George v Fletcher (Trustee) [2012] FCAFC 148
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. The proceeding be remitted to the Federal Magistrates Court of Australia for the purpose of determining which, if any, of the chattels removed from the appellant’s house by the first respondent was or were not property divisible amongst the creditors of the appellant pursuant to the provisions of s 116(2)(b)(i) of the Bankruptcy Act 1966 (Cth) and reg 6.03 of the Bankruptcy Regulations 1996 (Cth), and of making any consequential orders.
3. The appeal otherwise be dismissed.
4. The appellant pay the costs of the second, third and fourth respondents.
5. The appellant pay 90% of the costs of the first respondent.
6. The operation of the previous order be stayed for 14 days and, if an application be made pursuant to the following order, thereafter until the determination of that application.
7. The appellant and the first respondent have leave to apply for a variation of Order 5 above by filing and serving, within 14 days, submissions, not exceeding five pages in length (including any attachments and any documents incorporated by reference) setting out the terms of the variation sought and a statement of the reasons why it should be made. In the event that any such submissions are made by either such party, the other party may, within a further 14 days, file and serve submissions, also not exceeding five pages in length (including any attachments and any documents incorporated by reference), in response. In the event that any such submissions in response are made, the first party may, within a further seven days, file and serve submissions, not exceeding two pages in length (including any attachments and any documents incorporated by reference), in reply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY | |
GENERAL DIVISION | QUD 192 of 2011 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
BETWEEN: | LAUREN KAY GEORGE Appellant
|
AND: | WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE First Respondent DR PETER IRONSIDE PTY LTD (ACN 008 126 387) Second Respondent PETER DOUGLAS IRONSIDE Third Respondent NATIONAL AUSTRALIA BANK Fourth Respondent
|
JUDGES: | SIOPIS, JESSUP & KATZMANN JJ |
DATE: | 25 OCTOBER 2012 |
PLACE: | adelaide (via video link to brisbane) |
TABLE OF CONTENTS
REASONS FOR JUDGMENT
1 Lauren Kay George (aka Cordes) was made bankrupt on her own petition in February 2006. The first respondent, William Fletcher, was appointed her trustee in bankruptcy. Section 58 of the Bankruptcy Act 1966 (Cth) provides that on bankruptcy the property of a bankrupt vests immediately in the trustee. After the sequestration order was made, consistent with his obligations under the Bankruptcy Act, Mr Fletcher tried to take possession of Ms George’s property. The property in question consists of a house and land at Moggill in outer-suburban Brisbane where Ms George was living; two horses, a horse float (the Lara horse float), a Toyota Landcruiser and various other chattels including household items and jewellery. Ms George, however, claimed that Mr Fletcher was not entitled to the property, principally because (save for the Lara horse float) it was not “property of the bankrupt” within the meaning of the Bankruptcy Act (s 116(2)(a)). Rather, she has maintained that she holds the property on trust for her son, a trust she told the Court she declared orally on the day of his birth and later in writing. Ms George also claimed that in any event household items Mr Fletcher had seized from her home were reasonably necessary for her domestic use and so were exempt from distribution to creditors under s 116(2)(b) of the Act and that certain items of jewellery had sentimental value for her and were exempt on that account (s 116(2)(ba)). In the case of the Lara horse float she claimed it was used to earn income by personal exertion and exempt by reason of s 116(1)(ba). Mr Fletcher disputed all these claims. The dispute became the subject of litigation in both the Queensland Supreme Court and the Federal Magistrates Court.
2 On 27 July 2011 Burnett FM held that Ms George did not hold the property in question on trust and that all the property, with the exception of her mother’s watch which had sentimental value, vested in the trustee in bankruptcy: Fletcher v George & Ors [2011] FMCA 553 (Fletcher v George). He made a number of declarations and orders giving effect to his findings. This is an appeal from that judgment. In these reasons, generally speaking, we refer for convenience to the trustee by name but in each case it should be understood that the reference is to him in his capacity as trustee of Ms George’s bankrupt estate.
3 The federal magistrate opened his reasons for judgment with a scathing indictment of Ms George’s credibility. Ms George contended that from the outset his Honour was biased against her (or that there is a reasonable apprehension that he might have been). She also challenged other aspects of the judgment, claiming that his Honour made various errors of law and fact.
4 In broad terms the appeal raises the following issues:
(a) whether the trial miscarried for want of procedural fairness because of apprehended bias on the part of the federal magistrate or a denial of a real opportunity to be heard; and
(b) whether the federal magistrate made various errors of fact and law, in particular, whether his Honour erred in failing to find that Ms George owned the Moggill property on trust for her son and that she was entitled as trustee for the trust to retain the chattels seized from her.
5 In order to understand the issues and the reasons for some of the federal magistrate’s conduct, it is necessary to provide some background. We will return to some of these matters in our discussion of the grounds of appeal. Having regard to the way those grounds are formulated, a certain amount of repetition is unavoidable.
6 Ms George gave birth to her son, Alexander, on 27 November 1997. At the time of his birth Ms George and her then husband, Matthew George, lived on a property in Pullenvale, Queensland. The marriage later broke down. The Pullenvale property was sold and Ms George used the proceeds of the sale to purchase a block of land at Moggill upon which she later had a house built. The contract for the sale of the Moggill land names Ms George (as Cordes) as the purchaser. There is no mention of a trust. On 22 September 2003 Mr George placed a caveat over the Moggill land, claiming to have an equitable interest (in the nature of a constructive, resulting or implied trust). The registered owner listed on the caveat is “Lauren Kay George”. The certificate of title issued on 3 December 2003 records the name of the registered owner as “Lauren Kay Cordes”.
7 In proceedings in the Family Court of Australia resulting from the breakdown of the marriage Ms George filed three financial statements. Each statement purported to set out her income, assets, expenditure and liabilities and included an affidavit from her stating that she was aware of her obligations to make full and frank disclosure of her financial situation. In the September 2002 and October 2004 statements she listed herself as the sole owner of her home. The January 2004 statement listed the Moggill property by address and again did not name any other owners. There was no reference to any trust.
8 On 14 July 2004 the fourth respondent, National Australia Bank (NAB) registered a mortgage over the Moggill property. Ms George is named as mortgagor. Once again, there was no mention of a trust. In January 2005 Ms George applied to NAB for finance to build a house on the property and for a first home mortgage stamp duty concession. The application made no reference to any trust.
9 In March and April 2005 the Family Court heard a dispute between Ms George and her former husband over the questions of property settlement and spousal maintenance. On 29 April 2005 Barry J made final orders. The judgment, which was an annexure to Mr Fletcher’s affidavit in the court below, made no mention of the existence of any trust in favour of Alexander and before the federal magistrate Ms George conceded that no evidence was called in that proceeding of the existence of such a trust. Ms George appealed from the Family Court judgment. When the appeal came on for hearing on 31 October 2005, consent orders were made, allowing the appeal and discharging the orders for spousal maintenance.
10 On 18 June 2005 Ms George entered into a contract in standard REIQ form to sell the Moggill property to the second respondent, Dr Peter Ironside Pty Ltd (DPIPL) (a company associated with the third respondent, her brother-in-law, Dr Peter Ironside) for $400,000. The contract was not subject to any encumbrances but included provision for a 30 year tenancy agreement in Ms George’s favour at a set rental. There was no reference in the contract to the existence of any trust. Ms George contended that the parties entered into a collateral agreement the same day to transfer the property back to her at some indeterminate time. NAB agreed to a sale at the contract price, leaving a debt of $20,000 to be repaid at $200 a month, but a private loan of $80,000 was given to assist with the property settlement. Mr Fletcher contended that the sale was for less than the market value and that the transfer was therefore void against the trustee in Ms George’s bankruptcy (see s 120(1) of the Bankruptcy Act).
11 On 24 August 2005 a solicitor, Alan Lethbridge, witnessed Ms George’s signature on a memorandum of transfer of the Moggill property by DPIPL to Ms George. Ms George said she left the solicitor’s office with two forms. One contained her own and Mr Lethbridge’s signature. The other was never produced. Where the particulars of the transferee are given (item 5) the words “Lauren Kay Cordes” are printed and the words “in trust for Alexander George” are handwritten. In the court below Ms George admitted that she had added the words “life estate” and “life interest” to items 1 and 5 respectively in September 2007, well after the transfer was executed and witnessed, and, significantly, after she had become bankrupt. (The federal magistrate noted that the words “in trust for Alexander George” appeared to be in the same ink.) This transfer document was executed in support of the collateral agreement.
12 Ms George and Dr Ironside entered into a formal tenancy agreement on 27 August 2005. Dr Ironside gave evidence before the federal magistrate, which his Honour accepted, that the agreement produced by Ms George and annexed to her affidavit included a number of matters which were not in the document when it was executed. Amongst them were the words “periodic/life interest mother and child”. His Honour said (at [163]) that the additions were clearly in Ms George’s handwriting.
13 Between 2 and 21 September 2005 letters of instruction were sent to NAB relating to the release of the mortgage on the Moggill property. None of them suggested that the property was held on trust or that any excess of funds on settlement would be received and held by Ms George on trust. All invoices relating to payment of building contractors under the building loan were directed to Ms George personally. Craig Wood, the business banking manager at NAB, who completed some of the documents and was Ms George’s business manager, testified that Ms George never told him that the property was held on trust for her son and that none of the documents held by the bank referred to the existence of such a trust.
14 On 20 October 2005 the memorandum of transfer of the Moggill property (in settlement of the contract for sale of 18 June 2005) was lodged with the Queensland land registry. The transferor is named as “Lauren Kay Cordes”. There was no reference to a trust.
15 On 21 February 2006 Ms George filed a debtor’s petition. The principal creditor was the solicitor who acted for her in her family law proceedings. The statement of affairs accompanying the petition did not disclose that she held any property on trust. In contrast to the financial statement she filed in the Family Court, the only assets she disclosed consisted of cash in hand of $50.
16 The sequestration order was made on 24 February 2006. Mr Fletcher was appointed trustee for the bankrupt estate on 31 March 2006.
17 In 2007 a matrimonial proceeding involving Dr Ironside and his former wife (and Ms George’s sister), Susan Wilson, began in the Family Court (the Ironside proceeding). One of the issues in that proceeding was whether the Moggill property was matrimonial property capable of being included in any property settlement between Dr Ironside and Ms Wilson.
18 On 31 December 2007 Ms George transferred the registration of a Hanoverian mare known as Stellamarra (not mentioned in her statement of affairs) to Ms Wilson.
19 On 4 April 2008 Ms George (as Cordes) wrote to the Registrar of Land Titles enclosing a cheque for $189 to register a caveat on the title of the Moggill property. She told the Registrar that the property should have been registered in the name of “Lauren Kay Cordes in trust for Alexander George”.
20 On 14 October 2008 Mr Fletcher issued a notice to Ms Wilson under s 77A of the Bankruptcy Act asking for information regarding her dealings with Ms George’s affairs. Ms Wilson provided certain information and two weeks later she executed a deed of settlement assigning ownership of the mare, Stellamarra, and the Toyota Landcruiser (which Ms George had transferred to her eight months before the sequestration order), to Mr Fletcher as trustee of the bankrupt estate of Ms George.
the allegations concerning the trust
21 On 2 October 2007 Ms George sent an email to NAB stating that “the minor by the name Alexander William George d.o.b. 27/11/97 maintains a life interest in this property” and that “Dr Peter Ironside therefore holds this interest in trust for the minor and is fully aware that as of 18/6/05 he is unable to convert, sale or mortgage without the consent of the trustee”.
22 The same month Ms George asserted in correspondence with the solicitors for the parties in the Ironside proceeding that the Moggill property was impressed with a life interest in favour of her son. The following month she produced to Mr Fletcher what she alleged was written proof of the existence of the trust. It consisted of two different reprints of the Trusts Act 1973 (Qld) containing certain handwritten endorsements. At around this time Mr Fletcher successfully applied to be joined as a party to the Ironside proceeding.
23 On 6 December 2007 Ms George (as Cordes) swore an affidavit in the Ironside proceeding in which she stated that she had purchased the Moggill land and built a home on it on trust for her son, Alexander.
24 In the court below Ms George claimed that from her hospital bed on the day her son was born she declared an express trust “by way of parole”. She said that she told her son “on his birth” that the Pullenvale property was his property and his home for life. She also claimed that on 1 May 2002 she endorsed a copy of the then current reprint of the Trusts Act with the following words:
Property trust 130 Airlie Road Pullenvale Queensland 4069 Lauren Kay Cordes as trustee for Alexander William George dated 1st May 2002 holding a life interest of mother/child referred to as above dob 4/7/1964 and 27/11/1997 respectively.
25 Ms George further claimed that on 5 December 2003 – the day she entered into the contract to buy the Moggill property – she endorsed a copy of the then current reprint of the Trusts Act with the following words:
Property trust agreement amendment to original trust agreement dated 1st May 2002. Lauren Kay Cordes as trustee for Alexander William George property trust Lot 13 Survey Plan 145714 County of Stanley Parish of Moggill dated 5/12/2003 holding life interest of mother and child on the above property – Lauren Kay Cordes.
26 To corroborate her claim that her property was held on trust for her son Ms George also relied on a number of wills she executed over the years before her estate was sequestrated.
27 On 24 January 2008 Ms George (purportedly as trustee for Alexander) applied to be joined as a party in the Ironside proceeding.
28 Dr Ironside and his wife were directed to attend a mediation. The mediation took place on 19 February 2008. Ms George attended the mediation, uninvited, and over the opposition of Mr Fletcher. The dispute was resolved by heads of agreement (the heads of agreement). They were signed by Ms Wilson and all the parties to this proceeding with the exception of the NAB. The document recorded Ms George’s agreement to abandon any claims to the Moggill property “whether on her own account or as a trustee”. Before the federal magistrate, however, Ms George claimed that she signed under duress. Apart from the equivocal evidence that she was later seen to be crying, her claim was uncorroborated. The federal magistrate found that the day after the mediation, Ms George did everything possible to give effect to the heads of agreement.
29 On 26 February 2008 orders were made in the Federal Magistrates Court putting into effect the terms of the heads of agreement.
30 On 9 April 2008 the Moggill property was transferred to Mr Fletcher as trustee of Ms George’s bankrupt estate.
31 On 24 April 2008 Ms George filed a statement of claim against DPIPL in the Queensland Supreme Court seeking, amongst other things, orders that the sale of the Moggill property to DPIPL be set aside, the property be reconveyed to her “in fee simple and life estate” and that the heads of agreement be declared void. She filed an “amended statement of claim” on 23 December 2008, which added as defendants Dr Ironside, NAB, Ms Wilson and Mr Fletcher and also sought a variety of additional and alternative orders relating not only to the Moggill property but extending to personal property which was later seized by Mr Fletcher, the horse, Stellamarra, and the Landcruiser.
32 On 27 April 2009 the Queensland Supreme Court proceeding was permanently stayed: Cordes v Dr Peter Ironside Pty Ltd & Ors (2009) 231 FLR 32. An appeal against that judgment was dismissed: Cordes v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235. At this point it is convenient to explain the allegations Ms George made in the Supreme Court proceeding as the federal magistrate later ordered that her amended statement of claim stand as her pleading in the Federal Magistrates Court. For present purposes it is sufficient to refer to the following summary in the judgment of the Queensland Court of Appeal.
[8] The pleading as to the arrangement between Dr Ironside, [DPIPL] and [Ms George] is very difficult to understand. The thrust of it seems to be that [DPIPL] was to pay $400,000 and the Moggill property, subject to an existing mortgage to [NAB], was to be transferred to it, but leased back to [Ms George]. Strangely, the tenancy agreement also provided that she and her son were to retain a life interest in the property. At the same time, however, the arrangement was conditional on [DPIPL]’s holding the property in trust for her son, and undertaking to transfer it back to [Ms George] at any time she wished.
[9] [Ms George] went on to plead that unconscionably, in breach of trust and in breach of their agreement, Dr Ironside and [DPIPL] refused to reconvey the property, used it as security for loans in the amount of $2 million, lodged a caveat on the title, and entered the Family Court agreement with the trustee in bankruptcy. [NAB] was joined as an accessory to their breach of trust. Against the trustee in bankruptcy, it was pleaded that he knowingly assisted in the breach of the trust by failing to reconvey the property and asserting his interest in it. [Ms George] alleged that she had signed the Family Court agreement under duress.
[10] By way of relief, [Ms George] sought orders setting aside the sale agreement, the transfer of the property to [DPIPL] and the mortgage to [NAB], with removal of the caveat and the mortgage, and orders that the Moggill property be reconveyed to her “in fee simple and life estate” and the land title register corrected accordingly. In the alternative, she asked for declarations that the transfer, mortgage and Family Court agreement were invalid, and an order for specific performance of the agreement between her, [DPIPL] and Dr Ironside, by way of a registered transfer of the property to her. In addition, she sought damages against Dr Ironside, [DPIPL], and [NAB].
[11] Part of the statement of claim concerned chattels seized by the trustee in bankruptcy. They included a horse and a motor vehicle, both of which the appellant said were owned by her sister, who had agreed to give the appellant “life use” of them. The trustee in bankruptcy had also seized a horse float, some smaller personal items belonging to [Ms George] and a rocking horse belonging to [Ms George]’s son. [Ms George] pleaded that the trustee executed warrants (one assumes for the purpose of recovering property), in the process “breach[ing] legal privilege”, resulting in “valuable stolen jewellery and damages to the Moggill property”. A further allegation is that the trustee refused to allow her to take action to set aside a costs assessment notice, in respect of legal fees which were the cause of her bankruptcy, and but for which she could achieve a discharge.
[12] [Ms George] sought specific performance of the agreement to allow [Ms George] life use of the horse and vehicle, the setting aside of the consent orders made for transfer of that property to the trustee with a declaration that it remain vested in her sister, not the trustee, and return of the rocking horse. At the hearing before the learned primary judge, however, in order to deflect the argument about bankruptcy jurisdiction, [Ms George] disavowed other forms of relief sought in the statement of claim. They were: a declaration that the Moggill property did not vest in the trustee in bankruptcy; declarations that the vehicle and the horse float vested in her (the former as trust property, the latter as “tools of trade”); declarations that warrants were illegally executed and that a solicitor for the trustee in bankruptcy “breached legal privilege”; a declaration that she “be discharged” in February 2009, three years after she became bankrupt; an order for return of her personal items; damages resulting from the seizure of assets; the setting aside of the costs assessment notice which had caused her bankruptcy; and a declaration that she was illegally detained (the connection of which to the pleading is obscure).
33 In the meantime, on 29 October 2008, Mr Fletcher filed an application in the Federal Magistrates Court seeking ex parte orders that:
(a) a search warrant be issued under s 130 of the Bankruptcy Act to allow him and his agents to enter the Moggill property in order to search it and obtain documents and property forming part of the bankrupt estate;
(b) he be permitted to seize all computers and all filing cabinets at the premises for the purpose of examining them and their contents to see whether they contained any documents or information that Ms George had withheld from him; and
(c) he be permitted to seize the Toyota Landcruiser, Stellamarra and any other livestock or assets that he had reason to believe formed part of the bankrupt estate.
34 The application was supported by an affidavit sworn by Mr Fletcher to which numerous documents were annexed. At [47] Mr Fletcher deposed that:
[a]s a result of my investigations and that of my solicitors I now suspect that the Bankrupt has been hiding assets from her estate and I am concerned that if I request that she delivers the black Hanoverian mare known as Stellamarra and the Landcruiser to me she will try and transfer or hide them. I am also concerned that the Bankrupt has other assets and bank accounts which she may have registered into other people’s names prior to or after the bankruptcy which she has not accounted for and to [sic] which are now assets of the bankrupt estate.
35 Mr Fletcher said he was making the application ex parte because he was genuinely concerned that if Ms George had notice of it she would hide information and property, especially the mare.
36 On the same day the application was filed, the federal magistrate ordered that the search warrant be issued and then adjourned the application until 5 November 2008: Fletcher v George [2008] FMCA 1624. On 30 October 2008 Ms George unsuccessfully applied to have the warrant set aside: Fletcher v George (No. 2) [2008] FMCA 1625. On 31 October 2008 Mr Fletcher successfully applied for a further warrant to search Ms George’s property and seize assets: Fletcher v George (No. 3) [2008] FMCA 1626.
37 On 3 November 2008 Mr Fletcher returned to the court to make an oral application to examine Ms George about the location of some of the property, including two horses, which she maintained she did not own. She claimed to have had “instructions” from “the true” owners of this property not to divulge its whereabouts. The federal magistrate told Ms George that “they” were going to ask her questions and that if she did not answer them or he thought she was prevaricating or telling him lies he would stand the matter down and have her “held over” until the morning. Ms George persistently refused to answer questions about the whereabouts of the horses, even when directed by the federal magistrate to do so. She admitted to having made arrangements to remove them from the property. She claimed to have done so on the instructions of her sister. She repeatedly refused to name the person who took them. She later claimed not to know where they were. She said she could find out by making a phone call, but would still not tell his Honour
38 His Honour noted that in circumstances where a bankrupt has concealed or removed property with a view to preventing or delaying possession of it, the court may issue a warrant for her arrest and commit her to gaol (see s 78 of the Bankruptcy Act). He referred to Ms George’s persistent refusal to answer questions, even when directed. He then referred to some other material, presumably derived from Mr Fletcher’s first affidavit, and said he was persuaded that Ms George was intentionally seeking to conceal and remove two chattels the subject of contention in the application. Consequently, he said, it was appropriate that, until the questions were answered, she should be “held over”. He then directed that a warrant be issued for her to be held at the Brisbane watch house until the following morning. See Fletcher v George (No. 4) [2008] FMCA 1627 (Fletcher v George (No. 4)).
39 The next day Ms George continued to refuse to answer his Honour’s questions about the location the horses, maintaining that she was relying on “client privilege”. Consequently, his Honour ordered that a warrant of committal again issue, remanding her to the Brisbane watch house until 10.00 am on 5 November 2008. In fact, Ms George remained in custody until 12 November 2008.
40 In the meantime, on 7 November 2008 Mr Fletcher filed an amended application in the Federal Magistrates Court (Mr Fletcher’s application) seeking declarations that, as at 24 February 2006 (the date of Ms George’s bankruptcy), the legal and beneficial ownership of the Moggill property vested in him as trustee and that there was no trust in favour of Ms George’s son or any other person. He also sought declarations that ownership of the Toyota Landcruiser and the mare, Stellamarra, vested in the trustee of the bankrupt estate; that the heads of agreement remained valid and enforceable; and that a deed of settlement dated 28 October 2008 between him as trustee and Ms Wilson also remained valid and enforceable. The deed of settlement related to Stellamarra and stated that Ms George had asked Ms Wilson to become the registered owner of the horse to prevent Mr George claiming an interest in it. Mr Fletcher’s position was that all the property was property of the bankrupt and that the “trust” was a sham. The evidence he relied upon was largely contained in his 29 October 2008 affidavit. The central question in the proceeding before the federal magistrate, therefore, was whether that property was held on trust as Ms George had claimed.
41 On 12 November 2008 his Honour released Ms George on her undertaking that the mare be kept safe and secured and not be subject to any transfer, encumbrance or dealings until further order. He then stood over Mr Fletcher’s application until 18 November 2008. He also added as respondents NAB, Ms Wilson, Dr Ironside, and DPIPL.
42 On 18 November 2008 his Honour refused an application by Ms George to stay Mr Fletcher’s application pending the hearing and determination of the Queensland Supreme Court proceeding. At the same time he issued directions to the effect that the amended statement of claim Ms George had filed in the Queensland Supreme Court stand as her pleading on Mr Fletcher’s application, subject to such additions or variations as she might advise on or before 21 November 2008. And he directed that the documents filed in the Supreme Court proceeding be taken to be filed in the Federal Magistrates Court proceeding. He also ordered the joinder of Richard Siebert, who, supported by Ms George, claimed that he was the owner of some of the chattels on her land, including one of the horses and the Lara horse float. Ms George applied for leave to appeal from the federal magistrate’s decision of 18 November 2008 to refuse the stay but her application was unsuccessful: George v Fletcher (Trustee) [2008] FCA 1848.
43 On 3 December 2008, Mr Fletcher amended his application to add an alternative order in the event that a trust in Alexander’s favour was found in the Supreme Court proceeding, and alternative orders in relation to Stellamarra.
44 On 5 December 2008 his Honour made declarations by consent that Mr Siebert was the owner of various items of property, including the horse known as Cabernet. His Honour also ordered by consent that the Lara horse float vest in the trustee. At that point he gave leave to Mr Siebert to withdraw from the proceeding with no order as to costs.
45 Mr Fletcher’s application came on for hearing before the federal magistrate on 8 December 2008. His Honour indicated that he proposed to hear the claims relating to Stellamarra and the Landcruiser on a summary basis. Mr Coulsen, who appeared for Mr Fletcher, then made an oral application that Mr Fletcher’s application for a declaration that no trust existed over the Moggill property also be determined summarily, supported by counsel for the NAB and counsel for DPIPL and Dr Ironside. With some encouragement from the federal magistrate, counsel for DPIPL and Dr Ironside also applied orally for summary judgment. That application apparently related to claims Ms George had made that DPIPL entered into the mortgage to NAB in breach of its constitution and forged certain internal documents. His Honour delivered judgment on those claims on 9 December 2008. The reasons do not appear to have been published, but the inescapable inference from the transcript of argument and the remarks made by his Honour after judgment was given is that he dismissed the claims.
46 The hearing lasted for three days. On the second day Ms George applied for his Honour to disqualify himself on the ground that there was a reasonable apprehension of bias. The application was refused. On the third day his Honour reserved his decision.
47 On 23 December 2008, Ms George filed in the Federal Magistrates Court proceeding an “amended Statement of Claim”, ostensibly the same as the one she filed in the Supreme Court the same day.
48 On 9 February 2009 the federal magistrate pronounced judgment on the application for summary judgment: Fletcher v George & Ors (No. 6) [2009] FMCA 69 (Fletcher v George (No. 6)). His Honour found that, “[e]xcept in respect of the issues between [the] parties concerning the alleged declaration of trust relating to personalty”, Ms George had no real prospect of successfully defending the trustee’s claims because her claims were “untenable at law”. In the case of NAB, he noted that the statement of claim included no allegation that the bank knew that DPIPL or Dr Ironside intended to defeat or encumber the Moggill property contrary to Ms George’s wishes, no matter in what capacity she owned the land and on the pleadings alone was dubious of how Ms George could overcome NAB’s apparently indefeasible interest. He dismissed her claim against NAB as having no reasonable prospects of success, noting that the title to the land was held by DPIPL subject to a registered mortgage in NAB’s favour, and his earlier finding that “the interests” were not subject to any trust in favour of Ms George’s son. His Honour went on to make orders in the nature of declarations as follows:
(1) the heads of agreement dated 19 February 2008 remain valid and enforceable.
(2) as at 24 February 2006 the legal and beneficial ownership of the Moggill property vested in [Mr Fletcher] as trustee of the bankrupt estate.
(3) as at 24 February 2006 the legal and beneficial ownership of the Toyota Landcruiser vested in [Mr Fletcher] as trustee of the bankrupt estate.
(4) as at 24 February 2006 the legal and beneficial ownership of the mare known as Stellamarra vested in [Mr Fletcher] as trustee of the bankrupt estate.
(5) the Deed of Settlement between [Mr Fletcher] and Susan Jane Wilson dated 28 October 2008 remained valid and enforceable and that it be performed.
49 His Honour then made consequential orders and adjourned for trial the issues arising from paragraphs 3, 4 and 10 of Mr Fletcher’s application. Paragraph 3 sought a declaration that there was no trust in favour of Alexander George or anyone else over the Moggill property or any of the property stored or located on it. In the alternative that the court found there was a trust in favour of Alexander, paragraph 4 sought (in effect) an order for a lump sum monetary payment by Ms George and a declaration to the effect that the transactions between Ms George and DPIPL were under value. Paragraph 10 sought a declaration that as at 24 February 2006 the legal and beneficial ownership of items listed in a schedule to the application vested with the trustee in bankruptcy.
50 Ms George obtained a grant of leave to appeal and a Full Court upheld her appeal in part, finding that certain matters were not suitable for summary judgment. The majority held (at [76]) that in respect of the Moggill property and the heads of agreement there were substantial issues of credit to resolve, the resolution of which depended on a range of difficult issues: George v Fletcher (Trustee) [2010] FCAFC 53 (George v Fletcher (Trustee)). The Full Court set aside the first two orders made on 9 February 2009 and directed that so much of the proceeding as concerned the claim for relief in respect of the heads of agreement and the Moggill property be remitted to the Federal Magistrates Court for hearing and determination according to law.
51 In her notice of appeal Ms George had also made allegations of bias against the federal magistrate. The Full Court unanimously rejected the allegations. Ryan and Logan JJ, with whom Marshall J agreed on this question, found (at [89]) that there was no evidence which would support a finding of actual bias. Their Honours then went on to consider whether the federal magistrate erred in declining in the course of the trial in December 2008 to disqualify himself because of a reasonable apprehension of bias. For this purpose their Honours considered the transcripts of the directions hearing on 5 December 2008 and of the trial of the applications for summary judgment. With respect to the directions hearing their Honours said (at [91]) that the transcript revealed “nothing more than an earnest endeavour by the learned federal magistrate to determine whether the matter was ready for trial on 8 December and to identify the issues for trial”. As for the trial, their Honours found (at [92]) that there was no basis for concluding that a fair-minded lay observer could reasonably apprehend or suspect that his Honour had prejudged the case.
52 Ms George applied for a stay of the Full Court’s orders in anticipation of applying to the High Court for special leave to appeal. The application was refused: George v Fletcher (Trustee) (No 2) [2010] FCA 655 (George v Fletcher (Trustee) (No 2)).
53 The matter returned to the federal magistrate in June 2010 at which time he listed Mr Fletcher’s application for hearing on 20 September 2010.
54 On 8 June 2010 Ms George filed an interlocutory application (later amended on 17 June 2010 and 5 July 2010) in which she sought a number of declarations and orders which cut across the matters raised in Mr Fletcher’s application.
55 On 16 July 2010 Ms George filed another interlocutory application, seeking that the federal magistrate transfer the proceeding to the docket of another federal magistrate. Her affidavit in support was a mixture of evidence and argument. In it she referred to a Full Court judgment in Clampett v Attorney-General of the Commonwealth (2009) 181 FCR 473 (Clampett). In that case the federal magistrate had charged, convicted and imposed a custodial sentence on two litigants (Mr Clampett and Ms Noah) for contempt in the face of the court. The Full Court (Black CJ presiding) held that the federal magistrate’s discretion to hear the contempt charges himself miscarried. The judgment received some publicity in the press, which at some stage came to Ms George’s attention and which appears to have inspired the interlocutory application.
56 Ms George also expressed concern that the federal magistrate had taken an adverse view of her as a result of her success in the Full Court. She said that, since the matter had been returned to his Honour, he had “continued to ignore the rules of the court” and to display “a prejudicial view”, resulting in a denial of natural justice.
57 Mr Fletcher opposed the application. He submitted that the matter had been decided by the Full Court and that nothing Ms George had raised had occurred after the date of that judgment.
58 His Honour heard both applications on 16 July 2010. He dismissed the disqualification application, though not on the basis upon which Mr Fletcher had opposed it: Fletcher v George & Ors (No. 7) [2010] FMCA 541 (Fletcher v George (No. 7)). He dismissed the other application, in part because it sought to agitate matters he had already decided on 9 February 2009, which decisions were not set aside by the Full Court: Fletcher v George & Ors (No. 8) [2010] FMCA 542 (Fletcher v George (No. 8)).
59 On 19 July 2010 Ms George applied for leave to appeal that decision and several others. She also applied for a stay of various orders and for the matter to be transferred to the docket of a different magistrate. Reeves J heard the application in August 2010. He refused the stay and reserved judgment on the application for leave to appeal, saying he would give his judgment “in due course”. He did so on 4 August 2011 (after the federal magistrate handed down his judgment), dismissing the application as futile.
60 The hearing of Mr Fletcher’s application began before the federal magistrate on 27 September 2010 and concluded, after 12 days of hearing, on 8 December 2010. Judgment was pronounced on 27 July 2011. His Honour came to the same conclusions on the existence of the trust as he had reached in the summary judgment and upheld the validity of the heads of agreement, rejecting Ms George’s allegation that she had signed them under duress. His Honour then made declarations in the following terms:
1. The Heads of Agreement dated 19 February 2008 and exhibited at WJF-8 to the Affidavit of William John Fletcher sworn 29 October 2008 is valid and enforceable as between the parties to that Heads of Agreement;
2. The legal beneficial ownership of Lot 13 on SP145714, County of Stanley (The Land), Parish of Moggill, Title Reference 50440445 (the "Land") vests in the Applicant and is subject only to the registered interest of the Fourth Respondent, National Australia Bank Limited;
3. No trust exists in favour of Alexander George, the First Respondent or any other person over the Land, or any chattels stored at, located at, or seized from the Land;
4. All chattels seized from the First Respondent including a registered horse float, registration number 938QMZ VIN 6T9T27V97603EZ050 vest with the Applicant subject to the orders below;
He then proceeded to make orders as follows. The horse float referred to in these orders (as in the last-mentioned declaration) is the Lara horse float.
5. The Registrar return to the First Respondent the watch currently being held by the court as an exhibit, which the First Respondent claims to be her late mother’s;
6. The Registrar return to the Applicant all items of jewellery, other than the watch referred to in order 5, which are currently being held by the court and which exhibits vest with the Applicant;
7. The First Respondent forthwith deliver to the Applicant the horse float referred to in paragraph 4 herein and execute any such instruments as may be required to effect a transfer or registration within 7 days of their submission;
8. In default of the First Respondent failing to comply with the order contained in paragraph 7, the Registrar is directed to sign all documents and do all things necessary in the place of the First Respondent to give effect to order 7;
9. The First Respondent pay all other parties’ costs of and incidental to the application including reserved costs to be assessed.
10. Liberty to apply.
61 We now turn to consider the grounds of the appeal as set out in the amended notice of appeal and, where necessary, as expanded in submissions.
62 The first ground of appeal raises issues about the integrity of the hearing. The amended notice of appeal recited numerous ways in which Ms George had allegedly been denied procedural fairness.
63 The first complaint was that the federal magistrate “[failed] to provide a fair and just mechanism for adjudication of the issues in dispute”.
64 The second complaint concerned the federal magistrate’s conduct of the hearing.
65 The third was of discriminatory treatment. Ms George alleged that his Honour had treated her less favourably than the other parties.
66 Fourthly, Ms George complained that his Honour “failed to adjudicate at all, or adequately”, on her claims. She alleged that several issues (matters of insurance, a dispute concerning the payment of a veterinary bill and an application that the bankruptcy be discharged) were not resolved.
67 Fifthly, Ms George complained that his Honour made findings on issues that were not agitated and that he adjudicated on issues at hearings in her absence and so, we would infer, denied her opportunities to be heard.
68 Sixthly, Ms George alleged that his Honour failed to give “due and proper consideration” to the evidence she called.
69 Finally, Ms George complained about alleged errors of fact, incorrect paraphrases of transcript, and other alleged mistakes against her interests and contended that his Honour made findings of fact that were so unreasonable that no reasonable court could have made them. In the way this ground was developed in submissions, it was largely a complaint that the federal magistrate was biased against Ms George or, more accurately, that there is a reasonable apprehension that he was. If the bias point is a good one, it will dispose of the appeal, regardless of whether there is any error in the federal magistrate’s reasons and there will have to be a new trial: Concrete Pty Ltd v Parramatta Design & Developments (2006) 229 CLR 577 (Concrete v Parramatta Design) at [117] per Kirby and Crennan JJ (Gummow ACJ agreeing at [3]); Duong v Tran [2010] NSWCA 280 at [8] per Giles JA, Sackville AJA and Harrison J agreeing at [78] and [79] respectively; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Nicholls) at [80].
70 Ms George’s submissions blurred the line between actual and apprehended bias. She often spoke in terms of actual bias but relied on authorities dealing with apprehended bias. Bias can arise in various ways. In Ms George’s written submissions she raised two of them: prejudgment and association. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72]. Generally speaking, it is very difficult to make out. The question of actual bias can be put to one side, though, because Ms George need not go that far. The bar is much lower for apprehended bias. If she proves that, (absent any question of waiver) she will succeed.
71 The first question, then, is whether there is a reasonable apprehension of bias. The second is whether Ms George should be taken to have waived her right to object.
72 To establish apprehended bias it is necessary to show that a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the questions in dispute. See, e.g. Livesey v NSW Bar Association (1983) 151 CLR 288 (Livesey), Johnson v Johnson (2000) 201 CLR 488 (Johnson), Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner). The hypothetical observer is not to be assumed to have a detailed knowledge of the law, but whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice: Johnson at [13], [53] and [80]. The hypothetical observer is assumed to know the issues to be decided and the circumstances in which they came to be decided: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87. As Kirby J observed in Johnson at [53], acting reasonably, the hypothetical observer would not come to a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their legal representatives taken out of context.
73 The test is easy to articulate but not always easy to apply. Two steps are involved. First, it is necessary to identify what it is said might lead the judge to decide the case other than on its merits. Secondly, it is necessary to show a logical connection between the suggested reason and the feared deviation. See Ebner at [8].
74 Before turning to the grounds of appeal we will deal with two important matters not directly raised by the amended notice of appeal but canvassed in submissions.
75 In her written submissions Ms George asserted:
The Federal Magistrate has previously disclosed his interest of friend William John Fletcher being the first respondent and therefore this precludes him from adjudicating upon the matter as he has stated “Bill is well known to him” reflecting bias towards one particular party.
76 The submission contains no transcript reference to support it and we were taken to none in argument. But we take it Ms George was alluding to remarks made by his Honour on 5 November 2008 where the transcript records the following exchange:
MR COULSEN: … And, your Honour, obviously to allay Mr Lewis’s fears, the trustee has got to act in the best interests to preserve the assets and, in so far as any undertaking is necessary, an undertaking will be proffered, your Honour.
FEDERAL MAGISTRATE: Mr Coulsen, Mr Fletcher is a registered insolvency trustee well known to these Courts- - -
MR COULSEN: That’s so, your Honour.
FEDERAL MAGISTRATE: - - -and his reputation, with all respect to the parties, I’m not prejudging any of these matters, but his reputation precedes him. He’s a very well respected, very experienced liquidator. He doesn’t act irrationally, he acts commercially. He won’t - I’m satisfied he won’t act in a manner which is designed to prejudice the assets that he has to liquidate for the benefit of the creditors. So unless there’s some evidence put before me to show that he’s going to act irrationally or do something that is going to damage the value of the assets, I’m not inclined to accept any submissions to that effect.
77 Mr Lewis was appearing for Ms Wilson, who (initially) did not consent to Mr Fletcher taking possession of Stellamarra and was concerned that, if he did, she would be cared for and not disposed of before the question of ownership had been resolved. These were presumably the fears to which Mr Coulsen was alluding. His Honour emphasised that he was not then dealing with the question of ownership and was simply wishing to secure the asset pending the resolution of the question after trial.
78 Where apprehended bias is alleged based on the relationship between a decision-maker and a party, there must be “something in the nature or the extent of the association which leads that bystander to conclude, whether for friendship, love, money, fear, favour or otherwise, that the [decision-maker] might be influenced by it”: Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 222 per Merkel J. Here, the only material before the Court indicates that the association between the federal magistrate and Mr Fletcher was a professional, not a personal or financial one. There is nothing in the nature of this association which might lead a fair-minded lay observer to conclude that his Honour might be influenced by the association to decide the issues in dispute in a particular way. It follows that the submission that he was biased because of his association with Mr Fletcher must be rejected.
The federal magistrate’s decision of 3 November 2008
79 This complaint relates to the federal magistrate’s decision to gaol Ms George and to the reasons his Honour gave at the time.
80 It involves two issues: whether there was a reasonable apprehension of bias and (no question of necessity, consent or special circumstances having been raised) whether Ms George should be taken to have waived her right to object to the conduct now complained of.
81 Waiver aside, the principle is best encapsulated in the following passage from Livesey (at 300), a case in which two of the three members of the bench of the NSW Court of Appeal constituted to hear the Bar Association’s summons to have Mr Livesey struck from the roll of barristers had (in a previous case) made adverse credit findings about one of his witnesses:
In a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
82 Here, Ms George was a critical witness whose evidence was of significance on a question of fact which constituted a live and significant issue in the case. That issue was whether before her bankruptcy she had created a trust in favour of her son. The resolution of that issue depended on whether or not the federal magistrate accepted her as a witness of truth.
83 The necessary apprehension, of course, is that the judicial officer might not decide the case impartially, not that he might decide it adversely to one party. A previous decision of the judicial officer might generate such an expectation. This does not mean, however, that the judicial officer will not approach the issues in the case with the requisite degree of objectivity: Re JRL; Ex parte CJL (1986) 161 CLR 342 (JRL) at 352. The mere fact that a judge has made interlocutory decisions that adversely affected a party does not mean that he or she is precluded from hearing the principal proceeding, although judges are usually circumspect in the way they express themselves so as to avoid any appearance of bias: Southern Equities Corporation Ltd (in liq) v Bond (2000) 78 SASR 339 (Southern Equities) at [129] per Bleby J, Olsson J agreeing. A judge has a duty to sit; judicial officers should not accede too readily to suggestions of appearances of bias and so encourage parties to forum-shop: JRL at 352. But a party who believes on reasonable grounds that the judge has decided in advance to disbelieve his or her evidence cannot have confidence in the result of the proceedings: R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 265. In Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Mahoney JA (at 442E), with whom Meagher JA agreed (at 447G), observed that a previous decision on the same fact or on the credibility of a relevant witness will “normally, if not inevitably” give rise to a reasonable apprehension of bias.
84 In paragraph 42 of her affidavit in support of the July 2010 disqualification application Ms George said (without alteration):
In the circumstances that the application in case relates to the Magistrates attempts to wrongly detain me in gaol. It would be seriously unjust and a denial of Natural Justice if he were allowed to hand down a summary judgment in the matter given he has already expressed prejudicial views on the issue and the directions made by the Chief Magistrate Black on the issue.
(Emphasis added.)
85 The “directions” said to have been made on the issue are the reasons in Clampett. The reference to Chief Magistrate Black is obviously a reference to Black CJ. The use of the adjective “summary” to describe the final judgment is obviously an error.
86 The submission is poorly expressed but it seems reasonably clear that Ms George’s concern was that his Honour had already uttered views about her case or issues that would arise for determination in her case that were prejudicial to it.
87 The judgment in Clampett was published on 28 October 2009 – two months after the Full Court had reserved its judgment but seven months before it pronounced judgment. In his reasons for refusing to disqualify himself in July 2010 the federal magistrate said that Clampett was irrelevant: Fletcher v George (No. 7) at [12]. With this observation we respectfully agree. His Honour then said that Ms George’s interpretation of what happened when she was examined (on 3 November 2008) was “simply wrong”. He explained (at [13]):
there is, in my view, nothing that any fair-minded lay observer, fully informed of the facts, in this instance, would conclude that I made any adverse finding in respect of the bankrupt by reason of orders that were necessarily made, because of the refusal to answer questions that she was lawfully required to answer, pursuant to the provisions of the Bankruptcy Act.
88 There are a number of difficulties with this passage, not least with the syntax. It seems that his Honour was intending to convey that a fair-minded lay observer, fully informed of the facts, would not conclude that he had made an adverse finding because of the orders he was bound to make. If so, his conclusion was in error. In the first place, the test is not whether a fair-minded lay observer would conclude that an adverse finding had been made. It is whether a fair-minded lay observer might reasonably apprehend that he might not decide the issues impartially. In the second place, Ms George’s complaint was not about (or merely about) the orders but with the views he had expressed in his reasons for making the orders. In the third place, his Honour did make a finding adverse to Ms George in his judgment on 3 November 2008 (Fletcher v George (No. 4)). He had made an adverse finding on her credit, the single most important issue in the proceeding. At [11]–[13] of his reasons his Honour said:
[11] In this case the bankrupt has been directed to answer two questions which she point blank refuses to answer. In my view the circumstances of this case would ordinarily justify the issue of a warrant for the recovery of the chattels as there is a good basis to believe that the bankrupt, by the conduct of her affairs, has engaged in deceitful conduct which in this case might [sic] be not only could, but is likely to, lead to efforts on her part to conceal or remove the property.
[12] The title of the goods is in issue. She has been party to the removal. She knows who took the goods but not only that, she has a history of poor form in relation to these sorts of transactions. One only needs to look to the judgment of Barry J in the Family Court proceedings where at p.12 in para.41 of his Honour’s judgment, dealing with an issue in dispute there, he drew particularly adverse inferences about the manner in which the bankrupt conducted herself. In that instance he found that in relation to a certain transaction the bankrupt received $125,000 from the sale of property which she then claimed (but he says at the worst that version was false), and she in fact received a sum of $66,000 as referred to in exhibit 19. At best, he described her as being a willing party to a fraud on the revenue of South Australia. He was not prepared to accept that the solicitors involved would have been complicit to any such fraud.
[13] In any event, I am persuaded that in this case the bankrupt is intentionally seeking to conceal and remove two chattels which are the subject of contention in this application and so in my view it is appropriate that until I get an answer to these two questions that were asked this afternoon, you be held over.
89 These remarks strongly suggest that his Honour had formed an adverse view of Ms George’s credit. The use of the euphemism “poor form” does not remove the clear impression reached on reading the judgment that his Honour had decided that she was a deceitful person. The observations at [12] about what Barry J said in the Family Court proceedings were otherwise entirely gratuitous. Their only logical purpose could have been to bolster his Honour’s views about her. The unqualified statement at [13] amounted to a finding that Ms George was deliberately hiding relevant information from the court.
90 In our view, these remarks might well have caused an informed fair-minded lay observer to think that his Honour might not bring an impartial mind to the assessment of Ms George’s credibility. We appreciate that his Honour’s remarks were made in the context of s 78(1)(d) of the Bankruptcy Act, which empowers the court to commit to gaol a bankrupt who “has concealed, or, without the permission of the trustee, has removed, any of the property of the bankrupt”. If the federal magistrate came to the conclusion that the bankrupt was refusing to answer questions because she was concealing the whereabouts of property forming part of the bankrupt estate, it is inevitable that he would have formed an adverse view about her credit. The fact that he was bound to make these judgments, however, does not mean that an apprehension of bias might not then arise if he went on to decide the substantive case.
91 In Southern Equities, Bleby J (who, with Olsson J, made up the majority) said at [129]:
it should not be assumed that, merely because a judge has been responsible for the pre-trial case management of a particular case and will obviously have made decisions adversely affecting one party or another, the judge is necessarily precluded from conducting the trial. Indeed, there would be few interlocutory applications, a decision on which would be likely to give rise to a reasonable apprehension of bias. This is particularly so because most contested applications are decided on affidavit evidence where either the facts are not in dispute or where, as in the case of an interlocutory injunction, the judge merely has to be satisfied that the facts deposed to raise a serious question to be tried. Usually, findings on such issues will be cast in language which could not possibly found a successful submission of apprehension of bias.
92 The present is not such a case.
93 Southern Equities was concerned with an application for a freezing order where, in his reasons for judgment, the primary judge made findings about the defendants’ credit and findings of fact about the movement of funds between different corporate entities. A majority of the Full Court of the South Australian Supreme Court held that these findings created a reasonable apprehension of bias. Olsson J observed (at [50]) that, where in an interlocutory hearing specific findings of fact on the available evidence must be made, even if those findings are expressed to be provisional, they might reasonably engender an apprehension of prejudgment as to other issues at trial if they are made by the trial judge. But, he said, much will depend on the precise nature of the findings and the manner in which they are expressed. Unfortunately, in this case, the nature of the findings and the manner in which they were expressed justify Ms George’s complaint. We are satisfied that the remarks the federal magistrate made in Fletcher v George (No. 4) gave rise to a reasonable apprehension of bias.
94 The question now is whether Ms George should be taken to have waived her right to object.
95 It is well accepted that if a party to civil proceedings or the party’s legal representative knows the circumstances that give rise to the disqualification but acquiesces in the proceeding by not promptly taking objection, it will likely be held that the party has waived the objection: Nicholls at [76] citing: Smits v Roach (2006) 227 CLR 423 at [43] per Gleeson CJ, Heydon and Crennan JJ and [61] per Gummow and Hayne JJ (see also Kirby J at [125]); Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ, 577–9 per Dawson J, 587–8 per Toohey J. In Vakauta v Kelly Brennan, Deane and Gaudron JJ explained at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.
96 In Vakauta v Kelly the objection was only taken on the appeal. Here, the point was taken before final judgment, but after the result of the summary judgment was known and the allegation of apprehended bias made to the Full Court (for different reasons) had been unanimously dismissed. The principle is the same. A litigant is not entitled to keep the point up her sleeve, so to speak. As the plurality went on to say in Vakauta v Kelly at 572:
The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
97 These cases all involved parties who were legally represented. Indeed, the statement of principle made in the joint judgment in Vakauta v Kelly referred to parties with legal representation. Nevertheless, waiver affects represented and unrepresented litigants alike: Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 422; Preston v Carmody (1993) 44 FCR 1 (Preston) at 14; Loveridge v Emery [2011] FamCAFC 226, although, as Wilcox J observed in Preston, where a party is unrepresented, it is always necessary to consider whether the party had the requisite knowledge to found waiver.
98 In this case we are satisfied that Ms George had the requisite knowledge. She was present in court when his Honour made the remarks. She knew she had the right to object. Indeed, a month later she asked him to recuse himself based in part on what she said were findings of credibility made on 29 October 2008 when his Honour determined the ex parte application for the issue of the search warrant. But apart from the order for her imprisonment she did not then complain of anything he had said or done on 3 November 2008 when the offending remarks were made. Nor did she complain about this to the Full Court in the appeal from the summary judgment. In fact, as we have already observed, she did not raise the point until nearly two years had passed. In the circumstances she should be taken to have waived the objection.
Failing to provide a fair and just mechanism for adjudicating the issues in dispute
99 This is a complaint that five exhibits went missing “without any plausible explanation”. Ms George insinuated that the respondents (or one of them) took them because, unlike her, they were not always supervised by security staff. The complaint is baseless and must be dismissed.
100 In this respect Ms George’s complaints against the federal magistrate were numerous. They involved:
(a) taking over the prosecution of her case in a manner that was detrimental to it;
(b) refusing to issue subpoenas she had requested for the production of documents and the attendance of witnesses;
(c) restricting her rights to representation and cross-examination, and taking over her cross-examination;
(d) refusing her request for two witnesses to appear in person, rather than by telephone;
(e) denying her a timely or fair right of response to evidence adduced by the other parties;
(f) abusive, intemperate and disrespectful language;
(g) rejecting evidence she wished to tender; and
(h) refusing to address disclosure requirements.
101 Before going any further, we would make a number of observations that provide some relevant context.
102 First, Ms George presented particular challenges for the federal magistrate. She was at times obdurate and often querulous. Doubtless she tested the patience of everyone in the courtroom.
103 Secondly, the trial was taking an inordinately long time. This placed considerable pressure on a busy court.
104 Thirdly, the Federal Magistrates Court, like the Federal Court, operates on a docket system. As Callinan J explained in Concrete v Parramatta Design at [174], cases are assigned to individual judges who oversee and make directions concerning all interlocutory matters arising in the assigned cases. Documents, including affidavits, will be filed in advance of the hearing and will almost always be read before it starts. His Honour continued (at [175]):
This system has its disadvantages and dangers. On the one hand, the trial judge will be well educated in many of the details of the case on each side by the time that the hearing starts. But on the other hand, it may sometimes be difficult for the trial judge, apparently fully conversant with the facts and issues, not to have formed some provisional view at least of the outcome of the case.
105 Finally, we do not underestimate the challenges posed by some self-represented litigants or this litigant in particular. Although people are entitled to conduct their own cases and courts must be specially vigilant to perform their functions correctly in cases presented by litigants in person (Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 per Kirby P, Sheller JA agreeing), there are limits. As Mahoney JA pointed out in Ley v R. De W. Kennedy (Finance) Pty Ltd (unreported, New South Wales Court of Appeal, Moffitt P, Reynolds and Mahoney JJA, 21 May 1975):
[T]hat right must not be seen as giving … an absolute right to conduct a case, or to conduct the case in the manner and for the time that such a person chooses, whatever that choice may be. That right must be balanced against the rights of the other parties who are involved in the litigation, including the right, as I have put it, not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court’s time wasted.
...
What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that case: but it should be clear that it is proper that steps be taken to that end.
If, for example, it appears to the tribunal that a party is, because of emotional involvement in the case or for any other reason, not capable of conducting the case adequately or properly, or refuses so to do, it will be within the power of the court to make appropriate orders to protect the interests of that party and those who are involved in the litigation by or with him and to prevent the improper waste of public time and money.
106 We now turn to Ms George’s specific complaints.
Taking over the prosecution of the case
107 The federal magistrate had a duty to ensure that the evidence was confined to the issues, that the trial was conducted and completed expeditiously, and that the trial was fair to all parties. Section 42 of the Federal Magistrates Act 1999 (Cth) (FM Act) provides that:
In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.
108 As the High Court said in a different context, there is a public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 116 ALR 625 at 629.
109 Whilst the questioning of witnesses is ordinarily left to the parties and it is thought that justice will more likely be achieved if the judge does not participate, there are circumstances where it is appropriate for a judge to intervene. That will depend on whether, for example, it is necessary to “clarify answers, remove obscurities, and the like” and what may be required to ensure the fair conduct of the trial: Aardvark Security Services Pty Ltd v Ruszkowski (1993) 13 NSWCCR 1 per Mahoney JA at 14.
110 In substance, the complaint Ms George makes about his Honour taking over the prosecution of her case is a complaint that his Honour would not allow her to pursue the matters she wanted to pursue whether through the subpoena process, the calling of evidence or in cross-examination and regardless of the limited issues before the court.
111 In none of these respects do we consider that his Honour exceeded the bounds of his responsibilities.
112 Section 63 of the FM Act permits the court to put a question to any witness if it is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceeding. On a fair assessment, that is all his Honour was doing.
113 On 10 September 2010 Ms George applied to the court for leave to issue 24 subpoenas to give evidence. Leave was not given at the time. The complaint is largely misconceived.
114 During the morning of the first day of the trial the federal magistrate asked the other parties for the names of the witnesses whose evidence they were relying on and then took Ms George through the list of witnesses she wanted to subpoena. His Honour observed that several of those witnesses were witnesses for the other parties and she would be able to cross-examine them. Indeed, of the witnesses Ms George said she wished to subpoena nine of them were called by another party.
115 Ms George apparently considers that refusing to give her leave to issue subpoenas to witnesses who had sworn affidavits for the other parties is indicative of prejudice. In this respect, she is mistaken. The witnesses were made available for cross-examination, giving her the advantage of asking them leading questions and contradicting their evidence, advantages she would not have enjoyed if she had had to call them herself.
116 On the first day of the hearing the federal magistrate asked Ms George to outline the evidence she wished to call from the witnesses she wanted subpoenaed. He then granted her leave to call Mr Lethbridge, Rachale [sic] Mitchell, Robert Colussi and Graham Robinson and reserved the question of whether she should have leave to subpoena Bernard Whebell (who was apparently DPIPL’s accountant), Thomas Whit and Nicholas Humzy-Hancock, Mr Fletcher’s solicitor. Later, he refused her leave to subpoena Mr Whebell and she advised that she no longer wished to call Mr Humzy-Hancock (since she would not be permitted to cross-examine him). On 28 September 2010, his Honour gave her leave to issue a subpoena to Bruce Cassidy, the Commissioner of Stamp Duties. On 1 December 2010, Ms George advised the court that she had attempted to file the subpoena to Mr Cassidy but that the Registry had refused to stamp it. His Honour did not deal with the issue on that day and on 3 December 2010 he revoked the grant of leave. On 1 December 2010 he also revoked the leave to grant the subpoena to Mr Colussi, and refused Ms George leave to call Jade Riddell, whom Ms George claimed swore a misleading affidavit on behalf of the trustee. Mr George and Mr Fletcher, both of whom she also wanted to subpoena, were called in the trustee’s case. So, too, was Mr Whit. Ms Lyons, Messrs Davis, Peel, Garland and Wood were called by NAB. Ms George called Ben Ironside, Christopher Glasspool, Ms Wilson and Mr Lethbridge. His Honour offered to issue a subpoena to Melanie Artuso but she appeared to be located overseas and on 3 December 2010 he withdrew the offer.
117 Ms George also complained she was not allowed to issue subpoenas to a real estate agency and NAB to produce documents. The subpoenas are not reproduced in the appeal books.
118 We do not consider that the refusal to grant leave to issue some of the subpoenas is indicative of an apprehension of bias. We do not accept that a fair-minded lay observer might reasonably apprehend that by this conduct the federal magistrate might not have brought an impartial mind to the resolution of the issues in dispute. In each case his Honour asked Ms George to tell him the subject matter of the witness’s evidence. In each case where he refused her leave it is apparent that he did so for a proper reason. In some instances the witness was already giving evidence for one of the other parties. In others the evidence did not go to an issue in the proceeding (see e.g. T741–2, 1 December 2010 and T77–9 and 86, 3 December 2010). In the case of Mr Whebell, Ms George told his Honour that the evidence she would call would go to Dr Ironside’s credit (T79, 3 December 2010). In general, evidence going to the credibility of a witness is inadmissible: Evidence Act 1995 (Cth), s 102. Although there are exceptions to the general rule, Ms George did not propound any of them.
119 In the case of the subpoenas to produce documents, in the absence of the subpoenas themselves it is impossible to be satisfied that his Honour erred in declining leave. We would, however, make this observation. We were informed that the subpoena to NAB asked for the production of trust deeds and for the details of the addresses of “key” bank witnesses. His Honour had made an order for discovery. In purported compliance with that order NAB filed an affidavit containing its list of documents (which was not amongst the appeal papers). Presumably it did not include any trust deeds. In view of the order for discovery it was not unreasonable for his Honour to refuse leave to issue the subpoena. NAB could not be compelled to provide details of the addresses of certain witnesses. In any event, it filed two affidavits on 23 September 2010 and one on 7 December 2010 detailing the last known addresses of those witnesses and the steps taken to locate them.
Restricting Ms George’s rights to representation and cross-examination
120 Ms George complained that his Honour disallowed her request for 24 hours’ notice of the witnesses the respondents were calling and forced her to open her case (by which she means go first) although she was not the applicant and when 24 of her 25 witnesses were absent. She also complained that his Honour denied her the right to have two of her witnesses give evidence in person. She further complained that his Honour had improperly limited her right to cross-examine witnesses and, indeed, took over the cross-examination.
121 The complaint that his Honour disallowed her request for 24 hours’ notice of witnesses is unfounded. On the contrary, on 30 November 2010 (at T529) when Ms George asked for “no less than 24 hours’ notice” of witnesses intended to be called the next day, far from denying the request, his Honour’s response was: “Yes, I’m sure we can do that. It won’t cause anybody any difficulty, I assume”.
122 Neither is there merit in the complaint that Ms George was forced to go first.
123 The first witness who was called was Mr George and he was called by counsel for Mr Fletcher. Thereafter, it must be said, the oral evidence was given in an unorthodox order. But there was a reason for it and Ms George consented to it.
124 Early on the first day of the hearing Ms George asked the federal magistrate that she “remain the applicant” (T8). Doubtless it was this request that triggered the query from his Honour (at T117) about whether she did not object in principle to her case going first (after Mr George gave evidence). Her reply was that she had no objection at all. As the case ultimately turned on the truth of her allegations concerning the existence of the trust, she had, at least, an evidentiary onus. There was some sense in the proposition that she call her evidence first. Mr Fletcher’s evidence on the critical issue of whether the property was held on trust for Alexander was largely documentary. Still, Ms George wanted to question Mr Fletcher. He was apparently overseas when the proceeding started, although the federal magistrate was informed that he was present in the jurisdiction earlier in the month when the hearing was due to start. It was not unreasonable for his Honour to have pressed on so as not to lose the dates assigned for the hearing of the case.
125 The next matter relates to Ms George’s request that two of her witnesses give evidence in person. The witnesses were Mr Glasspool, a justice of the peace, and Mr Lethbridge, a solicitor, who had witnessed her signature on certain documents. Each gave evidence by telephone. Ms George asked that Mr Lethbridge give evidence in person so she could show him the original of the transfer (dated 24 August 2005) she claimed he had witnessed. When she explained this to his Honour, he suggested that they first hear what he had to say. When Ms George started to ask him leading questions, his Honour took over the questioning (T347, 8 December 2010). Mr Lethbridge identified his signature on the document, but said he had no independent recollection of putting it there. He also said he had no independent recollection of what was in the document when he signed it. In the circumstances, it is difficult to see how placing the originals in front of him could have advanced Ms George’s case. As for Mr Glasspool, Ms George informed the court on 7 December 2010 that he was available “by teleconference” but was prepared to come in person if there was any issue about the documents he had.
126 In neither case was the course his Honour adopted indicative of any denial of procedural fairness.
127 Mr Whit was called on behalf of Mr Fletcher. He also gave evidence by telephone and Ms George complained about that, too. Mr Whit was a former employee of Bentleys Queensland Pty Ltd, where Mr Fletcher worked. He lived in Western Australia. Ms George wanted him to come to court in Brisbane because she said she could not identify him by his voice. In the circumstances, it was perfectly reasonable for his evidence to be taken by phone.
128 His Honour did impose limits on Ms George’s cross-examination but we are not satisfied that they were either inappropriate or unreasonable. Ms George tended to preface questions of her own witnesses with the phrase “it is correct that” or otherwise to suggest the answers, contrary to the prohibition against leading questions in s 37 of the Evidence Act. His Honour repeatedly reminded her not to do this. When, despite the reminders, she persisted in doing so, his Honour intervened at times to ask the questions in admissible form. This was entirely proper.
129 Ms George further complained that his Honour had disallowed her cross-examination of Ms Wilson yet allowed the respondents to ask leading questions. That is true. But it is not indicative of bias. Ms Wilson was called by Ms George. The respondents cross-examined her. They were entitled to ask her leading questions: Evidence Act, s 42. She was not.
130 Ms George complained that the federal magistrate “refused to allow her appropriate cross-examination” of Mr Fletcher. She cross-examined Mr Fletcher on 1 December 2010 for an hour and a half, a period admittedly punctuated by frequent objections. His Honour did limit the cross-examination. He did so, however, having first inquired about the questions Ms George wanted to ask and for the obvious purpose of keeping the evidence within proper limits. It seems clear enough that his Honour was concerned that the questions went to the issues in the case, that is, the issues defined by the pleadings, which were not invariably the issues Ms George wanted to agitate. He did permit her to cross-examine on credit but urged her repeatedly to get to the point. We are not satisfied that his Honour’s interventions might suggest a lack of impartiality to an informed fair-minded lay observer.
131 At the conclusion of the cross-examination Mr Coulsen indicated he did not wish to re-examine Mr Fletcher but his Honour envisaged he would return the following day to clarify two matters. It was not, as we understand it, envisaged that further cross-examination would be allowed. Mr Fletcher said he was required in the Supreme Court at 10.30 am. Mr Fletcher did not appear the following day. Rather, the two matters that required clarification were dealt with in an affidavit sworn that day (2 December 2010) by Ashley Jade Mulhall, an accountant in the employ of Bentleys with the day-to-day carriage of the matter on behalf of Mr Fletcher. We are not satisfied that any significant prejudice ensued to Ms George from Mr Fletcher’s non-appearance on that day.
132 Ms Mulhall said she conducted a review of the trustee’s files on 1 December 2010 which disclosed that on 7 January 2008 Mr Fletcher received from his solicitors by ordinary mail a number of documents that she annexed to her affidavit. On 7 December 2010 (at T270) Ms George said that she wanted to cross-examine Ms Mulhall with respect to her affidavit. His Honour asked her what she wanted to ask Ms Mulhall. Ms George replied that “her affidavits are false and I’ve got evidence to show that”. His Honour then said:
No. Well, she’s not going to be cross-examined on those matters.
133 Ms George did not tell his Honour or this Court what was in contention in the affidavit. We are not therefore satisfied that his Honour’s decision was procedurally unfair.
134 Ms George also complained she was not allowed to cross-examine Janelle Fletcher, who was called by NAB. That is true. She was not. But once again his Honour first asked her what questions she intended putting. When Ms George told him, he noted that none of the questions related to either the issue of the trust or the heads of agreement. He then asked Ms George whether she had any questions in relation to whether or not Ms Fletcher knew anything of the trust Ms George asserted. Ms George said no (T230, 7 December 2010). In those circumstances, there can be no criticism of his Honour’s decision.
135 Ms George further complained that cross-examination of Mr Peel and Dr Ironside was also wrongly disallowed.
136 Mr Peel, an NAB employee, gave evidence on 3 December 2010. He was called by the bank. He gave evidence in relation to the valuation of the Moggill property (T68–70). Ms George was allowed to cross-examine him. But his Honour first asked her to outline what she wanted to ask him. He refused to permit her to ask questions that were irrelevant to the issues in the case (T72). She told his Honour that the questions she wanted to put were relevant because they would show that “the bank had deliberately broke the loan down into small parts, and ordered an external valuation to avoid the internal valuation and the trustee being aware that there was a fraudulent mortgage occurring”. At the material time Mr Peel was only employed on a part-time or casual basis to conduct property valuations for the bank. In the circumstances, even if, contrary to his Honour’s view, the issues were relevant, it is hard to see what admissible evidence Mr Peel could have given about them. We are not satisfied that his Honour fell into appealable error in limiting the cross-examination of Mr Peel.
137 Dr Ironside began giving evidence on 2 December 2010 (T51). Ms George’s cross-examination started at 3.42pm on that day (T88). It continued for the rest of the day and resumed the next day at 11.05am (T30) (after Mr Whit had been interposed). Ms George relied on pages 61–4 of the transcript where, after objection was taken to repetitive cross-examination, Ms George, herself, sought to limit her questions to particular exhibits (12, 13, and 14). His Honour refused to allow her to ask the questions. Exhibit 12 is a photocopy of a signed statement from Ms Wilson dated 30 October 2008 concerning the transfer to Mr Fletcher of Stellamarra and the Landcruiser. It has nothing to do with Dr Ironside or the Moggill property. Exhibit 13 is a copy of a letter dated 17 November 2008 from Ms Wilson’s solicitors to Mr Fletcher’s solicitors. Exhibit 14 is a reproduction of para 8.396 of an unidentified report of the Australian Law Reform Commission relating to Australian Federal Police guidelines for Commonwealth search warrants. His Honour also refused to allow Ms George to ask questions of Dr Ironside about how she came to be added as a party to the Ironside proceeding. We are not satisfied that his Honour erred in disallowing questions of Dr Ironside about these matters.
138 At times his Honour did take over the cross-examination. At T608, during one of Ms George’s many complaints that the trial was unfair, his Honour said:
I am conducting your cross-examination for you. Nothing could be fairer, I would have thought.
139 This remark was made on 30 November 2010 during the cross-examination of an NAB employee, Duncan Tong. Ms George started the cross-examination herself. After a while, objections were taken that she was putting questions unfairly and that the cross-examination was irrelevant. His Honour then asked Ms George what she wanted to put to the witness and to explain the point of her cross-examination. After hearing her response, he said he would ask questions on some of the issues. He made it plain to Ms George that he was coming to the view that she was wasting court time by pursuing irrelevant matters. He told her so (at T593) and (at T608) he observed that this was “about the seventh day of this case and we’ve got nearly nowhere”. He said “I’m not spending the next three weeks listening to irrelevant material”. Ms George complained that he was not asking the questions that she wanted to ask. That may very well be so but his Honour was entitled, if not obliged, to ensure that the questions of the witness were directed to the issues he was required to determine. As we have already observed, they were not always the issues Ms George wanted to ventilate.
140 In Galea v Galea (1990) 19 NSWLR 263 at 281 Kirby A-CJ (with whom Meagher JA agreed) drew from various authorities a number of guidelines for determining whether there has been an excessive intervention by a trial judge such as to deprive a party of a trial according to law:
1. The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside …
2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached …
3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion” …
4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion …
5. It is also relevant to consider the point at which the judicial interventions complainted [sic] of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object … of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions …
6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, … in Australia, … in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. …
(References omitted.)
141 Taking all these matters into account we are not satisfied that the nature and extent of the questioning of witnesses by the federal magistrate created a real danger that the trial was unfair. It is true that at times his Honour put leading questions of a kind that did not assist Ms George’s case and that if she were legally represented it is highly unlikely her counsel would have asked. Nevertheless, they are questions of a kind a judge might legitimately ask a witness in order to clarify the issues.
142 In Budd v Kambah Tea Tree Plantations Pty Ltd [2001] NSWCA 180 Heydon JA (with whom Davies and Rolfe AJJA agreed) rejected an allegation of apprehended bias based on a trial judge’s interventions in similar circumstances. At [102]–[103] his Honour said:
[T]he circumstances of the trial must be remembered. As the trial judge said, it was “a very strange case”. It was contemplated that it would be finished in the week allocated in March 2000. In fact the vagueness of the evidence called, the lack of creditworthiness of Mr Budd, the unreliability of Mrs Holding, the lack of relevant documents, the complexity of the pleadings and the complication of the issues that grew up out of seemingly simple facts ensured that it did not … [B]y July, when the plaintiffs were not legally represented, it became imperative for the trial judge to seek to ensure that the case finished with reasonable expedition. Proceedings for some time took the unsatisfactory form of Mr Budd cross-examining Mrs Holding on conversations they had had years earlier. It was understandable that the trial judge might have become increasingly concerned about keeping the case on the rails. At the best of times trial litigation is a tense and tiring process…. The trial judge had to keep Mr Budd, unskilled as he was in court procedures and the formulation of questions, under control. To the extent that the trial judge’s statements did merit the characterisation which the plaintiffs gave them, they were not made without considerable provocation, and the trial judge may well have felt it was necessary to be extremely blunt towards Mr Budd in order to ensure that the messages she rightly wished to convey were received.
…[T]he plaintiffs have considerably exaggerated the phenomena of which they complain … while she made many interventions while Mr Budd was cross-examining Mrs Holding, the trial judge was entitled to seek to shorten longueurs, reduce repetition, ensure fairness and precision in the formulation of questions and curtail rambling arguments about admissibility. Many of her observations actually assisted the plaintiffs by enabling the evidence to be more sharply focussed. A reading of the whole transcript reveals that the trial judge was not at any stage going to conduct the trial merely by sitting back and letting the parties conduct the case without any intervention or restraint at all. Her technique is a common modern technique, and a not unacceptable one, particularly in a busy trial court under pressure from crowded lists.
143 These remarks are apt to describe what occurred in this case.
144 It is abundantly clear that his Honour was earnestly trying to discharge his judicial obligations but was repeatedly frustrated in his endeavours. This drove him, on occasions, to take over the questioning of witnesses from Ms George and to place limits on her cross-examination. When he did, however, his apparent motivation was not to shore up the case for the respondents, it was merely to get to the point and move the proceeding along. We do not think that in doing so he overstepped the mark.
145 This is a complaint that the federal magistrate rejected a number of documents Ms George tried to put before the court. His Honour marked the documents as exhibit 85, at the same time saying he was not receiving them as evidence for the trial but, in anticipation of an appeal “for further reference if necessary” and “for the purpose of debate”. The complaint should be dismissed.
146 Ms George tendered these documents on the 11th (and penultimate) day of the hearing, purportedly in reply. It appears she first attempted to do so during her re-examination on the seventh day, and again on the tenth day, but his Honour refused to receive them over the objection of the other parties. The documents were irrelevant to any issue in the proceeding, inadmissible opinion evidence, or capable of being excluded under s 135 of the Evidence Act on the ground that the probative value of the evidence was substantially outweighed by the danger that the evidence might be misleading or confusing or cause or result in undue waste of time. Where the documents were arguably relevant, no basis has been shown for interfering with the federal magistrate’s discretion. Nor do we consider that his Honour’s refusal to admit them into evidence gives rise to a reasonable apprehension of bias.
Limiting Ms George’s “right of response”
147 Ms George claimed that she was given 15 minutes to “make her right of response”, by which she meant 15 minutes in re-examination, when she said she needed a day. The claim is incorrect. The 15 minutes was given after she had spent 17 minutes repeating her complaint that she could not have a fair trial. This was a lost opportunity. His Honour was entitled to limit the time for re-examination: FM Act, s 62. We are not satisfied that it was unfair to do so in all the circumstances.
Failing to adjudicate on several of Ms George’s claims
148 Ms George submitted that his Honour refused to adjudicate on her claim to dismiss Mr Fletcher’s application. This submission apparently relates in part to orders Ms George sought in her interlocutory application of 8 June 2010 (amended on 17 June 2010 and 5 July 2010). Paragraphs 14 and 15 were in the following terms:
14. An order that the applicant William John Fletcher be available to be cross examined as the last trial witness by the 1st respondent bankrupt.
15 An order that in the event of the applicant William John Fletcher does not comply with point 14 that his application, evidence, affidavits be struck out and costs awarded in favour of the 1st respondent.
149 Contrary to the submission, his Honour dealt with and formally dismissed these paragraphs of her application on 16 July 2010. They are discussed at [18] of his judgment in Fletcher v George (No. 8). As his Honour noted there, the order in which witnesses are called is usually a matter for the parties. A decision not to make such an order is discretionary and no reason was given for interfering with the exercise of that discretion. Nor did Ms George explain, let alone demonstrate, how this might be procedurally unfair.
150 When his Honour excused Mr Fletcher after giving evidence on 1 December 2010, Ms George again asked that his affidavit be struck out as she had not been given the opportunity to cross-examine him on evidence that was allegedly false and misleading. A few days later, after Mr Fletcher did not return to court on 2 December (for the reasons discussed above), Ms George repeated her request that Mr Fletcher’s affidavit and application “be struck out as a summary judgment” as she had not been permitted to cross-examine him. But as we have noted, she was given an opportunity to cross-examine Mr Fletcher on the seventh day of the hearing, and did so for an hour and a half.
151 In her written submissions on this issue Ms George also footnoted exhibit 22, a document entitled “statement of claim” and dated 16 September 2010 and which she claimed was filed and served on 22 September 2010. But is it clear from the court file and the transcript of the first day of the hearing that that document was never accepted for filing, and that his Honour refused to treat it as part of the pleadings.
152 Ms George also complained that his Honour refused to allow her to make submissions on 27 May 2011 or 27 July 2011.
153 On 27 May 2011 his Honour made ex parte orders at the request of Mr Fletcher’s solicitor, amongst other things, to enable the trustee in bankruptcy to take possession of the Moggill property, to take whatever action he deemed necessary to properly secure the property, to permit him to carry out repairs and maintenance and to make an insurance claim. It seems that the property had suffered some damage in the Brisbane floods. The orders were of an interim nature designed to preserve the property. They were not adverse to Ms George’s interests. In any case, on 2 June 2011, when Mr Fletcher apparently sought final orders to the same effect, his Honour afforded Ms George an opportunity to be heard.
154 On 27 July 2011 (at about 10 am) his Honour pronounced judgment and published his reasons. He gave the parties seven days to submit a minute of order giving effect to it. He then said to Mr Fletcher’s solicitor that he hoped he could come back that afternoon with a draft minute. Ms George insisted she needed seven days (which his Honour had originally provided for in his reasons). His Honour told her she did not. At 3.32 pm the parties returned with a draft minute agreed by Mr Fletcher, Dr Ironside, DPIPL and NAB. Ms George said she wanted to make submissions. His Honour would not allow her to, saying he had determined the application and there was nothing she could add. Again, she sought seven days. His Honour refused to hear from her. With one qualification, as the orders were merely designed to give effect to his Honour’s reasons, his Honour’s refusal to hear further from Ms George does not amount to a denial of procedural fairness. The qualification relates to a matter that the federal magistrate and the other parties apparently overlooked. It is squarely raised in ground 2(a) of the amended notice of appeal and we will deal with it in that context. It is sufficient at this point to note that in one respect, which concerns certain chattels, Ms George was denied a right to be heard, a right his Honour had flagged earlier in his reasons would be afforded to her.
155 Ms George also submitted that his Honour adjudicated on the wrong claim and ignored claims that were sent back to trial by the Supreme Court and the Full Court and various other claims, “such as the appellant’s right to redeem protected monies and other issues”, “such as issues of insurance or vet bill which he had ordered back to trial, or the appellant’s application to have the bankruptcy discharged … in addition to that of the motor vehicle and other issues”.
156 There is no substance to the submission that the federal magistrate adjudicated on the wrong claim and the contention that his Honour ignored claims that were sent back to trial by the Supreme Court and the Full Court is wrong. The Queensland proceedings were permanently stayed and the only issues the Full Court remitted to the federal magistrate were the status of the heads of agreement signed by the parties on 19 February 2008 and the ownership of the Moggill land, both of which were the subject of his Honour’s final judgment.
157 The contention that his Honour did not determine other issues appears to be based on a misunderstanding of what the issues were. Much of the material which Ms George cited in written submissions related to issues which had already been disposed of, such as her applications that his Honour disqualify himself and the issues surrounding flood damage to the Moggill property and resultant insurance claims (see orders of 2 June 2011). The relevance of other material she cited in support of this contention was not clear and not developed in oral argument. We can find no reference to his Honour ordering that issues of insurance or a vet bill be tried. As his Honour repeatedly stressed to Ms George during the hearing, he was not conducting a general inquiry into her various grievances.
158 At one stage, on the third day, when Mr Coulsen was asking for an order, the federal magistrate told Ms George to “be quiet. Just shut up”. Afterwards, his Honour said:
I’m sorry about my outburst, gentlemen, but I’m afraid, Ms George, you are testing my patience very, very sorely.
159 Read on their own, these remarks might support Ms George’s complaint that she was denied procedural fairness. She wanted to be heard before the order was made and his Honour said he would not hear from her. They might also tend to show a lack of impartiality. The apology was to the men at the bar table, not to her. He should have apologised to all. Read in context, however, we are not persuaded that a fair-minded lay observer might conclude that they might demonstrate bias. More likely, the hypothetical observer would regard what occurred as a symptom of his Honour’s difficulties controlling a querulous witness. As Nettle JA observed in Anderson v National Australia Bank [2007] VSCA 172 at [95]:
trial litigation often calls for plain speaking, directness and sometimes asperity. Unquestionably, a trial judge like any judge should strive to avoid truculence and discourtesy. But in the scheme of things, it is almost inevitable that there will be some of it in any hard fought cause.
160 Ms George further complained that more than once he described her as obtuse or stupid. These remarks should also be seen in context. The first occasion this terminology was used was on 30 November 2010 (the sixth day of hearing). The full exchange began with questions from Mr Coulsen. When Ms George appeared to be non-responsive, his Honour intervened.
MR COULSEN: I’ll cut this short, Ms George. I’ll cut this really short. Can you point – and I’m not talking about the wills, I’m not talking about some conversation you had with somebody. Can you point to any document that corroborates the two [trust deeds]?
MS GEORGE: I can point
MR COULSEN: Stop. Listen to the rest of the question?
MS GEORGE: Sure.
MR COULSEN: Which came into existence before you went to Griffith University in early 2007?
MS GEORGE: Many documents, yes.
MR COULSEN: Sorry?
MS GEORGE: Yes, many documents.
MR COULSEN: A document that corroborates these documents- - -?
MS GEORGE: Yes, many documents.
MR COULSEN: - - -as existing before 2007? Think carefully before you answer?
MS GEORGE: There are many documents with respect to the trust, yes.
MR COULSEN: No. Sorry, you’re not listening. Is there a single document that points to, demonstrates, corroborates the fact that the two trust acts documents existed before you first went to Griffith University, even on your case, in early 2007?
MS GEORGE: Yes. There is much evidence with respect to their existence.
MR COULSEN: Sorry, listen carefully. A document that shows these documents existed before 2007?
MS GEORGE: Yes. There is my affidavit swearing that people were aware of it, that the trust deeds (scil.) were in existence. There are people – the bank was aware of it from 2004
HIS HONOUR: Are you completely obtuse, Mrs George?
MS GEORGE: I don’t know what obtuse means.
HIS HONOUR: Are you completely obtuse, are you completely stupid?
MS GEORGE: I don’t know, you can
HIS HONOUR: Well, look, listen to his question. He’s not asking about what you told people or what people said. He’s asking about documents?
161 The next occasion occurred the following day after his Honour had asked Ms George for her evidence in reply (by which we understand him to have meant re-examination). Instead, she complained that she was not being given a fair trial and repeated the concerns she had time and again conveyed and with which his Honour had previously dealt. Again he asked her whether she was being “intentionally obtuse” or was “simply stupid”, adding (at T685):
I mean, what is the difficulty? I am asking you to do a simple task. Tell me what you have to say by way of response to the cross-examination of you over the past number of days.
162 On the seventh day, after his Honour took over and completed her cross-examination of Mr Tong, Ms George protested and sought to ask the witness further questions. His Honour repeatedly asked her to sit down and eventually (at T644) to “sit down and shut up”. Later that day when Ms George interrupted his Honour he told her to “shut up, please” (T693).
163 Then (at T745) his Honour said:
This case has taken far too long, and I’m not blaming counsel for this. We have a particularly difficult self-represented client who has no idea about what she needs to do in order to prosecute the claim that she makes, and I am afraid is causing everybody, including me, considerable grief.
164 On 2 December 2010 his Honour interrupted a speech Ms George was making instead of asking a question (that runs to 22 lines of transcript) to say to the witness “if that was all gobbledegook to you say so”. 17 lines later he did the same.
165 On the last day, during submissions, his Honour said at one point:
We all know Ms George’s propensity to misstate what are plain facts evident from documents.
166 These were all injudicious remarks. They should not have been made.
167 In Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 at [43] the NSW Court of Appeal observed that telling a witness to shut up falls far short of acceptable judicial behaviour and a remark of this kind “combined with other matters” might give rise to an apprehension of bias. It will always be a matter of degree, however, whether comments like those his Honour made in this case create a reasonable apprehension of bias. In Damjanovic the combination of comments persuaded the court that they might. Here, although his Honour’s comments are troubling, on balance we are not satisfied that they might be taken by an informed fair-minded lay observer to reflect anything more than his Honour’s frustration with the slow progress of the trial. We would add that neither do we consider that the inappropriate remarks taken together with the intervention in the questioning of witnesses might create an apprehension of bias.
Refusing to address disclosure requirements
168 Ms George alleged that his Honour refused to address disclosure requirements (not met by the respondents) that she claimed were fundamental to key issues in dispute at the hearing. The allegation was difficult to follow. Neither in the amended notice of appeal nor in submissions did Ms George indicate what those requirements were or upon whom they were imposed. Nor did she state what orders, if any, she sought as a result of the failure to adhere to such requirements.
169 It appears from an email attached to her affidavit of 22 September 2010 that Ms George was relying on s 45 of the FM Act and rr 14.02 and 14.04 of the Federal Magistrates Court Rules 2001 (Cth).
170 Section 45 of the FM Act prohibits interrogatories or discovery without a declaration that it is appropriate, in the interests of the administration of justice, that they be allowed. Rule 14.02 relates to declarations to allow discovery and r 14.04 to orders for production of documents to court.
171 There was no declaration that would require interrogatories to be answered and none was apparently administered, but on 4 November 2008 the federal magistrate made a declaration to allow discovery and an order in the following terms:
(a) Each party must (if they have not already done so) provide to the other party (or parties) a copy of the following documents within 28 days (the obligation to disclose continues up to and including the Hearing):
i. the documents contained in Schedule A hereto;
ii. any document that that party intends to rely upon in support of their application before the Court (save for subpoenaed documents for which no leave to copy has been given);
iii. any document which, to a material extent, adversely effects his/her own case (subject to any claim of privilege).
(b) That the Applicant and Respondent each make, file and serve a list of documents to be disclosed to the other party.
(c) That each party cause its solicitor to file a certificate stating that it has explained to the party for whom the solicitor acts the duty of disclosure, including the continuing obligation and that the party has been informed of the consequences of a failure to comply with the duty of disclosure.
172 Schedule A was not included in the appeal books and does not appear with the orders on the Commonwealth Courts Portal. Nor did the appeal books include the affidavits of documents, so it is impossible to know whether the documents Ms George wanted were within the respondents’ possession, custody or power at the relevant time or the extent to which the parties complied with the order.
173 Although Ms George did not refer to it in her submissions, the Federal Magistrates Court file reveals that on 8 December 2008 (the first day of the initial hearing of Mr Fletcher’s application) Ms George filed an interlocutory application which, amongst other things, sought orders requiring DPIPL, Dr Ironside and NAB to “comply with disclosure as set out in notice dated 16/9/08”. The interlocutory application also sought disclosure of borrowings and draw down details for loans held by DPIPL and Hervey Bay Family Trust Practice dating back to February 1987. As the Full Court observed, it appears the application was originally prepared for the Supreme Court proceeding, but actually sought to complain of non-compliance with the federal magistrate’s discovery order of 4 November 2008: George v Fletcher (Trustee) at [32].
174 It appears that his Honour never formally dealt with the disclosure issues raised in that application during the December 2008 hearing, despite foreshadowing at various points that he intended to. Rather, he noted that the summary judgment applications could dispose of the need for disclosure, or reduce its ambit, but never formally dismissed the application.
175 After the appeal was allowed and the matter was remitted to his Honour, Ms George again complained of alleged non-compliance with disclosure requirements in an affidavit filed on 16 July 2010, and during a pre-trial directions hearing conducted that day. Ms George directed us to the transcript where these complaints were made. But at the conclusion of the 16 July 2010 hearing, his Honour ordered that any application, including for further and better disclosure, be filed by 30 July 2010. Ms George did not file any such application by that date. In the circumstances, his Honour was not obliged to deal with her later complaints about this matter. Consequently, although the manner in which his Honour dealt with Ms George’s 8 December 2008 application was somewhat unsatisfactory, he did afford her an opportunity to agitate the disclosure issues through a fresh application – an opportunity she did not take up.
176 Despite this, Ms George renewed her complaints about disclosure in her affidavit of 22 September 2010. This time the complaint was made, not only against the parties, but also against a number of organisations and individuals who were not parties. In an interlocutory application filed on 27 September 2010 (the first day of the final hearing) Ms George applied to join these other organisations and individuals and for various other orders. One of those orders was “a direction that the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th, 9th, 10th respondents comply with their obligations to provide disclosure to the plaintiff [Ms George] by way of affidavit within 7 days as pleaded here in points 85, 91, 181 statement of claim.” That “statement of claim” was never accepted for filing but its contents were reproduced in the 22 September affidavit.
177 Ms George’s contention that his Honour refused to address disclosure requirements must be dismissed, not least because he did. After hearing argument from the parties on 27 September 2010 he dismissed the interlocutory application in its entirety. Not content with this outcome, Ms George thereafter repeatedly complained of inadequate disclosure. Having disposed of the application on 27 September, his Honour was not obliged to deal with those complaints. In any case, he made it clear that he was satisfied that the parties had complied with their obligations.
178 In substance, Ms George’s real complaint was not that his Honour refused to address disclosure requirements, but that he refused to give her what she wanted. For the following reasons we are not persuaded, that his Honour erred in dismissing her application.
179 At paragraphs 85 and 91 of the 22 September affidavit, Ms George alleged that DPIPL, Dr Ironside, NAB, and the “seventh, eighth, ninth, 10th and 11th” respondents” were “in non-compliance with their disclosure requirements to provide all trust and associate agreement deeds with respect to their companies which service the [DPIPL] from the date of inception to 2008 along with: (a) any deed amendments, resignations and all company Constitution and Memorandum of Articles of Association. (b) Taxation returns for 2005 – 2008” as well as copies of the signed agreement to mediate in the Ironside proceeding. She also complained that NAB failed to disclose details of drawings on the mortgage over the Moggill property.
180 The allegations concerning the so-called seventh to 11th respondents can be put to one side. They were never added as parties. The disclosure obligations under the 4 November 2008 orders did not fall on those organisations.
181 Turning first, then, to the signed agreement to mediate in the Ironside proceeding, Ms George apparently wanted access to the document so she could tender it to support her contention that she was not a signatory to it and for this reason could not be held to the heads of agreement. His Honour made it clear to Ms George that he considered it to be irrelevant. We respectfully agree. In any case there was no dispute that Ms George did not sign the mediation agreement.
182 Secondly, the request for the “trust and associate agreement deeds” and so forth referred to in [179] above appears to relate to Ms George’s claims that DPIPL breached certain internal requirements, which, as we have noted, his Honour disposed of on 9 December 2008. That judgment was not the subject of the appeal to the Full Court and nothing in the Full Court’s reasons suggests that those claims were sent back for trial. Consequently, the documents were irrelevant to the issues the federal magistrate was required to resolve.
183 Thirdly, in paragraphs 91 and 181 of her affidavit Ms George complained that NAB and Mr Fletcher did not comply with their disclosure requirements by failing to provide contact details for certain people she wanted to subpoena. But the orders his Honour made did not require their contact details to be given. One of those people (Mr Whit) gave evidence anyway. Further, as we have noted in [119] above, NAB filed affidavits setting out its attempts to locate the relevant people, and the transcript indicates that his Honour was satisfied by this evidence.
184 Fourthly, in paragraph 181 of her affidavit Ms George also complained that Mr Fletcher failed to comply with “trial disclosure” by refusing to provide her with a copy of a form she gave him (described only as a form 15) “with respect to the illegal costs notice and bankruptcy petition”. The relevance of the form 15 is elusive, and Ms George did not explain how it could have been “fundamental to key issues in dispute” as she claimed.
185 With respect to the other documents to which Ms George referred, (assuming they were not discovered), we would make this observation. The premise for the allegations against NAB and the Ironside parties is that Ms George in fact held the Moggill property on trust for her son. If, as we find below, there is no appealable error in the federal magistrate’s decision on this question, the allegations against all the other parties necessarily fail. Whether or not the documents were produced would make no difference.
186 For completeness we would add that there is no evidence to support the proposition, advanced in this part of Ms George’s submissions, that NAB deliberately concealed witnesses or misled the court in the affidavits it filed. Even if it were true, Ms George does not point to any error on the federal magistrate’s part that might relate to that conduct.
187 There is no doubt that the federal magistrate did treat Ms George differently from the other parties. He was, however, bound to do so because she, unlike them, was unrepresented. She, unlike them, was ignorant of the rules of evidence. Moreover, she, unlike them, was not prepared to abide by his rulings, frequently quarrelling with them. We do not accept that from the mere fact of differential treatment a fair-minded lay observer might reasonably apprehend that his Honour might not have been impartial.
188 This was a complaint raised in submissions.
189 The federal magistrate discounted evidence given by Mr Siebert that supported Ms George’s contention that the Lara horse float was, by reason of the application of s 116(2)(c)(i) of the Bankruptcy Act, not property that was divisible amongst her creditors under s 116(1) of the Bankruptcy Act. Ms George claimed that she had used the float as a tool of trade to generate income from the conduct of a dressage training business. Mr Siebert swore two affidavits and was cross-examined. The first was dated 5 November 2008, the second 19 November 2008. Both were witnessed by Ms George, herself. Mr Siebert described himself as a friend of Ms George. He stated that he had bought the Lara horse float (registered number 938-QMZ) the registration of which expired that month. He also indicated that he had not yet registered the change of ownership. He said that when he did, he would continue to allow Ms George to use the vehicle to transport his filly and for her own use. He requested its immediate return “to Miss George at her residence at … Moggill”.
190 The federal magistrate accepted that Mr Siebert’s evidence supported Ms George’s claim. But, his Honour went on to say (at [217]):
Mr Siebert has a very close association with the bankrupt which has undoubtedly influenced his ability to provide the court with reliable and impartial evidence in respect of these matters. It was plain from the interaction between Mr Siebert and the bankrupt not only through the course of evidence but in the course of events that occurred in the well of the court before and after his giving evidence that his association with the bankrupt is closer than that which is disclosed in his affidavit. My assessment of him was that he was completely spellbound by her. That could be the only explanation for the particularly partial affidavit which appears to have been sworn by him, clearly quite uncritically …
191 His Honour went on to refer to parts of the affidavit to support his conclusion (at [218]) that Mr Siebert was not impartial.
192 Ms George complained that these matters were not put to Mr Siebert and it was therefore unfair of his Honour to have regard to them.
193 Mr Siebert was in the witness box for an hour. Most of that time was taken up with discussions between his Honour and Ms George about the nature of the questions she wanted to ask and issues of admissibility. Although the transcript records Mr Siebert being affirmed at 10.05 am (T403), the first question was asked at 10.09 am (T406) and was inadmissible. Ultimately, Ms George asked very few questions of Mr Siebert. His Honour took over the questioning at T426–7. Mr Coulsen was the only counsel to cross-examine Mr Siebert. The cross-examination lasted less than nine minutes. None of the matters upon which his Honour relied was the subject of cross-examination. Nor did his Honour raise his own concerns with the witness. The witness’s credit was not impugned. In these circumstances it is difficult to understand how his Honour could have formed any opinions about the nature of the relationship Mr Siebert had with Ms George beyond what he said in his evidence. The observations made “in the well of the court” were not raised with Ms George at any time.
194 The failure to raise these matters with Mr Siebert or Ms George constituted a denial of procedural fairness: Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178–9; Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 311, 314, 317, 323 and 325. But a new trial should not be ordered on this account because his Honour’s findings concerned a matter that was not in fact in issue. As we indicated at [44], on 5 December 2008 his Honour ordered by consent that the horse float was “property vested in the trustee”. As a result of these orders s 116(2)(c)(i) was incapable of applying to the Lara horse float. We consider this matter further in the context of our consideration of ground 3(f) of the amended notice of appeal.
Failing to give due and proper consideration to evidence
195 Ms George alleged that various witnesses corroborated her claim about the trust, “the equity of redemption”, the “fraud” of DPIPL and Dr Ironside and issues of credit. She also complained that his Honour failed to find against the credit of Mr Fletcher, her former husband and Dr Ironside. None of these matters bears upon the issue of procedural unfairness. In any case, we do not accept that the witnesses to whom she referred did corroborate her claim about the trust or any other issue of significance in the proceeding.
196 Ms George submitted that “C Stuart” (presumably Craig Stuart Davis), an NAB manager, confirmed the bank had been negligent in not recording the trust on their documents. But the submission does not reflect the evidence Ms George cited in support. On 28 June 2004 Mr Davis witnessed Ms George’s signature on two documents: her application for a first home mortgage concession with respect to the Moggill property and the mortgage. The application names “Lauren Kay Cordes” as the claimant. The mortgage names “Lauren Kay Cordes” as mortgagor. In cross-examination Mr Davis said that NAB would have been in breach of its protocols and policies if it failed to ask for trust deeds when told that an advance was being made to a trust. That, of course, begged the question. We note in passing that on neither document is Ms George’s signature qualified by reference to any trust. (A later application for a first home mortgage concession was also signed by Ms George on 12 May 2005 as Lauren Kay Cordes personally and does not mention any trust).
197 As for the failure to make adverse credit findings against Mr Fletcher, Mr George or Dr Ironside, Ms George advanced no sound basis for interfering with the assessment made by the federal magistrate.
Making factual errors, incorrectly paraphrasing transcript and other mistakes
198 Assuming there were errors of this kind, they, too, are irrelevant to the question of procedural unfairness. They are not indicative of bias. To the extent that they are relevant they will be considered in the context of the other grounds of appeal.
Making findings of fact so unreasonable that no reasonable court could have made
199 This allegation relied on the other submissions. For this reason it would not be appropriate to deal with it separately. That said, we do not accept that this is a proper description of any of his Honour’s findings.
200 Save with respect to the matter raised by paragraph 2(a) of the amended notice of appeal, ground 1 is dismissed.
201 Ms George’s second ground of appeal is as follows (without alteration):
His Honour Burnett FM erred in fact in making adverse findings of credit about the Appellant and witnesses giving evidence at the hearings, as a direct consequence of the substantial miscarriage of justice and denial of natural justice described in paragraph 1 hereof as described below:
(a) in finding that the First Respondent had returned the Appellant those chattels owned by the Appellant and wrongly seized by the First Respondent, when in fact the First Respondent failed to do so;
(b) in finding the equity of redemption registered mortgagee of the real property located at 130 The Landing, Moggill in the State of Queensland and described as Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title Reference 50440445 (the “Property”) was the Fourth Respondent rather than Wizard Bank;
(c) in finding that the interest of the Appellant, as trustee of the Lauren Kay George Family Trust (the “Trust”) must be registered in order for such interest to be valid, contrary to the finding of the Full Court of the Federal Court made on 25 March 2009;
(d) in finding that the Appellant failed to produce a copy of a trust agreement, when such agreement was made by parole, and no such written instrument was in existence, contrary to the finding of the Full Court of the Federal Court made on 25 March 2009.
202 As Ms George presented the matter on the appeal, the introductory passage of this ground amounted to no more than a re-ventilation of her procedural complaints, the subject of ground 1. The essence of ground 2 was that the federal magistrate had erred in the respects identified in subparagraphs (a)–(d).
Ground 2(a): Error in the finding that Mr Fletcher had returned chattels wrongly seized
203 Ground 2(a) was concerned with chattels taken by Mr Fletcher upon Ms George’s bankruptcy. The particular finding to which this aspect of ground 2 relates appears to have been the statement by the federal magistrate that, following Ms George’s complaint that Mr Fletcher had removed “all furnishings including basic furnishings and household effects” from her house, “certain basic items were released to [her] with the trustee retaining only the more valuable furnishings including the antiques”. On appeal, Ms George asserted that, save for a watch which had belonged to her late mother, nothing had been released to her. This simple matter of fact was not resolved, but we do not understand Mr Fletcher to contend that he is entitled to retain household property the subject of s 116(2)(b)(i) of the Bankruptcy Act. How the federal magistrate came to deal with the application of that subparagraph effectively became the focus of Ms George’s ground 2(a).
204 The last substantive section of the federal magistrate’s reasons of 27 July 2011 (Fletcher v George) was headed “Chattels”. Under that heading, the first paragraph was as follows:
Many of the chattels including livestock and vehicles were disposed of in the summary judgment application determined in December [sic] 2009; George v Fletcher & Ors (No.6) [2009] FMCA 69. However there remained outstanding a dispute in respect of:
a) An unregistered horse float;
b) Jewellery;
c) Furnishings and personal effects.
205 We take it that, by the first sentence in this extract, the federal magistrate intended to say that many of the issues concerning these chattels were disposed of in the summary judgment application referred to. In his reasons the federal magistrate dealt with the matter of chattels, including jewellery, furnishings and personal effects. With respect to the horse float, the household effects and the jewellery, his Honour referred to Ms George’s contention that they were the subject of a trust. His Honour held that Mr Fletcher’s claims for a declaration in respect of those chattels “cannot be resolved summarily and will have to be determined following trial”. Consistently with that conclusion, his Honour then made no determination with respect to the jewellery, furnishings and personal effects Mr Fletcher recovered from Ms George’s house.
206 In his reasons in Fletcher v George the federal magistrate rejected Ms George’s claim for a declaration that these chattels were held on trust. His Honour noted, however, that Ms George contended that the chattels were excluded from the property that was divisible amongst her creditors, pursuant to s 116(2)(b)(i) of the Bankruptcy Act. Section 116(2)(b)(i) provides that property divisible amongst the creditors of a bankrupt does not extend to the bankrupt’s household property that is of a kind prescribed by the regulations. The relevant regulation is reg 6.03 of the Bankruptcy Regulations 1996 (Cth), which provides as follows:
(1) For the purposes of subparagraph 116(2)(b)(i) of the Act, household property of the bankrupt specified in this regulation is household property to which subsection 116(1) of the Act (which deals with property divisible among the creditors) does not extend.
(2) Subsection 116(1) of the Act does not extend to household property (including recreational and sports equipment) that is reasonably necessary for the domestic use of the bankrupt’s household, having regard to current social standards.
(3) In particular (but without limiting by implication the generality of subregulation (2)), subsection 116(1) of the Act does not extend to property of the following kinds:
(a) in the case of kitchen equipment, cutlery, crockery, foodstuffs, heating equipment, cooling equipment, telephone equipment, fire detectors and extinguishers, anti-burglar devices, bedding, linen, towels and other household effects — that property to the extent that it is reasonably appropriate for the household, having regard to the criteria mentioned in subregulation (4);
(b) sufficient household furniture;
(c) sufficient beds for the members of the household; and
(d) educational, sporting or recreational items (including books) that are wholly or mainly for the use of children or students in the household;
(e) 1 television set;
(f) 1 set of stereo equipment;
(g) 1 radio;
(h) either:
(i) 1 washing machine and 1 clothes drier; or
(ii) 1 combined washing machine and clothes drier;
(i) either:
(i) 1 refrigerator and 1 freezer; or
(ii) 1 combination refrigerator/freezer;
(j) 1 generator, if relied on to supply electrical power to the household;
(k) 1 telephone appliance;
(l) 1 video recorder.
(4) For the purposes of deciding whether property, other than property of a kind mentioned in paragraphs (3)(b) to (l) (both inclusive), is property to which subregulation (2) applies, regard must be had to the following criteria:
(a) the number and ages of members of the bankrupt’s household;
(b) any special health or medical needs of any of those members;
(c) any special climactic or other factors (including geographical isolation) of the place where the household residence is located;
(d) whether the property is reasonably necessary for the functioning or servicing of the household as a viable and properly run household;
(e) whether the costs of seizure, storage and sale of the property would be likely to exceed the sale price of the property;
(f) if paragraph (e) does not apply – whether for any other reason (for example, costs of transport) the sale of the property would be likely to b uneconomical.
(5) The preceding provisions of this regulation do not prevent subsection 116(1) of the Act from extending to antique items.
(6) For the purposes of subregulation (5), an item is taken to be antique if, and only if, a substantial part of its market value is attributable to its age or historical significance.
207 At [219] of Fletcher v George, the federal magistrate said:
The bankrupt also contends for the return of property taken by the trustee in the nature of antique furnishings, china and silverware removed from the Moggill property. In the course of trial complaint was made by the bankrupt concerning the trustee’s removal of all furnishings including basic furnishings and household effects. Following that complaint certain basic items were released to her with the trustee retaining only the more valuable furnishings including the antiques. No formal inventory of that material has been prepared and so I am unable to rule on specific items beyond noting that generally those kinds of chattels do not fall within the ambit of that which is protected by operation of regulation 6.03(3). I make no ruling beyond indicating that in respect of any antiques silverware and other like chattels it is unlikely that they would fall within the prescription provided by regulation for protected property. I will adjourn this part of the application to hear parties on specific orders.
(Emphasis added.)
208 At no point in his Honour’s reasons does he consider the matters raised in subreg (4) or (6). With respect to jewellery, the federal magistrate said (at [220]):
Finally the bankrupt’s jewellery. Upon entering the property shortly after orders were made permitting entry pursuant to a warrant, the trustee recovered a considerable quantity of jewellery. In all, 104 items were recovered. Many of the items were of considerable value. For instance diamond rings which were accompanied by valuation certificates for insurance purposes; see exhibit 3. The only personal property exempt pursuant to s.116(2)(ba) relevant in this case are items of personal property having sentimental value. The only witnesses to sentiment on the part of the bankrupt is the bankrupt herself. For reasons that I have earlier outlined I do not accept her as a reliable witness. However having regard to some of the items which were recovered by the trustee I am prepared to accept on balance there may be a justifiable element of sentiment associated with them by reference to ordinary standards. In the course of cross examination of the bankrupt following the recovery of the various items of jewellery listed in exhibit 3, the bankrupt stated that the only thing she wanted back was her mother’s watch, an item that was separately bagged and tagged. I accept that the chattel of this kind may have sentimental value for the bankrupt and accordingly I am satisfied this chattel is protected by operation of s.116(2)(ba).
209 His Honour then provided what purported to be a summary of his findings in which he said (at [221]):
In summary I find that the bankrupt’s jewellery, except for a watch which was her late mother’s, her furnishings and other household chattels which have not already been delivered into her possession and the unregistered horse float are property which have vested in the trustee and are not exempt pursuant to s.116(2) of the Bankruptcy Act.
210 From the orders, to which we shall turn presently, it appears that this passage was to be read as though the only exception to the conclusion that the chattels concerned were not exempt under s 116(2) of the Bankruptcy Act related to Ms George’s late mother’s watch. With respect to the “furnishings and other household chattels”, this passage, however, did not constitute a “summary” of what his Honour had earlier held. As noted above, he had made no determination with respect to those chattels, but had decided that the application had to be adjourned “to hear parties on specific orders”.
211 At the end of his reasons in Fletcher v George the federal magistrate directed the parties to submit a minute of an order giving effect to the terms of those reasons within seven days. On the occasion of the publication of those reasons (about 10.00 am on 27 July 2011), his Honour informed Mr Fletcher’s solicitor as follows: “I have said seven days, but I am rather hoping that you can come this afternoon with a draft minute of order”. That course was accepted by the solicitor, but over the objection of Ms George. She said that she was self-represented and needed seven days. The federal magistrate told her that she did not need seven days, and, in response to her protest that she did not have the time – presumably, had she not then been interrupted by his Honour, she would have said that she did not have the time to consider the reasons and to give attention to a minute of the order that was required – the federal magistrate said: “That’s fine, Ms George, you can take it somewhere else”.
212 The federal magistrate sat again at about 3.30 pm on 27 July 2011. At that time Mr Fletcher’s solicitor handed up a minute of the orders which his client sought and which were agreed to by some other parties, not including Ms George. The federal magistrate asked for the minute to be forwarded to his chambers electronically, adding: “I will formally make declarations and then I will separate the declarations and the orders out”. His Honour said that he would make the orders available within 24 hours. At this point, Ms George asked whether she could make submissions. His Honour said: “No, Ms George. I’ve determined the application. There’s nothing you can add. Thank you”. Ms George protested that his Honour’s reasons had allowed seven days for the making of submissions, to which his Honour responded: “Ms George, I’m not going to hear you. Please understand this. I have ruled. My rulings are plain. I now intend to make orders. You have nothing to add to the orders”.
213 As is apparent from the orders set out in [60] above, the federal magistrate did proceed to make orders on 27 July 2011, the effect of which was that no allowance was made for the exception for which s 116(2) of the Bankruptcy Act provides (save with respect to Ms George’s late mother’s watch).
214 Contrary to the federal magistrate’s statement that “no formal inventory of that material has been prepared”, there was before his Honour a detailed, itemised, list of things removed from Ms George’s property on 30 October 2008. Included on that list was a three-piece lounge suite, an eight-seat kitchen table with chairs, a dressing table with stool and an eight-seat dining table. There were, of course, many additional items. His Honour did not identify what were the “basic items” which had apparently been returned to Ms George, which complicates our task of understanding how he could have reached the conclusion, without an examination of the facts, that nothing removed from the property, and not returned, could be such as would fall within reg 6.03. However that may be, the issue arising under reg 6.03(3)(b) with respect to household furniture, to take a particular instance, relates not to the nature of the items seized (subject, of course, to subreg (5)) but to the question of whether the items remaining were “sufficient”. This should be a simple inquiry, and, in his reasons of 27 July 2011, the federal magistrate made it clear that he had not yet conducted it.
215 The way things played out on 27 July 2011, at 10.00 am or thereabouts the federal magistrate published his reasons, indicating that he had made no ruling with respect to household property and personal effects, and that he would need to hear the parties further with respect to the specific orders which should be made in that regard. He directed the parties to submit a minute of the order giving effect to his judgment within seven days, but refused to allow Ms George that period within which to frame a set of orders which would, in her submission, reflect his Honour’s reasons, and omitted to give attention to the issues about the chattels which he had reserved for a further hearing. On appeal, counsel for Mr Fletcher really had no justification – or explanation – for why the federal magistrate proceeded in this way. His Honour was, in our opinion, in error to have done so. The appeal should be allowed in relevant respects, and the question of whether the chattels, and if so which of them, were covered by s 116(2) of the Bankruptcy Act should be referred back to the Federal Magistrates Court for hearing and determination.
Ground 2(b): The efficacy of the transfer of title in the Moggill property
216 Turning to subparagraph (b) of Ms George’s second ground, the essence of her complaint related to [133] of the federal magistrate’s reasons in Fletcher v George:
Registration of the transfer could not be effected by the bankrupt (in any capacity) until the mortgage was released. The mortgage has not been released. Accordingly DPIPL as assignor has not done everything to be done by it that is necessary in order to transfer the property to the bankrupt (in whatever capacity) as assignee. The release of the mortgage is not a thing that could be done afterwards without intervention of or assistance from the assignor.
217 To understand this ground, it is necessary to note the terms of s 200(1) of the Property Law Act 1974 (Qld), to which the federal magistrate referred immediately before this passage in his reasons. That subsection provides as follows:
(1) A voluntary assignment of property shall in equity be effective and complete when, and as soon as, the assignor has done everything to be done by the assignor that is necessary in order to transfer the property to the assignee:
(a) even though anything remains to be done in order to transfer to the assignee complete and perfect title to the property; and
(b) provided that anything so remaining to be done is such as may afterwards be done without intervention of or assistance from the assignor.
218 This point related not to the trust which, on Ms George’s case, allegedly existed as between herself and her son, but to the trust which she said existed as between DPIPL, as registered proprietor of the Moggill property, and herself, pursuant to the unregistered transfer executed by Ms George on 24 August 2005 and by DPIPL on 27 August 2005. To the extent that that transfer amounted to an assignment at all, on any view it was a voluntary one within the meaning of s 200(1) and, in the view of the federal magistrate, would be effective in equity only if DPIPL, as assignor, had done everything required to be done by it in order to transfer the property to Ms George. In the view of the federal magistrate, “registration of the transfer could not be effected … until the mortgage was released”.
219 The mortgage to which his Honour referred was the mortgage by DPIPL in favour of NAB, executed on 19 September 2006 by DPIPL and on 29 September 2006 by NAB. By then, Ms George was bankrupt, and such interest as she had in the Moggill property had vested in Mr Fletcher as the trustee in bankruptcy.
220 As at the date of Ms George’s bankruptcy – 24 February 2006 – the Moggill property was not mortgaged to NAB. Rather, it was mortgaged to an organisation which traded as “Wizard Home Loans”, the corporate name of which was Permanent Custodians Ltd. That was the institution from which DPIPL had obtained finance to purchase the property from Ms George pursuant to the contract of 18 June 2005. It was the mortgagee at the time when DPIPL and Ms George executed the transfer of the property back to Ms George in August 2005. It was also the mortgagee at the time of Ms George’s bankruptcy. If there was any mortgagee whose interest bore upon the quality of Ms George’s interest in the property as at the date of her bankruptcy, it was Permanent Custodians Ltd, not NAB. The circumstances which led to Ms George making allegations against NAB post-dated Ms George’s bankruptcy by about eight months: in October 2006, DPIPL refinanced the loan which it had secured to purchase the property, paying out Permanent Custodians Ltd and borrowing the sum of $760,000 from NAB. The fact that NAB thereby again became the mortgagee with respect to the property was purely coincidental, and unrelated to the like position which NAB had occupied at the time when Ms George herself had been the registered proprietor.
221 In one part of the federal magistrate’s reasons his Honour referred to “the advance made by NAB in support of” the acquisition of the Moggill property by DPIPL. Elsewhere in his reasons, it appears that his Honour appreciated that the advance by NAB to DPIPL was not associated with its acquisition of the property. If there was some element of confusion in his Honour’s thinking on this subject, it would not be surprising, given the submissions made on appeal by DPIPL and Dr Ironside. In a written outline filed on 7 February 2012, those parties said that they “negotiated a loan with [NAB] so as to be able to buy the property”. In oral submissions, however, counsel for those parties said that the purchase price was “raised … from Wizard”, and that it was “somewhat later” that they “refinanced with” NAB.
222 Notwithstanding these (far from isolated) points of confusion in the case, there is no reason to doubt that the federal magistrate understood that the question which he had to determine related to the nature of Ms George’s interest in the property as at the date of her bankruptcy. At that time, the property was mortgaged to Permanent Custodians Ltd, and that mortgage stood in the way of any conclusion under s 200(1) of the Property Law Act which was favourable to Ms George. At the time when his Honour came to make his decision in July 2011, the property was still mortgaged, but now to NAB. To the extent that his Honour was speaking in the present tense, it was still the case that the (extant) mortgage stood in the way of any such conclusion.
223 On appeal, Ms George’s point was that his Honour was mistaken to have held that, at relevant times, the Moggill property was mortgaged to NAB. She said that it was, at the date of her bankruptcy, mortgaged to Permanent Custodians Ltd, but that that mortgage had been released when DPIPL refinanced its loan with NAB. Factually, that is correct, but it involves a distinction without difference. The land was always subject to a mortgage. DPIPL was never in a position to convey title back to Ms George. The conditions required by s 200(1) of the Property Law Act were not satisfied, either at the date of Ms George’s bankruptcy, or at any later time.
224 We would only add that the nature of Ms George’s interest in the property, as against DPIPL, was and is irrelevant to the question which was controversial before the federal magistrate, namely whether the property was held on trust for her son. Even if Ms George’s case against DPIPL were to be accepted in its entirety, upon her bankruptcy whatever interest she had in the property would have vested in Mr Fletcher as her trustee in bankruptcy. Her point on appeal with respect to the federal magistrate’s misunderstanding as to the identity of the mortgagee at the relevant time goes nowhere towards establishing that the beneficial interest in the property lay with her son.
225 For these reasons, ground 2(b) must be dismissed.
Ground 2(c): The finding that the trustee’s interest must be registered for a trust to be valid
226 Ground 2(c) in Ms George’s amended notice of appeal relates to two documents by which Ms George claimed to have declared that she held certain property on trust for her son. As we have said previously, each was a reprint of the Trusts Act. Each was downloaded electronically from the website of the government publisher of statutes, and then printed in hard copy. The first was a copy of Reprint No 4A, in which the legislation was shown as in force on 1 March 2002. On that document, Ms George had written, in her own hand:
Property Trust 130 Airlie Rd Pullenvale Qld 4069 Lauren Kay Cordes as trustee for Alexander William George. Dated 1st May 2002 holding a life interest of mother & child referred to as above DOB 4/7/1964 & 27/11/1997 respectively.
The document was dated 1 May 2002, and signed by Ms George over the word “trustee”. As is apparent, this document related to the property at Pullenvale which Ms George owned before she purchased the land at Moggill. The second was a similarly-obtained, and printed, copy of Reprint No 4B of the same Act, in which the legislation was shown as in force on 4 March 2003. On that document Ms George had written, again in her own hand, at the head:
Property Trust agreement amendment to original trust agreement dated 1st May 2002.
And, at the foot:
Lauren Kay Cordes as trustee for Alexander William George property trust Lot 13 survey plan 145714 County of Stanley Parish of Moggill dated 5/12/2003 holding life interest of mother & child on the above property DOB 4/7/1964 & 27/11/1997
The document appears to have been signed by Ms George, but the copy included in the Appeal Book did not show any further details of execution.
227 The federal magistrate held that each of these purported declarations of trust was a later-created fabrication. He held that Ms George had, from the government website which published legislation, downloaded a version of the 1973 Act as it existed at each of the relevant dates, printed that version, and endorsed it as stated above. But Ms George’s ground 2(c) does not relate to that finding. Rather, it relates to an alternative proposition accepted by the federal magistrate to the effect that, even if the documents were genuine as Ms George alleged, they were insufficient to create a trust. His Honour’s reasoning in this regard was that Ms George, as registered proprietor, had not taken all the steps required to be taken by her to transfer the legal title of the property to her son. That being the case, her son, as a volunteer, could claim no beneficial interest in the property. Ms George’s point on appeal was that the trust which she alleged was an express one by declaration, and that, since there had been no purported transfer, the principle of equity upon which the federal magistrate relied had no application. She said that the Full Court had made this very point and that the federal magistrate had, in effect, ignored that judgment. With respect to his Honour, we consider that there is substance to this point.
228 In its judgment of 28 May 2010 (George v Fletcher (Trustee)), the Full Court said (at [55]–[59]):
The learned federal magistrate accepted a submission made on behalf of the bankruptcy trustee, Dr Ironside, DPIPL and the Bank, which each repeated before us on the appeal, as the centrepiece of their respective submissions, that, even if, as they disputed, either of the indorsements on a copy of the Trusts Act was sufficiently certain to create a trust, “there was a failure to undertake all the necessary steps required at law to effect a transfer and registration of [Ms George’s] interest to the purported trust as are required pursuant to the provisions of the [Land Title Act 1994 (Qld)]” …. His Honour further found … in respect of the 1 May 2002 declaration that:
[T]here only can be an effective gratuitous transfer once the donor has done all those things prescribed by statute or the common law for the transfer of the legal title that have to be done by the donor and cannot be done by anyone else; see section 200 of the Property Law Act. Again the learned authors of Principles of the Law of Trusts summarised the principle as follows:
If an intending settlor attempting to establish a gratuitous trust by transfer of a legal title does not take those steps to satisfy the legal requirements for transfer to the intended trustee that only he or she can take, the intended trust never comes into existence. The property remains with the intending settlor unaffected by any trust referable solely to an attempted transfer.
This reasoning was repeated in respect of any possibility that there could be a valid trust in respect of the Moggill property even assuming that this did not fail for want of certainty.
Recalling that the application for summary judgment was made orally, and even though the learned federal magistrate came, by looking to affidavit evidence, to range more widely than just deciding a separate question of law summarily, on one reading of the transcript of the trial in December and the application made to his Honour, his understanding of it was that a discrete question of law was apt for summary resolution. We make that observation particularly having regard to the following statement which his Honour made to Ms George:
FEDERAL MAGISTRATE: No, we’re having a trial now, Ms George. Now, what Mr Coulsen [then counsel for the bankruptcy trustee] wants to do is rather than have to run through a whole lot of evidence he says is unnecessary, he wants to see if he can persuade me to strike the application out on this point on a matter of law. Now, that’s something he’s entitled to do at any time, whether he does it before we hear the evidence or after we hear the evidence but ultimately - - -
The separate question, the resolution of which was thought to be fatal to any prospect of success on the part of Ms George, was, as we have just noted, identified by the learned federal magistrate as whether “there was a failure to undertake all the necessary steps required at law to effect a transfer and registration of [Ms George’s] interest to the purported trust as are required pursuant to the provisions of the [Land Title Act 1994 (Qld)]”
For present purposes, it is desirable to examine the correctness of the submissions made to us and the conclusion reached in the court below on the point.
An express trust may be created either by declaration or by transfer. The reasons for judgment of the learned federal magistrate and the submissions of the parties to the appeal, save for Ms George, proceed upon the assumption that a transfer or assignment of the Pullenvale property or the Moggill property, as the case may be, was necessary in order that it be held on trust by Ms George. This is wrong. At the time of each of the alleged written declarations, Ms George was already the registered proprietor of the land in question. This being so, the position is as stated in Heydon JD and Leeming MJ, Jacobs’ Law of Trusts in Australia (7th ed, LexisNexis Butterworths, 2006) (Jacobs’) at [622] and [623]:
Declaration of Trust
[622] The second principal mode by which a trust may be constituted is by declaration. What is required is a statement, intended to be final and binding, that property owned by the settlor is thereafter held on trust for another. … No consideration is required. Because the trust property is already owned by the trustee, the principles in Milroy v Lord do not apply; indeed, that is the force of Milroy v Lord.
[623] The declaration must be manifested in writing signed by the person making the declaration if the trust property is land or any interest in land. …
229 With respect to the need, last mentioned in the above extract, for a declaration of trust of land to be in writing, the Full Court referred to s 11(1)(b) of the Property Law Act which provided that “a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust ….”. Their Honours held that the handwritten endorsements on the reprints complied with that provision.
230 The extract from the federal magistrate’s reasons of 9 February 2009 (Fletcher v George (No. 6)) set out in the first paragraph of the Full Court decision above appeared verbatim in his Honour’s reasons supporting the judgment presently under appeal. In those reasons, and speaking of the May 2002 document, his Honour said (at [107]):
In those circumstances there only can be an effective gratuitous transfer once the donor has done all those things prescribed by statue [sic] or the common law for the transfer of the legal title that have to be done by the donor and cannot be done by anyone else; see s.200 of the Property Law Act. Again the learned authors of Principles of the Law of Trusts summarised the principle as follows:
“If an intending settlor attempting to establish a gratuitous trust by transfer of a legal title does not take those steps to satisfy the legal requirements for transfer to the intended trustee that only he or she can take, the intended trust never comes into existence. The property remains with the intending settlor unaffected by any trust referable solely to an attempted transfer”.
231 In relation to the December 2003 document the federal magistrate dealt with some other legal questions, including by referring to what his Honour considered to be a problem arising under s 11 of the Property Law Act, and then turned to s 200 of that Act. His Honour said (at [119]):
If it is accepted that an effective trust was created on 5 December 2003 the question remains as to whether or not there remains an interest in equity in favour of the bankrupt as trustee. No such interest exists at law because the property was registered in the name of the bankrupt without reference to the trust.
232 This too was no more than a repetition of the corresponding paragraph in Fletcher v George (No. 6), the correctness of which had been rejected by the Full Court. Indeed, if one compares the federal magistrate’s reasons relating to these two purported declarations of trust with the reasons he gave on this question in his summary judgment, one finds that the differences between them are only superficial.
233 Consistently with the judgment of the Full Court, in our view, the federal magistrate was in error to have held that these two documents could not have amounted to sufficient evidence in writing under the hand of Ms George for the purposes of s 11 of the Property Law Act.
234 That does not mean, however, that the documents were effective declarations of trust, especially the second one, which related to the property. The federal magistrate was satisfied that –
… the documents … were fabricated by Mrs George some time in late 2007 after she became aware of the issue involving the Moggill property in the matrimonial dispute between her sister and her sister’s former husband and before their ultimate production in November 2007.
By then, Ms George’s property had vested in Mr Fletcher as her trustee in bankruptcy. Against this finding of fact by the federal magistrate the theoretical compliance of Ms George’s fabricated documents with s 11 of the Property Law Act was neither here nor there. The factual finding was amply open to his Honour on the evidence before him. We deal with it in some detail in connection with ground 3 of the amended notice of appeal. His Honour’s assessment of Ms George’s credit was not made against the background of incontrovertible facts or uncontested testimony. Nor was the finding glaringly improbable or contrary to compelling inferences in the case. In the circumstances it may not be disturbed on appeal: Fox v Percy (2003) 214 CLR 118.
235 For these reasons, ground 2(c) must be dismissed.
Ground 2(d): The finding as to the failure to produce a copy of the (original) trust “agreement”
236 Ground 2(d) relates to Ms George’s evidence that, on 27 November 1997 (the day of her son’s birth), she declared an “express trust … by way of parole” that she held “her equitable interest … [in] the Pullenvale property including its loose assets furniture and jewellery in trust for the benefit of her born and unborn children”. This declaration, if made as alleged, was said to be relevant, somehow, to the quality of the interest Ms George held in the property she had at the time of her bankruptcy, which (it will be recalled) did not include the Pullenvale property.
237 In his reasons for giving summary judgment against Ms George on 9 February 2009 (Fletcher v George (No. 6)), the federal magistrate said (at [85]):
Despite numerous requests made of the bankrupt no trust deed dated 1997 has ever been produced by her. She has been afforded numerous opportunities to present such a deed which (prior to her most recent pleading) she maintains exists. However despite the presentation of such opportunities no deed has been submitted by her. In the absence of documentary evidence, at its best, her case must be that the trust was one purported to have been created orally. If so it must fail, at least in respect of real property settlements. Section 11(1)(b) Property Law Act 1974 (Qld) (“the Property Law Act”) requires that with respect to the creation of interests in land by parole a declaration of trust respecting land must be manifested and proved by some writing signed by the person able to declare the trust. The evidence demonstrates a total failure of form in respect of this alleged declaration.
238 The Full Court dealt also with this aspect of the federal magistrate’s judgment of 9 February 2009. Their Honours said (at [47]):
With all due respect, if there were a trust originally created, as Ms George alleged, “by parole”, the absence of any written declaration of trust in 1997 is hardly surprising. Further, it does not follow that a trust originally created by parole in respect of property in 1997, could not have later been evidenced in writing. It is not necessary to dwell further on this aspect of the reasons for judgment for, as will be seen, there is error enough in the way in which the two alleged written declarations of trust put forward by Ms George were dealt with.
239 Surprising or not, the fact is that there was no evidence of some writing in 1997 which would meet the requirements of s 11 of the Property Law Act. Thus it appears that the basis upon which the Full Court took the view that that need not be a problem for Ms George was that she had produced a later written instrument – her endorsement on Reprint 4A of the Trusts Act ostensibly done in May 2002 – by which the original “parole” trust was ostensibly “manifested and proved”.
240 In Fletcher v George when giving his reasons on this point at [77], the federal magistrate once again repeated verbatim the passage appearing at [85] of his summary judgment, notwithstanding the criticisms of it by the Full Court. However, that judgment was a final one, given after having heard the whole of Ms George’s case, both factual and legal. An aspect of his Honour’s determination of the case was that the written declarations of trust ostensibly executed in May 2002 and December 2003 were fabrications, and were not in fact executed until late 2007. By then, Ms George did not meet the description of a “person who is able to declare such trust” within the meaning of s 11(1)(b) of the Property Law Act since the beneficial interest of what was then the only relevant property, the Moggill property, had vested in Mr Fletcher. The prospect, left open by the Full Court, that the “parole” declaration of November 1997 might later have been evidenced in writing had, therefore, been excluded by his Honour’s final findings in the case. In those circumstances, his Honour’s observation that the 1997 transaction was not effective to create a trust was both justified and dispositive.
241 For these reasons, we dismiss ground 2(d).
Grounds 3(a) and 3(b): The findings concerning ownership of the Moggill property
242 In grounds 3(a) and 3(b) of the appeal, Ms George complained that the federal magistrate had erred in fact and law in failing to find that:
(a) Ms George was the registered owner of the Moggill property, as trustee for her son; and
(b) held a beneficial interest as the owner of a life estate in the property under a constructive trust for her and her son.
243 It is convenient to deal with these two grounds of appeal together, as they are related. It is also convenient to recapitulate some of the background facts and contentions.
244 Mr Fletcher obtained title to the Moggill property when it was transferred to him by the registered owner of the property, DPIPL. Ms George contended that DPIPL was not capable of transferring beneficial ownership of the Moggill property to Mr Fletcher. This is because, so Ms George submitted, in 2005, when she transferred the Moggill property to DPIPL she held the property on trust for her son, subject to the life interest for herself and her son, and that DPIPL had agreed to acquire, and to hold, the Moggill property on trust for her in that capacity.
245 It will be recalled that in support of this contention Ms George maintained that on or about 27 November 1997 she declared herself to hold all her interest in real and personal property on trust for her infant son and, consistently with that, later made two declarations of trust by endorsing the two reprints of the Trusts Act.
246 It will also be recalled that as corroboration of her claim that the Moggill property was held on trust for her son before it was transferred to DPIPL, Ms George also relied on the contents of a number of documents associated with the sale of the Moggill property to DPIPL in 2005.
247 In particular, Ms George relied on a document which conveyed the title of the Moggill property to her and a General Tenancy Agreement she entered into with DPIPL. Each of these documents contained handwritten notations, which Ms George contended were present on the documents at the time that they were executed, and which evidenced the fact that the Moggill property was then held on trust for her son. We will refer to these documents in more detail later.
248 The federal magistrate rejected Ms George’s claim that she held the registered title to the Moggill property on trust for her son when she contracted to sell the property to DPIPL on 18 June 2005 or when she transferred title to that property to DPIPL by a transfer she signed on 14 September 2005.
249 The federal magistrate made the following crucial findings of fact adverse to Ms George’s case.
250 First, Ms George made no oral declaration of trust of her property at or around the time of the birth of her son in November 1997.
251 Secondly, Ms George did not make a written declaration of trust in May 2002 in respect of the Pullenvale property by making the handwritten notations she claimed to have made on a reprint of the Trusts Act.
252 Thirdly, Ms George did not make a written declaration of trust in December 2003 in respect of the Moggill property by making the handwritten notations she claimed to have made on a reprint of the Trusts Act.
253 Fourthly, the circumstances surrounding the entry into the contract for the sale of the Moggill property to DPIPL and its completion did not provide any evidentiary support for Ms George’s claim that she held the Moggill property on trust for her son, subject to the life interest claimed, that she had transferred that property to DPIPL in that capacity, or that DPIPL had agreed to hold the Moggill property as trustee for her in her capacity as trustee for her son, subject to the life interest claimed.
254 Fifthly, in 2007 Ms George, then bankrupt, conceived of the idea to claim that she had, at all times, held the Moggill property on trust for her son, subject to a life interest in her and her son’s favour, and that Ms George then manufactured evidence to support her newly invented claim by “concocting” a number of documents.
255 The federal magistrate supported these findings with the following subsidiary findings.
256 First, his Honour made a general adverse credibility finding against Ms George. He said that he did not accept any evidence she gave which was not corroborated by any reliable and independent source.
257 Secondly, and more particularly, his Honour did not accept Ms George’s evidence that she had constituted herself as trustee of all her property in favour of her son at or about the time of his birth. His Honour said that he found that that evidence was not corroborated and that he was not bound to accept uncontradicted evidence. The federal magistrate adopted observations by Spender J in Re Hope; Ex parte Carter (1985) 59 ALR 609 to the effect that whether a court accepted uncontradicted evidence would depend on all the circumstances of the case, including its inherent probability and the possibility of calling evidence in denial.
258 The federal magistrate said that the evidence was not corroborated by the evidence of Mr George, Ms George’s former husband. Mr George said that he had not been informed of any trust. His Honour said that was because no trust was ever settled as Ms George contended. Indeed, he found that it was inherently improbable that such a trust was ever settled.
259 In making this finding, the federal magistrate also considered whether an express trust had been created by the various wills Ms George had made. The wills to which his Honour referred were dated 29 December 1987, 16 March 1990, 17 February 1992, 28 April 2000, 27 August 2005 and 21 March 2006. In essence, his Honour found that the wills each provided for bequests on death and the creation of a testamentary trust in favour of Ms George’s son in the event of her death. The federal magistrate found that the wills did not deal with the inter vivos position for which Ms George contended.
260 As we have already indicated, the federal magistrate also rejected Ms George’s evidence that she had made declarations of trust by making the handwritten notations she claimed to have made on the reprints of the Trusts Act in May 2002 and December 2003 and found that she had fabricated the two documents comprising the annotated reprints some time in late 2007.
261 The federal magistrate also observed that Ms George did not disclose the two documents said to evidence the trusts in favour of her son in her Family Court proceeding against her former husband which concluded in 2005. His Honour found that it was implausible that, if those documents had then existed, Ms George would not have referred to the trusts in the matrimonial proceeding. His Honour said that it was evident from the manner in which Ms George had conducted her case before him that, had the trusts been in existence at the time of the matrimonial proceeding, Ms George would not have hesitated to instruct her counsel and solicitors about them and she would have made “every effort to advance that matter in her case”. His Honour said that he was satisfied for that reason alone that the two documents did not exist at the time of the matrimonial proceeding in the Family Court.
262 Thirdly, the federal magistrate found that a number of documents associated with the 2005 DPIPL property transaction had been annotated by Ms George about two years after the date of the execution of the documents for the purpose of corroborating her recently invented claims.
263 The federal magistrate treated the following documents as being particularly relevant to the 2005 DPIPL property transaction:
(a) A contract for the sale of the Moggill property, which bears the date of 18 June 2005, between the seller, Ms George (using the name Lauren Kay Cordes) and the buyer, DPIPL. This document contains a combination of printed and handwritten entries. As mentioned previously, the document contains a handwritten notation referring to a 30 year tenancy agreement from the settlement date at a monthly rental of $269 per month, as a tenancy affecting the property. Importantly, Ms George is not described in this document as a trustee for her son.
(b) A General Tenancy Agreement between DPIPL and Ms George. This document, which comprises a completed standard form (Form 18A), purports to be a tenancy agreement for the Moggill property. The entries on the document are all written in Ms George’s hand. The agreement bears the signatures of Dr Ironside on behalf of DPIPL and Ms George using the name of Lauren K Cordes. The document records that Mr Glasspool witnessed each of their signatures on 27 August 2005.
(c) The transfer deed which was executed by Ms George using the name, Lauren Kay Cordes, on 14 September 2005. This document only records entries which are printed, other than for the date, which is handwritten. This document records the transferor as Lauren Kay Cordes and DPIPL as the transferee. There is no reference to Ms George transferring the property as trustee for her son or anyone else for that matter. Nor does it record DPIPL, the transferee, as acting in the capacity of trustee. The document also records that duty was paid on the instrument.
(d) A document entitled Transfer (exhibit 87) which was signed by Dr Ironside, on behalf of DPIPL, and Ms George (using the name Lauren Kay Cordes) to give effect to the collateral agreement between them. The document purports to transfer the Moggill property from DPIPL to Ms George as trustee for her son, Alexander. This document also contains a combination of printed and handwritten entries.
264 In support of her central contention that at the time of the 2005 DPIPL transaction she held the Moggill property on trust for her son Ms George relied in particular on exhibit 87 and the General Tenancy Agreement.
265 The transfer deed contains the printed words “Lauren Kay Cordes” as the transferee. Exhibit 87 (the transfer document) contains the additional words “in trust for Alexander George” in handwriting immediately after the printed words “Lauren Kay Cordes” in the space on the written form describing the transferee. Also, within that space on the form, is inserted, in handwriting, the word “Life” between the words on the form “Given names” and “Surname/Company name and number” and the word “Interest” after the latter printed words. Further, the handwritten words “Life Estate” have been inserted adjacent to the printed words “Fee Simple” in that part of the form which records the interest being transferred. The form additionally records in handwriting that the consideration for the transfer was $400,000 “on or before death”. Ms George’s signature was witnessed by Mr Lethbridge, solicitor, on 24 August 2005 and Dr Ironside’s by Mr Glasspool on 27 August 2005.
266 As mentioned, the General Tenancy Agreement comprised a form completed entirely in Ms George’s handwriting. That document contained a handwritten notation in a part of the form, headed “Special Terms”, to the effect that Ms George and her son had a life interest in the Moggill property. Further, the document recorded the term of the tenancy agreement in handwriting as “periodic/life interest mother & child”. The rent was recorded as “$269 a month”. The signatures of both Dr Ironside and Ms George were witnessed by Mr Glasspool on 27 August 2005.
267 Ms George, Dr Ironside, Mr Glasspool and Mr Lethbridge all gave evidence about the execution of one or more of the documents relevant to the 2005 DPIPL property transaction.
268 During the course of the hearing before the federal magistrate, Ms George admitted that she had added the words “Life Estate”, “Life” and “Interest” to the transfer form (exhibit 87) in November 2007, some two years after the original transfer was executed and witnessed. But she maintained that the handwritten words “in trust for Alexander George” were part of the transfer document which was signed by Dr Ironside; as were all the words in the General Tenancy Agreement form referred to at [266] above.
269 Dr Ironside strongly denied that the agreement he made with Ms George was that DPIPL was to hold the property on trust for Ms George as trustee for her son, or that he agreed to any arrangement in respect of which Ms George or her son was to have a life interest in the Moggill property. The federal magistrate accepted Dr Ironside’s evidence that he would not have entered into an arrangement on those terms. The federal magistrate also accepted the evidence of Dr Ironside that there was nothing in the contractual document at the time that he signed it which provided that Ms George was conveying the property to him subject to a life interest either in her favour or in favour of her son or that a 30-year tenancy agreement was referred to in the contract for sale.
270 As for the General Tenancy Agreement, Dr Ironside said that he did not recall seeing the words “life interest mother & child” after the word “periodic” in the document he signed. Dr Ironside deposed that those words took the agreement beyond that which had been agreed in June 2005. Dr Ironside also said that the words under the heading “Special Terms” were not in the document he signed. The federal magistrate accepted Dr Ironside’s evidence on this point, too. His Honour found that the evidence of Mr Glasspool was not helpful on the question of whether the General Tenancy Agreement contained the contentious words at the time that Mr Glasspool witnessed the parties’ signatures.
271 His Honour went on to find that it would have been irrational for Dr Ironside to have entered into the transaction contended for by Ms George, because DPIPL had borrowed $400,000 to complete the purchase, and would thereby have exposed itself to the risk of not being able to resort to the property as security to repay the loan.
272 As for the transfer document (exhibit 87), the federal magistrate found that the words “in trust for Alexander George” had been handwritten in the same ink as the words Ms George admitted she had added to the document in November 2007. His Honour also found that when signed in 2005, the contract of sale did not refer to a tenancy to Lauren Kay Cordes for 30 years from the settlement date of a monthly rental of $269 per month; and that Ms George added those words in November 2007 together with the words “life interest mother & child” and the words under the heading “Special Terms” in the General Tenancy Agreement. He found that she did so after becoming aware of the prospect of losing the Moggill property to the trustee in bankruptcy and that claiming a trust in favour of her son was a means of defeating his claim to the property. His Honour held that the insertion by Ms George of the handwritten words into the documents was a “fraudulent concoction on her part”.
273 In her appeal, Ms George contended that the federal magistrate made a number of errors, which led him to make the factual findings she impugned under these two grounds of appeal.
274 First, Ms George contended that the federal magistrate erred in accepting Dr Ironside’s evidence that he did not agree, on behalf of DPIPL, to acquire or hold the Moggill property on trust for Ms George as trustee for her son, with a life interest in favour of her and her son. Ms George argued that Dr Ironside’s evidence was undermined by the fact that Dr Ironside had in email correspondence with her acknowledged the trust relationship in respect of the Moggill property.
275 Ms George referred the Court to two emails from Dr Ironside upon which she relied as evidencing Dr Ironside’s acknowledgement of the trust relationship. There is, indeed, a reference in the emails to the property being held on trust. But the emails contain no acknowledgment that Ms George held the Moggill property on trust for her son. The reference in the emails to a trust arises in the context of the question whether the Moggill property would be part of the matrimonial property for the purposes of a property settlement in the Ironside proceeding; or whether it would be excluded on the grounds that it was held on trust.
276 The relevant parts of the two emails are as follows:
Sent: Thursday, August 23, 2007 7:20 AM
Subject: Re: United front
My offer to jane can’t happen until the conference in which we state that you and I have a trust agreement about the house. The mediator will then have to arrange a prelim hearing before a judge to address that issue.
Sent: Saturday, August 25, 2007 2:45 PM
Subject: Re: United front
I have now read the stuff that you sent to Margaret. Your are really not getting it. The parties have NOT agreed to leave your house out of it , and that is what we need to be united about in front a judge. We want to leave your house out of it , but the only offer from jane’s side includes it.
…
Take some advice , and stop giving us instructions which we can’t take. The first part of the process is to establish that the house is in trust and then it will be left out. That is what we are trying to do. By having you as a co-respondent , it enables you to have your say and to present your actual interest in the house. To be saying that you don’t want to be a co-respondent puts the whole process at great risk. If you are not going to get independent legal advice , then , please at least take ours.
(Emphasis added.)
277 Dr Ironside explained in cross-examination that he was using the word “trust” loosely, to describe the collateral arrangement reached with Ms George whereby Ms George had a right to repurchase the Moggill property. There is nothing in the emails to suggest that Dr Ironside knew that Ms George held the Moggill property on trust for her son.
278 Accordingly, these emails do not assist Ms George’s contention that DPIPL agreed to acquire and hold the Moggill property on trust for her in her capacity as trustee for her son, Nor do they demonstrate that the federal magistrate erred in accepting Dr Ironside’s evidence.
279 Secondly, Ms George claimed that the evidence of Dr Ironside’s step-daughter, Ms Mitchell, corroborated her claim that DPIPL held the property on trust for her as trustee for her son; and that the federal magistrate erred in failing to give any weight to that evidence.
280 The evidence to which Ms George referred is an affidavit in which Ms Mitchell deposed that on 18 September 2007 she sent a text message to Dr Ironside about his matrimonial dispute. Ms Mitchell went on to depose that Dr Ironside had replied to her text message with a text message of his own which stated:
Trying to establish that the house is in trust and not an asset not to sell.
281 In our view, the federal magistrate did not err in not treating Ms Mitchell’s evidence as corroborating Ms George’s contention that in August 2005 she held the Moggill property on trust for her son and that DPIPL took the transfer of the Moggill property subject to those trust interests. This evidence goes no further than providing possible support for a finding that Dr Ironside had acknowledged that Ms George may have had some beneficial interest in the Moggill property. It does not prove that Dr Ironside acknowledged that DPIPL held the property on trust for Ms George as trustee for her son.
282 Thirdly, Ms George complained that the federal magistrate erred in his assessment of the evidence of Mr Lethbridge, the solicitor who witnessed Ms George’s signature to the transfer document (exhibit 87) on 24 August 2005. It will be recalled that exhibit 87 contained the handwritten additions Ms George relied upon as evidencing the existence, in August 2005, of the trust she claimed in favour of her son. At the time he gave evidence, Mr Lethbridge had his affidavit and a copy of exhibit 87 in front of him. Mr Lethbridge testified that he would not usually witness documents that were partially completed. He went on to state, on a number of occasions, that he had no actual recollection of witnessing Ms George’s signature on that document. The federal magistrate referred to this evidence and observed (at [171]) that it was not inconsistent with the finding that Ms George had added words to the document in November 2007 – well after Mr Lethbridge had apparently witnessed her signature.
283 Ms George contended that the federal magistrate’s assessment of Mr Lethbridge’s evidence was undermined by the fact that Mr Lethbridge had given evidence by telephone and was not, therefore, able to inspect the original document (exhibit 87). Had this occurred, said Ms George, Mr Lethbridge’s memory might have been sparked. As we have intimated (at [125] above), there is no reason to believe that if Mr Lethbridge had seen the original, rather than a copy, his evidence would have been any different. As the federal magistrate found, Mr Lethbridge gave evidence that he had no recollection of the event in question. In this regard, Mr Lethbridge referred to the fact that he witnessed about 30 documents a day, and to the amount of time that had elapsed since he had witnessed Ms George’s signature. In our view, the federal magistrate did not err in his assessment of Mr Lethbridge’s evidence.
284 Fourthly, Ms George contended that the evidence of Mr Glasspool corroborated her claim and the federal magistrate erred in failing so to find. On 27 August 2005 Mr Glasspool, it will be recalled, witnessed Dr Ironside’s signature on exhibit 87 and the General Tenancy Agreement and Ms George’s signature on the General Tenancy Agreement.
285 Mr Glasspool testified that he was a justice of the peace and not a lawyer. He gave evidence as to his practice in witnessing signatures on documents. He said that he would not witness a signature on a blank form; nor would he add his initials to a handwritten notation in a document if there was nothing to show that the handwriting had been corrected. Mr Glasspool also said that he would not normally initial the handwritten parts of a form where the entries on the form were a combination of printed and handwritten entries.
286 As mentioned, the federal magistrate concluded that Mr Glasspool’s evidence was not helpful on the question of whether Ms George’s handwritten notations in exhibit 87 and the General Tenancy Agreement were part of the documents he witnessed on 27 August 2005. Ms George contended that in light of Mr Glasspool’s evidence referred to in the preceding paragraph, the federal magistrate erred in this assessment. Rather, Ms George submitted, Mr Glasspool’s evidence supported her contention that both exhibit 87 and the General Tenancy Agreement contained the crucial contentious handwritten terms at the time they were signed.
287 In our view, it was open to the federal magistrate to make the assessment of Mr Glasspool’s evidence that he did. That is because, during his evidence, Mr Glasspool accepted that he could not say whether the handwritten notations on exhibit 87 were present at the time that he witnessed Dr Ironside’s signature on that document, nor could he confirm that the contentious notations were part of the General Tenancy Agreement on which he had witnessed Ms George’s and Dr Ironside’s signatures.
288 Fifthly, Ms George submitted that the evidence of her sister, Ms Wilson, supported her contention that at the time that she entered into the 2005 DPIPL transaction, she (Ms George) held the Moggill property on trust for her son and that DPIPL acquired and held the property on trust for Ms George in the same capacity.
289 Ms George drew the Court’s attention to Ms Wilson’s oral evidence at the trial that she was upset when she learned from Ms George of the 2005 DPIPL transaction and that Ms George held exhibit 87 in a safety deposit box. Ms Wilson said that she was upset because she thought that her husband was seeking to use the Moggill property to “blackmail” her in a future property settlement. This evidence went nowhere. It did not support Ms George’s claim that in August 2005 she held the Moggill property on trust for her son. Consequently, the federal magistrate did not err in placing no weight on it.
290 Sixthly, during oral submissions Ms George complained that the federal magistrate erred by not giving any weight to two documents: Exhibits 11 and 92.
291 Exhibit 11 is a document which purports to be an agreement in the form of an undertaking between Ms George and DPIPL. It was not witnessed by Mr Glasspool, although it carries the same (handwritten) date (27 August 2005) as the dates of the General Tenancy Agreement and exhibit 87, the transfer document. Exhibit 11 contains the following printed clause:
2/The property situated above will not be sold or the mortgage debt increased without consent and knowledge from both parties. If sold the funds will repay the debt/mortgage to Dr Peter Ironside Pty Ltd with the remaining funds going to Lauren K Cordes.
292 At the end of this clause, there is then inserted in handwriting the words:
in trust for Alexander George.
293 The document bears the signatures of Dr Ironside and Ms George. Dr Ironside acknowledged in cross-examination that the signature on the document was his. However, he deposed that he did not recall executing such a document, and that the terms set out in the document did not reflect the terms of the arrangement on which he agreed to purchase the Moggill property from Ms George. Dr Ironside acknowledged that in their discussions, Ms George raised the possibility of her son being able to purchase the property in the event that she died. But he denied that Ms George mentioned to him that she held the property on trust for her son.
294 In the light of that evidence, it was open to the federal magistrate not to place any weight on exhibit 11. Further, the document was not witnessed and the handwritten addition was not initialled by Ms George and Dr Ironside to acknowledge it as an amendment. Having regard to his Honour’s findings concerning Ms George’s fraudulent conduct in altering the documents already referred to, it was open to him not to place any weight on this document.
295 Exhibit 92 is a form entitled Property Transfer Information which had been completed entirely in Ms George’s hand. The document describes DPIPL as the transferor of the Moggill property and “Lauren Kay Cordes in trust for Alexander George” as the transferee. The document is not signed or witnessed by any other party. It provides no independent support for Ms George’s case. In these circumstances, the federal magistrate did not err in failing to advert to it as corroborative of Ms George’s central contention.
296 Seventhly, in the course of her oral submissions Ms George referred to the various wills she had made. The wills showed that on her death her son would inherit her property. They provided no support for the notion that she held the property on trust for her son during her lifetime. The same is true of Ms George’s evidence that her husband, Matthew, had acknowledged that, in the event that she predeceased him, her property was to go to her son, and not to Mr George’s side of the family.
297 Ms George also referred to a certificate of title which showed that she was the legal owner of the Pullenvale property. This document did not support Ms George’s central contention, either.
298 Consequently, the federal magistrate did not err in giving these documents no weight.
299 In addition Ms George referred to two documents relating to the Ironside proceeding.
300 One of the documents is an application to the Family Court dated 14 November 2007, filed by Dr Ironside’s solicitors in the Ironside proceeding, seeking “the construction of the agreement (if any)” between Dr Ironside, Ms Wilson and the trustee [Mr Fletcher], and for the declaration of the bankruptcy trustee’s interest in the Moggill property. Among the orders sought in the application were orders contemplating that Mr Fletcher, as Ms George’s trustee in bankruptcy, might have an interest in the Moggill property on behalf of Ms George as trustee for her son.
301 The second document comprises the instructions to the mediator in the Ironside proceeding which were prepared by Dr Ironside’s solicitors. The instructions stated that in an affidavit of 15 November 2007 (filed in the Ironside proceeding), Dr Ironside said that he “appeared” to have executed a transfer document in which he transferred the Moggill property to Ms George as trustee for Alexander George. Dr Ironside went on to say that he remained unaware of the meaning and effect of that transfer document.
302 Ms George submitted that these two documents proved that Dr Ironside acknowledged that, at the time of its transfer, Ms George held the Moggill property on trust for her son. In our view, the references in those two Family Court documents relating to the possibility of Alexander George holding the beneficial interest in the Moggill property do not support the submission. This is because it is plain that, in preparing the two documents and Dr Ironside’s affidavit of 15 November 2007, Dr Ironside’s solicitors took the contents of exhibit 87 (which by then included the handwritten amendments made by Ms George) at face value. This is apparent from the fact that in the affidavit (referred to in the mediation instructions), Dr Ironside said only that he “appeared” to have signed the transfer document transferring the Moggill property to Ms George as trustee for Alexander George, not that he had in fact signed a transfer document to that effect.
303 It follows that the federal magistrate did not err in placing no weight on these documents either.
304 In summary, the federal magistrate did not err in making any of the impugned factual findings. It was open to his Honour to find that Ms George had in November 2007 fabricated the documents by making the handwritten notations on the two reprints of the Trusts Act, the contract for sale, exhibit 87 and the General Tenancy Agreement. In making those findings, the federal magistrate placed considerable significance on the fact that Ms George had not referred to the written declarations of trust evidenced by the annotated reprints of the Trusts Act in her matrimonial proceedings against her former husband. We agree with his Honour that this circumstance is particularly telling against Ms George’s credibility.
305 Ms George advanced a number of arguments in her outline of written submissions relating to the law on the formal requirements for the creation of a trust affecting land. The submissions contained a number of legal propositions and references to observations from cases. The submissions, so far as we could discern, were directed towards a contention that in declaring the trusts upon which she relied, Ms George had complied with the formal requirements of the law for the declaration and creation of a trust of land. The premise for all these submissions was Ms George’s evidence that she had in fact declared and created the trusts for which she contended. In the light of our finding that the federal magistrate did not err in rejecting Ms George’s evidence concerning the declaration and creation of those trusts, it is unnecessary to deal with Ms George’s submissions as to the law.
306 Grounds 3(a) and 3(b) must be dismissed.
Ground 3(d): The mortgage to NAB
307 The next ground of appeal (there is no ground 3(c)) is that the federal magistrate erred in failing to find that DPIPL had no legal right to grant the mortgage to NAB which was executed on 19 September 2006 by DPIPL and on 29 September 2006 by NAB.
308 The ground is founded on the assumption that the federal magistrate erred in failing to find that Ms George held the Moggill property on trust for her son at the time that she transferred that property to DPIPL in September 2005 and that DPIPL held that property on trust for her in that capacity. For the reasons we have given above, the federal magistrate did not err in rejecting Ms George’s claims that she held the Moggill property on trust for her son. It follows that the assumption is unfounded.
309 By the time DPIPL executed the mortgage in favour of NAB, Ms George was bankrupt. Any interest Ms George may have held in her own right in the Moggill property at that time was held by Mr Fletcher as her trustee in bankruptcy.
310 We therefore dismiss ground 3(d). There is no ground 3(e). It was deleted by the amended notice of appeal.
Ground 3(f): The Lara horse float
311 The next ground of appeal is that the federal magistrate erred in failing to find that the Lara horse float was used by Ms George in earning income by personal exertion, had a value less than the limit prescribed by the Bankruptcy Regulations, and was not divisible amongst Ms George’s creditors.
312 In her statement of claim Ms George sought an order that the Lara horse float vest in her by reason of s 116(2)(c) of the Bankruptcy Act. This is the provision which precludes property a bankrupt uses to earn income by personal exertion (colloquially referred to as a “tool of trade”) from being property divisible amongst the creditors.
313 The federal magistrate rejected the claim on the basis that the evidence of Ms George and Mr Siebert could not be accepted.
314 Why the federal magistrate came to deal with this question at all at the trial and in his reasons for decision is a mystery. As we observed above, by a consent order made on 5 December 2008, his Honour had ordered that the Lara horse float vest in the trustee.
315 The background is as follows. This review of necessity canvasses some matters to which we have already referred.
316 In November 2008 Mr Siebert swore two affidavits in the proceeding below in which he deposed that he was the owner of the Lara horse float. He said that he had purchased it from a Mr Arthur and he permitted Ms George to use it. He complained in his affidavits that Mr Fletcher had seized the horse float and sought its immediate return.
317 By an order of 18 November 2008, Mr Siebert then was joined as a party to the proceeding.
318 On 5 December 2008 the federal magistrate made the consent order relating to the Lara horse float. At the same time his Honour also made an order by consent permitting Mr Siebert to withdraw from the proceeding. He made those orders in open court at a hearing at which Ms George appeared and Mr Siebert was on the telephone.
319 On 8 December 2008 the federal magistrate began hearing the applications for summary judgment.
320 In an amended statement of claim filed by Ms George on 23 December 2008 (while his Honour’s judgment was reserved), Ms George pleaded that she had used the Lara horse float to earn income. Ms George also pleaded that Mr Siebert had purchased the horse float from her for $3,000, and that Mr Siebert had:
donated the float to the bankrupt trustee for the continued use by the bankrupt by way of consent orders in the circumstances where the litigation to maintain ownership of such an asset would exceed the original cost of purchase being $3000 (including registration).
321 Ms George went on to plead that Mr Siebert would not have willingly consented to the order if it were not for the fact that Mr Fletcher had seized the Lara horse float and this had resulted in Mr Siebert being joined as a party to the proceeding. Ms George sought an order that the Lara horse float vest in her under s 116(2)(c)(i) of the Bankruptcy Act.
322 On 3 February 2009 Mr Fletcher filed a defence to this claim stating that the ownership of the Lara horse float was the subject of the consent orders made on 5 December 2008.
323 The federal magistrate made no order affecting the Lara horse float, when he made orders on the summary judgment applications (Fletcher v George (No. 6)). In his reasons for judgment in Fletcher v George (No. 6) (at [69]–[70]) his Honour referred to the consent orders in relation to “the horse float”. Although his Honour did not refer expressly in those two paragraphs to the Lara horse float, it is plain that this is the horse float to which he was referring. It appears from those paragraphs that he considered that the question of who was entitled to the property in the Lara horse float had been determined by the consent orders made on 5 December 2008.
324 As we mentioned in connection with ground 2(a) of the appeal, in [71]–[73] of his reasons in Fletcher v George (No. 6), the federal magistrate then went on to refer to a claim made by Ms George about an “unregistered horse float”. His Honour then found that this claim (together with the claim with respect to household effects and jewellery) could not be the subject of a summary judgment and should go to trial.
325 The Full Court’s decision on the appeal from that judgment (George v Fletcher (Trustee)), delivered on 28 May 2010, and the attendant orders, did not mention any claim in relation to the Lara horse float. It is apparent, however, that Ms George again raised the question of the Lara horse float before Logan J in her application to stay the orders of the Full Court. At [15] of his reasons for judgment in George v Fletcher (No 2) Logan J observed:
Also read today was another order of the Federal Magistrates Court, one made, originally, on 5 December 2008 and amended on 11 December 2008. That order records the following, materially, as having been made by consent:
That the dual axle Lara construction horse float, registration number 938 QMZ is property vested in the trustee.
There has never been a grant of leave to appeal in respect of the order made in the Federal Magistrates Court, in respect of the float. It is, having regard to the fact that the order concerned was made by consent, a complete and utter distraction to give any further consideration, in these circumstances, to the question of whether there ought to be any stay of the orders of the Full Court on the appeal, in relation to the float. The appeal was in no way concerned with that item of property.
326 On 16 July 2010 there was a hearing before the federal magistrate apparently for the purpose of making some pre-trial directions. During the course of that hearing his Honour had regard to an amended application which Ms George had filed. In his reasons for decision in Fletcher v George (No. 8) at [12]–[13] he observed:
First, I will dispose of the less controversial matters. First, the horse float, paragraphs 4, 5 and 13. As noted in paragraph 71 of my judgement of 9 February 2009, this chattel is a subject of a factual dispute to be resolved at trial. There was a consent order made concerning its title on 5 December 2008 which matter will be agitated at trial. The trustee presently holds the asset but the bankrupt has claimed that this asset is a tool of trade – see her amended statement of claim, paragraph 57.
This is a matter she can no doubt pursue at trial on the basis of her prospective success in her application for a declaration of title to that chattel. But, ultimately, whether any such application under section 116(2)(c) Bankruptcy Act has prospects depends upon a favourable outcome in her application for declarations as to title. As I understand it, the trustee does not seek to do anything with the chattel to date and there is no need for any formal orders.
327 It appears that the federal magistrate was of the view that it was open to Ms George to pursue her claim, notwithstanding the existence of the consent orders of 5 December 2008. Further, the federal magistrate appeared to have overlooked the distinction he had drawn (rightly or wrongly) in his reasons in Fletcher v George (No. 6) between the Lara horse float (referred to in [69]–[70]) and the so-called “unregistered horse float” (referred to in [71]–[73]).
328 During the trial Ms George contended that the Lara horse float was owned by Mr Siebert and also contended that the Lara horse float should be vested in her because it fell within s 116(2)(c)(i) of the Bankruptcy Act. Her case was that she generated income by the conduct of a dressage training business and that prior to the seizure of the Lara horse float she had used the horse float in her business. The federal magistrate found that the only evidence in support of the contention that Ms George conducted a business that required the Lara horse float was her own evidence and the evidence of Mr Siebert. His Honour rejected Ms George’s evidence on the basis of his adverse view of her credit generally. He rejected the evidence of Mr Siebert on the basis that he was “not satisfied” that Mr Siebert was truly impartial and independent.
329 Ms George submitted that the federal magistrate erred in making these findings.
330 Mr Fletcher’s response was that, regardless of the fact that the federal magistrate had rejected Ms George’s claim on credibility findings, this ground of appeal should be dismissed because the claim was fundamentally flawed for two reasons. The first was that there was an order of the Federal Magistrates Court that had not been set aside and which was inconsistent with Ms George’s claim that the Lara horse float vested in her as a “tool of trade”. Secondly, Ms George’s claim that the Lara horse float vested in her as a “tool of trade” was inconsistent with her claim that Mr Siebert was the owner of the horse float.
331 We would dismiss this ground of appeal on the basis that there was at the time of the trial an extant order of the Federal Magistrates Court to the effect that the Lara horse float vested in the trustee.
332 The manner in which the trial proceeded in relation to this issue is somewhat curious. There is reason to believe that at the time of the judgment in Fletcher v George his Honour believed there were two horse floats: one registered, one unregistered. The evidence about this is confusing. Whether or not this is correct, however, Mr Siebert’s evidence only related to the Lara horse float (which had a registration number but which may have been unregistered at the time he gave evidence). During the course of Mr Siebert’s evidence the federal magistrate drew attention to the fact that, by the consent orders made on 5 December 2008 to which Mr Siebert had been a party, the court had made an order that the Lara horse float vested in the trustee and Mr Siebert had taken no steps to set it aside. Notwithstanding this observation, his Honour continued to permit the question of the ownership and use of the Lara horse float to be explored in the evidence. Further, his Honour did not refer in his reasons to the existence of the consent order, nor its effect upon Ms George’s claim.
333 It is apparent from the transcript of that hearing that the consent orders made on 5 December 2008 were made consequent upon an agreement between Mr Fletcher and Mr Siebert, whereby Mr Siebert agreed that the Lara horse float vested in Mr Fletcher, as trustee of Ms George’s bankrupt estate, and Mr Fletcher agreed to release Mr Siebert as a party to the proceeding. In other words, the consent orders of 5 December 2008 gave effect to a compromise reached between Mr Siebert and Mr Fletcher.
334 In Harvey v Phillips (1956) 95 CLR 235, the High Court said, at 243–4, that in that circumstance:
The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
335 There is also authority to the effect that any application to set aside consent orders which give effect to a compromise is to be brought by a separate action (Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691). There was no evidence of any such application ever having been made by Mr Siebert, the party to the compromise.
336 Since 5 December 2008, therefore, the consent order has remained in force. We observe that there is nothing in that order which supported Ms George’s pleaded case that Mr Siebert had “donated the horse float to the bankrupt trustee for continued use by [Ms George]”. Nor is there anything in the consent order which evidenced any agreement by Mr Fletcher to permit Ms George to continue to use the Lara horse float. Further, it would follow from the fact that Mr Siebert agreed that the horse float vested in Mr Fletcher as trustee of Ms George’s bankrupt estate without preserving any right in Ms George to continue to use the horse float that Mr Siebert thereby, at least impliedly, terminated any licence which Ms George might previously have enjoyed in relation to the use of the Lara horse float.
337 In those circumstances, the existence of the consent order vesting the property of the Lara horse float in the trustee in bankruptcy was an insurmountable obstacle to Ms George’s claim and should have been treated as such by the federal magistrate.
338 Accordingly, we dismiss ground 3(f) of the appeal.
339 We also observe, in passing, that Ms George contended before this Court that an issue estoppel had arisen on the question of the Lara horse float by reason of a judgment made by Wilson FM in a matrimonial proceeding between Ms George and her husband. The finding to which Ms George referred was a finding that the Lara horse float belonged to Mr Arthur, a client of Ms George. In our view, this finding goes nowhere and does not assist Ms George. It was also contradicted by Mr Siebert in the evidence Ms George, herself, adduced. In any event, findings made by Wilson FM in the matrimonial proceeding would not constitute an issue estoppel in respect of the proceeding before the federal magistrate because Mr Fletcher was not a party to the matrimonial proceeding.
340 The next ground of appeal was that the federal magistrate erred in failing to find that the Toyota Landcruiser was property primarily used by Ms George as a means of transport, and that the first $6,850 (being the proceeds of the sale) was not divisible amongst her creditors. Ms George sought an order that Mr Fletcher pay her that sum.
341 The federal magistrate made no findings about the Landcruiser. This is because the question of the ownership of the Landcruiser and Ms George’s claim that the Landcruiser was exempt property under s 116(2)(ca) of the Bankruptcy Act were the subject of the summary judgment application and of the orders his Honour made on 9 February 2009. One of those orders was a declaration that the legal and beneficial ownership of the Landcruiser vested in the trustee. Ms George failed in her attempt to set aside that order in her appeal to the Full Court.
342 It appears from Ms George’s written submissions, that, in essence, she makes two complaints.
343 The first appears to be that the federal magistrate in an earlier decision, namely, Fletcher v George (No. 8) at [21]–[28], in giving directions for the trial, refused to permit Ms George to raise at the trial the question of the ownership of the Landcruiser and the application of s 116(2)(ca) of the Bankruptcy Act.
344 The second complaint arises from the fact that during the course of the trial the trustee sold the Landcruiser. Ms George’s complaint is that the federal magistrate refused to permit her to ask questions during the trial about any refund to her of the $6,850 under s 116(2C) of the Bankruptcy Act,
345 As to the first complaint, the federal magistrate did not err in refusing to permit Ms George again to raise these questions at the trial. These questions were decided against her by the federal magistrate in his judgment in Fletcher v George (No. 6) and by the Full Court on appeal.
346 Neither did his Honour err in relation to the second complaint. That complaint was not the subject of any pleaded claim made in the proceeding. Consequently, it was open to him to prevent Ms George from pursuing it during the trial.
347 This ground of appeal is dismissed.
Ground 3(i): Chattels allegedly owned in trust
348 The next ground of appeal (ground (h) having been deleted in the amended notice of appeal) is that the federal magistrate erred in failing to find that all chattels seized from Ms George described within Exhibits 2–9 vested in Ms George as trustee for her son.
349 Ms George contended that the declaration of trust in respect of the chattels was a trust by parole and did not have to comply with s 11 of the Property Law Act which prescribed the formality of writing in relation to a trust of land or interest in land.
350 As the federal magistrate did not accept Ms George’s evidence that she had made an oral declaration of trust in favour of her son and as we have found that it was open to the federal magistrate to do so, the premise for this ground of appeal is not made out.
351 Accordingly, this ground of appeal is also dismissed.
Ground 3(j): Chattels as exempt household or sentimental property
352 In the final ground of appeal Ms George contended that the federal magistrate erred in failing to find that all the chattels seized from her, which are described in exhibits 2–9, annexure LKG 101, were either exempt household or sentimental property which remained protected under s 116(2) of the Bankruptcy Act and so were not divisible amongst her creditors.
353 This ground of appeal overlaps with the issues referred to in ground 2(a) of the appeal considered above. We have allowed that ground of appeal and we would, accordingly, also allow this one in so far as it deals with the same items with which ground 2(a) is concerned. Plainly, for the reasons set out above, it was not open to Ms George to argue that some of the seized chattels were exempt property.
conclusion
354 Ground 2(a), and to the extent that they raise the same issue, grounds 1 (in part) and 3(j) (in part) are allowed. The appeal is otherwise dismissed.
355 Ms George should pay the costs of DPIPL, Dr Ironside and NAB. There should, however, be some reduction in the costs to which Mr Fletcher, as a successful respondent, would conventionally be entitled to reflect the limited respects in which he did not succeed on the appeal; and possibly also some allowance, in favour of Ms George, for such of her disbursements as related to that aspect of the case. We assume that, as a self-represented appellant, Ms George would have no professional costs to which she would be entitled on a taxation (see George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 at [16]). Our own estimate is that justice would be done in both of these respects if we were to order Ms George to pay 90% of Mr Fletcher’s costs. We would permit, but not encourage, Ms George and Mr Fletcher to apply within 14 days for a variation of our costs order, pending which time the operation of that order will be stayed. If there is such an application, it will be decided on such brief written submissions (not exceeding three pages) as we receive within the times laid out in the orders we propose to make.
I certify that the preceding three hundred and fifty five (355) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Jessup and Katzmann. |
Associate:
