FEDERAL COURT OF AUSTRALIA

Mulhern v Morgan [2017] FCA 1183

ORDERS

THE COURT ORDERS THAT:

1.    The order made on 22 September 2017 summarily dismissing these proceedings be varied pursuant to rule 39.05(c) and (h) of the Federal Court Rules 2011 (Cth), to read:

The originating application dated 23 August 2017 be summarily dismissed on the Court’s own initiative pursuant to rules 1.40 and 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

BROMWICH J:

1    On 22 September 2017, I summarily dismissed the originating application, dated 23 August 2017, by which these proceedings were commenced. I did so at the first case management hearing for the proceedings. These are my reasons for making that summary dismissal order, and for subsequently varying that order to correctly reflect the basis upon which it was made.

2    The named applicant in these proceedings is Mr Ronan Joseph Mulhern. Mr Ronan Mulhern is the adult son of Mr Michael Richard Mulhern (who presented himself in these proceedings as Richard Mulhern) and Mrs Jacqueline Patricia Mulhern. Mr Richard Mulhern and Mrs Jacqueline Mulhern were the second and eleventh plaintiffs respectively in proceedings NSD887 of 2014 brought against the Bank of Queensland Limited. Those proceedings were heard before Gleeson J, resulting in three judgments being delivered: Mulhern v Bank of Queensland [2015] FCA 44, delivered on 5 February 2015; Mulhern v Bank of Queensland (No 2) [2015] FCA 579, delivered on 12 June 2015; and Mulhern v Bank of Queensland Limited (No 3) [2015] FCA 927, delivered on 25 August 2015. Importantly, Mr Ronan Mulhern was never a party to any of those proceedings.

3    For completeness, it should be noted that parallel to, and since, the hearing of proceedings NSD887 of 2014 brought before Gleeson J, there have been at least two separate proceedings brought by Mr Richard Mulhern and Mrs Jacqueline Mulhern against the Official Receiver in Bankruptcy, who features in these proceedings as noted below. The first of those proceedings was dismissed by Rangiah J in Mulhern v Official Receiver [2015] FCA 807 on 10 August 2015. The circumstances behind the bankruptcy of Mr Richard Mulhern and Mrs Jacqueline Mulhern, being one of the issues sought to be agitated in these proceedings, is outlined in that judgment. The second of those proceedings was heard by Collier J in Michael Richard Mulhern (Australian Made Bankrupt) v Official Receiver (QUD235 of 2016), and was dismissed by way of final orders made on 16 June 2016.

4    In Mulhern v Bank of Queensland Limited (No 3), Gleeson J ordered, on 25 August 2015, that each of the plaintiffs, and therefore specifically Mr Richard Mulhern and Mrs Jacqueline Mulhern, must not institute proceedings against the Bank of Queensland in this Court without leave of the Court.

5    In an apparent attempt to circumvent Gleeson J’s order of 25 June 2015, on 21 August 2017, Mr Ronan Mulhern lodged for filing an interlocutory application dated 21 August 2017 in proceedings NSD887 of 2014, naming the Bank of Queensland Limited as the first respondent, but also naming the Official Receiver in Bankruptcy and Joseph Michael Dodrill as second and third respondents respectively (the first interlocutory application). It is not presently necessary to consider whether it was valid to add the second and third respondents in that way. The first interlocutory application sought the following relief:

[emphasis in original]

1.    The Application be urgently heard by her Honour Justice Gleeson or his Honour Justice Flick or another available Australian Federal Court Justice on an ex-parte basis.

2.    The Sequestration Orders made against Michael Richard Mulhern and Jacqueline Patricia Mulhern be vacated in circumstances where at all materials [sic] times USA Permanent Residents Mr & Mrs Mulhern were living in the United States of America and were not carrying on business in Australia. Accordingly, by law, the jurisdiction of s 43(1)(B) of the Act to make the Sequestration Orders was not enlivened and the Sequestration Orders ought not to have been made or unlawfully maintained.

3.    A declaration that the Respondents knew of the illegality of the Sequestration Orders against the known USA Permanent Resident Michael Richard Mulhern obtained on the 3rd of February 2010 and against known USA Permanent Resident Jacqueline Patricia Mulhern obtained on the 30th of August 2012.

4.    A declaration that the Sequestration Order made by Registrar Belcher on the 3rd of February 2010 against Michael Richard Mulhern was an abuse of process.

5.    A declaration that the Sequestration Order made by Registrar Baldwin on the 30th of August 2012 against Jacqueline Patricia Mulhern was an abuse of process.

6.    The Respondents pay the Applicant costs on an indemnity basis.

6    The question of whether to accept the first interlocutory application lodged by Mr Ronan Mulhern for filing was apparently referred to Deputy Registrar Thomas Morgan (Registrar Morgan). Registrar Morgan wrote to Mr Ronan Mulhern on the same day, 21 August 2017, advising him that the interlocutory application had not been accepted for filing. That letter, inter alia, referred to r 2.26 of the Federal Court Rules 2011 (Cth), and advised that the reason the first interlocutory application and an accompanying bundle of documents had been refused to be accepted for filing was because Mr Ronan Mulhern was not, and had not been, a party to proceedings NSD887 of 2014. The letter indicated that for this reason, Mr Ronan Mulhern had no standing to make an interlocutory application or file the documents sought to be filed in those proceedings. A further reference was made in Registrar Morgan’s letter to how the first interlocutory application had been signed, which does not require further consideration.

7    On 24 August 2017, Mr Ronan Mulhern’s originating application dated 23 August 2017 was lodged for filing, accepted for filing and ultimately referred to my docket. An affidavit sworn by Mr Ronan Mulhern on 23 August 2017 in support of that originating application was lodged for filing at the same time and was also later accepted for filing. That affidavit annexed, inter alia, the first interlocutory application that had been rejected, Registrar Morgan’s letter giving reasons for that decision and various other documents which it is not necessary to detail.

8    On 31 August 2017, an affidavit by Mr Richard Mulhern was lodged and later accepted for filing. That affidavit essentially detailed a range of grievances, including in prior proceedings in this Court, apparently associated with his bankruptcy and the bankruptcy of his wife. It also annexed a copy of another interlocutory application in the name of Mr Ronan Mulhern, this time dated 31 August 2017 (the second interlocutory application). The second interlocutory application bore the matter number for these proceedings, but sought much the same relief as the first interlocutory application sought to be filed in proceedings NSD887 of 2014.

9    On 19 September 2017, Registrar Morgan filed the usual submitting appearance, save as to costs. Contrary to some comments made by Mr Richard Mulhern at the first case management hearing on 22 September 2017, that did not involve any concession of error on the part of Registrar Morgan, nor any suggestion that he did not have standing in proceedings brought against him in his official capacity. The submitting appearance reflected instead the conventional approach of an administrative decision-maker, at least in a public or official capacity, of not being an active contradictor in defence of a decision made. Such a decision-maker respondent agrees to abide by the decision made by the Court, usually except as to costs.

10    When the matter came before me for a first case management hearing, Mr Ronan Mulhern was at the bar table. His father, Mr Richard Mulhern, attempted to join him, but at that stage I directed him to sit in the public gallery. I then confirmed with Mr Ronan Mulhern that he had never been a party to proceedings NSD887 of 2014. I advised him that my view was that, beyond doubt, Registrar Morgan was correct to refuse to accept for filing his interlocutory application in proceedings NSD887 of 2014 upon the basis that he, Mr Ronan Mulhern, had no standing in those proceedings and therefore had no right to file the interlocutory application. I advised him that I was therefore going to dismiss his originating application for judicial review of Registrar Morgan’s decision because that application could not succeed. He said that he understood what I told him. I then dismissed Mr Ronan Mulhern’s originating application.

11    At the time, I summarily dismissed Mr Ronan Mulhern’s originating application upon the basis that there was no reasonable prospect of successfully prosecuting the proceeding, I made reference to s 31A of the Federal Court of Australia Act 1976 (Cth) as the source of the power to do so. However, upon reflection, the correct legal basis for that order was and should have been stated to be the parallel provision in r 26.01(1)(a) of the Federal Court Rules, which uses the same language as s 31A(2)(a), namely “no reasonable prospect of successfully prosecuting the proceeding”. Rule 1.40 permits such a dismissal on the Court’s own initiative and, unlike s 31A(2), does not require the proceedings to be defended before summary dismissal can take place. Accordingly, relying on r 39.05(c) and/or r 39.05(h) of the Federal Court Rules, which permit, inter alia, variation of interlocutory orders, or variation of orders where there is an error arising from an accidental slip or omission, the stated power for the summary dismissal that I ordered on 22 September 2017 was varied by me on 29 September 2017 to refer to r 1.40 and r 26.01(1)(a) of the Federal Court Rules as the powers that were being exercised.

12    The issue of lack of standing was a straightforward basis for summary dismissal because it meant that there was no reasonable prospect of successfully prosecuting the proceeding, as Mr Ronan Mulhern was not entitled to any of the relief he was seeking. Accordingly, there was no need to consider ordering any other basis for summary dismissal. It would, however, have been open to me to dismiss Mr Ronan Mulhern’s originating application by reason of it being frivolous or vexatious, disclosing no reasonable cause of action, and/or being an abuse of the process of the Court: see r 16.21(1)(b), (c) and (d) of the Federal Court Rules.

Post-script – events after summary dismissal

13    By way of a post-script, two events occurred after I dismissed Mr Ronan Mulhern’s interlocutory application on 22 September 2017.

14    The first event occurred immediately after summary dismissal had been ordered. Mr Richard Mulhern approached the Bar table and sought to address the Court. I allowed him to speak for a time. He intimated that some other application should have been before me, and handed up what was the original of his 31 August 2017 affidavit electronically filed in these proceedings, which I had already considered. He appeared to be of the impression that the mere fact of annexing a document to an affidavit that had been accepted for filing, being the second interlocutory application bearing the matter number of these proceedings, meant that the second interlocutory application had thereby also been accepted for filing, or was otherwise before the Court for determination. He seemed to have difficulty in accepting that, contrary to his belief, this was not so, and that there was nothing before me to hear and determine once the originating application in the name of Mr Ronan Mulhern had been dismissed.

15    I advised Mr Richard Mulhern in Court on 22 September 2017, after dismissing the originating application, that:

(1)    he could not bring an interlocutory application by way of his son filing a judicial review application in relation to the decision to refuse to accept another interlocutory application for filing; and,

(2)    if he wished to bring a proceeding against the Bank of Queensland, the way to do that was to seek leave of the Court, not to try and get around that requirement by having his son bring an application in his place.

16    The second event after summary dismissal took place on 27 September 2017, when the Court’s registry forwarded to my chambers another copy of the second interlocutory application in the name of Mr Ronan Mulhern, which Mr Richard Mulhern and Mr Ronan Mulhern together sought to lodge for filing in its own right, rather than as an annexure to an affidavit. That document was forwarded for consideration as to whether it should be accepted for filing. My associate advised the registry that the document could not be accepted for filing because these proceedings had concluded on 22 September 2017 upon the order being made for summary dismissal of Mr Ronan Mulhern’s originating application.

17    Even if the order for summary dismissal had not been made, the second interlocutory application would have been refused to be accepted for filing because it was not in any way ancillary to the judicial review relief being sought in the originating application, but rather sought to advance independent causes of action (apparently being, in substance, the causes of action sought to be advanced in the first interlocutory application, which also did not appear to be interlocutory in nature).

18    Thus the second event was a third attempt, in form by Mr Ronan Mulhern but in substance by Mr Richard Mulhern, to circumvent the orders made by Gleeson J in Mulhern v Bank of Queensland Limited (No 3) on 25 June 2015, that Mr Richard Mulhern, as one of the plaintiffs in those proceedings, not institute proceedings against the Bank of Queensland in this Court without the leave of the Court.

Associate:

Dated:    4 October 2017