Manolakis v Carter

Federal Court of Australia (Full Court)|2008-11-21|Before: Tracey JJ

The name of the fifth respondent be amended by substituting 'Investments' for 'Investment'. 2. The appeal be dismissed. 3. The appellant pay the third respondent's costs on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA

SENIOR MS CAROLYN ROGERS, SENIOR REGISTRAR HIGH COURT OF AUSTRALIA

MS DENISE WEYBURY, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA

MS ROSEMARY MUSOLINO, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA

MR DAMIAN BUGG - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

MR MICHAEL KEELTY - AUSTRALIAN FEDERAL POLICE COMMISSIONER

The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

CHAIRPERSON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA

SENIOR MS CAROLYN ROGERS, SENIOR REGISTRAR HIGH COURT OF AUSTRALIA

MS DENISE WEYBURY, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA

MS ROSEMARY MUSOLINO, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA

MR DAMIAN BUGG - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

MR MICHAEL KEELTY - AUSTRALIAN FEDERAL POLICE COMMISSIONER

THE COURT 1 The Federal Court of Australia is not a court of unlimited jurisdiction. Under s 19(1) of the Federal Court of Australia Act 1976 (Cth) ('the Act') the Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. 2 Sometimes cases are instituted in the Court where the Court has not been invested with jurisdiction. 3 From time to time the Court is confronted by cases where one or other of the parties has instituted a matter or defended a matter and that party has no reasonable prospect of successfully prosecuting or successfully defending the matter. Other cases come before the Court where a proceeding or claim within it is frivolous or vexatious or an abuse of the process of the Court. Other cases arise where a pleading in a matter discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or has a tendency to cause prejudice, embarrassment or delay in the proceeding or is otherwise an abuse of the process of the Court. 4 In some instances, affidavits or other documents are filed which contain scandalous, vexatious or oppressive matter. 5 In other cases again, documents are presented for filing which, on their face, appear to be an abuse of the process of the Court or to be frivolous or vexatious. 6 The Act and the Federal Court Rules ('the Rules') confer powers on the Court and/or Registrars of the Court to appropriately deal with such circumstances. 7 In the case of defective applications or pleadings, or applications which have no reasonable prospects of success, the relevant powers of the Court which need to be considered include s 31A(2) of the Act together with s 4, which brings an 'appeal' within the meaning of 'proceeding' where used in s 31A; Order 20 rule 5 of the Rules; Order 11 rule 16 of the Rules (remembering that under Order 1 rule 4 a 'pleading' does not include an 'application, notice of motion or affidavit'); Order 14 rule 8 of the Rules which empowers the Court to order that an affidavit containing scandalous or oppressive matter be 'taken off the file'; Order 41 rule 5 of the Rules which empowers the Court to order that a document be 'removed from the file' if there is scandalous, vexatious or oppressive matter within it; Order 46 rule 7A of the Rules which empowers a Registrar to refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious. 8 Other powers of the Court extend to situations where a party is 'in default'. Order 35A rule 3(1)(a) confers a power on the Court to order that a proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant if the applicant is in default. Under Order 35A rule 2(1)(b), one such form of default is where an applicant fails to attend a directions hearing. 9 Whatever the difficulties facing an applicant in person may be, those difficulties cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties. A respondent is entitled, at the least, to know the case that is brought against him or her and the rudimentary facts upon which that case is based. 10 Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private 'Royal Commissions'. Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous tirades directed at those whom they perceive to have wronged them, judicial officers who may have decided not to find for them, or judges whose duty it is to hear them, when such litigants sense that the expressions of their grievances are not being favourably received by the court. 11 One does not petition a court as one might the Speaker or other officer-bearer in a House of Parliament, nor does one approach a court as if its role was to serve as an Ombudsman. 12 An aggrieved self-represented applicant must, like any other litigant, address: ● his or her standing to make claims against other persons, ● the jurisdiction of the court in which he or she wishes to make those claims, ● the precise identity of the parties against whom the claims are to be made, ● the relief that is to be sought, and ● the facts which are said to found an entitlement to that relief. 13 Order 4 rule 3 of the Rulesrelevantly provided: '3(1) An application must specify: (a) the relief claimed by the applicant; and (b) if the relief depends on a provision of an Act - the Act and the provision. (2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the application shall state the question. …' 14 Order 4 rule 6 of the Rulesprovided: '6(1) The applicant shall file and serve with the application either an affidavit in accordance with Form 20, or a statement of claim in accordance with Form 7, whichever is appropriate. (1A) However, an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim. (2) The affidavit or statement of claim shall show - (a) the nature of the applicant's claim; and (b) the material facts on which it is based.' 15 In neither of the cases presently before the Court did the applicant, now the appellant, file a Statement of Claim.

Proceeding No. SAD 9 of 2008 (Appeal No. SAD 55 of 2008) 16 This matter was commenced by an Application filed on 30 January 2008. It was supported by an affidavit of the applicant, now the appellant, sworn on 29 January 2008. It would appear that the Application was brought to the attention of the primary judge at the time of its issue, whereupon his Honour directed that it not be served pending the first directions hearing. 17 The Application as filed left blank the 'Time and date for hearing'. 18 A directions hearing took place on 7 February 2008 at which the applicant appeared. The primary judge granted leave to the applicant to file and serve an Amended Application and a Statement of Claim by 29 February 2008. However, he directed that any Amended Application and Statement of Claim not be served before the next directions hearing. 19 The second directions hearing in the matter took place on 6 March 2008. Once again, the applicant appeared in person. On the preceding day, namely 5 March 2008, the applicant filed an affidavit sworn by him on 5 March 2008 to which he attached a three page Amended Application under the heading 'Attachment AM1'. The applicant also attached an 'Attachment AM One' being a copy of an affidavit sworn by him on 9 February 2004 in unidentified proceedings in the Federal Magistrates Court of Australia which was said to be filed 'in support of' the Amended Application. The affidavit was itself an affidavit of 'Tom Manolakis' and appears to have been signed by the applicant as 'Tom A. Manolakis'. A third attachment to the applicant's affidavit of 5 March 2008 was a copy of a letter, bearing date 29 February 2008, said to have been sent by the applicant to the Chief Justice of the High Court of Australia by express post on 5 March 2008 which was said to outline a 'formal complaint' against one of the Judges of the High Court of Australia for 'serious breaches of duty and attempting to cover up criminal activities of prominent individuals including the Chief Justice' of the one of the State Supreme Courts. 20 The Amended Application included six substantive prayers for final relief and seven substantive prayers for interlocutory relief as follows: 'Final orders sought by applicant revised is 1. The Australian Taxation Office investigate into the Liquidator "Carter" and "Trustee" "Macks" refusal to comply with the Taxation Legislation a. Refusal to lodge returns of the Superannuation Fund of Anastasios Manolakis. b. Refusal of the Liquidator to provide a group certificates to the applicant and of the trustee "Macks" to seek such group certificates from the trustee to which the applicant had tax refunds of some $5,114.87. c. Refusal of the Liquidator "Carter" and the Trustee "Macks" to investigate fraud committed against the applicant, the companies Kenurios Zoi Pty Ltd A.C.N 097 755 920 "Kenurios" and Thomiki Pty Ltd: A.C.N 098 838 030 "Thomiki" the genuine creditors of the companies, the shareholders of the companies and the genuine creditors of the applicant named in the affidavit of Anastasios Manolakis marked "Attachment AM One". d. The refusal of the Commonwealth Attorney General, Phillip Ruddock, the Federal Australian Police to investigate fraud on the companies, the applicant and the Commonwealth of Australia. 2. That ASIC and the Inspector General of Bankruptcy investigate why the Liquidator "Carter" and Trustee "Macks" have refused to return personal assets of Anastasios Manolakis and have breached their duty to maintain the Assets of the Anastasios Manolakis Superannuation Fund. a. The refusal of the Trustee "Macks" to call a creditors meeting pursuant to S64 to S64ZF of the Bankruptcy Act 1966 and to inform all creditors of the meeting. b. That the court and the Inspector General of Bankruptcy were provided with an affidavit by the applicant outlining the statement of the financial affairs of the applicant prior to the sequestration order being made by the court and was accepted by the court and the Inspector General of Bankruptcy or the sequestration order was made illegally. c. That the court, the liquidator "Carter", the Trustee "Macks" were informed that the debts of Direct Interior and Reece Plumbing may not have been the debt of Thomiki Pty Ltd as a former employee of Thomiki Pty Ltd had committed fraud against the company Thomiki Pty Ltd and the allege debt consisted of debts belonging to Mr Constantinos Asclepinos "Asclepinos", the former employee of Thomiki Pty Ltd. "Asclepinos" had used Thomiki Pty Ltd accounts with other suppliers to purchase material for his own use. i. That a debtor of Thomiki Louis and Vivian Langanis had committed fraud on Thomiki Pty Ltd and owed Thomiki Pty Ltd in excess of $115,000 for work done on a dwelling being constructed at 12 Arnold Street, Parkside in SA and were involved with Asclepinos to defraud "Thomiki" and had entered into a contract with "Thomiki" purely to defraud "Thomiki". ii. Legal proceedings seeking an annulment was commenced by the applicant in 2004 and 2005, being ADG180/2004 and ADG 36/2005 which produced formal complaints against [a Federal Magistrate], [a Judge of the Federal Court of Australia] and [another Federal Magistrate]. 1. That [the judicial officers last mentioned] were and are aware of the frauds of Asclepinos, [a State Magistrate, a State Supreme Court Chief Justice] and other yet covered up for Asclepinos, [the State Magistrate, the State Supreme Court Chief Justice] and others. 2. That this court is aware of the covering up of the fraud by [the said judicial officers] yet does not act. 3. The Liquidator "Carter" be investigated for breach of Duty and criminal acts committed as liquidator of Kenurios Zoi Pty Ltd A.C.N 097 755 920 and Thomiki Pty Ltd: A.C.N 098 838 030 4. The Liquidator "Carter" to be investigated for acts which are of a criminal nature and why the Crown (Commonwealth) has refused to deny that "Carter" is a paedophile and the Crown now is estopped from making such denials. 5. The Trustee be investigated for breaches of Duty and criminal acts committed as trustee of Anastasios Manolakis 6. The Trustee "Macks" to be investigated for acts which are of a criminal nature and why the Crown (Commonwealth) has refused to deny that "Carter" is a paedophile and the Crown now is estopped from making such denials. … Interlocutory, interim or procedural orders sought by applicant revised 1. The Anastasios Manolakis Superannuation fund be returned fully compensated to Anastasios Manolakis 2. All personal assets and documents be returned to Anastasios Manolakis in the condition these assets and documents were illegally seized 3. Carter be removed as liquidator 4. Macks be removed as trustee 5. The applicant to have access to all the records of Kenurios and Thomiki immediately. 6. That the respondents be served immediately and without further delay by the court at the courts cost 7. That the applicant be provided free of charge transcripts of each hearing free of costs. …' 21 In the 'Grounds' specified in the Amended Application the applicant alleged that the second respondent was 'the Trustee of Anastasios Manolakis', a shorthand reference to the second respondent being the trustee of his bankrupt estate. It also alleged that the first respondent was the liquidator of two companies namely Kenurios Zoi Pty Ltd ACN 097 755 920 and Thomiki Pty Ltd ACN 098 838 030. In this context the 'Grounds' were recorded as follows: '1. That there has been a Breach of Duty by the Liquidator of "Carter" and trustee "Macks" as liquidator and trustee, their, duty of care and their fiduciary duty to creditors, shareholders and employees. 2. That "Carter" and "Macks" defrauded the Superannuation fund of Anastasios Manolakis and (sic) illegally withholding assets of Anastasios Manolakis. 3. That "Carter" and trustee "Macks["] mislead and defrauded the genuine shareholders of "Kenurios" and "Thomiki". 4. That "Carter" and "Macks" mislead and defrauded the genuine creditors of "Kenurios" and "Thomiki" and the applicant. 5. That "Carter" and "Macks" allowed fraud to be committed against the named companies, "Kenurios" and "Thomiki" by Constantinos Asclepinos, this [presumably intended to be "his"] wife, Nancy Asclepinos, Louis and Vivian Langanis, Amanda Forrest and others in association with [a State Magistrate] and the illegal intervention of [the Chief Justice of a State Supreme Court] to stop an investigation into [the State Magistrate]. 6. Costs against the Liquidator and Trustee both in their official capacity and individual capacity 7. Other Grounds to be lodged at a later date and 8. Other matters to be raised in oral submissions.' 22 The affidavit of 9 February 2004 in the unspecified proceedings in the Federal Magistrates Court of Australia was said to support the claims made in the Amended Application. The affidavit deposed to the winding up of Kenurios Zoi Pty Ltd and the anticipated winding up of Thomiki Pty Ltd and another company, Hrimatothotis Pty Ltd. It referred to the first respondent of 'Ferrier Hobgson', presumably an intended reference to Ferrier Hodgson, having been a Court appointed liquidator of Kenurios Zoi Pty Limited and a likely liquidator of the other two companies as well. The applicant referred to the three named companies as being members of a 'DE GEORGE GROUP'. He claimed to be a director and company secretary of each of the companies and claimed to be the largest creditor of the 'De George Group' being owed monies for wages and an unsecured loan of $160,000. 23 The applicant identified personal creditors to whom he said he owed approximately $244,000. He swore to being unable to pay his debts when they fell due and that he was 'therefore bankrupt'. 24 In the affidavit the applicant deposed to a dispute with a Mr and Mrs Langanis, the outcome of which he believed would be the probable receipt by Thomiki Pty Ltd of 'at least $112,000' and the possible sale of certain land which would produce a further $97,000. 25 The letter to the Chief Justice of the High Court of Australia, which was posted on the same day as the applicant filed the Amended Application, would appear to have related to the rejection for filing, by a judge of the High Court, of two special leave applications following decisions by the South Australian Court of Criminal Appeal on appeals from the South Australian District Court in matters DCCRM-06-1448 and DCCRM-06-1412. 26 The letter alleged that the Crown had withheld evidence, that witnesses who should have been called were not called, that the names of key witnesses were withheld from the applicant, that the applicant did not want a trial by jury, that the applicant had uncovered a major fraud on the part of a former Premier, that a State Magistrate and the Chief Justice of a State Supreme Court had been guilty of serious misconduct, that a State Supreme Court Judge had sat on a bench where there was a 'conflict of interest', presumably founding a suggestion of bias, that certain Crown witnesses had lied and colluded to cover up the truth, and that a parliamentarian and others were paedophiles. The applicant proceeded to suggest that the High Court was a 'disgrace' and that the action a Justice of the High Court was 'illegal, corrupt and in contempt of the very court' on which he sat. The applicant proceeded to assert that a Justice of the High Court knowingly and intentionally protected paedophiles and criminals. 27 In the affidavit of the applicant sworn 29 January 2008 the applicant alleged that 'a substantial amount of my personal assets and superannuation assets' were seized illegally in the liquidation of, inter alia, Kenurios Zoi Pty Ltd and Thomiki Pty Ltd. The applicant alleged that the first and second respondents were engaged in unspecified 'inappropriate and criminal behaviour'. 28 In the foregoing circumstances the Amended Application came back before the primary judge for directions on 6 March 2008. As previously mentioned the applicant appeared before the primary judge on that occasion. The primary judge proceeded to adjourn the matter to 9:30am on 16 April 2008 to consider if any further directions or orders should be made. On 16 April 2008 the applicant failed to appear. On the hearing of the appeal from the judgment of the primary judge to which reference will shortly be made the appellant conceded that by not appearing he made a mistake - a basic mistake. In the absence of the applicant the primary judge proceeded to order that that application be dismissed. His Honour reached the view that the application should be dismissed pursuant to s 31A of the Act and Order 20 rule 1 (presumably his Honour intended a reference to rule 5) of the Rules. His Honour highlighted inadequacies in the application and failures to comply with relevant provisions of the Rules. The primary judge described the grounds of the application as 'utterly sparse' and pointed to the absence of any statement of claim. His Honour observed that there was insufficient information to support any allegation of breach of duty on the part of the trustee or on the part of the liquidator or to support any claim that any of the other respondents were in breach of a statutory obligation to investigate the behaviour of the trustee or the liquidator at the behest of the applicant. His Honour further observed that there was no information as to 'other fraudulent or other criminal conduct on the part of the first or second respondents, or of complicity of unnamed respondents in covering up any criminal conduct'. His Honour described the unsupported allegations as being 'scandalous'. We respectfully agree with his Honour's remarks. 29 By a Notice of Appeal filed 5 May 2008 the applicant, now appellant, purported to appeal from the whole of the judgment of the primary judge given on 16 April 2008. The grounds of appeal asserted error on the part of the primary judge 'in all aspects of his decision' and that the primary judge's decisions were purely to attempt to cover up the fraudulent acts of the first and second respondents. The appellant asserted that there was 'sufficient information in the application' as to claims by the appellant for the return of superannuation funds, the return of personal assets, the removal of the first respondent as a liquidator and the removal of the second respondent as trustee of his bankrupt estate. The appellant raised as a ground of appeal that the primary judge had refused to seek certain documents which were said to be illegally held by the first and second respondents from the first respondent. 30 The appellant raised as a ground of appeal that the primary judge refused to act in circumstances where he had been made aware of criminal breaches of the Australian Taxation Legislation, Corporations Law and Crimes Act and that unspecified fraud was being committed against the Australian Taxation Office by the first and second respondents. 31 The next ground of appeal charged the primary judge with refusing to act against another judge of the Court who had allegedly 'acted inappropriately against the appellant' some years earlier. 32 The appellant charged the primary judge with 'gross bias against' the appellant and a failure to disqualify himself. 33 Finally, the appellant claimed that the primary judge had known that there was a connection between this proceeding and proceeding SAD 17 of 2008 because the appellant had uncovered a 'major fraud' being committed against South Australian Public Hospitals by a former Premier. 34 Practice Note 1 dealing with 'Appeals to a Full Court' contains, amongst other things, a requirement that an appellant file and serve an outline of his submissions no later than 4:00pm on the last day which is five clear working days before the date of hearing of the appeal. In this case that day was Tuesday 11 November 2008. 35 On 30 July 2008 a direction had been given requiring the parties to comply with the Practice Note, but the appellant chose not to comply with it. He failed to file any written outline of submissions, preferring to present his argument orally. 36 When invited to identify any appealable error of the primary judge, the appellant submitted that: (a) the primary judge had denied the appellant justice by refusing to allow him to serve the Application or Amended Application on the named respondents; (b) the primary judge had denied the appellant a fair hearing at which he could present evidence of wrongdoing on the part of the persons about whose conduct he complained and that this demonstrated bias on the part of the primary judge; (c) the primary judge had in three previous cases refused to give the applicant a chance to present his case, demonstrating that the primary judge was 'fundamentally corrupt'; (d) the appellant disputed the finding made by the primary judge on the affidavit material before the Court that the appellant was a bankrupt and that the second respondent was his trustee in bankruptcy; (e) the primary judge had no intention of allowing the appellant to present his case.

Proceeding SAD No 17 of 2008 (Appeal No. SAD 56 of 2008) 37 This matter was commenced by an Application filed 20 February 2008. The Application was endorsed 'not to be served on any parties'. 38 The Application nominated 9:30am on 6 March 2008 as the time and date for the first directions hearing. 39 Once again, no Statement of Claim was filed with the Application or at all. However, it was accompanied by an affidavit of the applicant, now appellant, sworn 20 February 2008 to which was attached some eight pages identified as 'AM I'. The documents included as 'AM I' included an unsworn form of affidavit dated 19 February 2008 in which the applicant alleged that on 12 February 2008 he had lodged an application in the High Court of Australia, Adelaide Registry, which was rejected by an officer who allegedly stated that it 'would not be filed in its present form'. The 'present form' is unknown. 40 'AM I' also included a form of application in this Court in which Mr Manolakis was named as the applicant and there were 12 named respondents. The relief sought included interlocutory relief in the form of an order of this Court requiring the Senior Registrar of the High Court to 'file the applications of the applicant immediately' seeking special leave to appeal to the High Court. The special leave applications appear to be the same special leave applications as those referred to earlier in proceeding SAD 9 of 2008. In the form of application dated 19 February 2008 relief was sought under the Commonwealth Constitution and also under the 'Constitutional Act 1934', presumably intended as a reference to the South Australian Constitution. The relief contemplated by the form of application included relief in relation to the disqualification of a Senator from holding a seat in the Senate of the Commonwealth of Australia, relief in respect of the alleged covering up by a Senator of fraud on the part of a former Premier and covering up of 'paedophilic activities' of a former Prime Minister and senior Government Ministers along with a finding that a Senator was himself a paedophile. 41 The form of affidavit dated 19 February 2008 took exception to the unwillingness of the High Court to accept the applicant's special leave applications, an alleged failure to afford him a fair trial and a review of the charges of which he had been convicted in the District Court of South Australia. He asserted that he had never elected to have charges heard before a judge and jury. He asserted that he had a concern in relation to trial by jury due to bias and racism that he would face by exposing fraud committed by a former Premier, corrupt acts of a State Magistrate and the Chief Justice of a State Supreme Court and breaches of the Crimes Act 1914 and the Criminal Law Consolidation Act 1935 by former Federal Government Ministers, a former State Premier, a Commonwealth Director of Public Prosecutions, the Commissioner of the Australian Federal Police, a Chief Justice of a State Supreme Court, a State Magistrate and the Commissioner of the South Australian Police. 42 In his affidavit sworn 20 February 2008 the applicant took exception to a direction given by a judge of the Court not to accept for filing an Application in the Federal Court on 19 February 2008. He charged a former Prime Minister and several other senior Ministers, a State Premier, a Commonwealth Director of Public Prosecutions, a Commissioner of the Australian Federal Police, a Chief Justice of a State Supreme Court, a State Magistrate and a State Police Commissioner with being paedophiles and persons involved in the covering up of fraud on the part of one of their number. The affidavit also charged that the judge who directed that the application should not be accepted for filing was himself involved in 'paedophilic activities'. 43 At the directions hearing on 6 March 2008 at which the applicant appeared, he was granted leave to file and serve such Amended Application, such Statement of Claim and/or such further affidavits as he may be advised to ensure that his claim was made and particularised, as best it could be, to attract the jurisdiction of the Court and to comply with the Rules. 44 As it transpires, the applicant chose not to file any Amended Application or Statement of Claim or further affidavits. 45 The directions hearing was adjourned to 9:30am on 16 April 2008 to consider what, if any, further directions or orders should be made. The applicant failed to appear at the directions hearing on 16 April 2008. Upon the applicant failing to appear, the primary judge ordered that the application be dismissed. 46 In his reasons for judgment the primary judge referred to a direction having been given to the Registrar not to accept an application in the terms submitted to the Court on 19 February 2008 on the basis that is was scandalous and appeared on its face to be an abuse of the process of the Court. 47 The application which had been rejected on 19 February 2008 identified 12 respondents or classes of respondent, whereas the application filed on 20 February 2008 identified 15 respondents or classes of respondent. 48 As his Honour said in his reasons for judgment of 16 April 2008: '[1] … As it appeared likely that the applicant would simply persist in re-presenting his proceeding, I directed that it be accepted by the Registry, but that it not be served pending the first directions hearing.' 49 In his reasons for judgment the primary judge referred to a number of deficiencies in the application which had been filed. His Honour concluded that the application should be dismissed in accordance with s 31A of the Act and Order 20 rule 1 (presumably his Honour intended to refer to rule 5 of the Rules) and because there had been a non compliance with Order 4 rule 6(1A) of the Rules and the affidavit filed in support of the application contained material which was frivolous and vexatious. His Honour said: '[5] … So extensive are the defects that it is appropriate to refer only briefly to them.' 50 At [6] of his reasons the primary judge said: 'There are a number of allegations made of criminal conduct on the part of individuals. There is nothing to found the jurisdiction of the Court to entertain such a complaint, assuming that it is possible for the applicant to assert criminal conduct on the part of any person without himself asserting loss suffered as a result of that criminal conduct. He does not do so. That includes the allegation of fraud against the South Australian Health Department. He does not in that respect, or generally in relation to the allegations of criminal conduct, identify the basis, if any, upon which he suffered as a result of that conduct. In any event, the conduct is alleged against a number of persons only a few of whom are named respondents. The other persons are not named respondents. In addition, although there is a general allegation of criminal conduct in a number of respects, it is not particularised or specified by assertions of material facts in any way which is comprehensible and from which any of the named respondents, or indeed to any of the named alleged offenders who are not respondents, could understand what it is alleged that they have engaged in, where and when and in relation to whom. Those allegations, in the circumstances, are scandalous and quite inappropriately made.' 51 The primary judge pointed out that no foundation had been advanced for the exercise by this Court of some jurisdiction that would allow it to compel officers of the High Court of Australia to act in the manner in which the applicant desired, in relation to his High Court special leave applications. 52 His Honour formed the view that the proceedings constituted an abuse of process. We agree with his observations about the Application. 53 By a Notice of Appeal filed 5 May 2008 in proceeding SAD 56 of 2008 the applicant, now appellant, appealed against the whole of the judgment of the primary judge given on 16 April 2008. Somewhat curiously, the applicant contracted his list of named respondents from 15 back to 12, omitting the last three respondents whom he had included in the application filed on 20 February 2008 in proceeding SAD No 17 of 2008. 54 The grounds of appeal relied upon 'numerous errors at law and on the facts' in the judgment of the primary judge. The first ground of appeal alleged that the primary judge had refused to examine materials put to him in 'an open and unbiased matter [presumably the appellant intended to say 'manner']'. It alleged that the primary judge's decision was 'purely to attempt to cover up the criminal acts of senior judicial officers …'. The succeeding grounds of appeal canvassed ineligibility of a Senator to sit in the Senate of the Parliament of the Commonwealth of Australia; that bail conditions placed upon the appellant, presumably in the South Australian District Court criminal proceedings, had involved breaches of the Constitution of the Commonwealth of Australia; that certain individuals were paedophiles who were disqualified from election as members of the Federal Parliament; allegations of attempts at cover up by the primary judge; allegations that the appellant was assaulted by certain Federal Police agents; that vital evidence was withheld in criminal proceedings; that vital witnesses were not called; that Federal prosecutors failed to provide 'vital evidence' to the appellant which he had sought; that a former Premier had committed major fraud; that certain federal agents had committed perjury; that the primary judge had an obligation to 'act against' another judge of the court when he was under a duty to do so and that the primary judge had acted with 'gross bias' against the appellant. 55 On 30 July 2008 the appellant had been directed to comply with Practice Note No 1 dealing with 'Appeals to a Full Court'. Once again, the appellant failed to comply with the relevant Practice Note in that he failed to file and serve any written outline of his submissions within the time prescribed or at all. Again, he preferred to submit oral argument alone. 56 The appellant submitted that the allegations made by him in the application in proceeding SAD 17 of 2008 were not scandalous or vexatious. He did not accept that his allegations were scandalous and that the proceeding was an abuse of process. His submission was that what the primary judge had said at [5] and [6] of his reasons for judgment was 'clearly wrong'. He submitted that the Court had jurisdiction. He submitted that the Court had power to refer the matter to the High Court of Australia.

The appellant's descent into vitriolic abuse 57 At this stage of his submissions the appellant proceeded to engage in a diatribe describing his treatment in 'this Court today' as a 'disgusting [show of] bias towards me'. He proceeded to challenge the Court as presently constituted with the statement 'How dare you treat me the way you have treated me. How dare you say to me that I am a convicted criminal when I am not?' Thereupon he said 'You're a disgrace, the three of youse.'

Appearances 58 Whilst the appellant alleged that he had served the Notices of Appeal upon the named respondents, there was no evidence led to establish such service. However, in appeal number SAD 55 of 2008, the third respondent filed an appearance on 22 May 2008. 59 There was no appearance for any respondent in the appeal number SAD 56 of 2008. 60 Mr Camilos who appeared for the third respondent submitted that the appeal in SAD 55 of 2008 should be dismissed. He also submitted that it would be open to the Court to find that the appellant had committed contempt of Court, indeed contumacious contempt, and that it would be open to the Court to exercise its powers to direct the Registrar to apply for punishment of the appellant for contempt in accordance with Order 40 rule 10 of the Federal Court Rules. 61 An application was made by the third respondent in SAD 55 of 2008 for an order for costs on an indemnity basis against the appellant.

Leave to appeal 62 After addressing the alleged errors on the part of the primary judge in the two matters as he did and proceeding with the diatribe to which reference has been made, the appellant acknowledged that he had made no application for leave to appeal from the judgments of the primary judge in either matter. He submitted that applications for leave to appeal were 'implied within the application'. 63 The appellate jurisdiction of the Court is defined by s 24 of the Act. Under s 24(1)(a) the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge. However, s 24(1A) limits that jurisdiction, in respect of interlocutory judgments, as follows: '24(1A) An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.' 64 Under s 25(2)(a) of the Act applications for leave to appeal to the Court may be heard and determined by a single Judge or by a Full Court. 65 In the present cases (SAD 55 of 2008 and SAD 56 of 2008) no applications for leave to appeal were filed. In the circumstances of these cases Order 52 rule 10(2) of the Rules required applications for leave to appeal to be made by motion on notice. 66 Under Order 52 rule 10(2A)(b) the time allowed for filing a motion seeking leave to appeal was, relevantly for the purposes of these cases, 'within 7 days after the date on which the interlocutory judgment was pronounced' or within such further time as the Court or a Judge may allow. Whilst Order 52 rule 10 required the filing of a Notice of Motion the Court or a Judge had power, under Order 19 rule 2(2)(d), to dispense with the requirement for filing and service. 67 However, the filing of a Notice of Appeal does not, in terms, constitute an application for leave to appeal (see per Tracey J in MZWGB v Minister for Immigration and Multicultural Affairs [2006] FCA 1681 at [6]). 68 Whilst the appellant submitted that an application for leave to appeal was to be implied from the filing of the Notice of Appeal, this is not so. 69 In our opinion, nothing would be gained by extending the time for filing and service of applications for leave to appeal in these cases and by the Court allowing applications to be made orally and treating the Notices of Appeal as incorporating applications for leave to appeal on the grounds contained therein. 70 The judgments of the primary judge in these cases were plainly interlocutory. They were made before service of the Application filed 30 January 2008 in proceeding SAD 9 of 2008, before service of the Amended Application filed 5 March 2008 in that matter and before service of the Application filed 20 February 2008 in proceeding SAD 17 of 2008 on any of the respondents. 71 The orders made by the primary judge did not finally dispose of the rights of the named parties. Given that the respondents had not been served, they could not have done so. Clearly leave to appeal was required in each matter (see per Gibbs J as his Honour then was, with whose judgment Mason and Murphy JJ agreed, in Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 at 38). 72 In the foregoing circumstances it would be open to the Court to dismiss each of the appeals as incompetent, the Court being without jurisdiction to deal with them. Alternatively, it would be open to the Court to order that the Notices of Appeal in each matter be 'removed from the file' given the plainly scandalous, vexatious and oppressive nature of the matter contained therein to which detailed reference has earlier been made. 73 Had applications for leave to appeal been before the Court, the issues which the Court would have had to address in each matter would have been: (a) Was the decision of the primary judge attended with sufficient doubt to warrant it being reconsidered by a Full Court?; and (b) Would substantial injustice result if leave to appeal were refused, supposing the decision of the primary judge to have been wrong? (see Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397). 74 We are of the opinion that no grant of leave to appeal would be appropriate since no appealable error was identified by the putative appellant which would warrant a grant of leave in either matter and, further, no injustice would be done by refusing leave to appeal in circumstances where the primary judge could have ordered that the respective applications and, in the first case the amended application, be removed from the file and that the affidavits to which reference has been made be taken off the respective files. We would certainly be minded to make such orders were appeals to be heard and allowed, in which case there would be no applications for the Court to consider. Alternatively, it would be appropriate, in such circumstances, to order that each of the proceedings be dismissed as to the whole of the relief claimed by the applicant where he was in default within the meaning of Order 35A of the Rules in each matter, as earlier mentioned. 75 There were no errors on the part of the primary judge as alleged by the appellant. His Honour was dealing with the matters in the absence of the respondents, purely on the basis of the material which had been filed, where his concern was to avoid unfairness to the respondents which would have resulted had they been required to address the appellant's abuses of process. 76 In our opinion, each of the appeals should be dismissed as incompetent. 77 In respect of the question of costs the third respondent has sought an order that the appellant pay the third respondent's costs in the appeal No. SAD 55 of 2008, on an indemnity basis. The unusual features of this case warrant an order that costs be awarded on an indemnity as opposed to a party and party basis. In our opinion there should be no reluctance in making such an order, notwithstanding that the appellant is a self-represented litigant. Given the vexatious nature of the proceedings and of the appeals, the third respondent is entitled to be fully compensated for the costs which the third respondent has incurred in the relevant appeal, which was hopeless. 78 The appellant should be ordered to pay the costs of the third respondent in proceeding SAD 55 of 2008 on an indemnity basis. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Graham and Tracey.

Proceedings SAD 55 of 2008 The appellant appeared in person.

The First, Second, Fourth and Fifth Respondents did not appear.

Counsel and Solicitor for the Third Respondent: G Camilos of the Australian Government Solicitor

Proceedings SAD 56 of 2008 The appellant appeared in person.

The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Respondents did not appear.

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Judgment (29 paragraphs)

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Cases Cited (3)