Zegarac v Pitcher Partners

REASONS FOR JUDGMENT 1 On 16 July 2009 the applicant gave notice that she would be applying for the annulment of her bankruptcy. By notice of motion filed yesterday in the proceeding in which she seeks annulment of her bankruptcy she seeks three orders: First, that the court grant leave for the case to be heard by a jury; secondly, that there be discovery of documents held by Pitcher Partners, Paul Dellios (trading as Dellios West & Co) and ITSA; and, thirdly, that the court order the issue of subpoenas for the attendance of witnesses. 2 Argument progressed in the court for the whole of this morning on these issues. At a late stage of the argument the applicant asked that I should withdraw from further hearing the matter. I told her that I would hear her on that issue once counsel for the respondents had made their submissions and in due course she developed that application which, as I understood it, was an application that I disqualify myself from further hearing the matter by reason of apprehended bias. 3 The basis upon which I was asked to withdraw when particularised involved four matters relating to the conduct of the hearing this morning. It was first said that I had refused to require counsel to go into the witness box when this was demanded by the applicant. The second ground was that I had referred to the proceeding as a game. The third was that I had refused to require counsel to answer verbal interrogatories administered at the bar table by the applicant, and, finally, it was submitted that I had made rulings which prevented the applicant rehearsing various aspects of the history of this proceeding - those rulings having been based on questions of relevance. 4 As to the first of the matters: I declined to accede to the demand that counsel go into the witness box to answer questions relating to the history of the matter, and to deal with the question of for whom they appeared at the proceeding today. I did so because there was no occasion to do so. Counsel had announced their appearances in the normal way at the commencement of the proceeding and it was clear for whom they appeared. There was no occasion to facilitate cross-examination about that or any other aspect of their involvement in the matter. 5 As to the second matter I did not refer to the proceeding as a game. I responded to a suggestion by the applicant in her submissions that the respondents had treated the matter as a game and a suggestion by her that, because of that, she would also engage in procedural tricks, keep cards up her sleeve, and matters of that kind in the conduct of her own case. My response was to say that no party would be permitted to play games in this proceeding and that it would be conducted in accordance with the rules of court. 6 As to the third matter I did not require counsel to answer interrogatories administered orally by the applicant from the bar table. It was appropriate for the applicant to make submissions in the course of the proceeding. It was not appropriate for her, as it were, to examine counsel, and demand answers from them. It was a matter for them as to what submissions they made at an appropriate time in the course of the hearing. 7 As to matters of relevance I, at a number of points during the applicant's argument, directed her attention to the narrow issues that were raised by her notice of motion as she attempted to rehearse a whole range of matters relating to this case, those matters going back for some six or seven years. Those rulings were almost, if not entirely, ignored and the applicant proceeded to advance submissions based on the long history of this matter despite attempts by the court to confine her to matters that were relevant to issues raised by her notice of motion. 8 The court must determine whether these matters warrant a finding of apprehended bias such as to justify my withdrawal from the further hearing of the matter. 9 The test propounded by the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11] requires an applicant who wishes a judicial officer to disqualify him or herself on the ground of apprehended bias to show that a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the determination of the application. 10 In my view none of the matters relied on by the applicant, either individually or collectively, in any way support the conclusion that I might not bring an impartial and unprejudiced mind to the determination of her application. Accordingly I refuse the application that I disqualify myself. 11 As to the particular matters raised in the notice of motion I observe, first, that they have to be understood in the context of the principal application which is that the applicant's bankruptcy should be annulled. Annulment can be ordered under s 153B of the Bankruptcy Act 1966 (Cth) if the Court is satisfied that a sequestration order ought not to have been made against her. 12 A sequestration order was made by a registrar of the court on 18 May 2006. The act of bankruptcy upon which the creditor relied was the applicant's failure to comply with a bankruptcy notice which was based upon an unsatisfied judgment of the Magistrates Court of Victoria given on 26 April 2005 in favour of the creditor. 13 By an application dated 8 December 2006 the applicant sought a review of the registrar's order pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). She sought, amongst other things, orders that the sequestration order be set aside and a consequential order that the appointment of the trustee also be set aside. On 15 December 2006 Justice Marshall in this Court dismissed the application for review in Dellios v Zegarac [2006] FCA 1733. 14 The applicant then appealed from his Honour's order and that appeal was considered by a Full Court of this Court in the matter of Zegarac v Dellios (No 2) [2007] FCAFC 141 in which judgment was delivered on 3 September 2007. 15 The Full Court dismissed the appeal and rejected also an application for leave to appeal. The result was that the Registrar's order was sustained. As I understand the principal application in this matter, the annulment of the applicant's bankruptcy is being sought substantially on the same grounds that were advanced unsuccessfully before Justice Marshall and before the Full Court. 16 I say no more about that matter because there is presently before the court no application seeking to strike out the principal application on the ground that it amounts to an attempt to re-agitate issues already heard and determined by the court. 17 What is before the court, as I have already indicated, is a notice of motion which seeks three orders. The first is that any trial in the matter should proceed before a judge and jury. By s 39 of the FCA Act it is provided that, in every suit in the Court, unless the Court or a judge otherwise orders, the trial shall be by judge without a jury. By s 40 it is provided that the Court or a judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact. 18 It is critical for present purposes to note, first, that by section 39 it is the norm that trials in this court will proceed without a jury. An exception may be made pursuant to s 40 in an appropriate case where the Court or a judge is persuaded that the ends of justice appear to render it expedient for a jury to be empanelled. 19 The applicant has, on more than one occasion in the course of her submissions this morning, indicated that she proposes at an appropriate time to amend her grounds for seeking an annulment of her bankruptcy and it is also to be observed that at this point there are no pleadings which indicate the basis upon which such an annulment is to be sought. 20 Insofar as there is affidavit material going to the matter and from what I have gleaned from oral submissions on the point this morning the position, as I have already indicated, would appear to be that the applicant wishes to rely on substantially the same material that was before Justice Marshall and the Full Court to support the present application for annulment. It remains to be seen whether that is or is not the case. For present purposes it is sufficient that I state that, on the material presently before the Court, it is not possible for me to make the judgment which s 40 requires of a judge in order to depart from the usual position under which trials are conducted by a judge alone. Accordingly the application made in paragraph one of the applicant's notice of motion will be refused. 21 The second order sought is an order for discovery of documents held by Pitcher Partners, Paul Dellios (trading as Dellios West & Co) and ITSA. When I asked the applicant to identify the documents that she wished to have discovered she referred me to some orders sought which are set out at the end of her affidavit sworn on 27 July 2009. Order 15 is the relevant order and it reads, and I quote: "[t]his Honorable (sic) court makes an Order for "URGENT" Discovery of all documents and books bearing my name or property name of 6 Wadham Road, Ivanhoe, or referring to me/my property in any name, shape or form on all files under the Freedom of Information Act, Privacy Act and Bankruptcy Act kept by: · Pitcher Partners Office · Paul Dellios t/as Dellios West & Co. · ITSA · Official Receiver's Office." 22 As that formulation of the proposed order makes plain the applicant is seeking discovery of each and every document on which her name, or the name of the property at Wadham Road, Ivanhoe may appear on any of the files of any of the named parties. 23 The application is unlimited as to time and accordingly would, on its face, cover material created after the applicant was made subject to a sequestration order in May of 2006. In addition it is to be observed that the application is made before any pleading or detailed affidavit has been filed in the proceeding. The result is that the court is not in a position at the present time to form any judgment of the potential relevance of any of this material. 24 Essentially what the applicant appears to be seeking is the opportunity of reviewing a whole range of documents with a view to determining whether, indeed, she has a case that may be advanced in support of the application that her bankruptcy should be annulled. 25 The rules of court contain specific provisions which must be satisfied before preliminary discovery, which can be ordered to assist an applicant to decide whether or not he or she has a case, will be ordered. The application must be made before any proceeding is commenced. For practical purposes the present application is of that ilk and those prerequisites contained in the rules have not been satisfied. For those reasons the order sought in paragraph two of the notice of motion will be refused. 26 Paragraph 17 of the order seeks the issue of subpoenas to secure the attendance of witnesses. The witnesses are unnamed. When I asked the applicant to identify the witnesses she advised the Court that she would not do so because, if she did, she expected that the court would refuse to issue the subpoenas and referred to a similar experience before Associate Justice Kings in the Supreme Court when she apparently made a similar application to her Honour. 27 There is no evidence before the court to suggest that any particular witness is required or will be required to give evidence at trial and no judgment can be made about that matter unless and until the issues in the case are properly joined. Accordingly the order sought in paragraph 17 of the notice of motion will be refused. 28 The first directions hearing has yet to occur. I will fix it for 4 September 2009. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey .