FEDERAL COURT OF AUSTRALIA

George v Fletcher (Trustee) [2009] FCA 264

PRACTICE AND PROCEDURE – application for leave to appeal orders of Federal Magistrate – application for stay of orders of Federal Magistrate pending related proceedings in Supreme Court – question of whether all of applicant’s evidence was before Federal Magistrate – prejudice to applicant if leave to appeal and stay of orders not granted – prejudice to respondents

Held: Leave to appeal granted. Orders of Federal Magistrate stayed pending delivery of judgment in the appeal.

Federal Court of Australia Act 1976 (Cth) s 24(1)A

Federal Magistrates Act 1999 (Cth) s 17A

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 cited

Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 cited

Croker v Commonwealth of Australia [2007] FCA 1593 cited

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 applied

Fletcher v George & Ors (No 6) [2009] FMCA 69 related

Harrington v Rich [2008] FCAFC 61 applied

Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 530 applied

LAUREN KAY GEORGE (A BANKRUPT) v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT), DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE, NATIONAL AUSTRALIA BANK and SUSAN JANE WILSON

QUD 47 of 2009

COLLIER J

25 MARCH 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  Leave to appeal granted from the orders of the Federal Magistrates Court 1, 2, 3, 4, 5, 6, 9 and 10 made on 9th February 2009.

2.                  The orders of the Federal Magistrates Court numbered 1, 2, 3, 4, 5, 6, 9 and 10 in these proceedings be stayed pending delivery of judgment in the appeal referred to in paragraph 1 of these orders.

3.                  The hearing in relation to the orders sought in paragraphs 4, 5, 6 and 7 of the amended Notice of Motion filed 6 March 2009 be adjourned to a date to be fixed.

4.                  Costs be reserved.

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                     I have before me an application filed 17 February 2009 and an amended notice of motion filed 6 March 2009. Both have been filed by Ms George.

2                     In the application Ms George seeks leave to appeal from the judgment of a Federal Magistrate of 9 February 2009 and his Honour’s Orders 1, 2, 3, 4, 5, 6, 9 and 10 (Fletcher v George & Ors (No 6) [2009] FMCA 69). The orders of the Federal Magistrate in those proceedings were made pursuant to s 17A Federal Magistrates Act 1999 (Cth), which provides:

(1)        The Federal Magistrates 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 prosecuting the proceeding or that part of the proceeding; and

(b)        the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)        The Federal Magistrates 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 Federal Magistrates Court has apart from this section.

3                     An appeal from orders of a Federal Magistrate pursuant to s 17A Federal Magistrates Act 1999 (Cth), being a summary judgment of the Federal Magistrates Court (cf observations of Buchanan J in Croker v Commonwealth of Australia [2007] FCA 1593), requires leave of this Court pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth).

4                     In the amended notice of motion the applicant seeks the following orders:

1.         Under Federal Court Act 1976 s 29(1) request a stay on court orders dated 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9, 10 pending the outcome of the Supreme Court matter file number 3747/2008.

2.         Request a stay on hearing the notice of appeal dated 18 February 2009 pending the outcome of the Supreme Court matter file number 3747/2008.

3.         The appellant relies upon affidavits dated 5 March 2009, 14 February 2009 in the name of Lauren Kay George for the above matter and Supreme Court Orders dated 18 February 2009 and transcripts dated 9 February 2009 and 18 February 2009.

4.         The appellant makes application to the court under ss 303, 29, 178, 30(1)(a)(b), 149(4), 149J of the Bankruptcy Act 1966.

5.         The appellant be deemed to have been discharged from bankruptcy on 25 February 2009 under s 149(4) of the Bankruptcy Act 1966.

6.         The objection lodged by the First Respondent under s 149F(1) be removed under s 149J.

7.         That all assets prematurely seized by the first respondent pleaded in the amended statement of claim dated 23 December 2008 be returned to the appellant in the same working and registered condition as that seized. To be delivered to the 130 Landing Place Moggill Queensland 4070 address no later than 9 March 2009, pending the outcome of the Supreme Court trial issues dated 23 April 2008.

8.         That the parties to the matter, comply with the Supreme Court Order dated 18 February 2009 point 4 and bring any application that relates to trial issues as described within the amended statement of claim dated 23 December 2008 to the attention of Justice Fryberg who maintains the full conduct of the trial matter and not before the Federal Magistrates Court.

5                     Both Ms George’s application and notice of motion are supported by affidavits filed in these proceedings.

Proceedings in this Court

6                     Ms George is a bankrupt, and is self-represented. The first, second, third and fourth respondents were represented by counsel (in the case of the first, second and third respondents) and a solicitor (in the case of the fourth respondent). There was no appearance by the fifth respondent who informed the Court that she was prepared to abide by the orders of the Court.

7                     The affidavit sworn by Ms George on 11 February 2009 in support of her application is of considerable length. There are more than 30 annexures thereto, constituting numerous volumes of material. Written submissions in these proceedings have been filed by Ms George as well as by the first, second, third and fourth respondents.

8                     The matter came before Dowsett J on 6 March 2009. His Honour indicated during the hearing that in his view it would be appropriate for the matter to go on appeal and be heard by the Full Court. It became clear however during the hearing that, because of late service by the respondents of material referable to Ms George’s application for a stay of the orders of the Federal Magistrate below, Ms George was not in a position to proceed with her application for a stay. Accordingly his Honour adjourned the hearing without making any orders. The matter was moved to my docket and the parties appeared before me on 10 March 2009 for me to consider the orders sought by Ms George.

9                     There has been extensive litigation between Ms George and the respondents in this matter. The primary litigation in the federal Courts has been in the Federal Magistrates Court where there have been numerous hearings and orders of that court, however this Court has also heard applications by Ms George (including this application). Further, Ms George had earlier commenced proceedings in the Supreme Court of Queensland, and it appears that an application in that court has been set down for hearing next month. The matter is complicated not only by the plethora of hearings and the number of parties, but also by the fact that while Ms George has clearly invested a great deal of time and effort into preparing her case both in this Court and the court below, her submissions, affidavits and pleadings exhibit the familiar problems associated with those of self-represented litigants, and frequently lack precision and relevance.

Background facts

10                  In summary I understand the background facts relevant to these proceedings to be as follows:

1.                  Ms George became a bankrupt on 24 February 2006 on presentation of her own debtor’s petition.

2.                  Some time during 2008 Ms George commenced proceedings in the Supreme Court of Queensland (Supreme Court proceedings 3474 of 2008) claiming that property at 130 Landing Place Moggill, the registered proprietor of which was the second respondent in these proceedings, was actually held on trust for her minor son, and that Ms George was the trustee of that trust.

3.                  On 7 November 2008 the first respondent filed an amended application in the Federal Magistrates Court seeking, inter alia, declarations that:

·                    as at 24 February 2006 the legal and beneficial ownership of the property at 130 Landing Place Moggill vested in the first respondent as trustee of Ms George’s bankrupt estate in accordance with the Bankruptcy Act 1966 (Cth) (para 2 first respondent’s amended application); and

·                    there was no trust in favour of Ms George’s minor son, Ms George, or any other person in relation to the property at 130 Landing Place Moggill (para 3 first respondent’s amended application).

4.                  On 18 November 2008 the Federal Magistrate directed, in summary, that:

·                    any documents filed in Supreme Court proceedings 3474 of 2008 be taken as filed in the Federal Magistrate Court proceedings;

·                    Ms George’s application for stay of hearing the proceedings in the Federal Magistrates Court pending resolution of her proceedings in the Supreme Court be dismissed;

·                    Ms George finalise her pleadings in the Federal Magistrate’s Court.

I understand that the purpose of his Honour’s Order with respect to documents filed in the Supreme Court proceedings was to minimise costs to Ms George.

5.                  On 1 December 2009 Ms George filed an application for leave to appeal the 18 November 2008 Orders of the Federal Magistrate. On 5 December 2009 I dismissed Ms George’s application with costs.

6.                  On 9 December 2008 in the Federal Magistrates Court proceedings the first, second and third respondents applied for summary judgment in respect of para 3 of the first respondent’s amended application.

7.                  The Supreme Court made the file of its own proceedings available to the Federal Magistrates Court for the hearing before the Federal Magistrate. The file was returned to the Supreme Court at an indefinite date, possibly during December 2008. Copies of the evidence in the Supreme Court proceedings – although possibly not all of it – were apparently delivered to the Federal Magistrate on either 6 or 9 February 2009 pursuant to an affidavit of Nicholas Humzy-Hancock sworn 6 February 2009. The evidence before me is unclear as to the circumstances attending the delivery of this material to the Federal Magistrate.

8.                  On 9 February 2009 the Federal Magistrate delivered judgment in relation to first, second and third respondents’ application for summary judgment. His Honour made the following declarations and orders:

The Court declared:

1.         That the Heads of Agreement dated 19 February 2008 and exhibited at WJF-8 to the Affidavit of William John Fletcher sworn 29 October 2008 remains valid and enforceable.

2.         That as at 24 February 2006 the legal and beneficial ownership of Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 vests in Applicant as trustee of the bankrupt estate subject to the registered mortgage number 710055137 registered in favour of National Australia Bank Ltd ABN 12004 044 937.

3.         That as at 24 February 2006 the legal and beneficial ownership of the Toyota landcruiser with the licence plate 590FXR, VIN Number: JT11UJA509019411 (V), Engine Number: 1FZ0444996 vests in Applicant as trustee of the bankrupt estate.

4.         That as at 24 February 2006 the legal and beneficial ownership of the Hanoverian mare known as Stellamarra with the microchip number 939000001109809 vests in the Applicant as trustee of the bankrupt estate.

5.         That Deed of Settlement between the Applicant and Susan Jane Wilson dated 28 October 2008 remains valid and enforceable and that it be performed.

The Court ordered:

6.         That the application be adjourned for trial on issues arising from relief sought concerning title to chattels and related property stored at or located at Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 and in respect of relief sought in paragraphs 4 and 10 of the amended application.

7.         That there be no order as to costs between the Fifth Respondent and the other parties to the application.

8.         That in respect of Order 7 of these Orders there be liberty to apply by the First Respondent, Lauren Kay George.

9.         That each party making an application for costs against any other party to the application file and serve upon the other party the subject of such application a written outline in support of such application, including a minute of proposed orders, on or by 4.00pm on 13 February 2009.

10.       That any person in possession or control of the horse Stellamara with the microchip number 939000001109809 part with possession of the horse into the power of the applicant Trustee in Bankruptcy for Lauren Kay George or his nominee forthwith upon such demand by such person for possession of that horse.

11.               That the application be adjourned for further mention to 9.30am on 25 February 2009 in the Federal Magistrates Court of Australia at Brisbane.

Ms George seeks leave to appeal from O 1, 2, 3, 4, 5, 6, 9 and 10 of his Honour, and an order staying those orders.

9.         On 18 February 2009 Fryberg J ordered that the Supreme Court proceedings involving the parties be set down for hearing in that Court for three days in April 2009. I understand from the submissions of the parties in these proceedings that Fryberg J said that there was no issue estoppel in the Supreme Court arising from the decision of the Federal Magistrates Court because, inter alia:

·                     further trusts raised by Ms George had not been considered in the Federal Magistrates Court; and

·                     the Federal Magistrate considered different questions to those before the Supreme Court of Queensland.

Extracts of the transcript of the hearing before Fryberg J are annexed to the affidavit of Ms George filed 6 March 2009 in these proceedings.

Grounds of the application and notice of motion

11                  The grounds upon which Ms George seeks leave to appeal from the decision of the Federal Magistrate are set out in her draft notice of appeal filed 17 February 2009. There are potentially seventeen grounds of appeal, and for convenience I shall continue to refer to them as “grounds of appeal” although clearly I am not, in this judgment, determining an appeal from the decision of the Federal Magistrate. At the hearing before me however it was clear that Ms George was confining her application for leave to appeal (as well as seeking a stay on the orders of his Honour below) to, in summary, the following grounds:

·                    The concurrent proceedings in the Supreme Court have been set down for hearing. It would be in the interests of justice that the orders of the Federal Magistrate be stayed pending the outcome of the Supreme Court proceedings (cf grounds of appeal 4,5,6, 13).

·                    There is strong evidence that the property at 130 Landing Place Moggill is subject to a trust in favour of Ms George’s minor son. There is also strong evidence that a fraud has been perpetrated by the second and third respondents in relation to the property (cf grounds of appeal 6, 7, 8).

·                    It is clear that the Federal Magistrate in his orders of 9 February 2009 did not, in making his decision, take into account a substantial amount of evidence which favoured Ms George. Indeed:

o                   there was no reference to much of the documentation, including receipts, which Ms George had tendered as evidence in the Supreme Court proceedings, and which should have been before his Honour;

o                   it appears that the Supreme Court file and the evidence therein had only been before his Honour for a short time after 9 December 2009 when it was returned to the Supreme Court, and that the material therein may not have been delivered back to the Federal Magistrates Court until the day his Honour delivered his judgment on 9 February 2009;

o                   exactly when the material in the Supreme Court file was returned to the Federal Magistrates Court is unclear, although it was apparently returned by way of the affidavit of Nicholas Humzy-Hancock sworn 6 February 2009;

o                   the material annexed to the affidavit of Mr Humzy-Hancock did not contain all the material filed in the Supreme Court proceedings by Ms George.

(cf ground of appeal 8)

·                    The effect of the orders of the Federal Magistrate is to evict Ms George from her home, and to deprive her minor son of a place to live. It follows that the effect of enforcement of the Federal Magistrate’s orders would seriously prejudice Ms George and her son if they are wrong. (cf grounds of appeal 11, 14).

12                  The first respondent submitted, in summary, that:

·                    Ms George bears the onus of demonstrating to the Court that there is a proper reason to warrant the exercise of the Court’s discretion in her favour to stay the Orders of the Federal Magistrate. The prima facie position is that the successful parties are entitled to the fruits of their judgment, and that decisions at first instance are not to be treated as merely provisional: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-695, Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 per Keane JA at [12].

·                    The decision of the Federal Magistrate below is free from error. Grounds 1, 2, 3, 5, 6, 7, 9 and 11 relate to an allegation of a denial of natural justice to Ms George. The assertions contained therein are demonstrably untrue, having regard to the transcript of proceedings below.

·                    Other grounds of appeal are manifestations of the poor relationship between Ms George and the first respondent’s solicitors, bespeak a fundamental misconception of the interactions between the State and Federal jurisdictions, and include an issue which has already been litigated (and leave to appeal therefrom refused).

·                    The substantive prejudice identified by Ms George in fact is her personal inconvenience at being evicted from 130 Landing Place, Moggill.

·                    Ms George cannot offer any security because she is a bankrupt.

·                    The property at 130 Landing Place Moggill has diminished in value since 2008 and is continuing to diminish in value because of, inter alia, lack of maintenance.

13                  The second and third respondents also opposed both leave to appeal and the grant of a stay. A stay was opposed on the grounds that:

·                    The notice of appeal and the grounds therein do not show any reasonable prospects of success.

·                    The respondents to the appeal are entitled to the benefits of the judgment and in particular the second and third respondents are daily suffering prejudice.

·                    Ms George is and will remain bankrupt and unable properly to compensate the respondents in costs or damages.

14                  The fourth respondent, which is the registered mortgagee of 130 Landing Place Moggill, opposed both leave to appeal and the grant of a stay on similar grounds to those contended by the first, second and third respondents.

Leave to appeal - relevant principles

15                  Issues relevant to the exercise of discretion by the Court in granting leave to appeal are:

·                    whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered; and

·                    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

(Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, at 398–399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25].)

16                  In this case the Federal Magistrate has delivered a thoughtful and thorough judgment in circumstances where not only was one of the key parties to this complex litigation (Ms George) without legal representation, but a great deal of information generated by Ms George was before his Honour. However, I consider that the issue raised by Ms George as to whether all of her evidence was properly available to the Federal Magistrate during the time his Honour was preparing the judgment, and therefore whether all of that evidence was taken into consideration by his Honour in his judgment, raises a question of justice such that an appeal from the decision of his Honour should be heard. Further, I am satisfied that both Ms George, and her minor son who is not a party to these proceedings, would suffer substantial injustice should leave to appeal be refused. In the circumstances, I consider it appropriate to grant Ms George leave to appeal against his Honour’s orders of 9 February 2009 as sought in her application.

17                  In relation to Ms George’s application for a stay of his Honour’s Orders, while I note the principles arising from such cases as Cambridge Credit Corporation (1985) 2 NSWLR 685 brought to my attention by the first, second, third and fourth respondents, I consider that a refusal to order a stay would substantially frustrate any success Ms George would have should her appeal to the Full Court be successful. Accordingly, it is for this reason that I am prepared to exercise my discretion in favour of Ms George and order a stay of the orders of his Honour of 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9 and 10 pending delivery of judgment in Ms George’s appeal. I am not prepared to make an Order in the terms sought by Ms George in para 2 of her amended Notice of Motion – as has been observed by both Dowsett J and myself during the course of these proceedings, if there is an error in the decision of the Federal Magistrates Court it is for the Federal Court to review on appeal.

18                  Further, as I indicated to the parties at the hearing before me, I am not prepared to make the orders sought by Ms George in paras 4, 5, 6 and 7 of her amended Notice of Motion before me (TS 5 March 2009 86 ll 28-30). Instead, the hearing of those paragraphs is adjourned to a date to be fixed.

19                  Finally, I do not consider that it is appropriate that I make an Order in the terms sought by Ms George in para 3 of her amended Notice of Motion, being an order by which she apparently seeks recognition of her reliance on certain material and on Supreme Court Orders. Nor do I consider it either appropriate or desirable that I should make an order in the terms sought by Ms George in para 8 of her amended Notice of Motion, being referable to proceedings in the Supreme Court of Queensland.

Associate:

Dated:         25 March 2009