FEDERAL COURT OF AUSTRALIA

Yap v Granich & Associates[2005] FCA 309

Granich & Associates v Yap [2004] FCA 1567 cited

CHENG SEE YAP v GRANICH & ASSOCIATES

WAD 40 of 2005

NICHOLSON J

4 MARCH 2005

PERTH

THE COURT ORDERS THAT:

1.         The applicant's notice of motion filed 25 February 2005 be refused

2.         There be no order as to costs.

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

REASONS FOR JUDGMENT

1                     The applicant brings a notice of motion seeking leave to commence an application to set aside the sequestration order made on 10 December 1998.  The motion is supported by an affidavit to which subsequently reference will be made.

2                     The respondent does not appear before the Court because of the circumstances of an order made by French J on 1 December 2004, as a consequence of which it has no instructions to make such an appearance.

3                     The order made by French J was that the present applicant, as respondent before him, should not without leave of the Court institute any proceeding against the applicant before him, who is the respondent before me, and further he ordered that any proceeding instituted by the present applicant against the present respondent in the Court before the making of the order should not be continued without leave of the Court.

4                     In his reasons French J said that there had been a long and convoluted history of litigation between the applicant and her former solicitors, the present respondent.  He set out in some detail the history of the litigation and its background and I do not repeat that here but incorporate it by reference (see Granich & Associates v Yap [2004] FCA 1567).

5                     In setting out that history his Honour drew a distinction between proceedings taken by the applicant in the District and Supreme Courts of Western Australia and in the High Court on applications for special leave to appeal from the decisions of the State Full Court, as well as the separate history of proceedings in the Federal Court.  He made clear that part of the history in the Federal Court was that on 10 December 1998 the Registrar had made a sequestration order against the applicant's estate.  It is that sequestration order to which the notice of motion makes reference.

6                     The order made by French J was an application of O 21 of the Federal Court Rules (‘FCR’) applicable to vexatious litigants.  His Honour considered that the history of her litigation in this Court answered the criteria set out in FCR O 21 r 2.  He said (at [9]):

‘Her repeated litigation has been vexatious in the sense that she has sought to relitigate issues which have been previously determined.’

He also said (at [10]):

‘The want of any reasonable ground for Mrs Yap's persistent relitigation of issues has been amply demonstrated in the judgments that have been made in the course of those proceedings.’

7                     In her affidavit in support of the notice of motion, Mrs Yap sets out various matters which she says go to the existence of an arguable defence by her to the making of the sequestration order in question.  It is apparent from examination of the affidavit that a large part, if not all of it, has been addressed and considered in prior decisions in this Court and other courts, the subject of reference in French J's reasons.

8                     When asked whether the affidavit contained anything new Mrs Yap drew attention in particular to par (e) on p 3 and to subparagraphs of it, in particular (1), (2), (3), (4), (5) and (6) (pp 3 – 5).  However, the point is, the evidence that she seeks to argue there is evidence which was by the dates associated with it clearly available on any prior occasion if in fact it has not already been considered by courts.

9                     More importantly the purpose of the notice of the motion is quite patently to
relitigate the issues which have been the subject of decisions in this Court; that is, the viability of the sequestration order against her and the consequent effect on her status in bankruptcy.  That matter is the subject of judgments by members of the Court and Full Courts.  It is therefore patent that this proceeding instituted by the applicant against the respondent seeks further to relitigate the issues which have previously been dealt with.

10                  Consequently there is no basis upon which the discretion to grant leave of the Court can be exercised.  Accordingly I consider that the motion must be refused. 

Associate:

Dated:              29 March 2005