Bruyn v Witjitpun

[2007] HCATrans 206

[2007] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C8 of 2006

B e t w e e n -

JOHN (JOHANNES) BRUYN

Applicant

and

BENJAMAS WITJITPUN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MAY 2007 AT 9.16 AM

Copyright in the High Court of Australia

KIRBY J:   This is an application for special leave to appeal from a judgment of the Full Court of the Family Court of Australia.  That Court (Bryant CJ, Kay and Boland JJ) dismissed an appeal by the applicant against orders made by Faulks DCJ on 1 November 2005.  The Deputy Chief Justice had dismissed the applicant's application to the Family Court.  That application had come against a background of extensive litigation. 

The applicant and the respondent were married in 1991.  They separated in 1995.  Their marriage was later dissolved.  There has been a long saga of proceedings in the Family Court, mostly concerned with the disposition of the property of the parties to the former marriage.  In respect of one such proceeding the applicant, in November 2004, sought special leave to appeal to this Court.  Such leave was denied on 26 May 2005 by orders made by Gleeson CJ and Gummow J. 

This second application concerns the later application, filed in June 2005, returned before Faulks DCJ in October 2005.  By that application, which was subsequently amended, the applicant sought a variety of orders.  These included an application for "cross-vesting of the Corporations Act (Cth) and the Bankruptcy Act (Cth) and the Trade Practices Act (Cth) and the Federal Court of Australia Act". As well, he sought orders that his bankruptcy, dated 11 September 1998, be annulled by the Family Court. Substantively, he claimed orders, pursuant to s 79A of the Family Law Act that an earlier judgment and orders of Finn J of 27 February 1998 be set aside, apparently on the basis that they were procured by false evidence, fraud, conspiracy to pervert the course of justice, breaches of fiduciary duty and on other grounds. 

Faulks DCJ ordered the summary dismissal of this application.  He concluded that the application was, in substance, frivolous and vexatious and that it was appropriate to make an order restraining him from bringing further proceedings about property without leave of the Family Court.

The Full Court detected an error in the reasoning of Faulks DCJ. Specifically, the Full Court pointed out that his Honour had erred in holding that the applicant needed leave to have the earlier orders of Finn J set aside under s 79A of the Family Law Act.  Having identified this error, the Full Court proceeded to express its own conclusion, absent that error.  In the result, it decided that the actual orders entered by Faulks DCJ were correct; should be affirmed; and therefore that the appeal from his judgment should be dismissed.

The applicant's second application for special leave to appeal to this Court is discursive, ill-focussed, verbose and obscure.  For example, the first basis of his argument is a contention "that the Family Law Act is unconstitutional and ambiguous, and/or, the Family Court has misinterpreted its duty under the Family Law Act 1975".

We make full allowance for the fact that the applicant is self‑represented and is disadvantaged by the lack of legal advice.  However, we find no error in the careful and painstaking examination of the case by the Full Court.  Certainly, we are unconvinced by the applicant's written case that he has demonstrated reasonable prospects of success in an appeal, were special leave granted.  No injustice and no point of general importance is apparent.

Because the applicant is unrepresented, his application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish that disposition signed by Justice Callinan and myself.

AT 9.20 AM THE MATTER WAS CONCLUDED