Jensen v Queensland Law Society Inc

[2005] HCATrans 796

[2005] HCATrans 796

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B2 of 2005

B e t w e e n -

PETER JENSEN

Applicant

and

QUEENSLAND LAW SOCIETY INCORPORATED

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 OCTOBER 2005, AT 9.21 AM

Copyright in the High Court of Australia

GUMMOW J:   By letter dated 25 July 2001, the respondent (“the Society”) advised the applicant that it had resolved to suspend his practising certificate as a solicitor and to appoint a receiver over his property.  Furthermore, on 20 March 2003, the Society obtained summary judgment in the Supreme Court of Queensland against the applicant for $582,772.88, representing the sums it had paid to persons having claims against him.  On the basis of this judgment, the Society issued a bankruptcy notice on 1 June 2004, which the applicant then sought to have set aside.

In the Federal Magistrates Court, the applicant contended that the resolutions, by which the Society had suspended his practising certificate and appointed a receiver to his property, were invalid. The Society argued that, even if the applicant’s contention were correct, he could not show that he had a counter-claim, set-off or cross demand which he could not have set up in the Supreme Court proceedings, as required by s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Act”). The Court accepted this argument and dismissed the applicant’s application.

Before the Federal Magistrates Court and on appeal to the Federal Court (Kiefel J), the applicant had argued that he could not bring his causes of action because he did not know of the invalidity of the resolutions until May 2003. In her reasons for judgment, Kiefel J noted, first, the fundamental principle that a plaintiff’s unawareness of the existence of their cause of action does not prevent it accruing and, secondly, that the question posed by s 40(1)(g) of the Act is answered by reference to legal considerations, not practicalities. Her Honour emphasised that there was no case of fraudulent concealment by the Society or of misrepresentation by silence.

We have reviewed the applicant’s written case and the decisions of the Federal Magistrates Court and the Federal Court.  There are insufficient prospects of success in any appeal to this Court from the decision of the Federal Court.  Accordingly, special leave to appeal is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application for special leave.  I publish the disposition signed by Kirby J and myself.

AT 9.24 AM THE MATTER WAS CONCLUDED