FEDERAL COURT OF AUSTRALIA

Reaper v Luxton [2015] FCA 1296

THE COURT ORDERS THAT:

1.    The application in VID 483 of 2015 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

THE COURT ORDERS THAT:

1.    The application in VID 484 of 2015 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

THE COURT ORDERS THAT:

1.    The application in VID 485 of 2015 is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

1    Before the Court are three applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Each application has been filed by the applicant Mr Reaper seeking review of the decision of the respondent, a Registrar of this Court, to refuse for filing three applications and supporting affidavits sought to be filed by Mr Reaper in June and July 2015. Mr Reaper was content for the three applications to be heard and determined together.

2    Broadly, each of those applications which was rejected for filing sought to bring a prosecution against an individual for offences against the Bankruptcy Act 1966 (Cth) and the Criminal Code (Cth), referable to that individual’s role in the bankruptcy proceedings against the applicant, and/or in the unsuccessful annulment application subsequently brought by the applicant. The Registrar refused to accept each of those applications for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) on the basis he was satisfied the applications were an abuse of process. Mr Reaper seeks orders that each of his rejected applications and their supporting affidavits be accepted for filing (if need be with a completed summons and information so as to meet the requirements for starting a prosecution under r 34.11).

3    For the reasons set out below, each of the applications must be dismissed.

THE APPLICATIONS AND THEIR CONTEXT

4    Each of the applications sought to be filed by Mr Reaper seeks to commence prosecutions under the Bankruptcy Act and the Criminal Code against individuals who had given evidence in relation to credit card debts with Westpac Banking Corporation which were central to the applicant’s bankruptcy proceedings, or were individuals otherwise involved in the applicant’s bankruptcy proceedings. Each application was filed separately, on different dates. Each application was accompanied by a supporting affidavit by Mr Reaper, as well as other documentation, most of which came from the bankruptcy proceedings or the annulment application.

5    Mr Reaper sought to invoke the process set out in Div 34.2 of the Federal Court Rules. The three applications rejected by the Registrar comprise:

(1)    an application against Mr Kim Ellis of Baycorp Collections PDL (Australia) Pty Ltd. This application is the subject of judicial review proceeding VID 483 of 2015. Mr Reaper’s credit card debt with Westpac Banking Corporation had been assigned to Baycorp Collections PDL (Australia) Pty Ltd in 2009 and in 2013 Mr Ellis had completed and lodged with the trustee in bankruptcy a proof of debt relating to that debt. The application sought to have Mr Ellis “committed for trial on indictment” by reference to several provisions of the Criminal Code and the Bankruptcy Act. Broadly the criminal conduct alleged against Mr Ellis was that he omitted certain information from the proof of debt in Mr Reaper’s bankruptcy proceeding, and that he provided “false and misleading” information in the bankruptcy proceeding. On 28 August 2015 Mr Reaper sought to file further documents in this application, including a new affidavit from him seeking to rely on an affidavit by Mr Jim Stephenson from Westpac, to which I refer below. Previously Mr Reaper had relied on Mr Stephenson’s affidavit only in relation to the proceedings he sought to bring against Mr Hanford and Mr Macey. I assume that since the attempt to file these further documents on 28 August 2015 post-dated the Registrar’s decision, these documents were also not accepted. However, I accept that Mr Reaper would wish to rely on the Stephenson affidavit against Mr Ellis as well.

(2)    an application against Mr Luke Hanford, who holds a team leader position in the Unsecured Recoveries section within Westpac. This application is the subject of judicial review proceeding VID 484 of 2015. In early 2014, Mr Hanford had made an affidavit in opposition to the applicant’s bankruptcy annulment application before Pagone J. The criminal conduct alleged against Mr Hanford relies on broadly the same provisions of the Criminal Code and the Bankruptcy Act and is alleged to constitute the making of false statements, the omission of critical information from his affidavit, and the provision of false and misleading information.

(3)    an application against Mr Darryl Macey, who was an Operations Manager at Baycorp Collections PDL (Australia) Pty Ltd. This application is the subject of judicial review proceeding VID 485 of 2015. In May 2012, Mr Macey provided an affidavit in the contested proceedings before the Magistrates’ Court over the credit card debts which would become the subject of the bankruptcy proceedings. Mr Macey’s affidavit was also filed in opposition to the applicant’s bankruptcy annulment application before Pagone J, and in addition Mr Macey made two further affidavits in October 2013 and January 2014 in the proceeding before Pagone J. The criminal conduct alleged against Mr Macey relies on provisions of the Criminal Code and the Bankruptcy Act and is alleged to constitute the making of false statements, the omission of critical information from his affidavits, and the provision of false and misleading information.

6    In the Macey application, Mr Reaper seeks a large number of declarations, some of which concern the alleged criminal conduct of Mr Macey, but many of which seek to contradict the evidence and findings made in Mr Reaper’s bankruptcy proceedings. For example, Mr Reaper sought:

A declaration that exhibit DM-02 annexed to the affidavit of Darryl Macey sworn 8 May 2012 is a Global Rewards Westpac Visa Certificate for Global Rewards membership 93496461 and is not an application for a credit card or credit card account.

…

A declaration that exhibit DM1 annexed to the affidavit of Darryl Macey sworn 15 October 2013 is not an application for a credit card or credit card account.

…

A declaration that Westpac Banking Corporation did not assign to Baycorp Collections PDL (Australia) Pty Ltd any legal or beneficial right, title or interest in or to Global Rewards membership 93496461.

7    In each case, the information and summons required by r 34.11 were blank and contained, as the Registrar noted in his decision, no particulars of any charge. At the hearing of these applications, copies of each summons and information lodged for filing by Mr Reaper were marked as exhibits in each judicial review proceeding. They are not filled out at all. In his affidavits in each judicial review application, Mr Reaper explained this by stating that his understanding is that prosecution for offences under the Bankruptcy Act are commenced by way of application and affidavit (see, for example, his evidence at [10] of his affidavit filed in the Hanford application. Whether or not that is the case, in any event, r 34.11 would apply to those aspects of Mr Reaper’s proposed prosecutions under the Criminal Code, and at least to that extent, if not any further, the Registrar was correct to identify a lack of requisite information in the summons and information. At the hearing Mr Reaper offered some further clarification of why blank documents had been filed. I return to this matter below.

8    Mr Reaper has made a series of applications to this Court in respect of the sequestration order made against him in 2013. As part of the proceedings seeking annulment of the sequestration order (Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13), Mr Reaper issued proceedings for contempt against Mr Jim Stephenson, an employee of the Westpac Banking Corporation, the bank which issued the credit cards which were at the centre of the debt dispute that led to Mr Reaper’s bankruptcy. The contempt application was dismissed by Pagone J: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No 3) [2014] FCA 729.

9    An application for an extension of time in which to file an appeal and leave to appeal from the decision of Pagone J about Mr Reaper’s annulment application was dismissed by Tracey J: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426. In that decision, Tracey J carefully considers each of the grounds of complaint made by Mr Reaper about Pagone J’s decision, but finds none of them enjoyed sufficient prospects of success to warrant the grant of an extension of time in which to appeal.

10    In December 2014, Mr Reaper sought to file a further application together with supporting affidavit material. A Registrar refused to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules on the basis he was satisfied that the documents comprised an abuse of process. Mr Reaper sought judicial review of the Registrar’s decision and the judicial review application was heard and determined by Tracey J. Tracey J described the application in the following terms (Reaper v Luxton [2015] FCA 430 at [12]-[13]):

The application seeks a series of declarations and orders relating to the evidence heard by Pagone J and traverses findings made by him. It seeks the removal of various documents from the Court file and an order that Mr Reaper’s bankruptcy be annulled.

The affidavit contains a series of challenges to the truthfulness and adequacy of affidavits which were relied on by the respondents in the proceeding before Pagone J. It is not clear from Mr Reaper’s affidavit whether he challenged some or all of this evidence at trial or, if he did not, why he failed to do so.

11    Tracey J also set out (at [1]-[3]) some relevant background to Mr Reaper’s proceedings in this Court, which I respectfully adopt:

On 16 September 2013 Mr Reaper applied to the Court for an order under s 153B of the Bankruptcy Act 1966 (Cth) (“the Act”) annulling a sequestration order which had been made by a Registrar of the then Federal Magistrates Court on 7 March 2013. After some adjournments the annulment application was fixed for hearing by Pagone J on 20 January 2014. On 20 January 2014 Mr Reaper complained about the late filing and serving of certain documents by the respondents. In order to ensure that Mr Reaper had the opportunity of considering and responding to this material the hearing was adjourned until 22 January 2014. At the conclusion of argument on that day his Honour reserved judgment.

On 28 January 2014 his Honour ordered that the application be dismissed and published his reasons for so ordering: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13.

An application for an extension of time within which to file an appeal and for leave to appeal from his Honour’s decision was later dismissed: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426.

12    As Tracey J noted at [6], a significant issue in the trial before Pagone J was whether certain credit cards issued by Westpac Banking Corporation

were held and operated personally by Mr Reaper (as alleged by his trustee in bankruptcy) or by a company or companies through which Mr Reaper had conducted business (as he claimed). Having considered the evidence, including bank records, Pagone J determined that the cards were operated by Mr Reaper personally and that the debts which had been accumulated on them were Mr Reaper’s personal debts.

13    Central to the evidence in the Magistrates’ Court debt proceeding, the bankruptcy proceedings and the annulment application were the credit card accounts ending in “66” and “93”, including whether they were different accounts, or whether one replaced the other, as well as a dispute about whether the account holder was Mr Reaper personally, or a company (or, perhaps, companies) of which he was a director. In Reaper [2014] FCA 13 Pagone J found (at [6]):

The evidence of Mr Reaper and Ms Fisher, however, is inconsistent with the documentary evidence of Westpac and, significantly, does not fit within the time frame established by the documentary evidence. That is not to say that there were no discussions with Westpac for accounts on behalf of the company but that the evidence given by Mr Reaper and Ms Fisher of their recollection of events which occurred nearly 12 years before they gave their evidence could not be about the relevant account, namely account CC93, because it had been created before the date (2002) they recalled and in circumstances that reveal that their recollection is mistaken. The fact was that Mr Reaper had a pre-existing credit card numbered 4564 7170 0164 1066 (referred to in the material as account “CC66”) which was replaced in 2001, not in 2002, with account CC93. The statements of those credit cards showed that the latter was a continuation of the former.

14    Accordingly, Pagone J found (at [8]) that Mr Reaper had not established that the debt in the Magistrates’ Court judgment was not due by him and that the sequestration order ought not to have been made. His Honour noted, as I do, that Mr Reaper was represented by solicitors and counsel in the Magistrates’ Court and the credit card debt was contested.

15    Having made the finding his Honour had about no sufficient cause to annul the sequestration order, Pagone J then also concluded (at [10]) that Mr Reaper had not established he was solvent, and therefore his solvency was not an available basis for annulment of the sequestration order either.

16    Tracey J, in considering Mr Reaper’s application for an extension of time in which to appeal, found no arguable error by Pagone J in the making of all these findings.

17    Mr Reaper has also made two more recent attempts to bring private prosecutions against individuals who had given evidence in one or more parts of his bankruptcy proceedings. Those attempts failed because the documents were not accepted for filing on the same basis that the documents which were the subject of these three applications were not accepted. I refer to those two more recent attempts at [28] to [32] below.

18    It has been necessary to set out the history of these decisions in some detail, so as to understand the Registrar’s decision in each of the three applications, to which I now turn.

THE REGISTRAR’S DECISION

19    The Registrar’s decision on the three applications was contained in a letter to the applicant dated 10 August 2015. It relevantly stated:

I refer to the 3 tranches of documents (Documents) which you sought to file on 29 June 2015, 2 July 2015 and 17 July 2015 respectively. I also refer to my earlier letters to you, the most recent of which are dated 28 May 2015 and 23 June 2015.

…

I have reviewed and considered each of the Documents. I note that many of them are the same as, or similar to, documents which you have sought to file in the past. For that reason, some of the comments below are similar to comments contained in my earlier letters to you.

Having considered each of the Documents, I am satisfied that, on 2 independent bases, they comprise an abuse of process. My reasons for coming to this view are as follows:

1.     A range of relief is sought in the 3 applications (commitment for trial on indictment, declarations and compensation). However, when the Documents are read closely it is plain that you are again seeking to relitigate the matters the subject of Justice Pagone’s decision refusing your application for an annulment of your bankruptcy (see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13). As was the case with previous lodgements, the focus of the Documents is on the relationship between the credit cards known as “CC66” and “CC93”. This is unchanged by reference now being made to the designations “GRC93” and “AVC93”.

2.     I note that the application addressed to Mr Ellis is, on its face, concerned with the proof of debt which he appears to have provided to your trustee in bankruptcy. I have, however, taken it to comprise a further attempt to relitigate the matters referred to above, as the allegations made against Mr Ellis concern the existence of the debt relied upon by the petitioning creditor, a matter fundamental to the earlier proceedings. My views in this regard are supported by the fact that the allegations made against Mr Ellis are in most instances vague and incapable of supporting a prosecution.

3.     On the basis that you are seeking to relitigate the matters the subject of Justice Pagone’s decision refusing your application for an annulment of your bankruptcy, I am satisfied that the Documents comprise an abuse of process.

4.     I note that in the case of each of Mr Hanford, Mr Ellis and Mr Macey, neither the summons nor the information contain particulars of any charge whatsoever. For this reason alone, I am also satisfied that the Documents comprise an abuse of process.

As I am satisfied that the Documents comprise an abuse of process, I refuse to accept them for filing pursuant to r 2.26 of the Federal Court Rules.

RESOLUTION

20    On the morning of the hearing of the judicial review applications, Mr Reaper filed written submissions supporting the applications. I have taken those submissions into account and address them where necessary below. Mr Reaper also agreed to the two letters referred to in Registrar Luxton’s decision (of 28 May 2015 and 23 June 2015) being marked as exhibits in each application.

21    I explained to Mr Reaper the nature of a judicial review proceeding, and its limits. He indicated he understood those matters, and indeed the contents of his written submissions, with reference to unreasonableness, improper exercise of power, absence of good faith and denial of natural justice indicate that Mr Reaper has at least a working lay understanding of the need to demonstrate legal error in the Registrar’s decision, rather than simply seek to persuade the Court to change the decision to one in his favour.

22    Mr Reaper also clarified his references in his submissions to the eCourtroom, and stated that he was under a misapprehension that the kind of applications he filed against Mr Ellis, Mr Hanford and Mr Macey may have been able to be dealt with in the eCourtroom. He was advised by Registry this could not occur, and plainly given the nature of the proceedings (prosecutions for criminal offences) it would have been inappropriate to proceed by eCourtroom.

23    As Tracey J held in Reaper v Luxton, there are at least two ways a person can seek review of a decision of a Registrar under r 2.26. The first is by way of s 35A(5) of the Federal Court of Australia Act 1976 (Cth). The second is pursuant to the AD(JR) Act. Mr Reaper has adopted the latter approach. However, even if his applications were to be considered under s 35A, I would have reached the same conclusion as the Registrar, for the same reasons I propose to dismiss the applications for judicial review.

24    In my opinion none of the claims for judicial review should succeed. To succeed under the AD(JR) Act, Mr Reaper must establish, broadly, that the Registrar’s decision was not made in accordance with law, including in a way which complied with any obligations of procedural fairness owed by the decision-maker, taking into account the grounds set out in s 5 of the AD(JR) Act. I am not satisfied Mr Reaper has established any entitlement to relief under the AD(JR) Act. It was open to the Registrar to conclude that each of the three applications was an abuse of process, and his reasons do not disclose any legal error in the way he reached that conclusion. No denial of procedural fairness is alleged by Mr Reaper and so far as the evidence before me is concerned, I am satisfied in any event there was no denial of procedural fairness by the Registrar, if indeed any duty to afford procedural fairness was owed in making a decision under r 2.26.

25    Save for two aspects, the details of claim relied upon by the applicant in each of the three applications are substantively the same, contained in five propositions. The grounds then develop each of these propositions. One different aspect is that in the Ellis application, Mr Reaper additionally alleges a sixth proposition that the Registrar impermissibly made comments on a prosecution. The second is that in the Hanford and Macey applications, Mr Reaper expresses the third claim differently.

26    I propose to deal with each of the claims in turn.

The respondent’s earlier letters dated 28 May 2015 and 23 June 2015 do not relate to the current application

27    Although it is correct, as Mr Reaper points out, that the earlier application with which Pagone J dealt was a contempt proceeding brought under Pt 42, there is no legal error in the Registrar’s references to the content of his previous correspondence to Mr Reaper, nor in his observation that the current correspondence contains similar comments.

28    The respondent’s letter of 28 May 2015 relates to applications and related documents sought to be filed against Mr Hanford and Mr Macey which were rejected for filing. In rejecting those documents, the respondent stated:

I refer to the following documents (Documents) which you seek to file in proceeding VID985/2013:

A.     application addressed to Luke Hanford;

B.     statement of charge addressed to Mr Hanford;

C.     notice to produce addressed to Mr Hanford;

D.     notice of intention to adduce coincidence evidence addressed to Mr Hanford;

E.     copy affidavit of Mr Hanford sworn 15 January 2014;

F.     application addressed to Darryl Macey;

G.     statement of charge addressed to Mr Macey;

H.     notice to produce addressed to Mr Macey;

I.     notice of intention to adduce coincidence evidence addressed to Mr Macey;

J.     copy affidavit of Mr Macey sworn 8 May 2012;

K.     copy affidavit of Mr Macey sworn 15 October 2013;

L.     copy affidavit of Mr Macey sworn 16 January 2014;

M.     copy affidavit of James Ronald Stephenson sworn 26 June 2014;

Having considered each of the Documents, I am satisfied that they comprise an abuse of process. My reasons for coming to this view are as follows:

1.     A range of relief is sought in the two applications (summary convictions, indictments, declarations, removal of documents from the Court file, compensation and costs). However, when the Documents are read closely it is plain that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy (see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13). As was the case with previous lodgements, the focus of the Documents is on the relationship between the credit cards known as "CC66" and "CC93".

2.     As is noted above, you seek to file the Documents in proceeding VID985/2013. That proceeding has concluded. Justice Pagone made orders on 28 January 2014 dismissing your application for an annulment of your bankruptcy, and on 3 July 2014 dismissing your prosecution of Mr Stephenson. Furthermore, pursuant to the Documents you seek orders against two persons (Mr Hanford and Mr Macey) who are not, and have never been, parties to that proceeding.

3.     You seek summary convictions pursuant to s 263A of the Bankruptcy Act 1966. That section provides that such convictions are punishable "by a fine not exceeding $200, or imprisonment not exceeding 6 months, or both". However, s 15B(1) of the Crimes Act 1914 provides that:

Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows:

(a)     if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction--at any time;

(b)     in any other case--at any time within one year after the commission of the offence.

Given that the affidavit of Mr Hanford was sworn on 15 January 2014, the alleged offences occurred more than one year ago. Accordingly, by operation of s 15B(1) of the Crimes Act 1914, such summary prosecutions cannot be commenced against Mr Hanford.

4.     You seek orders that Mr Hanford be committed for trial on indictment pursuant to s 273(5). However, in none of the Documents do you identify any law the contravention of which would support such an indictment. Similarly, you seek orders that Mr Macey be committed for trial on indictment "for breaching the Applicant's privacy". Again, in none of the Documents do you identify any law the contravention of which would support such an indictment.

As I am satisfied that the Documents comprise an abuse of process, I refuse to accept them for filing pursuant to r 2.26 of the Federal Court Rules.

29    The respondent’s letter of 23 June 2015 relates to the rejection for filing of an application and statement of charge for contempt addressed to Mr Hanford and related documents. In that letter, the respondent states:

I refer to the most recent tranche of documents (Documents) which you have sought to file in proceeding VID985/2013:

A.     application addressed to Luke Hanford;

B.     statement of charge addressed to Mr Hanford;

C.     notice to produce addressed to Mr Hanford;

D.     notice of intention to adduce coincidence evidence addressed to Mr Hanford;

E.     copy affidavit of Mr Hanford sworn 15 January 2014;

F.     copy affidavit of Mr Macey sworn 16 January 2014;

G.     copy affidavit of James Ronald Stephenson sworn 26 June 2014;

I have reviewed and considered each of the Documents. I note that many of them are the same as, or similar to, documents which you earlier sought to file and which were the subject of my letter dated 28 May 2015. For that reason, some of the comments below are similar to comments contained in that letter.

Having considered each of the Documents, I am satisfied that they comprise an abuse of process. My reasons for coming to this view are as follows:

1.     A range of relief is sought in the application (commitment for trial on indictment, removal of a document from the Court file, compensation and costs). However, when the Documents are read closely it is plain that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy (see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13). As was the case with previous lodgements, the focus of the Documents is on the relationship between the credit cards known as "CC66" and "CC93".

2.     At paragraph [8] of the statement of charge you have introduced new credit card designations, being "GRC93" (allegedly a Global Rewards Westpac Visa Gold Card) and "AVC93" (allegedly a Westpac Altitude Visa Card). Both cards bear the same number. These designations appear to have been introduced to promote an argument that they are separate accounts, and that only the debt comprised in AVC93 was in fact assigned to Baycorp Collections PDL (Australia) Pty Ltd. This new allegation does not derogate from my view that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy.

3.     As previously, you seek to file the Documents in proceeding VID985/2013. That proceeding has concluded. Justice Pagone made orders on 28 January 2014 dismissing your application for an annulment of your bankruptcy, and on 3 July 2014 dismissing your prosecution of Mr Stephenson. Furthermore, pursuant to the Documents you seek orders against a person (Mr Hanford) who is not, and has never been, a party to that proceeding.

As I am satisfied that the Documents comprise an abuse of process, I refuse to accept them for filing pursuant to r 2.26 of the Federal Court Rules.

30    It is clear that on these two occasions, Mr Reaper had attempted, by other means, to impugn again the factual findings made by Pagone J about the two credit cards. On these occasions he sought to do so by means which included (as against both Mr Hanford and Mr Macey) not only charges of contempt, but private prosecution for criminal offences, just as he has tried to do again in the applications against Mr Hanford and Mr Macey which are the subject of Registrar Luxton’s latest refusal under r 2.26.

31    It was reasonable, and entirely explicable, for Registrar Luxton to refer to these two letters to Mr Reaper in his latest decisions. The repeated applications by Mr Reaper all concern the same underlying subject matter, although he seeks to attack the findings made by Pagone J through different means each time, concentrating on seeking to continue to contest the evidence given in the bankruptcy proceedings.

32    On each occasion, Registrar Luxton has given reasons for refusing to accept the documents for filing which are particular to the contents of the documents sought to be filed. Contrary to Mr Reaper’s submissions to me, Registrar Luxton has not simply sought to “copy and paste” his findings from one letter to another. If there is repetition, it is because the allegations and purposes of the applications which Mr Reaper seeks to file are repetitive.

The respondent incorrectly deduced the credit card designations CC66 and CC93 were changed to GRC93 and AVC93

33    Mr Reaper now seeks to describe each of the two credit card accounts at the centre of his disputes by putting different letters in front of the two last numbers of each account. At hearing, Mr Reaper agreed that he used the letters “GRC” as an abbreviation for the Global Rewards Westpac Visa Gold Card, which he alleges is the full name of the kind of card and “AVC” as an abbreviation for the Westpac Altitude Visa Card, which he alleges is the full name of a “different” credit card with the same number. He contends this is established by documents produced by Mr Jim Stephenson from Westpac. His point is that he contends that Mr Stephenson’s affidavit (or the documents annexed to it) demonstrate that both the credit cards ending with “66” and “93” co-existed for several years, and thus it could not have been the case (as Pagone J found) that the card ending with “93” replaced the card ending with “66”.

34    Having listened to Mr Reaper’s oral submissions on this, I cannot identify any legal error in the Registrar’s reference to a change in the “designations” of the cards. Even if the Registrar misunderstood what was in Mr Reaper’s affidavit (eg, in his affidavit in the Hanford application at [7]) this is an immaterial error of fact, at the very most. It could not give rise to any relief under the AD(JR) Act. What Mr Reaper’s explanation at the hearing makes abundantly clear is that what he does indeed seek to do is to find a way to change, or set aside, the findings of fact made by Pagone J about the Westpac credit cards, other than through an appeal process.

The respondent advanced that the focus of the Documents is on the relationship between the credit cards known as CC66 and CC93 (Hanford and Macey applications)

35    In my opinion, there is nothing legally erroneous in the Registrar’s statement in his reasons for decision that the focus of the documents filed by Mr Reaper was on the relationship between the two credit cards CC66 and CC93. Mr Reaper would have it that the focus of the documents is on the unlawful conduct of each of Mr Ellis, Mr Hanford and Mr Macey. It is correct to describe the documents in that way, insofar as they bring proceedings against each of those three individuals. However, the underlying subject matter of the documents is as the Registrar described.

The respondent looked beyond the face of the current application(s) to refuse it for filing pursuant to r 2.26 of the Federal Court Rules (Ellis application)

36    Mr Reaper correctly submits that r 2.26(a) refers to the formation of satisfaction by the Registrar that a document (including an application) is an abuse of process or frivolous or vexatious by reference to what appears on the face of the document.

37    However, r 2.26(b) expands what can be considered to “any documents already filed or submitted for filing with the document”.

38    Each of the 25 documents filed by Mr Reaper and identified by the Registrar in his decision was a “document” for the purposes of r 2.26, and the Registrar was entitled to look at each of those. Self-evidently, the Registrar was entitled to take into account other proceedings (and documents in them) filed by Mr Reaper, and could take notice of any relevant reported decisions of this Court. Those other decisions constituted part of the law in relation to the matters raised by Mr Reaper, as well as constituting the decisions binding upon him as a party, and finally determining the disputes which were the subject of those decisions.

39    I am satisfied the Registrar did not exceed the matters he was entitled to examine in order to reach the state of satisfaction he did under r 2.26.

The respondent advanced that the applicant is attempting to relitigate the matters the subject of Pagone J’s decision

40    There is no legal error in this aspect of the Registrar’s reasoning. To the contrary, it is obvious that this is exactly what Mr Reaper is seeking to do. Through other means, he seeks to impugn the sequestration order, but in doing so seeks to litigate again the finding by Pagone J about the two credit cards being sequentially issued to him personally. That is an abuse of process: see Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393.

The respondent advanced comments pertaining to a prosecution

41    At the hearing, I invited Mr Reaper to explain in more detail to which comments he directed this contention. He confirmed this claim is directed to the statement by Registrar Luxton that “[m]y views in this regard are supported by the fact that the allegations made against Mr Ellis are in most instances vague and incapable of supporting a prosecution”.

42    There was no legal error, or excess of jurisdiction, in the Registrar making that statement. It is accurate. Even if one puts to one side the location of the allegations (that is, whether they are in an originating application and affidavit rather than in a summons and information) the allegations are vague. The false information said to have been provided is not identified. The false statements said to have been made are not identified. Nor, in either case, does Mr Reaper set out why the information or statements are false.

43    I am satisfied there were no legally impermissible comments made by the Registrar in his reasons.

The respondent advanced that the summons and information contain no particulars of any charge whatsoever

44    Mr Reaper contends he lodged the summons and information as blank documents “in accordance with current procedure”. I have reviewed the summons and information in each application. The information in each application is indeed blank, and (omitting Mr Reaper’s residential address) reads:

Brett Reaper … appears before [name of Registrar] [description of Registrar] on [date and time Applicant appears before Registrar] at 305 William Street Melbourne to inform [name of Registrar] that on [date and place of offence] [name and address of Respondent] did [or failed to do] [set out details of offence and specific description of legislation creating the offence].

45    Likewise, the particulars in the summons addressed to each of Mr Ellis, Mr Hanford and Mr Macey has been left blank, and reads:

Particulars

1.     [Identify each offence contained in the Information accompanying this Summons. Give particulars of each act or omission of the Respondent to which the prosecution relates (see rule 34.12(2). The summons should be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter.]

2.

3.

46    The requirements of Div 34.2 are straightforward, even to a self-represented person. Mr Reaper does not depose in his affidavits to any contrary advice he was given in relation to r 34.12. The explanation in his affidavits – that he considered this was the function of the Director of Public Prosecutions – is contrary to the clear requirements of rr 34.11 and 34.12.

47    Mr Reaper deposes that if he was wrong, he would complete the summons and information. His willingness to do so says nothing about the lawfulness of the Registrar rejecting the documents in the form they were presented. The Registrar was plainly entitled to reject the application and supporting affidavit, and the summons and information, against each of Mr Ellis, Mr Hanford and Mr Macey because there were no particulars of any charges. That is the only matter before the Court on these judicial review applications.

48    Given my conclusions above about the absence of any details about what was said to be false in the information provided or statements made, it would not have mattered had Mr Reaper been allowed to transfer his statements from the application and affidavit back into the information and summons. Their defects would have remained.

49    More importantly, in whatever form they were presented, the Registrar was entitled to find each of the three applications represented yet another attempt by Mr Reaper to go behind the factual findings made by Pagone J and relitigate the basis for his bankruptcy.

50    As I have said above, if I had been asked to review the Registrar’s decision under s 35A(5) of the Federal Court Act, I would have concluded, for myself, that Mr Reaper’s real purpose is to relitigate the basis for his bankruptcy and to challenge the findings made by Pagone J. The fact that these three applications were brought after the rejection in May and June 2015 of similar applications against Mr Hanford and Mr Macey adds to the abuse of process which these applications represent.

CONCLUSION

51    Mr Reaper clearly feels that based on the documentation he now has, he has grounds to demonstrate that the credit card debt which was the trigger for his bankruptcy was not the debt it was represented to be.

52    It is open to Mr Reaper to seek legal advice about his options. He claims to have tried to do so, without success. If he is able to prove that individuals provided false information in sworn evidence, one might imagine this would be of interest to prosecutorial authorities. Whether the information Mr Reaper believes is powerful is seen to be so by such authorities is another matter.

53    On the current applications, the Court’s task is limited to determining if the exercise of power by the Registrar under r 2.26 was open to him on the material before him and not affected by legal error. The Court has concluded the decision as it relates to each of Mr Reaper’s applications was open and unaffected by legal error. Mr Reaper’s applications must be dismissed.

Associate:     

Dated:    20 November 2015