CTHFCA

Reaper v Luxton

[2015] FCA 1296

Federal Court of Australia|2015-11-20|Before: Mortimer J

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Court

Federal Court of Australia

Decision date

2015-11-20

Before

Mortimer J

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Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

REASONS FOR JUDGMENT 1 Before the Court are three applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Each application has been filed by the applicant Mr Reaper seeking review of the decision of the respondent, a Registrar of this Court, to refuse for filing three applications and supporting affidavits sought to be filed by Mr Reaper in June and July 2015. Mr Reaper was content for the three applications to be heard and determined together. 2 Broadly, each of those applications which was rejected for filing sought to bring a prosecution against an individual for offences against the Bankruptcy Act 1966 (Cth) and the Criminal Code (Cth), referable to that individual's role in the bankruptcy proceedings against the applicant, and/or in the unsuccessful annulment application subsequently brought by the applicant. The Registrar refused to accept each of those applications for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) on the basis he was satisfied the applications were an abuse of process. Mr Reaper seeks orders that each of his rejected applications and their supporting affidavits be accepted for filing (if need be with a completed summons and information so as to meet the requirements for starting a prosecution under r 34.11). 3 For the reasons set out below, each of the applications must be dismissed.

[2]

THE APPLICATIONS AND THEIR CONTEXT 4 Each of the applications sought to be filed by Mr Reaper seeks to commence prosecutions under the Bankruptcy Act and the Criminal Code against individuals who had given evidence in relation to credit card debts with Westpac Banking Corporation which were central to the applicant's bankruptcy proceedings, or were individuals otherwise involved in the applicant's bankruptcy proceedings. Each application was filed separately, on different dates. Each application was accompanied by a supporting affidavit by Mr Reaper, as well as other documentation, most of which came from the bankruptcy proceedings or the annulment application. 5 Mr Reaper sought to invoke the process set out in Div 34.2 of the Federal Court Rules. The three applications rejected by the Registrar comprise: (1) an application against Mr Kim Ellis of Baycorp Collections PDL (Australia) Pty Ltd. This application is the subject of judicial review proceeding VID 483 of 2015. Mr Reaper's credit card debt with Westpac Banking Corporation had been assigned to Baycorp Collections PDL (Australia) Pty Ltd in 2009 and in 2013 Mr Ellis had completed and lodged with the trustee in bankruptcy a proof of debt relating to that debt. The application sought to have Mr Ellis "committed for trial on indictment" by reference to several provisions of the Criminal Code and the Bankruptcy Act. Broadly the criminal conduct alleged against Mr Ellis was that he omitted certain information from the proof of debt in Mr Reaper's bankruptcy proceeding, and that he provided "false and misleading" information in the bankruptcy proceeding. On 28 August 2015 Mr Reaper sought to file further documents in this application, including a new affidavit from him seeking to rely on an affidavit by Mr Jim Stephenson from Westpac, to which I refer below. Previously Mr Reaper had relied on Mr Stephenson's affidavit only in relation to the proceedings he sought to bring against Mr Hanford and Mr Macey. I assume that since the attempt to file these further documents on 28 August 2015 post-dated the Registrar's decision, these documents were also not accepted. However, I accept that Mr Reaper would wish to rely on the Stephenson affidavit against Mr Ellis as well. (2) an application against Mr Luke Hanford, who holds a team leader position in the Unsecured Recoveries section within Westpac. This application is the subject of judicial review proceeding VID 484 of 2015. In early 2014, Mr Hanford had made an affidavit in opposition to the applicant's bankruptcy annulment application before Pagone J. The criminal conduct alleged against Mr Hanford relies on broadly the same provisions of the Criminal Code and the Bankruptcy Act and is alleged to constitute the making of false statements, the omission of critical information from his affidavit, and the provision of false and misleading information. (3) an application against Mr Darryl Macey, who was an Operations Manager at Baycorp Collections PDL (Australia) Pty Ltd. This application is the subject of judicial review proceeding VID 485 of 2015. In May 2012, Mr Macey provided an affidavit in the contested proceedings before the Magistrates' Court over the credit card debts which would become the subject of the bankruptcy proceedings. Mr Macey's affidavit was also filed in opposition to the applicant's bankruptcy annulment application before Pagone J, and in addition Mr Macey made two further affidavits in October 2013 and January 2014 in the proceeding before Pagone J. The criminal conduct alleged against Mr Macey relies on provisions of the Criminal Code and the Bankruptcy Act and is alleged to constitute the making of false statements, the omission of critical information from his affidavits, and the provision of false and misleading information. 6 In the Macey application, Mr Reaper seeks a large number of declarations, some of which concern the alleged criminal conduct of Mr Macey, but many of which seek to contradict the evidence and findings made in Mr Reaper's bankruptcy proceedings. For example, Mr Reaper sought: A declaration that exhibit DM-02 annexed to the affidavit of Darryl Macey sworn 8 May 2012 is a Global Rewards Westpac Visa Certificate for Global Rewards membership 93496461 and is not an application for a credit card or credit card account. … A declaration that exhibit DM1 annexed to the affidavit of Darryl Macey sworn 15 October 2013 is not an application for a credit card or credit card account. … A declaration that Westpac Banking Corporation did not assign to Baycorp Collections PDL (Australia) Pty Ltd any legal or beneficial right, title or interest in or to Global Rewards membership 93496461. 7 In each case, the information and summons required by r 34.11 were blank and contained, as the Registrar noted in his decision, no particulars of any charge. At the hearing of these applications, copies of each summons and information lodged for filing by Mr Reaper were marked as exhibits in each judicial review proceeding. They are not filled out at all. In his affidavits in each judicial review application, Mr Reaper explained this by stating that his understanding is that prosecution for offences under the Bankruptcy Act are commenced by way of application and affidavit (see, for example, his evidence at [10] of his affidavit filed in the Hanford application. Whether or not that is the case, in any event, r 34.11 would apply to those aspects of Mr Reaper's proposed prosecutions under the Criminal Code, and at least to that extent, if not any further, the Registrar was correct to identify a lack of requisite information in the summons and information. At the hearing Mr Reaper offered some further clarification of why blank documents had been filed. I return to this matter below. 8 Mr Reaper has made a series of applications to this Court in respect of the sequestration order made against him in 2013. As part of the proceedings seeking annulment of the sequestration order (Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13), Mr Reaper issued proceedings for contempt against Mr Jim Stephenson, an employee of the Westpac Banking Corporation, the bank which issued the credit cards which were at the centre of the debt dispute that led to Mr Reaper's bankruptcy. The contempt application was dismissed by Pagone J: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No 3) [2014] FCA 729. 9 An application for an extension of time in which to file an appeal and leave to appeal from the decision of Pagone J about Mr Reaper's annulment application was dismissed by Tracey J: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426. In that decision, Tracey J carefully considers each of the grounds of complaint made by Mr Reaper about Pagone J's decision, but finds none of them enjoyed sufficient prospects of success to warrant the grant of an extension of time in which to appeal. 10 In December 2014, Mr Reaper sought to file a further application together with supporting affidavit material. A Registrar refused to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules on the basis he was satisfied that the documents comprised an abuse of process. Mr Reaper sought judicial review of the Registrar's decision and the judicial review application was heard and determined by Tracey J. Tracey J described the application in the following terms (Reaper v Luxton [2015] FCA 430 at [12]-[13]): The application seeks a series of declarations and orders relating to the evidence heard by Pagone J and traverses findings made by him. It seeks the removal of various documents from the Court file and an order that Mr Reaper's bankruptcy be annulled. The affidavit contains a series of challenges to the truthfulness and adequacy of affidavits which were relied on by the respondents in the proceeding before Pagone J. It is not clear from Mr Reaper's affidavit whether he challenged some or all of this evidence at trial or, if he did not, why he failed to do so. 11 Tracey J also set out (at [1]-[3]) some relevant background to Mr Reaper's proceedings in this Court, which I respectfully adopt: On 16 September 2013 Mr Reaper applied to the Court for an order under s 153B of the Bankruptcy Act 1966 (Cth) ("the Act") annulling a sequestration order which had been made by a Registrar of the then Federal Magistrates Court on 7 March 2013. After some adjournments the annulment application was fixed for hearing by Pagone J on 20 January 2014. On 20 January 2014 Mr Reaper complained about the late filing and serving of certain documents by the respondents. In order to ensure that Mr Reaper had the opportunity of considering and responding to this material the hearing was adjourned until 22 January 2014. At the conclusion of argument on that day his Honour reserved judgment. On 28 January 2014 his Honour ordered that the application be dismissed and published his reasons for so ordering: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13. An application for an extension of time within which to file an appeal and for leave to appeal from his Honour's decision was later dismissed: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426. 12 As Tracey J noted at [6], a significant issue in the trial before Pagone J was whether certain credit cards issued by Westpac Banking Corporation were held and operated personally by Mr Reaper (as alleged by his trustee in bankruptcy) or by a company or companies through which Mr Reaper had conducted business (as he claimed). Having considered the evidence, including bank records, Pagone J determined that the cards were operated by Mr Reaper personally and that the debts which had been accumulated on them were Mr Reaper's personal debts. 13 Central to the evidence in the Magistrates' Court debt proceeding, the bankruptcy proceedings and the annulment application were the credit card accounts ending in "66" and "93", including whether they were different accounts, or whether one replaced the other, as well as a dispute about whether the account holder was Mr Reaper personally, or a company (or, perhaps, companies) of which he was a director. In Reaper [2014] FCA 13 Pagone J found (at [6]): The evidence of Mr Reaper and Ms Fisher, however, is inconsistent with the documentary evidence of Westpac and, significantly, does not fit within the time frame established by the documentary evidence. That is not to say that there were no discussions with Westpac for accounts on behalf of the company but that the evidence given by Mr Reaper and Ms Fisher of their recollection of events which occurred nearly 12 years before they gave their evidence could not be about the relevant account, namely account CC93, because it had been created before the date (2002) they recalled and in circumstances that reveal that their recollection is mistaken. The fact was that Mr Reaper had a pre-existing credit card numbered 4564 7170 0164 1066 (referred to in the material as account "CC66") which was replaced in 2001, not in 2002, with account CC93. The statements of those credit cards showed that the latter was a continuation of the former. 14 Accordingly, Pagone J found (at [8]) that Mr Reaper had not established that the debt in the Magistrates' Court judgment was not due by him and that the sequestration order ought not to have been made. His Honour noted, as I do, that Mr Reaper was represented by solicitors and counsel in the Magistrates' Court and the credit card debt was contested. 15 Having made the finding his Honour had about no sufficient cause to annul the sequestration order, Pagone J then also concluded (at [10]) that Mr Reaper had not established he was solvent, and therefore his solvency was not an available basis for annulment of the sequestration order either. 16 Tracey J, in considering Mr Reaper's application for an extension of time in which to appeal, found no arguable error by Pagone J in the making of all these findings. 17 Mr Reaper has also made two more recent attempts to bring private prosecutions against individuals who had given evidence in one or more parts of his bankruptcy proceedings. Those attempts failed because the documents were not accepted for filing on the same basis that the documents which were the subject of these three applications were not accepted. I refer to those two more recent attempts at [28] to [32] below. 18 It has been necessary to set out the history of these decisions in some detail, so as to understand the Registrar's decision in each of the three applications, to which I now turn.

The respondent's earlier letters dated 28 May 2015 and 23 June 2015 do not relate to the current application 27 Although it is correct, as Mr Reaper points out, that the earlier application with which Pagone J dealt was a contempt proceeding brought under Pt 42, there is no legal error in the Registrar's references to the content of his previous correspondence to Mr Reaper, nor in his observation that the current correspondence contains similar comments. 28 The respondent's letter of 28 May 2015 relates to applications and related documents sought to be filed against Mr Hanford and Mr Macey which were rejected for filing. In rejecting those documents, the respondent stated: I refer to the following documents (Documents) which you seek to file in proceeding VID985/2013: A. application addressed to Luke Hanford; B. statement of charge addressed to Mr Hanford; C. notice to produce addressed to Mr Hanford; D. notice of intention to adduce coincidence evidence addressed to Mr Hanford; E. copy affidavit of Mr Hanford sworn 15 January 2014; F. application addressed to Darryl Macey; G. statement of charge addressed to Mr Macey; H. notice to produce addressed to Mr Macey; I. notice of intention to adduce coincidence evidence addressed to Mr Macey; J. copy affidavit of Mr Macey sworn 8 May 2012; K. copy affidavit of Mr Macey sworn 15 October 2013; L. copy affidavit of Mr Macey sworn 16 January 2014; M. copy affidavit of James Ronald Stephenson sworn 26 June 2014; Having considered each of the Documents, I am satisfied that they comprise an abuse of process. My reasons for coming to this view are as follows: 1. A range of relief is sought in the two applications (summary convictions, indictments, declarations, removal of documents from the Court file, compensation and costs). However, when the Documents are read closely it is plain that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy (see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13). As was the case with previous lodgements, the focus of the Documents is on the relationship between the credit cards known as "CC66" and "CC93". 2. As is noted above, you seek to file the Documents in proceeding VID985/2013. That proceeding has concluded. Justice Pagone made orders on 28 January 2014 dismissing your application for an annulment of your bankruptcy, and on 3 July 2014 dismissing your prosecution of Mr Stephenson. Furthermore, pursuant to the Documents you seek orders against two persons (Mr Hanford and Mr Macey) who are not, and have never been, parties to that proceeding. 3. You seek summary convictions pursuant to s 263A of the Bankruptcy Act 1966. That section provides that such convictions are punishable "by a fine not exceeding $200, or imprisonment not exceeding 6 months, or both". However, s 15B(1) of the Crimes Act 1914 provides that: Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows: (a) if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction--at any time; (b) in any other case--at any time within one year after the commission of the offence. Given that the affidavit of Mr Hanford was sworn on 15 January 2014, the alleged offences occurred more than one year ago. Accordingly, by operation of s 15B(1) of the Crimes Act 1914, such summary prosecutions cannot be commenced against Mr Hanford. 4. You seek orders that Mr Hanford be committed for trial on indictment pursuant to s 273(5). However, in none of the Documents do you identify any law the contravention of which would support such an indictment. Similarly, you seek orders that Mr Macey be committed for trial on indictment "for breaching the Applicant's privacy". Again, in none of the Documents do you identify any law the contravention of which would support such an indictment. As I am satisfied that the Documents comprise an abuse of process, I refuse to accept them for filing pursuant to r 2.26 of the Federal Court Rules. 29 The respondent's letter of 23 June 2015 relates to the rejection for filing of an application and statement of charge for contempt addressed to Mr Hanford and related documents. In that letter, the respondent states: I refer to the most recent tranche of documents (Documents) which you have sought to file in proceeding VID985/2013: A. application addressed to Luke Hanford; B. statement of charge addressed to Mr Hanford; C. notice to produce addressed to Mr Hanford; D. notice of intention to adduce coincidence evidence addressed to Mr Hanford; E. copy affidavit of Mr Hanford sworn 15 January 2014; F. copy affidavit of Mr Macey sworn 16 January 2014; G. copy affidavit of James Ronald Stephenson sworn 26 June 2014; I have reviewed and considered each of the Documents. I note that many of them are the same as, or similar to, documents which you earlier sought to file and which were the subject of my letter dated 28 May 2015. For that reason, some of the comments below are similar to comments contained in that letter. Having considered each of the Documents, I am satisfied that they comprise an abuse of process. My reasons for coming to this view are as follows: 1. A range of relief is sought in the application (commitment for trial on indictment, removal of a document from the Court file, compensation and costs). However, when the Documents are read closely it is plain that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy (see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13). As was the case with previous lodgements, the focus of the Documents is on the relationship between the credit cards known as "CC66" and "CC93". 2. At paragraph [8] of the statement of charge you have introduced new credit card designations, being "GRC93" (allegedly a Global Rewards Westpac Visa Gold Card) and "AVC93" (allegedly a Westpac Altitude Visa Card). Both cards bear the same number. These designations appear to have been introduced to promote an argument that they are separate accounts, and that only the debt comprised in AVC93 was in fact assigned to Baycorp Collections PDL (Australia) Pty Ltd. This new allegation does not derogate from my view that you are seeking to relitigate the matters the subject of Justice Pagone's decision refusing your application for an annulment of your bankruptcy. 3. As previously, you seek to file the Documents in proceeding VID985/2013. That proceeding has concluded. Justice Pagone made orders on 28 January 2014 dismissing your application for an annulment of your bankruptcy, and on 3 July 2014 dismissing your prosecution of Mr Stephenson. Furthermore, pursuant to the Documents you seek orders against a person (Mr Hanford) who is not, and has never been, a party to that proceeding. As I am satisfied that the Documents comprise an abuse of process, I refuse to accept them for filing pursuant to r 2.26 of the Federal Court Rules. 30 It is clear that on these two occasions, Mr Reaper had attempted, by other means, to impugn again the factual findings made by Pagone J about the two credit cards. On these occasions he sought to do so by means which included (as against both Mr Hanford and Mr Macey) not only charges of contempt, but private prosecution for criminal offences, just as he has tried to do again in the applications against Mr Hanford and Mr Macey which are the subject of Registrar Luxton's latest refusal under r 2.26. 31 It was reasonable, and entirely explicable, for Registrar Luxton to refer to these two letters to Mr Reaper in his latest decisions. The repeated applications by Mr Reaper all concern the same underlying subject matter, although he seeks to attack the findings made by Pagone J through different means each time, concentrating on seeking to continue to contest the evidence given in the bankruptcy proceedings. 32 On each occasion, Registrar Luxton has given reasons for refusing to accept the documents for filing which are particular to the contents of the documents sought to be filed. Contrary to Mr Reaper's submissions to me, Registrar Luxton has not simply sought to "copy and paste" his findings from one letter to another. If there is repetition, it is because the allegations and purposes of the applications which Mr Reaper seeks to file are repetitive.

Reaper v Luxton

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