Ivory v Telstra Corporation Limited
[2009] FMCA 227
•20 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVORY v TELSTRA CORPORATION LIMITED & ORS | [2009] FMCA 227 |
| BANKRUPTCY – Application for transfer to Federal Court to enable application to be heard with a jury. PRACTICE AND PROCEDURE – Notice to Produce – application to set aside – test of apparent relevancy. PRACTICE AND PROCEDURE – Case management – Court’s control over proceedings. EVIDENCE – Admissibility of evidence – scandalous allegations – affidavits ordered to be sealed up and not opened without order of the Court – practice. |
| Bankruptcy Act 1966, s.30(3) Federal Magistrates Act 1999, ss.18, 32 |
| Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457 Telstra Corporation Ltd v Ivory [2008] QSC 123 Abram v Bank of New Zealand & Anor (1996) 18 ATPR 41-507 Neil v Nott (1994) 121 ALR 148 Re Allen (1903) 5 SR (NSW) 55 DJL v The Central Authority [2000] HCA 17 (2000) 201 CLR 226 Re Wakim; ex parte McNally (1999) 198 CLR 511 Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia (1991) 31 FCR 587 Re Shields; ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308 ANZ Banking Group Ltd v Menso [2006] FMCA 1522 Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 Re Ox Operations Pty Ltd [2008] FCA 61 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 Seven Network Ltd v News Limited (No. 11) [2006] FCA 174 In re J (an infant) [1960] 1 WLR 253 Re A Pty Ltd v B [1962] QWN 35 Rossage v Rossage [1960)] 1 WLR 249 Jones v Trinder, Capron & Co [1918] 2 Ch 7 | ||
| Applicant: | KENNETH CLYDE IVORY | |
| Respondent: | TELSTRA CORPORATION LIMITED & ORS |
| File Number: | BRG 836 of 2008 |
| Judgment of: | Wilson FM |
| Hearing date: | 6 March 2009 |
| Date of Last Submission: | 6 March 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| The Applicant in person: | Mr Ivory |
| Counsel for the Respondent: | Mr Sullivan S.C. |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
Each of the Notices to Produce filed 13 February 2009 and 2 March 2009 be set aside.
The application in a case filed by the applicant on 2 March 2009 be dismissed.
Those parts of the applicant’s material identified in the Schedule to the Reasons for Judgment are struck out, and each of the following documents will be sealed in an envelope and marked “Not to be opened without the order of the Court”:
(a)Affidavit of applicant filed 18 November 2008;
(b)Notice of Objection filed 24 November 2008;
(c)Affidavit of applicant filed 24 November 2008;
(d)Affidavit of applicant filed 4 December 2008;
(e)Supplementary application filed 30 January 2009;
(f)Affidavit of applicant filed 30 January 2009;
(g)Affidavit of applicant filed 3 February 2009;
(h)Affidavit of applicant filed 13 February 2009;
(i)Affidavit of applicant filed 2 March 2009;
(j)Affidavit of applicant filed 5 March 2009;
(k)Notice to Produce filed 2 March 2009.
The applicant is directed to file a composite affidavit containing those parts of his earlier affidavits not struck out, such affidavit to be filed and served by 27 March 2009.
The separate questions to be decided by the Court at the hearing on
27 March 2009be varied to add thereto the following:
“Whether the bankruptcy notice is invalid because it only has attached to it the order of the Deputy Registrar made on 3 September 2008”
The applicant is to pay the costs to be taxed of the respondent Telstra Corporation Ltd:
(a)of and incidental to its application filed 27 February 2009;
(b)of and incidental to the applicant’s application filed 2 March 2009; and
(c)caused by the material struck out pursuant to Order 3 hereof.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 836 of 2008
| KENNETH CLYDE IVORY |
Applicant
And
| TELSTRA CORPORATION LIMITED & ORS |
Respondent
REASONS FOR JUDGMENT
The legal battle between the applicant and Telstra Corporation Limited has been now been waged for over a decade. Some of the history of the conflict was given by Jerrard JA in Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457 and more recently by Lyons J in Telstra Corporation Ltd v Ivory & Ors [2008] QSC 123.
The battleground has now moved from the Supreme Court of Queensland to the Federal Court of Australia, and more recently to this Court.
Telstra has, it contends, served a bankruptcy notice on the applicant. The applicant seeks to set that bankruptcy notice aside. As with other aspects of their litigation, that deceptively simple description of the present proceedings masks a plethora of other underlying issues.
I do not consider it uncharitable to remark that the applicant’s court documents are occasionally difficult to comprehend. They are often lengthy, frequently repetitive, and contain large amounts of extraneous material. They are also, on occasions, almost unintelligible. Senior Counsel for Telstra sought orders for the sealing up of parts of the applicant’s material. I will deal with that application in due course.
I am also mindful that the applicant is self represented. In Abram v Bank of New Zealand & Anor (1996) 18 ATPR 41-507 at 42,347 the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150 to the effect that where a party is not represented the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.
When the matter first came before me, on 6 February 2009, the applicant orally identified a number of grounds upon which he contended the bankruptcy notice should be set aside. Three of those grounds seemed amenable to a discrete hearing, as they raised essentially legal issues, or matters that could be confined within a relatively narrow factual compass. Accordingly, I ordered that the following be dealt with as a separate question:
“Whether the bankruptcy notice should be set aside on the grounds that:
i)service of the notice was not properly effected;
ii)the applicant is entitled to be indemnified by the Commonwealth of Australia against the judgment debt; and
iii)the judgments sought to be relied upon by Telstra are stale, and so cannot support the bankruptcy notice.”
The hearing of that separate question is listed for 27 March 2009.
Of course, if the bankruptcy notice is not set aside on any of the three bases to which I have just referred, there remains the applicant’s remaining grounds, which I think can fairly be summarised as:
a)The bankruptcy notice was issued vexatiously, and as an abuse of process, so as to prevent the applicant from recovering monies rightfully due to him by either Telstra or the Commonwealth of Australia;
b)Telstra has agreed to forego any costs orders in its favour, such that a bankruptcy notice should not have been issued seeking to rely on a costs order.
For reasons that I will give in due course, the case management of those remaining grounds will need to be carefully controlled. The applicant, I am satisfied, genuinely believes that he has been grievously wronged by Telstra and those who have represented it. Whether or not his belief has any foundation in fact or law is of course another question. This Court retains control of its proceedings. In Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia (1991) 31 FCR 587 at 596 Gummow J said that a Court has inherent power to prevent misuse of its procedures in a way which brings the administration of justice into disrepute. As Jerrard JA said Ivory v Telstra Corporation Ltd & Mead [2002] QCA 457 at [80] participation in litigation is not a licence to insult and abuse other people. This Court is mindful that it cannot allow its processes to be used as a vehicle to make scurrilous, scandalous and unsubstantiated allegations against persons, particularly where such are not relevant to the proceedings before it.
On 13 February 2009 the applicant served a document described as a Notice to Produce on the solicitors acting for Telstra. By application filed 27 February 2009 Telstra seeks an order setting aside that Notice.
By the time Telstra’s application came on for hearing, the applicant had served a second Notice to Produce. Telstra sought an order that such notice also be set aside.
At the hearing of the application, as I have said, Senior Counsel for Telstra also sought an order for the sealing up of large parts of the applicant’s affidavit material, substantially on the grounds that it is scandalous and offensive.
The bringing of the application by Telstra caused the applicant to bring his own application, by which he sought orders:
(1)An Order setting aside the Respondent(s) purported Application in a Case dated 27th February 2009.
(2)An Order to have the Sherriff arrest and bring being before this Court at 9-30am on Friday the 6th March 2009 Justin Anthony McDonnell, Jennifer Koenig & Anthony Gregory Asome to punish and deal with their collusion, false, misleading and deceptive statements and perjury committed within their 27th February 2009 Justin Anthony McDonnell fabricated and filed material in these matters.
(3)An Order immediately setting aside Bankruptcy Notice QN 1443 of 2008 and awarding the Applicant Kenneth Clyde Ivory his full remedies sought; or
(4)In the alternatively and Order immediately remitting these serious matters back to the FEDERAL COURT OF AUSTRALIA to be heard and determined before only a jury of 12 independent jurors given the Constitutional and Indictable Issues which are very serious situations now created by Justin Anthony McDonnell’s own deceit which has now created a situation of absolutely no seperation of powers.
In order to determine each of the applications, it is necessary to understand a little of the history of the present proceedings.
As I indicated to the parties, and particularly to the applicant who appears for himself in these proceedings (although with the assistance of a McKenzie Friend from an organisation described as the Australian Civil Authority), when the matter was argued on 6 March, I would closely read the affidavit material and other court documents, particularly to determine whether the Court should accede to the application made by Telstra for the sealing up of documents on the Court file, a step not lightly taken. I have done so. This has led me to conclude that there are other issues that must be resolved if these proceedings are to be determined in an orderly and cost effective manner.
By his initiating application filed in the Federal Court of Australia on 10 November 2008, the applicant sought to set aside bankruptcy notice QN 1263/2008. That bankruptcy notice had been issued for the alleged non satisfaction of two costs orders made by Justices of the Supreme Court of Queensland.
Four matters need to be highlighted concerning this initiating application, brought as it ostensibly was in the bankruptcy jurisdiction of the Federal Court (see also applicant’s first affidavit, filed 10 November 2008, paragraph 1).
First, the application is brought not only against Telstra, but also against:
a)Each of its board of directors;
b)Its company secretary; and
c)Its chief financial officer.
Secondly, the application was addressed to Telstra not only at its head office address at Melbourne, but also “in care of: Justin McDonnell a partner in Mallesons Stephen Jaques ...”. I mention this because, at the hearing before me on 6 March the applicant argued that Mr McDonnell, and the firm of which he is a partner, did not have authority to act on behalf of Telstra, to swear an affidavit on its behalf, nor to issue the bankruptcy notice. Yet the applicant was content to address his initiating documents to Telstra at an address care of the same solicitor.
Thirdly, the initiating application seeks much more extensive relief than an order setting aside the bankruptcy notice. The applicant seeks orders (summarised by me as follows):
a)Effectively requiring Telstra to make payment of a sum of money to the applicant (almost AUS$7 billion) said to be a debt owing pursuant to a document dated 23 September 2008, and specifying how that payment is to be made;
b)If Telstra does not make such payment, that it be made by the Commonwealth of Australia as guarantor, and specifying how that payment is to be made;
c)Declaring the validity of the document dated 23 September 2008 pursuant to which the payment is demanded;
d)That if Telstra does not make payment as demanded, a declaration that its directors have caused the corporation to trade whilst insolvent; and
e)Restraining the solicitors acting for Telstra from continuing to do so.
Fourthly, the Commonwealth of Australia is not a party to the proceedings, notwithstanding that relief is sought against it.
The Federal Court and the Federal Magistrates Court are not courts of general jurisdiction, but rather statutory courts as that term was explained by the High Court of Australia in DJL v The Central Authority [2000] HCA 17 (2000) 201 CLR 226 at [25]ff.
In these proceedings, this Court undoubtedly has jurisdiction to determine the controversy between the applicant and Telstra so far as it concerns the validity of the bankruptcy notice. The jurisdiction of the Court is not, however, necessarily limited to determining that matter. As Gummow and Hayne JJ said in Re Wakim; ex parte McNally (1999) 198 CLR 511 at [135]:
“It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament is not “restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part”. In Stack v Coast Securities (No 9) Pty Ltd the majority said:
“In this, as in other cases, the recurrent problem is to identify what it is that falls within the Federal Court’s accrued jurisdiction. The majority judgment in Fencott v Muller provides this assistance in reaching an answer: ‘What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.’”
This ‘accrued jurisdiction’ is recognised by s.18 Federal Magistrates Act 1999 which provides:
“To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked.”
Section 18 is analogous to s.32 Federal Court of Australia Act, which has been the subject of much judicial consideration. Also relevant is s.32AB(8A) Federal Court of Australia Act which provides:
The Federal Magistrates Court has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
These proceedings were commenced in the Federal Court and were transferred to this Court by Logan J on 5 December 2008. Thus, arguably, this Court has jurisdiction to determine any aspect of the matter which the Federal Court had jurisdiction to determine (at least on the date of the transfer), but which this Court did not, in its original jurisdiction.
However, it remains to be decided whether this Court, or indeed the Federal Court, whilst it was seised of the matter, has jurisdiction to determine those claims for relief made by the applicant that are separate to and distinct from his claim to have the bankruptcy notice set aside.
It therefore needs to be determined whether this Court has jurisdiction to deal with the claims made by the applicant:
a)against those named respondents other than Telstra;
b)for relief other than the setting aside of the bankruptcy notice.
There is no evidence that any named respondent, other than Telstra, has been served with Court process. Certainly only Telstra has filed a notice of appearance. The applicant needs to decide whether he intends to proceed against those respondents, or any of them. If he does, the question arises as to whether the respondents should be served before the Court decides whether the claims against them are arguably within its jurisdiction.
The issue of jurisdiction is further complicated because on 30 January 2009, that is after the proceedings were transferred to this Court, the applicant filed a Supplementary Application. The question then arises as to whether additional claims made in that document are within the jurisdiction of this Court.
A number of additional ‘respondents’ appeared in the heading to the proceedings:
a)Its (i.e. Telstra’s) agents Stephen John Mead and Justin McDonnell; and
b)Their agents Douglas Spence and Thynne & Macartney and its partnership partners.
No application was made for the joinder of these additional parties. They do not appear to have been served. The Court needs to determine whether the additional parties should be in the proceedings. The applicant has stated to the Court that the respondents, other than Telstra, are parties “because they are involved in a conspiracy to defraud me” (T5/30).
In addition to the question of parties, the Supplementary Application seems, on its face, to raise additional claims:
a)For punitive and consequential damages ‘for forensic embarrassment and stress inflicted unjustly on the reputation and standing of the applicant’;
b)For contravention by the directors of Telstra of s.44ZZO Trade Practices Act 1974;
c)For the return of $16,000 paid as security for costs of an appeal to the Queensland Court of Appeal.
The question arises as to how these additional claims are to be dealt with. Some, but by no means all, are made against Telstra. I have reservations as to whether many of the matters raised by the applicant art justiciable in this Court, and whether some of them have already been finally determined in another jurisdiction (Supreme Court of Queensland). Telstra should not have to apply to have unmeritorious claims against other respondents summarily disposed of. On the other hand, if the claims are pursued, the question arises whether numerous parties, once served, should be put to the expense of seeking relief from this Court if any claim against them is beyond the jurisdiction of this Court. It seems to me that once the separate questions that I have identified have been dealt with, the Court should deal at the earliest opportunity with what claims made by the applicant, and against which respondents, are properly within jurisdiction. That determination can be made, on at least a threshold basis, without the need for those additional named respondents participating in the proceedings. In support of that conclusion I adopt the observations of Wilson J in Ivory v Telstra Corporation Ltd [2002] QCA 457 at [85].
In his application filed 2 March 2009 the applicant seeks an order returning the proceedings to the Federal Court, ostensibly so that there can be a hearing with a jury.
On 24 November 2008 the applicant filed a “Notice of Objection” to the Notice Stating Grounds of Opposition filed by Telstra. In it he elects for a trial by jury. There is no such ‘entitlement’: Re Allen (1903) 5 SR (NSW) 55.
Section 30(3) Bankruptcy Act provides:
“If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.”
It is a matter for the Federal Court to decide whether there should be a trial with a jury. As Logan J said, in his Reasons for Judgment given on 5 December 2008, the power has been sparingly used. In Re Shields; ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308 at 309 Einfeld J said that in the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge.
To some extent, the issue has already been decided by Logan J. His Honour refused to make an order for hearing of the matter with a jury, and instead transferred the proceedings to this Court. Assuming in favour of the applicant that his Honour’s decision was interlocutory, and that the same application can be repeated before this Court, I would reject it.
In so far as the applicant relies on s80 Constitution as conferring a right to a trial by jury, his argument is misconceived. His primary application is to set aside a bankruptcy notice. There is no trial on an indictable offence.
No compelling special reason, nor indeed any reason, has been shown as to why this matter warrants the very rare step of having a question determined with a jury. As that is, as I understand it, the basis of the application to transfer the proceedings to the Federal Court, it should be refused.
As I have said, when the matter was before me on 6 March the applicant questioned the authority of the solicitor for Telstra to swear an affidavit on its behalf, to bring the application to set aside the Notices to Produce, and to take any step on behalf of Telstra without a resolution of the board of directors of that corporation specifically directed to that matter. By reference to s.308(a) Bankruptcy Act, the applicant argued that, to be valid, any action on behalf of Telstra had to be authorised by a board resolution. The applicant’s argument is rejected. A similar argument was rejected by Lyons J in Telstra Corporation Ltd v Ivory [2008] QSC 123 at [83] ff. I accept that certain employees of Telstra have delegated authority to instruct lawyers to act on behalf of the corporation, and to instruct the lawyers to take certain steps on behalf of Telstra. Mr McDonnell gave evidence before me on 6 March. I accept his evidence that he was instructed by the appropriate officer of Telstra to request that bankruptcy notices be issued, and to conduct these proceedings on behalf of Telstra. No further issue of authority arises.
A further legal issue arises for consideration. I raise it conformably with what I perceive to be my obligation as set out at paragraph 5 of these Reasons. It is a matter that has arguably been raised by the applicant, albeit in a different context, at paragraphs 7, 12 and 13 of his affidavit filed 13 February 2009.
Bankruptcy Notice QN 1263/2008 was set aside by Logan J (without opposition by Telstra). At the time of his Honour’s orders, Telstra had caused to be issued a second bankruptcy notice QN 1443 of 2008. His Honour ordered that the application filed by the applicant be deemed to be an application on the part of the applicant to set aside bankruptcy notice QN1443 of 2008. That bankruptcy notice has attached to it an Order of a Deputy Registrar of Supreme Court of Queensland made 3 September 2008 whereby the applicant was ordered to pay costs assessed at $222,900.15 pursuant to an order made 15 May 2008.
The question that arises is whether it was sufficient for Telstra to attach only the order of the Deputy Registrar, or whether, to be valid, the bankruptcy notice also had to have attached to it the original order or orders imposing the obligation to pay costs.
In that regard, I refer the parties to my decision in ANZ Banking Group Ltd v Menso [2006] FMCA 1522.
It seems to me that this issue is one that is capable of being dealt with on 27 March next. No further evidence is required. The bankruptcy notice that is challenged is before the Court. The identified issue requires only legal argument.
Turning then to the Notices to Produce filed and served by the applicant. Rule 15.24(1) Federal Magistrates Court Rules provides:
“A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.”
It has been said of the equivalent Federal Court Rule (Order 33 Rule 12) that a Notice to Produce has the same coercive effect as a subpoena duces tecum: Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [6]; Re Ox Operations Pty Ltd [2008] FCA 61 at [42]. Therefore the document, even if perceived to be irrelevant or otherwise objectionable, cannot safely be ignored.
Federal Magistrates Court Rule 15.24(2) provides:
“Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.”
It is pursuant to this Rule that the application to set aside both Notices to Produce is made.
The first Notice to Produce requires production of the stipulated documents by 4pm on 27 February 2009. The second Notice to Produce requires production by 4pm on 4 March 2009. As I stated earlier, the preliminary question is set for hearing on 27 March next. To the extent that each Notice requires production at a time earlier than the hearing it is defective.
There are, however, more fundamental problems with each Notice. At paragraph 2 of each Notice, the need for the production of the stipulated documents is tied to the determination of the separate questions ordered to be heard on 27 March. None of the documents that the applicant seeks that the respondent produce have any apparent relevance to the determination of those questions.
Lack of apparent relevance is a ground for setting aside a subpoena or Notice to Produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-3. The test of apparent relevance is whether the documents are reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case: Seven Network Ltd v News Limited (No. 11) [2006] FCA 174 at [11]. The onus is on the issuer of the Notice to Produce to demonstrate the apparent relevance of the documents sought.
Putting aside the verbiage and offensive commentary in each of the Notices to Produce, none of the documents that are identified have been shown to have any apparent relevance to the determination of the issues that the Court will hear on 27 March.
In particular, the disk of the meeting on 11 July 2003 (if it exists) does not have any apparent relevance to the four issues that will be determined on 27 March. Nor does a deed of release relating to the applicant’s security for costs payment, or documents produced at the taxation of costs that led to the making of the order by the Deputy Registrar in the Supreme Court of Queensland, on 3 September 2008, relied on by Telstra. After all, this Court is not the appropriate venue for a rehearing or even a challenge to the assessment of costs, which have been ordered to be paid.
In my view, none of the documents referred to in the first Notice to Produce have any apparent relevance to the issues currently before the Court. The first Notice should be set aside.
The second Notice to Produce is more extensive than the first. Much of it cannot even remotely be called a Notice to Produce. Rather it is a tirade of highly offensive allegations against those representing Telstra. I will shortly deal with what should be done about such material. On a number of occasions the applicant in the second Notice requires Telstra and those advising it to prepare further documents and then produce them (eg paragraphs 3h. on page 7, and 3i.and 3j. on page 8). That is not the purpose of a Notice to Produce and is objectionable. To the extent that I can discern from the Notice what is required to be produced consists of those documents identified at paragraph 3a. on page 6, 3g. on page 7, and on pages 12 and 13.
As with the first Notice, none of the documents referred to in the second Notice to Produce have any apparent relevance to the issues currently before the Court. The second Notice should be set aside.
I then turn to the application made by Senior Counsel for Telstra that the applicant’s affidavits be sealed up in so far as they contain scandalous and offensive material. Those particular documents, or parts of documents sought to be sealed up were not particularised.
Federal Magistrates Rule 15.29 provides:
“(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
(2) Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.)
This is to be compared with Federal Court Order 14 Rule 8 which provides:
“Where there is scandalous or oppressive matter in an affidavit, the Court may order that the affidavit be taken off the file”
That Rule follows the English practice referred to in decisions such as Rossage v Rossage [1960)] 1 WLR 249 and In re J (an infant) [1960] 1 WLR 253. In Re A Pty Ltd v B [1962] QWN 35 Mack J ordered that an affidavit containing scandalous material be taken off the file.
It is not clear how the practice has developed of ordering documents found to be scandalous to be sealed in an envelope and ordered not to be opened without an order of the Court. Such an order was made by Logan J in this matter. Such an order was made by Lyons J in Telstra Corporation Ltd v Ivory [2008] QSC 123. I accept that such orders are made in a number of jurisdictions in this Country.
In my view, the physical removal of documents from the Court file creates considerable practical problems. If there is an appeal as to the correctness of a ruling that certain evidence is scandalous and should be removed from the Court file, the offending documents will need to be preserved at least pending the appeal. As was pointed out in Jones v Trinder, Capron & Co [1918] 2 Ch 7 at 11 the physical removal of documents from the file has the effect of destroying a public record. It may be that to meet these concerns the practice has developed of sealing up offending documents, so that they are preserved but are not able to be inspected pursuant to Order 46 Rule 6 Federal Court Rules (which applies in this Court by Federal Magistrates Court Rule 2.08(2)). The documents are, by their sealing up, effectively removed from the file.
The relevant Federal Magistrates Court Rule says nothing about removing documents from the Court file, but simply allows for material to be struck out. Nothing is provided for as to how the process of striking out is to occur if large sections of numerous documents are involved. For example, is it sufficient for an order to be made notionally striking out the offending material, or is it necessary for somebody to go through and obliterate the offending parts of the documents. It seems to me to be a far more sensible approach to order that documents, if they are found to be scandalous, be sealed up. I am satisfied that Federal Magistrates Court Rule 1.05(2) permits me to apply Federal Court Order 14 Rule 8 if I consider that it is appropriate to order that material be removed from the Court file (in the sense of being sealed up) rather than (or in addition to being) struck out.
Scandalous material is that which is indecent or offensive, or contains allegations made for the purpose of abusing the opposite party or some other person associated with the proceedings (adopting 30 Halsbury’s Laws of England (3rd ed.)75 footnote (m); 15 Halsbury’s Laws of England (3rd ed.) 846 footnote (i)). Of course, to be struck from the Court record, material that is scandalous must also be irrelevant to the proper determination of the parties’ dispute.
For reasons that are obvious, I do not propose to set out in these Reasons the content of the material that I conclude is scandalous.
I have read the affidavits of the applicant and the other Court documents filed by him. They contain a large amount of scandalous and argumentative material. I have attached to these Reasons a Schedule setting out those parts of the applicant’s documents that should be struck out and removed from the Court file.
One practical difficulty that arises is that in many cases, the whole of a document is not susceptible to being struck out. In those cases, as Senior Counsel for Telstra pointed out, there is a considerable practical difficulty in excising from the document the admissible sections of it.
In my view, the most practical way of dealing with the matter is to order that the entirety of each of the documents identified in the Schedule be sealed and not be opened without a further order of the Court. The applicant should be permitted to reproduce those parts of the offending documents that are not struck out in a further document to be put before the Court.
I should add that I have dealt with the application to seal up evidence on the basis that the applicant’s document Scandalous allegations. Nothing I have said should be constructed as concluding that the balance of the applicant’s evidence is otherwise admissible.
It follows from my reasons that I decline to dismiss the application brought by Telstra to set aside the two Notices to Produce. It follows that paragraph 1 of the applicant’s Application in a Case filed 2 March 2009 must be dismissed. Paragraphs 2 and 3 of that application are entirely without merit and must also be dismissed.
The applicant has been wholly unsuccessful on his application. He should pay the costs of the respondent Telstra of and incidental to that application. The applicant’s two Notices to Produce have been set aside. The costs associated with the application to set aside the Notices should be paid by the applicant. Insofar as material has been struck out of the applicant’s court documents, the applicant should pay the costs caused by that: Federal Magistrates Court Rule 15.29(2).
Accordingly, I make the orders set out prior to the commencement of these reasons.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Wilson FM
Deputy Associate: James Gasteen
Date: 20 March 2009
SCHEDULE
Document | Objectionable material | Reason for upholding objection |
| Affidavit of 10 November 2008 paragraph 1 | Line 4 from word “issued” to Line 8 word “1966” | Scandalous, argumentative |
| Affidavit of 10 November 2008 paragraph 2a. | Second dot point | Scandalous |
| Affidavit of 10 November 2008 paragraph 3 | Whole paragraph | Scandalous, argumentative |
| Affidavit of 18 November 2008 paragraph 2 | Whole paragraph | Scandalous, argumentative |
| Affidavit of 18 November 2008 paragraph 3 | Whole paragraph | Scandalous irrelevant |
| Affidavit of 18 November 2008 paragraph 4 | Whole paragraph | Scandalous, irrelevant as proceedings have been determined in Supreme Court of Queensland |
| Affidavit of 18 November 2008 paragraph 5 | Whole paragraph | Scandalous |
| Affidavit of 18 November 2008 paragraph 6 | Whole paragraph | Scandalous, argumentative |
| Affidavit of 18 November 2008 paragraph 8 | Whole paragraph | Scandalous |
| Affidavit of 18 November 2008 paragraph 9 | Whole paragraph | Scandalous |
| Affidavit of 18 November 2008 paragraph 10 | Whole paragraph | Scandalous, argumentative |
| Affidavit of 18 November 2008 paragraph 11 | Line 6 from the word “Notice” to end of paragraph | Scandalous, argumentative |
| Affidavit of 18 November 2008 annexure “D” | Whole document | Scandalous, argumentative |
| Notice of Objection filed 24 November 2008 paragraph 3 | Whole paragraph | Scandalous |
| Notice of Objection paragraph 10 | Whole paragraph | Scandalous |
| Notice of Objection paragraph 11 | Whole paragraph | Scandalous |
| Notice of Objection paragraph 12 | Whole paragraph | Scandalous |
| Affidavit of 24 November 2008 paragraph 9a | The words following 1263/2008 to end of subparagraph | Scandalous, argumentative |
| Affidavit of 24 November 2008 paragraph 10a | The words following 1263/2008 to end of subparagraph | Scandalous, argumentative |
| Affidavit of 24 November 2008 paragraph 11 | Whole paragraph | Scandalous, argumentative |
| Affidavit 24 November 2008 paragraph 13 | Whole paragraph | Scandalous |
| Affidavit 24 November 2008 annexure E | Whole document | Scandalous |
| Affidavit 24 November 2008 annexure F | Whole document | Scandalous |
| Affidavit 4 December 2008 paragraph 1 | Whole of paragraph after first sentence | Scandalous, argumentative |
| Paragraphs 2, 3, 4c, 4d, 5, 6a, 6b, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 to 42 inclusive | Whole | Scandalous, argumentative |
| Supplementary application filed 30 January 2009 paragraph 2 | Second line from “and is invalid” to “having never” From start of second sentence to “because when” in the twelfth line Subparagraph g in its entirety | Scandalous |
| Supplementary application paragraphs 3a, 3b, 3c, 4b, 4c, 4f, 4g, 4k, 5b, 5j, 5k, 5l, 5m, 5n, 50, 5p, 5q, 5r, 5s, 5t, 5u, 5v, 5w, 13a-z both inclusive | Whole | Scandalous, argumentative |
| Supplementary application paragraph 7(f) | All but first three lines | Scandalous |
| Affidavit filed 30 January 2009 paragraphs 3a –f | Whole | Scandalous |
| Affidavit filed 3 February 2009 (53 pages in length) | Whole | Scandalous, argumentative |
| Affidavit filed 13 February 2009 paragraphs 2, 3, 4, 5B, 6, 11(ix), 11(x), 11(xi), 11(xii), 11(xiii), 11(xiv), 17, 18, second numbered 11, 12, 17 to end of affidavit | Whole | Scandalous, argumentative |
| Affidavit filed 2 March 2009 | Whole | Scandalous, argumentative |
| Affidavit filed 5 March 2009 | Whole | Scandalous, argumentative |
| Notice to Produce filed 2 March 2009 | Whole | Scandalous, argumentative |
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15
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