FEDERAL COURT OF AUSTRALIA

Rana v Official Trustee in Bankruptcy [2011] FCA 504

THE COURT ORDERS THAT:

1.    On the notice of motion of the first respondent, the application of the applicant be summarily dismissed.

2.    The applicant pay to the first respondent costs of the application, including costs of the notice of motion.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The applicant became bankrupt on 13 August 2008. The Official Trustee (the Trustee) in Bankruptcy was appointed the trustee of his bankrupt estate pursuant to the operation of the Bankruptcy Act 1966 (Cth) (the Act).

2    The second respondent is a Deputy Registrar of the High Court of Australia.

3    The Trustee applied by motion of 10 November 2010 to summarily dismiss the application referred to in the following paragraph. To further understand the motion, it is first necessary to understand the nature of the primary application, and the foundation for it.

4    The application itself is, to say the least, cryptic. The orders sought, relevantly, are as follows:

1.    Under s. 178 of the Bankruptcy Act to be allowed to pursue in seeking special leave to the High Court, which is that the applicant has standing in law and the 1st respondent’s interference to stay the matter in denial of natural justice, also unlawful and unreasonable. Thus, the applicant seeks an injunction against the 1st respondent to stay the special leave to the High Court per the interlocutory decision of McKerracher J handed down by him in Perth on 14th June 2010.

2.    Under s.178 of the Bankruptcy Act the applicant seeks an injunction and declaration against the 1st respondent that a writ against the 1st respondent, Rose Marie Musolino, and Australian Government Solicitor does not belong as property vested in the 1st respondent that the decision of McKerracher J.

3.    Under s. 178 of the Bankruptcy Act the applicant was seeking either a writ or special leave in the High Court and Denise Weybury would not process it. Thus, the applicant seeks an injunction against her and/or this matter be removed to the High Court for a Justice in Chambers therein decide it as to the rights of the applicant to pursue special leave or writ that matters the interlocutory decision of McKeracher J.

4.    Removal of the 1st respondent from the applicant’s estate as it is not acting in the best interest of the applicant under s. 179 of the Bankruptcy Act.

5.    Seeking annulment of bankruptcy on grounds of being obtained under fraud or psychiatric misrepresentation by the delegate of Chief of Army, Brigadier Craig Orme.

6.    Out of pocket incidental costs of A$ 200 and return of all writs and special leave documents by the respondents mentioned above.

5    The applicant has filed six affidavits in the proceedings. The applicant’s affidavit sworn on 15 October 2010 identifies six matters which he seeks to agitate in the proceeding. Before turning to them, it is helpful to understand the chronology of relevant events, as taken from the affidavits, including the helpful affidavit of Mary Petrie for the Trustee sworn on 10 November 2010. This will put in context and explain the references to a Justice of this Court, to Brigadier Orme, Ms Musolino and to the second respondent in the application. Ms Musolino is also a Deputy Registrar of the High Court of Australia. It is necessary to go to a point in time before the applicant’s bankruptcy.

6    There are two unrelated streams of earlier litigation, which came together in a matter in which judgment was delivered on 17 March 2008: Rana v University of Adelaide [2008] FCA 365.

7    The applicant for some time had been a student of the University of Adelaide and the University of South Australia. Issues arose between the applicant and each of those institutions, which led to the applicant bringing proceedings in this Court against each of them. The proceedings, in each instance, were resolved by agreement. Most relevantly, the claims against the University of Adelaide were resolved by terms recorded in a deed of 2 March 2006, which were to be made confidential except in the circumstances expressed in clause 9 of that deed. One of the terms of that deed was that the applicant would not enter on the grounds of the University of Adelaide. Another term was, relevantly, that the University of Adelaide would not disparage or otherwise adversely comment on the applicant.

8    Earlier in time, the applicant had been pursuing a claim against the Repatriation Commission and the Chief of Army, following his membership of the Australian Army between October 1980 and July 1982. He claimed he had suffered personal injury which exacerbated a pre-existing medical condition whilst in the Army. In addition to the consequential compensation claim, the applicant disputed that his discharge from the Army was unrelated to that alleged injury. The circumstances of his discharge from the Army were the subject of review by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth). The Australian Government Solicitor (AGS) was acting for both the Repatriation Commission and the Chief of Army in relation to those matters. The AGS arranged to have the applicant examined by a consultant psychiatrist who happened to be the Professor of Psychiatry at the University of Adelaide. The consultant psychiatrist, once made aware of the agreement of the applicant not to enter the grounds of the University of Adelaide, examined the applicant off the grounds of the University and provided a report about his condition.

9    The applicant alleged in the particular proceeding that the University of Adelaide, through the consultant psychiatrist, had by the report disparaged or otherwise commented adversely about him contrary to the term referred to in [7], and had contravened s 52 of the Trade Practices Act 1974 (Cth). That claim was unsuccessful. Claims against the Repatriation Commission, the Chief of Army, and the AGS for somehow being complicit in the conduct of the University of Adelaide were also dismissed.

10    On 25 August 2008, shortly after his bankruptcy the applicant brought proceedings in his own name in the High Court for special leave to appeal from the earlier decision of Lander J in Rana v University of Adelaide [2008] FCA 365. The Trustee discontinued those proceedings on 23 December 2008. Ms Musolino as Deputy Registrar of the High Court permitted the proceeding to be discontinued.

11    The applicant then applied in this Court, in essence, for an order that the trustee did not have the right to discontinue the proceedings in the High Court, apparently under s 178(1) of the Act. He claimed that the cause of action he was asserting had not vested in the Trustee under s 58(1)(a) of the Act because it was for a personal wrong done to him within ss 60(4)(a) and 116(2)(g)(i) of the Act. In addition, in that proceeding, the applicant sought to challenge under s 178 of the Act a number of other decisions of the Trustee which concerned the applicant’s continuing conduct of several other proceedings (in all of which the trustee had either decided favourably to the applicant to allow him to continue the proceeding or had made no decision either way).

12    In Rana v Musolino [2009] FCA 1050, Finn J concluded that the applicant could not challenge the Trustee’s decision to discontinue the proceeding in the High Court, because the cause of action relied upon was not one for damages for personal injury or wrong done to him so as to fall within the compass of s 60(4) and 116(2)(g) of the Act.

13    On 14 May 2010, McKerracher J refused the applicant leave to appeal from the decision of Finn J: Rana v Musolino [2010] FCA 476. The Court affirmed that the Trustee had power to discontinue the proceeding in the High Court.

14    The applicant then presented papers to the High Court Registry seeking special leave to appeal from that decision. The High Court, through the second respondent, declined to accept them.

15    In the light of that history, it is possible to discern the import of the orders sought in the application. As noted, they were refined or explained by the applicant in his affidavit of 15 October 2010. As foreshadowed, I will address the six matters the applicant identified therein.

16    The first claim is for a declaration that the applicant has the right to seek special leave to appeal from the High Court of Australia in respect of the decision of McKerracher J in Rana v Musolino [2010] FCA 476. The character of the proceeding about which the applicant seeks to invoke the jurisdiction of the High Court has already been decided by Finn J in Rana v Musolino [2009] FCA 1050 and affirmed by McKerracher J in Rana v Musolino [2010] FCA 476. The applicant is attempting to have those decisions reviewed through a back door. Moreover, he has not gone any distance at all to show that those decisions are erroneous. In my view, the applicant is not entitled to the relief sought. It is not necessary to explore in any detail the circumstances in which, generally speaking, declaratory relief might be granted. This Court does not have the power to direct that a proposed proceeding in the High Court be accepted by a Deputy Registrar of the Court. It could determine that the trustee is not entitled to refuse to consent to such a proposed proceeding. However, no ground for doing so has been shown. As a matter of discretion, any such order must be refused.

17    Secondly, the applicant asserts by his affidavit that he is entitled to a declaration from this Court that “it is my choice that after special leave may fail I can still pursue writs against the respondents in the High Court” and that his right to do so does not vest in the Official Trustee. To state the proposition, in the face of ss 58, 60 and 116 of the Act is to demonstrate the fallacy of that proposition, unless it is demonstrated that his claim or one or more of his claims may fall within the exemption in s 58(4) and s 116(1)(g)(ii). That has not been demonstrated.

18    Thirdly, by that affidavit, the applicant seeks a declaration from this Court that he is entitled to seek judicial review in the Supreme Court of South Australia in respect of proposed proceedings against the University of South Australia in that Court. That is not a contentious matter, since the trustee has not asserted any role in respect of any such putative proceedings.

19    The proposed proceedings by the applicant as plaintiff against the University of South Australia and two other individuals were exhibited to an affidavit of the applicant of 22 July 2010. The Trustee does not consider that the proposed action is part of the bankrupt estate of the applicant, and does not claim that the cause of action to which it refers vests in the Trustee. He has informed the applicant of that view by letter of 10 November 2010. In the circumstances, there is no reason to grant any relief in respect of that claim.

20    Fourthly, the applicant seeks to invoke s 39B of the Judiciary Act 1903 (Cth) and s 178 of the Act to declare conduct of the two Deputy Registrars of the High Court “corrupt” because they have each refused to accept or process an application for special leave to appeal from a decision of this Court. He has exhibited the application and other materials which (he claims) he presented to the High Court of Australia on 3 June 2010 and which (he alleges) the second respondent declined to accept. That material names himself as the “plaintiff”, two judges of this Court as the first and second defendants, a Deputy Registrar of the High Court (not the present second respondent) as the third defendant, the Trustee as the fourth defendant and the Australian Government Solicitor as the fifth defendant.

21    There is no foundation shown for any relief to be granted against the two judges of this Court. Nor has he shown, by the procedure he has adopted, that this Court as presently constituted can review the decisions of those judges. Those judges, furthermore, are not parties to this proceeding. In addition, the relevant fifth claim must fail for the same reasons as the first claim fails. As the letter from the second respondent of 26 July 2010 shows, she did no more than is contemplated by s 58 of the Act. The Trustee, by letter of 29 June 2010, refused to consent to the proposed proceeding. The Trustee first said that there was no foundation at all for an application to show cause directed against the two judges of this Court, and that it as an abuse of process to pursue the claim in that manner. Consequently, those proposed proceedings were not consented to by the Trustee. There is no basis shown for that decision of the Trustee to be set aside. Having regard to the apparent breadth of the proposed proceeding, and the orders proposed to be sought, the Trustee’s consent to the proposed proceeding was clearly necessary. In the circumstances, it was properly withheld. Furthermore, and as noted above, the applicant has not identified any basis upon which the Court could, or should, interfere with that administrative decision by the second respondent. So far as the material before me indicates, there is not the faintest foundation to indicate that the second respondent has inappropriately made a decision which involves any error of law or reviewable error in declining to issue that proposed proceeding.

22    I note that the Trustee played no part in the decision of the second respondent to refuse to allow the applicant to file the application for special leave to appeal from the decision of McKerracher J dated 14 May 2010.

23    Fifthly, the applicant claims an order removing the Trustee as his trustee in bankruptcy. He seeks to rely upon s 179 of the Act.

24    The applicant appears to allege that the Trustee is not acting in his best interests but is instead protecting the interests of the Chief of Army. There are detailed assertions made in the applicant’s affidavit of 7 July 2010 to that effect. The Chief of Army was the petitioning creditor in the current bankruptcy of the applicant and has filed proofs of debt to support orders for costs made in favour of the Chief of Army in earlier proceedings by the applicant against him, which founded the bankruptcy. Despite the unspecified allegations of fraudulent or improper behaviour on the part of the Trustee, there is simply no evidence to support any foundation for any such relief to be granted in the present proceedings, even if it were properly constituted. There is no cogent evidence put forward to justify an order pursuant to s 179 of the Act. In my view, the application on this aspect should be summarily dismissed.

25    Sixthly, the applicant seeks some form of unspecified relief about a decision of a delegate of the Chief of Army which, he contends, was fraudulent. In light of this, the applicant further seeks an order annulling his bankruptcy.

26    The allegations concern asserted fraudulent conduct of the Chief of Army concern the acquisition and use of medical evidence from the consultant psychiatrist in the circumstances referred to above in [8]. There is no reason to think on the material before the Court, that there was any impropriety in what occurred. Furthermore, there is no evidence to indicate that the costs orders in favour of the Chief of Army in earlier proceedings could now be challenged by any application to set aside the judgments upon which those costs orders were made. No such application has been made by the applicant. In fact, the two costs orders were disclosed by the applicant in his statement of affairs filed on 14 August 2008, subsequent to his bankruptcy. The material indicates that the applicant was unable to meet the debts disclosed in his statement of affairs, and remains insolvent. It does not indicate that he has an excess of assets over liabilities either at the time of his bankruptcy or subsequently. It does not provide any foundation for a determination that the debts upon which the bankruptcy order was made or improperly procured. There was no action taken by the applicant to set aside those costs orders. Again, this application is an inappropriate attempt to go behind the decision of Lander J in Rana v University of Adelaide [2008] FCA 365. The applicant’s written submissions to some degree seek to be given a further opportunity to have earlier (and decided) claims concerning a Army service-induced disability reheard. The applicant has elsewhere exhausted that claim, such that there is no proper basis for him to revisit those same claims in the present application. I note that there is also a more general allegation in the applicant’s affidavit of 7 July 2010 that the Trustee has defrauded the applicant in the past in relation to an earlier bankruptcy. That is without any apparent foundation. It is gratuitous and improper in the circumstances. This claim has no apparent merit.

27    In my view, it is clear that the claim in its entirety is without merit.

28    During his submissions, the applicant rhetorically asked how he was to get justice. It is plain that his view about a just result is that all his various earlier claims should be accepted. He has made those claims and they have been adjudicated according to law. He has largely been unsuccessful. He cannot by the present application, in effect, create an opportunity to go behind or ignore those previous adjudications. The application represents then, to a significant degree, an impermissible attempt to challenge those decisions. The applicant is to pay the trustee the costs of the application.

Associate:

Dated:    20 May 2011