Allen v International Monetary Fund - [2012] FMCA 144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLEN v INTERNATIONAL MONETARY FUND & ORS

[2012] FMCA 144

CONSUMER AND COMPETITION LAW – Summary dismissal of claim – no identification in application of any matter involving the jurisdiction of the Court.

Federal Magistrates Court Rules 2001, r.13.10
Federal Magistrates Court Act 1999, s.17A
Federal Court of Australia Act 1976, s.31A

Spencer v Commonwealth of Australia [2010] HCA 28
Ladakh Pty Ltd v Quick FashionPty Ltd & Anor [2010] FMCA 919

Applicant:

KERRY ALLEN AS TRUSTEE OF ALLEN FAMILY PROPERTY TRUST

First Respondent:

INTERNATIONAL MONETARY FUND & COMMONWEALTH

Second Respondents:

ROY LILLIMAGI & TONI LILLIMAGI

Third Respondent:

PERPETUAL TRUSTEES AND ALL AGENTS

File Number:

PEG 313 of 2011

Judgment of:

Lindsay FM

Hearing date:

17 February 2012

Date of Last Submission:

17 February 2012

Delivered at:

Perth

Delivered on:

17 February 2012

REPRESENTATION

The Applicant:

In person

First & Second Respondents:

No appearance

Solicitors for the Third Respondent:

Jackson McDonald

Counsel for the Third Respondent:

Mr Cobby

ORDERS

Pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 the Application filed on 2 November 2011 is summarily dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 313 of 2011

KERRY ALLEN AS TRUSTEE OF ALLEN FAMILY PROPERTY TRUST

Applicant

And

INTERNATIONAL MONETARY FUND & COMMONWEALTH

First Respondent

ROY LILLIMAGI & TONI LILLIMAGI

Second Respondents

PERPETUAL TRUSTEES & ALL AGENTS

Third Respondent

REASONS FOR JUDGMENT

On 2 November 2011, Ms Allen commenced proceedings in this Court. The proceedings named a number of respondents, one of whom was the International Monetary Fund and Commonwealth and then there were two private individuals, Roy and Toni Lillimagi. Perpetual Trustees were also named as a respondent.
The application, which I have read onto the transcript, sought orders that, on its face, did not make any sense. A very lengthy affidavit was filed with the application in which Ms Allen put before the Court a range of documents; a comprehensive number of documents relating to proceedings that have been extant in the Supreme Court of Western Australia involving Mr and Mrs Lillimagi and her in one action, and Perpetual Trustees and her in another.
Those proceedings relate to a number of properties in Western Australia. The dispute appears to have been in relation to alleged default by the applicant in obligations under mortgages held over those properties. That has resulted in possession proceedings by a mortgagee (the third respondent) and has resulted in proceedings by the joint tenant (the second respondents) of one of the properties for a partition order following which, as I understand it, the order having been made, the successful applicants then gave the mortgagee possession of that property. I express no view at all about the merit of the applications by the respondents to these proceedings in those actions in the Supreme Court. Self-evidently, they have succeeded in their applications. It is not clear to me if the applicant has exercised all of her rights of appeal in relation to those matters. She tells me she is not before the Supreme Court in respect of any such application or appeal at the present time.
Similarly, she told me this morning, and she contends throughout her documents, that there were occasions during those proceedings when she was denied procedural fairness. I am not in a position to express any view about that either.
On 28 November, unsurprisingly, given the absence of any information in the application or the affidavit supporting it which identified a relevant jurisdiction of this Court that the applicant was seeking be exercised, Lucev FM directed that the applicant file and serve points of claim, to precisely indicate what it was she was asking this Court to do. She has not done that. She has handed to me something today that purports to comply with that direction. She says that the document was available to be handed up last week, but she alleges that she was prevented from handing it up then.
I have read that document, which will be marked as Exhibit 1 to these proceedings. It recites a number of aspects of the Supreme Court proceedings, but not only does it not raise any matter which identifies issues relevant to a jurisdiction of this Court, it does not even attempt to do so.
The third respondent has asked me to summarily dispose of the application before the Court. Summary dismissal is a power the Court has pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 which says that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
The rule has been made to reflect the power that is given to the Court in s.17A of the Federal Magistrates Court Act 1999. That section is identical in terms to s.31A of the Federal Court of Australia Act 1976. Section 17A provides:
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
It is a power that should be exercised very sparingly. It is a very significant matter to deprive a party of the opportunity for their action to be heard.
The High Court of Australia has reminded us all of the importance of the power and the fact that it should be used sparingly as recently as 2010 in Spencer v Commonwealth of Australia [2010] HCA 28, and I have re-read that decision before turning to deal with the third respondent’s application this morning. In particular, at [24] the High Court says:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence.
And then in that same paragraph, there is a reference to a majority judgment in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 a High Court decision which in turn adopted remarks made by the majority of the High Court in Agar v Hyde [2000] HCA 41:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
The High Court went on in Spencer (supra) at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
There is no aspect of the jurisdiction of this Court that is engaged or potentially engaged by any of the orders the applicant has sought or by any of the matters that are raised in the affidavits that have been filed in support of those orders. It is an assessment that I can approach with a very high degree of clarity. It was formerly the test in respect of applications of this nature that the Court had to be satisfied that the proceeding was “hopeless or bound to fail”. The legislative provision now expressly eschews that test (s.17A(3)). The test is now a different one. It is a question of “no reasonable prospect of success”. So, in that sense, the hurdle is not as high as it used to be, but it is still a significant hurdle that is set. The height of the hurdle is still set in accordance with the passages I have cited form the High Court decision of Spencer (supra).
A very detailed summary of the exercise of the power of summary dismissal in this Court is to be found in the decision of Riley FM of Ladakh Pty Ltd v Quick FashionPty Ltd & Anor [2010] FMCA 919 and, in particular, at [7] - [16]. However, I do not propose to set out those paragraphs other than by reference in these Reasons.
In respect of the injunction sought, no basis has been identified in anything that has been put to me today, or in anything that is on the Court file from the applicant to indicate that any relevant exercise of the Court’s jurisdiction to make injunctive orders is engaged in the dispute I have described, a dispute that has been agitated and has apparently been finalised in the Supreme Court. Certiorari from this Court certainly will not lie in respect of any party to those proceedings. (It is unclear whether whom first respondent is or whether the description conflates two entities.) As for the balance of the orders – “springer order”, “property and seizure order” and “means inquiry” – I am unable to apprehend or find any sensible relation to any aspect of the Court’s jurisdiction that could be engaged by reference to those kinds of orders.
There was, however, during her submissions, a reference by the applicant to a “breach of human rights”. If she is of the view that she has been discriminated against in respect of any matter that is covered by any aspect of Federal Discrimination law, then ultimately this Court has a jurisdiction to deal with such matters. There would have to be the preliminary application to the Human Rights Commission, of course, but I am very, very far from being able to identify (for she has not identified) any relevant aspect of the Court’s Human Rights jurisdiction that has been engaged by the course or outcome of the Supreme Court proceedings. As noted, no relevant breach of any Federal Discrimination law has been alleged.
The applicant is clearly someone who has been distressed on account of participating in the Supreme Court proceedings and, indeed, by the outcome of the Supreme Court proceedings. I can readily imagine, in common with most self-represented litigants, she has found the conduct of those and of these proceedings stressful, but it is a stress she has brought upon herself and it is no function of my task to allow proceedings to continue in the Court when they have no reasonable chance of success. They have no reasonable chance of success, because no relevant aspect of the Court’s jurisdiction has been engaged in the first instance.
In those circumstances, it is inevitable, in my view, that the Court would order the summary dismissal of the application, and, accordingly, pursuant to the power the Court has in Rule 13.10 of the Rules of court, the application filed on 2 November 2011 is summarily dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 1 March 2012