See v Granich & Associates [2008] FMCA 27

1. The Application gives rise to the following issues:

1. whether because of the concurrent nature of the jurisdiction of the Federal Court and this Court, and as a matter of comity, this Court is obliged to give effect to Federal Court orders declaring the Applicant a vexatious litigant; 2. whether any obligation which this Court is under to give effect to a Federal Court order declaring the Applicant a vexatious litigant might be avoided by the Applicant leading new evidence in relation to the annulment of the bankruptcy;

1. whether any new evidence, if established, alters the Applicant's position;

1. whether, if no new evidence is established, the Applicant ought to be declared a vexatious litigant by this Court, either arising from any obligation to give effect to the Federal Court orders declaring the Applicant a vexatious litigant, or in any event; 2. whether the matters now sought to be argued by the Applicant are res judicata.

1. There is a very lengthy curial history involving the Applicant and the Respondent. That history, in summary form, includes the following:[14]

1. 15 March 1989 - P Vivante & Co Pty Ltd sue the Applicant in the District Court of Western Australia[15] for the recovery of a debt of $39,034.17, allegedly owing under a deed of acknowledgment of debt; 2. 10 April 1989 - Vivante & Co obtain a default judgment in the District Court[16] against the Applicant, who had failed to enter an appearance;

1. 26 April 1989 - a writ of fi fa issues, and some of the Applicant's property is seized;

1. subsequently, the Applicant approaches a firm of chartered accountants for assistance, and Part X proceedings under the Bankruptcy Act are instituted, but later abandoned; 2. February 1992 - the Applicant is informed via a bailiff's calling card left at her front door that her house is to be sold to satisfy the District Court Default Judgment; 3. 10 April 1992 - the Applicant makes application to have the District Court Default Judgment set aside; 4. 29 May 1992 - the Applicant's application to set aside the District Court Default Judgment is dismissed because of her non-appearance, but a further application for the District Court Default Judgment to be set aside is made the same day; 5. 23 June 1992 - District Court Default Judgment set aside and Applicant granted leave to defend the Vivante & Co action by Registrar Kingsley in the District Court, conditional upon Applicant paying $39,000.00 into the District Court by

7 July 1992, failing which Vivante & Co would again be able to enter default judgment against Applicant; 6. July 1992 - the Applicant failed to comply with the condition imposed by Registrar Kingsley but sought to appeal against his order; 7. August 1992 - the Respondent is by this time acting on behalf of the Applicant; 8. 21 August 1992 - the District Court dismisses an application for leave to be granted to appeal out of time against Registrar Kingsley's order and the condition imposed in that order, finding that there was no sufficient basis for leave to be granted;

1. 10 June 1993 - the Full Court of the Supreme Court refuses an application by the Applicant for leave to appeal against the

1. the Applicant subsequently institutes proceedings against the Respondent alleging professional negligence in representing the Applicant in the conduct of the proceedings in the District Court in August 1992; 2. 7 May 1996 - in the District Court Commissioner K Martin QC hears the Applicant's action against the Respondent alleging professional negligence and dismisses the action, with costs, in an ex tempore judgment; 3. 17 May 1996 - the Applicant files an appeal to the Full Court of the Supreme Court of Western Australia against the decision of Commissioner Martin QC, to which the Respondent replies by filing a motion to strike out the appeal; 4. 12 August 1996 - costs of the dismissed action before Commissioner Martin QC on 7 May 1996 taxed in the sum of $29,790.45; 5. 16 April 1997 - the Full Court of the Supreme Court adjourns the strike out motion and directs the Applicant to apply to a Master of the Supreme Court for leave to amend the grounds of appeal; 6. 2 May 1997 - the Applicant's application to amend the notice of appeal is dismissed on the basis on that a minute of substituted notice of appeal is "wholly defective"; 7. 12 May 1997 - on an adjourned date the application to amend the grounds of appeal is dismissed due to the non-attendance of the Applicant; 8. 23 May 1997 - the dismissed application comes on again before a Master of the Supreme Court, and is again dismissed, without leave to bring in another minute of substituted notice of appeal; 9. 21 July 1997 - the Full Court of the Supreme Court dismisses the Applicant's appeal against the decision of Commissioner Martin QC for want of prosecution and because there are no grounds of appeal complying with the relevant Supreme Court rules;

1. 11 October 1997 - the Respondent serves a bankruptcy notice on the Applicant requiring payment of $33,184.11, comprising taxed costs of $29,790.45 and post judgment interest of $3,393.66 arising from the dismissal of the action by Commissioner Martin QC on 7 May 1996;

1. 17 October 1997 - Applicant files an application to set aside the bankruptcy notice on the basis of a counter-claim based on the Respondent's negligence;

1. 1 December 1997 - the District Registrar of the Federal Court dismisses the application to set aside the bankruptcy notice and there is no application for review of that order or any appeal from that order;

1. 1 May 1998 - the Respondent files a creditor's petition relying upon non-compliance with the bankruptcy notice served on

11 October 1997 as the act of bankruptcy; 2. 13 May 1998 - the Applicant files a notice of intention to oppose the creditors petition on the basis of a pending application for special leave to appeal to the High Court of Australia in relation to her unsuccessful professional negligence action against the Respondent. The Applicant also alleged: * "Deliberate concealment of facts relating to the debtor's cause of action to conceal the petitioners breach of duty to the debtor pursuant to the petitioners retainer/contract to the debtor."[17] 3. 18 October 1998 - the Applicant's application for special leave to appeal to the High Court is dismissed, and it is said that the application is "entirely void of merit";[18] 4. 10 December 1998 - the District Registrar of the Federal Court makes a sequestration order against the Applicant's estate;

1. 16 December 1998 - the Applicant's motion for an order that the judgment of the District Registrar of the Federal Court be set aside, the sequestration order be annulled, and the Respondent pay damages and costs, comes before the Federal Court;

1. 30 July 1999 - the Federal Court dismisses the motion to review and set aside the sequestration order;[19] 2. 18 August 1999 - the Applicant appeals Yap Federal Court 1999 to the Full Court of the Federal Court; 3. 29 November 1999 - the Applicant's appeal is dismissed by the Full Court of the Federal Court on the basis that given the curial history of the matter the Federal Court at first instance rightly refused to go behind the relevant judgment;[20] 4. 6 October 2000 - the Applicant lodges an application for annulment of bankruptcy which is dismissed on the Respondent's motion because, amongst other things, it sought to raise the same allegations previously raised in Yap Federal Court Appeal 1999;[21] 5. 29 November 2001 - the Full Court of the Federal Court dismisses an appeal against the judgment in Yap Federal Court 2000. The leading judgment observes that the Applicant had not proven any matter which had arisen since the earlier decisions in Yap Federal Court 1999 and Yap Federal Court Appeal 1999 and which was not and could not have been put forward at that time and which would lead to any different result in the proceedings then before the Full Court, and went on to observe that the view that the further application for annulment of the sequestration order was "doomed to failure and so as an abuse of process and vexatious" was a view the Federal Court at first instance was entitled to form.[22]

1. 30 October 2002 - this Court dismisses a further application by the Applicant to annul her bankruptcy, observing that: * "It is not appropriate for the Federal Magistrates Court to continue to entertain an application of this kind where clearly the issues have been properly agitated in courts and have been the subject of considered decisions where there is in fact in the present case no additional material which would persuade me that I should exercise my discretion";[23]

1. 21 May 2004 - the Full Court of the Federal Court, constituted by a single judge, dismisses an appeal by the Applicant against the decision of this Court in, and in an ex tempore decision, the Federal Court observes that the proceedings in this Court were correctly described as an abuse of process;[24] 2. 18 October 2006 - the Application is filed seeking an annulment of bankruptcy, alleging, on voluminous grounds, that the Applicant was wrongfully bankrupted by the Respondent on

10 December 1998 and that it would be a grave injustice if the bankruptcy was not annulled, and further claiming, as interlocutory relief, damages for financial hardship, humiliation, loss of opportunities and emotional embarrassment.

1. It is convenient to consider first the question of new evidence. If there is some new evidence it may be appropriate to consider whether the annulment of the Applicant's bankruptcy ought to be re-considered, but noting that:
   1. the Court will not re-open the matter and go behind the judgment on which the debt is based "unless a prima facie case of fraud or collusion or miscarriage of justice is made out";[25] and
   2. only rarely will this Court do so where "the relevant judgment flows from a trial before another court and the appeal process has been exhausted."[26]
2. The bankruptcy here is founded on a costs order arising from a judgment against the Applicant in the Supreme Court. The Applicant's appeal to the Full Court of the Supreme Court against that judgment was unsuccessful. The Applicant then made an unsuccessful application to the High Court for special leave to appeal the judgment of the Full Court of the Supreme Court, that application being described as "entirely void of merit".[27]
3. This Court might also refuse to annul the bankruptcy for discretionary reasons, including delay.[28]
4. Thus even if new evidence is available the Application might fail.
5. The Court has considered the voluminous affidavit material filed by the Applicant and the transcript of the oral argument of the Applicant. There is nothing new in the affidavit material: in its entirety it is material from the various previous proceedings. In oral argument the Applicant endeavoured to persuade the Court that there was new evidence, but despite repeated requests she failed to take the Court to any new evidence. The Applicant particularly argued that the Respondent had concealed facts and misrepresented the facts to the District Court and Supreme Court. Those arguments have been a constant refrain in earlier proceedings.[29] The Supreme Court observed in 2003 that "those attempts within the jurisdiction of the Federal Court by the ... [Applicant] failed and they plainly evinced a repeated disposition by her to reagitate questions which had been determined against her by Commissioner Martin QC, by the first appeal to the Full Court of ... [the Supreme] Court and the ensuing special leave application."[30] Nothing has changed: when pressed in these proceedings the Applicant submitted that the "bottom line"[31] was that the "respondent failed to perform on my behalf"[32] and "the respondent did not perform anything on my behalf and it is in evidence."[33] Essentially, what the Applicant seeks to do, as was put to her by the Court a number of times in the course of her oral argument, is reargue the issues argued before the District Court, Supreme Court and High Court, in the various debt, professional negligence and vexatious litigant proceedings. Moreover she seeks to do so not on the basis of new evidence, but further and sometimes regurgitated argument about what the evidence means.
6. The Court has come to the conclusion that the Applicant has tendered no new evidence in these proceedings, and there is therefore no necessity to consider whether the Court might go behind the judgment giving rise to the debt on which the bankruptcy is founded.

Concurrent jurisdiction and comity between the Federal Court and this Court

1. This Court and the Federal Court have concurrent first instance jurisdiction in bankruptcy, and harmonised bankruptcy rules. This Court's orders are appealed to the Federal Court.[34] As a court superior to this Court in the federal court hierarchy, the Federal Court's judgments are binding on this Court.[35] Hence, comity between this Court and the Federal Court is important, both as to binding principles of precedent, and findings of fact and law in cases like the case presently before the Court where the issues have already been dealt with by the Federal Court.
2. It is also important that there be comity between judgments of this Court in similar cases, and particularly in cases like the case presently before the Court where this Court has already considered whether, having regard to earlier Federal Court judgments, it ought to determine an earlier annulment application by the Applicant and found that it ought not do so in the absence of "additional material".[36]
3. In circumstances where:

1. the Federal Court in Yap Federal Court 1999 dismissed an application by the Applicant for annulment of the bankruptcy; 2. the dismissal of the application in Yap Federal Court 1999 was confirmed on appeal by the Full Court of the Federal Court in Yap Federal Court Appeal 1999;

1. the Federal Court in Yap Federal Court 2001 dismissed a further application by the Applicant for annulment of the bankruptcy;

1. the dismissal of the further application in Yap Federal Court 2001 was confirmed on appeal by the Full Court of the Federal Court in Yap Federal Court Appeal 2001; 2. this Court in Yap FMCA 2002 dismissed a further application by the Applicant for annulment of the bankruptcy; 3. the dismissal of the further application in Yap FMCA 2002 was confirmed on appeal by the Full Court of the Federal Court in Yap FMC Appeal 2004; 4. a further application by the Applicant for annulment of the bankruptcy resulted in the Federal Court declaring the Applicant a vexatious litigant in Yap Federal Court 2004,

and in the absence of any new evidence, there can be no question that this Court ought, for reasons of consistency and comity:

1. dismiss the Application; and
2. treat the Applicant as a vexatious litigant by reason of the Federal Court orders in Yap Federal Court 2004.

1. Res judicata presupposes two opposed parties with a definite issue between them, and that a court of competent jurisdiction has determined that issue.[37] The principle of res judicata means that an issue litigated and adjudicated is received as the truth and is conclusive as between the parties to the litigation until reversed by a court competent to do so.[38]
2. The issue of the annulment of the Applicant's bankruptcy has been conclusively determined by the Federal Court twice at first instance and twice on appeal.[39] This Court, as the lowest court in the hierarchy of federal courts, cannot reverse the prior Federal Court judgments, and as there is no new evidence there is no basis for distinguishing those judgments.
3. In the circumstances the Court concludes that the Application cannot be considered by this Court because the issue of the annulment of the bankruptcy is res judicata by reason of the prior Federal Court judgments and orders. The Application must therefore be dismissed on this basis.[40]
4. Whether the Applicant is a vexatious litigant, as between the Applicant and the Respondent in relation to the annulment of bankruptcy is also an issue which has been determined conclusively by the Federal Court.[41] Again this Court, as the lowest court in the hierarchy of federal courts, cannot reverse the prior Federal Court judgment, and there is no new evidence on which to form a basis for distinguishing that judgment.
5. In the circumstances the Court concludes that the issue of whether the Applicant is a vexatious litigant is res judicata by reason of the prior Federal Court judgment. The Application must therefore be dismissed on this basis because it ought never to have been made.

1. Having regard to the matters considered above concerning the need for consistency and comity between this Court and the Federal Court and the application of the principle of res judicata in respect of the Federal Court's declaration it follows that this Court ought to treat the Applicant as a vexatious litigant, and therefore these proceedings to have been vexatiously instituted.
2. For the purposes of r.13.11(1) of the Federal Magistrates Court Rules 2001 (Cth) the Court also finds, by reason of the Federal Court decision in Yap Federal Court 2004 and the Supreme Court judgment in Yap Supreme Court, that the Applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in another Australian court. The Court also notes that the Applicant has been involved in extensive and unsuccessful litigation in the Supreme Court involving a company with which she was associated (Cheshire Holdings Pty Ltd), Esanda Finance Corporation Ltd and the Commonwealth Bank of Australia.[42] It is not necessary to set out the history of that litigation: it suffices to say that the various actions and judgments arising make it clear that that litigation was also hopeless, and that the Supreme Court's assessment of the Applicant as "so completely absorbed with her own convictions that she is plainly incapable of any objective appreciation of her position" is, with respect, correct. The Court is therefore satisfied that it ought, of its own motion, order that:
   1. any proceeding instituted by the Applicant may not be continued without leave of the Court; and
   2. the Applicant may not institute further proceedings without leave of the Court.

1. almost eight years after the annulment; 2. after three unsuccessful earlier annulment applications in the Federal Court and one unsuccessful earlier annulment applications in this Court; and

1. almost two years after the last unsuccessful earlier annulment application in the Federal Court resulted in the Federal Court declaring the Applicant a vexatious litigant.
2. In those circumstances, both by reason of delay since the annulment order was initially made and since the last unsuccessful application was made, and the outcomes of the multiple earlier unsuccessful applications, the Court would not, in the exercise of its discretion, grant the Application, in any event.[43]

1. there is no new evidence in the affidavit material tendered in these proceedings; 2. the Applicant is a vexatious litigant and that these proceedings have been vexatiously instituted;

1. it is appropriate to make orders dismissing the Application, and preventing any other current or future applications by the Applicant in this Court from proceeding without leave of a Federal Magistrate; and

1. in the exercise of its discretion the Court would not grant the Application by reason of delay and the multiple earlier unsuccessful applications for annulment of the bankruptcy.
2. The Court will hear the parties as to costs including indemnity costs if they are sought.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Lucev FM

[4] Granich v Yap [1999] FCA 1039 ("Yap Federal Court 1999"); Yap v Granich & Associates [1999] FCA 1867 ("Yap Federal Court Appeal 1999"); Yap v Granich & Associates [2001] FCA 799 ("Yap Federal Court 2001"); Yap v Granich & Associates [2001] FCA 1735 ("Yap Federal Court Appeal 2001"); Yap v Granich & Associates [2004] FCA 647 ("Yap FMC Appeal 2004").

[5] Yap v Granich & Associates [2002] FMCA 284 at para. 31 per McInnis FM ("Yap FMC 2002").

[6] Yap FMC Appeal 2004 at para.11 per Marshall J.

[8] Granich Partners v Yap [2003] WASC 26 ("Yap Supreme Court").

[9] Named in those proceedings as Granich Partners.

[10] Yap v Granich & Associates [2004] FCA 1566 ("Yap Federal Court 2004").

[11] "Bankruptcy Act".

[13] The Respondent has done so to avoid incurring further expense by having to formally make the application to the Court: Respondent's Outline of Submissions para. 5.1.

[14] The history has been summarised from paras. 5-37 of the Affidavit of Sarah Elizabeth Harrison, sworn 8 November 2006, the Applicant's Affidavits sworn 12 October 2006, 10 November 2006 and 5 December 2006, and the decision in Yap Federal Court 2004, much of which is derived in turn from the decisions in Yap Federal Court 1999 and Yap Federal Court Appeal 1999.

[16] "District Court Default Judgment".

[17] Yap Federal Court 1999 Appeal at para. 30 per Carr J.

[18] Yap Federal Court 1999 Appeal at para. 42 per Carr J.

[19] Yap Federal Court 1999 at para. 33 per French J.

[20] Yap Federal Court Appeal 1999 at para. 4 per Spender J and paras 41-42 per Carr J.

[21] Yap Federal Court 2001 at paras. 34-37 per RD Nicholson J.

[22] Yap Federal Court Appeal 2001 at para. 14 per Gyles J.

[23] Yap FMC 2002 at para. 29 per McInnis FM.

[24] Yap FMC Appeal 2004 at para. 11 per Marshall J.

[25] Yap Federal Court 1999 at para. 32 per French J.

[26] Yap Federal Court 1999 at para. 32 per French J.

[27] Yap Federal Court 1999 Appeal at para. 42 per Carr J.

[28] Legge v Mackinlays [2007] FMCA 223 at paras.41(a) and 42 per Lucev FM.

[29] See, for example, Yap Federal Court 1999 at paras. 29-31 per French J and Yap Federal Court 1999 Appeal at para. 30 per Carr J.

[30] Yap Supreme Court at para. 49 per EM Heenan J.

[34] Federal Court of Australia Act 1976 (Cth) s.24(1)(d).

[35] R v Casey; R v Smythe [1977] Qd R 132 at 134 per Wanstall SPJ, Douglas and Dunn JJ; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 at 167 per Toohey J, 158 per Dawson J, and 125 and 129-130 per Brennan J.

[36] Yap FMC 2002 at para. 29 per McInnis FM.

[37] JD Heydon, Cross on Evidence. Seventh Australian Edition (Sydney: LexisNexis Butterworths, 2004) paras. 5025, 5030 and 5040.

[38] JD Heydon, Cross on Evidence. Seventh Australian Edition (Sydney: LexisNexis Butterworths, 2004) paras. 5025 and 5070.

[40] Because of that conclusion it is unnecessary for this Court to consider whether issues raised in relation to the debt and professional negligence actions which lie behind the annulment of the bankruptcy are res judicata, but given the curial history there can be little doubt that they are.

[41] Yap Federal Court 2004, a judgment which was not appealed, but which the Court notes the Applicant says she was unaware of: Transcript at 16.

[42] The relevant material appears in an affidavit sworn by Bruce Stevenson Dodd on 17 December 2002 in the proceedings in the Supreme Court under the Vexatious Proceedings Restriction Act 2002 (WA) which is exhibit CSY 1 to the Applicant's Affidavit sworn 10 November 2006.

[43] Legge v Mackinlays [2007] FMCA 223 at paras.41(a) and 42 per Lucev FM.