FEDERAL COURT OF AUSTRALIA

Gould v Day [2002] FCA 663

STEPHEN GOULD v JULIAN DAY & ANOR

N1652 of 2001

MADGWICK J

9 MAY 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the respondents.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     In this matter the appellant, Mr Gould, appeals against a judgment given by Federal Magistrate Driver in which the learned Magistrate dismissed an application by the appellant for annulment of his bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (“the Act”).  As the learned Magistrate understood Mr Gould's application before him:

“The basis of the application is that the sequestration order, which was made on 7 September 2000 by his Honour Conti J, in the Federal Court, should not have been made because the petitioning creditors had an ulterior motive in seeking to obtain the bankruptcy of Mr Gould.  The applicant also called on the Court to exercise its discretion to annul the bankruptcy so that he can proceed with damages proceedings in the Supreme Court of New South Wales against Mr Day and Mr Manly.  There is an issue whether those proceedings can continue without the consent of the trustee in bankruptcy.”

2                     The learned Magistrate gave an ex tempore judgment on 20 December 2001 when each party, including the appellant, appeared in person.  On the same day, the appellant lodged a notice of appeal in this Court from the whole of the judgment of the learned Magistrate.  The grounds of appeal were stated to be:

“1.    The appellant sought legal representation in this matter.  It transpires that the legal firm contacted represented the Insolvency and Trustee Legal Service [ITSA] and actively discourages the Appellant from pursuing the matter. 

2.      As a consequence the Appellant was not properly prepared to provide the appropriate reasons and evidence to Annul the Sequestration Order.”

The orders sought were that this Court should rescind and set aside the learned Magistrate's order to dismiss Mr Gould’s application to annul the sequestration order and that the application to annul the sequestration order be granted.  It appears that the revision by the learned Magistrate of his reasons first given in ex tempore fashion was not concluded until 15 January 2002.

3                     On 19 February 2002 Emmett J gave judgment in a separate and distinct application by the appellant, pursuant to s 153B of the Act, for the annulment of his bankruptcy in consequence of the sequestration order made by Conti J on 7 September 2000.  The grounds for annulment as Emmett J put them in that case were:

“(i)   Conti J was aware that Mr Gould had a claim in the Supreme Court but did not have before him the evidence as to the likely success of that claim;

(ii)         Messrs Day and Manly are not pursuing their debt but are intending to prevent Mr Gould from earning a living; and

(iii)       Mr Gould cannot earn a living as a bankrupt.”

4                     Before dealing with the substance of that matter, Emmett J noted that Driver FM had dismissed the application for annulment of the bankruptcy with which the present appeal is concerned.  His Honour indicated:

“Mr Gould also made an application for a stay of proceedings [as I would understand it, on the sequestration order] in this current application.  In the course of hearing that application for a stay I indicated that it was inappropriate that Mr Gould continue with his appeal from the orders of Driver FM.

As a term of my proceeding to hear the application for a stay, Mr Gould undertook to discontinue that appeal or indicated that he would consent to its dismissal.  That term was imposed in circumstances where Mr Gould had on foot both an appeal from the decision of Driver FM as well as a further application in this Court for an annulment.  At the moment the appeal is still on foot.  It is against that background that I have heard Mr Gould's second application for an annulment.  It may be that this application should have been dismissed as being vexatious, having regard to the orders that were made by Driver FM.  Mr Gould's justification for bringing this second application within weeks of the dismissal of his earlier application is that new material has come to light.”

5                     His Honour, for reasons that he gave, dismissed the second application for annulment of the bankruptcy. 

6                     On 28 March 2002 Emmett J directed in relation to the present matter:

“1.    That an appeal book be prepared and served no later than 19 April 2002.

...

3.             The appellant is to file and serve an outline of submission no later than 26 April 2002. 

4.             The respondent to file and service an outline of submission no later than 3 May 2002. 

5.             The Court notes that there are no documents which the respondents require to be included in the appeal book.”

No appeal book has been prepared and served.  On 29 April 2002 an officer of the Court wrote to Mr Gould in the following terms:

“This matter is listed for hearing before his Honour Justice Madgwick on Thursday 9 May 2002 at 10.15am.

It is noted that the appeal books which were due on 19 April 2002 have not been filed to date.  I note that you telephone the Registry about the filing of the appeal books today.  However, the appeal books are required for the hearing and they should be filed without any further delay in accordance with the directions made on the date the appeal index was settled.”

7                     On 6 May 2002 the appellant filed submissions running to ten pages.  The submission included the following:

“B.    That application [that is the application before Driver FM for the annulment of the sequestration order] was based on the grounds of repeated Abuse of Process and Malicious Prosecution by the Creditors prior to the granting of the Sequestration Order and continued Malicious Prosecution by the Creditors out of spite and malice since the granting of the Sequestration Order. 

C.       This Appeal submission is based on the grounds that for the first time a Judgment supports the Claim of the Applicant of Malicious Prosecution by the Creditors Julian DAY and Alan MANLY since 1996.  Magistrate DRIVER did not review the content of the documents as is evident by his Judgment [dated] 15 Jan 2002.

D.       The judgment by EMMETT J was given on 28 March 2002 in Federal Court matter 185/2002 for a Permanent Restraint against the Creditors DAY and MANLY to stop their interference in OIC projects and events. 

E.    A number of paragraphs in that Judgment support the Applicant's claim that the Sequestration Order should not have been made as the material was submitted to Justice CONTI before he granted the Sequestration order.

…

G.      Since the Order was made on 07 Sep 2000 the Creditors have continued their Malicious Prosecution against the Applicant in their efforts to prevent him from paying the debt.  Again this statement is supported in EMMETT J Judgment.

…”

8                     A number of extracts from Emmett J’s judgment of 28 March 2002 were then set out.  That judgment concerned an application brought by the present appellant against the present respondents pursuant to ss 45D, 45DB and 51AC of the Trade Practices Act 1974 (Cth).  His Honour discussed various material in which one or the other of the present respondents, or both, had used very strong language against the appellant and in some cases his business associates.  In some cases his Honour found that the material emanating from one or the other of the respondents was quite clearly calculated to cause damage to the appellant.  Nevertheless his Honour considered that none of the causes of action could succeed and he dismissed the application.

9                     When the matter came on for hearing this morning, I was aware that the appellant had, on numerous occasions, been exempted from the payment of fees on the grounds of alleged impecuniosity.  On the other hand, I had no reason to think that either Mr Day or Mr Manly, the respondents, was impecunious.  In the interest of trying to minimise costs I attempted to deal with the matter without an appeal book.  I indicated that I had read the submission which Mr Gould had filed and the judgment of Justice Emmett of 28 March 2002.  I also indicated to Mr Gould the difficulty that I had in seeing that anything said by Justice Emmett could constitute material, in the nature of fresh evidence, that might have been put before Driver FM.

10                  Indeed, it later emerged that, in the submission referred to above, the appellant had also said:

“All the material reviewed by EMMETT J except [for one item which referred to letters written on 5 March 2002] was placed before CONTI J prior to granting the Sequestration order on 07/09/2000 and before Magistrate DRIVER on 20/12/2001.”

11                  It became difficult to deal with the submission.  As other judges have noted, there is great animosity between the parties and Mr Gould smarts under a deep sense of injustice.  He is difficult to keep to the point and he has had to shift his ground in what he is saying.  This is, of course, not uncommon with litigants in person.

12                  Before lunch I had invited Mr Gould's attention to the actual grounds in the notice of appeal and asked him to consider whether he wished to seek to file any amended grounds of appeal.  He indicated that he did and I indicated that he should make such an application after lunch, with the grounds set out in detail. 

13                  Over lunch the directions made by Justice Emmett on 28 March 2002 (see [6]) were obtained and some of the background to the proceedings became clear.  After lunch Mr Gould sought to file a document which is part of the material marked for identification 7.  The amended grounds were:

“(1)  The Magistrate's Judgment had not been received when the original Notice of Appeal was lodged on the day that the Judgment was made.

(2)         The Magistrate had misconstrued the submission made by the Applicant and there were a number of inaccurate statements in his Judgment.  A list of those misconstrued issues is attached.

(3)         The Judgment fails to mention the issues listed as [in] the affidavit filed 08 Nov 2001 as the reasons why the court should annul the sequestration order on the grounds of:

1                             s 52(3)b

2                             Malicious Prosecution

3                             s 153B.”

14                  Mr Gould handed up, with the proposed amended grounds of appeal, an affidavit in support of his amended grounds of appeal dated 9 May 2002 and he indicated to me that there were issues listed in that affidavit to which he had meant to refer to in proposed amended ground number two.  I need not set out the detail of that affidavit and list.

15                  The respondents opposed any amendment of the grounds of appeal and any adjournment of the proceedings. 

16                  In light of the procedural history which I have recounted, it was inevitable that I should refuse the application.  Mr Gould has had ample opportunities to get his house in order.  Indeed, had he complied with a term of the hearing of the stay application which Emmett J had thought appropriate, this appeal would have been either discontinued or by consent, dismissed.

17                  Ordinarily a Court will be tender to a would-be appellant who does not have the typescript of the reasons of judgment at the time of filing a notice of appeal and, whether or not on terms as to costs, will make every effort to let the would-be appellant raise that which he or she wishes to raise.  A good deal of the background of this matter is able to be comprehended from the judgment of Conti J making the sequestration order, from the judgment of Driver FM now appealed from and from the two judgments of Emmett J.  Whereas the appellant is, as those judges have indicated, suffering from a sense of grievance, he is nevertheless a very intelligent man capable of marshalling materials and arguments and well able to understand the nature of court processes of which he has had so much experience.

18                  Mr Gould has made no offer to pay the costs of any adjournment, should the nature of his appeal be widened.  Even if he had, I apprehend that the respondents would not have been content with this but would have wished the Court to act so that at least one chapter of the ongoing litigation against them might be brought to conclusion.  Emmett J’s judgment declining to annul the sequestration order is itself, I might add, the subject of an appeal to the Full Court.

19                  Conti J, in what was, with respect a very compassionate way, attempted to explain to the appellant that the sensible course would be to take steps to put the litigation then on foot behind him as was his right but he has been either unable or unwilling to do this.  The entire history of the matter indicates to me that, very unusually, no further latitude as to the nature of this appeal should be accorded to the appellant.

20                  I turn to the substance of the appeal, as it stands.  The grounds of appeal, assuming their truth, so far as they allege matters of fact, do not provide any basis for upholding the appeal.  It is not suggested that the appellant did not have a good deal of time in which to seek to obtain legal representation.  Indeed, he indicated that he had discussed the matter with as many as five legal practitioners, all of whom had declined to act for him.  He also indicated that he had not, after he failed to obtain legal representation, sought any further adjournment of the proceedings by Driver FM.

21                  Parties to litigation are entitled to a reasonable opportunity in all the circumstances to prepare their case.  This includes having a reasonable opportunity in all the circumstances to obtain legal representation.  If the appellant was unable to persuade a legal practitioner to act for him without fee assuming he was impecunious, or with fee if he was not, that does not amount to his not having had a reasonable opportunity to prepare his case.  The appellant made allegations that the period before the hearing of the matter by Driver FM in December 2001 had been difficult for him because of the necessity for him to attend to a number of court processes.  These court processes were, so far as I can see, entirely initiated by him or were the ordinary and natural consequences of his having initiated proceedings earlier.  As I say, assuming the truth of the facts asserted in the grounds of appeal, I do not see any basis for the court to interfere with the learned Magistrate’s decision.

22                  Accordingly the appeal will be dismissed.  The appellant is to pay the costs of the respondents.

Associate:

Dated:              24 May 2002