Ferdinands v Registrar Cridland

(a) QUD 8 of 2025, naming Ms Storry as applicant and Jonathan David Weir as "first respondent"; and

(b) QUD 18 of 2025, naming Ms Storry as applicant and David Clout named as, what I assume to be, the respondent.

1. It is for the reasons which follow that leave to institute proceedings in file nos. QUD 8 of 2025 and QUD 18 of 2025 should be refused without listing the application for hearing.

37AR Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

(1) The Court or a Judge may make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the affidavit does not substantially comply with subsection 37AR(3).

(2) The Court or a Judge must make an order dismissing an application under section 37AR for leave to institute a proceeding if the Court or Judge considers the proceeding is a vexatious proceeding.

(3) The Court or a Judge may dismiss the application without an oral hearing (either with or without the consent of the applicant).

1. In accordance with s 37AS(3), I have considered this matter without an oral hearing.

1. This is an application by Ms Storry to stay proceedings associated with a sequestration order made pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth).
2. The application seeks three orders:

(a) Leave of the Court to file a stay application pursuant to s 52(3) of the Bankruptcy Act;

(b) Leave to set aside the decisions of Thomas, Collier and Logan JJ and his Honour Judge Egan of the Federal Circuit and Family Court of Australia (FCFCoA) pursuant to r 39.05 of the Federal Court Rules 2011 (Cth); and

(c) Leave to set aside the decision of Lee, Feutrill and Jackman JJ pursuant to FCR 39.05(c) on the ground that the orders made in the Vexatious Proceedings Order decision are interlocutory in nature.

1. After identification of the three orders sought, there then follows a series of matters which are simply incomprehensible.
2. In accordance with s 37AR of the FCA Act, Ms Storry filed with her application for leave to institute proceedings an affidavit sworn 20 December 2024 and an affidavit sworn 29 October 2024.
3. Ms Storry's affidavit sworn 20 December 2024 reveals a number of proceedings which have been instituted in various courts, including this Court, and explains the background to the various applications she has made. Contrary to s 37AR(3)(c) however, the affidavit does not appear to disclose any facts about the application for leave to institute proceedings.
4. Ms Storry's affidavit sworn 29 October 2024 deposes as to a series of events but does not appear to be directed in any way to the requirements of s 37AR(3).
5. Ms Storry filed a further affidavit, sworn 25 February 2025, this time naming Judicial Registrar Parkyn as first respondent and SFL Lawyers, I assume, as second respondent. That affidavit refers to proceedings QUD 103 of 2022, QUD 479 of 2023 and QUD 422 of 2024. Those proceedings involved decisions by Thomas J delivered 7 July 2022 and 15 November 2022 respectively (QUD 103 of 2022), a decision of Rangiah J delivered 7 November 2024 (QUD 479 of 2023), and the proceedings the subject of the Full Court's decision in the Vexatious Proceedings Order.
6. Pursuant to s 37AS(1), a judge of this Court may dismiss an application for leave under s 37AR if the judge considers the affidavit filed with the application does not substantially comply with s 37AR(3). I do not consider Ms Storry's affidavits comply substantially with the requirements of s 37AR(3) for the reasons I have described.
7. Pursuant to s 37AS(2), a judge must make an order dismissing an application under s 37AR for leave to institute a proceeding if the judge considers the proceeding is vexatious.
8. In Ferdinands v Registrar Cridland [2021] FCA 592 at [27]- [31], White J considered the meaning of, amongst other things, vexatious. His Honour noted that the Dictionary, which is contained in Schedule 1 to the Federal Court Rules (2011), contained a definition of 'vexatious proceeding' by reason of a cross-reference to s 37AM of the FCA Act.
9. Section 37AM(1) provides:

(a) a proceeding that is an abuse of the process of a court or tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

1. After referring to s 37AM, his Honour continued at [28]-[30]:
   1. As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.
   2. In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of "vexatious" and appearing in r 26.01(1) of the FCR. His Honour said:

[38] In relation to the term 'vexatious':

(a) a 'vexatious' proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. 'Vexatious' might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging ...;

(b) proceedings may also be described as 'vexatious' where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy ...;

(c) a proceeding is to be regarded as 'vexatious' where:

(i) it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii) it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii) irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless ...; and

(d) 'vexatiousness' is a quality of the proceeding rather than a litigant's intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious ...

(Citations omitted)

1. As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. ...

1. His Honour's consideration of the meaning of vexatious was approved by the Full Court in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8] (Charlesworth, Burley and Cheeseman JJ).
2. Adopting the meaning of 'vexatious' set out above, the application, together with the documents supporting it, are demonstrably vexatious in that the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless.
3. The fact that I consider Ms Storry's affidavits do not comply substantially with the requirements of s 37AR(3) is sufficient basis for me to make an order dismissing the application for leave to initiate a proceeding. Further, given I consider the proposed proceedings to be vexatious, s 37AS(2) obliges me to make an order refusing the application for leave to institute proceedings in file no. QUD 8 of 2025.
4. There will be orders accordingly.

1. Ms Storry applies for leave to institute proceedings in relation to a decision of Rangiah J delivered 7 November 2024, Storry v Clout [2024] FCA 1274, in which his Honour:

(a) Dismissed summarily Ms Storry's originating application filed 26 October 2023 in relation to the replacement of Ms Storry's trustee in bankruptcy (Mr Clout) pursuant to s 90 - 15 of Sch 2 of the Bankruptcy Act;

(b) Dismissed Ms Storry's interlocutory application filed 15 February 2024 for an injunction and the preservation of property; and

(c) Dismissed Ms Storry's oral interlocutory application for discovery.

(a) Leave of the Court to file a stay application pursuant to s 52(3) of the Bankruptcy Act; and

(b) Set aside on appeal Rangiah J's decision to dismiss Ms Storry's originating application.

1. The primary ground in the application is that when considering the respondent's application for summary dismissal, his Honour considered s 116(2) of the Bankruptcy Act and not s 116(2)(a) of that Act.
2. A second ground is that his Honour failed to apply what is described as a "breach of s 60(4) of the Bankruptcy Act".
3. After identification of the two grounds, there then follows a series of matters which comprise assertions as to errors made by his Honour, a number of which contain irrelevant matters.
4. In purported compliance with s 37AR of the FCA Act, Ms Storry filed with her application for leave to institute proceedings, an affidavit sworn 20 December 2024, which is the same affidavit filed in file no. QUD 8 of 2025 naming Jonathan David Weir as the respondent.
5. Putting aside the obvious difficulty with the name of the respondent, it suffers from the same problem identified above, namely that it does not comply substantially with the requirements of s 37AR(3).
6. Ms Storry has also filed the same affidavit, sworn 29 October 2024, as she filed in file no. QUD 8 of 2025. It suffers from the same problems I have identified above.
7. In summarily dismissing Ms Storry's proceedings, his Honour considered there was no arguable basis for the Court to intervene in the trustee's administration of Ms Storry's bankrupt estate by making an order under s 90 - 15 of Sch 2 of the Bankruptcy Act.
8. Ms Storry's primary ground that his Honour considered s 116(2) of the Bankruptcy Act and not s 116(2)(a) is completely without merit. So too is Ms Storry's complaint in relation to s 60(4) of the Bankruptcy Act.
9. The affidavits filed in support of the application for leave to initiate proceedings do not comply with the requirements of s 37AR(3). Further, the application, together with the documents supporting it, are demonstrably vexatious in that the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless.
10. Having formed that view, s 37AS(2) obliges me to make an order refusing the application for leave to institute proceedings in file no. QUD 18 of 2025.
11. Since Ms Storry's proceedings were dismissed, it follows that Ms Storry's interlocutory applications also failed. In view of the orders refusing the application for leave to institute proceedings in this matter, the need to consider Ms Storry's interlocutory applications no longer arises.
12. There will be orders accordingly.

1. On the day prior to publishing these reasons, Ms Storry sent an email to the Registry in which she requested to file, "an amended form 2 as a QCAT Member has made a recent decision dismissing an application of the Office of Fair Trading and other applications have been filed. The current form 2 is not the updated version".
2. Ms Storry did not identify which application was to be the subject of the amendment.
3. In the circumstances, I delivered these reasons.
4. Whether Ms Storry wishes to pursue this latest matter, is a matter for her noting that a further application for leave to institute proceedings will be required.

1. It is for these reasons that leave to institute proceedings in file nos. QUD 8 of 2025 and QUD 18 of 2025 is refused.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.