Fletcher v George and Ors (No.7) - [2010] FMCA 541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLETCHER v GEORGE & ORS (No.7)

[2010] FMCA 541

BANKRUPTCY – PRACTICE & PROCEDURE – Federal Magistrates – disqualification from hearing case – perception of bias – turgid proceedings – self represented litigant – involved in other proceedings in other courts including the Supreme Court of Queensland, the Court of Appeal Queensland and the Full Court of the Federal Court.

Bankruptcy Act 1966 (Cth)

Clampett v Attorney-General of the Commonwealth of Australia [2009] FCAFC 151
Johnson v Johnson (2000) 201 CLR 488
Tomasevic v Travaglini (2007) 17 VR 100

Applicant:

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT)

First Respondent:

LAUREN KAY GEORGE

Second Respondent:

DR PETER IRONSIDE PTY LTD

Third Respondent:

DR PETER DOUGLAS IRONSIDE

Fourth Respondent:

NATIONAL AUSTRALIA BANK LIMITED

Fifth Respondent:

SUSAN WILSON

File Number:

BRG 709 of 2008

Judgment of:

Burnett FM

Hearing date:

16 July 2010

Date of Last Submission:

16 July 2010

Delivered at:

Brisbane

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr C.D. Coulsen

Solicitors for the Applicant:

Holman Webb

Solicitors for the First Respondent:

The First Respondent appeared on her own behalf

Solicitors for the Second Respondent:

Bell Dixon Butler Lawyers

Solicitors for the Third Respondent:

Bell Dixon Butler Lawyers

Solicitors for the Fourth Respondent:

Thynne & Macartney

Solicitors for the Fifth Respondent:

Lewis & McNamara Solicitors

ORDERS

That the application filed by leave on 16 July 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 709 of 2008

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT)

Applicant

And

LAUREN KAY GEORGE (A BANKRUPT)

First Respondent

DR PETER IRONSIDE PTY LTD

Second Respondent

DR PETER DOUGLAS IRONSIDE

Third Respondent

NATIONAL AUSTRALIA BANK LIMITED

Fourth Respondent

SUSAN WILSON

Fifth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The bankrupt makes application today for me to disqualify myself from the further conduct of this proceeding. The application seeks orders in terms of paragraphs 1 to 4 of her application, which she was granted leave to read and file today, but in summary, that is the essence of it.
This application represents another chapter in what can only be described as turgid proceedings. What ought to have been a relatively straightforward personal sequestration process has been significantly complicated by the manner in which the bankrupt has complicated her affairs, and in doing so, the manner in which the trustees have had to respond.
In doing this, she has not had the benefit of informed legal advice, and additionally since the involvement of her trustee, she has been involved in other proceedings in other courts, including the Supreme Court of Queensland, the Court of Appeal, Queensland, and the Full Court of the Federal Court. I note that she presently seeks special leave to appeal – in the High Court – one of the decisions of the Full Court of the Federal Court.
She does so, and has done so as a self-represented litigant.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 541
Decision Date: 16 July 2010

CaseChat Overview and Summary

The matter before the court was a dispute between Fletcher and George and others. Fletcher sought leave to amend a claim that had already been dismissed, and this application was opposed by the respondents. The application for leave was dismissed by the court. The legal issue before the court was whether Fletcher should be granted leave to amend a claim that had already been dismissed. The respondents argued that the amendment would be an abuse of process and that it was an attempt to re-litigate issues that had already been determined. The court considered the relevant factors for granting leave to amend a pleading, including whether the amendment would cause delay or prejudice to the respondents. The court found that the amendment was an attempt to re-litigate issues that had already been determined and that it would cause significant delay and prejudice to the respondents. The court held that the application should be dismissed. The court found that the amendment was an abuse of process and that it was not in the interests of justice to grant leave to amend the claim. The court dismissed the application and made no order as to costs.

Orders

Orders of the court

That the application filed by leave on 16 July 2010 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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