Wheaton v Krawec

1. The Applicant's interim application for review of a Registrar's decision not to grant a stay in these proceedings, filed on 1 February 2018, be dismissed.
2. The orders of Registrar Browning dated 7 December 2017 that: (i) The application to set aside a bankruptcy notice be dismissed; and (ii) The Respondent's costs, including reserved costs, be taxed not be set aside. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KERR J: 1 This is an application to review a decision made by a Registrar. The decision subject to review is the decision made on 7 December 2017 in which Registrar Browning refused to stay the hearing of the applicant's application to set aside a bankruptcy notice. Mr Wheaton's application, filed on 29 August 2017, was based on his having applied for special leave in H4/2017 to appeal a judgment in which costs orders had been made. Those costs orders had formed the foundation for the bankruptcy notice. 2 On 11 October 2017 Keane and Edelman JJ refused special leave in matter H4/2017. Their Honours held that an extension of time would be required to allow the application to proceed but to grant that extension would be futile. Their Honours concluded that the proposed appeal did not enjoy sufficient prospects of success to warrant the grant of special leave. They held that the application should be dismissed. The Registrar was directed, pursuant to r 41.08.1 of the High Court Rules 2004 (Cth) (the High Court Rules) to draw up, sign and seal an order dismissing the application: see Waldon v Kipley [2017] HCASL 255 (Waldon). The order issued on 16 October 2017. A discrepancy in the names of the parties in that proceeding and the present is immaterial; it is not contentious, as deposed to in [2] of the Affidavit of Anthony FitzGerald sworn 3 October 2017, that "Waldon" in H4/2017 refers to Anthony John Wheaton. 3 When Mr Wheaton's application to set aside the bankruptcy notice subsequently came before the Registrar on 2 November 2017 it may be inferred that Mr Wheaton advised that he intended to apply to the Full High Court to set aside the order made by the Registrar at the direction of Keane and Edelman JJ. Registrar Browning made orders that the further hearing of his application to set aside the bankruptcy notice be adjourned until 7 December 2017, that a copy of his application to the High Court be filed and served on the respondent and that any application for a further adjournment in the bankruptcy matter be supported by an affidavit to be filed and served no later than 30 November 2017. 4 No affidavit was filed in strict compliance with that order but there is an affidavit on file sworn by Mr Wheaton dated 1 December 2017 in which he deposes to his belief that the decision in Waldon was an "illegitimate determination". He made remarks highly critical of the conduct of Keane and Edelman JJ in disposing of his and other special leave applications without a hearing. He deposed, inter alia, as follows: This Applicant/Deponent intends to place this "information" and the "Illegitimate Determinations" of their Honours Keane J. and Edelman J., from their own Judgement, before the Office of the Chief Justice of the High Court of Australia, and indeed the CJ herself, in anticipation of the Matter being REHEARD in the First Session-Sittings of the High Court of Australia in 2018. (Emphasis in original.) 5 Mr Wheaton's adjourned application to set aside his bankruptcy notice came before Registrar Browning on 7 December 2017. It may be inferred that Registrar Browning did not assent to Mr Wheaton's request for an adjournment given that orders were made dismissing his substantive application with costs. 6 It is in those circumstances that Mr Wheaton seeks review of the Registrar's decision to refuse him the adjournment he had sought. 7 After having heard Mr Wheaton I gave short oral reasons to explain why I regarded myself as being bound to dismiss his application. I undertook to provide written reasons revised from the transcript. These are my reasons. 8 When a person's sequestration is sought it always remains open to a court to look behind the form of a judgment should there be a reason to doubt the truth and reality of the debt upon which his or her sequestration has been sought: Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212 per Barwick CJ at pages 224 to 225. If there are questions properly remaining to be determined about an underlying debt, there may be a case to stay sequestration proceedings. 9 However, the understanding Mr Wheaton has about the effect and force of the decision of Keane and Edelman JJ in Waldon differs from what I apprehend is the legal effect of that decision. 10 Mr Wheaton is an unrepresented litigant. It is no criticism of him that he may not understand that the High Court, as explicitly authorised by s 21 of the Judiciary Act 1903 (Cth), and as provided by its rules (High Court Rules, r 41.08), has made arrangements for the management and determination of special leave applications, which in certain circumstances permit such applications to be determined on the papers by two judges of the court. That is now an established and routine way in which many special leave applications are determined. Indeed, even before it was the practice of the court to have such special leave applications capable of being determined on the papers without hearing argument, oral argument almost universally was before only a subset of members of the High Court rather than the full court. The constitutional soundness of that practice was upheld by a unanimous court in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth [1991] HCA 43; (1991) 173 CLR 194. 11 Despite Mr Wheaton having indicated his intention to put his concerns before the Chief Justice of the High Court and that he was seeking a hearing before the full court, I am bound to proceed on the basis that that process has no prospects of success. 12 I am obliged, as the Registrar had been, to treat the decision in Waldon which refused special leave as final. Mr Wheaton was entitled to seek review of the decision made by the Registrar to refuse him an adjournment on the grounds he advanced (that the decision might be revisited by the High Court) but that proposition was unsound. 13 In oral submissions before me Mr Wheaton confirmed that he did not dispute the validity of the underlying debt save on the basis raised in H4/2007 in his application for special leave. I therefore advised Mr Wheaton that once the High Court had refused special leave, there was no proper basis for this Court to proceed, other than on the basis that that decision had brought finality to the issues that had been the subject of that special leave application. 14 For completeness I indicate that Mr Wheaton's application before me also refers to proceedings he had commenced (or attempted to commence) in the Supreme Court of Tasmania. In his oral submissions Mr Wheaton confirmed that the subject matter of that litigation traversed the same grounds as that he had advanced as reasons for the High Court to grant special leave. Paragraph 10 of his present application refers to Holt AsJ as having dismissed those proceedings as "frivolous and vexatious". While Mr Wheaton submits that that also was an illegitimate decision, and that he intended to take the matter further, I am satisfied that those circumstances do not constitute a proper basis for this Court to look behind the judgment affirmed by the High Court as to the existence of his debt. 15 I therefore made orders dismissing Mr Wheaton's application to review the Registrar's decision to refuse a stay. Given the concession made by Mr Wheaton referred to in [13] above, the consequential decision of the Registrar declining to set aside the bankruptcy notice based on the costs orders in the proceedings finally disposed of by the orders made in Waldon was appropriately made. The Respondent is entitled to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.