Stankovic v The Hills Shire Council

Background 11 The application for leave to appeal concerns the primary judge's summary dismissal of a proceeding commenced by the applicant in which he sought an annulment of his bankruptcy and "restitution and damages" against the respondents. 12 The sequestration order made against the applicant's estate was obtained on a creditor's petition presented by the first respondent. The act of bankruptcy on which the petition was grounded was the applicant's failure to comply with a bankruptcy notice, based on a judgment debt obtained by the first respondent in the Local Court. The judgment debt was for assessed costs deriving from an order for costs that the first respondent had obtained against the applicant in a proceeding it had commenced in the Land and Environment Court of New South Wales (the Land and Environment Court). 13 In his reasons, the primary judge gave a detailed exposition of the proceeding in the Land and Environment Court leading to the costs order and related proceedings in the Land and Environment Court as well as the bankruptcy proceeding in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) (the Federal Magistrates Court) and related proceedings in that court: Stankovic v The Hills Shire Council [2013] FCA 652 at [16]-[66]. His Honour also gave a detailed exposition of several proceedings in this Court concerning, first, a challenge to a proof of debt lodged by the sixth respondents in the bankrupt estate; secondly, whether time should be extended to allow the applicant to appeal against the making of the sequestration order; and, thirdly, whether certain assets of the bankrupt estate were protected money for the purposes of s 116 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) (at [67]-[87]). I will not repeat his Honour's exposition or attempt to summarise it. 14 Before me, the applicant raised a number of legal and factual contentions arising out of these matters. These contentions can be summarised as follows. 15 First, the applicant contends that the costs order obtained in the proceeding in the Land and Environment Court was a nullity because, at the time it was made, the proceeding had been dismissed and had not been reinstated. It followed, according to the applicant, that there was no judgment which could properly found the bankruptcy notice issued against him and no proper basis for making the sequestration order against his estate. 16 Secondly, when the sequestration order was made, proceedings under the order were stayed by the Federal Magistrates Court pursuant to s 52(3) of the Bankruptcy Act for a period of 21 days. Within the period of that stay, the applicant paid the judgment debt, with interest, to the first respondent. The applicant contends that, because of that payment, the sequestration order was not, or should not have been, effective. 17 Thirdly, the applicant was the owner of valuable land at Kellyville. The primary judge referred to this land as having been sold under the supervision of the Family Court of Australia. The third and fourth respondents - who were the applicant's trustees in bankruptcy - and the applicant's former wife were the trustees for sale of the land. There remains a proceeding between the applicant and his former wife in respect of the division of their matrimonial property. The applicant believes that the Land and Environment Court proceeding and the subsequent bankruptcy proceeding (and related proceedings) were prosecuted by the first respondent in furtherance of a conspiracy between it and property developers to deprive him of the land. 18 Fourthly, the second respondents were the solicitors acting for the first respondent in the bankruptcy proceeding. The sixth respondents were the solicitors who had previously been retained by the applicant and claimed to be owed legal fees and disbursements in excess of $246,000. They appeared on the hearing of the creditor's petition as supporting creditors. Shortly after the sequestration order was made, the applicant applied to the Federal Magistrates Court to have his bankruptcy annulled. The fifth respondent appeared as counsel for the applicant when the annulment application came before the Federal Magistrates Court on 2 June 2009. On that day, the second respondents represented the first, third and fourth respondents. The sixth respondents also appeared. The annulment application was adjourned with the consent of all parties, as represented. On 13 October 2009, the Federal Magistrates Court, by consent, dismissed the applicant's annulment application. On that occasion, the second respondents represented the first, third and fourth respondents and the fifth respondent, once again, represented the applicant. The applicant contends that, in fact, the fifth respondent acted without his consent in agreeing to certain orders made on 2 June 2009 and in agreeing to the dismissal of his annulment application on 13 October 2009. Before me, he also contended that the second to sixth respondents were part of, and acting in furtherance of, the conspiracy he alleged between the first respondent and property developers. 19 I was taken to no evidence that would support the existence of any conspiracy or that would support an allegation that any of the respondents has participated in a conspiracy to injure the applicant or to deprive him of his property. The primary judge emphatically rejected the applicant's allegations in this regard, finding (at [141]) that there was not a shred of evidence in all the material tendered before him that could conceivably support those allegations. 20 Fifthly, the applicant disputes the sixth respondents' entitlement to the legal fees and disbursements they claim. I note, however, that this question has been determined in favour of the sixth respondents: Kent and Orlizki, in the matter of the Bankrupt Estate of Milovan Stankovic [2012] FCA 333. In that proceeding, Emmett J held that the sixth respondents' proof of debt in respect of their fees and disbursements should be admitted for the full amount claimed. There has been no appeal from that judgment.

The proceeding before the primary judge 21 In his reasons (at [14]), the primary judge set out, in full and without alteration, the text of the applicant's statement of claim in this Court. His Honour identified that the applicant had appeared to advance three broad claims. The first was a claim pursuant to s 153B of the Bankruptcy Act for an order annulling his bankruptcy. The second was a claim for damages pursuant to s 20 and s 21 of the Australian Consumer Law against all respondents by reason of unconscionable conduct on the part of each of them, as alleged in paragraphs 10 and 11 of the statement of claim. The third claim related to the sixth respondents' entitlement to their claimed fees and disbursements. 22 Each of the first to sixth respondents filed an interlocutory application seeking to have the proceeding summarily dismissed or, alternatively, struck out. They relied upon s 31A of the Federal Court Act and r 16.21 and r 26.01 of the Federal Court Rules. The orders set out in [2] above were made in response to those applications.

The draft notice of appeal 23 The draft notice of appeal is in poor form. It contains two grounds. The first ground is that the primary judge "failed to take into account relevant matters of law and fact". The second ground is that the primary judge "failed to administer justice for the protection of rights and the punishment of wrongs". It seeks an order that the judgment of 4 July 2013 be set aside and that "the whole case be re-tried by a jury". 24 The applicant did not provide any written submissions but he did make oral submissions. His submissions ranged over the history of his litigation involving the first respondent and the various injustices he said he had suffered in the course of, or as a result of, that litigation. I have identified the important elements of his argument at [15] to [20] above. The substance of each matter was fully considered by the primary judge in his comprehensive and detailed reasons. 25 The test for the granting of leave to appeal from an interlocutory judgment is whether the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court, and whether substantial injustice would result if leave were to be refused, supposing the decision to have been wrong: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400. 26 In general terms, I am unable to see how it can be sensibly argued that, when considering the respondents' several applications, his Honour failed to take into account relevant matters of law and fact or "failed to administer justice for the protection of rights and the punishment of wrongs". Given the way in which the applicant would seek to frame his appeal, I am not satisfied that the primary judge's judgment is attended with sufficient doubt to warrant it being reconsidered by a Full Court, with the consequence that his application for leave to appeal fails at the threshold. 27 I am, of course, conscious of the fact that, in light of the applicant's status as a self-represented litigant, the Court should be alert as to whether error is disclosed in the judgment from which leave to appeal is sought: Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [18]. Therefore, I have embarked upon my own consideration of the primary judge's reasons, informed by the matters that the applicant has raised in the hearing before me.

Consideration of the application for annulment 28 In summary, the primary judge found (at [127]) that the applicant had no prospect - and certainly no reasonable prospect - of meeting the threshold requirement for an annulment specified in s 153B of the Bankruptcy Act, namely, that the Court would be satisfied at the final hearing that the sequestration order ought not to have been made. It followed that the applicant's annulment application had no reasonable prospect of succeeding. Moreover, his Honour found (at [129]) that there were cogent discretionary reasons why an order for annulment would not be granted in any event. 29 Central to his Honour's reasoning was the fact that the applicant had no prospect of establishing at a final hearing of his annulment application that the Court ought to and would look behind the costs order made against him by the Land and Environment Court, or that the Court ought to and would look behind the Local Court judgment which gave effect to the assessment of those costs in accordance with the relevant assessment processes in operation at the time. The primary judge gave detailed reasons for coming to this view (see [124]). His Honour's reasoning was as follows: Although the Land and Environment Court proceeding had been dismissed on 16 February 2005 for want of prosecution by the first respondent, the order doing so was interlocutory in nature. The Land and Environment Court had the power to set aside or vary that order. It is unclear whether the proceeding was, by formal order, reinstated. Nevertheless, the court file shows that, on 22 February 2005, the first respondent applied to have the proceeding reinstated. At all times since 22 February 2005, the Land and Environment Court and the parties to the proceeding before it proceeded on the basis that the dismissal order of 16 February 2005 had been set aside or was no longer in effect. The Land and Environment Court proceeded to hear and determine the first respondent's proceeding against the applicant. The applicant did not at that time take exception to the Land and Environment Court proceeding in that fashion. The Land and Environment Court made orders against the applicant, including the costs order. The applicant subsequently sought, by notice of motion filed in the Land and Environment Court proceeding, to have the costs order set aside. His application was unsuccessful. The notice of motion was dismissed. The applicant did not seek to appeal from the making of the costs order or the dismissal of his motion to have it set aside. The applicant took no steps to set aside the Local Court judgment giving effect to the quantification of the costs order. The Local Court judgment is, therefore, impregnable. The applicant took no steps to set aside the first respondent's bankruptcy notice which was grounded on the Local Court judgment. 30 I am unable to see any arguable error in the primary judge's reasoning or the conclusion to which he came. 31 I would add that, in an earlier proceeding in this Court in which the applicant sought an extension of time within which to appeal against the making of the sequestration order (see [13] above), Emmett J came to the same view as the primary judge: Stankovic v The Hills Shire Council (No 3) [2012] FCA 523 at [11]-[17]. In that proceeding, the applicant contended, amongst other things, that the costs order made by the Land and Environment Court was incompetent because it was made in a proceeding that had been dismissed and not reinstated. In the course of considering that contention, Emmett J reviewed, in detail, the course of the Land and Environment Court proceeding and came to the conclusion that the applicant's contention could not be supported. His Honour was of the view that any appeal against the making of the sequestration order on that ground could not succeed. This stood as one of the reasons why his Honour refused to extend the time within which the applicant could appeal against the making of the sequestration order. 32 The primary judge considered two additional arguments advanced by the applicant. The first relates to the status of the sixth respondents as supporting creditors at the time the sequestration order was made. As I have noted in [20] above, the applicant disputes the sixth respondents' entitlement to the legal fees and disbursements they claim, despite the fact that that matter has now been conclusively determined against the applicant's contention. The primary judge reasoned correctly, in my respectful view, that, despite the applicant's arguments, it did not follow that the sixth respondents were not creditors at the time the sequestration order was made. In any event, as the primary judge found, the precise status of the sixth respondents at that time is of no significance, because the first respondent had an impregnable judgment for an amount in excess of the relevant threshold amount for bankruptcy purposes. 33 The second additional argument advanced by the applicant was that he was solvent at the time the sequestration order was made. In considering this argument, the primary judge noted, first, that the applicant had not added to the evidentiary material that was before the Federal Magistrates Court at the time that the sequestration order was made and, secondly, that the presiding Federal Magistrate approached his consideration of the question of solvency in an entirely orthodox and appropriate manner. The primary judge found that the conclusion to which the presiding Federal Magistrate came on the question of solvency was certainly open and was, indeed, correct. The primary judge concluded that the applicant had no prospect of establishing to the satisfaction of this Court that the sequestration order ought not to have been made on the ground that he was solvent at the time. I am unable to see any arguable error in his Honour's reasoning or conclusion. 34 In my respectful view, the primary judge was correct to conclude, therefore, that the applicant's annulment application had no reasonable prospect of succeeding, regardless of the discretionary considerations that his Honour saw as militating against annulment in any event. It follows that the primary judge's judgment, in this respect, is not attended with sufficient doubt to warrant it being reconsidered by a Full Court.

The claims for damages 35 The primary judge summarised the applicant's damages claims at [133]-[137] of the reasons: 133 Indications of the basis for Mr Stankovic's alternative damages claim are found in pars 5 and 10-12 of his Statement of Claim. 134 As against all respondents, he seems to contend that they conspired to defraud him and, in particular, to defraud him of the property and were also guilty of unconscionable conduct in trade or commerce within the meaning of s 20 and s 21 of the ACL. 135 As against Watson and Watson and the trustees, he also alleges a breach of s 30(5)(b) of the Bankruptcy Act in that they are said to have taken control of his affairs during the 21 day stay period ordered by Raphael FM. 136 As against Charles Hockey, he wishes to argue that Charles Hockey consented to the dismissal of proceeding SYG 1333 of 2008 and the dismissal of the first annulment proceeding without instructions or contrary to instructions. 137 Finally, he argues as against Kent that he is not indebted to Kent in the amount alleged by it, or at all. 36 I have already referred to the primary judge's treatment of the applicant's allegations of conspiracy. I agree with that treatment (see [19] above). In reaching his view, the primary judge referred to the failure of the applicant to provide any satisfactory particularisation of the serious allegations he had made, to put that aspect of his claim on a proper footing. I agree with that observation. I am unable to see any arguable error in the primary judge's dismissal of the proceeding insofar as it is based on these allegations. 37 The applicant's separate claim against the second, third and fourth respondents concerns their alleged breach of s 30(5)(b) of the Bankruptcy Act, which provides: Where: … (b) a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector-General, under this Act; the Court may, on the application of the Registrar, Official Receiver, trustee or Inspector-General, as the case requires: (c) order the person who has failed to comply with the order, direction, requirement or request, as the case may be, to comply with it; or (d) if it thinks fit, make an immediate order for the committal to prison of that person. 38 The applicant's claim is pleaded in paragraph 5 of the statement of claim: 5. Notwithstanding payment of the debt within the 21-day period granted by Federal Magistrate Raphael, the Second, Third and Fourth Respondents claimed control of the Applicant's affairs and had the Third and Fourth Respondents appointed as trustees in bankruptcy. This was a failure to comply with the direction of Federal Magistrate Raphael, in breach of s 30(5)(b) of the Bankruptcy Act, and a clear breach of their obligations as Trustees. 39 This claim is both ill-founded and nonsensical. It is ill-founded because it proceeds on a fundamental misunderstanding of the nature and effect of the sequestration order that was made against the applicant's estate. This misunderstanding appears to be based on the applicant's erroneous belief that he could deprive the sequestration order of effect if he paid the first respondent's judgment debt during the period of the stay granted by the Federal Magistrates Court. It is important to note in this regard that the stay related to proceedings under the sequestration order. It did not, and could not, suspend or otherwise affect the operation of the sequestration order itself: see s 37(2)(a) of the Bankruptcy Act. 40 It is nonsensical because, contrary to what appears to be suggested in paragraph 5 of the statement of claim, the third and fourth respondents' appointment as trustees of the bankrupt estate took effect by operation of s 156A(3)(b) of the Bankruptcy Act upon the making of the sequestration order, not at some later time or through some separate act involving themselves or the second respondents. Their appointment as trustees involved no failure by them, or the second respondents, to comply with any order, direction or requirement of the Federal Magistrates Court. Moreover, s 30(5)(b) of the Bankruptcy Act does not even apply to the second respondents. Finally, it is not competent for the applicant to seek relief under s 30(5). 41 The primary judge said that there was no basis on which the applicant should be permitted to allege that the second, third and fourth respondents breached s 30(5)(b) of the Bankruptcy Act and that, even if such an allegation could be made, no entitlement to damages could flow from it. I am unable to see any arguable error in the primary judge's conclusion. 42 As I have noted above (at [18]), the applicant's separate claim against the fifth respondent is that he acted without consent in agreeing to certain orders before the Federal Magistrates Court on 2 June 2009 and in agreeing, on 13 October 2009, to the dismissal of his annulment application. The primary judge said that the applicant may have a claim against the fifth respondent - but, if he did, it was not apparent from the current pleading of the statement of claim. I agree with that assessment. 43 Further, the primary judge reasoned that the proceeding before him should not be kept on foot simply to entertain the prospect of the applicant properly formulating a claim against the fifth respondent. In this connection, the primary judge noted that such a claim should not be brought in this Court unless appropriately incidental to a valid federal law claim. In my respectful view, that course was plainly open to be taken by the primary judge and does not reveal error. I would add that, by proceeding in this fashion, no substantial injustice arises. If the applicant has a valid claim against the fifth respondent, then it should be properly formulated and brought in the appropriate forum. Such a claim could not be dependent on the continued existence of the proceeding that was before the primary judge. Further, the fifth respondent properly acknowledged that the summary dismissal of the applicant's claim against him in the proceeding before the primary judge would not operate as a bar or in any way prevent the applicant from suing him in an appropriate court for damages for breach of his retainer. Whether it is competent for the applicant to bring any such claim is, of course, another matter and not one that I need to decide on this application: see s 116 of the Bankruptcy Act. 44 The applicant's separate claim against the sixth respondents relates to their entitlement to legal fees and disbursements. The primary judge observed that any claim by the applicant that these fees and disbursements are not payable is no longer available to him. As I have noted in [20] above, by force of a judgment of this Court, from which there has been no appeal, the sixth respondents' proof of debt in respect of their fees and disbursements has been admitted for the full amount claimed by them. It follows that the primary judge did not err in coming to this conclusion.

Other applications 45 The primary judge then dealt with various other applications made by the applicant. The first was a stay application. The relevant stay was first ordered on 14 December 2012 in the proceeding concerning the protected money, to which I have briefly referred (see [13] above): Stankovic v Van Der Velde [2012] FCA 1436. The primary judge noted, correctly, that that stay could only be justified if the proceeding before him remained on foot. As his Honour proposed to dismiss the proceeding in its entirety, there was no basis for granting a further stay. No arguable error has been identified in that conclusion. I note, however, that, in one of the additional applications before me, the applicant seeks a further stay of the orders made on 14 December 2012. 46 The primary judge also noted that, in the same application, the applicant had sought an order restraining any development of the Kellyville land. His Honour found that claim to be hopeless. In my respectful view, his Honour was correct in so concluding. 47 The primary judge then turned to an interlocutory application by which the applicant sought to join the Official Receiver as at May 2009 as a party to the proceeding and bring a claim against her based on her having issued, within the period in which a stay of proceedings under the sequestration order was in operation, a Certificate of Appointment in relation to the third and fourth respondents. His Honour found this claim to be misconceived. His Honour said (at [149] to [150]): 149 Under s 156A of the Bankruptcy Act, once a registered trustee has, by instrument signed by him or her and filed with the Official Receiver, consented to act as the trustee of the estate of the debtor specified in the instrument in the event that the debtor becomes a bankrupt, that registered trustee becomes, once the debtor becomes a bankrupt, by force of s 156A(3) of the Bankruptcy Act, the trustee of the estate of the bankrupt. In other words, it is not the Certificate of Appointment signed by the Official Receiver which effects the relevant appointment. Rather, it is the operation of s 156A(3) which effects that appointment once the preconditions spelt out earlier in s 156A have been satisfied. 150 By issuing the Certificate of Appointment, Ms Inga did no more than certify that, in the circumstances of the present case, the trustees had become trustees of Mr Stankovic's bankrupt estate. She did not undertake proceedings under the sequestration order in breach of the order made by Raphael FM. She merely issued a certificate which certified the fact of the appointment of the trustees as trustees of Mr Stankovic's bankrupt estate, that fact having been brought about by the combination of the making of a sequestration order against his estate and the operation of s 156A of the Bankruptcy Act. 48 I am unable to see any arguable error in his Honour's reasons or conclusion. 49 Finally, the primary judge dealt with the applicant's various applications for a jury. His Honour found, correctly, that because he proposed to dismiss the whole of the proceeding, those applications fell away.

Conclusion 50 In my view, the applicant has not established that the primary judge's decision, reflected in the judgment of 4 July 2013, is attended with sufficient doubt to warrant it being reconsidered by a Full Court. Indeed, as I have indicated, I am not satisfied that the applicant has established any arguable error on the part of the primary judge. For this reason alone, leave to appeal should be refused.

The interlocutory application 51 The claims for relief in the interlocutory application before me are dependent on leave to appeal being granted in relation to the judgment of 4 July 2013. In light of my decision to refuse leave, the basis for the claimed relief in the interlocutory application now falls away. In expressing this conclusion, I have taken the first prayer for relief to relate to the proceeding that was dismissed and not to the application for leave to appeal. If the applicant intended that a jury should be appointed to hear his application for leave to appeal, then his application in that regard is misconceived. 52 I would add that the injunction sought in the third prayer for relief is directed to restraining the further development of the Kellyville land. There is no presently existing right possessed by the applicant in aid of which such an injunction could be granted. Moreover, the individual to whom the relief is directed is not before the Court. There is no evidence that he has been given notice of the making of that claim for relief.

The additional applications 53 The claims for relief in the additional applications are, or appear to be, dependent on leave to appeal being granted in relation to the judgment of 4 July 2013. The claims for pro bono legal assistance appear to relate to the hearing of either the substantive proceeding or an appeal, assuming leave to appeal to be granted. Accordingly, the basis for all the claimed relief now falls away. Insofar as the claims for pro bono legal assistance were intended to relate to the hearing of the application for leave to appeal and the interlocutory application, the matter was determined in the course of hearing those applications, as I have recorded at [8] to [10] above.

Rulings on evidence 54 At the hearing of the application for leave to appeal and the interlocutory application, paragraph 6 of an affidavit made by the applicant on 5 July 2013, and paragraphs 6 to 13 of an affidavit made by the applicant on 9 July 2013, were admitted into evidence subject to their relevance being established. Having given full consideration to the application for leave to appeal and the interlocutory application, I am satisfied that that condition has not been satisfied. I reject the paragraphs accordingly.

Correspondence from the applicant after the hearing 55 Finally, I should record that, after judgment in this matter was reserved, the applicant sought to file, without leave, a Notice of Constitutional Matter. He was not permitted by the Registry to do so. The document does not raise any viable constitutional matter. It has played no role in my determination of this matter.

Disposition 56 The application for leave to appeal should be refused. The interlocutory application and the additional applications should be dismissed. The applicant should pay the respondents' costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.