Edwards, Graham v Tandeer Pty Ltd

[1996] FCA 921

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 3167 of 1996
GENERAL DIVISION                 )

BETWEEN:

GRAHAM EDWARDS
  Applicant

AND:

TANDEER PTY LIMITED

Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     12 SEPTEMBER 1996

REASONS FOR JUDGMENT
In this matter the applicant, Mr Graham Edwards, seeks to file an application in Court.  The application seeks orders that a garnishee notice be served on National Australia Bank accounts held in the name of Margaret Gai Smith, trustee of Tandeer Pty Ltd ("Tandeer"), at the Bank's branch at 266 Liverpool Road, Ashfield, 2131, to satisfy a judgment debt in the amount of $3,507.60, plus $638.80 costs to date.

It appears that the applicant obtained a winding up order in respect of Tandeer on 10 May 1996.  A liquidator was appointed to that company.  In July 1996, the applicant filed an application seeking a garnishee order in respect of Margaret Gai Smith, who is said to be a director of Tandeer.  That application was dealt with in a judgment by Einfeld J delivered ex tempore on 9 August 1996.
In that judgment, Einfeld J stated that the purpose of the garnishee order was to obtain payment of what was said to be a debt of $3,437.56 plus $638.80 costs.  Those amounts are almost identical to the amounts referred to in the present application.

In his judgment, Einfeld J described the argument put forward by the applicant.  His Honour indicated that, among other contentions, the applicant relied upon Federal Court Rules ("FCR") Order 37, r.7.  His Honour considered the arguments put by the applicant, but concluded that there was no course open to him other than to dismiss the application.

On 12 August 1996, the applicant attended the registry with a fresh application.  That application was referred to Tamberlin J under FCR, Order 46, r.7A, requesting a direction whether or not to accept a fresh application.  Order 46, r.7A provides as follows:

"If a document presented to a registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it and may seek the direction of a Judge who may direct him:

(a)to accept or issue it; or

(b) to refuse to accept or issue it; or

(c)to refuse to accept or issue it without leave of a judge first had and obtained."

Tamberlin J considered the submissions that were put to him by
the applicant.  His Honour stated that he was not satisfied that the proceeding was in any significant way different from that which has been brought before Einfeld J the previous week.  His Honour concluded that the application was without any proper legal or evidentiary basis.  Accordingly, his Honour directed that the Registrar should not accept the process which the applicant sought to file. 

In my opinion, the present application is substantially identical to that which was brought before and rejected by Einfeld J.  It is also substantially identical to that which was brought before and rejected by Tamberlin J.  No appeal, or application for leave to appeal, has been brought against the decision of Einfeld J. or, for that matter, the decision of Tamberlin J.

It is said by the applicant that, in the application presently before the Court, he is relying upon different provisions.  However, the application again refers to FCR, Order 37, r.7.  This is the same subrule referred to by Einfeld J.  Reference is made in the application to provisions of the Corporation Law, specifically ss. 480(1)(ii) and 536(1).  Both of these subsections concern the conduct of a liquidator, and appear to having nothing to do with garnishee proceedings.  I note that no application is brought to challenge the decision of the liquidator not to apply for a garnishee order.

In my view, the additional reference to the provisions of the Corporations Law adds nothing to the application made by the applicant.  It remains substantially the same application that has been rejected by Judges of this Court on two previous occasions. 

I have endeavoured to explain to the applicant that the reason why there is a barrier to his filing this application is the need to ensure that litigation is brought to an end.  The Court simply cannot function effectively if litigants who fail in applications are free to repeatedly institute substantially the same proceedings.

I repeat that it is always open to an applicant to seek to appeal, or to seek leave to appeal, from orders that he or she considers to have been made erroneously.  If and when such an appeal is brought, of course, the Full Court will deal with the matter according to law. 

In the circumstances, I have reached the same conclusion as Tamberlin J.  I think the present application is without any proper legal or evidentiary basis.  Accordingly, I direct, pursuant to FCR, Order 46, r.7A,  that the Registrar should not accept the application sought to be filed by the applicant.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:

Heard:12 September, 1996

Place:            Sydney

Decision:12 September, 1996

Appearances:      Mr G. Edwards appeared for himself.