FEDERAL COURT OF AUSTRALIA

Boothe (Trustee), in the matter of Malan (Bankrupt) v Malan [2000] FCA 685

BANKRUPTCY – summary dismissal of application – attempt to relitigate issues determined by Court

Bankruptcy Act 1966 (Cth)

Wilson v The Commonwealth of Australia (1999) FCA 1308

JOHN H MALAN v STEPHEN ALAN BOOTHE AS TRUSTEE OF THE ESTATE OF JOHN H MALAN

N 7320 of 2000

BRANSON J

SYDNEY

11 MAY 2000

THE COURT ORDERS THAT:

The application or applications (as the case may be) is or are dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1                     Mr Malan was made bankrupt by an order of Beaumont J on a petition filed by Mr Theodore Silvas on 14 January 1993.  Mr Malan does not recognise his bankruptcy or the fact that a trustee has been appointed to his bankrupt estate.  He has never filed a statement of affairs.

2                     Nonetheless Mr Malan did apply to the Court in 1993 for relief of various kinds, including the annulment of his bankruptcy.  On 25 October 1994 Hill J, in an extempore judgment, dismissed the application for an annulment of Mr Malan's bankruptcy.

3                     Before Hill J, Mr Malan relied on an affidavit which touched on his dispute with Mr Silvas, the judgment entered against him in proceedings commenced against him by Mr Silvas, the sale by his trustee of the house in which Mr Malan's wife and children were living while Mr Malan was in custody following his committal for contempt of this Court, the removal of household goods from that property and the state of Mr Malan’s health.

4                     Hill J expressed his sympathy with Mr Malan.  However, his Honour found no basis upon which Mr Malan's bankruptcy could be annulled.  Hill J dismissed Mr Malan’s application for annulment of his bankruptcy.  No appeal was instituted against his Honour's judgment.

5                     The application, or perhaps applications, filed in this case seek the following relief.  On the printed form of application:

“1.       The stolen property from 9 Livingstone Rd Lidcombe 2141 NSW to be returned to my wife the real owner.

2.         An order for damages to John Malan and his family for injustice suffered from Australian legal system up to 1,000,000.

3.                  An order that the Royal Commission to investigate the trial judge and the court case 3509 of 1989 and the criminals to be brought to justice.”

On a handwritten informal document the above relief is claimed and, in addition, a claim is made for “[a]n order to be discharged from false forced bankruptcy.”

6                     Mr Malan has endorsed on the printed application the words:

“I personally do not have respondents.  The courts have them.  I do sign this application for NB 237 of 1993, any other no implicated of the trustee for other reasons my application & signature are not valuable.”

7                     It appears that an officer of the Court has caused the words “Official Trustee in Bankruptcy” to appear beside the word "respondent" on the printed application.  When the matter first came before me, the identity of the respondent was ordered, with the consent of Mr Boothe, to be changed to “Stephen Allan Boothe as Trustee of the estate of John H Malan.”

8                     An affidavit sworn by Mr Malan in support of his application reveals that his asserted claims for relief are founded upon his assertion that judgment ought not to have been entered against him in a District Court proceeding commenced against him by Mr Silvas; that he was unjustly jailed for contempt of this Court; that his family was forced from their property at 9 Livingstone Road, Lidcombe; and that he and his family have suffered stress, humiliation, financial loss, sickness and deprivation of dignity, right, justice and property while Mr Silvas, a solicitor, has in effect been rewarded for seriously improper conduct.

9                     The property at 9 Lidcombe Road, Lidcombe was the subject of litigation before Burchett J in July of 1993.  On 22 July 1993 Burchett J declared void a transfer by Mr Malan to his wife of his half interest in the family property at Lidcombe for the consideration of $1.00.  His Honour acted in reliance on s 120 of the Bankruptcy Act.  No appeal was instituted against his Honour’s order.  The property, as is apparent from a later judgment of Einfeld J, also given in a matter concerning Mr Malan, has now been sold.  Mr Malan’s claim that the property be returned to his wife must fail.

10                  No basis has been identified upon which this Court could properly order $1 million damages, or any amount of damages, to Mr Malan.  I assume that this claim is intended to secure compensation in relation to the injustices which Mr Malan claims attended the legal proceeding instituted against him by Mr Silvas and his subsequent bankruptcy.  While the relevant court judgments stand, no such claim can succeed.

11                  As to the claim for an order for the appointment of a Royal Commission, it is sufficient to observe that the appointment of Royal Commissions is a matter for the executive arm of government, not the judicial arm.

12                  As is mentioned above, Mr Malan has previously sought to have his bankruptcy annulled.  The ex tempore judgment of Hill J delivered on 25 October 1995 reveals that all of the matters that Mr Malan seeks to rely on in this proceeding were, in substance, agitated before his Honour in proceedings NB 237 of 1993.

13                  As the Full Court of this Court said in Wilson v The Commonwealth of Australia (1999) FCA 1308 at paragraphs 11-12:

“An attempt to litigate in the Court a dispute or issue which has earlier been resolved in other litigation in this or another court may, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J; Walton v Gardiner (1992-1993) 177 CLR 378, 393; Rogers v The Queen (1994) 181 CLR 251.

In Hunter v Chief Constable [1982] AC 529 at 542 Lord Diplock said that the applicable principle is simply and clearly stated in passages which his Lordship extracted from the judgment of A L Smith LJ in Stephenson v Garnett [1898] 1 QB 677, 680-681 and the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665, 668. The extract from the judgment of A L Smith LJ was:

... the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.

The passage from Lord Halsbury’s speech was:

... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”

14                  In my view the above statements are apposite to this case.  The application or applications in this matter is or are dismissed as disclosing no reasonable cause of action and as constituting an abuse of the process of the Court (O 20 r 2 of the Federal Court Rules).

Associate:

Dated:                                                     25 May 2000