FEDERAL COURT OF AUSTRALIA
Rogers v Asset Loan Co Pty Ltd ACN 107 746 798 [2007] FCA 1660
BANKRUPTCY – alleged counterclaim or set off for damages for financial loss and psychological or mental damage – whether counterclaim or set off actually exists – whether counterclaim or set off relies on facts, matters and circumstances previously before the Court and previously dismissed
Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12DJ
Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(7)
Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1974 (Cth) s 52, s 60
Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth)
Federal Court Rules O 14 r 8, O 20 r 2
Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34 cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 cited
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited
Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 339 applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited
Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549 cited
Re A Debtor [1958] 1 Ch 81 cited
Reichel v Magrath (1889) 14 App Cas 665 applied
Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 cited
Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 cited
Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 cited
Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 related
Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 applied
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 applied
Wilson v Commonwealth of Australia [1999] FCA 1308 cited
Miller R, Annotated Trade Practices Act (28th ed, Thomson, 2007)
QUD173 OF 2007
COLLIER J
1 NOVEMBER 2007
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD173 OF 2007 |
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BETWEEN: |
LYNNE MAREE ROGERS Applicant
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AND: |
ASSET LOAN CO PTY LTD ACN 107 746 798 First Respondent
ASSET LOAN COMPANY PTY LTD ACN 101 054 997 Second Respondent
PAUL ALEXANDER SYDNEY HARE Third Respondent
RUSSELL FRANK PERCIVAL Fourth Respondent
JUDITH LORRAINE HARE Fifth Respondent
RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 Sixth Respondent
SEAN WHITTLE Seventh Respondent
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COLLIER J |
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DATE OF ORDER: |
1 NOVEMBER 2007 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The application filed 14 June 2007 be dismissed.
2. The affidavit of Lynne Maree Rogers filed herein on 14 June 2007 be taken off the file.
3. The affidavit of Gregory Eric Rogers filed herein on 14 June 2007 be taken off the file.
4. The applicant pays the respondents’ costs of and incidental to the proceedings to be taxed, if not otherwise agreed.
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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QUEENSLAND DISTRICT REGISTRY |
QUD173 OF 2007 |
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BETWEEN: |
LYNNE MAREE ROGERS Applicant
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AND: |
ASSET LOAN CO PTY LTD ACN 107 746 798 First Respondent
ASSET LOAN COMPANY PTY LTD ACN 101 054 997 Second Respondent
PAUL ALEXANDER SYDNEY HARE Third Respondent
RUSSELL FRANK PERCIVAL Fourth Respondent
JUDITH LORRAINE HARE Fifth Respondent
RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 Sixth Respondent
SEAN WHITTLE Seventh Respondent
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JUDGE: |
COLLIER J |
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DATE: |
1 NOVEMBER 2007 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 I have before me an amended notice of motion filed on 22 August 2007 by the respondents to the substantive proceedings seeking, inter alia, that the substantive proceedings be dismissed or otherwise stayed. The specific orders sought are as follows:
1. As to the relief sought in paragraphs 5 (under the heading, Details of claim) and 1 (under the heading, Claim for interlocutory relief), that the Applicant’s proceeding against the First Respondents be:
1.1 dismissed; or
1.2 stayed.
1A. Further and alternatively to paragraph 1, that the relief sought in paragraphs 1 to 4, 6 and 7 (under the heading, Details of Claim), and 2 and 3 (under the heading, Claim for Interlocutory Relief) be:
1A.1 dismissed; or
1A.2 alternatively, stayed.
2. Further and alternatively to paragraph 1A, that the Applicant’s proceeding against the Seventh Respondent be dismissed.
3. That the affidavit of Lynne Maree Rogers filed herein on 14 June 2007 be taken off the file.
4. That the affidavit of Gregory Eric Rogers filed herein on 14 June 2007 be taken off the file.
5. That the Applicant pay the Respondents’ costs of and incidental to the proceedings to be taxed and paid forthwith.
2 For convenience I shall continue to refer to the respondents to the substantive proceedings as “the respondents” notwithstanding that they are applicants to the notice of motion before me; similarly I shall continue to refer to Mrs Rogers as “the applicant” notwithstanding that she is the respondent to this notice of motion.
3 I note that the respondents were represented by Mr Handran of counsel. The applicant was self-represented.
Background
4 The substantive proceedings, which were commenced by application filed 14 June 2007, concern a “Claim for relief under the ASIC Act Unconscionable Conduct, Undue Harassment & Coercion & Deceptive & Misleading Conduct contrary to Sections 12DA(1) and 12DJ”. Specifically the applicant seeks the following relief:
“A. Details of Claim
On the grounds stated in the accompanying affidavits or statement of claim, the applicant claims.
1. An order that any loan agreements, mortgages and deeds of settlement are void.
2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void
3. An order for damages for financial loss and psychological or mental damage
4. Any other orders that the court deems fit
5. An order to set aside a Bankruptcy Notice filed by the Second Respondent on 19 April 2007 and served on 25 May 2007 on the grounds of set off or counterclaim
6. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties.
7. An order for costs in the proceeding.”
5 The applicant also claims the following:
“B. Claim for Interlocutory Relief
AND the applicant claims by way of interlocutory relief:
1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007
2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family
3. Any other orders that the court deems fit.”
6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to:
· the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371
· the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195
· the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434
· my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708.
7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371, is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a “Claim for Relief under the Trade Practices Act”. The Details of Claim were described as:
“A. Details of Claim
On the grounds stated in the accompanying affidavit or statement of claim the applicant claims.
1. An order that any loan agreements, mortgages and deeds of settlement are void
2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void
3. An order for damages
4. Any other orders that the court deems fit
5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties
6. An order for costs in the proceeding.”
8 In that claim, the applicant also sought:
“B. Claim for Interlocutory Relief
AND the applicant claims by way of interlocutory relief:
1. An order that the respondents not seek to claim, take possession of a house at 2 Crown Street, Final Head under further order of the court.
2. An order that the respondents do not harass, intimidate or coerce the applicant
3. Any other orders that the court deems fit.”
Basis of the respondents’ application
9 The respondents seek dismissal or stay of the substantive proceedings before me on the basis that:
1. First, in relation to paras1-4 and 6-7 under the heading “Details of Claim” and paras 2-3 in the “Claim for Interlocutory Relief”:
· the proceedings are identical to those previously before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371, are attempt to re-litigate matters already determined by his Honour, and as such constitute an abuse of process; and
· in any event, the applicant’s application has no reasonable prospects of success and should be dismissed pursuant to s 31A Federal Court of Australia Act 1976 (Cth).
2. Second, in relation to para 5 under the heading “Details of Claim” and para 1 in the “Claim for Interlocutory Relief”, the applicant does not have an existing counterclaim or set off upon which to set aside the bankruptcy notice and as such this claim should be dismissed.
Relevant principles
Abuse of process
10 It is not in contention that the Federal Court has power to dismiss or permanently stay proceedings as an abuse of process. This is clear from O 20 r 2 Federal Court Rules which provides:
(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).
11 That an attempt to re-litigate matters already determined is an abuse of process and should not be entertained by the Court is a principle of long-standing authority. In Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Lord Halsbury LC said that 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 proceeding to set up the same case again. …it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.”
12 More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500:
“There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action…: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198.”
(cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11]-[12]; Finn J in Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414)
Section 31A
13 As I noted above the respondents also specifically rely on s 31A Federal Court of Australia Act 1976 (Cth) in connection with paras 1-4 and 6-7 under the heading “Details of Claim” and paras 2-3 in the “Claim for Interlocutory Relief in the substantive application. So far as relevant, section 31A provides:
Summary judgment
...
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.
14 Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including:
· Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]).
· Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]).
· The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]).
· It appears that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55]).
· The “no reasonable prospects of success” formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom’s Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects (at [59]).
· The same test has been adopted in r 292(2) and r 293(2) of Queensland’s Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the “no reasonable prospects of success” test requires the court to determine whether there are “real” as opposed to “fanciful” prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]).
15 I respectfully adopt this articulation of principles of Lindgren J.
Comparison of the substantive application before me with that in QUD525/2005
16 It is clear that the substantive application before me is almost identical to that which was before Spender J in QUD525/2005, and upon which his Honour has given judgment. This suggests immediately a possible abuse of process by the applicant in these proceedings. However, there are clearly two differences between the substantive application before Spender J upon which his Honour has given judgment, and the substantive application before me, namely:
1. First, the substantive application in QUD525/2005 purported to be a claim for relief under the Trade Practices Act 1974 (Cth) while the proceedings before me purport to be brought under the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”).
2. Second, whereas in the substantive application before me the applicant seeks as relief an order to set aside a bankruptcy notice filed by the second respondent on the grounds of a set off or counterclaim, and by way of interlocutory relief an order extending time to comply with that bankruptcy notice, no such relief was sought in the substantive application in QUD525/2005.
Legislative relief
17 The applicant has submitted that the current proceedings have been commenced under the ASIC Act instead of the Trade Practices Act in light of the comments of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 at [44] that the ASIC Act was the relevant legislation in respect of financial services. The applicant has further submitted that the matters are different because they are brought under different statutory schemes and that since QUD525/2005 was commenced “new breaches” had occurred (TS p 20, ll 43-44).
18 The application before me asserts that it is brought pursuant to ss 12DA and 12DJ ASIC Act. There is no reference to any particular sections of the Trade Practices Act in the application file in QUD525/2005 however, the comparable sections in the Trade Practices Act are s 52 and s 60 respectively.
19 Sections 12DA and 12DJ ASIC Act are found in Pt 2 Div 2 Subdiv D which is entitled “Consumer Protection”. Sections 52 and 60 Trade Practices Act are found in Pt V Div 1 which is entitled “Unfair Practices”.
20 Section 12DA ASIC Act provides:
“Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.
(1A) Conduct:
(a) that contravenes:
(i) section 670A of the Corporations Act (misleading or deceptive takeover document); or
(ii) section 728 of the Corporations Act (misleading or deceptive fundraising document); or
(b) in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or
(c) in relation to a disclosure document or statement within the meaning of section 1022A of the Corporations Act;
does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.
(2) Nothing in sections 12DB to 12DN limits by implication the generality of subsection (1).”
21 By way of comparison, s 52 Trade Practices Act provides as follows:
“Misleading or deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN).”
22 Section 12 DJ ASIC Act provides:
“Harassment and coercion
(1) A person contravenes this subsection if:
(a) the person uses physical force or undue harassment or coercion; and
(b) the person uses such force, harassment or coercion in connection with the supply or possible supply of financial services to a consumer, or the payment for financial services by a consumer.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) Strict liability applies to paragraph (1)(b).”
23 By way of comparison, s 60 Trade Practices Act provides:
“Harassment and coercion
A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.”
24 The similarities between s 12DA ASIC Act and s 52 Trade Practices Act, and s 12DJ ASIC Act and s 60 Trade Practices Act, are clear. The rationale for the similarities can be seen in s 51AF Trade Practices Act which provides:
“Part does not apply to financial services
(1) This Part does not apply to the supply, or possible supply, of services that are financial services.
(2) Without limiting subsection (1):
(a) sections 52 and 55A do not apply to conduct engaged in in relation to financial services;
…
…”
25 It is well-known that the provisions of the ASIC Act regulating consumer protection resulted from the transfer of consumer protection functions in relation to financial services from the regulatory responsibility of the Australian Competition and Consumer Commission to the Australian Securities and Investments Commission: Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth), second reading speech, Treasurer, the Hon Peter Costello MP; Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.11-4.14; Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34.
26 It is also clear that the provisions of the ASIC Act under consideration in this case replicate the equivalent provisions of the Trade Practices Act: Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.33-4.39, Miller R, Annotated Trade Practices Act (28th ed, Thomson, 2007) at 516.
27 I am not persuaded that, by substituting the consumer protection provisions of the ASIC Act for the equivalent provisions of the Trade Practices Act in her claim, the applicant’s case in paras 1-4 and 6-7 under “Details of Claim” and paras 2-3 under “Claim for Interlocutory Relief” is any different from the case which was before Spender J. Indeed, these pleadings are otherwise identical to those before Spender J, and no relevance has been ascribed either in the pleadings before me or by the applicant at the hearing to the conduct of the respondents so far as it relates specifically to financial services (to which the ASIC Act applies), as distinct from other goods or services (to which the Trade Practices Act applies). The applicant relies on the same facts, matters and circumstances in the application before me as she did in QUD525/2005 before Spender J. The applicant is attempting to re-litigate issues already decided by Spender J. In this respect the application is an abuse of process and should be dismissed pursuant to O 20 r 2 Federal Court Rules.
28 In any event, having regard to the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371, it is clear that the applicant would be no more successful on the material before me in claiming relief under the ASIC Act than she was before his Honour in claiming relief under the Trade Practices Act. In light of the principles articulated by Lindgren J in White Industries [2007] FCA 511, it is plain that the claim has no reasonable prospects of success in terms of s 31A Federal Court Act.
Bankruptcy Issue: Is there a valid counterclaim or set off?
29 As I noted earlier, the applicant in the substantive proceedings claims:
· an order to set aside a bankruptcy notice filed by the second respondent on 19 April 2007 and purportedly subsequently served on the applicant, on the grounds of a set off or counterclaim (para 5 Details of Claim)
· an order extending time to comply with that bankruptcy notice (para 1 Claim for Interlocutory Relief).
30 Although not specifically pleaded, I understand that the existence of such alleged set off or counterclaim relates to whether the applicant has committed an act of bankruptcy within the meaning of s 40(1)(g) Bankruptcy Act 1966 (Cth).
31 As stated by the High Court (Dixon CJ, McTiernan and Windeyer JJ) in Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 339 at 350:
“The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand.... In Re A Debtor [1958] 1 Ch 81 Roxburgh J said: ‘But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success’ (at 99). Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand.”
32 The basis of claim before me as to an alleged set off or counterclaim can be seen in an affidavit of the applicant sworn 13 June 2007 and filed 14 June 2007 in these proceedings, in particular paras 1-8 of the affidavit. These paragraphs read as follows:
1. “I am the applicant in this file.
2. On 25 May 2007 a process server called at my home where he was intercepted at the front gate by Greg Rogers. The process server allegedly said, “This is for Lynne Rogers.” He then dropped a Bankruptcy Notice dated 19 April 2007 on the ground and left.
3. The Bankruptcy Notice seeks $10,421.09 being costs claimed by the respondents as a result of Supreme Court of New South Wales litigation.
4. The litigation was initiated by me to stop the Seventh Respondent acting for the Second Respondent, from enforcing fraudulently obtained orders from the Supreme Court giving it possession of my then home.
5. It was not possible to raise issues relating to a set off or counter claim as it was not a final hearing but an interocutory (sic) hearing where I was not present. There was no opportunity to raise ASIC Act breaches before the Supreme Court of New South Wales.
The litigation was initiated solely to stop the Seventh Respondent Whittle and the issuer of the Bankruptcy Notice, Asset Loan Co from using the Sheriff to enforce an order that to their knowledge was fraudulently obtained.
Ultimately, His Honour Justice Spender issued orders stopping the respondents from taking possession in file QUD 525 2005 when I applied for orders under the Trade Practices Act.
This new application seeks orders under the provisions of the ASIC Act as the respondents all acted in relation to the supply or possible supply of financial services.
6. I have filed an Application in the Federal Court of Australia seeking orders including damages for economic loss and mental damage as a result of the conduct of the seven defendants including the company that issued the Bankruptcy Notice, Asset Loan Co A.C.N. 101 054 997 and its lawyer Sean Whittle who issued the Bankrupcy (sic) Notice.
7. My set off or counter claim seeks damages that will be far greater than the amount of the Bankruptcy Notice.
8. I seek orders from the Federal Court to extend the time to comply with the Bankruptcy Notice and to set it aside altogether.”
33 In relation to the alleged set off or counterclaim of the applicant with respect to the bankruptcy notice filed by the respondent on 19 April 2007, Mr Handran for the respondent submitted as a proposition that:
· if no counterclaim or set off actually exists; then
· there is no basis to set aside the bankruptcy notice filed by the respondent and served on the applicant; and
· accordingly this aspect of the applicant’s claim in the substantive proceedings before me should also be dismissed.
34 Mr Handran submitted further that the facts, matters and circumstances which the applicant relies on in support of the counterclaim or set off, are the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 and which have been dismissed by his Honour. Mr Handran submits that this is also evident from the supporting affidavit filed by the applicant in support of both her application in this case and that in QUD525/2005.
35 It is useful to compare this affidavit of the applicant, with an affidavit sworn by her on 30 November 2005 and filed in QUD525/2005. In particular I note that:
· paragraphs 9-35 of the applicant’s affidavit sworn 13 June 2007 and filed in these proceedings are identical to paras 4-30 of her affidavit sworn 30 November 2005 and filed in QUD525/2005 (before Spender J), and in summary, set out the applicant’s version of the background to and nature of the dispute between herself and the respondents which gives rise to the relevant set off or counterclaim
· the only different paragraphs – paras 2-8 (set out above in this judgment) and paras 36-43 of the applicant’s affidavit sworn 13 June 2007 and filed in these proceedings - concern the applicant’s version of the events surrounding the service of the bankruptcy notice filed by the respondents on 19 April 2007 and the fact that this application has been brought under the ASIC Act.
36 Having reviewed the material before me, and read:
· the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371
· the application filed in QUD525/2005 (which is annexed to the affidavit of Mr Whittle sworn 19 June 2007 in these proceedings) and
· the affidavits (including that of the applicant) filed in support of that application (which are annexed to the affidavit of Mr Whittle sworn 6 September 2007 in these proceedings).
it is clear that the facts, matters and circumstances upon which the applicant is relying in the substantive proceedings before me to have the relevant bankruptcy notice set aside - and which relate to a set off or counterclaim for damages for financial loss and psychological or mental damage caused by conduct of the respondents - are exactly the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371. I note that Spender J dismissed the claim of the applicant for damages for economic loss and mental damage as a result of the conduct of the respondents. It is inappropriate to allow the application before me to continue, on the basis that there is a set off or counterclaim for damages for financial loss and psychological or mental damage as a result of the conduct of the respondents, which identical claim has already been dismissed. In this respect, I accept the submission of the respondents that there is, in fact, no setoff or counterclaim as envisaged by ss 40(1)(g) and 41(7) Bankruptcy Act 1966 (Cth) and the High Court in Ebert 104 CLR at 350.
37 In light of this, there is also no substantiated ground upon which to grant the applicant the interlocutory relief she seeks in para 1 under the heading “Claim for Interlocutory Relief”.
Removal of material from the Court file
38 The respondents have also sought orders that the affidavit of the applicant filed 14 June 2007 in these proceedings, and the affidavit of her husband Mr Gregory Eric Rogers filed on the same date be removed from the file. Order 14 r 8 Federal Court Rules provides that the Court may order that an affidavit be removed from a Court file where the affidavit contains scandalous or oppressive matter.
39 Mr Handran for the respondents submitted that these affidavits of the applicant and Mr Rogers contain matters which are the subject of injunctions in the Supreme Court of Queensland in favour of the seventh respondent, Mr Whittle (who is also the solicitor for the first to sixth respondents) and that accordingly the affidavits should be taken off the Court file. Further, in his affidavit sworn 19 June 2007 and filed 20 June 2007, Mr Whittle deposes:
· on 12 March 2007 he filed an originating application with the Supreme Court of Queensland against Mr Gregory Rogers seeking injunctions against Mr Rogers in respect of defamatory materials published by Mr Rogers about Mr Whittle
· on 4 April 2007, de Jersey CJ made orders in favour of Mr Whittle, in terms of the originating application he had filed
· the affidavits of the applicant filed 14 June 2007 and Mr Gregory Rogers filed 14 June 2007 contain defamatory material that, were it not in the form of affidavits, would be subject to the orders of the Supreme Court of Queensland
· the applicant and her husband are using the Federal Court process to circumvent the orders of the Supreme Court of Queensland.
40 In my view these affidavits of the applicant and Mr Rogers contain material that is scandalous and oppressive. I also note the orders made by de Jersey CJ annexed to the affidavit of Mr Whittle filed 20 June 2007. Accordingly, the appropriate order is that both affidavits be removed from the Court file.
THE COURT ORDERS THAT:
1. The application filed 14 June 2007 be dismissed.
2. The affidavit of Lynne Maree Rogers filed herein on 14 June 2007 be taken off the file.
3. The affidavit of Gregory Eric Rogers filed herein on 14 June 2007 be taken off the file.
4. The applicant pays the respondents’ costs of and incidental to the proceedings to be taxed, if not otherwise agreed.
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I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
Dated: 1 November 2007
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Counsel for the Applicant: |
The applicant appeared in person |
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Counsel for the Respondent: |
GJ Handran |
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Solicitor for the Respondent: |
Whittle Lawyers |
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Date of Hearing: |
12 October 2007 |
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Date of Judgment: |
1 November 2007 |
