FEDERAL COURT OF AUSTRALIA

Wilson v Official Trustee in Bankruptcy [1999] FCA 1483

PRACTICE & PROCEDURE – application to re-open trial – abuse of process.

Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585, considered

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS V

THE OFFICIAL TRUSTEE IN BANKRUPTCY AND WELONA PTY LIMITED

NG 7052 OF 1996

NG 7053 OF 1996

JUDGE:          BEAUMONT J.

DATE:            14 OCTOBER 1999

PLACE:          SYDNEY

THE COURT ORDERS THAT:

The notice of motion be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

1                     Before the Court is a notice of motion in two matters which are identical in terms and in substance.  In each case, the applicants, who are unrepresented litigants, seek to set aside a judgment of Sweeney J given in December 1992 from which an appeal was dismissed in 1994 (see Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585).

2                     In addition to seeking to set aside Sweeney J’s judgment, the applicants seek an order restraining the Official Trustee in Bankruptcy from, in effect, disposing of or otherwise dealing with the assets of the applicants including the property comprised in their bankrupt estates “in payment or satisfaction of any moneys purportedly owing”.

3                     To understand the context in which the notice of motion comes before the Court, reference should be made to the decision of the Full Court already mentioned.  As the headnote there states, the present applicants leased a hotel from the second respondent, Welona Pty Limited (“Welona”), in 1979.  The lease contained a covenant to keep the premises in good repair.  A dispute arose as to which party was responsible for repairs to the hotel.

4                     Welona argued that the hotel was leased in reasonable repair and fell into a state of disrepair.  On the other hand, the present applicants argued that the hotel was then in a bad state of repair and that there was a collateral term of the lease, or alternatively, a collateral agreement, that Welona would carry out repairs.  However, the present applicants admitted no repairs were performed although Welona later carried out repairs and lodged a proof of debt for the cost.

5                     The Trustee in Bankruptcy upheld the proof but disallowed some items.  The present applicants then appealed to the Full Court (Shepherd, French and Einfeld JJ) against the orders made by Sweeney J.  The appeal was against the orders made by his Honour on an appeal against the Official Trustee’s decision not to uphold the present applicants’ objection to the proof of debt.  The Full Court reserved its decision but before it delivered judgment the present applicants filed a motion seeking to adduce fresh evidence not available at the trial before Sweeney J.  That evidence included photographs which the present applicants claim were taken soon after they entered into the lease for the hotel and which they subsequently gave to the Official Trustee but which, it appears, were mislaid by the Official Trustee.

6                     The Full Court dismissed the appeal and the motion for a new trial based on the fresh evidence.  Subsequently, proceedings were brought by the present applicants in another matter against the Official Trustee.  Those proceedings were heard by Branson J who dismissed the proceedings.  An appeal from her Honour’s decision was also dismissed by a Full Court.

7                     The present notice of motion is supported by an affidavit by Patricia Williams sworn on 2 October 1999.  She and Mr Wilson appeared ex parte before me last week to seek an ex parte injunction or, alternatively, short leave.  I granted them short leave on that occasion but indicated that I would need to be persuaded why, at this late stage, the Court should embark upon the inquiry that their notice of motion sought.  At the time, Ms Williams handed up a written submission, which is now marked “1” for identification.  I have read that submission and her affidavit and have heard her develop her submission.

8                     In my opinion the present notice of motion is an abuse of the process of the Court.  It is, in form and in substance, an attempt to agitate the same matters that were dealt with by the Full Court in 1994.  In those circumstances, the Court has no alternative other than to order that the notice of motion be dismissed.  I so order.

9                     I order that in each case the notice of motion be dismissed with costs.

Associate:

Dated:              November 1999