Ivory and Telstra Corporation Limited and Ors (No.2)
[2010] FMCA 432
•1 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVORY & TELSTRA CORPORATION LIMITED & ORS (No.2) | [2010] FMCA 432 |
| BANKRUPTCY – Bankruptcy Notice – application to set aside Bankruptcy Notice – agreement to forego costs orders – no consideration – application to summarily dismiss application to set aside Bankruptcy Notice. |
| Federal Magistrates Court Act 1999, s.17A |
| Ivory v Telstra Corporation Limited & Ors (unrep., Supreme Court of Queensland, BS7433 of 2005, McMurdo J, 30/09/2005) Ivory v Telstra Corporation Limited & Ors (unrep., Supreme Court of Queensland, BS7433 of 2005, Muir J, 30/09/2005) Ivory v Telstra Corporation Limited & Ors (unrep., Supreme Court of Queensland, BS7433 of 2005, Philippides J, 16/2/2006) Ivory v Telstra Corporation Limited & Ors [2009] FMCA 227 Ivory v Telstra Corporation Limited & Ors [2010] FMCA 123 |
| Applicant: | KENNETH CLYDE IVORY |
| Respondent: | TELSTRA CORPORATION LIMITED & ORS |
| File Number: | BRG 836 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 29 April 2010 |
| Date of Last Submission: | 29 April 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 1 June 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr Sullivan SC |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The following documents on the Court file be sealed in an envelope and marked “Not to be opened without the order of the Court or a Federal Magistrate:”
(a)Points of Claim filed 31 March, 2010;
(b)Affidavit of Kenneth-Clyde: Ivory [CPO] filed 31 March, 2010;
(c)Affidavit of Kenneth-Clyde Ivory filed 6 April, 2010;
(d)Notice for Discovery and Production filed 6 April, 2010;
(e)Affidavit of Kenneth-Clyde Ivory filed 8 April, 2010;
(f)Affidavit of Kenneth-Clyde Ivory filed 9 April, 2010;
(g)“A Sworn Address by the Applicant to this Honourable Federal Magistrates Court Submitting the Following” filed 12 April, 2010;
(h)Application in a Case filed 21 April, 2010;
(i)Notice Stating Grounds of Opposition to the 8th April 2010 filed “Application in a Case” filed 21 April, 2010;
(j)Affidavit of Kenneth-Clyde Ivory filed 21 April, 2010;
(k)Affidavit of Kenneth-Clyde Ivory filed 27 April, 2010
The application filed by the applicant on 10 November, 2008 be dismissed.
That a transcript of these proceedings not be made available to either party without the leave of the Court or a Federal Magistrate first had and obtained.
The applicant pay the respondent’s costs of and incidental to these proceedings including any reserved costs, to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 836 of 2008
| KENNETH CLYDE IVORY |
Applicant
And
| TELSTRA CORPORATION LIMITED & ORS |
Respondent
REASONS FOR JUDGMENT
Before me there are two applications by the respondent to these proceedings. The applications by the respondent are to summarily dismiss, or to strike out in its entirety, a document headed Points Of Claim Yet To Be Decided Pursuant to 18 March 2010 Orders Given by Federal Magistrate Jarrett SC. The second is an application to set aside a document entitled Notice of Discovery and Production served of the applicant on the respondent.
By his application which was originally filed on 10 November, 2008 Kenneth Clyde Ivory seeks a range of orders. One of the orders that he seeks is that a Bankruptcy Notice that the respondent has issued be set aside. There is a range of other relief sought in the application, to which I will return shortly.
The matter has had a long history in this court, and it has already been the subject of a number of judgments by another Federal Magistrate; the most recent of which was delivered on 26 February, 2010. At that time, Wilson FM determined some preliminary issues that his Honour had earlier ordered should be determined separately. In particular, his Honour determined:
a)Whether service of the Bankruptcy Notice upon the applicant had been properly effected;
b)Whether the applicant was entitled to be indemnified by the Commonwealth of Australia against a certain alleged judgment debt and if so, whether that was a reason to set aside the Bankruptcy Notice;
c)Whether the applicant was entitled to have the Bankruptcy Notice set aside because the judgment, upon which the Bankruptcy Notice was based was stale; and
d)Finally, whether the Bankruptcy Notice ought to be set aside because of invalidity arising by reason of one of the attachments to the notice.
All of those issues were determined against the applicant. In the course of his reasons for decision on his Honour said:
“36. It still remains to be considered whether the Bankruptcy Notice should be set aside on the other grounds relied upon by the applicant, namely that it was issued as an abuse of process, and that Telstra had agreed to forego any claim for costs against the applicant. I will not decide either of those issues now. They will have to be determined at a later date. However, the applicant should have regard to the judgments of three justices of the Supreme Court of Queensland that have dealt with the argument that an agreement was made whereby Telstra would forego costs orders in its favour. I refer to the judgments of Justice McMurdo of 30 September 2005, Justice Muir of 12 December 2005 and Justice Philippides of 16 February 2006.
42. I will set out the answers to the preliminary questions in my orders. As I understand it, the only matter that is now required to be determined by the Court are the applicant’s two substantive arguments:
(a) That the Bankruptcy Notice was issued as an abuse of process by Telstra;
(b) That Telstra has agreed to forego the costs orders in its favour.”
Consequently, on 18 March, 2010 when the matter came before me I made an order that required the applicant to file and serve points of claim which dealt with any issue which remained outstanding. In response to that, a document entitled Points of Claim Yet to Be Decided Pursuant to 18 March 2010 Orders Given by Federal Magistrate Jarrett SC was filed by Mr Ivory on 31 March, 2010.
That document is of considerable length, some 74 pages, and quite a number of paragraphs. It follows the same form as much of the material filed in this case by Mr Ivory and, in particular, the six affidavits filed by him at various stages through these proceedings.
That is to say, the document is prolix, in parts internally inconsistent, difficult to comprehend, and, in parts bizarre and a plain nonsense. Nonetheless, having regard to that document, and doing the best I can, it seems that the applicant contends that the application to set aside the Bankruptcy Notice ought to be set aside for the following reasons:
a)First, that the respondent has agreed, through a binding agreement, to forgive some costs orders upon which the Bankruptcy Notice in this case was ultimately based;
b)Second, for the same reasons, an estoppel operates against the respondents from pursuing this application;
c)Third, that he is entitled to be indemnified by the Commonwealth, because he is a duly sealed Commonwealth Public Official;
d)Fourth, that a certain warrant of arrest that was issued as long ago as 1996 was invalidly and, Mr Ivory would say, illegally obtained, and that invalidity or illegality infects the orders upon which the present Bankruptcy Notice is based;
e)Fifth, that the Bankruptcy Notice is not validly signed by a person authorised to do so; and
f)Finally sixth, that the Bankruptcy Notice has been issued for an ulterior purpose.
Some of those issues have been decided before. The issue about the validity of the Bankruptcy Notice because it was not signed by a properly authorised person has been dealt with before by Wilson FM, in particular in a judgment of 20 March, 2009.
The issue about the applicant’s entitlement to an indemnity has, in a sense, been dealt with by the judgment of Wilson FM delivered on 26 February, 2010.
The point taken before me is slightly different to that disposed of by Wilson FM, because Mr Ivory now identifies his status as a Commonwealth Public Official as entitling him to an indemnity from the Commonwealth. But as Wilson FM pointed out in his reasons of 26 February, 2010 the Commonwealth of Australia is not a party to this litigation, and so any question of any indemnity to which Mr Ivory might be entitled from the Commonwealth is irrelevant.
Put another way, even assuming that Mr Ivory is entitled to an indemnity from the Commonwealth as he suggests, his indemnity would not respond to the claim made by the respondent which is in law, a legal entity separate from the Commonwealth.
The issue of the forgiveness of the future costs orders, and the issue of whether there is an ulterior purpose behind these proceedings was been expressly left open by Wilson FM in his judgment of 26 February, 2010. It is to those matters that I now turn.
Before doing so, however, I record the great assistance I have received from the written submissions prepared by Counsel for the respondent in support of the respondent’s application. Those submissions make it clear that the respondent moves this application on two grounds. First it is said that the points of claim could be treated as a pleading and struck out on the basis that:
a)It does not disclose reasonable grounds for setting aside the Bankruptcy Notice;
b)It has a tendency to cause prejudice, embarrassment or delay of the proceedings; or
c)It is an abuse of process.
Alternatively, it is said that I could exercise the power set out in section 17A of the Federal Magistrates Act 1999 to summarily dismiss the proceedings. I was taken to Kowalski v MMAL Staff Superannuation Fund Proprietary Limited [2009] FCAFC 117 to demonstrate that the test that now applies under section 17A, and in particular the test that applies to the summary dismissal of proceedings is a somewhat softer test than that which is otherwise applied prior to the enactment of that section and others of similar purport.
Mr Ivory’s case that the respondent agreed to forego any costs orders that it had or might obtain against him arises from two meetings that he had with persons representing the respondent.
The first meeting occurred in July 2003 and was a telephone conference in which, Mr Ivory and Mr Mansfield and Mr Switkowski (of the respondent) were present. Mr Ivory alleges that during that telephone conversation “all past, present and future Court cost orders awarded against Kenneth Clyde Ivory in favour of Telstra Corporation Limited were and are all fully foregone by the then Telstra Chairman, Robert Mansfield AO and by the then Telstra CO, Dr Ziggy E Switkowski and are fully foregone for and on behalf of Telstra Corporation Limited herein firstnamed respondent.”
The second meeting occurred in February, 2005 and was chaired by Mr J Nimmo. It is asserted that Mr J Nimmo has verified and certified in what is described as a “sworn Certificate of Agreement” that “past, present and future Court costs orders were again reconfirmed and were again irrevocably neutrally agreed had been and are fully foregone.”
In addition, Mr Nimmo is asserted to have certified under oath that it was agreed by all parties that a $16,000.00 security for costs amount paid into the Queensland Supreme Court of Appeal was to be fully refunded and directed back to Mr Ivory.
The difficulty with Mr Ivory’s case that there was a binding agreement to forego any costs orders that the respondent might have or obtain against him is the difficulty identified by Muir J in his judgment delivered in certain Supreme Court proceedings (unrep., Supreme Court of Queensland, BS7433 of 2005, Muir J, 21/12/2005). There is no consideration in the evidence, or indeed, even asserted by Mr Ivory which would convert any representations made by the people present at those meetings, and in particular in the first meeting with Dr Switkowski into a legally binding agreement not to pursue the costs orders.
There is an added complication. Even assuming that there was such an agreement it is entirely unclear whether it extended to costs orders that had already been obtained or whether the agreement extended to the costs orders which now form the basis of the Bankruptcy Notice in this case (which had not been ordered at the date of the meetings.
But the consideration point, in my view, is fatal. It has been pointed out to Mr Ivory on numerous occasions in judgments in the Supreme Court of Queensland: P.D. McMurdo J (unrep., Supreme Court of Queensland, BS7433 of 2005, 30/09/2005), Muir J (above). Philippides J (unrep., Supreme Court of Queensland, BS7433 of 2005, 16/2/2006) gave Mr Ivory one final opportunity to plead a case which demonstrated that there was a binding agreement between he and the respondent in respect of the asserted forbearance. He did not do so.
Mr Ivory has failed to demonstrate in any of the material before me in this case (the points of claim delivered and the six affidavits that were referred to by him) that he asserts, let alone can establish, that there is any binding agreement whereby the respondent would forego any costs orders it obtained against him either past or future.
I am not satisfied, therefore, that there is a reasonable prospect of prosecuting these proceedings on the basis that there is an agreement to forgive future costs orders between the respondent and the applicant.
The only other live ground upon which the applicant now says that application should succeed is that the Bankruptcy Notice is being pursued as an abuse of process or for an ulterior purpose.
I accept the submissions for the respondent that it is not clear on what basis it is said that the Bankruptcy Notice is an abuse of process. It is not clear on what basis it is said that the Bankruptcy Notice is being pursued for an ulterior purpose.
The applicant claims that he has an entitlement to a judgment against the Commonwealth, and perhaps Telstra. It is not clear whether it extends to Telstra for a sum in excess of $6 billion, which, with interest, is now in excess of $7 billion. It is suggested in the points of claim that one of the reasons that these bankruptcy proceedings are being pursued is so that the applicant cannot pursue recovery of that debt.
But it seems to me that that argument cannot be accepted simply because, if indeed such a debt existed, and, on the applicant’s case, the existence of the debt and the Commonwealth and Telstra’s liability to pay is clear cut, then that will be an entitlement to which his trustee in bankruptcy will succeed if there is a sequestration order, and the applicant, no doubt, will have the benefit of that in any event.
I cannot see, on any of the material that the applicant has put before me, nor in any of the submissions that he has made, that the bankruptcy proceedings are being prosecuted for anything other than a legitimate purpose.
Much of the points of claim and the applicant’s affidavit material is spent re-agitating allegations concerning certain solicitors, a Mr McDonnell and a Mr Mead. Those allegations refer to the matter I referred to earlier, the warrant of arrest that was issued in 1996. In respect of that matter, the material reveals that the applicant sued for malicious prosecution in the Supreme Court of Queensland. There was a trial, and he lost. All of those matters seem, in my view, to be entirely irrelevant to these proceedings.
What they do demonstrate, however, is that much of the material filed by the applicant in these proceedings is irrelevant. Much of it is scandalous and it contains innumerable allegations, not just against the two solicitors that I have mentioned, but also against a number of other people, including Wilson FM, the Chief Justice of the Federal Court, the Prime Minister of Australia, and some witnesses that gave evidence before Wilson FM.
The allegations are scandalous, and it is appropriate, as the respondents seek, for all of those documents to be sealed on the court file. Wilson FM dealt with the basis upon which such documents should be sealed up in Ivory v Telstra Corporation Limited & Ors [2009] FMCA 227. I will not repeat what his Honour there said.
I am satisfied that there are no reasonable prospects of the applicant prosecuting his application to set aside the Bankruptcy Notice. I will summarily dismiss the application pursuant to section 17A of the Federal Magistrates Act 1999.
The additional matter concerning the notice of production falls by reason of the failure of the principal proceedings, and I will order that the notice of discovery and production be sealed up. The written submissions and the seventh affidavit will be sealed up.
The matter of costs will follow the event. There will be an order for the respondent’s taxed costs of and incidental to the application, including reserved costs, if any, to be paid by the applicant.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 25 June 2010
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