FEDERAL COURT OF AUSTRALIA

Fleet v Royal Society for the Prevention of Cruelty to Animals (NSW)

[2008] FCA 1856

ROBERT FLEET v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NEW SOUTH WALES

NSD 1686 of 2004

BENNETT J

2 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  Orders 4 and 5 of the appellant’s notice of motion filed on 13 November 2008 be dismissed.

2.                  The remainder of the notice of motion be stood over to 9 December 2008 at 9.30am for further hearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     On 2 June 2005, I dismissed the appeal in these proceedings by Dr Fleet from a decision of the Federal Magistrates Court in relation to a disputed bankruptcy notice.  Dr Fleet had sought to set aside the bankruptcy notice on two possible bases.  The first was that the judgment supporting the bankruptcy notice was obtained by fraud and the second was that he had a claim against the respondent which exceeded the judgment debt obtained against him.  On 13 November 2008, Dr Fleet filed a notice of motion seeking an order setting aside my order of 2 June 2005 and relief in respect of the costs then ordered.  He does not wish to move on that part of his notice of motion (orders 2 and 3) today.  He says that he wishes to obtain urgent relief today, in terms of orders 4 and 5. 

2                     Orders 4 and 5 of the notice of motion are in the following terms:

4.                  An ORDER for immediate/very urgent interlocutory relief under ORDER 25, Rule 1, Subrule 1, of the Federal Court Rules that prohibits any party (including the Public Trustee) from (a) causing any harm, injury, detriment or loss to Dr Robert Fleet; (b) engaging in any intimidation, harassment, discrimination against, or any interference with Dr Robert Fleet; (c) coming within one hundred metres of the property at 6 Sixth Avenue, Seven Hills, NSW 2147; and (d) engaging in any form of terrorism against Dr Robert Fleet.

5.                  If necessary and in the interests of justice to the Applicant, a very urgent “freezing order” under Order 25A, Rule 2, of the Federal Court Rules that prevents the frustration or inhibition of the Court’s process.

3                     In support of those orders, Dr Fleet sets out in an affidavit a number of matters which he says are to his‘understanding and conscientious belief’.  In the affidavit he makes general assertions about the fact that he has ‘been terrorised’.  He also asserts that there has been serious break and enter activity at his residential home on more than one occasion, which has been vandalised, damaged and ransacked.  He says that many items have been stolen from his house and that he has been denied access to it, including access to documentation in relation to what seem to be various court cases.  In his submissions before me today, Dr Fleet, who is unrepresented, has extended those assertions.  Although it is not evidence, he has explained that he is also alleging breaches of the Crimes Act.

4                     The respondent has not appeared this morning but has filed a document entitled “Notice Stating Grounds of Opposition” seeking orders that the notice of motion be dismissed with costs on the bases, inter alia, that the matter has been finalised and that the notice of motion is embarrassing.  The notice contains an assertion that the respondent has taken no steps concerning Dr Fleet that would give rise to the orders sought.  That assertion is not evidence.  However, I note that there is nothing in Dr Fleet’s affidavit that links any of the generalised events described with the respondent.

5                     The orders sought are in terms that are not appropriate.  Dr Fleet seeks orders under O 25 r 1 or, in the alternative, O 25A r 2 or O 25A r 4 of the Federal Court Rules.  I do not see any basis for making a freezing order, let alone a freezing order against the respondent in these proceedings.  There is also insufficient evidence to support an interim order and there is no evidence that sets out against whom such an order would be made.  The order sought in paragraph 4 of the notice of motion is directed not only to the respondent, but also to ‘any party (including the Public Trustee)’.  Where there is no evidence to relate any of the generalised assertions to any particular party, there is no point in the order as framed. 

6                     I dismiss orders 4 and 5 of the notice of motion.  When I indicated that I proposed to make these orders, Dr Fleet asked that I record his objection.  I do so.

7                     Dr Fleet seeks, by order 1 of the notice of motion, an extension of time to hear the motion.  As he pressed for urgent interlocutory orders today, I take that to mean the remainder of the motion, the orders sought in paragraphs 2 and 3.  I will stand over the remainder of the motion, the orders sought in paragraphs 1, 2 and 3, to next Tuesday 9 December 2008, and I will deal with the remainder of the motion on that date.

Associate:

Dated:         9 December 2008