FEDERAL COURT OF AUSTRALIA
Horvath v Commonwealth Bank of Australia [1999] FCA 504
BANKRUPTCY – application for leave to file defence to enable applicant to go behind judgment debt.
PRACTICE & PROCEDURE – Federal Court of Australia – application to have parties declared vexatious litigants – “habitually and persistently” – “without any reasonable ground” – Federal Court Rules O 21 r 2 – abuse of process – Federal Court Rules O 46 r 7A.
Bankruptcy Act 1966 (Cth) ss 52, 99, 178
Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 referred to
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 referred to
Ex parte the Attorney-General; Re Alexander Chaffers (1897) 76 LT 351 referred to
Attorney-General v Wentworth (1988) 14 NSWLR 481 applied
Jones v Skyring (1992) 109 ALR 303, 310 applied
Jones v Cusack (1992) 109 ALR 313, 315 applied
Attorney-General (NSW) v Solomon (1987) 8 NSWLR 667 at 673 applied
Re Langton [1966] 1 WLR 1575 referred to
Wentworth v Attorney-General (NSW) (1987) 12 NSWLR 191 at 196 referred to
GABOR HORVATH & AGOTA HORVATH v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
PAUL A PATTISON (Trustee) & COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) v GABOR HORVATH & AGOTA HORVATH
VG 649 of 1998
VG 661 of 1998
WEINBERG J
MELBOURNE
27 APRIL 1999
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 649 OF 1998 |
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BETWEEN: |
GABOR HORVATH First Applicant
AGOTA HORVATH Second Applicant
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AND: |
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) Respondent
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VG 661 OF 1998 |
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BETWEEN: |
PAUL A PATTISON (Trustee) First Applicant
COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) Second Applicant
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AND: |
GABOR HORVATH First Respondent
AGOTA HORVATH Second Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
In proceedings VG 649 of 1998
1. The application for leave to file and serve defences be dismissed.
2. The applicants pay the respondent’s costs.
In proceedings VG 661 of 1998
1. Mr Gabor Horvath Senior and Mrs Agota Horvath shall not, without the leave of the Court, institute in this Court any proceedings against Mr Paul A Pattison, their trustee in bankruptcy, or against the Commonwealth Bank of Australia, other than an appeal against this order.
2. Any proceeding instituted by either Mr Gabor Horvath Senior or Mrs Agota Horvath in this Court against their trustee in bankruptcy, or the Commonwealth Bank of Australia, prior to my having made this order shall not be continued by them without the leave of the Court, other than an appeal against this order.
3. The respondents shall serve upon the applicants any proposed application for the leave of the Court to institute any proceedings against the applicants at least three clear days prior to that application being filed in Court.
4. Any such application by the respondents shall be made and determined ex parte, unless the applicants seek to be heard in relation to that application.
5. The respondents pay the applicants’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 649 OF 1998 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 There are before the Court two separate but related applications. The first is brought in proceedings VG 649 of 1998. The applicants in those proceedings are Mr Gabor Horvath (Senior), and his wife Agota (“the Horvaths”). The respondent is the Commonwealth Bank of Australia (“the Bank”). The applicants in proceedings VG 661 of 1998 are Mr Paul A Pattison, the Horvaths’ trustee in bankruptcy, and the Bank. The Horvaths are the respondents to those proceedings.
2 In proceedings VG 649 of 1998 the Horvaths describe themselves as applicant debtors, and the Bank as respondent judgment creditor. The application, in terms, seeks “a leave of a Judge file and serve Defences in this proceeding”. What the Horvaths plainly have in mind, however, is to seek to have the Court set aside, or annul, sequestration orders previously made at the behest of the Bank against each of them.
3 In proceedings VG 661 of 1998 Mr Pattison and the Bank seek orders against the Horvaths pursuant to O 21 r 2 of the Federal Court Rules. Order 21 r 2 provides as follows:
“Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.”
Order 21 r 3 provides that a person seeking an order under r 2 shall proceed by application. Order 21 r 5 provides that where the Court has made an order under r 2 against any person, the Court shall not give him leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.
Background to the present applications
4 The genesis of the saga leading to the present applications was an agreement entered into by Mr Horvath Senior on 18 September 1987 to purchase from Marlachi Pty Ltd a block of land known as Lot 4 Superior Drive, Dandenong. On that date, Mr Horvath paid a deposit of $2,800.00 as the first instalment of a total deposit of $6,932.00 with the balance to be paid within sixty days. The Vendor’s Statement to the purchaser pursuant to s 32 of the Sale of Land Act 1962 (Vic) indicated that Lot 4 was to be acquired by the Horvaths, and their son Gabor Horvath Junior.
5 Lot 4 appeared as part of a subdivision of land in Certificate of Title Volume 8771 Folio 001. The sale of that lot appears to have been handled by a Licensed Estate Agent, Mr DJ Feldman. On 28 September 1987 he forwarded a Contract of Sale to the solicitors then acting for the Horvaths, Messrs Koltay & Myers.
6 That Contract of Sale identified Lot 4 as the block being purchased by the Horvaths. Inquiries were then made concerning Lot 4. Eventually an Instrument of Transfer of Land was prepared. The consideration for the transfer was stated to be $69,320.00.
7 On 16 November 1987 Mrs Horvath wrote to Koltay & Myers enclosing a cheque made out to the vendor’s solicitors, Messrs Campbell & Shaw, for the balance of the deposit. She also enclosed with that letter the Transfer which had been signed by the Horvaths, and by their son. On 16 November 1987 requisitions on title were made. These requisitions were answered on 30 November 1987. The settlement date at that stage proposed was 11 April 1988. Thereafter, and throughout the months leading up to March 1988, all correspondence passing between the Horvaths and their solicitors confirmed that the block of land purchased by them was Lot 4.
8 Settlement did not, however, take place on 11 April 1988. It appears that what occurred was that the vendors requested a variation of the Contract of Sale by substituting for Lot 4 Superior Drive the adjoining block, Lot 5. It seems that the owner of Lot 3 wished to acquire its adjoining property, Lot 4, in order to enable a particular development to take place. Lots 4 and 5 were relevantly indistinguishable. The Horvaths were requested by the vendors to agree to take Lot 5 in place of Lot 4.
9 On 19 April 1988, Campbell & Shaw, acting on behalf of the vendors, wrote to the Horvaths’ solicitors in the following terms:
“Dear Sirs,
RE: HORVATH FROM MARLACHI PTY LTD
LOT 5 SUPERIOR DRIVE, DANDENONG
We refer to our telephone conversation with your office of even date and we now enclose herein a copy of the amended Contract of Sale and Transfer of Land for your records.
We confirm that in consideration of the Purchasers relinquishing their rights to Lot 4 Superior Drive, Dandenong and purchasing in lieu thereof, Lot 5 Superior Drive, Dandenong the Vendor is agreeable to extending the date of settlement herein until 11 May 1988.
We advise that settlement will be required to be effected at the offices of AGC (Advances) Limited, 277 William Street, Melbourne and we look forward to receiving an appointment from you in due course.
Yours faithfully
Campbell & Shaw.”
10 It would seem from the terms of this letter that the solicitors acting for the Horvaths understood that their clients had agreed to the substitution of Lot 5 for Lot 4. Indeed, on 22 April 1988 Koltay & Myers wrote to the Manager of the Commonwealth Bank at 171 Swan Street, Richmond South. In that letter they referred to a housing loan to be advanced by the Bank to the Horvaths and to their son, enabling them to purchase Lot 5 Superior Drive, Dandenong.
11 The Koltay & Myers file relating to Lots 4 and 5 Superior Drive, Dandenong has been produced as an exhibit in the proceedings before me. Among the documents contained in that file is a Transfer relating to Lot 5. That lot is described as Certificate of Title Volume 9801 Folio 263. The consideration stated in the transfer is $69,320.00 – the same sum as had previously been agreed in relation to Lot 4.
12 The Transfer purports to be signed by the Horvaths, and by their son. Mr Horvath contends that the signature which purports to be his is a forgery. There is also in the Koltay & Myers file a Contract of Sale in relation to Lot 5. It states the purchase price of Lot 5 to be $69,320.00. The particulars of sale set out in that Contract of Sale are virtually identical to an earlier version of the particulars of sale which had been prepared in relation to Lot 4. As I understand Mr Horvath’s argument, he contends that the version of the particulars of sale dealing with Lot 5 is a forgery, and is not part of any contract of sale signed by him.
13 Finally, there are also in the Koltay & Myers file several documents in which the designation “Lot 4” has plainly been altered to “Lot 5” eg the Vendor’s Statement to the Purchaser pursuant to s 32 of the Sale of Land Act 1962 (Vic). Mr Horvath denies ever having authorised, or at any relevant time even having seen, these amendments.
14 On 27 April 1988 Campbell & Shaw wrote to Koltay & Myers concerning the proposed sale of Lot 5. Their letter states in part:
“We refer to our telephone conversation with your office of even date wherein we advised that we require a Deed of Cancellation to be endorsed on the Contract of Sale in respect of Lot 4 Superior Drive, Dandenong and signed by the Purchasers. We would suggest the following form:-
“We, the undersigned, hereby agree to the cancellation of the Contract of Sale herein and forthwith release all parties from their obligations therein.
Dated …
We look forward to receiving the Contract of Sale in respect of Lot 4 with the Deed of Cancellation endorsed thereon, duly signed by the Purchasers at your early convenience.
In anticipation of receiving the above Contract of Sale, we now enclose a Contract in respect of Lot 5 Superior Drive, Dandenong for signing by the Purchasers and we look forward to hearing from you regarding an exchange of parts.
We confirm that the deposit monies of $6,932.00 paid in respect of Lot 4 are to be transferred to the Contract in respect of Lot 5.
We confirm that we have received an appointment to settle the purchase of Lot 5 Superior Drive, Dandenong from you for Wednesday 11 May 1988 at the offices of AGC (Advances) Limited, 277 William Street, Melbourne at 11.30 a.m.
Yours faithfully,
Campbell & Shaw”
15 Thereafter, all correspondence which passed between the vendor’s solicitors and the solicitors for the Horvaths related specifically to Lot 5 Superior Drive, Dandenong, and not Lot 4.
16 On 27 April 1988 Koltay & Myers wrote to the Horvaths, and to their son, informing them that the sale of Lot 5 could now proceed to settlement. They included a memorandum of their costs and disbursements relating to their services in relation to the sale of that block of land.
17 On 28 April 1988 Koltay & Myers wrote to the Horvaths, and to their son, enclosing a new Contract of Sale for execution by them, together with the old Contract of Sale in respect of Lot 4. The old Contract of Sale was endorsed with a Deed of Cancellation to be executed by the Horvaths and their son and returned forthwith. A copy of that old Contract of Sale, together with the Deed of Cancellation, appears in the Koltay & Myers file. The Deed of Cancellation was not, however, at any stage, executed by the Horvaths.
18 On 2 May 1988 the Bank wrote to Koltay & Myers indicating that it had been unable to complete its search in relation to Lot 5. It appeared that the Titles Office had recorded a dealing relating to Lot 5 as missing. Apparently, the file containing the application for subdivision had been lost. The Bank was not prepared to settle without having completed all relevant searches. The proposed settlement date of 11 May 1988 was, therefore, postponed.
19 Also on 2 May 1988 Campbell & Shaw wrote to Koltay & Myers advising that they were holding a Contract of Sale duly signed by the vendor and reminding Koltay & Myers that they were looking forward to receiving the Deed of Cancellation in respect of Lot 4, together with an exchange of contracts for Lot 5.
20 On 10 May 1988 Koltay & Myers wrote to the Horvaths informing them that some of the title records regarding Lot 5 were missing, and that settlement had therefore been postponed. They reminded the Horvaths to return both the old and new Contracts of Sale previously forwarded to them.
21 Campbell & Shaw wrote again to Koltay & Myers on 11 May 1988. That letter commenced:
“We refer to our telephone conversation with your office of even date wherein you requested a further Contract of Sale to be forwarded to you in respect of Lot 5 Superior Drive, Dandenong.
We now enclose same herein and we request that you arrange for the Purchasers to same (sic) same and thereafter, return to our office together with the Deed of Cancellation endorsed on the Contract for Lot 4 Superior Drive, Dandenong.”
22 However, the Horvaths did not execute or return the Deed of Cancellation. On 7 July 1988 Campbell & Shaw, presumably having lost patience with the Horvaths, wrote to Koltay & Myers enclosing a copy of a Notice of Intention to Rescind, the original of which appears to have been forwarded to the Horvaths on that same date. That Notice referred specifically to the Contract of Sale dated 18 September 1987 pursuant to which the Horvaths had agreed initially to purchase Lot 4. It noted that it had been a term of that Contract of Sale that the residue of purchase monies be paid on 11 May 1988, and that the residue of purchase money had not been paid.
23 On 15 July 1988 Koltay & Myers wrote to the Horvaths. Their letter was headed “Re: Purchase of Lot 4 Superior Drive, Dandenong”. It reads as follows:
“We enclose herewith amended Contract of Sale for your perusal and if approved, execution where marked in lead pencil and return to preferably in person within 24 hrs from receipt which will enable us to arrange immediate settlement with the vendors.
The reason for the urgency is that the Notice of Rescission served on you by the vendors extinguished all previous arrangements whatever there may have been for the purchase of this land and unless settlement is effected by 18th July, the vendor will refuse to deal with us any further.
While we realise that this attitude of the vendor is arguable, the way the present system operates, we do not wish to have any arguments or contest while …the matter can be disposed of by the exercise of a little efficiency at the right time …
In anticipation we also enclose Transfer for execution & return with the contract.
Yours Faithfully
Koltay & Myers”
24 The particulars of sale contained in the amended Contract of Sale enclosed with this letter referred to “Lot 5 on Plan of Subdivision 209632N … being the land described in Certificate of Title Volume 9801 Folio 263”. The date stipulated for payment of residue was 18 July 1988.
25 What occurred thereafter is the subject of considerable contention between the parties.
26 A subpoena was issued on behalf of Mr Pattison and the Bank to the Registrar of Titles requiring production before the Court of the following documents:
1. The original of mortgage number R157366T registered over Certificate of Title Volume 9801 Folio 263.
2. The original transfer of land re dealing number N683769L.
3. The original Certificate of Title Volume 9801 Folio 263.
27 Those documents were produced in response to the subpoena. They disclose that on 2 September 1988 the Horvaths and their son became registered as joint proprietors of Lot 5 on Plan of Subdivision number 209632N which appears as Volume 9801 Folio 263 in a Certificate of Title derived from Volume 8771 Folio 001. The change from Volume 8771 Folio 001 to Volume 9801 Folio 263 is recorded as having taken place on 25 March 1988. The Certificate of Title also records a mortgage over Lot 5 to the Bank being mortgage R157366T, registered on 2 January 1991.
28 Mortgage R157366T identifies the Horvaths and their son, die cutters of 10 Lesney Street, Richmond as mortgagors, and the land encumbered as Certificate of Title Volume 9801 Folio 263. The mortgagee is the Bank, at 367 Collins Street, Melbourne. The mortgage is dated 19 August 1988. It purports to be signed by the Horvaths and by their son in the presence of an officer of the Bank, Mr James Wilcock, at 171 Swan Street, Richmond. That is the address of the Richmond South branch of the Bank. There are also initials fixed beside various covenants and agreements which purport to be those of the Horvaths and of their son. The mortgage records that stamp duty was paid on 23 August 1988. It bears the appropriate duty stamp. Mr Horvath contends that both his signature and that of his wife on the mortgage are forgeries.
29 Finally, there was produced from the Titles Office the original Transfer of Land relating to dealing N683769L. The land the subject of that dealing is described as Certificate of Title Volume 9801 Folio 263. The transferor is stated to be Marlachi Pty Ltd. The transferees are said to be the Horvaths and their son, as joint tenants.
30 The transfer purports to be signed by each of the transferees in the presence of a person who, Mr Horvath acknowledged before me, was a friend of Mr Horvath. Mr Horvath could provide no explanation as to how his friend’s name, or signature, had come to be affixed to a document which he contended contained forgeries of his signature, and that of his wife. He had no idea how the bank had obtained his friend’s name, let alone his signature.
31 Evidence was led before me that the Bank has been in possession since late 1988 of a duplicate of the original mortgage produced before me. Also tendered before me was a document headed “Sale of Land Act 1962” dated 24 September 19-- (with no third and fourth digits). That document also purports to be signed by the Horvaths. It is said to be a document of a type prepared by the Bank for use in circumstances where there is to be an increase or variation in a facility provided by the Bank which is secured by a freehold mortgage. The document purports to state on behalf of the mortgagors that they have not sold the property, and are still able to pledge it for security. The land referred to in the document was Lot 5. Mr Horvath contended before me that what appears to be his signature on this document had also been forged.
32 In essence, Mr Horvath submitted that neither he nor any member of his family had ever become the registered owner of Lot 5. All documents tendered before me which suggested that they had, including those purporting to bear his signature, had been forged. He maintained that the only property that he had ever agreed to purchase was Lot 4 Superior Drive, Dandenong. The Bank had never taken security over that property.
33 At one point in the proceedings before me Mr Horvath submitted that the original Certificate of Title itself had been forged. He was then reminded of the fact that his signature did not appear on the Certificate of Title. He contented himself then with submitting merely that his signature had been forged on the Transfer, and on the Mortgage which had led to his family being wrongly described as the registered proprietors of Lot 5. It was Lot 5 which the Bank claimed to hold as security for loans advanced to the mortgagors.
34 Mr Horvath’s case is that the judgment originally obtained by the Bank against both himself and his wife, and which formed the basis of sequestration orders later made against them, had been founded upon a mortgage which had never been granted to the Bank because he had not purchased Lot 5, the block which was encumbered, but only Lot 4. Mr Horvath agreed that he and his family had accepted the monies advanced by the Bank, and used them to develop Lot 5. However, as far as he was concerned, those monies had not been advanced over the security of Lot 5, which he did not own and never had owned. Mr Horvath reminded me that he had not signed the Deed of Cancellation. He claimed that any documents which suggested that he had accepted the Notice of Intention to Rescind, and therefore the substitution of Lot 5 for Lot 4, were themselves forgeries.
The history of the proceedings between the Horvaths, the Bank, and their trustee in bankruptcy
35 Problems between the Horvaths and the Bank first arose when the Horvaths failed to keep up payments in relation to the monies advanced to them by the Bank. Eventually, in January 1995, the Bank obtained judgment in default against both the Horvaths. In February 1995 the Bank obtained judgment in default against their son. As a result of these judgments, the Bank recovered possession of certain premises, and judgment for the sum of $295,287.00 plus interest and costs.
36 On 30 March 1995, the Horvaths and their son applied to the Supreme Court of Victoria to have that judgment set aside. The sole ground relied upon by them at that stage was that Gabor Horvath Junior had been an infant at the time that he purportedly entered into the loan arrangements with the Bank, and that those arrangements were therefore unenforceable both as against him, and as against his parents.
37 On 6 April 1995, Master Wheeler in the Supreme Court ordered that the judgment against Gabor Horvath Junior be set aside, but not the judgment entered against the Horvaths. The Master granted a stay of the judgment against the Horvaths. The Bank appealed against Master Wheeler’s orders. On 23 May 1995 Beach J, in the Supreme Court, lifted the stay of the judgment against the Horvaths. The Horvaths did not appeal against his Honour’s decision in that regard. That meant that the judgment against the Horvaths stood, and was enforceable at the behest of the Bank.
38 The Bank appealed against Master Wheeler’s ruling insofar as it applied to Gabor Horvath Junior. On 2 April 1996, O’Bryan J in the Supreme Court found in favour of the Bank. His Honour held that that although the mortgage was void as against Gabor Horvath Junior, there was a debt owing by him to the Bank, and that judgment should be entered against him in respect of that debt. His Honour found that the Bank was entitled to an equitable lien or charge over the land in the sum of $53,978.00. An appeal was lodged by Gabor Horvath Junior against that decision. It is unnecessary for the purposes of this judgment to consider further the proceedings between the Bank and the Horvaths’ son, save insofar as those proceedings raise matters which bear upon the dispute between the Bank and the Horvaths.
39 On 8 March 1996, the Bank, in reliance upon the default judgment of the Supreme Court (the stay in relation to which had been lifted by Beach J on 23 May 1995), issued bankruptcy notices against both Mr and Mrs Horvath. The Horvaths applied on 11 April 1996 to have those notices set aside, and for an extension of time within which to comply with them. The grounds relied upon by the Horvaths were as follows:
“The issue of service of the bankruptcy notice on Mrs Horvath:
that the bankruptcy notices were lodged by the Bank despite the matter still being heard in the Supreme Court;
that the Bank was trying to “claim twice for the same debt in 2 separate courts” that an appeal was pending in the Supreme Court in respect of the judgment against Horvath Junior.”
40 The application to set aside the bankruptcy notices came before a Deputy District Registrar in this Court in the ordinary course of the conduct of the bankruptcy list. On 8 May 1996 that application was dismissed. On 15 May 1996 the Horvaths lodged an application for a review of that decision. The grounds relied upon were essentially the same as those argued before the Deputy District Registrar, namely, the adequacy of service of the bankruptcy notice upon Mrs Horvath, and that the bankruptcy notices, having been lodged by the Bank while an appeal had been pending in the Supreme Court in respect of the judgment against their son, were invalid.
41 The application for review of the decision by the Deputy District Registrar was heard on 29 May 1996 by Northrop J. His Honour dismissed that application. In his reasons for judgment, his Honour concluded that he was satisfied that proper service had been effected upon Mrs Horvath and that the judgment obtained in the Supreme Court had not been set aside. His Honour considered that the proceeding brought by Gabor Horvath Junior had not in any way affected the validity of the judgement obtained against his parents. In the course of his reasons for judgment, his Honour indicated that while he was conscious of the difficulties faced by litigants in person, and had made due allowance for those difficulties, there was no substance in any of the grounds relied upon.
42 To this point in the proceedings, the Horvaths appear to have believed that by reason of the appeal lodged by their son against O’Bryan J’s decision in the Supreme Court, the whole of the judgment obtained by the Bank against them was unenforceable. Mr Horvath continues to labour under this misapprehension. He still relies upon the infancy of his son at the time of the execution of the mortgage as one of the bases upon which he contends that the default judgment obtained against both him and his wife is void. He fails to appreciate that the judgment obtained by the Bank against his son raises issues which are separate and distinct from the enforceability of that judgment against him and his wife. That judgment has never been set aside. It is plainly enforceable, whatever Mr Horvath may think.
43 Following the decision of Northrop J dismissing the application for review of the Deputy Registrar’s decision not to set aside the bankruptcy notice, the Bank proceeded on 24 October 1996 with the filing of a Creditor’s Petition. On 3 December 1996 the applicants/debtors filed a notice of intention to appear at the hearing of the petition. The grounds of opposition were:
“The “contract is void because it involves a minor”;
the Bank is claiming on a “void contract in 2 separate courts”;
Mr Horvath’s denial of signing any loan application.”
44 The first two grounds restate the matters which had been raised before Northrop J, and which had been dismissed by his Honour. The third ground appears to have been new. It raised for the first time as an issue in the proceedings the allegations of forgery which have, since that time, occupied Mr Horvath, the Bank, and the Court.
45 The Creditor’s Petition was heard by Merkel J on 12 February 1997. His Honour dismissed each of the contentions advanced on behalf of the Horvaths, and made sequestration orders against them. It appears from his Honour’s reasons for judgment that the main contention advanced by Mr Horvath as to why sequestration orders should not be made was the fact that the debt included a loan to the judgment debtors’ son who was a minor at the time. Merkel J noted that the loan had been joint and several. Therefore, the outcome on appeal by the son, of any question of law that might be raised as to the loan having been made to a minor, would not affect the parents’ liability to the Bank.
46 His Honour did not deal specifically with the assertion by Mr Horvath that he had not signed the relevant loan documentation. He stated, however, that he had considered the matters put by both Mr and Mrs Horvath, and that he was satisfied that there were no grounds which would warrant his looking behind the judgment, or exercising his discretion not to make the sequestration orders sought.
47 On 21 February 1997 the Horvaths filed a notice of appeal against the decision of Merkel J. The grounds of appeal were substantially the same as those upon which the Horvaths had previously relied. In lengthy submissions, the Horvaths claimed that it had always been their intention to purchase Lot 4. When they were later asked to consider purchasing Lot 5, rather than Lot 4, they had agreed to this proposal. They claimed, however, that the loan documents produced by the Bank had been altered to substitute Lot 5 for Lot 4 without their knowledge, or approval. They claimed that their signatures had been forged upon those documents, presumably by an officer of the Bank.
48 On 4 June 1997 a Full Court of this Court constituted by their Honours Ryan, Hill and Heerey JJ dismissed the Horvaths’ appeal from the judgment of Merkel J. The judgment of the Full Court was delivered by Hill J. His Honour commenced by observing that Mr and Mrs Horvath were unrepresented, and that this might explain the difficulties the Court had in understanding the basis of their appeal. His Honour continued:
“In substance, however, it is either that the learned primary Judge should have gone behind the judgment debt on which the bankruptcy notice was based to see whether there was a real consideration for that judgment debt or, to the extent that he did, should have held that there was no such debt.”
49 His Honour set out the already extensive history of the litigation between the parties, commencing with the proceedings before Master Wheeler, and tracing the matter through to the judgment of Northrop J. He noted that before Northrop J there had been two matters raised in support of the application to set aside the bankruptcy notice. The first concerned the question of service. The second, however, was that there was no true debt upon which the judgment was based.
50 Northrop J had recorded the argument advanced by Mr Horvath to have been that the continuation of the proceedings in the Supreme Court against the Horvaths’ son was of such a nature as to vitiate, or to have some effect upon, the judgment obtained against the Horvaths. His Honour had correctly rejected that argument.
51 When the matter had come before Merkel J, the sole ground of opposition expressed in the petition proceedings related to the validity of the debt, having regard to the fact that the son was a minor. The case therefore put in the petition proceedings was the same as that which had been put in the proceedings to set aside the bankruptcy notice.
52 Hill J noted that Merkel J had given consideration to whether or not to exercise his discretion to look behind the default judgment relied upon by the judgment creditor, in accordance with the principles set out in Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137. Merkel J had also considered whether to exercise his discretion under s 52 of the Act to decline to make a sequestration order. His Honour had determined that there were no grounds for going behind the judgment, or for exercising his discretion not to make a sequestration order. Merkel J had found that the evidence showed that money had been advanced by the Bank to the Horvaths. No acceptable basis had been put to the Court as to why the total amount advanced was not owing.
53 Hill J then stated:
“Mr and Mrs Horvath now appeal to this Court. They have provided a lengthy written submission which seeks to assert, not on oath, matters of fact from which it is said the Court should conclude that it now should go behind the judgment debt.”
54 His Honour then dealt with the principles governing the reception of fresh evidence in an appeal, and continued:
“To the extent therefore that the applicant seeks to have us consider fresh evidence, we would reject that course. We should, however, say that even if the matters raised in the written submissions were taken into account, they do not seem to lead to the conclusion either that there was no advance by the Bank or that the monies advanced were not repayable.
The matters raised, apart from the question of the infant son, concern a circumstance where the original agreement to purchase one lot was changed to an agreement to purchase another lot. There is some suggestion of forgery and a hint of a suggestion that the Bank had agreed to the loan being unsecured.
However, a mortgage appears to have been executed by Mr and Mrs Horvath as well as their son. It is now registered on the title of land purchased in their joint name with the aid of moneys provided by the Bank. Moreover Mr and Mrs Horvath concede that they agreed to accept Lot 5 in substitution for Lot 4, a certificate of title to Lot 5 issued in their names subject to a mortgage to the Bank and a building was later erected on Lot 5.
All of that occurred with the assistance of funds advanced by the Bank. However, it still remains the case that the material sought to be used by the applicants in their written submission was not material that was before the learned primary Judge nor was it on oath. The only real matter before the primary Judge as stated in the notice of opposition filed by Mr and Mrs Horvath was the question of the validity of the loan having regard to the fact that the son was a minor. For the reasons his Honour gives, the minority of the son could not affect the liability of Mr and Mrs Horvath, where that liability was not merely joint, but was also several. In these circumstances, the appeal should be dismissed with costs.” (emphasis added)
55 Dissatisfied with the decision of the Full Court, the Horvaths elected to continue proceedings in the Supreme Court of Victoria. By summons dated 22 July 1997, Mr Horvath sought leave to file a defence and counterclaim against the Bank by which, inter alia, he and his wife claimed damages in an amount of $451,853.00 plus $30 million for general compensation. That application was heard on 28 July 1997 by McDonald J. In substance, the Horvaths relied upon the same matters as had been agitated before the Full Court of the Federal Court. On 29 July 1997 his Honour dismissed the summons.
56 By summons filed on 23 December 1997, Mr Horvath sought various orders in the Supreme Court of Victoria, including an end to his, and his wife’s, bankruptcy, and a claim to compensation from the Bank in the sum of $30 million. His application was heard by Beach J on 7 January 1998. It raised essentially the same matters as Mr Horvath had previously relied upon before the Full Court of the Federal Court, and before McDonald J. Beach J dismissed the application. His Honour ordered that Mr Horvath not file any further documents in the Supreme Court proceedings without the leave of a judge.
57 The Horvaths then returned to the Federal Court. On 19 January 1998, they filed by way of “appeal” an application seeking the following:
“1. Grant leave for our bankruptcy to the (applicants) so (we) can file a summons in the Practice court of Australia (sic) so (we) can read out, implement and enforce the Supreme Court Act of 1986, Division 4, Contract of Minors: ss 49-50-51, as it has never been done before.
2. Grant the (applicants) use of all the necessary documents needed.”
58 This application was heard by Finkelstein J on 21 January 1998. His Honour dismissed the application. In his reasons for judgment, his Honour stated:
“It is difficult to understand what Mr and Mrs Horvath seek to achieve by the summons which they seek leave to file in the Supreme Court. It seems to be that they wish to have the judgment against them set aside on the basis of the infancy of their son. When I enquired of Mr Horvath … precisely what relief he desired to seek in his proposed summons the only answer that I was given was a repetition of the relief set out in the application.
What is clear is that Mr and Mrs Horvath are not seeking to appeal any decision of their trustee in bankruptcy. There is nothing in the material that has been filed on behalf of the applicants that suggests that they are complaining about any decision made by the trustee and nothing was submitted orally by Mr Horvath to that effect.
If by the proposed summons Mr Horvath wishes to have the judgment that was entered against him and his wife in the Supreme Court set aside then it is clear that Mr Horvath cannot do so. He has no standing to make such an application. The reason is that, as a consequence of his bankruptcy, Mr Horvath no longer has any interest in the fact that a judgment has been recovered against him: …
If by the proposed summons Mr Horvath intends to avoid the lien declared to exist over his son’s interest in the property it seems to me to be clear that he has no standing to do so. However, whether that is so or not, it is not appropriate for this Court to grant Mr and Mrs Horvath leave to take steps to protect their son’s interest in the land. This Court has no jurisdiction to grant Mr or Mrs Horvath leave to make such an application in the Supreme Court.
If by the proposed summons Mr Horvath seeks to overcome the order made by Mr Justice Beach that he may not file any document or summons in the Bank’s proceeding in the Supreme Court without the leave of a judge of the Supreme Court, this Court does not have power to avoid the effect of that order. Even if the Court did have jurisdiction to make such an order I would not exercise it. It is for the Supreme Court to regulate its own proceedings and the Federal Court should not be concerned with the matter.
If by the proposed summons Mr Horvath seeks to obtain some other relief in the Supreme Court I regret I am unable to discern what that might be and that is a sufficient basis for not granting the orders sought even if I had power to do so.”
59 The next step taken by the Horvaths in the course of their own proceedings against the Bank appears to have occurred on 11 September 1998. On that date they lodged an application, purportedly under s 178 of the Act, naming not the Bank, but their trustee in bankruptcy, as respondent.
60 Section 178 provides:
“If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.”
61 The application purported to be an appeal against a decision of the trustee. The grounds relied upon by the applicants included the following:
“1. The trustee refused to call a creditor meeting for Division 1 – Proof of Debts under section 82, 83, 84. “Reason: it is not his duty to prosecute the CBA.”.
…
2. 84(5) The Creditor CBA Solicitors lodges with the Court a statutory declaration verifying the matters contained in the proof of debt of such of those matters as are specified in the notice …. If they failed, they will be prosecuted under Part XIV Offences section 263 or 263A or 263B.” (sic)
62 In addition, Mr Horvath issued a number of subpoenas against various persons requiring the production of documents. He sought orders compelling the filing of statutory declarations verifying the matters set out in the Bank’s original proof of debt. This application was heard by Marshall J on 12 October 1998. His Honour set aside the subpoenas, and dismissed the application.
63 Undaunted, and undeterred, Mr Horvath persisted. On 23 October 1998 he filed an application purportedly under s 99 of the Bankruptcy Act. That section provides as follows:
“99. (1) Where a creditor or the bankrupt considers that, by virtue of a decision of the trustee under subsection 102(1), (3) or (4), a proof of debt has been wrongly admitted, he or she may apply to the Court for an order that the proof be expunged or that the amount of the admitted debt be reduced, and the Court may make an order accordingly.
(2) Notice of an application under subsection (1) shall be given, in accordance with the rules of court, to the creditor by whom the proof of debt was lodged.
(3) The costs in relation to an application under subsection (1) are in the discretion of the Court.
(4) Where the Court makes an order under this section that a proof of debt be expunged or that the amount of an admitted debt be reduced, the person who proved the debt shall forthwith repay to the trustee any amount received by way of dividend in respect of the expunged proof of debt or any amount received by way of dividend in excess of the amount that he or she would have been entitled to receive if his or her debt had been originally admitted for the reduced amount, as the case requires.”
64 This application was supported by extensive affidavit material. Subpoenas similar to those which had been set aside by Marshall J on 12 October 1998 were also issued. Because the application brought under s 99 of the Act was substantially similar to that previously brought under s 178 of the Act which had been dealt with, and disposed of, by Marshall J on 12 October 1998, a Registrar of this Court referred the matter to his Honour who happened coincidentally to be the duty judge at that time.
65 Marshall J gave directions on 23 October 1998 pursuant to O 46 r 7A of the Federal Court Rules. That rule provides:
“Abuse of process
7A. If a document presented to a Registrar in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him-
(a) to accept or issue it; or
(b) to refuse to accept or issue it; or
(c) to refuse to accept or issue it without the leave of a Judge first had and obtained.”
66 Mr Horvath was informed of the orders made by his Honour. That led him to seek the leave of a Judge to proceed with his application. That application for leave came before me, as duty judge, on 30 October 1998.
67 Prior to my hearing that application, the Horvaths had on 29 October 1998 again lodged separate applications pursuant to each of ss 178 and 99(1) of the Act. These applications were virtually identical in form. Mr Horvath then informed the Registry that he did not wish to proceed with the application for leave of a judge pursuant to the directions made by Marshall J on 23 October 1998, but rather with his new applications lodged on 29 October 1998. As before, the District Registrar referred the matter to me as the duty judge. On 29 October 1998 I made orders pursuant to O 46 r 7A and directed that the new applications lodged on 29 October 1998 be listed for hearing before me on the question of leave to file those applications at the same time as I dealt with the application for leave to proceed with the matter which Marshall J had earlier ordered required such leave.
68 When the hearing commenced before me on 30 October 1998 Mr Horvath indicated that the only issue he was now seeking to agitate was whether or not Merkel J had been correct in making sequestration orders against Mr Horvath and his wife. In his submissions before me, Mr Horvath claimed that the Bank had never filed any “proof” either in the Federal Court or in the Supreme Court. He denied that there had ever been a valid judgment against himself or his wife. He contended that what he was seeking to do was to file an application under s 52(1) of the Act so that “I can prove what they’re asking, what they’re stating, and they file a proof of debt, which is to me based on lies.”
69 It soon became clear that what Mr Horvath was seeking to do was to raise again the very matters which he had previously raised, in one form or another, before Merkel J, before the Full Court of this Court, before Finkelstein J, and before Marshall J. I informed Mr Horvath at the outset that there were serious questions raised as to whether his application should be regarded as an abuse of the process of the Court.
70 In the course of the hearing, I put to Mr Horvath that the matters sought to be agitated in the application which he and his wife had lodged on 29 October 1998 had previously been dealt with by a number of judges of this Court, and that he had the burden of persuading me that there was some basis for the general assertions which he continually made from the bar table. Mr Horvath replied:
“Your Honour, this is it. I will have to come back for the next hundred years to say it, because the case is only the case what I am putting in. I cannot put it in any other. I can’t understand it – the has to go behind the judgment. That means that the Bank can go in with a fraud and bankrupt me …”
71 I pointed out to Mr Horvath that the Full Court had already held that it was inappropriate to go behind the judgment debt in the circumstances of this case. I asked whether he had some new matter to raise. Mr Horvath replied:
“I cannot any new (sic). All I can raise is that’s it, that’s what they did, and if I file it in hundred times, its going to be ..."
72 When I reminded Mr Horvath that he had on a number of previous occasions come to this Court and informed a judge that the Bank had been involved in a fraud upon him, his response was “yes, but every time it was dismissed”.
73 When I asked Mr Horvath whether he had anything further to add, his reply was:
“I still say it again, to give you this – again, last time, because next week I try to come back again I will file relief… Your Honour, the Court gives me no other way. I have to come back. I have to prove I’m right or they have to come in with the proof of debt and prove that I am wrong.”
74 In my reasons for judgment refusing leave to proceed upon the applications of 29 October 1998 I stated:
“…the applicants' claims as presently formulated, are clearly foredoomed to fail. Taken at their highest for the applicants, they certainly do not raise any serious question to be tried. The material which the applicants have filed in support of their applications is sparse, and does not condescend to particularity. Essentially that material calls upon the Bank to substantiate its proof of debt, and makes sweeping and general assertions of the Bank's complicity in a fraud against the applicants. Nothing has been put before me which would justify interfering with the trustee's decision to admit the Bank's proof of debt. No error has been identified in the approach taken by the trustee to the performance of his duties beyond the assertion, which the applicants have repeated for years, that they were the victims of a fraud by the Bank.”
75 On 6 November 1998, the Horvaths filed a notice of motion seeking leave to file an application seeking an order pursuant to s 99 of the Act that a proof of debt lodged by the Bank had been wrongly admitted. At the time that this notice of motion was filed, the applicants did not in fact require the leave of a judge to file an application seeking orders pursuant to s 99 of the Act. It would appear, however, that having regard to the earlier proceedings in this Court, they believed that such leave was necessary. The Registrar referred the notice of motion to Goldberg J who was then the duty judge. His Honour directed that the Registrar refuse to accept or issue the motion without the leave of a judge first had and obtained pursuant to O 46 r 7A. Not surprisingly, perhaps, the grounds relied upon by Mr Horvath were identical to those agitated before me in the previous application which I had dismissed.
76 Before Goldberg J, Mr Horvath advanced essentially the same contentions as had been previously advanced before me. In response to a question from Goldberg J as to “whether the matter before me was the same matter as had been before Weinberg J”, Mr Horvath replied “it can only be the same issue; the issue will not change, whether I owe the Bank money is always the issue”.
77 Goldberg J, on 10 November 1998, in dismissing the notice of motion, concluded that:
“Leave to file should be refused. It is an abuse of the process of the Court. It raises, and is based upon, issues which have already been determined by the Court adversely to the applicants. It is, in short, a reiteration or re-run of earlier proceedings which have been held to be without merit.”
78 The Horvaths then returned to the Supreme Court of Victoria. By summons filed on 16 November 1998, they brought an application against the Bank returnable on 25 November 1998 seeking orders that the default judgment entered against them on 24 February 1995 be set aside. That application was dismissed by Master Evans on 25 November 1998.
79 By summons filed on 24 November 1998 the Horvaths again filed an application seeking orders that the default judgment entered against them on 24 February 1995 be set aside. The return date for that application was 30 November 1998. On that date, Beach J heard the application. It was dismissed.
80 Finally, and for the sake of completeness, it should be not be thought that Gabor Horvath Junior’s dispute with the Bank has been resolved. It will be recalled that the Bank had successfully obtained judgment against Gabor Horvath Junior as a result of the orders made by O’Bryan J on 2 April 1996.
81 On 11 June 1997, the Bank issued a bankruptcy notice against Gabor Horvath Junior. He failed to comply within the requirements of that notice within the prescribed time subsequent to service. He was therefore deemed to have committed an act of bankruptcy. The Bank proceeded on 25 February 1998 to file a creditor’s petition against him. On 7 December 1998 he filed a notice of intention to oppose that petition. Not surprisingly, the grounds relied upon include the very same matters concerning the alleged forgery on the part of the Bank as the Horvaths have agitated for some years.
82 It is clear that Mr Horvath has played an active role throughout the conduct of his son’s case against the Bank – the submissions relied upon by the son are identical in all respects to those advanced by the father. Moreover, Mr Gabor Horvath Senior has represented his son (as well as his wife) throughout all of the proceedings brought by and against his son.
Evidence adduced in support of the existence of the underlying debt
83 Mr Glacken appeared on behalf of the Bank in proceedings VG 649 of 1998, and on behalf of the trustee and the Bank in proceedings VG 661 of 1998. He referred to a number of documents which he contended demonstrated that there was no substance in Mr Horvath’s challenge to the underlying debt.
84 For example, on 14 November 1989 the Bank wrote to the Horvaths and their son in the following terms:
“Dear Mr & Mrs Horvath and Mr Horvath
APPLICATION FOR FINANCE
We are pleased to confirm that we have approved a Small Business Loan of $200,000- to assist with construction of Factory at Lot 5, Superior Drive, Dandenong.
This will take the total commitment to the Bank to $301,747- structured as follows:
G & A & G HORVATH : SMALL BUSINESS LOAN $239,147-
G & A HORVATH : WORKING CAPITAL $62,600-
$301,747-
Approval is granted on the Bank’s usual terms and conditions including:-
Security in such form as the Bank requires and to comprise a mortgage over your property: Lot 5 Superior Drive, Dandenong.
Monthly repayments of $4312-00 with a review in November 1991 with a view to reducing the overall term.
…
We are in the process of preparing the necessary documents and will contact you further when they are ready for signing.
As confirmation that these conditions are acceptable, please sign the duplicate of this letter where indicated and return to this office.
…
Yours sincerely,
C A Hocking
Manager”
85 There then appears on the duplicate letter what purport to be the signatures of the Horvaths and their son. These signatures appear immediately above their names which are typed in capitals.
86 Mr Glacken took me to a number of other documents purportedly signed by the Horvaths and by their son in their dealings with the Bank in which they had sought various loans from the Bank in connection with Lot 5 Superior Drive, Dandenong. For example, on 4 August 1988 Mr Wilcock, the manager of the Richmond South Branch of the Bank, wrote to the Horvaths and their son confirming having approved a loan of $40,000.00 under the Bank’s usual terms and conditions to assist in the purchase of Lot 5 Superior Drive, Dandenong. There are a number of documents preparatory to the mortgage over Lot 5 which also appear to have been signed by the Horvaths and by their son. These were all tendered before me as exhibits.
87 In essence, Mr Horvath claimed that his signature had been forged on all of these documents, as well as on the Transfer, and the Mortgage, which the Bank had subpoenaed from the Titles Office. He denied ever having seen any of these documents on any previous occasion. His position remained that neither he nor his wife had ever entered into a mortgage with the Bank. Any advances made to them had been unsecured. When the Bank obtained judgment in default of appearance against them on 24 February 1995, and was therefore able to recover possession of Lot 5 (more particularly described in Certificate of Title Volume 9801 Folio 263 and being the land situate at and known as Factory 1 and Factory 2, 9 Superior Drive, Dandenong South), together with $295,287.01, $43,119.92 interest and $410.00 costs, that judgment had been procured by fraud. The land in question had never been mortgaged to the Bank.
88 Mr Glacken, on the other hand, urged me to reject all of Mr Horvath’s contentions concerning Lot 5 not having been the subject of any mortgage. He submitted that it was plain that the Bank had advanced monies to the Horvaths. These monies had not been repaid. The judgment debt which formed the basis of the sequestration orders had been fully supported by consideration.
89 If it were necessary to do so, I would unhesitatingly find that Mr Glacken’s contentions ought to be accepted. Mr Horvath’s denials of having signed any of the numerous documents which have been exhibited before me are incapable of being given serious credence.
90 I note for example that Mr Horvath asserts that his son had not signed the Mortgage or the Transfer at the offices of the Bank at 171 Swan Street, Richmond on 19 August 1988. Moreover, he contends that his son was not present at the Bank at all in 1988, but only in November 1987. Yet Gabor Horvath Junior has given evidence in the various proceedings in which he has raised as a defence to the Bank’s claims his status as a minor that he had attended the Bank on 19 August 1988, and that he had been accompanied by both his parents.
91 Mr Horvath seeks to gloss over his son’s evidence by suggesting that his son was overborne, or in error. So also, he contends, was Mr Horvath’s wife, to the extent that her evidence accorded in any way with that of her son.
92 When Mr Horvath was pressed by me as to how the Bank could have known the name of his friend who purported to witness the Horvaths’ signatures on the Transfer, let alone forged his friend’s signature, Mr Horvath could provide no explanation. He merely reiterated that he had never purchased Lot 5.
93 The transcript of the exchange between Mr Horvath and myself is illuminating:
“HIS HONOUR: How is it that the forger of that particular document happened to know that you have a friend with that particular name that should be recorded as the ---
MR HORVATH: Your Honour, I don’t go in that part of it because I don’t want to make any comment on that part, but I have never seen that document and I have never purchased lot 5, and that’s all there is to it.
HIS HONOUR: That’s your case, basically.
MR HORVATH: That’s my case, basically, and it was always the same case, basically. That’s why I stopped paying them. I could have paid them out, how much it costed me – I could have paid them out but I decided I’m not going to do that because I – from the first day, your Honour – I was in conflict with them. I know what they did. Had I settled for that block of land, and when I sued them, I'm entitled to suing them, that's when they decided to give me lot 5. I have never purchased lot 5, and that is my case. It doesn't matter what we say in here, and I'll rest my case in this. I will not waste any time on the court, but I come back. I come back with a signed thing again and I will go into the Supreme Court and file against them for conspiracy with the same way. I have tried everything and everything with this court's power. This court is ‑ they're relying on the bankruptcy court. Whilst you're bankrupt you cannot come out of it because they keep saying that that's it. I cannot go in here. They say go back to the Supreme Court. I will go back to the Supreme Court. One day we come to the end of it, but I have never purchased lot 5 and that is the case of it. That's what I said last time. Don't come back to me again with all this litigation because it's nothing to me. It's wasting the court time. Come up with a contract and prove it to me. Come with a contact (sic) where it says they loaned money to me, where I signed for that or I received any money from them. I have never received ---
HIS HONOUR: The mortgage has been produced and it's signed, Mr Horvath.
MR HORVATH: Your Honour, in this court book ---
HIS HONOUR: No, the original mortgage is here, in my hands, in court, with an original signature which appears to be your signature, dated 19 August 1988, signed also by your son who conceded that he signed the relevant document.
MR HORVATH: I have not signed a document, any document, in the bank, on 19th of 88, or any other date. I have not signed on 19 August.”
94 The passages set out above demonstrate clearly the difficulties which Mr Horvath has in coming to terms with any facts which seem to be at odds with his central underlying thesis. No matter how cogent those facts may seem to be, they must be ignored if they suggest that Mr Horvath authorised, or acquiesced in, the encumbrance of Lot 5.
The legal principles governing applications to have litigants declared vexatious
95 The relevant legal principles are conveniently set out in several leading authorities. In Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 the High Court rejected a contention that it had inherent jurisdiction to restrain a person from commencing new proceedings without the leave of the Court. In a joint judgment, Barwick CJ and McTiernan J (at 315) held that the courts, both in England and in Australia, had declined to regard themselves as having power to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons except where such power had been conferred upon them by an Act of Parliament or rules promulgated under statutory authority. Their Honours noted that in England there appeared to have been no relevant statute or rule of court until the enactment of the Vexatious Actions Act 1896 (56 & 60 Vict.c. 51) and traced the history of the statute through such decisions as Ex parte the Attorney-General; Re Alexander Chaffers (1897) 76 LT 351. Their Honours also traced the history of the enactment of similar provisions in the various Australian States including, in Victoria, s 33 of the Supreme Court Act 1928.
96 A helpful statement of the modern principles governing such applications is to be found in the judgment of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481. That case involved an application by the Attorney-General, as plaintiff, against the defendant invoking not the equivalent of O 21 r 2 of the Federal Court Rules, which is sought to be invoked by the trustee in bankruptcy and the Bank in the present proceedings, but the equivalent of O 21 r 1 which allows the Attorney-General or Solicitor-General of the Commonwealth or of a State, or the Registrar of the Court to make the relevant application. Nonetheless, the principles which govern the application of these alternative methods of having a person declared a vexatious litigant are essentially the same.
97 The questions to be addressed are whether the Horvaths have “habitually and persistently and without any reasonable ground”, instituted a vexatious proceeding against the trustee in bankruptcy or the Bank and, if so, whether or not in the exercise of the Court’s discretion an order should be made that they should not without the leave of the Court institute any further proceeding against either the trustee in bankruptcy or the Bank.
98 In Attorney-General v Wentworth (supra) Roden J held that proceedings could be vexatious if instituted with the intention of annoying or embarrassing the persons against whom they are brought, or if brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise.
99 These tests for vexatiousness may be regarded as involving a subjective analysis of the motive underlying the bringing of the proceedings.
100 However, his Honour went on to say that proceedings could also properly be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable, or manifestly groundless, as to be utterly hopeless. They must also have been “habitually and persistently” instituted by the litigant.
101 In Jones v Skyring (1992) 109 ALR 303 an application was brought by the Registrar of the High Court to have the respondent declared a vexatious litigant. Mr Skyring had instituted approximately twenty proceedings in the High Court between 1984 and 1991. Each of those proceedings involved the question of the legality of the issue of paper money as legal tender. In 1985, Deane J had delivered a judgment in which his Honour held there was no substance in the respondent’s argument. An appeal against that decision had been dismissed by a Full Court. Nevertheless, the respondent persisted in his claim.
102 Toohey J granted the application. His Honour held that the test whether proceedings are vexatious is not purely subjective in nature. The question is not decided by reference to whether the person against whom an order is sought is acting maliciously, or in bad faith. Once the questions sought to be agitated by the respondent had been determined against him by a Full Court, there was no reasonable ground for employing a variety of mechanisms to get those questions before the Court again. The absence of any reasonable ground for employing those mechanisms and the persistent institution of proceedings for the purpose of re-agitating the questions already determined pointed unequivocally to a situation in which the respondent had, frequently and without reasonable ground, instituted vexatious legal proceedings in the Court.
103 See also Jones v Cusack (1992) 109 ALR 313 per Toohey J where his Honour at 315 dealt with the question whether the institution by the respondent of six legal proceedings in the High Court could be said to satisfy the requirement of O 63 r 6(1) of the High Court Rules that the respondent “frequently and without reasonable ground has instituted vexatious legal proceedings”. His Honour held that the respondent had “frequently” instituted legal proceedings.
104 Though I suspect that there is a basis for believing that the Horvaths have instituted some of their many challenges to the actions of the Bank with the intention of annoying or embarrassing its officers, and possibly their trustee in bankruptcy as well, I would not be prepared to order that they be declared vexatious litigants if that were the only basis available to the Court for making such an order.
105 I am satisfied, however, that the continual attempts by the Horvaths to re-litigate in this Court the matters which have been determined against them on a number of occasions, both in this Court, and in the Supreme Court of Victoria, constitute a clear case of abuse of process. I am satisfied that the Horvaths have, by their numerous applications in this Court “habitually and persistently” instituted proceedings against both the Bank and their trustee. Although the raw numbers of their applications fall short of those brought by Mr Skyring in his attempts to attack the use of paper money as legal tender, they are sufficient, in my view, to meet the requirements of habit and persistency. I note in this regard that in Jones v Skyring (supra) Toohey J was prepared to treat each application brought by the respondent for the leave of a justice to issue a writ or other process as the institution of a legal proceeding – see 310. I too have treated each application brought by the Horvaths for the leave of a judge pursuant to O 46 r 7A as the institution of a legal proceeding.
106 I have endeavoured to ascertain whether there could conceivably be any basis for Mr Horvath’s contentions regarding the Bank, and the forgeries which he claims were carried out by one or more of its officers.
107 On the evidence before me, I am unable to see how Mr Horvath can properly maintain his stance that he and his family did not become the registered proprietors of Lot 5, and that the Bank did not obtain security over that property. The evidence to the contrary appears to be overwhelming.
108 Even if that were not so, however, Mr Horvath has now been told on many occasions that his litigation with the Bank is at an end. He has refused to accept that this is so. He has habitually and persistently returned to this Court, at considerable expense to the trustee in bankruptcy and the Bank, to re-agitate essentially the same points, albeit under notionally different guises.
109 The time has come, in my opinion, to put an end to this abuse of process. Mr Horvath has made it plain that unless some action is taken he will continue to return to this Court seeking to raise yet again the same matters which have on so many occasions been determined against him. As undischarged bankrupts, he and his wife have been exempted from any requirement that they pay Court fees. There is no realistic deterrent to their continual abuse of process other than to place an additional and, it is to be hoped, meaningful, obstacle in its path.
110 It may be that Mrs Horvath has simply been caught up in her husband’s strong desire to pursue his grievances against the Bank without having fully appreciated the nature of what he was doing. However, the fact remains that she has been a party to every application brought against the trustee in bankruptcy, and against the Bank. She has permitted her husband to represent her interests throughout. In Attorney-General (NSW) v Solomon (1987) 8 NSWLR 667 Young J at 673held that the words “any person” in s 84 of the Supreme Court Act 1970 (NSW) (which is in similar terms to O 21 r 2 of the Federal Court Rules) included the situation where a person brings proceedings on behalf of another. See also Re Langton [1966] 1 WLR 1575.I can see no reason why Mrs Horvath should not be subject to the same orders as I propose to make in relation to her husband.
111 It follows from my reasons as set out above that I propose to refuse leave to the applicants in proceedings VG 649 of 1998 to “file and serve Defences in this proceeding” which would enable them to seek to have the Court set aside or annul the sequestration orders previously made against them.
112 In proceedings VG 661 of 1998 I propose to order that, other than an appeal against this order, Mr Gabor Horvath Senior and Mrs Agota Horvath shall not, without the leave of the Court, institute in this Court any proceedings against Mr Paul A Pattison, their trustee in bankruptcy, or against the Commonwealth Bank of Australia. I propose to order further that, other than an appeal against this order, any proceeding instituted by either Mr Horvath Senior or Mrs Agota Horvath in this Court against their trustee in bankruptcy, or the Commonwealth Bank of Australia, prior to my having made this order shall not be continued by them without the leave of the Court.
113 Any future applications by the respondents for leave to institute in this Court any proceeding against the applicants shall, by reason of this order, be made and determined ex parte. The respondents shall, however, serve upon the applicants any proposed application at least three clear days prior to its being filed in the Court, thereby enabling the applicants to be heard, should they desire to be heard. These conditions accord with those imposed by Needham J, and upheld by the New South Wales Court of Appeal in Wentworth v Attorney-General (NSW) (1987) 12 NSWLR 191 at 196.
114 In proceedings VG 649 of 1998 the applicants should pay the respondent’s costs. In proceedings VG 661 of 1998 the respondents should pay the applicants’ costs.
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I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg J. |
Associate:
Dated:
In proceedings VG 649 of 1998:
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Counsel for the Applicants: |
The first applicant appeared in person |
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Counsel for the Respondents: |
Mr S Glacken |
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Solicitor for the Respondent: |
Coltmans Price Brent |
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In proceedings VG 661 of 1998:
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Counsel for the Applicants: |
Mr S Glacken |
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Solicitor for the Applicants: |
Coltmans Price Brent |
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Counsel for the Respondents: |
The first respondent appeared in person |
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Date of Hearing: |
16 December 1998 |
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Date of Judgment: |
27 April 1999 |
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