Plaintiff v Defendant

Supreme Court of Victoria|2008-08-25|Before: ROBSON J

COSTS - Indemnity costs - Litigant in person - Unfounded allegations of misconduct - Plaintiff not seeking any redress - Grounds existing for departing from usual order that costs be taxed on a party/party basis - Grounds existing for departing from Court's normal reluctance to order indemnity costs against litigant in person - Order for indemnity costs - rr 63.28 General Rules of Procedure in Civil Proceedings 1986 Ch 1.

Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159

Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354

GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296

Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358

McFadzean v Construction, Forestry, Mining & Energy Union [2007] VSCA 289

Nolan v Nolan [2004[ VSCA 134

Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd (1989) 19 NSWLR 434

Ogawa v The University of Melbourne (No.2) [2004] FCA 1275

Re Australian Transport Insurance Pty Ltd [1986] FCA 85; (1986) 71 ALR 287

Re Talk Finance and Insurance Services Pty Ltd [1994] 1 Qd R 558

Salfinger v Niugini Mining (Australia) Pty Ltd (No.4) [2007] FCA 1594

Spalla v St George Motor Finance Ltd (No.8) [2006] FCA 1537

Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127

Thors v Weekes (1989) 92 ALR 131

Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189

Vink v Tuckwell (No 2) [2008] VSC 206

Vink v Tuckwell [2008] VSC 100

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

1 These proceedings were concluded on 16 June 2008 when I delivered judgment dismissing Mr Vink's application save for costs which I now deal with. The proceedings involved the disposition of two applications. The first was an application by Mr Tuckwell to summarily dismiss Mr Vink's proceedings. The second was the hearing and determination of Mr Vink's application.

2 Mr Tuckwell has sought an order for costs in respect of both applications. He has sought an order that such costs be paid on an indemnity basis other than in respect of those matters in which costs have been ordered.

3 Mr Vink opposes those orders and submits that there should be no order for cost in this case.

4 For the following reasons, I have decided in my discretion that on Mr Tuckwell's application, Mr Tuckwell should have 60 per cent of his costs including any reserved costs on an indemnity basis. I have decided that on Mr Vink's application, Mr Tuckwell should have his costs including any reserved costs on an indemnity basis.

5 By an originating process filed 19 June 2007, Mr Vink sought an order pursuant to s 536 of the Corporations Act 2001 ("the Act") that an inquiry be conducted into Mr Tuckwell's liquidation of Corporate Interior Constructions Pty Ltd (In liquidation) ("CIC"). Mr Vink made complaint under s 536 of the Act that Mr Tuckwell had inadequately and/or improperly conducted the liquidation of CIC.[1] As required by the Supreme Court (Corporations) Rules 2003 Mr Vink's application was supported by an affidavit of 18 June 2007 that purported to depose to the facts in support of the originating process

6 Previously, on 26 May 2006, Ani Linton applied to have Mr Tuckwell removed as liquidator and sought an order that an inquiry be conducted into the liquidation of CIC.[2] By her affidavit in support, Ms Linton referred to and adopted the witness statement of Martin Vink of 17 May 2004.[3] Mr Vink deposed to essentially the same matters that he deposed to in his affidavit in support of his own application.

7 On 31 July 2007, Mr Tuckwell issued an interlocutory application seeking an order summarily dismissing Mr Vink's application. Mr Tuckwell relied on the court's inherent jurisdiction to summarily dismiss claims without any prospect of success.

8 On 2 August 2007, Mr Tuckwell filed an outline of submissions in support of his application to have Mr Vink's application dismissed. The outline of submissions contended that Mr Vink's affidavit of 18 June 2007 was objectionable and did not depose to the facts necessary to support the originating process.

9 On 3 August 2007, Dodds-Streeton J granted Mr Tuckwell's application and dismissed Mr Vink's proceeding. She also ordered that Mr Vink pay Mr Tuckwell's costs on a solicitor/client basis. I annex Dodds-Streeton J's rulings made in relation to those orders.

10 On 17 August 2007, Mr Vink sought leave to appeal from the decision of Dodds-Streeton J dismissing his proceeding.

11 On 19 September 2007, Mr Vink's application for leave to appeal was heard. Leave was granted and the appeal allowed on the grounds that Mr Vink had been denied natural justice in not being given an adjournment to consider Mr Tuckwell's written submissions, which Mr Vink had not received until the morning of 3 August 2007.

12 The Court of Appeal set aside the decision of Dodds-Streeton J made 3 August 2007 and remitted Mr Tuckwell's application to dismiss Mr Vink's application to the commercial list for hearing and determination according to law. The order had the effect of setting aside the order as to costs made that day.

13 On 21 September 2007, the matter came on before me. I was informed of the decision of the Court of Appeal. The matter was adjourned to 12 October 2007.

14 On 5 October 2007, Mr Tuckwell filed a further outline of submissions, and on 9 October 2007, the solicitors for Mr Tuckwell provided Mr Vink with a list of objections to Mr Vink's affidavit. On 10 October 2007, an affidavit by Paul Wayne Marsh was filed on behalf of Mr Tuckwell verifying service of the list of objections. On 11 October 2007, Mr Vink filed an outline of submissions.

15 On 12 October 2007, I adjourned the further hearing of Mr Tuckwell's application and Mr Vink's application to 2 November 2007. There were no appearances on that day.

16 On 1 November 2007, in a letter from ASIC to my Associate, ASIC referred to the proceeding, saying that they had been served with copies of Mr Vink's originating process filed 19 June 2007 and Mr Vink's affidavit of 18 June 2007. The letter went on to say that ASIC neither supported nor opposed Mr Vink's application in the subject proceedings. ASIC said that it had, for some considerable time, been aware of the certain related "proceedings" referred to in Mr Vink's affidavit and, in particular, Tuckwell v Linton & Ors (Supreme Court of Victoria proceeding number 8355 of 2002) and Linton v Tuckwell (Supreme Court of Victoria proceeding number 6575 of 2006). ASIC went on to say that if, following conclusion of the proceedings referred to, it would be demonstrated to ASIC that an adverse finding had been made by the Court against Mr Tuckwell with respect to his conduct as administrator or liquidator, ASIC would in that event review whether it should inquire further into the matter. ASIC finished its letter by saying it was not ASIC's current intention to intervene in the subject proceeding.

17 On 2 November 2007, Ms Linton consented to an order that her application to remove Mr Tuckwell as liquidator and seeking an inquiry into the liquidation of CIC be dismissed. Mr Tuckwell consented to an order that his proceeding against Ms Linton ("the loan proceedings") be dismissed.[4]

18 On 2 November 2007, the matter again came before me and I set down for hearing on 25 February 2008 both Mr Tuckwell's application and Mr Vink's application with an estimated hearing time of two days. Mr Vink was given leave to file further affidavits he intended to rely on by 9 November 2007.

19 On 8 November 2007, Mr Vink filed a further affidavit sworn 4 November 2007 that sought to overcome criticisms that Dodds-Streeton J had made in her reasons for summarily dismissing Mr Vink's application on 3 August 2007. This affidavit replaced his affidavit of 18 June 2007 as the affidavit that sought to state the necessary facts to support the originating process as required under the Supreme Court (Corporations) Rules 2003.

20 On 20 December 2007, Mr Tuckwell filed a further affidavit. This affidavit was not relied upon by Mr Tuckwell in his application to have Mr Vink's application dismissed, but he did rely upon it on the hearing of Mr Vink's application.

21 On 1 February 2008, Mr Vink swore, filed and served an affidavit in response to the affidavit of Mr Tuckwell of 20 December 2007. Mr Vink also relied upon affidavits of Lorenz Turko sworn 14 February 2008 and an affidavit of Basil Richard le Riche sworn 14 February 2008. On 18 February 2008, Mr Marsh from Wisewoulds, solicitors for Mr Tuckwell, filed a further short affidavit. On 19 February 2008, further submissions were filed on behalf of Mr Tuckwell which included his submissions on his application of 31 July 2007 to dismiss Mr Vink's application. On 20 February 2008, Mr Vink swore a further affidavit replying to the short affidavit of Mr Marsh of 18 February 2008.

22 On 25 February 2008, I commenced hearing Mr Tuckwell's application to summarily dismiss Mr Vink's application of 19 July 2007. On 25 February 2008, Mr Vink tendered written submissions. He tendered further written submissions on 26 February 2008. Much of the first day was taken up in dealing with objections to Mr Vink's supporting affidavit of 4 November 2007. Ultimately, I disallowed approximately 102 of the 132 paragraphs.

23 The hearing of Mr Tuckwell's application concluded on 26 February 2008. On 1 April 2006, although I found Mr Vink was very likely to fail in his application, I delivered judgment dismissing Mr Tuckwell's application of 31 July 2007. I indicated I would hear the parties on the question of costs.

24 On 5 and 6 May 2008, I heard argument on Mr Vink's application and reserved my decision.

25 On 16 June 2008, I delivered judgment on Mr Vink's application and ordered that it be dismissed. I indicated I would hear the parties on costs.

26 Mr Marantelli of counsel, who appeared for Mr Tuckwell, thereupon sought an order that Mr Vink pay costs on an indemnity basis (other than in respect of those matters where costs have been ordered, for instance, on 3 August 2007, where Dodds-Streeton J ordered that Mr Vink pay Mr Tuckwell's costs on a solicitor/client basis).[5]

27 I will deal with the grounds of Mr Marantelli's submissions below. After Mr Marantelli completed his submissions, Mr Vink asked for and was granted an adjournment to give him time to fully absorb Mr Marantelli's submissions and prepare a response. I granted the application. I also observed that if Mr Vink had not been a litigant in person, I would have ruled that he make his submissions that day.

28 The matter came on again before me on 26 June 2008 when Mr Vink made his submissions on costs. These were supported by written submissions.[6] As indicated above, Mr Vink submitted there should be no order as to costs.

29 In seeking indemnity costs, Mr Tuckwell relies on the following grounds:

(1) Mr Vink's conduct in the proceeding caused loss of time to the court and to Mr Tuckwell. This is ground three referred to in Ugly Tribe Co Pty Ltd v Sikola referred to below.[7]

(2) Mr Vink commenced or continued the proceeding in wilful disregard of known facts or clearly established law. This is ground six in the Ugly Tribe case.

(3) Mr Vink brought proceedings making substantially the same allegations that were made by Ms Linton in her proceeding.

(5) Mr Vink accused Mr Tuckwell of dishonesty or misconduct without reasonable grounds for doing so.

30 Mr Vink submits that there be an order as to costs. He referred to Northbourne Developments Pty Ltd v Reiby Chambers Pty Ltd[8] where McLelland J dismissed an application, inter alia, for an inquiry under the predecessor of s 536. He said:

For the above reasons I do not consider it appropriate to make any order under s 420.

The proceedings therefore will be dismissed. However I propose to recognise the legitimacy of Northbourne's complaint so far as it was based on matters arising from the letter of 24 August by declining to make any order for costs against Northbourne.

31 Mr Vink submits his complaint had legitimacy and as in the Northbourne case there should be no order as to costs. I reject this submission. For the reasons given in Vink v Tuckwell (No 2)[9] I found that Mr Vink's complaint had no legitimacy.

32 If a costs order is made in favour of Mr Tuckwell, Mr Vink opposes Mr Tuckwell's application for indemnity costs. I will deal with his submissions when I deal with the various grounds relied upon by Mr Tuckwell.

33 Further, Mr Vink submits that if Mr Tuckwell is successful in his application for indemnity costs, that assessment should only apply to 6 May 2007 and not to any other day as this was the only day on which the application was heard.[10]

34 On 3 August 2007, Mr Vink's matter was listed for directions. On that occasion, Dodds-Streeton J dealt with Mr Tuckwell's application and dismissed Mr Vink's proceeding.

35 On 12 October 2007, the matter was adjourned. Mr Vink submits the hearing was unnecessary. At that stage, Ms Linton's proceedings were still on foot. Her proceeding against Mr Tuckwell had been adjourned until the hearing and determination of Mr Tuckwell's loan proceedings whereby CIC had sought to recover moneys allegedly owed by Ms Linton to CIC.

36 Mr Vink makes no complaint about the hearing on 2 November 2007. On that date, Ms Linton's proceedings were dismissed by consent. Mr Vink complains that the hearing on 25 and 26 February was a surprise. Mr Vink submits that the cost of 6 May should be reduced by the costs of transcripts and copying costs required by Mr Vink on all other days, except 6 June (which I take to mean 6 May 2008), as these hearings relate to failed applications by Mr Tuckwell.

37 I consider it is appropriate to consider each application separately.

38 As mentioned above, Mr Tuckwell issued an interlocutory process[11] seeking an order dismissing Mr Vink's application. Mr Tuckwell also sought an order that Mr Vink's application for an order pursuant to s 536 of the Corporations Act 2001 (Cth) be stayed until a date after final orders had been made in Ms Linton's proceeding.[12] The alternative order became otiose as Ms Linton's proceeding was settled by consent on 2 November 2007. Mr Tuckwell's application was heard on 25 and 26 February 2008.

39 Mr Vink relied on his supporting affidavit and other affidavits which he also relied on in the hearing of his originating motion on 5 and 6 May 2008. Of the two days of the hearing on 25 and 26 February 2008, about half the time was spent hearing a challenge to the admission of Mr Vink's supporting affidavit. Mr Tuckwell was essentially successful in his challenges to that affidavit.

40 Mr Vink had been warned about his affidavit of 18 June 2007. At the hearing on 3 August 2007, Dodds-Streeton J said:

This affidavit contains a considerable amount of inadmissible material. In fact, only a small proportion of the affidavit is admissible.

I am also concerned by the fact that there is no admissible material filed in the proceeding sufficient to satisfy the jurisdictional threshold that the Court must be satisfied prior to exercising its discretion under s 536 of the Act. That is, it must appear to the Court that the liquidator has not faithfully performed his duties or has breached a provision of the Act or Rules or Regulations. It is not sufficient that there are allegations to that effect. It must appear to the Court that that is the situation.

41 Dodds-Streeton J's orders were over turned on appeal. Never the less, her observations are still relevant in considering whether Mr Vink was apprised of possible weaknesses in his case and in the material he was relying on.

42 Mr Vink did replace his 18 June 2007 affidavit with his affidavit of 4 November 2007. Despite Mr Vink being warned about the defects in his 18 June 2007 affidavit, his 4 November 2007 affidavit was replete with inadmissible material.

43 I consider that although Mr Tuckwell lost the application to summarily dismiss Mr Vink's application, Mr Tuckwell succeeded in having much of Mr Vink's affidavit ruled inadmissible.

44 Much time was spent also by Mr Vink in addressing the final merits of his originating motion, rather than addressing the issue of whether his originating motion should be summarily dismissed under the application made by Mr Tuckwell.

45 At the hearing, Mr Vink appeared for himself and, accordingly, did not incur expenses for counsel or solicitors.

46 Both Mr Vink and Mr Tuckwell had success on the hearing. Mr Vink succeeded in resisting Mr Tuckwell's application as I found in my judgment delivered on 1 April 2008. On the other hand, Mr Tuckwell had much of Mr Vink's supporting affidavit disallowed as evidence.

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

The power and discretion of the Court as to costs under section 24 of the Act shall be exercised subject to or in accordance with this Order.

(1) The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding.

(2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding.

Subject to this Part, costs in a proceeding which are to be taxed shall be taxed on -

On a taxation on a party and party basis all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed shall be allowed.

On a taxation on a solicitor and client basis all costs reasonably incurred and of reasonable amount shall be allowed.

(1) Subject to paragraph (2), on a taxation on an indemnity basis all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred.

(2) Any doubt which the Taxing Master may have as to whether the costs were unreasonably incurred or were unreasonable in amount shall be resolved in favour of the party to whom the costs are payable.

Except as provided by these Rules or any order of the Court costs shall be taxed on a party and party basis.

55 In McFadzean v CFMBEU[14], the Court of Appeal addressed the awarding of costs where a party had failed on a discrete issue or head of claim. The Court (Warren CJ, Nettle and Redlich JJA) said:

The position as to costs where a party has been partially successful was summarised by Eames J in Pricom Pty Ltd v Sgarioto:[15]

As a general rule costs should follow the event, and a successful party should obtain all of the costs of the action even although it failed to establish some of the alternative heads of its claim: Ritter v Godfrey.[16] However, in the exercise of its discretion the court may decline to order costs in favour of a successful party, or may order the successful party to pay the costs of the unsuccessful party, where the plaintiff failed to establish discrete heads of claim or failed to establish issues which it pursued in its claim, although ultimately succeeding on the basis of another discrete head of claim: Hughes v Western Australian Cricket Association Inc.[17] (With respect to the court's ability to consider the relative success of the parties in respect of the issues raised in the proceeding, as well as with respect to causes of action: See Byrns v Davie.[18] See also Rosniak v Government Insurance Office.[19]

56 Recently, in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3),[20] I canvassed the issues surrounding the ordering of costs on an issues basis. I refer to and repeat what I said there.

57 In Nolan v Nolan,[21] the Court of Appeal applied r 63.04 where the appellant to the appeal had succeeded on some issues and the respondent on others. Rather than make respective cross-orders, the court confirmed it had

....ample power to make a single order for costs fixing an appropriate proper sum of the party's costs, obviating cross-orders, but ultimately reflecting that one party has been successful and the other has failed to persuade the court of the ultimate merits of its case.[22]

In a proceeding taking only five days before a court frequently it is said that costs should follow the event and that courts should not be obliged to have regard to the niceties of argument and the degree of success which each party has had. On the other hand, as in the present case, it is not difficult sometimes to distinguish the issues upon which the parties have had success so that, consistently with Order 63.04 of the Rules, the Court would have been entitled to make orders in relation to the two principal questions in a way which reflected the success of the different parties on those questions.[23]

59 Accordingly, exercising my discretion in accordance with the principles, statute and rules set out or referred to above, I will order that as to the costs of and incidental to Mr Tuckwell's application, including the hearings on 3 August 2007, 25 and 26 February 2008, Mr Vink pay Mr Tuckwell 60 per cent of his costs. I will deal with the basis of taxation below.

60 In making an order that costs be on an indemnity basis, the court is being asked to depart from its usual course to order costs on a party/party basis. In Spencer v Dowling,[24] Winneke P said as follows:

There can be no doubt that, in litigation in superior courts, the usual measure of costs awarded is costs on a party/party basis. There is, likewise, no doubt that a court does have the power to award costs on a higher measure if the circumstances require it. This practice in the superior courts is, in my experience, universal although it is well recognised that there is occurring an ever-increasing gap between party/party costs and those actually incurred. In the case of Bass Shire Council v King (unreported, 15 August 1994), Nathan J expressed at 1 the practice in what are, in my view, appropriate terms:

'It is undoubtedly a principle of law that costs follow the event on a party and party basis, but that the courts are free to depart from that principle if confronted with circumstances where the conduct of one or other of the parties ... would warrant the ordering of costs on an indemnity basis. There must be special circumstances which lift the case out of the ordinary'.

This practice has continued to apply notwithstanding expressions of view by individual judges that it is capable, in today's circumstances, of working injustice: see for example, per Rogers J (as he then was) in Qantas Airways Ltd v Dillingham Corp.[25] The practice is designed to reflect a compromise between the interests of successful and unsuccessful litigants. As Handley JA observed in Cachia v Hanes[26] the practice is also adopted to provide an 'important spur to settlement'. Shepherd J in Colgate-Palmolive Co v Cussons Pty Ltd[27] restated the practice and pointed out:

'This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation ... or a decision of an intermediate court of appeal or of the High Court would be required to alter it.'.

61 In Ugly Tribe Co Pty Ltd v Sikola,[28] Harper J said:

7. In seeking costs on an indemnity basis, the first defendant is asking the Court to depart from its usual course: Spencer v Dowling.[29] Special circumstances must be present to justify such a departure: Australian Electoral Commission v Towney (No. 2).[30] These include:

(i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd.[31]

(ii) The making of an irrelevant allegation of fraud: Thors v Weekes.[32]

(iii) Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd.[33]

(iv) The commencement or continuation of proceedings for an ulterior motive: Ragata Developments Pty Ltd v Westpac Banking Corporation.[34]

(v) Conduct which amounts to a contempt of court: EMI Records Ltd v Ian Cameron Wallace Ltd.[35]

(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) Branch (No. 2).[36]

(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the time of discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No. 2).[37]

8. The categories of special circumstances are not closed: Tetijo Holdings.[38] The cases must not, therefore, be read "in an endeavour to establish a set of inflexible guidelines which should thereafter be determinative of the manner in which the Court's discretion is to be exercised [for this] would be to fetter the Court's discretion": National Australia Bank v Petit-Breuilh, supra.

9. At the same time, the courts should, I think, be astute to avoid a wilderness of single instances. Even worse would be the creation of different regimes in different courts, especially as between the Federal Court and a State Supreme Court. This would encourage the undesirable practice of forum shopping, as well as the almost equally undesirable spectre of frequent post-trial applications for costs to be awarded on some special basis (i.e. on the other than the usual party and party basis).

10. According to Winneke P in Spencer's case:[39]

"It is well recognised that there is occurring an ever increasing gap between party/party costs and those actually incurred ... This ... has continued ... notwithstanding expressions of view by individual Judges that it is capable, in today's circumstances, of working injustice: see, for example, per Rogers, J (as he then was) in Qantas Airways Ltd v Billingham Corp.[40] The practice is designed to reflect a compromise between the interests of successful and unsuccessful litigants. As Handley, JA observed in Cachia v Hanes[41] the practice is also adopted to provide an 'important spur to settlement'. Sheppard, J in Colgate-Palmolive Co v Cussons Pty Ltd[42] restated the practice and pointed out: 'This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation ... or a decision of an intermediate court of appeal or of the High Court would be required to alter it'.

11. The compromise about which Winneke, P spoke is perhaps justifiable on the basis that potential litigants must not be unnecessarily discouraged from bringing their disputes to the courts. After all success can seldom be guaranteed, if only because - where the facts are in dispute, as they generally are - it is seldom possible to predict with certainty what findings of fact will be made. In these circumstances, an honest plaintiff or defendant might be discouraged from bringing or defending a claim were an adverse result to be followed by an order that the losing party indemnify, or go close to providing an indemnity to, the successful party against the latter's costs.

12. The position changes where a litigant acts dishonestly in the litigation, or where the rights and privileges of a litigant are flouted or abused. Then, the rationale for refusing to order that the losing party indemnify an opposite party against that party's costs is less compelling. Indeed, costs are more frequently if not invariably awarded on an indemnity or like basis (such as that of solicitor/client) where findings of dishonesty or serious misconduct have been made against the party ordered to pay.

62 I now return to the grounds relied on by Mr Tuckwell in his application for indemnity costs.

63 Mr Tuckwell submits that Mr Vink relied on affidavit material that was nearly entirely inadmissible. He submits that Mr Vink was informed of this by Dodds-Streeton J on 3 August 2007. He says that the Court of Appeal said nothing to disabuse Mr Vink of the fact that the material upon which he was relying was inadmissible. As indicated above, although Dodds-Streeton J's orders were overturned on appeal, her observations are still relevant to Mr Vink being warned of possible weaknesses in his case and material.

64 As indicated above, I disallowed some 102 of the 132 paragraphs of Mr Vink's affidavit and put Mr Vink on notice that he was unlikely to make out the prima facie case necessary for the court to exercise its discretion to order an inquiry.[43]

65 Mr Tuckwell submits that the further affidavits upon which Mr Vink sought to rely (for instance, his affidavit of 11 February 2008) did not rectify the problem. Mr Tuckwell submits that Mr Vink's attempt in effect to adduce evidence through his written and oral submissions was misconceived.

66 Mr Tuckwell refers to the observations I made on 5 May 2008 during the hearing of Mr Vink's application concerning Mr Vink's failure to observe the rules of court relating to affidavit evidence where I said:

This complaint was not raised in his affidavit in support of the application save Mr Vink did depose that by reason of the matters raised in paragraphs previous to 82, the main function served by the appointment by Van Oosterom of Mr Tuckwell as voluntary administrator of CIC was the avoidance of the potential prosecution of Van Oosterom and Di Carlo for the mismanagement of CIC. This elliptical accusation falls well short of the allegations he made from the bar table against Mr Tuckwell.

In my view this matter has progressed in such a fashion that Mr Vink has known since at least August of last year that the rules of court require the affidavits to be presented in a fashion in accordance with the rules. I am yet to hear Mr Vink's submissions, but the submissions made by Mr Marantelli are in substance that virtually every sentence of Mr Vink's affidavit does not comply with the rules. One can only draw the conclusion that Mr Vink has chosen to ignore the rules, or not appraised himself of what the rules are, even though I have quoted them in my judgment.

67 Mr Vink says that as of 1 April 2008 there was no reason for him to suspect that his case was fundamentally flawed. I do not accept this response. Mr Vink was aware as early as 3 August 2007 that his case was flawed. Further, the observations made by me at the hearing of Mr Tuckwell's application should have reinforced the observations made by Dodds-Streeton J.

68 He submits that most of the evidence was contained in the exhibits. This is so, but does not meet the point that much time was wasted due to his affidavits not complying with the rules of court or the rules of evidence.

69 Mr Tuckwell submits that Mr Vink commenced or continued the proceedings in wilful disregard of known facts or clearly established law. He also submits that Mr Vink's conduct amounts to an abuse of process.[44] He relies on several matters as follows.

70 He relies on my observations in the judgment on his application[45] where I said:

The fact that Mr Vink was not represented by counsel does not excuse his actions or validate what he has done. Mr Vink has made extremely serious allegations against a professional man and has sought to do so unaided by counsel or the assistance of a solicitor who are bound by the codes of their professions where such allegations are made. Mr Vink's decision to proceed without counsel or instructing solicitors can not excuse him from observance of the rules that permit fairness and justice to be afforded to Mr Tuckwell. Mr Vink has no personal interest in the liquidation. The court's normal forbearance with litigants in person need not be extended to Mr Vink. Mr Vink has informed ASIC of his concerns about the conduct of Mr Tuckwell. ASIC has not taken any action on the basis of those concerns.

In those circumstances, I do not consider that the court should overlook Mr Vink's failure to observe the rules of court and natural justice to Mr Tuckwell.

71 Mr Tuckwell also relies on Mr Vink's conduct in instituting similar proceedings to those brought by Ms Linton in her proceedings against Mr Tuckwell.

72 In Mr Vink's affidavit of 4 November 2007, he deposes to the assistance he gave Ms Linton. He sought to appear for Ms Linton in her proceedings before me. He was actively involved in all the proceedings that Ms Linton took in VCAT, the Family Court of Australia and the Supreme Court as referred to by me in Vink v Tuckwell (No 2).[46] Mr Vink swore the main affidavit in Ms Linton's proceedings. It is reasonable to infer that Mr Vink has been a de facto party to, if not the author of, Ms Linton's proceedings against Mr Tuckwell. Mr Tuckwell submits it was an abuse of process for Mr Vink to institute almost identical proceedings against Mr Tuckwell.

73 There is a strong inference that Ms Linton brought her proceedings against Mr Tuckwell as part of a defence strategy to Mr Tuckwell's loan proceedings against her. Ms Linton's application against Mr Tuckwell had been effectively adjourned while the loan proceedings were heard and determined.

74 Mr Vink has sought to explain why he instituted his proceedings against Mr Tuckwell whilst Ms Linton's were on foot. His written submissions state that he did not file his proceedings until after he separated from Ms Linton. He also says that Ms Linton's complaints did not deal with Mr Tuckwell's last amendments to his claim in the loan proceedings.

75 Mr Tuckwell submits that Mr Vink was aware that his claim that Ms Linton had nothing to answer had been rejected by Member Vassey of VCAT, who expressed the opinion that the claim of Mr Tuckwell against Ms Linton was bound to succeed.

76 Mr Tuckwell further relies on my findings in this matter that none of the complaints made by Mr Vink were supported by the evidence he relied on.

77 Finally, under this head, Mr Tuckwell relied on the fact that Mr Vink had no interest in the liquidation save for the assistance he provided to Ms Linton.

78 Mr Vink has passed on to ASIC details of all the complaints he makes against Mr Tuckwell. ASIC has not seen fit to support Mr Vink but Mr Vink has proceeded nevertheless. Mr Vink has indiscriminately accused Mr Tuckwell of breaching over twenty provisions of the Act. In my opinion, Mr Vink has pursued Mr Tuckwell remorselessly without any reasonable basis for doing so. In Vink v Tuckwell[47] I examined the complaints made by Mr Vink and found in each instance that they were unlikely to succeed in obtaining an order under s 536 for an inquiry into the liquidation of CIC. Nevertheless, Mr Vink persisted with his application for such an order.

79 During the first hearing, Mr Vink made serious allegations against Mr Tuckwell.

80 At the hearing on 25 February 2008, Mr Vink alleged Mr Tuckwell was appointed for an improper purpose.[48]

81 When pressed by me as to what the improper purpose was, he said he believed an investigation may well show there was an improper purpose. He said he thought that there was prima facie evidence that suggests that Mr Tuckwell may well have hidden the trading whilst insolvent of his friend Mr Moran, who he had known for 20 years, in the six months prior to the liquidation of CIC.[49]

82 I asked Mr Vink was he alleging that Mr Tuckwell occupied the position of administrator for the purpose of protecting his friends, Mr Moran, Mr Van Oosterom and Mr Di Carlo, from an action against them for trading whilst insolvent or being involved in trading whilst insolvent.

83 Mr Vink said that was a possibility. I quote further from the transcript:

HIS HONOUR: Mr Vink, I'm yet to understand what the accusations are you want an investigation about. You said to me that Mr Tuckwell was appointed for an improper purpose, and I took it, and perhaps I'm wrong, is that Mr Tuckwell was a party to that impropriety. Are you saying - am I mistaken in your allegation?

MR VINK: The - the improper purpose was the - the hiding of the - of the trading whilst insolvent by Mr Van Oosterom, Mr Moran and a Mr Di Carlo.

HIS HONOUR: All right, let's just keep calm about it. My question is a simple question. Are you saying that there's prima facie evidence that Mr Tuckwell was a party to that impropriety, that he was privy to what they were up to?

MR VINK: I - I believe that - that - that if - that if I am permitted to cross-examine Mr Tuckwell on the evidence that I have provided in my affidavit, then - then - then I believe that a prima facie case may be made out that - that - that even if that wasn't true - that - - -

HIS HONOUR: Can I just try - sorry, sorry, sorry Mr Vink. A prima facie case may be made out that Mr Tuckwell improperly accepted the position of administrator to assist Mr Moran, the accountant, and two directors to avoid being sued for trading whilst insolvent.

Let me see, I'll read it back to you and see if I've got it right, "If I am permitted to cross-examine Mr Tuckwell, I believe a prima facie case may be made out that Mr Tuckwell improperly accepted the position of administrator to assist Mr Moran, the accountant, and two other directors to avoid being sued for trading whilst insolvent". Now have I got the point exactly?

MR VINK: Yes, sir, that is - that is one of - - -[51]

85 As I have indicated in my judgment, Mr Vink was not entitled to make such an allegation. Mr Vink was not entitled to make it without reasonable grounds for doing so. Mr Vink said that Mr Moran had known Mr Tuckwell for some time. Mr Tuckwell sued Mr Van Oosterom and he eventually went bankrupt. Mr Tuckwell did not sue Mr Moran and Mr Di Carlo. Mr Vink did not have any grounds for making the allegation.

86 I note that Mr Vink did not persist with this allegation on the hearing of his originating motion on 5 and 6 May. Mr Tuckwell, however, was not to know that.

87 On 17 June 2008, Mr Marantelli said that he was "a bit reluctant to accuse Mr Vink of accusing Mr Tuckwell of fraud", but Mr Marantelli asserted Mr Vink made very serious allegations of dishonesty.

88 Subsequently, Mr Vink filed his written submissions.[52] Mr Meyer, who appeared for Mr Tuckwell on 26 June 2008, said after reading them he was not so reluctant as Mr Marantelli and says that Mr Vink has admitted making allegations of dishonesty against Mr Tuckwell in these proceedings and is continuing to make allegations of dishonesty despite me finding that none of those allegations have any merit to them.[53]

89 Mr Meyer referred to the following where Mr Vink said as follows:

H. It was alleged that it was improper for Mr Vink to allege improper collusion between Di Carlo, Tuckwell, Van Oosterom and Moran. (239:14)

I have made no improper allegations against Mr Di Carlo. It is not said where I made allegations of collusion against Mr Di Carlo.

On the other hand, the evidence shows that Mr Tuckwell, Mr Van Oosterom and Mr Moran have assisted each other in the Family Court (on behalf of Mr Van Oosterom and Mr Tuckwell), in VCAT (on behalf of Mr Moran) and in the Supreme Court (on behalf of Mr Tuckwell).

I submit that I have made no improper statements. Although I don't recall saying so, I may have inferred that there was collusion in the sense that agreements were reached without Ms Linton's knowledge as she has stated in her affidavits in the past and also here. I take the normal definition of collusion rather than any legal definition of which I am not aware. I am not alleging that the collusion was improper but that there is evidence of collusion.

The appointment of Mr Tuckwell by Mr Van Oosterom and Mr Moran was also done without Ms Linton's knowledge. In that sense, it was collusion. That is of no consequence to Ms Linton if she had thought herself to be out of the business. However, if Mr Tuckwell thought her to be in the business, he may have thought that collusion to be improper. If Ms Linton was thought to be a principal, I submit that Mr Tuckwell should be asked why was she not invited to meetings between Van Oosterom and Mr Tuckwell in April and May of 2002. That is a question for Mr Tuckwell to answer. Mr Tuckwell has admitted that Ms Linton had not been invited to these meetings. All of these meetings were manifestly prejudicial to Ms Linton's financial wellbeing.

The thrust of my argument was that the appointment of Mr Tuckwell did not comply with the Act and I argued from the Act. I submit that it was entirely proper to question Mr Tuckwell's actions with reference to the Act.

G. It is alleged that Mr Vink made allegations for which he knew there was insufficient evidence. In particular, there was no evidence of dishonesty on the part of Mr Tuckwell in his administration and liquidation of CIC. (240:6)

This allegation may have been withdrawn but in case it wasn't I will respond as follows.

Although the judgment was referred to, no reference was made to the transcript by Mr Marantelli as to what abuse I am guilty of. If I made comments that were in any way disrespectful, I did so unintentionally and I unreservedly retract such comments.

There were a number of irregularities that I submitted that may have been inferred to be prima facie evidence of dishonesty. I was not relying on Mr Tuckwell to provide the evidence as Mr Marantelli alleges. I was merely expecting to examine Mr Tuckwell on evidence that I had already placed before the Court in the normal way.

It is not stated by Mr Marantelli how or in what context I alleged dishonesty on the part of Mr Tuckwell. However, there is prima facie evidence of dishonesty as follows:

90 After carefully reading the points raised by Mr Vink, I think at their highest he is suggesting that an inquiry may have found dishonesty on the part of Mr Tuckwell.

91 In substance, Mr Vink was alleging that if an inquiry was held, the inquiry might find that Mr Tuckwell had acted dishonestly in accepting the position of administrator and in his conduct of the liquidation.

92 For the reasons given in my two judgments, I find that Mr Vink had no reasonable grounds for alleging that an inquiry might find Mr Tuckwell was dishonest or had acted dishonestly.

93 The authorities discussed below establish that merely alleging fraud and failing to make out the allegation is not by itself sufficient to constitute special circumstances entitling a court from departing from the general rule that costs are taxed on a party/party basis. On the other hand, if the allegation of fraud is made where it is irrelevant to the proceedings or is made knowing it to be false, then the court may well be justified in ordering costs on an indemnity basis.

94 In my opinion, making allegations of fraud without reasonable grounds is tantamount to making the allegations with little or no regard as to whether the allegations are true or false. The law typically prescribes the same culpability to reckless indifference as to actual knowledge.

95 I start with Christie v Christie[54] where the court in Chancery Appeals awarded the successful appellants the equivalent of indemnity costs where the respondent had introduced into, what was effectively, a passing off claim, irrelevant and scandalous allegations that the appellants had, on some prior and irrelevant occasion, been charged with fraud. Lord Selborne LC said:

The court has a duty to discharge toward the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matters. The principle appears to be that the offending party must pay to the other party the whole expense to which they have been put by his introduction of libellous matters.[55]

96 In Degmam Pty Ltd (in liq) v Wright (No 2),[56] indemnity costs were ordered against the unsuccessful defendant where allegations of fact she made as the basis of her defences and causes of action were false and deliberately concocted by her in an attempt to deny the plaintiff its rights. Holland J said:

The next question therefore is whether there is a case made out for a special order. I think that there is. I do not wish to repeat what I had to say, in my reasons for judgment, about the merits of the defences and causes of action put forward by the defendant or the manner in which she conducted herself in the course of the litigation and in the witness box. It is sufficient to say that the allegations of fact she made as the basis of her defences and causes of actions were in my opinion false and deliberately concocted by her in an attempt to deny the plaintiff its rights and to shift all blame and legal liability to the plaintiff from herself to the second cross-defendant. As well as that, she so conducted herself in the proceedings, by multiplying allegation upon allegation, and by prevaricating in the witness box, as grossly to prolong the litigation, thereby to cause the other parties to incur liability for solicitor and client costs far beyond what they could reasonably have expected to incur in litigation of genuine issues. The discretion which the court has as to costs is, as has been said many times, to be exercised judicially, that is to say upon proper grounds and the court will not lightly depart from standard practice in the awarding of costs. It is suggested that the absence of precedents for orders of the present is a reason for hesitating to make such orders.

It is, in my experience, quite common to find, in cases where an application is made to the court for committal for contempt such orders being made in an endeavour to ensure that the party that has been enforced to take that extra step, in order to obtain his rights, after they have been adjudicated by the court, may be relieved entirely of the expense of doing so and, although there is nothing in the rules about it, it is in my experience common to find an order designed to give a party a complete indemnity against such costs, usually by an order that the contemnor pay the other party's costs on a solicitor and client or solicitor and own client basis, but the object is to ensure an indemnity.[57]

97 In Wentworth v Rogers (No 5)[58] the New South Wales Court of Appeal cited with approval Holland J's decision on costs in Degmam Pty Ltd (in liq) v Wright (No 2).[59] Kirby P said as follows:

In that case Holland J held that, where an unsuccessful party had prolonged a trial by deliberately false allegations of fact, an appropriate order for costs might be made on an indemnity basis, save for costs unreasonably incurred by the successful party. That is the order which the respondent sought here.

Although, as has now been found, this case was without merit, I am not convinced that it was brought for the purpose of prolonging the litigation. On the contrary, I am sure that the appellant, misguidedly, considered that it would be a speedy way to conclude the litigation. Furthermore, I do not consider that the appellant has been deliberately false with the Court nor that she has made allegations which she believes or knows to be false. It is true that some of the allegations made are scandalous, resting as they do on a most flimsy and unconvincing basis. All of the other allegations were not, in law, sufficient to give rise to the cause of action which the appellant sought to advance in her statement of claim. But consideration must be given to the fact that in Degmam the party criticised was legally represented whereas here the appellant has done her best, unaided, to find her way through a relatively unfamiliar area of the law, not without its complications. In all of the circumstances, I consider that it will be sufficient to make the normal costs order.[60]

98 In Re Talk Finance and Insurance Services Pty Ltd,[61] Moynihan J ordered indemnity costs against both parties where they alleged certain signatures were not genuine where the judge found that they must be taken to have known that they were doing so falsely.[62]

99 A similar decision had been reached in Forester v Read[63] where an unsuccessful plaintiff had introduced irrelevant claims of fraud in his claim. He was ordered to pay the costs as between solicitor and client.

100 In Hobartville Stud v Union Insurance Co,[64] Giles J declined to award indemnity costs to a successful plaintiff. After referring to Degmam Pty Ltd (in liq) v Wright (No 2)[65] and Wentworth v Rogers (No 5),[66] he observed the defendant had not propounded deliberately false or concocted defences nor had the defendant's conduct of the proceedings deliberately prolonged them.[67]

101 In Re Australian Transport Insurance Pty Ltd,[68] Woodward J dealt with an application by successful applicants for solicitor and client basis cases. He said:

That discretion is 'absolute and unfettered', but must be exercised judicially (Trade Practices Commission v Nicholas Enterprises).[69] Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way'.[70] It is sometimes said that such costs can be awarded where charges of fraud have been made and not sustained; but, in all the cases I have considered, there has been some further factor which has influenced the exercise of the court's discretion - for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes;[71] Forester v Read;[72] Christie v Christie;[73] Degmam Pty Ltd (in liq) v Wight (No 2).[74]

102 This judgment was cited with approval by Gummow J in Thors v Weekes[75] where he said:

The general power of the court to award costs under s 43 of the Federal Court of Australia Act permits the court in an appropriate case to order that costs be paid on a 'solicitor and client' basis: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd.[76] This power will not, as that case illustrates, be exercised in every case where fraud is alleged and not proved; usually some further factor must be present such as dishonesty or the irrelevance of the allegations to the issues between the parties. No doubt in an appropriate case costs may even be awarded on an indemnity basis: Degmam Pty Ltd (in liq) v Wright (No 2).[77]

103 There are special considerations applying to indemnity cost orders against litigants in person, as the following authorities disclose.

104 In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd,[78] Hodgson CJ in Eq observed:

... I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

105 In Bhagat v Global Custodians Ltd,[79] the Full Court of the Federal Court (constituted by O'Loughlin, Whitlam and Marshall JJ) observed Hodgson CJ in Eq did not say that litigants in person always escape the consequence of indemnity costs and declined to interfere with the decision of the trial judge to order indemnity costs against the unrepresented litigant. These judgments were cited with approval by Kenny J in Ogawa v The University of Melbourne (No.2).[80]

106 In Spalla v St George Motor Finance Ltd (No.8),[81] Kenny J said:

From time to time the courts overcome their reluctance to order indemnity costs against a self-represented litigant: see, for example, Bhagat v Global Custodians[82] and Ogawa v The University of Melbourne (No.2).[83]

107 Further in Salfinger v Niugini Mining (Australia) Pty Ltd (No.4),[84] Heerey J said as follows:

In Spalla v St George Motor Finance Ltd (No.8),[85] Kenny J[86] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians[87] and Ogawa v The University of Melbourne (No.2).[88] Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion[89] and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds: see Bhagat v Royal and Sun Alliance Life Assurance Australia.[90] In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.[91]

108 In this case, I take into account Mr Vink's lack of knowledge of the law, an unfamiliarity with court practices and a lack of objectivity as an unrepresented litigant. On the other hand, Mr Vink was not seeking redress for himself, nor did he have any other interest in seeking the orders that he did. I accept that there has been a reluctance on the part of courts to order indemnity costs against self-represented litigants, however in the circumstances of this case I feel that Mr Vink should not be excused from such an order if it is otherwise warranted.

109 After considering all the matters submitted to me, I believe that Mr Tuckwell has established special circumstances that entitle me to depart from the usual order as to costs and to award costs on an indemnity basis. In my discretion I believe it is just, fair and reasonable that Mr Tuckwell be indemnified for his costs. I have taken into account all the matters referred to above including the fact that Mr Vink's complaints against Mr Tuckwell were without substance, his continuing the proceedings after Dodds-Streeton J had warned him of the weakness of his case and the material he relied on and after I found that his proceeding would very likely fail, that he suggested that an inquiry may find dishonesty on the part of Mr Tuckwell where there were no reasonable grounds for suggesting dishonesty, the delays through his reliance on inadequate evidence and his having no interest in the liquidation whatsoever.

110 I believe it is relevant to repeat what I said at the conclusion of my decision to reject Mr Vink's application.

In my view, the legislature should consider amending s 536 of the Act to limit the persons who may complain to the court to those who have an interest in the liquidation.[92] Mr Vink conducted these proceedings personally as he is entitled to as a litigant in person. This has led to a great injustice against Mr Tuckwell. The liquidator was exposed to serious allegations of misconduct which I have found do not warrant inquiry. He was wrongly accused of dishonesty. He was accused of accepting the position of administrator to protect Mr Van Oosterom and Mr Di Carlo from proceedings in the liquidation. There was no evidence even to suggest this. The allegation was not pursued.

There seems little public utility in allowing a person with no interest in the liquidation to make serious and unfounded allegations against a liquidator. In my view, it is unjust that a professional man or woman can be accused of misconduct under the protection of legal privilege where the complainant is not subject to the ethical rules that lawyers are subject to. A lawyer is not permitted to make allegations of fraud or dishonesty unless he or she is satisfied reasonable grounds exist to make such an allegation. Mr Vink was not bound by such rules of professional conduct. In my opinion, this was unfair to Mr Tuckwell and should not be permitted. If the complainant had an interest in the liquidation the risk of this happening would be significantly reduced.

In any event, I see little public benefit in permitting a person who has no interest in the liquidation making complaints about it. One need not go past this case to demonstrate the point. I would have thought that ASIC is ideally placed to vet complaints made by persons not interested in the liquidation. If ASIC considers that matters complained of have merit it has more than enough powers to deal with them.[93]

111 In my discretion I therefore order that Mr Tuckwell's costs of and incidental to Mr Vink's application, including any reserved costs and the costs of hearing this judgment, be taxed on an indemnity basis and that when taxed be paid by Mr Vink, save for the costs of Mr Tuckwell's interlocutory process of 31 July 2007, where I order that Mr Vink pay 60 per cent of Mr Tuckwell's costs including any reserved costs, and that such costs be taxed on an indemnity basis and when taxed be paid by Mr Vink.

DODDS-STREETON J: By originating process dated 18 June 2007, the plaintiff, Mr Martin Vink, applies for an order that an inquiry be conducted into the liquidation of Corporate Interior Constructions Pty Ltd (in liquidation) ("the company"), pursuant to s.536 of the Corporations Act 2001 ("the Act"). The application is supported by the affidavit of Mr Vink, sworn 18 June 2007. There is also before the Court an interlocutory process dated 31 July 2007 filed by the defendant, the liquidator of the company, Mr Colin Tuckwell, seeking that Mr Vink's application be dismissed, or alternatively, stayed until after judgment is given in proceeding 8355 of 2002. That is a proceeding in which the liquidator, in this capacity as such, seeks to recover a sum of money from one Ani Linton.

I have already outlined the Court's concerns about a number of matters. In particular, I note that Mr Vink has confirmed that he is not legally qualified. His affidavit contains a considerable amount of inadmissible material., In fact, only a small proportion of the affidavit is admissible. I have also outlined the Court's concerns about the status of Mr Vink, who is not an officer, shareholder or creditor of the company and has no direct or indirect personal interest. He is not in any way affected by the matters, save for the fact that, as Mr Vink has informed the Court, he has for some years been investigating the company, originally in his capacity as a person assisting Ms Linton, and that he has genuine concerns and has made personal sacrifices to investigate these matters.

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