Jeray v Blue Mountains City Council

REASONS FOR JUDGMENT 1 This is an application for leave to appeal which was filed on 30 May 2013. The application is for leave to appeal from orders made by the Federal Circuit Court of Australia on 16 May 2013 in the matter of Jeray v Blue Mountains City Council [2013] FCCA 297. The Federal Circuit Court on 16 May 2013 made the following orders: (1) The application in a case filed on 1 May 2013 is dismissed. (2) The applicant pay the respondent's costs and disbursements of and incidental to the application in a case filed on 1 May 2013. 2 In the reasons for judgment published on the same day, the Federal Circuit Court at [1] outlined the orders sought by the applicant before it. Amongst other things, the application sought that orders made by Registrar Wall on 13 November 2012 be set aside, that bankruptcy notice BN 5792 be set aside and that a declaration be made that the respondent and its legal representatives have abused the legal system by applying for BN5792 that was intentionally based on an invalid judgment, which was then issued and served on the applicant. 3 The balance of the reasons for judgment explains the somewhat unusual circumstances in which this application was made to the Federal Circuit Court. In short, the respondent, the Blue Mountains City Council (the Council), had taken out a bankruptcy notice, BN 5792 of 2012, which is referred to in the reasons for judgment as the first bankruptcy notice (and I adopt the term here). However, by consent on 13 November 2012, Registrar Wall made the following orders: (1) The bankruptcy notice BN5792 issued on 14 September 2012 be set aside. (2) The respondent pay the applicant's costs of the application. 4 The Council, according to evidence which was relied upon in respect of the application to set aside the bankruptcy notice, had concluded that the bankruptcy notice was invalid because it had been issued on the basis of reliance on a judgment of the Local Court of NSW in circumstances where this was unnecessary, as described in [7] of the reasons for judgment. However, after the first bankruptcy notice was set aside, the Council sought to have another bankruptcy notice issued, with this notice relying directly upon the orders of the High Court and a related Certificate of Taxation as explained in [8] of the reasons for judgment. This fresh bankruptcy notice was issued on 20 November 2012 and was subsequently served. In the reasons for judgment, this is referred to as the second bankruptcy notice (I will also refer to it as such). 5 As explained at [9] of the reasons for judgment Mr Jeray, the applicant, lodged an application seeking, amongst other things, an extension of the time for compliance with the second bankruptcy notice and the setting aside of the second bankruptcy notice. Registrar Wall heard and dismissed Mr Jeray's application in respect of the second bankruptcy notice on 27 February 2013. Mr Jeray then sought review of that decision by a judge of the Federal Court and the matter came before Edmonds J who heard and dismissed the application for review on 12 April 2013. In the reasons for judgment of the Federal Circuit Court it is explained at [25] that the application - to set aside the decision and orders of Registrar Wall of 13 November 2012 to set aside the first bankruptcy notice and for the declaration as set out in proposed order 5 of the application - was an application to reopen proceedings that were finalised by consent on 13 November 2012: see [25]. 6 At [27] of the reasons for judgment reference is made to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) which sets out the circumstances in which a court may vary or set aside a judgment or order, both before and after it has been entered. As set out at [28], the orders which Registrar Wall made on 13 November 2012 had been entered on the same day, and, accordingly, r 16.05(1) was inapplicable. However, the Federal Circuit Court was satisfied that there was power to set aside the order of Registrar Wall under r 16.05(3) and that the relevant issue was whether or not, in all of the circumstances, this order should be set aside. 7 The Federal Circuit Court referred to a number of decisions about the power of a court to reopen a final judgment, including Wentworth v Woollahra Municipal Council [1982] 149 CLR 672; [1982] HCA 41 at 684 and Diver v Neal [2009] NSWCA 115 at [5], amongst others. At [31] of the reasons for judgment the Federal Circuit Court noted that Mr Jeray's allegation is one of intentional conduct on the part of the lawyers for the Council, and that the application to set aside the orders of Registrar Wall and for further orders was made on this basis. At [34] of the reasons for judgment, the Federal Circuit Court concluded that there was not a reasonable prospect of establishing intentional misconduct by the lawyers acting for the Council. At [36] it said that any circumstance justifying a rehearing must be quite exceptional as there is a public interest in maintaining the finality of litigation. In the same paragraph, the Federal Circuit Court concluded that it was not satisfied that this was a matter where the circumstances were exceptional such as to warrant a rehearing as sought by Mr Jeray. 8 In the application for leave to appeal, 13 grounds are raised. Other than potentially in respect of one of those grounds, the allegations of error by the Federal Circuit Court are either immaterial or do not rise above the level of mere assertion. The only potential exception to this observation is ground 5 where it is said that Lloyd-Jones J did not provide the unrepresented applicant with proper assistance. By this it was said that the applicant, Mr Jeray, who is not legally qualified and appeared for himself before the Federal Circuit Court, did not have identified to him by the Federal Circuit Court the relevant court rules and relevant judgments on which the decision was ultimately based and, accordingly, was not properly apprised of the relevant principles that would be applied to his application. 9 I say this is a potential issue because the fact is that there is not in evidence before me on the leave application the transcript of the hearing before Lloyd-Jones J. But even assuming in favour of Mr Jeray regarding the alleged or asserted fact that he was not provided with the proper assistance, the test for whether leave to appeal should be granted remains that set out in Décor Corporation Pty Ltd v Dart Industries Inc [1991] 104 ALR 621. In particular, as explained at 622, the relevant test comprises two components: first, whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and second, whether substantial injustice would result if leave were refused supposing the decision to be wrong. 10 In this case, Mr Jeray strongly denies any suggestion that what he was doing was, in effect, seeking the same orders (with an additional declaration) as the orders that were made with his consent on 13 November 2012. According to Mr Jeray, this is an untenable proposition because it is clear from proposed order 5 that what he is seeking is to set aside the orders of Registrar Wall which orders set aside the first bankruptcy notice with his consent, then set aside the same bankruptcy notice again, but in so doing also obtain a declaration that the Council and its legal representatives, in effect, had engaged in a deliberate and intentional abuse of process. That is, the key from Mr Jeray's point of view is the additional declaration which he seeks. As Mr Jeray put it, he would not have consented to the orders before Registrar Wall on 13 November 2012 had he been aware of information which he says he is now aware of and which, according to him, provides a foundation for his allegation that the legal representatives of the Council did not merely erroneously take out the first bankruptcy notice but did so knowingly, and knowingly served upon him and sought to rely upon a bankruptcy notice which they knew to be invalid. 11 One might wonder how any of this is material given that, as set out in [8] - [10] of the reasons for judgment of the Federal Circuit Court, after the first bankruptcy notice was set aside, the Council served a second bankruptcy notice on Mr Jeray. As noted, Mr Jeray sought to have that second bankruptcy notice set aside and failed in so doing. Mr Jeray then sought a review of the decision not to set aside the second bankruptcy notice and, again, failed in that application for review. The key, however, seems to be an argument that was put orally that if the first bankruptcy notice can be established to have been based on fraudulent misconduct and was thus invalid for that reason, then according to Mr Jeray any subsequent bankruptcy notice would or should be precluded by the operation of some form of estoppel. This argument does not appear anywhere in the reasons for judgment of the Federal Circuit Court and it also does not appear anywhere in the application for leave to appeal. I can only assume that it was not put to the Federal Circuit Court of Australia. Be that as it may, the argument seems to me to have no prospect of success whatsoever, but it does explain why Mr Jeray seeks orders to set aside a bankruptcy notice already set aside and to obtain an additional declaration of misconduct. 12 Accordingly, the question remains whether, in all the circumstances, there is sufficient doubt about the decision of the Federal Circuit Court so as to warrant its reconsideration and whether substantial injustice would result if leave were refused, supposing the decision of the Federal Circuit Court to be wrong. It seems to me to be clear that the Federal Circuit Court correctly identified the relevant principles which were engaged on the making of this application and there is no doubt, let alone sufficient doubt, about the correctness of the decision it reached that the circumstances strongly spoke against any reopening of the orders that Registrar Wall had made on 13 November 2012. In addition, the circumstances of the second bankruptcy notice mean that it is impossible to see any injustice, let alone substantial injustice, if leave were refused supposing the decision of the Federal Circuit Court to be wrong. 13 In terms of the individual grounds of appeal, reference has been made to a number of alleged errors by the Federal Circuit Court in its reasons for judgment. Those errors are either not material or do not rise above mere assertion. For example, it is said that the Federal Circuit Court erred at [12] by saying that Mr Jeray did not press his application for leave to access certain audio and video recordings. The fact is that even if this is an error, it is not any way material to the subsequent consideration that Lloyd-Jones J gave to the application. Again, at [13] it is said that the paragraph does not correctly reflect the submission which Mr Jeray put. The submission was not merely that the first bankruptcy notice was based on an invalid judgment but that the first bankruptcy notice was knowingly based on an invalid judgment. Again, this has no materiality to the ultimate resolution of the application. 14 At [14] in the reasons for judgment there is a reference to the contents of a particular letter not being before the court. Mr Jeray says this too is in error and points to an affidavit which was before the court containing the letter. I looked at the letter and it does not seem to me to be in any way material to the ultimate resolution of the matter which the Federal Circuit Court reached. Mr Jeray asserts that, at [26] where the Federal Circuit Court said it could be assumed that the legal representatives who were sought to be the subject of subpoenas were not limited to Ms MacFarlane, but extended to all legal representatives, constitutes an error in the reasons for judgment. Again, I cannot see how this is in any way material to the ultimate resolution. At [31] there is said to be an error in the last sentence, where the Federal Circuit Court said that the allegation of misconduct was based upon the erroneous manner in which the first bankruptcy notice was originally sought and subsequently set aside. According to Mr Jeray this is wrong because his allegation is, in fact, one of fraud. However, it cannot be doubted from the other paragraphs of the reasons for judgment, including, in particular, [33] and [34], that the Federal Circuit Court was well aware that Mr Jeray was making an allegation of fraud against the lawyers for the Council. The same point is made about [33] but it rises no higher than the other propositions with which I have dealt. 15 A point is made also by Mr Jeray that he was denied procedural fairness by not being able to subpoena and cross-examine, at the least, Ms MacFarlane, and Mr Aris-Alvarez. However, this is more than adequately explained of the Federal Circuit Court at [34] and [25]. Mr Jeray's criticisms of the statements in [34] and [35], as well as [36], do not rise above assertion or allegation. There is no doubt that Mr Jeray strongly holds the views that he does, but the fact that he strongly holds them does not turn them in to matters of fact as opposed to mere assertion or allegation. 16 The Federal Circuit Court, in short, was bound to apply the principles which it identified at [29] and [30], in particular, of the reasons for judgment. In accordance with those principles, I am satisfied that the Federal Circuit Court reached the correct view about the application with the consequence that there should be no grant of leave as sought. For these reasons, the orders are as follows: (1) The application for leave to appeal filed 30 May 2013 be dismissed. (2) The applicant pay the respondent costs for the application for leave to appeal as agreed or taxed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.