Yap v Granich & Associates

GYLES J: 3 On 6 October 2000 Yap Cheng See ("the applicant") filed an application for annulment of a sequestration order made against her estate on 10 December 1998. On 20 November 2000, Granich and Associates ("the respondent") filed a notice of motion, dated 17 November 2000, for orders that the application be struck out and for the applicant to pay the respondent's costs. This was supported by an affidavit of Bruce Stevenson Dodd, the solicitor for the respondent. That affidavit set out a history of related litigation and submitted that the application was misconceived. 4 Other evidence was filed including affidavits from the applicant which annexed or referred to a body of other material. The notice of motion filed by the respondent was ultimately heard by a judge of the court on 2 May 2001 and judgment was delivered on 28 June 2001. The orders made by the judge were: 1. The respondent's notice of motion dated 17 November 2000 be granted; 2. The applicant's application for annulment of her bankruptcy be struck out; 3. The applicant pay the respondent's costs of the application. 5 The present proceeding purports to be an appeal from those orders. However, the better view is that the orders are interlocutory and therefore require leave of the court pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (see Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246, Weatherall v Satellite Receiving Systems Australia (1999) 17 ACLC 888, 180 ASCR 698, Wilson v The Official Trustee in Bankruptcy [2000] FCA 304 at pars [17] to [19] and Minogue v Williams (2000) 60 ALD 366, [2000] FCA 125 at pars [18] and [19]). 6 It is therefore necessary to consider whether leave to appeal should be granted. In the circumstances, it is appropriate to treat the appeal as if it were an application for leave to appeal. The principles to be applied in determining whether leave should be granted were set out in some detail by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In general terms, those principles are that leave should not be granted unless two tests are satisfied. The first is that, in all the circumstances, the decision is attended with sufficient doubt to warrant its reconsideration on appeal. The second involves asking whether substantial injustice would result if leave were refused supposing the decision to be wrong. A distinction is drawn between an interlocutory decision on a point of practice or procedure and an interlocutory decision on a point of substance. Because of the practical finality of the orders made here, it would not be difficult to satisfy the second test. The focus must be upon the first. 7 In his reasons for judgment, the primary judge carefully summarised the course of litigation which is related to the present proceeding. This involved two sets of District Court proceedings. The first went to the Full Court of the Supreme Court of Western Australia and the second involved an application for special leave to the High Court, which was dismissed as entirely devoid of merit. It was the costs of the second set of proceedings in the District Court which founded the bankruptcy notice, non-compliance with which ultimately led to the sequestration order of 10 December 1998, with various steps in this Court along the way. 8 On 16 December 1998 the applicant filed a motion seeking, amongst other things, an order that the sequestration order be annulled. That matter came on before French J, who dismissed the motion on the merits by judgment delivered on 30 July 1999. One matter to which French J gave consideration was an allegation that the judgment in the second set of District Court proceedings was obtained by fraud. 9 On 29 November 1999 the applicant appealed to the Full Court of the Federal Court against the dismissal of the motion to annul the sequestration order, which appeal was unanimously dismissed. Carr J, who delivered the leading judgment, carefully analysed the course of litigation and the case made before French J and held no appealable error had been made. The primary judge here compared the case sought to be made by the applicant before him with the case sought to be made by the applicant before French J. In particular, his Honour examined the allegations of fraud which are put forward by the applicant in this proceeding. His Honour concluded as follows: "34 These issues of alleged fraud and misrepresentation were raised before the High Court on the special leave application in relation to action no 6202 of 1993. They were also raised before French J on the application to set aside the sequestration order. He found that the applicant's assertions that the deed acknowledging the debt was invalid and unenforceable, which were fundamental to her argument, were "simply unsustainable". Additionally, he held that her allegation that the judgment was obtained by fraud perpetuated by either of the counsel for the respondent or Mr Vivante to be "highly implausible". In her appeal from the judgment of French J the applicant made the same allegations as are now made here. 35 I therefore accept the submission for the respondent that as the allegations of fraud have already been considered by a competent Tribunal, by reason of the application of the doctrines of res judicata and of issue estoppel, they cannot be reconsidered by this Court. In the absence of the existence of fresh evidence which was not available at the time of the earlier trials: Bourke v Beneficial Finance (1993) 124 ALR 716 at 724 where it is said that "the fraud must be proved by fresh evidence which was not available and could not have been discovered with reasonable diligence before the judgment was delivered.": Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234. 36 The applicant has not put forward evidence of fraud. In her affidavit she has made statements which are her view of the matter and which are unsubstantiated by proper evidence. Her allegations of fraud founded on the concealment and unavailability of the transcript of action 1536/89 could have been raised in the many previous proceedings. In her notice of appeal from the judgment of French J the applicant quotes from the transcript so that it was in her possession in 1998. Her failure to raise her allegation of fraud is therefore unreasonable so that she is prevented by the principle of Anshun estoppel of raising the issue in this proceeding. 37 Additionally, I accept the submission for the respondent that the applicant's case has not shown how the alleged concealment of the transcript from her has resulted in the judgment given in action 1536/89 being obtained fraudulently." 10 The applicant has filed written submissions consisting of twenty-five closely typed pages containing some ninety paragraphs. These submissions appear to be a complete history of the commercial transactions which underlay the various proceedings and of the various proceedings, and along the way make serious allegations about many of the legal practitioners involved in the litigation, including some on her own side. 11 We have considered those submissions, the evidence to which they refer which was before the primary judge and the oral submissions made by the applicant today. We cannot detect any error in principle in the manner in which the primary judge approached the question. 12 A matter which is put forward by the applicant as arising after the decision of French J is that the applicant came into possession of the transcript of evidence of the second District Court proceedings after the hearing before French J but before the hearing in the Full Court on appeal from the orders of French J. There is no evidence as to how or when the transcript came into the possession of the applicant, although she has given an explanation in the course of her oral submissions. In particular, there is no explanation in the evidence which would establish that the transcript was not available to her at all material times. In any event, we are satisfied that the primary judge properly considered and dealt with the issue concerning this transcript of evidence, although it should be noted that his reference in par 36 to 1998 is an obvious mistake. His Honour referred to the fact that the applicant had apparently received the transcript prior to the hearing of the Full Bench in that matter, that Full Bench hearing taking place in 1999, as had the hearing before French J. The error in date does not affect the principles applied by his Honour. 13 The notice of appeal refers to three grounds. The first relates to the respondent's failure to put before the court certain evidentiary material. That does not raise any issue which could not have been raised before French J. The second concerns the transcript, to which I have referred already. The third alleges misrepresentation in submissions filed on behalf of the applicant before the primary judge, prepared by counsel appointed pursuant to O 80 r 4 of the Federal Court Rules. That ground of appeal has not been referred to further in the oral submissions or expanded upon in any way in the written submissions. However, it has not been withdrawn. It seems to me that it is misconceived. The submissions which were made on behalf of the applicant below cannot found any appeal by her in this court. 14 I cannot identify any matter which the applicant has proved has arisen since the decision of French J and the Full Court in relation to the earlier application to annul the sequestration order which was not and could not have been put forward in that proceeding and which would lead to any different result in this proceeding. I particularly refer here to his Honour's consideration of the merits of the application in par [36] of his judgment. That being so, in my opinion, his Honour was quite entitled to regard the proceedings as doomed to failure and so as an abuse of process and vexatious. I can see no proper basis for concluding that there is sufficient doubt about the decision of the primary judge to warrant the grant of leave to appeal. I would propose that leave to appeal be refused and that the applicant, Yap Cheng See, be ordered to pay the costs of the respondent of this application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles .