FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan No. 48216 [2016] FCA 1090

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Ms Janelle Mary Kimber is the owner of Lot 110 in the Strata Plan No.48216. The respondent is the Owners Corporation of Strata Plan No. 48216 (the Owners Corporation).

2    On 4 May 2016, the Registrar dismissed Ms Kimber’s application to set aside a bankruptcy notice issued against her in respect of a judgment debt owed to the Owners Corporation. The Registrar also discharged an order made on 20 April 2016 extending the time for compliance by Ms Kimber with the requirements of the bankruptcy notice and ordered that Ms Kimber pay the Owners Corporation’s costs.

3    By an amended interlocutory application dated 11 July 2016 (the amended application), Ms Kimber appears to ask this Court to review the Registrar’s decision made on 4 May 2016 (albeit that only the costs order made by the Registrar is expressly challenged) and seeks a range of other orders which the Owners Corporation submits go well beyond the subject matter of the original application to the Registrar to set aside the bankruptcy notice and the power of this Court to make.

4    By an application made orally on 27 July 2016 (the summary dismissal application), the Owners Corporation seeks orders that Ms Kimber’s amended application be struck out and the proceeding dismissed pursuant to s 37P(6) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Alternatively, the Owners Corporation seeks summary judgment pursuant to s 31A(2) of the Federal Court Act. The Owners Corporation also seeks an order that Ms Kimber pay its costs. The orders sought are confirmed by the outline of submissions filed by the Owners Corporation on 11 August 2016. The basis on which the orders are sought are that the amended application “is ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, discloses no cause of action and is an abuse of court process.” The Owners Corporation also alleges that the amended application is vexatious and contains scandalous allegations against it, its officers, officers of the Court and others.

5    For the reasons set out below, I consider that Ms Kimber’s amended application suffers from all of these deficiencies and difficulties and the proceeding should be summarily dismissed under s 31A(2) of the Federal Court Act. Furthermore, in so far as Ms Kimber seeks to challenge the Registrar’s decision to dismiss the application to set aside the bankruptcy notice, she seeks to raise claims for which no evidence has been proffered before the Registrar or in this Court to support the vague and conclusory allegations of dishonest and other improper conduct made against the Owners Corporation and others.

2.    EVIDENCE

6    The Owners Corporation relies in support of the summary dismissal application upon the affidavit of Sylvia Quang sworn on 22 April 2016. Ms Quang is a solicitor at Grace Lawyers Pty Ltd which acts for the Owners Corporation. That affidavit sets out the evidence as to the basis for the bankruptcy notice, its service, the alleged act of bankruptcy, and the circumstances which led to the filing of a creditor’s petition in the Federal Circuit Court prior to the resolution of these proceedings.

7    Ms Kimber relies in opposition to the motion upon her affidavit dated 4 April 2016 (but apparently affirmed on 19 May 2016) and filed on 30 May 2016. In addition, Ms Kimber indicated at the hearing that she wished to lead oral evidence from a member of the executive committee. No affidavit from the member had been filed in advance of the hearing and no notice had been given of the intention to seek to lead evidence from him. Ms Kimber explained that the evidence she wished to lead from the proposed witness was “about the accusations of my documents being ambiguous and vague.” The documents said to be “ambiguous and vague” in issue on the summary dismissal application are Ms Kimber’s pleadings. I ruled against permitting Ms Kimber to lead evidence from the proposed witness on the ground that it was a matter of looking at the documents on their face to determine whether or not they were ambiguous and vague, as the Owners Corporation contended, and not a matter for evidence. Such evidence would have been, in other words, irrelevant.

8    Ms Kimber had also filed an earlier affidavit affirmed and filed on 20 April 2016. After the hearing, the Court received an email from Ms Kimber dated 5 September 2016 which indicated that she was acting on the erroneous assumption that she could rely in opposition to the summary dismissal application only upon one of the affidavits filed by her. Given that misapprehension and the oral submission by the Owners Corporation at the hearing to the effect that despite ample opportunities, Ms Kimber had not put forward any evidence to support her claims disputing the underlying debt to the Owners Corporation and thereby the judgment debt underlying the Bankruptcy Notice, the Court wrote to the parties to determine whether Ms Kimber in fact wished to rely upon both affidavits filed by her in the proceedings and to ascertain the position of the Owners Corporation. The Owners Corporation responded noting that the 20 April 2016 affidavit contained submissions and not evidence, but did not object to the Court receiving that affidavit provided the Court did not read any of the paragraphs or annexures relating to settlement discussions and mediation. Ms Kimber responded but did not indicate whether she wished to rely on the affidavit of 20 April 2016. Rather, she sought to make further submissions and adduce further evidence which I have not taken into consideration as no leave was granted for further submissions or evidence to be filed. In the circumstances, I have taken into account only Ms Kimber’s affidavit filed 30 May 2016 including the annexures thereto in evidence against the Owners Corporation’s motion.

3.    BACKGROUND

9    These proceedings originated in proceedings instituted by the Owners Corporation in 2009 in the Local Court of New South Wales against Ms Kimber for unpaid levies, interest and costs in the sum of $2521.58 (the Local Court proceeding). Default judgment was entered by the Local Court in the sum of $952.31 on 25 May 2009 (the Default Judgment).

10    On 16 September 2013, Ms Kimber filed a notice of motion to set aside the Default Judgment. At the hearing of the notice of motion on 10 October 2013, the Local Court made orders setting aside the Default Judgment, requiring a defence to be filed within 28 days and for costs to be costs in the cause. The last of these orders meant that the party who was ultimately successful in the litigation would bear the other party’s costs of Ms Kimber’s notice of motion. The solicitors for the Owners Corporation in these proceedings, Grace Lawyers, were also the solicitors in the Local Court proceeding.

11    Ms Kimber filed a defence in the Local Court proceeding on 7 November 2013 disputing service of the levy notices and that the Owners Corporation had not received the outstanding levies. She also denied any liability for the costs incurred by the Owners Corporation of recovery on the basis that the strata managing agent for the Owners Corporation was unreasonable and unprofessional and had caused the applicant personal and professional harm and loss. That defence was struck out on 13 December 2013 on application by the Owners Corporation and the parties were directed to amend the claim and defence.

12    On 29 April 2014, Ms Kimber filed a further amended defence, together with a proposed statement of cross-claim, in which she sought recovery from the strata managing agent for the Owners Corporation and from Grace Lawyers for the claim made against her by the Owners Corporation for the unpaid recovery expenses, plus damages. On 5 May 2014, Ms Kimber filed a notice of motion seeking orders, among others, for leave to file the proposed statement of cross-claim and to join the strata managing agent and Grace Lawyers to the Local Court proceeding.

13    The Local Court proceeding was heard on 7 May 2014. On that day the Court made orders dismissing Ms Kimber’s motion filed on 5 May 2014, refusing leave to file the statement of cross-claim, and found that there was no evidence to support her allegations, and no cause of action, against the strata managing agent and Grace Lawyers. Judgment was entered in favour of the Owners Corporation in the sum of $10,767.00, being comprised of $10,000 for recovery expenses plus $767.00 in costs pursuant to the Local Court scale (the Local Court judgment). The time to pay was 28 days.

14    On 19 February 2016, Bankruptcy Notice BN 188465 was issued in respect of the Local Court judgment (the Bankruptcy Notice). The notice was addressed to Ms Kimber, identified the creditor as “The Owners – Strata Plan No 48216”, and set out the claims as follows:

15    The notice included a schedule of post-judgment interest calculation pursuant to s 101 of the Civil Procedure Act 2005 (NSW) as follows:

16    A copy of the judgment which formed the basis of the Bankruptcy Notice was attached to the Notice.

17    The Bankruptcy Notice was served personally on Ms Kimber on 17 March 2016. An act of bankruptcy was allegedly committed 21 days later on 7 April 2016.

18    On 18 April 2016, a creditor’s petition on behalf of the Owners Corporation was lodged online in the Federal Circuit Court. On the same day, but before lodging the creditor’s petition, Grace Lawyers conducted searches of the records of the Federal Court and Federal Circuit Court with respect to Ms Kimber. Those searches disclosed that no applications had been filed by Ms Kimber in relation to the Bankruptcy Notice. The creditor’s petition was accepted for filing on 19 April 2016 and listed for hearing in the Federal Circuit Court on 24 May 2016.

19    Ms Kimber’s application to set aside the Bankruptcy Notice in the Federal Court was accepted for filing on 20 April 2016 and served on 21 April 2016. However, the application had been lodged for filing some time earlier on 5 April 2016. Due it would seem to an error in the title of the proceedings on Ms Kimber’s application, the application was not accepted for filing until 20 April 2016 when the title of the proceedings was corrected. The delay was unfortunate because, as Counsel for the Owners Corporation accepted, the Owners Corporation would not have lodged the creditor’s petition had Ms Kimber’s application been accepted for filing earlier and therefore been discovered by Grace Lawyers when they conducted their searches on 18 April 2016. It is clear that Ms Kimber felt some distress because the creditor’s petition had been lodged before her application was determined and this was one of the complaints which she raised in oral submissions. Nonetheless, the Owners Corporation properly accepted that they could not press the creditor’s petition until Ms Kimber’s application in this Court was finally resolved.

20    Orders were also made on 20 April 2016 by the Registrar extending the time for compliance by Ms Kimber with the requirements of the Bankruptcy Notice to 4 May 2016 when the orders the subject of the amended application were made. While Ms Kimber raised an issue at the hearing before me as to why the extension was only until 4 May 2016, it is apparent that that date was selected because that was the day on which Ms Kimber’s application was listed before the Registrar for determination.

21    On 21 April 2016, Ms Kimber filed a “statement of claim” naming not only the Owners Corporation as a respondent, but also officeholders, members and former members of the “committee”, the “Managing Agent” and (certain of) its officers and the “company owner”, and Grace Lawyers and certain named solicitors. Aside from the Owners Corporation, none of those persons were or are parties to the proceedings. In the statement of claim, a series of causes of action are asserted on the basis of allegations which lack any pleading of material facts or particularity in what can only be described as a confused and impenetrable document.

22    On 22 April 2016, the Owners Corporation filed a notice stating grounds of opposition to Ms Kimber’s application.

23    On 2 May 2016, Ms Kimber filed a “genuine steps statement”.

24    As earlier mentioned, on 4 May 2016, the Registrar dismissed Ms Kimber’s application, discharged the order extending time for compliance, and ordered Ms Kimber to pay the Owners Corporation’s costs.

25    On 20 May 2016, Ms Kimber filed an interlocutory application seeking an orders that:

ORDER 1: I SEEK A REVIEW OF THE REGSITRAR’S [sic] DECISION OF 4 May 2016ORDER 2:”

26    The Owners Corporation submits that the effect of this is that the interlocutory application appears to seek review only of Order 2 of the Registrar’s orders of 4 May 2016. Ms Kimber states that it is clear that the reference to “Order 2” is a typographical error in that it is “a duplicated heading backed up onto the sentence on ORDER 1”.

27    Ms Kimber sought other orders including an injunction against the strata management company for alleged negligence and unspecified dishonest and other conduct. However, the document with respect contains a very confused series of assertions and quotations, and it was not at all clear from the application precisely which orders made by the Registrar on 4 May 2016 were challenged and on what grounds.

28    On 1 June 2016, a Registrar made orders including a grant of leave to Ms Kimber to file an amended Interlocutory Application “to seek review of all the orders made by [the Registrar] on 4 May 2016”, and for the amended application to be filed and served by 15 June 2016 (emphasis added). The matter was also referred to a Docket Judge. Further orders were subsequently made on 20 June 2016 allowing Ms Kimber an extension of time until 11 July 2016 to file and serve the amended interlocutory application.

29    On 11 July 2016, Ms Kimber filed the amended application. The amended application contained a preamble in which she asked the Court:

…to assist to direct my case on a growing set of complex legal issues involving related matters that are in concurrently and presently in process in the Federal Court, Federal Circuit Court and the NSW Supreme Court

Much needed relief from the oppressive circumstances of having multiple proceedings in multiple courts involving multiple parties and need to address court(s) errors took toll. I ask the Honourable Justice to decide to completely and finally determine ALL related matters by constitutional laws, to ‘reign in’ this controversy and to bring ALL matters together and deal with how an erroneous $154 set aside default created a $10000 judgement order, 2 bankruptcy notices and a creditors petition.

(emphasis and errors in the original)

30    In the preamble, Ms Kimber also alleged that there was a need formally to address unidentified officers of the Commonwealth for unidentified errors or unfair procedures that had allegedly impacted on her legal status and well-being.

31    In the body of the amended application, Ms Kimber sought a number of orders which can be summarised as follows.

(1)    An order that the Registrar’s order on 4 May 2016 for Ms Kimber to pay the Owners Corporation’s solicitor’s costs be annulled and substituted by an order that the Owners Corporation pay Ms Kimber’s costs.

(1)    The joinder of parties to the proceedings, including the solicitors for the Owners Corporation, strata managing agents and members of the executive committee “to counter claim & cross claim or start vital ‘restoration’ proceedings”. These claims seem to be related to the request that the Federal Court “go behind” the judgment of the Local Court based on allegations which were described as scandalous by the solicitor for the Owners Corporation and appear to be the same claims which Ms Kimber had sought to raise in the Local Court proceeding in her proposed statement of cross-claim (see above at [11]-[13]).

(2)    An estoppel on the creditor’s petition before the Federal Circuit Court based upon (it would appear) the delay in the Federal Court accepting the application to set aside the bankruptcy notice for filing.

(3)    An order that these proceedings be “‘cross-vested’ with the power of accrued jurisdiction” – an order which seems to be related to the request in the preamble to the amended application for relief from multiple proceedings in multiple courts with multiple parties.

(4)    An injunction against the respondent’s solicitors and strata manager on the grounds that they continue to promote “immoral and illegal activities with no constitutional authorisation from Owners Strata Plan 48216”, have acted oppressively in issuing her with invoices for allegedly “false arrears”, and other allegations described by the Owners Corporation as scandalous.

(5)    An order that the Orders made on 20 April 2016 extending the date of compliance to 4 May 2016 not be discharged but that Ms Kimber be given additional time to submit further materials to “go behind the judgements”.

32    In the amended application, Ms Kimber also claims rights under the International Covenant on Civil and Political Rights and the Privacy and Personal Information Protection Act 1998.

4.    CONSIDERATION

4.1    Matters not in issue

33    It is not in dispute that the Registrar had power to make the orders made on 4 May 2016 pursuant to s 35A(1)(h) of the Federal Court Act and Schedule 1, item 1 (power to set aside a bankruptcy notice under s 30(1), Bankruptcy Act 1966 (Cth)(Bankruptcy Act)) and item 4 (extension of time for compliance with a bankruptcy notice under s 41(6A), Bankruptcy Act) of the Federal Court (Bankruptcy) Rules 2016 (the Bankruptcy Rules).

34    Nor is it in dispute that this Court may review a decision of the Registrar not to set aside a bankruptcy notice under s 35A of the Federal Court Act which relevantly provides that:

(5)      A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

(6)      The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

35    A review under s 35A(5) and (6) is a hearing de novo, that is, a fresh hearing by this Court of the question whether a bankruptcy notice should be set aside: Nugawela v Deputy Commissioner of Taxation [2016] FCA 578 at [12].

36    Related to this, r 2.02(3) of the Bankruptcy Rules provides that:

Subject to any direction by the Court to the contrary, an application under subsection 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar must be made by filing an interim application in accordance with Form B3 within 21 days after the day on which the power was exercised.

37    While Ms Kimber has not filed an interim application in accordance with Form B3 but rather what is described as an “amended interlocutory application”, no point was taken regarding this by the Owners Corporation. In those circumstances I raised with the parties whether in the circumstances it would be appropriate to treat the amended interlocutory application as an interim application pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) which enables me to waive the requirements of the rules in the interests of justice. Both parties confirmed at the hearing that they were content with this approach.

38    Ms Kimber also confirmed at the hearing that the grounds articulated by her in the amended interlocutory application with respect to the Registrar’s orders made on 4 May 2016 have superseded the grounds contained in the original application which was considered by the Registrar. Both parties also proceeded on this basis in their written and oral submissions.

4.2    Relevant principles

39    As Ms Kimber submitted and the Owners Corporation accepted, the onus lies upon the Owners Corporation to establish that the amended application should be struck out and/or the proceedings summarily dismissed and those powers must be exercised with caution.

40    First, the Owners Corporation submits that the amended application should be struck out in its entirety and the proceeding dismissed pursuant to s 37P(6) of the Federal Court Act. Section 37P relevantly provides that:

(1)    This section applies in relation to a civil proceeding before the Court.

(2)    The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(3)    Without limiting the generality of subsection (2), a direction may:

(a)    require things to be done; …

…

(5)    If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.

(6)    In particular, the Court or Judge may do any of the following:

(a)    dismiss the proceeding in whole or in part;

(b)    strike out, amend or limit any part of a party’s claim or defence;

(c)    disallow or reject any evidence;

(d)    award costs against a party;

(e)    order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.

41    In this case, the Owners Corporation contends that Ms Kimber failed to comply with the leave granted by the Registrar in the orders made on 1 June 2016 “to file an amended Interlocutory Application to seek review of all the orders made Registrar Tesoriero on 4 May 2016, such amended application to be filed and served by 15 June 2016”. Instead, save for the order sought relating to the order made by the Registrar awarding the Owners Corporation its costs, the Owners Corporation submits that the amended application raises a raft of issues disconnected from and unrelated to the orders made by the Registrar and properly the subject of an application for review under s 35A(5) and (6) of the Federal Court Act.

42    That said, it may be that on a generous reading, Ms Kimber intends, by seeking an order to “go behind the judgement” to challenge the Local Court judgment which forms the basis of the Bankruptcy Notice. This aligns with the oral submissions made by Ms Kimber. Accordingly, bearing in mind the caution which must be exercised on an application of this kind, it is appropriate to consider whether the proceeding might be saved by allowing leave to amend to include such a claim notwithstanding that this allegation is not apparent from the amended application itself: see e.g. Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at 130-131 [22] (quoted at [53] below).

43    Secondly, the Owners Corporation submits that there has been a failure to comply with the rules as to pleading in r 16.02(1) and (2) of the Federal Court Rules. Rule 16.02(1) provides that:

(1)     A pleading must:

(a)        be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b)       be as brief as the nature of the case permits; and

(c)        identify the issues that the party wants the Court to resolve; and

(d)        state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e)        state the provisions of any statute relied on; and

(f)        state the specific relief sought or claimed.

44    Conversely r 16.02(2) identifies what a pleading must not contain, providing that:

(2)  A pleading must not:

(a)      contain any scandalous material; or

(b)      contain any frivolous or vexatious material; or

(c)      be evasive or ambiguous; or

(d)      be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)      fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     otherwise be an abuse of the process of the Court.

45    The requirements of r 16.02(1) and (2) are not mere technicalities. They reflect the function of pleadings, namely, to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against it and incidentally to define the issues for decision: Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 (Mason CJ and Gaudron J). Thus, as the Owners Corporation submits, a failure to comply with the requirements in r 16.02 may found an application to strike out the pleading under r 16.21. That rule provides that:

A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

46    However, even if it is found that all of a pleading should be struck out under r 16.02, that does not necessarily mean that the proceedings should be permanently stayed or dismissed. An opportunity may well be afforded to replead. Thus an application under r 16.02 differs from an application under s 31A(2) of the Federal Court Act for summary dismissal.

47    Thirdly, the Owners Corporation places reliance upon r 16.59 which relevantly provides that that a party who has been given leave to amend a pleading must make the alterations on the pleading.

48    Finally and in the alternative, the Owners Corporation relies on s 31A(2) of the Federal Court Act which provides that:

(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.

49    This power applies to an application to review a decision of the Registrar, having regard to the definition of “proceeding” in s 4 of the Federal Court Act.

50    Related to this, r 26.01 of the Federal Court Rules provides relevantly:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; ….

51    The power summarily to dismiss proceedings must always be exercised with great care notwithstanding that the criterion in s 31A may be satisfied on grounds wider than those contained in previous iterations of the rules authorising summary dispositions, as s 31A(3) makes clear: Spencer at 131-132 [24] (French CJ and Gummow J).

52    I do not accept that s 31A applies only when a reasonable cause of action is disclosed. A written submission to that effect was correctly withdrawn by the Owners Corporation at the hearing. Rather, as Hayne, Crennan, Kiefel and Bell JJ explained in Spencer at 141 [59]:

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

53    Similarly, French CJ and Gummow J in Spencer explained at 130-131 [22] that:

The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

54    The principles relevant to a consideration of whether an application has no reasonable prospects of success for the purposes of s 31A were summarised recently in Eliezer v University of Sydney [2015] FCA 1045 as follows in a passage which was drawn to the parties attention at the hearing and with which no party took issue:

35.    First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

36.    Secondly, as the respondents submit, the intention behind the enactment of s 31A is “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…”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J); see also Cassimatis at 271 [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. …[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

37.    Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at 408-409 [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at 272 [50] (Reeves J).

38.    In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at 131 [24] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at 409 [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).

39.    Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at 271-272 [46] that:

…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

55    For the reasons set out below, I have reached the view that the proceedings must be summarily dismissed under s 31A of the Federal Court Act.

4.3    Should the amended application be summarily dismissed?

56    The allegations in the amended application fall into two categories:

(1)    the costs order made by the Registrar on 4 May 2016 which Ms Kimber expressly challenges by the amended application;

(2)    the remainder of the amended application which seeks orders unrelated to the challenge to the Bankruptcy Notice before the Registrar.

57    It is convenient to deal with these in turn and then to consider in any event whether any irregularity is apparent in the Bankruptcy Notice or a case which might be put to “go behind” the Local Court judgment as Ms Kimber intimated in her amended application.

4.3.1    The challenge to the costs order made by the Registrar on 4 May 2016

58    It is not possible with respect to discern any intelligible basis on which Ms Kimber seeks an order to annul the costs order and to substitute an order whereby the Owners Corporation is to meet her costs. Rather, as the Owners Corporation submits, the usual rule is that costs follow the event, that is, that the successful party is awarded her or his legal costs of prosecuting or defending the action, as the case may be: Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229. The order by the Registrar accords with the usual rule. While the Owners Corporation construed the amended application as seeking to set aside the costs order under r 1.31 of the Federal Court Rules, in my view Ms Kimber relied upon that rule instead to support her orders for joinder of other parties in order to counterclaim and cross claim or “start vital ‘restoration’ proceedings”. In any event, as the Owners Corporation submits, r 1.31 does not contain any power relevant to a consideration of whether the costs order should be set aside, but rather deals with the capacity of the Court in making orders to have regard to the nature and complexity of the proceeding. In those circumstances, no reasonable ground for interfering with the Registrar’s decision as to costs is exposed by the pleading and the amended application has no reasonable prospects of success to this extent as a discrete ground. If, however, the amended application raised, and had reasonable prospects of succeeding on, the substantive ground of overturning the Registrar’s decision not to set aside the Bankruptcy Notice, that would afford a basis for revisiting the costs order.

4.3.2    The remainder of the amended application

59    The remainder of the amended application makes a series of vague, scandalous and conclusory assertions in support of relief beyond the subject-matter of the Registrar’s decision and apparently on the assumption that other parties, including Grace Lawyers, the strata managing agent and the committee of management, will be joined to pursue those claims. Allegations are also made against court officers which are equally difficult to decipher. In this regard, as the Owners Corporation contends, the amended application is an abuse of process insofar as it seeks a raft of orders that this Court, on a review of the Registrar’s orders, lacks jurisdiction to hear or determine. As Ms Kimber makes plain on page 4 of the amended application:

This Interlocutory Application is not simply seeking to review one set of decisions made by one decision-maker on one day, the 4th May 2016 as the applicant orders that the words said and things done or not said and not done in the NSW District Registries of the Federal Court and the Federal Circuit Court between 5th – 20th April 2016 by other officers of the Commonwealth claiming unfair procedures have jeopardised her rights and rightful access to the law and natural justice.

60    Nor, as the Owners Corporation submits, are any material facts pleaded in support of the relief sought; nor do the pleadings otherwise disclose a reasonable cause of action.

61    An example may be found in the pleading relating to the estoppel sought on the creditors petition filed in the Federal Circuit Court, namely:

THE RELATED FEDERAL CIRCUIT COURT – ‘SET?’ FOR DIRECTIONS 19 JULY 2016

The applicant considers a substantial miscarriage of justice, escalated by Federal Court registry based errors has added further injustices. The court is ordered to bring “urgent relief” and “restorative” remedies to the applicant.

Reasons to Order an Estoppel En Pais” for SYG 931/2016

The applicant seeks an estoppel on the creditor's petition, UNDULY MALFORMED OUTSIDE THE CONFINES OF LAW AND PROCESS AND DOES NOT CONSENT TO AN OFFICER OF THE FEDERAL COURT APPLYING ON HER BEHALF TO THE SYG/931/2016 'HYBRID' CREDITOR'S PETITION IN THE FEDERAL CIRCUIT COURT (DIRECTIONS HEARING DATE 19 JULY 2016) Common law precludes someone denying an assumption and forming ‘a conventional basis of a legal relationship’ to be wrongfully adopted by the assertion of a 'strict legal right' to be based on it.

(emphasis and errors in the original.)

62    However, quite apart from the fact that this Court is not seized of the creditors petition which is filed in the Federal Circuit Court in separate proceedings, the pleading does not disclose any intelligible basis for finding that the Owners Corporation is estopped from pursuing the creditors petition. Nor do the written submissions filed by Ms Kimber which are, with respect, equally indecipherable and refer to a range of orders which are not even sought in the amended application. It does not suffice, for example, to assert that an estoppel arises on the creditor’s petition because it is said to be “unduly malformed outside the confines of law and process”. That does not disclose a reasonable cause of action. No material facts are pleaded, and the pleading is unintelligible, vague and conclusory.

63    I do not accept Ms Kimber’s submission that “[t]he solicitor and others’ who are well versed in the rules of form and style, should (as a rare event) be able to decipher and ‘unusual’ document in a form style received from a self represented person.” Furthermore while, as Ms Kimber submits, some greater allowance may be made for non-compliance with the rules in the case of an unrepresented party, nonetheless ultimately the Court has to be fair to both parties. As, for example, the Court of Appeal held in Hamod v New South Wales [2011] NSWCA 375 (Beazley JA (with whom Giles and Whealy JJA agreed)) at [309]-[310]:

Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

"A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'."

However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

(emphasis added)

64    This passage was approved recently by the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39] (the Court).

65    Thus, while particularly in cases involving an unrepresented party, the Court looks beyond compliance with particular rules of Court and seeks to address the substantive merit of the application before it, nonetheless the Court must, consistently with the principles in Hamod, ensure that the respondent is not prejudiced or disadvantaged, and guard against giving an impression of a lack of impartiality: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 (Arifin) at [30] (the Court). As their Honours continued in Arifin, “…greater hesitation and caution may be required before too readily departing from requirements imposed by the Federal Court Rules 2011. Those Rules, after all, are there for the benefit of all parties and the public interest in ensuring the proper administration of justice.” Furthermore, any “latitude” that might be afforded to an unrepresented litigant does not detract from the need ultimately to determine on an application such as the present whether the substantive application for review has any merit in the first place.

66    Ms Kimber also submitted that the Owners Corporation “…basically argues about form and style (rules)”. However as the passages set out above make clear, the failure to comply with the rules may substantially prejudice a respondent and cause significant hardship in terms of being given fair notice of an applicant’s case and a fair opportunity to respond. As earlier explained, these are not mere technicalities. Nor in any event are the objections made by the Owners Corporation limited to such matters; it also rightly objects on substantive grounds.

67    While acknowledging that “[t]he (solicitor’s) allegations of ambiguity may have some truth”, Ms Kimber also seeks to rely upon the fact that she was unable to afford legal representation and the alleged impact upon her personally as a result of her legal problems. In this regard, it may be accepted from a human perspective that bankruptcy proceedings may place litigants under considerable stress, particularly when they lack legal representation. However, as the Owners Corporation submitted, personal hardships do not override the obligation for the Court to accord fairness to both parties and the need for relief to be sought based on a comprehensible and reasonable cause of action with some prospect of success.

4.3.3    Is there any defect or irregularity apparent in, or is there other evidence of a basis for setting aside, the bankruptcy notice?

68    Ms Kimber has not pleaded any discernible ground on which the Bankruptcy Notice should have been set aside and therefore for setting aside the Registrar’s decision to dismiss her application. I agree with the Owners Corporation’s submission that, based upon the evidence before the Registrar and this Court, there is no defect or irregularity apparent in the Bankruptcy Notice. The power of the Official Receiver to issue the bankruptcy notice was enlivened under s 41(1)(a) of the Bankruptcy Act as the Owners Corporation had obtained against Ms Kimber a final judgment of the kind described in s 40(1)(g) of the Bankruptcy Act which had not been set aside and was for an amount in excess of $5000. On its face the Bankruptcy Notice is based upon that judgment, a copy of which is attached to the notice. The Bankruptcy Notice was also in accordance with the form prescribed by the Bankruptcy Regulations 1996 (Cth) being reg 4.02, and therefore s 41(2) of the Bankruptcy Act was met. It accurately specifies the creditor as “The Owners – Strata Plan No 48216”. The interest schedule as quoted above identified precisely the interest sought on the judgment and the provision pursuant to which post-judgment interest was claimed. No claim has been made by Ms Kimber that the interest was overstated; nor is any overstatement apparent. The undisputed evidence establishes that the Bankruptcy Notice was served personally on Ms Kimber on 17 March 2016. As such, no irregularity or non-compliance with requirements for the issue and service of a bankruptcy notice is apparent; nor is any sought to be raised by Ms Kimber.

69    Furthermore, while the Court has power to set aside a bankruptcy notice by “going behind” the judgment where reason is shown for questioning whether there was in truth a debt due, the judgment here was not a default judgment, the earlier Default Judgment having been set aside. Rather it is a judgment delivered after a contested hearing. Furthermore, as earlier explained, the Local Court refused leave to file a statement of cross-claim against the strata managing agent and Grace Lawyers on the ground that there was no evidence to support her allegations against them. A bare assertion in Ms Kimber’s submissions and in her affidavit filed 30 May 2016 of dishonest conduct does not take the matter any further. Despite the seriousness of those assertions, as I have earlier held Ms Kimber has pleaded no material facts and given no particulars so as to identify the basis on which they are made. Her assertions are vague and conclusory. Nor has Ms Kimber led any evidence lending any credence to them. There was no evidence before the Registrar, nor is there any evidence before this Court, to warrant the making of such assertions. Thus while Ms Kimber submitted that “[t]here is an overwhelming amount of material evidence to support every claim”, no such evidence has been put before the Registrar or this Court despite Ms Kimber having filed an affidavit filed 30 May 2016 to which approximately 400 pages were annexed allegedly in support of her case that the Owners Corporation obtained an “ill-gained judgement order”.

70    In those circumstances, no basis has either been identified in the pleadings or demonstrated by any evidence for the bald allegations made of serious misconduct against the Owners Corporation and others, and the allegations should not have been made. It is no answer to this to say that the deficiency in Ms Kimber’s evidence might be addressed by the issue of subpoenas or other compulsive processes of the Court, by material which is plainly irrelevant to any ground on which the Local Court judgment might be challenged such as the alleged provision of invoices for legal costs, or by generalised submissions about overwhelming evidence and unidentified material.

71    In all of the circumstances, I consider that the amended application has no reasonable prospects of success for the purposes of s 31A of the Federal Court Act.

4.4    Are the deficiencies in the amended application incurable?

72    Notwithstanding the seriousness of an order for summary dismissal, I do not consider that this is a case where the deficiencies in the amended application might be cured by a possible amendment. Ms Kimber has already been given an opportunity to replead her case and has pleaded an unintelligible, groundless and embarrassing case. The pleadings include scandalous, conclusory allegations, with no attempt to plead any material facts upon which the allegations are made and which raise no reasonable cause of action. Nor has any evidence been put forward which suggests that any ground exists on the basis of which the Bankruptcy Notice should be set aside. Furthermore, the amended application manifestly did not comply with the leave granted by the Registrar to amend her application to seek review of all of the orders made by the Registrar.

73    It follows that in the exercise of discretion, the proceeding should be summarily dismissed under s 31A of the Federal Court Act.

5.    CONCLUSION

74    For the reasons set out above, the proceedings should be summarily dismissed with costs.

Associate:

Dated:    8 September 2016