Johnston v Judge Middleton - [2019] FCA 966

FEDERAL COURT OF AUSTRALIA
Johnston v Judge Middleton [2019] FCA 966

File number: QUD 248 of 2019

Judge: COLLIER J

Date of judgment: 19 June 2019

Catchwords: PRACTICE AND PROCEDURE – summary dismissal of originating and interlocutory applications at Court’s own initiative – Federal Court Rules 2011 (Cth) rr 1.40 and 26.01(1)(a) – case manifestly hopeless – applicant lacks standing

Legislation:
Bankruptcy Act 1966 (Cth) ss 5(1), 43, 116(2)(a)

Federal Court of Australia Act 1976 (Cth) s 43(2)

Federal Court Rules 2011 (Cth) rr 1.40, 26.01(1)(a)

Cases cited:
Lion Finance Pty Ltd v Belinda Johnston [2018] FCCA 2745

Mulhern v Morgan [2017] FCA 1183

Picos v Servcorp Ltd [2015] FCA 344

Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 19 FCR 149

Date of hearing: 19 June 2019

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 24

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent filed a submitting notice, save as to costs

Counsel for the Third Respondent: The Third Respondent filed a submitting notice, save as to costs

ORDERS

QUD 248 of 2019

BETWEEN:
DANIEL HADDON JOHNSTON

Applicant

AND:
JUDGE S MIDDLETON

First Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

19 JUNE 2019

THE COURT ORDERS THAT:
1.The interlocutory application filed on 18 May 2019 be dismissed.
2.The originating application filed on 8 April 2019 be dismissed.
3.The First Respondent and the Third Respondent may file any submissions in relation to costs by 4.00 pm on 5 July 2019.
4.In the event that the First Respondent and/or the Third Respondent file submissions in relation to costs in accordance with Order 3 of these Orders, the Applicant may file any submissions in relation to costs by 4.00 pm on 19 July 2019.
5.In the event that the First Respondent and the Third Respondent do not file submissions in relation to costs in accordance with Order 3 of these Orders, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
COLLIER J:

The applicant commenced this proceeding on 8 April 2019, seeking the following relief pursuant to s 39B of the Judiciary Act 1903 (Cth):
1. Injunctive Relief to prevent any further claim on the estate BELINDA JOHNSTON.
2.Writ of Mandamus to cause JUDGE S MIDDLETON to re-look at File BRG189/2018 and/or BRG 190 of 2018 and apply principles of equity, and require any claim for debt be substantially proven, and cause the applicant to appear with a verifiable claim. Also require Brendan Joseph Nixon (trustee) to carry out due diligence and look behind default judgement to ensure debt is legitimate, shall it be necessary.
In his originating application the applicant also sought the following interlocutory relief:
3.Writ of Certiorari to quash Sequestration Order - QLD 1781/18/8, and any judgements association with File BRG189/2018 and/or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnston v Judge Middleton

Details

AGLC: Johnston v Judge Middleton [2019] FCA 966
Case: [2019] FCA 966
Decision Date: 19 June 2019

CaseChat Overview and Summary

In the case of Johnston v Judge Middleton, the applicant, who was not a party to the original proceedings, sought to challenge a bankruptcy order on the basis of alleged lack of standing. The application was dismissed by the Federal Court of Australia on the basis that the applicant had no reasonable prospect of success due to a lack of standing. The court considered the provisions of the Federal Court Rules 2011, particularly Rule 26.01(1)(a), which allows for the summary dismissal of proceedings that are manifestly hopeless. The applicant’s submissions and affidavit were examined, but the court found that the applicant had not established a reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. The court determined that the primary proceeding was properly brought by Ms Johnston, and the issues raised by the applicant were matters that could have been pursued by Ms Johnston. Consequently, the court dismissed both the interlocutory and originating applications and set out orders for costs submissions.

Orders

Orders of the court

1. The interlocutory application filed on 18 May 2019 be dismissed.

2. The originating application filed on 8 April 2019 be dismissed.

3. The First Respondent and the Third Respondent may file any submissions in relation to costs by 4.00 pm on 5 July 2019.

4. In the event that the First Respondent and/or the Third Respondent file submissions in relation to costs in accordance with Order 3 of these Orders, the Applicant may file any submissions in relation to costs by 4.00 pm on 19 July 2019.

5. In the event that the First Respondent and the Third Respondent do not file submissions in relation to costs in accordance with Order 3 of these Orders, there be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 26.01(1)(a) of the Rules provides:Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or… In my view it is clear that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding (either in respect of the substantive or interlocutory relief he has sought), and in the absence of an active contradictor it is appropriate that the Court make orders on its own initiative. Fundamentally, the reason that the applicant has no reasonable prospect of successfully prosecuting either application or part thereof is that he lacks standing to do so. The primary proceeding before Judge Middleton was properly brought by Ms Johnston, who was made bankrupt following the sequestration order under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). As the moving party in the primary proceedings, which were determined adverse to her, it naturally fell to Ms Johnston to challenge his Honour’s decision. Questions “A.” to “I.” posed by the applicant in his written submissions relate to issues which could properly have been pursued by Ms Johnston. The applicant in the case before me was not a party to the proceedings before Judge Middleton (nor had any part in them other than as a putative “claimant” offering to “perform upon debt validation” and referable to a number of obligations and a purported “criminal investigation” of the Chief Executive Office of Lion Finance: see [14]-[17] of the primary judgment). In his affidavit filed 8 April 2019 the applicant deposes:3)For I am real party in interest in relation to file BRG 189/2018, and I am authorised to make this affidavit, for i have standing in this matter in that:a- i share my life with the woman, primary creditor and beneficiary of the trust BELINDA JOHNSTON.b- for I a man have a tenant in common for property in dispute from file number BRG 189/2018, being Lot 2 on Survey-Strata Plan 50156, Volume 2626, Folio 448.c- For I a man, and the woman using the name Belinda are the only providers of value and holders of equity to BELINDA JOHNSTON.4)For I a man, act out of necessity and I am morally, spiritually and religiously opposed to, and offended by, a legal system so repugnant in intent that it would prey on the weak, the sick, the elderly and the young. Committing legal genocide, hidden but ever present upon vulnerable mothers and their new-born babies and things alike, undetected in their most vulnerable and sacred hour of need.5)For the Respondent-Lion Finance Pty Ltd did me harm by proceeding legally without verifying their claim at law, causing a large financial loss, tremendous emotional and relationship issues to the point of effecting a man and a woman’s health and wellbeing, unsettling relations and the peace and happiness of three children.(Errors in original.)

Ratio Decidendi

Legal Principle Established

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File number:	QUD 248 of 2019
Judge:	COLLIER J
Date of judgment:	19 June 2019
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal of originating and interlocutory applications at Court’s own initiative – Federal Court Rules 2011 (Cth) rr 1.40 and 26.01(1)(a) – case manifestly hopeless – applicant lacks standing
Legislation:	Bankruptcy Act 1966 (Cth) ss 5(1), 43, 116(2)(a) Federal Court of Australia Act 1976 (Cth) s 43(2) Federal Court Rules 2011 (Cth) rr 1.40, 26.01(1)(a)
Cases cited:	Lion Finance Pty Ltd v Belinda Johnston [2018] FCCA 2745 Mulhern v Morgan [2017] FCA 1183 Picos v Servcorp Ltd [2015] FCA 344 Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 19 FCR 149
Date of hearing:	19 June 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	The First Respondent filed a submitting notice, save as to costs
Counsel for the Third Respondent:	The Third Respondent filed a submitting notice, save as to costs