FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan 48216 (No 2) [2017] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    Time is extended to 9 June 2017 to file the Notice of Appeal dated 26 April 2017, amended to delete the first five lines on page three.

2.    The Notice of Appeal dated 26 April 2017 with the excisions set out in Order 1 shall be taken to be filed on 9 June 2017 and shall stand as the Notice of Appeal in the appeal.

3.    The application to review the decision of Deputy District Registrar Cho made on 7 June 2017 is dismissed.

4.    Each party is to bear its own costs in relation to the extension of time application.

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

REASONS FOR JUDGMENT

GLEESON J:

Extension of time to appeal

1    On 9 June 2017, I extended the time for filing of the notice of appeal dated 26 April 2016, on terms that some words in the notice of appeal be excised. The excision was required to remove words that sought relief beyond the scope of the grant of leave to appeal in Kimber v The Owners Strata Plan No. 48216 [2017] FCA 364.

2    At the hearing on the application, the respondent opposed the grant of an extension of time on two bases. The first was that the grant of an extension of time would prejudice the respondent’s interests in having a creditor’s petition against Ms Kimber heard before April 2018, when the petition will expire. Second, the respondent submitted that the proposed appeal had no prospects of success.

3    I considered that the possibility of the creditor’s petition expiring before the conclusion of the appeal was remote and did not constitute a significant prejudice to the respondent. I did not consider that I should reconsider the prospects of the appeal where there has been a recent grant of leave to appeal. The delay in attempting to file the notice of appeal was minimal. In those circumstances, I was satisfied that time to file the notice of appeal should be extended.

4    I ordered that each party bear its own costs of the application to extend time because the application was opposed by the respondent despite the very short delay involved and where the appellant is self-represented and evidently experiences difficulty in understanding and complying with the Court’s processes. The respondent’s solicitor complained that she did not receive a copy of the notice of appeal from the appellant or from the Court, despite requests to the Sydney registry. Why the solicitor was unsuccessful in obtaining a notice of appeal from the registry was not explained. Nor was it explained why the solicitor did not seek to obtain a copy of the notice of appeal from my associate. In any event, I was not satisfied that the respondent took sufficient steps to avoid the necessity of a hearing on the extension of time application.

Review of Deputy District Registrar Cho’s decision

5    On 7 June 2017, Deputy District Registrar Cho (“Registrar”) refused to accept for filing an interlocutory application dated 6 June 2017 signed by the appellant (“Ms Kimber”) attaching documents titled “application for leave to commence new proceedings” and “table of pleadings” together with an affidavit affirmed by Ms Kimber on 6 June 2017.

6    Rule 2.26 of the Federal Court Rules 2011 provides:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

7    Under the heading “Interlocutory orders sought”, the interlocutory application states:

1.    Orders sought in this application are to assist the expedient resolution of a case by directly addressing the real controversy behind a long standing strata legal dispute.

2.    Orders to stay the execution of the appeal as it stands, conditional on a full court of three judges examining the substantive subject matter raised in prior courtrooms and inside this application seeking a complete resolution.

3.    Orders that an oral argument on the application be heard on the same day as the matter of the Notice Of Appeal ‘extension of time’ is addressed

4.    Orders for the application to not be judged on form and style but to be read without prejudice for the content inside the pleadings and particulars drafted by the applicant this point intending the final submission to be prepared and presented by a barrister.

5.    Orders to summons documents and witnesses to augment court proceedings and to establish a quicker cheaper effective timetable to end this dispute and all proceedings.

8    The 6 June 2017 affidavit states relevantly, that Ms Kimber seeks “urgently to resolve this dispute and real controversy behind a case taking over my life” and, in particular:

4.    Winning the limited appeal on the law and facts, offers a limited result but will not resolve the ‘core matter’ behind the two bankruptcy actions that have caused damage and loss and currently continuing to cause harm to my life and the strata scheme at large.

9    The Registrar formed the view that the interlocutory application and the affidavit were “an abuse of the process of the Court and/or frivolous, and as such, should not be accepted for filing”. The Registrar gave the following reasons:

You now seek to file the Interlocutory Application (IA) seeking orders, in effect, for Justice Farrell’s Orders granting leave to appeal (on the limited ground mentioned above) to be revisited by a Full Court (see paragraphs 1, 2 and 4 of the IA), and ancillary to that, for orders be made to ‘stay the execution of the appeal as it stands’ (see paragraph 2 of the IA) and further evidence on appeal (see paragraph 5 of the IA). You seek that these matters be determined by Justice Gleeson at the next court date by way of ‘an oral argument on the application’ (see paragraph 3 of the IA). From reading the “Application for leave to commence new proceedings” and the “Table of Pleadings” attached to the IA, it also appears that, in addition to the foregoing observations, you also dispute the various Deputy District Registrars’ decisions to refuse to file earlier documents presented to the Registry.

In my view, it is an abuse of process to seek a review of Justice Farrell’s Orders in the manner you propose where there is no appeal from a grant or refusal of leave to appeal (see Section 24 of the Federal Court of Australia Act 1976) and separately, where there are no grounds to establish that such an Order was entered in error or otherwise obtained by fraud (see r 39.05 of the Rules). Further, I consider that such application(s) however it is framed, is not only an abuse of process, but is foredoomed to fail.

Insofar as the part of the application seeking stay is concerned, there is no appeal on foot (i.e. there being no Notice of Appeal filed), at least at this stage of the proceedings. Similarly, an application for an order for further evidence on appeal cannot be sustained where there is no appeal on foot. As such, in my view, these parts of your application are also an abuse of process and foredoomed to fail.

Finally, in relation to your dissatisfaction with the decision of the various Deputy District Registrars’, I refer you to the earlier letter of the Deputy Principal Registrar dated 23 May 2017. As set out in that correspondence, the proper course would be for you to seek judicial review if you saw fit.

10    The orders made by Farrell J on 7 April 2017 were:

1.    The application for leave to appeal is granted but limited in substance to the ground of whether the primary judge erred in failing to consider whether the applicant had a reasonable prospect of success in her claim that bankruptcy notice BN 188465 was invalid having regard to s 41(5) of the Bankruptcy Act 1966 (Cth).

2.     The application is otherwise dismissed.

3.     The applicant file and serve a notice of appeal limited to the ground referred to in order 1 by 26 April 2017.

4.     Costs of the application for leave to appeal be costs in the appeal.

11    Although Ms Kimber did not file a written application for review of the Registrar’s decision, I heard her application for a review of that decision after granting the extension of time for filing the notice of appeal.

12    Ms Kimber’s oral argument was that the interlocutory application seeks to have the Court address what she says is the real controversy behind the proceeding, namely, a longstanding dispute between Ms Kimber and the respondent regarding the correctness of claims relating to unpaid strata levies pursued against her, as well as the validity and/or correctness of subsequent judgments, costs orders, a bankruptcy notice and a creditor’s petition.

13    Ms Kimber submitted that the respondent, or certain members of the strata committee of the respondent, has procured and/or issued documents including the bankruptcy notice and the creditor’s petition on the basis of various incorrect facts, without following due process and without notifying her of important matters and steps in the legal processes involved. Ms Kimber made a number of serious allegations against the respondent and the members of its strata committee, including allegations of fraud. She sought a fresh hearing in order to have these matters heard anew and to bring evidence in relation to the factual controversies involved.

14    In a letter dated 7 June 2007 from Ms Kimber and addressed to me, Ms Kimber submitted that it was “prejudicial to reject the document, relying on r 2.26 when the registrar may easily alternatively chosen the overriding statute Federal Court Of Australia Act 1976 Section 37P”. Ms Kimber objected to the overuse of r 2.26 and stated that the “subject matter of misleading and deceptive conduct was always claimed against agents and officers of a corporate strata scheme and in the court of Registrar Tesoriero on 4 May 2016”. Ms Kimber also stated:

Registrar Cho has no evidence before him to make the claim that “there are no grounds” to the facts disclosed in the pleadings and particulars, written in English laid out in a legible, formally structured document. Referred to as “foregoing observations” was a partial acknowledgement of the facts but then overshadowed by a registrar’s apparent need to defend fellow registrars and prvious [sic] actions diverting his focus from a matters of fact and principle and of civil rights.

15    I dismissed the application because, as Ms Kimber’s argument made plain, her purpose in seeking to file the proposed interlocutory application was to claim relief inconsistent with the limited grant of leave to appeal. Ms Kimber’s argument identified no basis for a review of the Registrar’s decision.

16    I concluded that the relief sought in the interlocutory application was designed to raise issues that were not permitted to be raised in conformity with the limited grant of leave to appeal. The application is an abuse of process because it is foredoomed to fail: the Court’s appellate jurisdiction does not extend to the making of the orders set out in the interlocutory application, or orders of that kind. Further, as the Registrar observed, to the extent that the relief sought in the interlocutory application can be interpreted as an attempt to appeal from Farrell J’s decision granting leave to appeal, the Federal Court’s appellate jurisdiction, conferred by s 24 of the Federal Court of Australia Act 1976 (Cth), does not include jurisdiction to hear an appeal from that decision.

Associate:

Dated:    4 July 2017