Horvath v CBA
[2001] FMCA 35
•18 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
GABOR HORVATH SENIOR v COMMONWEALTH BANK OF AUSTRALA : PAUL A PATTISON (TRUSTEE) AND COMMONWEALTH BANK OF AUSTRALIA v GABOR HORVATH SENIOR [2001] FMCA 35
BANKRUPTCY – Purported application to set aside Bankruptcy Notice – Jurisdiction to amend – Compensation – Abuse of process – `Habitually and persistently’ – `without any reasonable ground’ – Vexatious proceeding – Federal Court Rules Order 46 Rule 7A – Federal Court Rules Order 18 Rule 4(1) and (2) not applicable – Courts acting in aid of each other – Bankruptcy Act ss 27(1) and 29
PRACTICE AND PROCEDURE – Federal Magistrates Court of Australia - Application that Respondent not institute proceedings against Applicants – vexatious litigant “habitually and persistently”, “without any reasonable ground”, “vexatious proceedings in the Court or any other Australian Court”, Federal Court Rules Order 21 Rule 2 – initiating process – administrative act – power of Federal Magistrates – Federal Magistrates Act 1999 ss 8, 89(1), 96(1)(2)(4), 99(1)(a)
Jones v Skyring (1992) 66 ALJR 810; 109 ALR 303
Horvath v Chambers (1999) VSC 499
Williams v Spautz (1992) 174 CLR 509
Horvath v Pattison (1999) FCA 1388
Horvath v Pattison (1999) FCA 924;
Walton v Gardner (1993) 177 CLR 378
Attorney-General NSW v Wentworth (1988) 14 NSWLR 481-492.
Clunies-Ross (1988) 82 ALR 475
R. v Johnston; ex parte Ward (1915) VLR 659
Mortimore v Stecher (1971) VR 866
Horvath v Commonwealth Bank of Australia (1999) FCA 504
File No: | MZ 246 of 2001 |
| Applicant: | GABOR HORVATH Senior |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
File No: | MZ 364 of 2001 |
| First Applicant: | PAUL A PATTISON (Trustee) |
| Second Applicant: | COMMONWEALTH BANK OF AUSTRALIA |
| Respondent: | GABOR HORVATH Senior (Bankrupt) |
| Delivered on: | 18 July 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 4 June 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
MZ 246 of 2001
| Applicant: | Mr G Horvath in person |
| Counsel for the Respondent: | Mr S Glacken |
| Solicitors for the Respondent: | Middletons Moore & Bevins |
MZ 364 of 2001
| Counsel for the Applicant: | Mr S Glacken |
| Solicitors for the Applicant: | Middletons Moore & Bevins |
| Respondent: | Mr G Horvath in person |
ORDERS
In proceeding MZ 246 of 2001
The application be dismissed.
The Notice of Motion dated 11 May 2001 be dismissed.
The Notice of Motion dated 28 May 2001 be dismissed.
The applicant pay the respondent’s costs (including reserved costs) to be taxed in default of agreement of the application and the Notices of Motion referred to in the preceding orders herein.
In proceeding MZ 364 of 2001
The respondent shall not without the leave of a Federal Magistrate institute in the Federal Magistrates Court any proceeding against one or both of the applicants.
I DIRECT the officers of the Federal Magistrates Court, including the Chief Executive Officer and/or any Registrar:
(a)to refuse to seal any document constituting an application or a process for the commencement of a proceeding by or in the name of the respondent where the form or contents of the document show that the proceedings to be commenced would be irregular and/or an abuse of process without first obtaining a direction from a Federal Magistrate;
(b)to refuse to accept for filing any document by or in the name of the respondent that is not prepared in accordance with the Federal Magistrates Act 1999 and the Rules of Court without first obtaining a direction from a Federal Magistrate.
The respondent shall pay the applicants’ costs including reserved costs of this application to be taxed in default of agreement.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MZ 246 of 2001
GABOR HORVATH Senior
Applicant
And
COMMONWEALTH BANK OF AUSTRALIA
Respondent
MZ 364 of 2001
PAUL A PATTISON (Trustee)
First Applicant
COMMONWEALTH BANK OF AUSTRALIA
Second Applicant
And
GABOR HORVATH Senior (Bankrupt)
Respondent
REASONS FOR JUDGMENT
The applications
This is a judgment which relates to two applications before the Court. The first application is MZ 246 of 2001 wherein Gabor Horvath (Senior) (“Mr Horvath Snr”) is the applicant and the Commonwealth Bank of Australia (“CBA”) is the respondent (the first application).
The second application MZ 364 of 2001 is an application where Paul A Pattison (Trustee) and the Commonwealth Bank of Australia (CBA) are the applicants and Mr Horvath Snr is the respondent (the second application).
At the commencement of the proceedings Mr Glacken, counsel for CBA and Paul Pattison, made application that the two applications be heard together though he submitted that the first application should be determined first and that depending upon the outcome in that matter, the Court should then proceed to deal with the second application. After considering the application and submission made by Mr Horvath Snr, I decided to agree to the orders sought by Mr Glacken and directed that both applications be heard together, though indicated I would deliver a judgment in the first of the applications and then follow that with judgment in the second matter.
It is relevant for the present applications to note that Mr Horvath Snr and Agota Horvath are the parents of Gabor Geza Lajos Horvath (“Horvath Jnr”).
The First Application — Horvath Snr v Commonwealth Bank of Australia
The first application as amended and filed on 8 May 2001 by Mr Horvath Snr against the CBA seeks orders as follows:
“THE COURT ORDERS THAT:
1.This application be heard; under Order 18 rule 4 subrule (1) and (2)
2.Order for interlocutory relief be given to the applicant under Order 18 rule 4 subrule (1) and (2)
3.The “CBA” pays the cost of this application
CLAIM FOR INTERLOCUTORY RELIEF
And the Applicant claims by way of interlocutory relief:
1.The Commonwealth Bank of Australia Refund all the moneys paid to them by Gabor and Agota Horvath including with interest $752,506.88
2.The Commonwealth Bank of Australia pay $30,000,000 (Thirty Million Dollars) compensation to Gabor Horvath Senior and to Agota Horvath and to Gabor Horvath Junior
3.The Defendants recover possession of the land described in the Statement of Claim on the Writ as the land being Lot 5 on Plan of Subdivision 209632N and more particularly described in Certificate of Title Volume 9801 Folio 263 and being the land situated at and known as factory 1 and factory 2, 9 Superior Drive, Dandenong South, Victoria the registration of the instrument of mortgage of the said land be deleted from the Registrar of Title the plaintiff Commonwealth Bank of Australia set aside the bankruptcy of Gabor Horvath and Agota Horvath, the Commonwealth Bank of Australia pay the taxed cost including, any reserved costs all costs of the Defendants and the costs of the Registrar of Title.”
In this application it will be noted that the orders sought purport to be an application for judgment on admissions under Order 18, Rule 4, Subrules (1) and (2). In my view, it is inappropriate to refer to Order 18, Rule 4, Subrules (1) and (2) of the Federal Court Rules. The point that was sought to be made by Mr Horvath Snr seem to relate to a failure allegedly by the respondent in this application to properly file and serve a Notice of Address for Service or Notice of Appearance. That matter had clearly been addressed in a Notice of Conditional Appearance which was filed on 25 May 2001 and in those circumstances I find there is no substance at all in the reference by the applicant to Order 18. In addition to reference to Order 18, the applicant sought orders in broad terms for damages and recovery of possession of land.
It is difficult in this case to identify the jurisdictional basis upon which the claim is made, save to say that the orders sought in the application, in my view, resemble closely orders sought and issues agitated in numerous Court proceedings between the applicant and the respondent over many years.
At best it may be argued that this is an application to set aside a bankruptcy notice. On 12 February 1997 Justice Merkel in the Federal Court of Australia in proceedings VP 990 of 1996 made a sequestration order against Mr Horvath Snr and Mrs Horvath and appointed Paul Anthony Pattison as the trustee of their estates. That sequestration order was made on the application of the CBA and the act of bankruptcy relied upon by the CBA was the failure of Mr Horvath Snr and Mrs Horvath to comply with the requirements of a bankruptcy notice dated 12 March 1996. The bankruptcy notice relied on a judgment debt constituted by a judgment obtained by the CBA against Mr Horvath Snr and Mrs Horvath on 24 February 1995 in Victorian Supreme Court proceeding 9168 of 1994. Although not clear on the face of the application it would seem that this is another attempt to go behind that judgment and/or set aside the bankruptcy notice. Even if I were to interpret it as such a measure there is no basis upon which I should go behind the judgment and nor is there any legal basis which would permit or encourage me to do so. I am satisfied that there is no reason shown to question whether I should go behind the judgment or set aside the bankruptcy notice (Wren v Mahony (1971) 126 CLR 212). Although I am not satisfied the application constitutes a formal application to set aside bankruptcy notice I find that even if it were the case there is no basis upon which the Court could attempt to set aside the bankruptcy notice in this matter. In any event as indicated in the chronology of litigation referred to further in this judgment, the fact of the matter is that an application to set aside the bankruptcy notice has already been unsuccessful and in my view cannot be re-litigated.
The extent and breadth of the proceedings between the applicant and respondent has been usefully summarised in a judgment by Justice Weinberg in two applications, namely VG 649 of 1998 and VG 661 of 1998, delivered on 27 April 1999 [1999] FCA 504 (the Weinberg judgment). In that case Mr Horvath Snr and Agota Horvath were the applicants in Application VG 649 of 1998 and in the Application VG 661 of 1998 Paul Pattison (trustee) and Commonwealth Bank of Australia were applicants against Mr Horvath Snr and Agota Horvath.
Weinberg J made the following orders:
“In proceedings VG 649 of 1998:
1.The application for leave to file and serve defences be dismissed.
2.The applicants pay the respondent’s costs.
In proceedings VG 661 of 1998:
1.Mr Gabor Horvath Senior and Mrs Agota Horvath shall not, without the leave of the Court, institute in this Court any proceedings against Mr Paul A Pattison, their trustee in bankruptcy, or against the Commonwealth Bank of Australia other than an appeal against this order.
2.Any proceedings instituted by either Mr Gabor Horvath Senior or Mrs Agota Horvath in this Court against their trustee in bankruptcy, or the Commonwealth Bank of Australia, prior to my having made this order, shall not be continued by them without the leave of the Court, other than an appeal against this order.
3.The respondents shall serve upon the applicants any proposed application for the leave of the Court to institute any proceedings against the applicants at least three clear days prior to that application being filed in Court.
4.Any such application by the respondents shall be made ex parte unless the applicants seek to be heard in relation to that application.
5.The respondents pay the applicants’ costs.”
As indicated, the background facts and circumstances and analysis of the competing claims, including a detailed analysis of the litigation saga which has taken many years, are set out clearly in the Weinberg judgment. I do not propose re-stating those facts in the same detail and simply adopt that summary for the present case.
In brief, it is noted that on 24 February 1995 the CBA obtained a default judgment against Mr Horvath Snr and Mrs Horvath for possession of land and the payment of money in connection with a loan and a mortgage. Mr Horvath Snr, Mrs Horvath and Horvath Jnr had made application to set aside the default judgment obtained on 20 January 1995. The application of Horvath Jnr was in part successful, but the application by Mr Horvath Snr and Mrs Horvath was unsuccessful. The CBA appealed the decision made by the Master and that decision was upheld by Justice Beach who also, prior to upholding the decision as against Horvath Jnr, lifted the stay that had been granted in relation to execution in favour of Mr Horvath Snr and Mrs Horvath. Mr Horvath Snr and Mrs Horvath did not appeal against the decision of Justice Beach, hence the judgment against them was enforceable by the bank.
CBA appealed against the Master’s ruling insofar as it applied to Gabor Horvath Junior and Justice O’Bryan on 2 April 1996 found in favour of the CBA. An appeal against the decision of Justice O’Bryan was unsuccessful in the Court of Appeal.
On 12 March 1996, the CBA issued a Bankruptcy Notice directed to Mr Horvath Snr and Mrs Horvath who then made application to have the Bankruptcy Notice set aside. That application was refused by a Registrar and Mr Horvath Snr and Mrs Horvath appealed that decision. On 29 May 1996, Justice Northrop dismissed the appeal.
On 3 October 1996, CBA presented a Creditors Petition for the making of a sequestration order against the estates of Mr Horvath Snr and Mrs Horvath and on 12 February 1997 Justice Merkel made a sequestration order sought by the CBA. Mr Horvath Snr and Mrs Horvath appealed the making of the sequestration order. On 4 June 1997, a Full Court of the Federal Court dismissed the appeal.
It is clear to me, however, that in the present application the issues sought to be raised in this Court are similar to and/or identical to those issues summarised in the Weinberg judgment.
The application before this Court was purportedly supported by an affidavit of Mr Horvath Snr sworn 18 April 2001 and a further affidavit sworn 8 May 2001. The first of those affidavits has annexed to it a document entitled “Form 25 Notice to Admit Facts (and Authenticity of Documents) (Order 18 Rule 2). Some reliance was placed upon that document as it makes reference in its text to sections 49, 50 and 51 of the Supreme Court Act.
The material presently before this Court, as indicated raise, or attempt to raise, similar and/or identical issues to those raised in the Supreme Court proceedings. In his submissions, Mr Horvath Snr indicated to this Court that the issue of sections 50 and 51 of the Supreme Court Act were not properly considered or agitated before the Supreme Court. It is noted that amongst the numerous cases to which I have been referred, was the unreported judgment of O’Bryan J, delivered on 2 April 1996, wherein the Commonwealth Bank of Australia was plaintiff, Mr Horvath Snr first defendant, Agota Horvath second defendant and Horvath Jnr third defendant. Although the judgment was against Horvath Jnr, it is obvious to me that the findings and deliberations in that case are the basis upon which Mr Horvath Snr expresses concern and is continuing to raise objections and seeks to re-agitate issues which arose in that case. However, in that case, His Honour stated on page 3 thereof that, “… sections 50 and 51 in subdivision IV of Part V have no application to the facts of the present case.”
In the present case I agree with what His Honour Justice O’Bryan said in relation to sections 50 and 51 of the Supreme Court Act.
I cannot see any possible basis upon which the current application can succeed. The orders sought are not within the jurisdiction of this Court and indeed, as indicated earlier, it is difficult to determine any possible jurisdictional basis at all for the orders sought. In any event even if I were to find this was an application to set aside the bankruptcy notice to which I have referred it is clear that matter has already been dealt with by the Federal Court and should not be re-litigated. For the sake of completeness I find there is no basis upon which I should set aside the bankruptcy notice.
In addition to the application, it is noted that the applicant Mr Horvath Snr has filed a Notice of Motion dated 11 May 2001 wherein he seeks the following:
“1.that the order of the applicant AMENDED application No.
MZ 246 of 2001 for interlocutory relief under Order 18 Rule 4 Subrule (1) and (2) of the Federal Court Rules by the consent of Respondent be given;2.that the Registrar settle the order of the applicant lodgment – Form 47 on the consent of the respondent and on the Applicant request under Order 36 Rule 5 Subrule (3)(b) of the Federal Court Rules, “a party so requests”;
3.that the Registrar on the request of the applicant to enter an order under Order 35 Rule 9 Subrule (2) of the Federal Court Rules on the request of the Applicant;
4.such further other orders as the Honourable Court deems appropriate.”
The Notice of Motion dated 28 May 2001 seeks the following orders:
“1.that the No. MZ 246 of 2001 Notice of Conditional Appearance and the Application No. MZ 364 of 2001 by the respondent “CBA” dated and filed 25 May 2001 be set aside as breach of contempt under Order 40 rules 1, of the Federal Court Rules;
2.that the No. MZ 246 of 2001 Notice of Conditional Appearance and the Application No. MZ 364 of 2001 dated and filed 25 May 2001 is a conspiracy by the Respondent, conspiracy to defeat justice, breach of Part III of the Crimes Act 1914 of the Commonwealth, s 42 Conspiracy to defeat justice;
3.that the respondent pay the costs of this application;
4.such further other orders as this Honourable Court deems to appropriate.”
I have recited verbatim each of the orders sought in the respective Notices of Motion and it is clear, in my view, that those Notices of Motion which are before the Court cannot be sustained on any ground whatsoever. I do not propose analysing each and every order sought, but conclude that each and every application is without merit and without substance and/or is misconceived and/or seeks to agitate issues which have been previously the subject of litigation over a number of years. I am satisfied that this Court does not have power to make the orders which are sought and indeed the application does not disclose any cause of action which would be considered part of the jurisdiction of this Court.
I have dealt with the issue of whether affidavit material and/or conditional appearance was appropriate in this Court.
For the sake of completeness, I should add that the applicant provided a further affidavit sworn 28 May 2001 where again he recites the past history of other proceedings and seeks to further support his Notices of Motion and/or application.
As I have indicated, it is not proposed to recite the detailed and complex issue of litigation in this matter, save to say that it is clear on all the material that there have been numerous attempts by Mr Horvath Snr to re-litigate the issues which he undoubtedly feels had been decided against him in an unfair or unjust manner. Nothing will change his perception. An indication of the depth of feeling he has in relation to these matters is revealed by reference to transcript in proceedings which occurred on 23 and 26 October 1998 in the Federal Court of Australia, again before Weinberg J, where both Mr Horvath Snr and Mrs Horvath filed two applications for leave to commence proceedings under sections 99 and 178 of the Bankruptcy Act. In those applications, orders were sought for officers of the CBA to produce documents, annulment of the bankruptcy of Mr Horvath Snr and Mrs Horvath and compensation of $155,259.26. On 30 October 1998, the two applications were heard by Justice Weinberg and both applications were refused. It is significant that during the hearing of those applications before Justice Weinberg, Mr Horvath Snr made it clear that he would continue to make applications to the Federal Court in an attempt to obtain the relief he was seeking. I was referred in particular to the following extracts from the transcript of those proceedings where at page 48 His Honour says:
“Now they’ve been put against you, and I’ll say it again, that you’ve already had this point determined against you on any number of occasions, both in the Supreme Court and this Court. The judges have considered the very matters that you have raised before me today, and I think it’s correct to say on every occasion they have not permitted you to go behind the judgment.”
In the same transcript Mr Horvath Snr says,
“I will have to come back for the next hundred years to say it, because the case is only the case what I’m putting in. I cannot put it any other way. I can’t understand it — the Law has to go behind the judgment.”
It is evident from the extracts to which I have referred, that the issue as far as Mr Horvath Snr is concerned will never rest and he would use whatever Court proceedings and facilities that are available to attempt to re-open the judgment and re-litigate the matter. Even if I was satisfied there was an application to set aside a bankruptcy notice that matter has already litigated and in any event there is no basis upon which the bankruptcy notice should be set aside.
Analysis of the application before this Court clearly indicates that this is, on the face of it, an abuse of process and furthermore, having regard to the history and context in which the application is made, a clear abuse of process. The application itself clearly seeks to re-litigate issues already determined and in any event seeks orders from this Court beyond the Court’s jurisdiction. The Court simply does not have power and nor is there any basis upon which it has power to make the orders sought in paragraphs 1, 2 and 3 of the application.
In opposition the respondents, by affidavit sworn by Andrew John Chambers on 28 May 2001, seeks an order that the application be dismissed on the ground that the application constitutes an abuse of process.
I find that the application together with the Notices of Motion are vexatious and constitute an abuse of process of this Court.
The orders of the Court will be that:
(1)The application be dismissed.
(2)The Notice of Motion dated 11 May 2001 be dismissed.
(3)The Notice of Motion dated 28 May 2001 be dismissed.
(4)The applicant pay the respondent’s costs (including reserved costs) to be taxed in default of agreement of the application and the Notices of Motion referred to in the preceding orders herein.
The Second Application — Pattison and anor. v Horvath Snr
The second application is an application by Paul Anthony Pattison and the CBA for the following orders:
“1.An order that the respondent shall not, without the leave of the Federal Magistrate, institute in this Court any proceeding against one or both of the applicants.
2.An order that any proceedings instituted by the respondent in this Court against one or both of the applicants before the making of the order referred to at 1. shall not be continued by the respondent without the leave of a Federal Magistrate.
3.A direction that the Registry refuse:
(a)to seal any document constituting an application or a process for the commencement of a proceeding by or in the name of the respondent where the form or contents of the documents show in the proceeding that the proceeding to be commenced would be irregular or an abuse of process;
(b)to accept for filing any document by or in the name of the respondent that is not prepared in accordance with the Federal Magistrates Act 1999 and the rules of this Court; without first obtaining a direction from a Federal Magistrate.
4.An order that the respondent pay the costs of this application.
5.Such further other orders and direction that the Court deems appropriate.”
As I have indicated, the second application by Mr Pattison and CBA seeks orders effectively restraining the respondent from instituting in this Court any proceeding against one or both of the applicants. Further orders are sought to ensure compliance with that primary order.
I have already found that the first application by Mr Horvath Snr is vexatious and constitutes an abuse of process.
It is submitted on behalf of the applicants in the second application that I should rely upon the finding that the first application is an abuse of process, and that I should also take into account proceedings which have been commenced in other Courts and indeed orders which have been made in other Courts concerning Mr Horvath Snr.
I have already set out the general background in this matter and have relied upon the detailed and thorough summary provided in the Weinberg judgment. In addition to that material, it is important to note the following orders have been made in relation to the commencement of proceedings by Mr Horvath Snr. The orders are set out in the applicant’s submissions and may briefly be re-stated as follows:
· “Federal Court: On 27 April 1999 Justice Weinberg found Horvath Senior and Mrs Horvath to be vexatious litigants for the purposes of Order 21 rule 2 of the Federal Court Rules and made orders that they not commence any proceeding against the CBA or Mr Pattison without first obtaining the leave of a judge.
· Supreme Court: On 7 January 1998 Justice Beach ordered that Horvath Senior may not file any document in Supreme Court proceeding 9168 of 1994 without the leave of a Judge.
· County Court: On 8 May 2000 Judge FB Lewis ordered that the Registrar refuse to accept any documents from Horvath Senior where the form or contents of the documents show that the proceeding to be commenced would be irregular or an abuse of process.
· Magistrates Court of Victoria: On 19 October 2000 Magistrate Popovic ordered that Horvath Senior must obtain the leave of a Magistrate before issuing any process in the Magistrates Court of Victoria and directed the Registrar not to accept any document from Horvath Senior without prior order of a Magistrate.”
In the course of the submissions made for and on behalf of the applicants, I was referred to the powers of the Federal Magistrates Court and it was submitted that there are three sources of power for this Court to make the orders sought. They are:
(1)Order 21 of the Federal Court Rules as applied by s 43(2) of the Federal Magistrates Act 1999;
(2)ss 27 and 29 of the Bankruptcy Act 1966 by which the Federal Magistrates Court is a Court of bankruptcy that must act in aid of the Federal Court;
(3)The powers that Federal Magistrates have under ss 8(3), 96(4) and 99(6) of the Federal Magistrates Act to oversee the administration of a Court.
Order 21
Order 21 provides:-
“(1)If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the court or any other Australian court (whether against the same person or against different persons), the court may order:
(a)That any proceeding instituted by the person may not be continued without leave of the court; and
(b)That the person may not institute a proceeding without leave of the court;
(2)An order under this rule may be made:
(a)On the Court’s own motion; or
(b)On the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c)On the application of the Registrar”.
A submission is made that l should exercise the powers to which the Court has been referred, even though the Court had not yet determined that the first application was indeed an abuse of process and/or vexatious prior to the filing of the second application. Even if I had not declared the first application to be vexatious, I am satisfied on the material before me that there is sufficient evidence to indicate that Horvath Snr had, prior to the commencement of the second application, instituted other vexatious proceedings in the Federal Court of Australia and indeed other Courts. I reiterate for the purpose of this part of the judgment that, in my view, the proceedings which have been set out in detail all seek to re-litigate matters which have been decided properly by the Supreme Court of Victoria and indeed other Courts, and in those circumstances it is clear that Mr Horvath Snr will simply continue to litigate and/or agitate these issues in whatever forum he finds available, including the Federal Magistrates Court of Australia.
In my view, it is clear on the authorities that once a person institutes further proceedings to re-litigate an issue that had been decided authoritatively, then the attempt to re-litigate without reasonable grounds constitutes the bringing of a vexatious proceeding. (See Jones v Skyring (1992) 66 ALJR 810; 109 ALR 303 at 311.)
In the present case, it has been submitted by counsel for the applicants that there have been findings that Mr Horvath Snr has instituted proceedings that are vexatious, in the sense that proceedings have been brought with the intention of annoying or embarrassing the CBA and Mr Pattison and their servants and agents (see Horvath v Chambers (1999) VSC 499) for a purpose other than to have the Court adjudicate on an issue other than that raised by the initiating process (see Williams v Spautz (1992) 174 CLR 509 at
528-529 and where they have been foredoomed to fail from the outset and have been so untenable to amount to an abuse of process (see Horvath v Pattison (1999) FCA 1388 and Horvath v Pattison (1999) FCA 924; and see Walton v Gardner (1993) 177 CLR 378 at 410-411.
I accept that the requirement in O 21 that a person “habitually, persistently and without reasonable grounds institutes other vexatious proceedings in the Court or any other Australian Court” has been satisfied in the present case. It is clear and I so find that Mr Horvath Snr institutes proceedings as a matter of course habitually and has demonstrated a clear determination to continue in the face of insurmountable difficulty. (See Attorney-General NSW v Wentworth (1988) 14 NSWLR 481-492.
Whilst it is true that Mr Horvath Snr has not habitually and persistently instituted proceedings in the Federal Magistrates Court of Australia, it is clear that he has done so in other Australian Courts, and on that basis alone I am satisfied that together with the proceeding which I have deemed to be vexatious in the first application, there is sufficient material upon which I can act pursuant to O 21 to make the orders sought.
Bankruptcy Courts
In the alternative, it has been submitted by counsel for the applicants that the Federal Magistrates Court and the Federal Court have concurrent jurisdiction in bankruptcy. I was referred to s 27 of the Bankruptcy Act which provides:
“27(1) The Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of the jurisdiction of all Courts other than the jurisdiction of the High Court under s 75 of the Constitution.”
I was also referred to s 29 of the Bankruptcy Act which provides:
“All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts, should severally act in aid of and be auxiliary to each other in all matters of bankruptcy.”
I agree with the submission that in the context of the present application the discretion given to the Federal Magistrates Court should be exercised with regard to considerations of utility and comity (see Clunies-Ross (1988) 82 ALR 475 at 486).
It is submitted and I accept that the order made by Justice Weinberg on 27 April 1999 sought to put an end to the attacks by Mr Horvath Snr upon the issue of his bankruptcy and indeed the judgment of the Supreme Court. The Federal Magistrates Court, it is submitted and I accept, is required to give practical effect to the order made by Justice Weinberg.
Administration of initiating process
It has been further submitted by counsel for the applicants that as an alternative the applicants seek an order in similar terms to those which have been made in the Supreme Court, the County Court and the Magistrates Court of Victoria. It is submitted that the act of initiating process for filing is an administrative act which, subject to any contrary provision in the empowering statute, is the subject of a control of a judicial officer (see re R. v Johnston; ex parte Ward (1915) VLR 659 at 662, and Mortimore v Stecher (1971) VR 866 at 875-876). According to the submissions made on behalf of the applicants, the functions of the administrative officers of the Federal Magistrates Court are subject to the direction of a Federal Magistrate. I was referred to s 96(4) and s 99(6) of the Federal Magistrates Act 1999 which provide as follows:
“Section 96(4): The Federal Magistrates Court may give the Chief Executive Officer directions relating to the exercise of his or her powers under this Act.”
“Section 99(6): The officers of the Federal Magistrates Court, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by this Act or the Rules of Court or by the Federal Magistrates Court.”
It is also relevant to refer to parts of the Federal Magistrates Act as follows:
Section 89(1) — “The Federal Magistrates Court is to administer without affairs subject to, and in accordance with this Act.”
Section 96(1) — “In the management of its administrative affairs, the Federal Magistrates Court is assisted by the Chief Executive Officer.”
(2) — “The Chief Executive Officer has the power to do all things necessary or convenient to be done for the purpose of assisting the Federal Magistrates Court under subsection (1) and (3). In particular, the Chief Executive Officer may act on behalf of the Federal Magistrates Court in relation to the administrative affairs of the Federal Magistrates Court.”
I agree that the act of initiating process is an administrative act subject to the Directions of the Justices who constitute the Court. It is clear that the Federal Magistrates Act imposes an obligation on Federal Magistrates as constituting in the Federal Magistrates Court to administer its own affairs and to give directions to the Chief Executive Officer as an Officer of the Court who has a statutory obligation to assist in the administration of the Court. The Officers of the Court are referred to in s 99 of the Federal Magistrates Act which also includes “such Registrars as are necessary” [99(1)(a)].
The Federal Magistrates Court is created by s 8 of the Federal Magistrates Court Act and pursuant to ss 8(4) the Federal Magistrates Court consists of the Chief Federal Magistrate and such other Federal Magistrates as from time to time hold office in accordance with the Act.
The Registrars and/or Chief Executive Officer are officers of the Court and subject to the directions of the Court constituted by the Chief Federal Magistrate and the Federal Magistrates.
In my view, although it may not be strictly necessary to make the specific orders arising out of the power the Court undoubtedly has over the administration of initiating process, I am inclined to make the orders lest I be found to have misinterpreted the powers of the Court to make the order pursuant to O 21 of the Federal Court Rules, or pursuant to the provisions of the Bankruptcy Act to which I have referred.
Throughout the course of the submissions made by counsel for the applicants, the respondent had an opportunity to consider the matters raised and indeed consider the written submissions which had been provided for and on behalf of the applicants. Apart from raising a technical issue about the form of the application and its compliance with the rules, it seemed to me that Mr Horvath Snr tended to avoid the principal issue before the Court and perhaps, not surprisingly, simply wished to re-state matters which had been the subject of numerous other proceedings and indeed affidavit material before the Court. There was no substance in any of the submissions made on his behalf in answer to the submissions made for and on behalf of the applicants.
Accordingly, I propose making the following orders:
(1)The respondent shall not without the leave of a Federal Magistrate institute in the Federal Magistrates Court any proceeding against one or both of the applicants.
(2)I DIRECT the officers of the Federal Magistrates Court, including the Chief Executive Officer and/or any Registrar:
a)to refuse to seal any document constituting an application or a process for the commencement of a proceeding by or in the name of the respondent where the form or contents of the document show that the proceedings to be commenced would be irregular and/or an abuse of process without first obtaining a direction from a Federal Magistrate;
b)to refuse to accept for filing any document by or in the name of the respondent that is not prepared in accordance with the Federal Magistrates Act 1999 and the Rules of Court without first obtaining a direction from a Federal Magistrate.
(3)The respondent shall pay the applicants’ costs including reserved costs of this application to be taxed in default of agreement.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 July 2001
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