George v Fletcher (Trustee)

Case [2009] FCA 264

FEDERAL COURT OF AUSTRALIA

George v Fletcher (Trustee) [2009] FCA 264

PRACTICE AND PROCEDURE – application for leave to appeal orders of Federal Magistrate – application for stay of orders of Federal Magistrate pending related proceedings in Supreme Court – question of whether all of applicant’s evidence was before Federal Magistrate – prejudice to applicant if leave to appeal and stay of orders not granted – prejudice to respondents

Held: Leave to appeal granted. Orders of Federal Magistrate stayed pending delivery of judgment in the appeal.

Federal Court of Australia Act 1976 (Cth) s 24(1)A
Federal Magistrates Act 1999 (Cth) s 17A

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 cited
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322 cited
Croker v Commonwealth of Australia [2007] FCA 1593 cited
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 applied
Fletcher v George & Ors (No 6) [2009] FMCA 69 related
Harrington v Rich [2008] FCAFC 61 applied
Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 530 applied

LAUREN KAY GEORGE (A BANKRUPT) v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT), DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE, NATIONAL AUSTRALIA BANK and SUSAN JANE WILSON

QUD 47 of 2009

COLLIER J
25 MARCH 2009
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 47 of 2009
BETWEEN:

LAUREN KAY GEORGE (A BANKRUPT)
Appellant
AND:

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

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

SUSAN JANE WILSON
Fifth Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

25 MARCH 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Leave to appeal granted from the orders of the Federal Magistrates Court 1, 2, 3, 4, 5, 6, 9 and 10 made on 9th February 2009.

2.The orders of the Federal Magistrates Court numbered 1, 2, 3, 4, 5, 6, 9 and 10 in these proceedings be stayed pending delivery of judgment in the appeal referred to in paragraph 1 of these orders.

3.The hearing in relation to the orders sought in paragraphs 4, 5, 6 and 7 of the amended Notice of Motion filed 6 March 2009 be adjourned to a date to be fixed.

4.Costs be reserved.

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


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 47 of 2009
BETWEEN:

LAUREN KAY GEORGE (A BANKRUPT)
Appellant
AND:

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

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth…

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AGLC
George v Fletcher (Trustee) [2009] FCA 264
Case
[2009] FCA 264
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Ms. George, a self-represented litigant, has been engaged in prolonged litigation with multiple respondents, including a trustee of her bankrupt estate. The case revolves around the ownership and trusteeship of specific properties and assets, with Ms. George asserting that these were held in trust for her minor son. The legal dispute includes declarations about the ownership of property at 130 Landing Place Moggill and various personal properties, which the respondents claim vest in the trustee of Ms. George's bankrupt estate. The Federal Magistrates Court has previously ruled on the matter, issuing declarations and orders that Ms. George is now seeking to appeal.

The primary legal issues before the court involved the interpretation and application of the Bankruptcy Act 1966 and the validity of trusts claimed by Ms. George. The court had to decide whether the Federal Magistrates Court's declarations regarding ownership and the enforceability of certain agreements were correct and whether Ms. George's appeal should be allowed. The court also needed to determine whether the orders of the Federal Magistrates Court should be stayed pending the outcome of the appeal, and whether certain costs should be reserved for further consideration.

The court reviewed the submissions and affidavits of Ms. George, despite their noted lack of precision and relevance. It acknowledged the complexity of the case, the extensive litigation history, and the multiple jurisdictions involved. The court found that the orders of the Federal Magistrates Court were indeed appealable and that there was a sufficient prospect of success for Ms. George's appeal. Consequently, the court granted leave to appeal and stayed the relevant orders of the Federal Magistrates Court pending the appeal's outcome. The court also adjourned the hearing of certain applications and reserved costs for further consideration.

In conclusion, the court's orders included granting Ms. George leave to appeal from specific orders of the Federal Magistrates Court, staying those orders until the appeal is determined, and reserving costs for further determination. The hearing of additional applications was adjourned to a later date.

Orders

Orders of the court

1. Leave to appeal granted from the orders of the Federal Magistrates Court 1, 2, 3, 4, 5, 6, 9 and 10 made on 9th February 2009.

2. The orders of the Federal Magistrates Court numbered 1, 2, 3, 4, 5, 6, 9 and 10 in these proceedings be stayed pending delivery of judgment in the appeal referred to in paragraph 1 of these orders.

3. The hearing in relation to the orders sought in paragraphs 4, 5, 6 and 7 of the amended Notice of Motion filed 6 March 2009 be adjourned to a date to be fixed.

4. Costs be reserved.

Note:

Background

Background to the litigation

There has been extensive litigation between Ms George and the respondents in this matter. The primary litigation in the federal Courts has been in the Federal Magistrates Court where there have been numerous hearings and orders of that court, however this Court has also heard applications by Ms George (including this application). Further, Ms George had earlier commenced proceedings in the Supreme Court of Queensland, and it appears that an application in that court has been set down for hearing next month. The matter is complicated not only by the plethora of hearings and the number of parties, but also by the fact that while Ms George has clearly invested a great deal of time and effort into preparing her case both in this Court and the court below, her submissions, affidavits and pleadings exhibit the familiar problems associated with those of self-represented litigants, and frequently lack precision and relevance.Background facts In summary I understand the background facts relevant to these proceedings to be as follows:1.Ms George became a bankrupt on 24 February 2006 on presentation of her own debtor’s petition.2.Some time during 2008 Ms George commenced proceedings in the Supreme Court of Queensland (Supreme Court proceedings 3474 of 2008) claiming that property at 130 Landing Place Moggill, the registered proprietor of which was the second respondent in these proceedings, was actually held on trust for her minor son, and that Ms George was the trustee of that trust.3.On 7 November 2008 the first respondent filed an amended application in the Federal Magistrates Court seeking, inter alia, declarations that:·as at 24 February 2006 the legal and beneficial ownership of the property at 130 Landing Place Moggill vested in the first respondent as trustee of Ms George’s bankrupt estate in accordance with the Bankruptcy Act 1966 (Cth) (para 2 first respondent’s amended application); and·there was no trust in favour of Ms George’s minor son, Ms George, or any other person in relation to the property at 130 Landing Place Moggill (para 3 first respondent’s amended application).4.On 18 November 2008 the Federal Magistrate directed, in summary, that:·any documents filed in Supreme Court proceedings 3474 of 2008 be taken as filed in the Federal Magistrate Court proceedings;·Ms George’s application for stay of hearing the proceedings in the Federal Magistrates Court pending resolution of her proceedings in the Supreme Court be dismissed;·Ms George finalise her pleadings in the Federal Magistrate’s Court.I understand that the purpose of his Honour’s Order with respect to documents filed in the Supreme Court proceedings was to minimise costs to Ms George.5.On 1 December 2009 Ms George filed an application for leave to appeal the 18 November 2008 Orders of the Federal Magistrate. On 5 December 2009 I dismissed Ms George’s application with costs.6.On 9 December 2008 in the Federal Magistrates Court proceedings the first, second and third respondents applied for summary judgment in respect of para 3 of the first respondent’s amended application.7.The Supreme Court made the file of its own proceedings available to the Federal Magistrates Court for the hearing before the Federal Magistrate. The file was returned to the Supreme Court at an indefinite date, possibly during December 2008. Copies of the evidence in the Supreme Court proceedings – although possibly not all of it – were apparently delivered to the Federal Magistrate on either 6 or 9 February 2009 pursuant to an affidavit of Nicholas Humzy-Hancock sworn 6 February 2009. The evidence before me is unclear as to the circumstances attending the delivery of this material to the Federal Magistrate.8.On 9 February 2009 the Federal Magistrate delivered judgment in relation to first, second and third respondents’ application for summary judgment. His Honour made the following declarations and orders:The Court declared:1.That the Heads of Agreement dated 19 February 2008 and exhibited at WJF-8 to the Affidavit of William John Fletcher sworn 29 October 2008 remains valid and enforceable.2.That as at 24 February 2006 the legal and beneficial ownership of Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 vests in Applicant as trustee of the bankrupt estate subject to the registered mortgage number 710055137 registered in favour of National Australia Bank Ltd ABN 12004 044 937.3.That as at 24 February 2006 the legal and beneficial ownership of the Toyota landcruiser with the licence plate 590FXR, VIN Number: JT11UJA509019411 (V), Engine Number: 1FZ0444996 vests in Applicant as trustee of the bankrupt estate.4.That as at 24 February 2006 the legal and beneficial ownership of the Hanoverian mare known as Stellamarra with the microchip number 939000001109809 vests in the Applicant as trustee of the bankrupt estate.5.That Deed of Settlement between the Applicant and Susan Jane Wilson dated 28 October 2008 remains valid and enforceable and that it be performed.The Court ordered:6.That the application be adjourned for trial on issues arising from relief sought concerning title to chattels and related property stored at or located at Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445 and in respect of relief sought in paragraphs 4 and 10 of the amended application.7.That there be no order as to costs between the Fifth Respondent and the other parties to the application.8.That in respect of Order 7 of these Orders there be liberty to apply by the First Respondent, Lauren Kay George.9.That each party making an application for costs against any other party to the application file and serve upon the other party the subject of such application a written outline in support of such application, including a minute of proposed orders, on or by 4.00pm on 13 February 2009.10.That any person in possession or control of the horse Stellamara with the microchip number 939000001109809 part with possession of the horse into the power of the applicant Trustee in Bankruptcy for Lauren Kay George or his nominee forthwith upon such demand by such person for possession of that horse.11.That the application be adjourned for further mention to 9.30am on 25 February 2009 in the Federal Magistrates Court of Australia at Brisbane.Ms George seeks leave to appeal from O 1, 2, 3, 4, 5, 6, 9 and 10 of his Honour, and an order staying those orders.9.On 18 February 2009 Fryberg J ordered that the Supreme Court proceedings involving the parties be set down for hearing in that Court for three days in April 2009. I understand from the submissions of the parties in these proceedings that Fryberg J said that there was no issue estoppel in the Supreme Court arising from the decision of the Federal Magistrates Court because, inter alia:·further trusts raised by Ms George had not been considered in the Federal Magistrates Court; and·the Federal Magistrate considered different questions to those before the Supreme Court of Queensland.Extracts of the transcript of the hearing before Fryberg J are annexed to the affidavit of Ms George filed 6 March 2009 in these proceedings.Grounds of the application and notice of motion

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J

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Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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