Hogben v Freemasons Hospital - [2003] FMCA 586

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGBEN & ANOR v FREEMASONS HOSPITAL & ORS

[2003] FMCA 586

BANKRUPTCY – Application to set aside bankruptcy notice – no basis for application.

PRACTICE AND PROCEDURE – Indemnity costs.

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1998) 81 ALR 397

Applicants:

LOCKWOOD MURRAY HOGBEN, STANLEY MEDICAL CLINICS & HUMITARIAN FOUNDATION FOR SURVIVORS OF TORTURE INTERNATIONAL INC

Respondents:

FREEMASONS HOSPITAL, SAMUEL ROBERT RICHTER, ROBERT RITCHER & ASSOCIATES AND TREVOR ROSEN

File No:

MZ 1031 of 2003

Delivered on:

8 December 2003

Delivered at:

Melbourne

Hearing Date:

8 December 2003

Judgment of:

McInnis FM

REPRESENTATION

First and Second Applicants:

Mr S Amarasurima as Director of the Second Applicant

Counsel for the First, Second and Third Respondents:

Mr A.W. Sandbach

Solicitors for the First, Second and Third Respondents:

Tress Cocks Maddox

ORDERS

That the applications of the First and Second Applicants before this court be dismissed.
That the applicants pay the respondents' costs of and incidental to these applications to be fixed in accordance with Federal Court scale of costs, and in default of agreement, to be taxed pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1031 of 2003

LOCKWOOD MURRAY HOGBEN, STANLEY MEDICAL CLINICS & HUMANITARIAN FOUNDATION FOR SURVIVORS OF TORTURE INTERNATIONAL INC

Applicants

and

FREEMASONS HOSPITAL, SAMUEL ROBERT RICHTER, ROBERT RICHTER & ASSOCIATES PTY LTD AND TREVOR ROSEN

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

Before the court there are a number of applications which are purportedly filed on behalf of Lockwood Murray Hogben and also on behalf of Stanley Medical Clinics and Humanitarian Foundation for Survivors of Torture International Inc. They are the first and second applicants in various applications before me. Also in various applications there are four respondents named. Freemasons Hospital is the first respondent, Samuel Robert Richter, the second respondent, Robert Richter and Associates Pty Ltd, the third respondent, and Trevor Rosen, the fourth respondent.
For the purposes of today's hearing the respondents were represented with Mr Sandbach appearing for the first, second and third respondents, and Mr Thompson for the fourth respondent. Solely for the purpose of the matter before me today I have permitted a person purporting to be a director of the second applicant to appear for and on behalf of the second applicant and in the circumstances arising out of what purports to be a general power of attorney for the first applicant made 28 September 2003 to appear and represent the first-named applicant.
The person appointed has indicated to the court that he is known by the name of Amarasurima, but in the general power of attorney I note that the power of attorney, which he acknowledges is a power of attorney granted to him by Mr Hogben, refers to his full name namely “Stanley Priyadarashan Maitreya Harendra Vasantha Fitzroy-Mendis Amarasuriya Asia Abraham Lincoln III”. Although applications made by Mr Amarasurima to appear for first and second applicants in circumstances where I have reservations about whether that should occur, it appears that there is no objection being taken this day in representing the applicants. I have heard submissions made on behalf of the applicants.
The court has before it a notice of motion which the fourth respondent filed on 27 November 2003. That application seeks to summarily dismiss the applicants' applications which are before the court.

I indicated earlier that to the extent that the first, second and third respondents join with the fourth respondent in that application, I am prepared to hear the matter this day and to do so on the basis that it is an application essentially for all of the respondents. In the circumstances it is proper that I direct that so much of the rules be dispensed with which would prevent the first, second and third respondents to join in the application for summary dismissal.
Determining what is sought to be dismissed is not an easy task. The court has before it a number of documents purporting to be applications. The first purports to be an application filed on 16 September 2003. In that application the applicants seek to set aside a bankruptcy notice 27 August 2003. There are further interlocutory orders sought and those interlocutory orders relate to discovery and a further order sought for costs and damages. Attached to that application is a document purportedly sworn by Lockwood Murray Hogben on 16 September 2003.
The court also has before it an application purportedly filed on 24 September 2003. In that application again an order is sought to set aside the bankruptcy notice received on 27 August 2003. Attached to that application is an affidavit purportedly sworn by Lockwood Murray Hogben on 24 September 2003. The particulars of jurat of that affidavit have not been completed. A request by the court for the original of the affidavit was met with a response that there did not appear to be the original in court. I am not satisfied that affidavit has been duly or properly sworn and I disregard it.
A further application purportedly filed on 30 September 2003 has attached to it a notice of motion which effectively seeks to have the matter transferred to the Federal Court of Australia. That application has attached to it an affidavit of Mr Amarasurima, though setting out his full name referred to earlier in this judgment. It is sworn 30 September 2003. It annexes a general power of attorney to which I referred earlier. Also attached to that application is an affidavit of Lockwood Murray Hogben sworn 24 September 2003 which has particulars of jurat completed.
A further application purports to have been filed in court on 30 October 2003. In that application a notice of motion is attached which seeks orders that the bankruptcy notice number V 1221 of 2003 against Lockwood Murray Hogben be dismissed. Assertions are made in relation to what is described as ‘malicious’ pursuit of a claim and other matters are raised in that notice of motion which I do not need to refer to in this judgment. There is, however, attached to that application a further affidavit purportedly sworn by Mr Amaris Sarima and that has attached to it a number of annexures.
In support of the application for summary dismissal it has been submitted by counsel for the fourth respondent that I should rely upon the affidavit material filed in support of that application for summary dismissal. In particular, it is noted the court has before it an affidavit of Trevor John Rosen sworn 26 November 2003. On file there is an affidavit of Samuel Robert Richter sworn 29 October 2003, an affidavit of Hugh William McLaren sworn 12 November 2003 and an affidavit of James Ian Swinden sworn 29 October 2003. Despite the somewhat confused nature of the applications and the proceedings before the court, it seems evident to me that there is at least an application for summary dismissal of applications which I should describe as applications to set aside a bankruptcy notice and otherwise applications to set aside the application seeking to transfer these matters to the Federal Court of Australia.
It is perhaps useful by way of background to at least note that in this matter the bankruptcy notice, which is the subject of the application to set aside, had been before Registrar Connard on 16 September 2003. On that date the registrar ordered the time for compliance with the bankruptcy notice be extended until 4 pm on 30 September 2003. The registrar further ordered that the applicant serve the application, a sealed copy of this order and a copy of the affidavit in support on the respondent forthwith.
According to the file, when the matter came before the court on 30 September 2003 before Registrar Mussett there was an appearance for Mr Hogben, but I cannot determine whether there were other appearances that day. No order was made. There is a note that “Time for compliance was not extended: application provides no evidence that any basis for setting aside B/N exists”. The applicant's representative advised would seek legal advice”.
The matter then appears to have returned to the court on 30 October 2003. On that occasion it would appear that there was some representation for the applicant and Mr Sandbach appeared for the respondents; that is, for the first, second and third respondents. It appears from the note that the matter was then adjourned to the court on this day. It is clear, therefore, that there has not been an extension of time for compliance with the bankruptcy notice. Presumably that time has expired.
It is submitted in the circumstances that I should consider the background material and note that the basis upon which the bankruptcy notice was issued arose from a consent judgment which had been entered against the first-named applicant where the first-named applicant was the judgment debtor and Freemasons Hospital, the first respondent, was the judgment creditor. The judgment which was entered was entered in the Magistrates Court in March this year; that is, precisely on 17 March 2003. According to the affidavit of Mr Rosen, to which I have referred, there was a hearing on that date before Magistrate Braun. Mr Rosen deposes that he recalls that Mr Hogben, the first applicant, had an opportunity to explain his defence to Mr Braun and it would appear that the same person purporting to appear for the first and second applicants also appeared at that hearing.
After some hearing of evidence and submissions it would appear that there was some agreement in terms of a consent to enter judgment. It would appear that process is the subject of dispute. It further appears from the affidavit material to which I have referred that there are some proceedings pending in the County Court. It is also clear that the applicant seeks to pursue a variety of claims against each and every one of the respondents, both in the County Court and/or in the Federal Court with some proceedings said to arise under the Trade Practices Act for unconscionable conduct.
From the material before me I can see no basis upon which the second applicant should be a party to this application. I can see no basis upon which the second, third and fourth respondents should be parties to this application to set aside a bankruptcy notice. Therefore, it is clear that having regard to the principles in relation to summary dismissal, that the claims for and on behalf of the second applicant and claims for and on behalf of the first and second applicant against the first, second and third respondents should fail as they are clearly misconceived and are so hopeless as to not be permitted to proceed in this court and therefore should be summarily dismissed.
In making an order for summary dismissal I am conscious of the High Court authority in the matter of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and in particular the comments made by Dixon J as follows:-
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that the transition is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process”.
In my view, it remains only to consider whether or not there is any substance at all in the application to set aside the bankruptcy notice in which the first respondent is named as the judgment creditor. The material before me contains a number of assertions about the judgment entered by consent before the Magistrates Court. It seems to me on a proper reading of the material that there may be grievances and complaints which should be aired in other courts to the extent that they may be entertained, but I cannot on the material before me see any proper basis upon which this court should be minded to set aside the bankruptcy notice having regard to the requirements of the Bankruptcy Act. To the extent that it is necessary, I will briefly refer to those provisions in this judgment and incorporate such relevant authorities as may be useful.
It follows, therefore, that on the material currently before me the appropriate course for this court to take is to make the following orders:
(1)The applications of the First and Second Applicants before this court be dismissed.
(2)The applicants pay the respondents' costs of and incidental to these applications to be fixed in accordance with Federal Court scale of costs, and in default of agreement, to be taxed pursuant to Order 62 of the Federal Court Rules.
In this matter I have made an order that the applications be dismissed and the applicants pay the respondents' costs. An application has been made that in the circumstances having regard to my judgment the costs should be costs on an indemnity basis. I have been referred to the Federal Court decision of Woodward J in the matter of Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1998) 81 ALR 397. In particular, I was taken to an extract at page 401 as follows:-
“No doubt the expression ‘high-handed presumption’ was appropriate in the case of Tadgell J had to decide, and he needed to go no further; but in order to establish a convenient principle in such cases it is necessary to be a little more prosaic. I believe that it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases, the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.”
In my view, when given an opportunity to respond to the indemnity costs application the representative of the first and second applicants further confirmed in a sense the nature of complaint where vague and unsubstantiated assertions have been made of a kind that might be regarded as tantamount to either fraud allegations or malicious pursuit of a claim and/or even to some extent an issue of claimed perjury. None of those matters have any evidentiary basis before this court, nor indeed are they matters which this court regards as relevant to the exercise of its discretion to summarily dismiss given the total absence of material upon which the court could rely.
It is clear to me that the proceedings are misconceived. It is equally clear to me that the authority to which I have referred does apply in the present circumstances. Accordingly, the costs order will be costs on an indemnity basis.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 8 December 2003