Khadpekar v Official Trustee in Bankruptcy (No 2)
[2013] FCCA 353
•17 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHADPEKAR v OFFICIAL TRUSTEE IN BANKRUPTCY (NO. 2) | [2013] FCCA 353 |
| Catchwords: BANKRUPTCY – Application to amend a judgment – application to file further documents – public interest – costs. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.16.05(2) |
| Cases cited: Khadpekar v Official Trustee in Bankruptcy [2013] FMCA 186 Lam v Beesley (1992) 7 WAR 88 Pierson's Pro-Health Pty Ltd and Ors v Silvex Nominees Pty Ltd and Anor (No.3) [2010] FMCA 250 Talbot-Price v Jacobs [2008] NSWCA 189 Todorovic v Moussa (2001) 53 NSWLR 463 |
| Applicant: | MANGALA KHADPEKAR |
| Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| File Number: | BRG 841 of 2007 |
| Judgment of: | Judge Lucev |
| Hearing date: | 17 May 2013 |
| Date of Last Submission: | 17 May 2013 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr G Rodgers |
| Solicitors for the Respondent: | Rodgers Barnes & Green |
ORDERS
The applicant’s application for leave to file further documents filed 16 May 2013 and the application in a case, annexed to the affidavit in support of the application in a case sworn 9 May 2013, filed 16 May 2013 be dismissed.
The applicant pay the respondent’s costs of the application in the sum of $37 270 by 31 May 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
BRG 841 of 2007
| MANGALA KHADPEKAR |
Applicant
And
| OFFICIAL TRUSTEE IN BANKRUPTCY |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from the transcript)
Previous judgments and orders
In Khadpekar v Official Trustee in Bankruptcy [2013] FMCA 186 (“Khadpekar 2013”), the Court dealt with an amended application by Ms Khadpekar under which she sought orders in relation to an inquiry into the conduct of the Official Trustee in Bankruptcy (“Official Trustee”) and the removal of the Official Trustee as the trustee in bankruptcy and the removal of the Official Trustee’s solicitors as the solicitors on the record for the Official Trustee. That application was dismissed.
As late as 18 January 2013, when judgment was originally scheduled to be delivered, Ms Khadpekar abandoned other grounds which, in essence, sought orders that would have allowed Ms Khadpekar to challenge orders made by the Queensland courts and also eventually by this Court and the Federal Court with respect to her bankruptcy but the ultimate effect of those orders would have been to challenge the orders which resulted in her bankruptcy.
The application made on 18 January 2013 for amendment to the relief to annul the bankruptcy of Ms Khadpekar was dismissed in Khadpekar 2013. The result in Khadpekar 2013 was a lengthy judgment of some 96 pages and 223 paragraphs, and the Court notes that there is now an application to review that judgment. It is therefore appropriate to read the Court’s conclusions in Khadpekar 2013, in particular paras.219- 221 which were as follows:
These Reasons for Judgment are long. They are long because the Court indicated to Ms Khadpekar that it would, or would endeavour to, deal with all of the substantive issues that she raised. She raised many issues, sometimes in many ways, and with little or no discrimination. The Court chose to address those issues, largely in the manner that they were put, in an endeavour to make it plain that the Application, both in its original form and as amended, could never have succeeded. Furthermore, in the process of dealing with the issues in the manner that it has, the Court has made plain that Ms Khadpekar has fundamentally misunderstood the import of earlier judgments of both the Federal Court and this Court. Had Ms Khadpekar properly understood the import of those judgments it may be that this Application would never have been filed.
As indicated in the Reasons for Judgment the Court is of the view that the Application as originally lodged in relation to the Proposed Appeal would not have succeeded.
As to the application for an inquiry into the conduct of the Official Trustee the Court has dealt with the substantive issues raised by Ms Khadpekar’s Submissions. None of those issues have been made out, or made out with any sufficiency, to warrant an inquiry into the conduct of the Official Trustee. None of the issues raised by Ms Khadpekar give rise to a likelihood that they would reveal misconduct by the Official Trustee. Accordingly, the Court has found that there ought not to be an inquiry into the conduct of the Official Trustee for the reasons put forward by Ms Khadpekar, but also because discretionary factors militate against such an inquiry. That conclusion renders it unnecessary to deal with other orders sought by Ms Khadpekar, except as to costs, which will be the subject of further submissions and hearing.
Consequently, there was an order dismissing the application as amended and further orders to provide for today’s costs hearing. As the Court has indicated there has now also been, in addition to the costs issue, what are effectively applications in a case filed on 16 May 2013 by the applicant for leave to file further documents and for the Court to review the judgment in Khadpekar 2013 and Ms Khadpekar has also filed submissions on costs, albeit fairly late in the piece. The Court deals first with the application in a case for leave to file further documents and to review the judgment in the light of what is said to be new information.
Applicant’s application in a case
The Court’s orders of 22 March 2013 arising as a consequence of the reasons for judgment in Khadpekar 2013 were entered on 22 March 2013. The Court has no power to simply review a judgment, either at all or in light of new information.
The circumstances in which this Court may set aside or vary a judgment, after it has been entered, are set out in r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) which provide:
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
None of those circumstances apply in this case. Therefore, there is no power for the Court to set aside the order of 22 March 2013, and there is simply no power to amend the substance of reasons which have been published. Further, in the circumstances of this case, given the length and the efforts to which the Court went to address the issues raised by Ms Khadpekar in the hearing, any alteration to those reasons for judgment on the basis that they are otherwise inadequate is not accepted. In that regard and although they deal primarily with extempore judgments, the Court refers to the judgments of the New South Wales Court of Appeal in Todorovic v Moussa (2001) 53 NSWLR 463 and Talbot-Price v Jacobs [2008] NSWCA 189 as well as the judgment of the Western Australian Supreme Court in Lam v Beesley (1992) 7 WAR 88.
Even if it had the power or discretion to do so, the Court would not be minded to review the judgment which was handed down on 22 March 2013 in Khadpekar 2013. The basis on which Ms Khadpekar seeks that review is firstly, a report which has never been seen by this Court or been before this Court and which was two years old when the case came to be heard in 2010 and was not submitted then, has not been submitted since until now and which is simply too late, and in terms of its time and substance is irrelevant to the central issues which were determined by the Court as to the conduct of an inquiry into the Official Trustee’s conduct and the annulment of the bankruptcy which, as has been pointed out this morning, has in fact been discharged some four years ago.
Second, the new material which is annexed to the affidavit of Ms Khadpekar filed on 16 May 2013 has never previously been tendered. However, it does no more than either raise new issues which it is inappropriate for the Court to deal with given that comprehensive reasons for judgment on the issues which were raised has been delivered, or it simply tries to re-agitate issues previously determined by this Court and the Federal Court. Thus the Court has no power to review the judgment and even if it had power, the Court would see no reason to exercise any discretion to allow either the filing of the new documents or the application in the case to review the judgment, the former being futile because of the lack of power in respect of the latter.
There will therefore be an order that the application for leave to file documents filed 16 May 2013 and the application in the case to review judgment, which is taken to be filed the same day and which is annexed to the applicant’s affidavit sworn 9 May 2013 and filed 16 May 2013, will be dismissed.
Costs
The Court turns to the issue of costs including reserved costs and it is generally the case in this Court, as outlined in its judgment in Pierson's Pro-Health Pty Ltd and Ors v Silvex Nominees Pty Ltd and Anor (No 3) [2010] FMCA 250 that they follow the event as they do in most other courts. The applicant has filed extensive submissions with respect to costs but the matters raised simply do not come to grips with or address the reasons for judgment of the Court in Khadpekar 2013 and delve into issues extraneous and irrelevant to the issue of costs. It suffices to observe that a number of the matters raised simply take issue with what was in the judgment which is not appropriate given that there are concluded reasons for judgment of the Court and a number of the issues raised are simply irrelevant in terms of the issues which were decided by the Court.
With respect to reserved costs, they ordinarily follow the event and it is appropriate that they follow the event in this case because the issues which were the subject of reserved costs were ultimately matters on which, in the context of the outcome of the entire litigation, the respondent was wholly unsuccessful.
The applicant raises the issue of the public interest. With respect to the public interest the Court makes these observations. Today’s hearing is an application in respect of costs now sought in litigation which, as a consequence of this application and the substantive application, has been before this Court, and the Federal Court for six years, and in relation to other litigation, has been before this Court, the Federal Court and the Queensland courts for at least 10 years prior to that.
There comes a time when it is in the public interest, it is in the interests of the administration of justice and it is in the interests of the litigants that litigation cease. That time has come in this litigation. Indeed, that time has passed in this litigation, and it is appropriate, and in the interests of justice and the administration of justice that this Court deal with the question of costs and that the party which has been successful in the litigation, and wholly and overwhelmingly successful, be entitled to their costs.
There is no public interest issue raised by Ms Khadpekar’s submissions with respect to costs and the public interest in finalising this matter here has greater force because the litigation has been so long running. The litigation, and by that the Court means the litigation dating from the mid-1990s, in all the above mentioned courts, has been litigation in which Ms Khadpekar has never been successful in the ultimate result and the litigation in this Court was effectively much ado about next to nothing in legal terms but which has resulted, practically, in significant costs being incurred and the time and effort of the parties and the Courts and, therefore, the expense of the taxpayer, being run up for an application which, as the Court observed in the substantive reasons for judgment, had no practical opportunity or no practical effect in terms of it being an application which was likely to be successful from the outset.
In those circumstances the Court is of the view and is satisfied, having read the submissions of both parties, that it is appropriate that the applicant pay the respondent’s costs in the amount sought by the respondent. Those costs seem entirely reasonable to the Court and as the Court indicated in its substantive reasons for judgment, this might have been a matter in which indemnity costs might have been sought. It is unnecessary to determine that because they are not now sought.
In all the circumstances there will be an order that the applicant pay the respondent’s costs of the application in the sum of $37 270 by 31 May 2013.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Deputy Associate:
Date: 27 May 2013
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