Johnston v Judge Middleton

1. The interlocutory application filed on 18 May 2019 be dismissed.
2. The originating application filed on 8 April 2019 be dismissed.
3. The First Respondent and the Third Respondent may file any submissions in relation to costs by 4.00 pm on 5 July 2019.
4. In the event that the First Respondent and/or the Third Respondent file submissions in relation to costs in accordance with Order 3 of these Orders, the Applicant may file any submissions in relation to costs by 4.00 pm on 19 July 2019.
5. In the event that the First Respondent and the Third Respondent do not file submissions in relation to costs in accordance with Order 3 of these Orders, there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 The applicant commenced this proceeding on 8 April 2019, seeking the following relief pursuant to s 39B of the Judiciary Act 1903 (Cth): 1. Injunctive Relief to prevent any further claim on the estate BELINDA JOHNSTON. 2. Writ of Mandamus to cause JUDGE S MIDDLETON to re-look at File BRG189/2018 and/or BRG 190 of 2018 and apply principles of equity, and require any claim for debt be substantially proven, and cause the applicant to appear with a verifiable claim. Also require Brendan Joseph Nixon (trustee) to carry out due diligence and look behind default judgement to ensure debt is legitimate, shall it be necessary. 2 In his originating application the applicant also sought the following interlocutory relief: 3. Writ of Certiorari to quash Sequestration Order - QLD 1781/18/8, and any judgements association with File BRG189/2018 and/or BRG189 of 2018. 4. Account of Profits for BRG189/2018 and/or BRG189 of 2018 to reveal what profit has been made from this proceeding and determine motive behind parties involved. 3 Subsequently on 18 May 2019 the applicant filed an interlocutory application seeking the following Orders: 1. The Third Respondent FEDERAL CIRCUIT COURT OF AUSTRALIA BRISBANE be removed from File QUD248/2019. 2. Order for non-payment of costs by any Respondent or Applicant no matter what party wins because; a) The public has a significant interest in the outcome as many members of the public hold debt. b) The financial position of the applicant, largely due to the burden of the prior $63,000.00 judgment. 3. That Justice Collier issue Writ of Certiorari to quash Sequestration Order- QLD 1781/18/8, and any judgements, decisions and orders associated with File BRG189/2018 and/or BRG189 of 2018. 4. Order for Account of profits be made to reveal profits made from all dealings in relation to BRG189/2018, and be returned to defendant in Brg189/2018. Regardless of this order or not the:woman,:Belinda: Johnston. Have her property restored immediately. (Errors in original.) 4 Orders 3 and 4 in both the substantive and interlocutory applications seek, effectively, identical relief. 5 Today before me were the interlocutory application and the claim for interlocutory relief in paragraphs 3 and 4 of the applicant's originating application. 6 Background facts to this proceeding are set out in the affidavit of the applicant filed on 8 April 2019. In summary, the applicant seeks orders by way of judicial review as well as injunctive relief and an account of profits, relating to a decision of Judge Middleton of the Federal Circuit Court of Australia (FCCA) in Lion Finance Pty Ltd v Belinda Johnston [2018] FCCA 2745 (I note that this judgment concerns FCCA File Number BRG 189 of 2018). The applicant specifically names Judge Middleton as first respondent to the proceeding. In the primary judgment his Honour dismissed an application made by the applicant's wife, Ms Belinda Johnston, for judicial review of a decision of a Registrar of the Court making a sequestration order against Ms Johnston's estate. I note that Lion Finance Pty Ltd (Lion Finance) was the applicant for the sequestration order, and Mr Brendan Nixon was appointed Ms Johnston's trustee in bankruptcy. 7 On 20 May 2019 the applicant filed a notice of discontinuance of the proceeding against Mr Nixon. Subsequently, on 23 May 2019 the applicant filed a notice of discontinuance of the proceeding against Lion Finance. 8 Order 1 of the interlocutory application currently before the Court seeks the "removal" of the FCCA from the proceeding. Effectively, this constitutes a notice of discontinuance against the FCCA for the purposes of both the originating application and the interlocutory application. I note however that the FCCA has filed a submitting appearance except as to costs - in those circumstances I consider it appropriate not to make an order removing it as a respondent at this stage. 9 Insofar as the applicant continues to press the proceedings, for practical purposes the only respondent to the proceeding against whom the applicant seeks relief, in respect of both the originating and interlocutory applications, is Judge Middleton. 10 The applicant provided written submissions prior to the hearing. In those submissions he posed the following questions for consideration by the Court: A. Was said account setoff with Westpac in the first instance? B. Was a proper assignment proven from Westpac to Lion Finance of said account? C. If yes, what amount did Lion Finance purchase the purported account for? D. Can Lion Finance claim any more than what they paid for purported account? E. Did Lion Finance and agents breach their obligations while attempting to collect on the account? F. What is the breakdown of the void ex-parte default judgement amount at Perth Magistrates Court, what was the increase from collection amount and why was it not provided when requested? G. Is void ex-parte default judgement at Perth Magistrates Court valid, considering no applicant nor defendant appeared? H. Did Federal Circuit Court Brisbane Registrar have jurisdiction to make Sequestration Order ex-parte? I. Did Judge S. Middleton have jurisdiction to make decision made and was it made fairly and correctly? J. Does applicant in this Judicial Review have standing to bring this case? K. If yes is remedy and just compensation available to applicant? 11 At the hearing I asked the applicant to commence by explaining his standing to bring these proceedings (that is, question "J." as identified by him in his submissions). The applicant submitted, in summary, that he had standing because: (1) he was an aggrieved party in circumstances where his marriage had suffered as a result of Ms Johnston's bankruptcy, he was the sole income-earner in their marriage and provided the equity and wealth to the marriage, the whole process had cost him $60,000, and the matrimonial house had been sold following Ms Johnston's bankruptcy; and (2) he had suffered stress and strain as a result of the bankruptcy of Ms Johnston. 12 Turning now to the relief sought by the applicant, I consider that the proper orders are that not only should the interlocutory application before me be dismissed, but the substantive proceeding in its entirety be dismissed. In making such order in respect of the substantive application on the Court's own initiative, I rely on rr 1.40 and 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (Rules) (see, eg, Bromwich J in Mulhern v Morgan [2017] FCA 1183 at [11]). 13 Rule 1.40 of the Rules provides: Exercise of Court's power The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding. 14 Rule 26.01(1)(a) of the Rules provides: Summary judgment (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 … 15 In my view it is clear that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding (either in respect of the substantive or interlocutory relief he has sought), and in the absence of an active contradictor it is appropriate that the Court make orders on its own initiative. 16 Fundamentally, the reason that the applicant has no reasonable prospect of successfully prosecuting either application or part thereof is that he lacks standing to do so. 17 The primary proceeding before Judge Middleton was properly brought by Ms Johnston, who was made bankrupt following the sequestration order under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). As the moving party in the primary proceedings, which were determined adverse to her, it naturally fell to Ms Johnston to challenge his Honour's decision. Questions "A." to "I." posed by the applicant in his written submissions relate to issues which could properly have been pursued by Ms Johnston. 18 The applicant in the case before me was not a party to the proceedings before Judge Middleton (nor had any part in them other than as a putative "claimant" offering to "perform upon debt validation" and referable to a number of obligations and a purported "criminal investigation" of the Chief Executive Office of Lion Finance: see [14]-[17] of the primary judgment). 19 In his affidavit filed 8 April 2019 the applicant deposes: 3) For I am real party in interest in relation to file BRG 189/2018, and I am authorised to make this affidavit, for i have standing in this matter in that: a- i share my life with the woman, primary creditor and beneficiary of the trust BELINDA JOHNSTON. b- for I a man have a tenant in common for property in dispute from file number BRG 189/2018, being Lot 2 on Survey-Strata Plan 50156, Volume 2626, Folio 448. c- For I a man, and the woman using the name Belinda are the only providers of value and holders of equity to BELINDA JOHNSTON. 4) For I a man, act out of necessity and I am morally, spiritually and religiously opposed to, and offended by, a legal system so repugnant in intent that it would prey on the weak, the sick, the elderly and the young. Committing legal genocide, hidden but ever present upon vulnerable mothers and their new-born babies and things alike, undetected in their most vulnerable and sacred hour of need. 5) For the Respondent-Lion Finance Pty Ltd did me harm by proceeding legally without verifying their claim at law, causing a large financial loss, tremendous emotional and relationship issues to the point of effecting a man and a woman's health and wellbeing, unsettling relations and the peace and happiness of three children. (Errors in original.) 20 The applicant's concern for Ms Johnston, his personal feelings and strain, and his moral opposition to the Australian legal system, do not create any legal interest by which he can claim standing to prosecute this case, either in his originating or interlocutory applications. Assuming that the applicant is a tenant in common with Ms Johnston in relation to real property as he deposes (if he was a joint tenant, that relationship was severed by Ms Johnston's bankruptcy: see Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 19 FCR 149 at 153), it follows that Ms Johnston's trustee in bankruptcy could potentially claim her interest in that property assuming that it was property divisible amongst her creditors within the meaning of ss 5(1) and 116(2)(a) of the Bankruptcy Act. The applicant's interest in the real property is not otherwise affected. The applicant makes no claim in equity or otherwise to Ms Johnston's share of real property, and in any event the proper respondent to such a claim would be the trustee in bankruptcy against whom the applicant has discontinued proceedings. 21 The applicant may be "the primary creditor" of Ms Johnston as he deposes, although there is no evidence other than his statement to this effect in his affidavit. At the hearing, in light of submissions of the applicant this contention appeared to relate only to the fact that he was the sole income-earner in the marriage rather than any other debtor/creditor relationship between the applicant and Ms Johnston. Further, even if that were the case, that would not have prevented the petitioning creditor seeking the sequestration order against Ms Johnston, or prevented a Court making a sequestration order pursuant to s 43 of the Bankruptcy Act. The applicant's financial support of Ms Johnston as his wife during the course of their marriage gives him no legal standing in these proceedings. 22 I further note that, in addition to the prerogative writs sought by the applicant, he seeks injunctive relief and an account of profits in respect of Ms Johnston's estate. It is entirely unclear to me how this relief could be relevantly ordered against Judge Middleton (even placing to one side issues of judicial immunity which could otherwise be relevant: see for example observations of Perry J in Picos v Servcorp Ltd [2015] FCA 344 at [50]-[64]). Similarly, it would be contrary to the interests of justice to grant relief in accordance with paragraph 2 of the originating application to the extent that it required Mr Nixon to perform any acts, in circumstances where the applicant has specifically discontinued his claims against Mr Nixon. 23 It follows that the substantive proceedings, in respect of which the applicant's case is manifestly hopeless, should be dismissed, and the interlocutory relief he has sought, refused. 24 The applicant's applications have been unsuccessful. I note that, ordinarily, costs follow the event such that the applicant would be liable for the costs of the remaining respondents, however the award of costs is an issue for the discretion of the primary Judge: s 43(2) of the Federal Court of Australia Act 1976 (Cth). Submitting notices have been filed by both the first respondent and the FCCA. In those submitting notices both the first respondent and the FCCA stated they wanted to be heard on the question of costs. I will make case management orders concerning this issue for filing of submissions, and defer listing the matter to return depending on whether any submissions are filed. In the event however that no submissions are made by the first respondent and the FCCA in relation to costs, I consider that there should be no order as to costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.