Kevin Michael Pullen v Matthew Joiner - [2012] FMCA 937

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEVIN MICHAEL PULLEN v MATTHEW JOINER & ORS

[2012] FMCA 937

PRACTICE AND PROCEDURE – Application for adjournment by correspondence – no appearance on day of hearing – application refused.

BANKRUPTCY – Application to review decisions of trustees – applications to have trustees investigated – application for trustees employee to be investigated – application to have trustees and employee apologise to applicant and his family.

Bankruptcy Act 1966, ss.30(1), 155H(1)(f), 176(2)(a), 176(2)(b), 176(2)(c), 179(1)
Federal Magistrates Court Rules 2001, r.16.05(2)(a)

Buljubasic v Buljubasic (1999) FLC 92-865
Johnson v Johnson (2000) 201 CLR 488

Applicant:

KEVIN MICHAEL PULLEN

First Respondent:

MATTHEW JOINER

Second Respondent:

GERALD COLLINS

Third Respondent:

JAMES WILSON

File Number:

BRG 455 of 2011

Judgment of:

Jarrett FM

Hearing date:

26 July 2012

Date of Last Submission:

26 July 2012

Delivered at:

Brisbane

Delivered on:

26 July 2012

REPRESENTATION

No appearance by the applicant

Solicitor for the First, Second and Third Respondents:

Mr Muller

Solicitors for the First, Second and Third Respondents:

Rodgers Barnes & Green

ORDERS

The amended application filed 28 June 2012 is dismissed.
The applicant pay the respondent’s costs of the hearing on 25 August, 2011 and the costs of and incidental to the application filed on 7 June, 2011 to be taxed and paid in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 455 of 2011

KEVIN MICHAEL PULLEN

Applicant

And

MATTHEW JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT

First Respondent

GERALD COLLINS A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT

Second Respondent

JAMES WILSON A SERVANT OF THE FIRST AND SECOND RESPONDENTS

Third Respondent

REASONS FOR JUDGMENT

Ex tempore

This application has come on for final determination today in respect of certain parts of the relief sought by the applicant in his amended application filed on 28 June, 2011. I determined some of the relief sought in that application by an order that I made on 5 June, 2012 for reasons that I delivered orally on that day. The hearing had taken place some 10 months earlier and there was a regrettable delay in delivering the judgment. The reasons were delivered orally, but the written reasons were only settled on 24 July, 2012. The applicant was notified of the delivery of judgment on 5 June by my Associate and he responded by indicating to her that he would not available to listen to the judgment delivered at 2.15 on 5 June, 2012, but he asked for a copy of the written judgment to be sent to him at an email address.
The final hearing today was fixed by my order of 5 June, 2012. The respondents all appear today by legal representative. Mr Muller, solicitor for the first, second and third respondents, has filed an affidavit by leave this morning wherein he exhibits considerable correspondence between the applicant and my Associate and my Associate and the respondent solicitors. Essentially, it…

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 Kevin Michael Pullen v Matthew Joiner

Details

AGLC: Kevin Michael Pullen v Matthew Joiner [2012] FMCA 937
Case: [2012] FMCA 937
Decision Date: 26 July 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Kevin Michael Pullen versus Matthew Joiner was heard. The dispute centres around multiple applications made by Pullen against Joiner, who is the trustee of Pullen's bankruptcy. Pullen's applications sought an adjournment by correspondence, a review of the trustees' decisions, an investigation into the trustees and their employees, and an order for the trustees and their employee to apologise to Pullen and his family. The primary focus of the case was whether the applications were properly before the court and whether the relief sought was appropriate.

The court had to decide if the application for an adjournment by correspondence was justified, particularly given Pullen's history of failing to appear on scheduled hearing dates. Additionally, the court needed to assess the merits of Pullen's request for a review of the trustees' decisions and the appropriateness of the investigations and apologies he sought. The Federal Court considered whether the applications were vexatious or an abuse of process, given Pullen's pattern of making numerous applications without substantial grounds.

The court found that Pullen's applications were vexatious and an abuse of the court process. It was noted that Pullen had a history of making numerous and repetitive applications without substantive justification, which demonstrated an abuse of the legal process. Consequently, the court dismissed the amended application filed on 28 June 2012 and ordered Pullen to pay the respondent's costs of the hearing on 25 August 2011 and the costs of and incidental to the application filed on 7 June 2011, to be taxed and paid in accordance with the relevant rules. The court’s decision underscored the importance of maintaining the integrity of the legal process and the consequences of making frivolous or vexatious applications.

Orders

Orders of the court

The amended application filed 28 June 2012 is dismissed.

The applicant pay the respondent’s costs of the hearing on 25 August, 2011 and the costs of and incidental to the application filed on 7 June, 2011 to be taxed and paid in accordance with the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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