Reaper v Luxton

REASONS FOR JUDGMENT 1 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. 2 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. 3 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. 4 On 17 December 2014 Mr Reaper sought to file an application and a supporting affidavit in the Victoria District Registry of the Court. 5 By letter dated 18 February 2015 a Deputy District Registrar of the Court refused to accept these documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011 (Cth) ("the Rules"). He did so on the ground that he was satisfied that the documents "comprise[d] an abuse of process." By letter dated 23 February 2015 Mr Reaper sought again to persuade the Registrar to accept the documents for filing. The Registrar responded, on 4 March 2015, and confirmed his decision of 18 February 2015 and the reasons therefor. 6 The Registrar noted that the application sought various orders and declarations, including the annulment of Mr Reaper's bankruptcy, which the Registrar considered, when read with the supporting affidavit, constituted "an attempt to relitigate the matters the subject of Justice Pagone's decision refusing [the] application for an annulment of [Mr Reaper's] bankruptcy …" The Registrar observed that the material lodged for filing focussed on the same matters which had been dealt with in Pagone J's reasons and, "most significantly, the relationship between the credit cards known as 'CC66' and 'CC93', and the question of whether or not [the] bankruptcy should be annulled." I interpolate at this point that a significant issue at trial was whether these credit cards 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. 7 On 17 March 2015 Mr Reaper filed an originating application for judicial review of the Registrar's decision. The application was supported by an affidavit which was affirmed on 16 March 2015. The application was served on the Registrar who filed a submitting appearance. 8 The application was made on five grounds. They were that: "1. The application and supporting documents were lodged in a format and at the direction of Justice Pergone (sic). 2. The decision to refuse to accept the application and supporting documents undermines Justice Pergone's (sic) direction. 3. The matters the subject of the application and supporting documents have not been litigated. 4. The decision to refuse to accept the application and supporting documents contradicts: a. Registrar Priddle's verification of Justice Pergone's (sic) direction. b. Registrar Priddle's approval of matter filed 2 May 2014 being after the date of judgement (sic) 28 January 2014. 5. The Applicant would be denied procedural fairness if the decision to refuse the application and supporting documents is upheld." 9 The reference, in Ground 4, to the "verification" of Pagone J's direction and the Registrar's "approval of matter", which had been filed on 2 May 2014 appear to refer to the acceptance of documents filed by Mr Reaper in which he sought to prosecute contempt proceedings against an officer of the Westpac Banking Corporation who, he claimed, had failed to produce documents pursuant to a subpoena issued in the proceeding. This contempt charge was dismissed by Pagone J on 3 July 2014: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No 3) [2014] FCA 729. 10 Having read the application and affidavit I was unable to understand what was meant by what Mr Reaper described as "Justice Pagone's direction." At the first directions hearing I asked Mr Reaper about this and he said that it was a direction, given by his Honour orally, in the course of argument, on 20 January 2014. 11 In an effort to clarify the position I directed that Mr Reaper file a further affidavit in which he set out the terms or, at least, the substance of the direction which he attributed to Pagone J. Mr Reaper filed such an affidavit on 17 April 2015. This affidavit also failed to identify the substance or terms of the alleged direction. At an adjourned hearing, held on 1 May 2015, I further questioned Mr Reaper about the direction. He referred me to paragraph C of an affidavit sworn by him on 16 December 2014 in which he had said that "at the request of the Court on 20 January 2014; the particulars are instead filed by application together with this my affidavit." As I understood him Mr Reaper considered that Pagone J had requested, at the hearing on 20 January 2014, that Mr Reaper file further particulars of his claims. It was this request that he termed a "direction". 12 The application and the affidavit which Mr Reaper sought to file do not contain any "particulars" of his claims in the sense that that word is normally used. 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. 13 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. 14 Rule 2.26 of the Rules provides that: "A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the documents; or (b) by reference to any documents already filed or submitted for filing with the document." 15 Mr Reaper's originating application for judicial review does not state whether the review is being sought pursuant to the Administrative Decisions (Judicial Review) Act 1976 (Cth) ("the ADJR Act") or s 39B of the Judiciary Act 1903 (Cth) or pursuant to some other provision. There is Full Court authority which would support the view that, in an appropriate case, a Registrar's decision, made pursuant to Rule 2.26, could be reviewed under the ADJR Act: see Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222 at 230-1. I am, therefore, prepared to assume, in Mr Reaper's favour, that he is entitled to seek judicial review of the Registrar's decision. 16 I also note that the Registrar's decision may be susceptible to review pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth). Such a review would be conducted on a de novo basis: see Druett v Segal [2011] FCA 1191 (Robertson J). 17 In order for Mr Reaper to succeed on any application for judicial or merits review of the Registrar's decision he must demonstrate some form of reviewable or appellable error on the part of the Registrar. 18 The Registrar refused to accept Mr Reaper's application and supporting affidavit on the ground that the documents constituted an abuse of process of the Court. Abuses of process may arise in many ways. One of them is that a person is seeking "to litigate anew a case which has already been disposed of by earlier proceedings": see Walton v Gardiner (1993) 177 CLR 378 at 393. 19 The grounds advanced by Mr Reaper do not assert that there was no reasonable basis for the Registrar being satisfied that Mr Reaper was impermissibly attempting to re-agitate issues which had been decided against him in January 2014. Nor did Mr Reaper complain that the exercise of the Registrar's discretion had, in some way, miscarried. 20 The first two grounds appear to be based on a misunderstanding, by Mr Reaper, of something which was said by Pagone J in the course of argument on 20 January 2014. It is understandable that, on that occasion, Pagone J would have encouraged Mr Reaper to explain the factual basis for his application for annulment of his bankruptcy and how he might have been prejudiced by the late filing of some evidence by the respondents. There is, however, no evidence before me to suggest that his Honour gave any formal direction for the filing of particulars and, more importantly, that he contemplated that any such particulars might be filed and relied on by Mr Reaper long after his Honour had heard and determined the annulment application. 21 The "matters" to which Mr Reaper refers in Ground 3 of his application are not identified. The application which Mr Reaper sought to file does constitute a fresh application for annulment of his bankruptcy. Furthermore he seeks to challenge some of the evidence which was before Pagone J and on which his Honour relied in determining to reject the annulment application. This material included evidence relating to the ownership of credit cards CC66 and CC93 and whether one of them had superseded the other. It is, therefore, not the case that these matters have not been litigated. 22 At trial Mr Reaper foreshadowed the bringing of contempt proceedings against the bank officer. Pagone J advised him that such an application had to be brought separately and in proper form. When Mr Reaper subsequently filed documents relating to the contempt allegations they were accepted for filing. There is nothing inconsistent between the acceptance of these documents and the refusal of those presently under consideration. For this reason Ground 4 lacks substance. 23 The remaining ground alleges that Mr Reaper would be denied procedural fairness if the Registrar's decision were to be upheld. Mr Reaper failed to explain how a refusal to allow him to file documents which, if accepted, would have permitted him to re-agitate matters on which he had already had an opportunity to be heard, could constitute a denial of procedural fairness. 24 Mr Reaper has failed to establish any ground on which the Registrar's decision should be disturbed. His application must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.