Day v Gould, in the matter of Gould

[2002] FCA 1250

FEDERAL COURT OF AUSTRALIA

Day v Gould, in the matter of Gould [2002] FCA 1250

IN THE MATTER OF STEPHEN GOULD

JULIAN DAY & ANOR v STEPHEN GOULD
N 7025 of 2002

STONE J
2 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7025 OF 2002

BETWEEN:	JULIAN DAY FIRST APPLICANT
ALAN MANLY SECOND APPLICANT
AND:	STEPHEN GOULD RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	2 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1. The Registrar refuse to accept the respondent’s notice of motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7025 OF 2002

BETWEEN:	JULIAN DAY APPLICANT
ALAN MANLY SECOND APPLICANT
AND:	STEPHEN GOULD RESPONDENT

JUDGE:	STONE J
DATE:	2 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me a request from the acting District Registrar in the New South Wales Registry for a direction pursuant to O 46 r 7A of the Federal Court Rules.  The respondent has presented to the Registry for filing a notice of motion and supporting affidavit.  The notice of motion seeks to set aside certain summonses, issued on 5 June 2002 under the Bankruptcy Act 1966 (Cth), to attend for examination, or, in the alternative, to vacate the hearing date for the examinations pursuant to those summonses that are listed for hearing tomorrow, 3 October 2002. 

2. The respondent has been given an opportunity in Court to persuade me that I should not direct the Registrar to refuse to accept the notice of motion.  He has not been successful in his attempt.  The summonses were issued by the first applicant, Mr Julian Day, on 5 June 2002 to various named persons.  On 16 July 2002, Madgwick J considered a notice of motion brought by the respondent asking the Court to strike out these summonses; Day v Gould, in the matter of Gould [2002] FCA 936. In his decision his Honour stated, at [4]:

   “There is no evidentiary material before me to suggest that the summonses are oppressive or have been improperly issued and no submission has been made which would persuade me that there is anything wrong with the summonses.  The summonses were issued after the Court received an affidavit indicating why they were being issued.”

3. The position before me is exactly the same as that before Madgwick J.  It is, however, made more extreme by the fact that his Honour has already considered this issue.  The proposed notice of motion is one in a series of objections and challenges by the respondent to his bankruptcy and to the administration of it.  In my opinion the notice of motion is an abuse of the process of the Court and is frivolous and vexatious.  For this reason, I direct the Registrar to refuse to accept it. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             10 October 2002

Counsel for the First and Second Applicant:	The First and Second Applicant did not appear
Counsel for the Respondent:	The Respondent appeared in person
Date of Hearing:	2 October 2002
Date of Judgment:	2 October 2002