire Shipping Company Inc (1994) 181 CLR 404_,_ 421; PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301, 313.
[33] The trustee had to apply under s 51 of the Transfer of Land Act 1958 (Vic) to become registered proprietor of the land, but this simply recognised the effect of the sequestration order.
[34] In general terms, Section 5 of the CVA provides a mechanism for a court, where there are multiple related matters commenced in different jurisdictions, to transfer a proceeding to another court for the purposes of achieving a just or efficient outcome, by for example, consolidating the matters.
Turner
Gorkowski [2014] VSCA 248
(1995) 184 CLR 301
(1998) 193 CLR 72
(2002) 123 FCR 548
(2000) 101 FCR 1
(2000) 99 FCR 573
(2008) 171 FCR 380
(1945) 70 CLR 141
(1983) 151 CLR 575
(1992) 174 CLR 178
(1994) 181 CLR 404