Larkin, Gwendoline Mary Clark v The Official Trustee in Bankruptcy for Gwendoline Larkin
[1996] FCA 123
•7 MARCH 1996
CATCHWORDS
COURTS - Practice & Procedure - Abuse of Process - Frivolous & Vexatious - relitigating in a new form the same case or issue - absence of new evidence or new grounds - Injunction restraining bringing of proceedings relitigating the same case or issue - discretion
Hunter v. Chief Constable of the West Midlands Police & Ors. (1982) AC 529
Williams v. Spautz (1992) 174 CLR 509
Walton v. Gardiner (1993) 177 CLR 378
Rogers v. The Queen (1994) 181 CLR 251
Reichel v. Magrath (1889) 14 App Cas 665
VB2861/92 GWENDOLINE MARY CLARK LARKIN v THE OFFICIAL TRUSTEE IN BANKRUPTCY FOR GWENDOLINE LARKIN
MERKEL J.
MELBOURNE
7 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF
THE STATE OF VICTORIA VB 2861/92
GWENDOLINE MARY CLARK LARKIN Applicant
and
THE OFFICIAL TRUSTEE (AS TRUSTEE
IN BANKRUPTCY FOR GWENDOLINE LARKIN)
Respondent
Coram:Merkel J
Place:Melbourne
Date:7 March 1996
MINUTES OF ORDER
THE COURT ORDERS THAT
The Applications of Gwendoline Mary Clark Larkin dated 23 and 24 January 1996 are dismissed.
2,The application of the respondent for injunctive relief in paragraph 3 of the respondent's application dated 5 February 1996 is dismissed.
The applicant, Gwendoline Mary Clark Larkin pay the respondent's costs of the applications of the applicant and of the respondent.
........ ........ ........
NOTE 1Settlement and entry of orders is dealt with in Rule 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF
THE STATE OF VICTORIA VB 2861/92
RE:GWENDOLINE MARY CLARK LARKIN
Applicant
THE OFFICIAL TRUSTEE (AS TRUSTEE
IN BANKRUPTCY FOR GWENDOLINE LARKIN)
Respondent
Coram:Merkel J
Place:Melbourne
Date:7 March 1996
REASONS FOR JUDGMENT
The Applications
I have before me three applications. The first two are by Mrs. Gwendoline Larkin. In her application dated 23 January 1996 Mrs. Larkin seeks the following orders:
To review the Trustees decision not to join the former bankrupt in an application to strike out as abuse of process judgments of 17.5.90 and 18.12.91 in Magistrates Court.
To order judgment creditor to produce Affidavits of Service of Bills of Costs and to produce details of alleged debts of $1,433 and amendment of addition of $500 on 18.12.91.
In her second application, which is dated 24 January 1996, Mrs. Larkin seeks the following additional orders:
The Trustee explain reasons for seeking orders to hand over keys of property whilst proceedings to nullify original debt were current in Federal and Supreme Courts, notice of which were previously given.
To restrain the Trustees actions to sell property until such actions in Supreme and Federal Courts are adjudicated.
The Trustee explain seeking orders for seizure and sale from false information on Official Receivers Report.
Any orders that are just.
The Respondent to each of the applications is the Official Trustee in Bankruptcy. In the third application dated 5 February 1996 the Official Trustee seeks the following orders:
The application of the Respondent filed on 23 January 1996 pursuant to Section 178 of the Bankruptcy Act 1966 be dismissed as an abuse of process or, in the alternative, as being frivolous and vexatious.
The application of the Respondent filed on 24 January 1996 pursuant to Section 179 of the Bankruptcy Act 1966 be dismissed as an abuse of process or, in the alternative, as being frivolous and vexatious.
Until further order, the Respondent be restrained from making any further application to this Court to:
(i)review the validity of the petitioning creditor's debt in her bankrupt estate or any matter directly related thereto including the Official Trustee's acceptance of the validity of the said judgment; and
(ii)restrain or otherwise prevent the Official Trustee from selling its interest, as trustee of the bankrupt estate of Gwendoline Mary Clark Larkin, in the property at 15 Myers Drive, Shoreham in the State of Victoria and more particularly described in Certificate of Title Volume 8267 Folio 921.
That the Respondent pay the Applicant's costs of and incidental to this application.
Such further or other orders as to the Court shall seem fit.
History
Mrs Larkin failed to pay a judgment debt due on a judgment obtained on 18 December 1991 of $1,433.00 together with interest thereon owed by her to her former solicitor Mr. Michael Rickards. She became a bankrupt upon the making of a sequestration order against her estate on 29 September 1992. The bankruptcy was founded upon the failure by Mrs. Larkin to comply with a bankruptcy notice seeking payment or other settlement of the amount owing to Mr. Rickards under the judgment.
Mrs. Larkin has sought to challenge the judgment in different ways on numerous occasions. The last such occasion was in a hearing before Justice Olney on 1 December 1995.
On that day His Honour dismissed Mrs. Larkin's application for annulment of her bankruptcy and also dismissed an application by her for a stay of the trustee's decision to sell the property known as 15 Myers Drive Shoreham and which was owned by Mr. & Mrs. Larkin. The decision to sell was made as a result of an order of the County Court at Melbourne made on 25 September 1995 for the sale of the property.
His Honour set out the history of the matter in his Reasons for Judgment which were handed down on 15 December 1995. He said:
Since the date of judgment there have been 10 applications made to the Magistrates' Court pursuant to s.110 of the Magistrates' Court
Act for the rehearing of that proceeding. For a variety of reasons each of those applications has failed. On a number of occasions the applicant for rehearing, who in some cases was the respondent and in other her husband who is jointly liable on the same judgment, failed to attend. On other occasions there was an appearance in support of the application. Nevertheless, none of those applications has succeeded.
On four occasions the Magistrates' Court has made orders restraining the respondent from making any further application pursuant to s.110 and indeed the record shows that on some occasions a new application has been filed on the day after a previous application had been dismissed.
The respondent has made three applications for annulment of the bankruptcy. Two of such applications have been heard on their merits and dismissed; the other was not pursued by the respondent apparently on the ground that she was not then ready to proceed.
After considering the affidavit evidence filed on both sides and the written submissions made pursuant to my direction of 1 December 1995 I have reached the firm conclusion that the respondent by her conduct has displayed all of the indicia of a vexatious litigant. Upon dismissing her first annulment application on 24 March 1993 Gray J said:
It is clear to me from the evidence that there is nothing new being agitated today. All of the issues that have come to the surface have come to the surface previously.
This comment was equally applicable to the annulment application which I dismissed on 1 December 1995. No reason has been shown in any of the proceedings in this Court why the Court should go behind the judgment on which the bankruptcy notice was based. In those circumstances I am of the opinion that it would be vexatious and oppressive if the respondent were permitted to continue to approach
this Court for the purpose of seeking annulment of the bankruptcy so long as the Magistrates' Court judgment subsists.
In these circumstances I propose to order that unless and until the judgment of 18 December 1991 against her in the Magistrates' Court is set aside, Gwendoline Mary Clark Larkin be restrained from making any further application to this Court to annul the bankruptcy resulting from the sequestration order made against her estate on 29 September 1992. The respondent must pay the costs of the application.
The matter of the sale of the property came before the County Court again on 24 January 1996. On that day orders were made that Mrs. Larkin's husband, John Walter Larkin, surrender keys to the property; remove his chattels from it and generally co-operate in, and not hinder, its sale.
The Evidence
In support of her applications before me Mrs. Larkin relied on Affidavits deposed to by her and her husband in support of previous applications to the Court and generally sought to again agitate her contention that she did not owe Mr. Rickards the money claimed by him. Mrs. Larkin did not adduce any evidence or material before me that had not, directly or indirectly, been relied upon by her or her husband in previous applications to the courts, including this court.
The Application of the Official Trustee
In essence the Official Trustee contended that the two applications brought by Mrs. Larkin should be struck out as an abuse of process. In support of that contention it was submitted that:
(a)the applications sought to raise the same matters and issues that had already been determined by the courts against Mrs. Larkin;
(b)no new evidence had been adduced and no new arguments were put in support of those matters or issues;
(c)in the light of the past history of the matters sought to be agitated it was an abuse of process to raise them yet again on the present applications.
Abuse of Process
The circumstances in which an abuse of process may arise are extremely varied. Accordingly it has been said to be unwise to limit those circumstances to fixed categories.[1][1] Hunter v. Chief Constable (1982) AC 529, 536 per Lord Diplock.
The following principles are clearly established:
(a)Abuse of process is not limited to the initiation of proceedings for an ulterior or improper purpose.
(b)Abuse of process extends to all those categories of cases in which the processes or procedures of the court are used as instruments of injustice or unfairness.
(c)A well recognised instance of injustice or unfairness is the category of case where its continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case or an issue which had already been disposed of by earlier proceedings.[2]
[2] Williams v. Spautz (1992) 174 CLR 509, 520, Walton v. Gardiner (1993) 177 CLR 378, 393, Rogers v. The Queen (1994) 181 CLR 251, 255-6, 286-7.
Lord Halsbury LC has said that:
It would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.[3]
[3] Reichel v. Magrath (1889) 14 App Cas 665, 668.
That is precisely what Mrs. Larkin has sought to do in her two applications before me.
Although the form of the orders sought by Mrs. Larkin in the present applications may have differed from those sought previously, the grounds for the applications and the substantive issues sought to be raised by them, do not.
Those issues have already been determined against Mrs. Larkin in this court and in other courts. It is clearly an abuse of process to raise them again in the manner sought by the present applications, particularly in the absence of any new and material evidence or new grounds.
Accordingly, the principles set out above warrant the dismissal of her applications on the ground put forward namely, abuse of process.
Injunctions
The application of the Official Trustee also seeks to prohibit Mrs. Larkin from issuing proceedings in this court in relation to the judgment debt or preventing the sale of her and her husband's property at Shoreham, to enable payment of the judgment debt.
The injunction is sought until further order. Accordingly it may be discharged upon cause shown by Mrs. Larkin. However, it is in respect of proceedings which are described in a general way. Such an injunction could have the effect of preventing the bringing of proceedings in this court, irrespective of whether the evidence is new and material and irrespective of whether the grounds sought to be relied upon or the issue to be agitated have been raised before. That is a drastic step which I am not prepared to take at this stage.
On the other hand, if Mrs. Larkin continues to make further applications to the court seeking to agitate issues already determined against her in this or other courts, albeit in a different form, such applications will almost certainly constitute an abuse of process.
Given the history of the matter to date and the outcome of the present applications, that may warrant consideration being given at that stage to whether it was appropriate to make further or other orders which would deny Mrs. Larkin the right to bring such applications without leave of the Court or a Judge.
Conclusion
For the reasons set out above I grant the applications set out in paragraphs 1 and 2 of the Application of the Official Trustee dated 5 February 1996 and dismiss the two Applications of Mrs. Larkin dated 23 and 24 January 1996 on the ground of abuse of process. Accordingly the Applicant's applications are dismissed with costs. At this stage I am not prepared to grant the injunctive relief sought by the Official Trustee in paragraph 3 of his Application.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Dated:7 March 1996
Heard:21 February 1996
Place:Melbourne
Judgment: 7 March 1996
Appearances: Mrs. G. Larkin, the Applicant, in person.
Mr. M. O'Brien, Australian Government Solicitor for the Respondents.
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