Mahmoud v Ownersa** Corporation Strata Plan No 811
[2007] FMCA 474
•18 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHMOUD v OWNERS’ CORPORATION STRATA PLAN NO 811(No.2) | [2007] FMCA 474 |
| PRACTICE AND PROCEDURE – Notice of motion – refusal to serve notice of motion – rules re service of notice of motion – proper administration of justice. COURTS and JUDGES – Bias – actual bias – reasonable apprehension of bias – whether actual bias or reasonable apprehension of bias. JURISDICTION – Associated jurisdiction – whether matters within associated jurisdiction. BANKRUPTCY – Annulment of sequestration order. |
| Bankruptcy Act 1966 (Cth) s.153B Human Rights and Equal Opportunities Act 1986 (Cth) s.46PO Trade Practices Act 1974 (Cth) ss.51AB and 52 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 Crowe v Comcare Australia (No 1) [2000] FMCA 146 Fencott and Others v Muller and Another (1983) 152 CLR 570 Fox v Robinson & Anor [2003] FMCA 107 In Re the Judiciary Act 1903-1920 and In Re the Navigation Act 1912-1920 (1921) 29 CLR 257 Mahmoud v The Owners’ Corporation Strata Plan 811 [2006] FCA 815 Mahmoud v Owners Corporation Strata Plan 811 [2006] FCA 1233 Mahmoud v The Owners’ Corporation Strata Plan 811 [2006] FMCA 879 Mahmoud v The Owners’ Corporation Strata Plan 811 [No.2] [2006] FMCA 1711 Mahmoud v The Owners Corporation Strata Plan No 811 [No 3] [2006] FMCA 1742 Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131 Minister for Immigration & Multicultural Affairs v Jia Legeng & Another (2001) 205 CLR 507; [2001] HCA 17 New South Wales Department of Housing v Moskalev [2007] FCA 353 Re Refugee Review Tribunal; ex parte H and Another (2001) 179 ALR 425 Re Wakim; Ex parte McNally and Another (1999) 198 CLR 511 The State of Queensland and Another v JL Holdings Pty Ltd (1997) CLR 146 The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194 The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3 Trainor v BMW Melbourne Pty Ltd and Others [2003] FMCA 7 Windross v Transact Communications Pty Ltd [2002] FMCA 145 |
| Applicant: | TOSSON HUSSEIN MAHMOUD |
| Respondent: | OWNERS’ CORPORATION STRATA PLAN NO 811 |
| File Number: | SYG 1420 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 March 2007 |
| Date of Last Submission: | 27 March 2007 |
| Delivered at: | Perth (via telephone link to Sydney) |
| Delivered on: | 18 October 2007 |
REPRESENTATION
| Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Mrs P. Koroknay |
| Solicitors for the Respondent: | David Le Page |
| Counsel for the Official Trustee: | Mr M Mantaj |
| Solicitors for the Official Trustee: | Sally Nash & Co |
ORDERS
That the application in its entirety be dismissed.
The costs of the Respondent Creditor should be taxed in accordance with the Federal Court Rules and paid out of the Applicant Bankrupt’s estate in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 1420 of 2006
| TOSSON HUSSEIN MAHMOUD |
Applicant
And
| OWNERS’ CORPORATION STRATA PLAN NO 811 |
Respondent
REASONS FOR JUDGMENT
Introduction
The litigation history of this matter is lengthy. This is the fifth judgment of this Court concerning the Applicant’s bankruptcy.
In order to understand the manner in which the matters presently before the Court fall for determination it is necessary to recite some of the history of the application and various orders made by this Court in relation to that application.
The application
On 16 May 2006 the Applicant applied to the Court for final orders in the following terms:
“01- Annulment of the sequestration order made against the estate of Tosson Mahmoud by the Registrar of the Federal Magistrate (sic) Court on 23-05-2005
02 -No order of any kind should had been made against Tosson Mahmoud on 23-05-2005 as he was not informed of such a date of a hearing at that time and as he was not serviced (sic) with any notice of the date of the hearing.
03 -Adjournment of the hearing of this application until Tosson Mahmoud is cleared of the very severe trauma he is suffering from as a result of the attack on him and the very horrific experience he was subjected to as indicated by the annexed medical certificates together with the related document detailing the attack on him of the 24th of March, 2006.
04 -A stay of all proceedings in the Supreme Court of NSW in relations to all matters against Tosson Mahmoud, his estate and his unit at 16/417 Liverpool Rd., Ashfield, NSW, 2131, in particular the matter of the list of possession, common law division, No. 15829 of 2005
05 -Granting of legal aid by the Legal Aid Commission and the providing of a solicitor and a barrister to Tosson Mahmoud given his impoverished state, being a pensioner, faced by opponents hiring a solicitor and the very danger of the very threat to his ownership of his only place of residence at 16/417 Liverpool Rd., Ashfield, NSW, 2131
06 -Those opponents of Tosson Mahmoud calling themselves the owners’ corporation strata plan 811 are not the owners’ corporation strata plan 811, do not represent the owners’ corporation strata plan 811 and are an illegitimate body who has no authority on neither Tosson Mahmoud nor on the owners of strata plan 811 and that Tony Wolody is not the agent of the owners’ corporation strata plan 811 as his appointment was invalid since 31-07-2000 and as he was brought by malicious, vicious, illegal and illegitimate means with the conspiracy of the Police who confessed that it executed a false arrest and a false imprisonment of Tosson Mahmoud at 05.30 p.m. on 31-07-2000 to prevent him from attending the illegal extraordinary general meeting, of the Owners’ Corporation Strata Plan 811, at which Tony Wolody was planted fraudulently as our agent, in case someone had told him about it as Tosson Mahmoud, although he was and still is since then the only legitimate Chairman and the only one who could had called such a meeting, didn't know about it until some days later.
07 -The opponents pay to Tosson Mahmoud all his costs and expenses of $800,000.00 for the seven years of courts and tribunal cases which were caused, brought and lost by the opponents.
08 -No money is owed by Tosson Mahmoud to his opponents as they are an illegitimate and an invalid body who has no right to demand any money from any owner.
09 -The Department of Land to remove the caveat imposed on the only place of residence of Tosson Mahmoud at 16/417 Liverpool Rd, Ashfield, NSW, 2131
10 -That Tosson Mahmoud doesn’t owe any money stated in the creditors petition as for costs in the Supreme Court because the conclusion of the cases in the Supreme Court is a very severe miscarriage of justice and no judge at the Supreme Court has made any judgement in the matters which were all decided by registrars hostile to Tosson Mahmoud and who illegally recognized Wolody and his solicitor Le Page as the Owners’ Corporation strata plan 811 and refused to recognize Tosson Mahmoud as the only representative of the Owners’ Corporation.
11 - A declaration that Tosson Mahmoud has paid all his levies of strata plan 811 up to date at the proper account of the Owners’ Corporation strata plan 811 at the National Bank No. 480349331 and therefore he owes no money to the Owners’ Corporation Strata Plan 811.”[1]
[1] “Applicant’s Final Orders Sought”.
Interim orders were also sought in identical terms to the Applicant’s Final Orders Sought, save for order 7.
Hearing & orders 23 May 2006
At an interlocutory hearing on 23 May 2006 the Court made the following orders:
“1.The matter be listed before me[2] at 2.15pm on Tuesday, 1 August 2006.
2.The applicant file and serve evidence on which he seeks to rely in the annulment application by 30 June 2006.
3.The Official Trustee file and serve a report for the annulment application by 14 July 2006.
4. Any other evidence in reply by any party to be filed and served by 21 July 2006.
5.The applicant serve copies of all material filed by him in these proceedings on the party that was the applicant creditor in proceedings SYG 1034/2005 care of David Le Page, Solicitor, Suite 1505, Level 15, 33 Bligh Street, Sydney, New South Wales 2000 by registered post.
6.Liberty to apply to any party on two (2) days notice in the event of default of compliance with these orders.
7. The applicant pay the costs of the Official Trustee as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules”.[3]
[2] Federal Magistrate Barnes.
[3] “23 May 2006 Orders”.
The Reasons for Judgment in relation to the 23 May 2006 Orders make it clear that the application for interim orders in the terms sought by the Applicant was dismissed.[4]
[4] Mahmoud v The Owners’ Corporation Strata Plan 811 [2006] FMCA 879 (“Mahmoud 2006 [No.1]”).
The Applicant did not comply with orders 2, 4 and 5 of the 23 May 2006 Orders.
An ex parte application to the Federal Court
On 26 June 2006 the Federal Court heard the Applicant’s ex parte application dealing with, amongst other things, the 23 May 2006 Orders, and the Applicant’s “complaint concerning what he asserted to be the illegality and impropriety of the hearing before Barnes FM.”[5] Of that “sweeping allegation” the Federal Court found that the Applicant “was unable to articulate bases in law in support” thereof.[6] The Federal Court declined to grant interim relief.[7]
[5] Mahmoud v The Owners Corporation Strata Plan 811 [2006] FCA 815 at para 7 per Conti J (“Mahmoud Federal Court [No.1]”).
[6] Mahmoud Federal Court [No.1] at para 7 per Conti J.
[7] Mahmoud Federal Court [No.1] at para 7 per Conti J.
Hearing & Orders 1 August 2006
The application came before the Court again on 1 August 2006. The Court then made the following orders:
“1. The hearing of the application for Final Orders 2 to 11 in the application filed on 16 May 2006 be adjourned pending further order.
2.The application for an annulment of the sequestration order made on 15 May 2005 be listed for final hearing on Wednesday 25 October 2006 at 10:15am.
3.The Applicant file and serve affidavit and other evidence on which he seeks to rely in relation to the application for annulment of sequestration order by Tuesday 15 August 2006.
4.The Respondent file and serve any affidavit evidence on or before Tuesday 29 August 2006.
5. Pursuant to Rule 7.03 of the Federal Magistrates Court (Bankruptcy) Rules the Applicant give notice of the annulment application to each person known to the Applicant to be a creditor of the Applicant at least 14 days before 25 October 2006.
6. Either party has liberty to apply on 2 days notice.
7.The costs of today are reserved.”[8]
[8] 1 August 2006 Orders.
The Applicant did not comply with orders 3 and 5 of the 1 August 2006 Orders.
An application to the Federal Court for leave to appeal
The Applicant also applied to the Federal Court for leave to appeal the 23 May 2006 Orders. The grounds raised were “to the effect that the proceedings before the [Federal] Magistrate were invalid due to the presence of ITSA (Insolvency Trustee Services Australia)”.[9] Leave to appeal was refused.[10]
[9] Mahmoud v Owners Corporation Strata Plan 811 [2006] FCA 1233 (“Mahmoud Federal Court [No.2]”).
[10] Mahmoud Federal Court [No.2] at para 7 per Tamberlin J.
Hearing & Orders 25 October 2006
The hearing of the application for Final Orders 2 – 11 having been adjourned pending further order,[11] the application came before the Court on 25 October 2006 for hearing of the application for annulment of the sequestration order. The Applicant however moved on a Notice of Motion filed in Court seeking:
[11] See Order 1 of 1 August 2006 Orders.
“(a) to adjourn the hearing;
(b)that “the file be inspected by [Federal] Magistrates (sic) Barnes and if there are any documents or materials not served on the applicant, then the hearing should be adjourned until he is served with the documents and time given for him to respond”; and
(c)that Federal Magistrates Barnes disqualify herself because one of the annexures “focused heavily on the subject of feminism and the applicant is very concerned that he would be prejudiced by [Federal] Magistrate Barnes.”
The Court dismissed the Notice of Motion.[12] The Court refused an adjournment having regard to:
a)case management considerations;[13]
b)the Federal Magistrates CourtRules, 2001 (Cth) (“FMC Rules”) and in particular r.1.03 requiring the just, efficient and economical resolution of proceedings;[14] and
c)time pressures alleged by the Applicant, but rejecting the Applicant’s submissions concerning that issue.[15]
[12] Mahmoud v The Owners Corporation Strata Plan No 811 [No.2] [2006] FMCA 1711 (“Mahmoud 2006 [No. 2]”).
[13] Mahmoud 2006 [No. 2] at para 7 per Lucev FM citing The State of Queensland and Another v JL Holdings Pty Ltd (1997) CLR 146 at 154 and 155 per Dawson, Gaudron and McHugh JJ, and at 166 per Kirby J.
[14] Mahmoud 2006 [No. 2] at para 8 per Lucev FM.
[15] Mahmoud 2006 [No. 2] at paras 9-11 per Lucev FM.
The Court also rejected the Applicant’s motion for adjournment based on the contents of the Court file, finding that there was “nothing untoward on the file”.[16] The third order sought in the Notice of Motion was not pursued and was dismissed accordingly.
[16] Mahmoud 2006 [No. 2] at para 16 per Lucev FM.
The Court also dealt with, and refused, an adjournment based on medical grounds, the medical evidence being stale and the Applicant disavowing illness on the day, and appearing and making submissions without any apparent difficulty.[17]
[17] Mahmoud 2006 [No. 2] at para 14 per Lucev FM.
Following orders being made on the Notice of Motion the Applicant made further application, orally, to look at the file, and, as a consequence, the Court went through the original documents on file with the Applicant (and other parties) in open Court.[18] The Court held that there was nothing on the Court file that the Applicant was unaware of.[19]
[18] Mahmoud v The Owners Corporation Strata Plan No 811 [No 3] [2006] FMCA 1742 at paras 13-20 per Lucev FM (“Mahmoud 2006 [No. 3]”).
[19] Mahmoud 2006 [No. 3] at para 21 per Lucev FM.
The Court went on to find that an affidavit and annexures sought to be tendered by the Applicant were inadmissible.[20] Also held inadmissible were purported minutes of two meetings of the Owners Corporation.[21]
[20] Mahmoud 2006 [No. 3] at paras 22-47 and 56 Lucev FM.
[21] Mahmoud 2006 [No. 3] at paras 48-50 at 56 per Lucev FM.
Having considered the Official Trustees report and certain evidence led by the Respondent,[22] and the principles in relation to whether a sequestration order ought not to have been made,[23] the Court found that there was nothing before it to indicate that a sequestration order was not bound to be made.[24] Additionally, the Court exercised its discretion not to annul the sequestration order for reasons set out in the Reasons for Judgment.[25]
[22] Mahmoud 2006 [No. 3] at paras 51-52 per Lucev FM.
[23] Mahmoud 2006 [No. 3] at paras 54-55 per Lucev FM.
[24] Mahmoud 2006 [No. 3] at paras 56 per Lucev FM.
[25] Mahmoud 2006 [No. 3] at paras 57 per Lucev FM.
It is relevant to note that one of the reasons for exercising the discretion not to annul the sequestration order was:
“notwithstanding the provisions of the Bankruptcy Act relating to the powers and duties of Official Trustee (including sections 18, 19, 109, 129(1), 134, 135,140, 145, 156A, 165, 173 and 174) the Applicant continues to refuse to recognize the “existence” of the Official Trustee or the role of the Official Trustee, and refuses to assist the Official Trustee”,
and in a footnote reference was made “generally” to the Transcript of Proceedings for 25 October 2006.[26]
[26] Mahmoud 2006 [No. 3] at para 57(c) and footnote 45 per Lucev FM.
Consequently, the application for annulment of the sequestration order was dismissed. The matter was adjourned to a further directions hearing on 31 January 2007 in relation to the disposition of final orders 2-11 sought by the Applicant in the application.
Directions hearing 31 January 2007
The directions hearing on 31 January 2007 was held by video link from Perth (where the Court was sitting) to Sydney where the Applicant and Counsel for the Respondent Creditor and Official Trustee appeared.
The Applicant claimed that it was “injustice” to have a “justice by video” and wanted the hearing “cancelled because it was by video” or adjourned.[27] The Court explained to the Applicant that it was normal for this Court (and the Federal Court) to have both hearings proper and directions hearings by video, that this was only a directions hearing and that any further hearing of the application proper would be in Sydney (that is, not by video).[28]
[27] Transcript of Proceedings 31 January 2007 pp 2-3.
[28] Transcript of Proceedings 31 January 2007 pp 2-3.
The Applicant then sought to present a Notice of Motion in Court. The Notice of Motion sought to disqualify the Court as currently constituted “of criminally conspiring with the gang of … against me.”[29] The Notice of Motion had not previously been filed with the Court, and the Applicant refused to answer the Court’s question as to whether a copy of the Notice of Motion had been given to Counsel for the Respondent Creditor and the Official Trustee. The Applicant declared the Court’s question “illegal”.[30] The Court told the Applicant that he could file the Notice of Motion in the Sydney Registry.[31]
[29] Transcript of Proceedings 31 January 2007 p 3.
[30] Transcript of Proceedings 31 January 2007 pp 5-6.
[31] Transcript of Proceedings 31 January 2007 p 7.
The Court then proceeded to deal with the outstanding orders sought by the Applicant, namely orders 2 – 11, and how they were to be dealt with. The Applicant continued to refuse to recognize Counsel for the Respondent Creditor and the Official Trustee, declaring, “those people don’t exist”.[32] The Court set the disposition of orders 2 – 11 down for hearing on 27 March 2006 in Sydney, over the protest of the Applicant. The following orders were made:
“1. Subject to the filing of the foreshadowed Notice of Motion referred to in Court by the Applicant, that the Notice of Motion and the disposition of final orders 2 through to 11 sought by the Applicant in the Application be listed for hearing in Sydney at 9.00 am on 27 March 2007.
2. Any further affidavits relied upon by the Applicant be filed and served by 4.00 pm on 9 February 2007.
3. Any further affidavits relied upon by the Respondent be filed and served by 16 February 2007.
4. Any objections to the further affidavits filed in accordance with Orders 2 and 3 herein be filed and served in writing by 4.00 pm on 23 February 2007.
5. The Applicant file and serve a written outline of submissions by 4.00 pm on 2 March 2007.
6. The Respondent file and serve a written outline of submissions by 4.00 pm on 9 March 2007.
7. Costs be reserved.”[33]
[32] Transcript of Proceedings 31 January 2007 p 7.
[33] 31 January 2007 Orders.
Further directions hearing 9 February 2007
A further directions hearing was held by video-link between Perth and Sydney on 9 February 2007. The Applicant, represented on this occasion by solicitors, made application for an extension of time in which to file the Applicant’s affidavits. Having regard, principally, to the position of solicitors recently instructed, the Court made orders, extending the time for the filing of the Applicant’s affidavits by a fortnight, and extending all other times by a fortnight, but maintaining the hearing date of 27 March 2006.[34] The Court also had regard to the necessity, in the proper exercise of the judicial power under Chapter III of the Constitution for Chapter III Courts to quell controversy.[35]
[34] Mahmoud v Owners Corporation Strata Plan No 811 [2007] FMCA 131 at paras 6 and 24-36 per Lucev FM (“Mahmoud 2007 [No. 1]”).
[35] Mahmoud 2007 [No 1] at para 21 citing Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd (2006) 70 IPR 146 at 158 per Rares J.
Hearing 27 March 2006
The matter came on for hearing on 27 March 2006. The Applicant again appeared self represented. Nothing had been filed by any party under the 31 January 2007 Orders, as amended on 9 February 2007. The Applicant not having filed a Notice of Motion nor any affidavits or submissions, it is understandable that the Respondents Creditor and Official Trustee did not file any affidavits or submissions.
Immediately upon commencement the Applicant sought a short adjournment – to allow him to sort and staple certain papers. A short adjournment was granted. Upon resumption the Applicant sought to file, in Court, a Notice of Motion seeking that the Court as presently constituted disqualify itself on the basis of bias because of an alleged “criminal conspiracy” with the “criminal Wolody gang”, being the agents for the Respondent Creditor. The Applicant also sought to tender an affidavit with the Notice of Motion. The Applicant refused to provide copies of the Notice of Motion and affidavit to Counsel for the Respondent Creditor and Official Trustee.[36]
[36] Transcript of Proceedings, 27 March 2007, p. 4.
The Court ruled that it would not accept the Notice of Motion and affidavit sought to be filed in Court by the Applicant, and that it would deliver formal reasons later. Those reasons now follow.
The Court had regard to the following factors:
a)this was not a Notice of Motion (or an application) with affidavit required to be served by hand.[37] It was not urgent, particularly given that it had previously been foreshadowed but not acted upon.[38] It would therefore ordinarily have been a Notice of Motion (or an application) upon which service would have been effected by post;[39]
b)common practice is to serve a Notice of Motion (or an application) and accompanying affidavit on the other parties prior to any hearing, thereby giving them some notice of what is in issue and an opportunity to deal with the issue either by way of submissions or evidence;[40]
c)on 31 January 2007 the Applicant was directed by the Court to file the Notice of Motion concerning disqualification in the Sydney Registry. The 31 January 2007 Orders (as amended) required filing and serving of any further affidavits, that filing being subject to the foreshadowed Notice of Motion being filed (which orders the Applicant in any event failed to comply with, which is also a matter to which regard must be had); and
d)the Applicant refused to provide copies (and therefore notice by way of service of the Notice of Motion and affidavit) to Counsel for the Respondent Creditor and Official Trustee,
and the Court therefore considered it would be unfair and prejudicial to the Respondent Creditor and Official Trustee, and inconsistent with the proper administration of justice by the Court to accept the Notice of Motion and affidavit in the circumstances.
[37] FMC Rules, r.6.06.
[38] FMC Rules, r.5.01.
[39] FMC Rules, r.6.11 and 6.12.
[40] See for example FCR O.14 r.7(1) and O.19 r.2(1), the former requiring a party intending to use an affidavit to serve it on each interested party not later than a reasonable time before the occasion for using it arises, the latter a Notice of Motion that cannot be moved upon unless the opposite party or parties have been served. See also BC Cairnes, Australian Civil Procedure (5th Edn) (Sydney: LBC Information Services, 1996), p. 94.
As can be seen from the history of proceedings (which it has been necessary to set out at such length) the Court endeavoured to carefully case manage these proceedings to ensure that the Application has been dealt with properly, and in fairness to all parties. The Court is charged to deal with matters justly, efficiently and economically, and with a level of informality not inconsistent with its judicial function.[41] Even so it cannot allow one party to continually seek to set at naught the orders of the Court. That is particularly so where, as here:
a)the 31 January 2007 Orders (as amended) were specifically fashioned as they were to enable the Notice of Motion seeking disqualification of the currently presiding member of the Court, to be filed well before the hearing, and so too any relevant affidavit; and
b)the time for filing the affidavits under the 31 January 2007 Orders (as amended) was extended at the behest of the Applicant (and particularly his then solicitors),
and not withstanding (a) and (b) above the Applicant (as he had done in relation to the orders of this Court of 25 May 2006 and 1 August 2006) failed to comply with the 31 January 2007 Orders (as amended).
[41] See Federal Magistrates Act, 1999 (Cth) s.42 (“FM Act”); FMC Rules, r.1.03.
Following the Court’s decision rejecting the Notice of Motion and Affidavit the Applicant, when asked to proceed, made an oral application for the following orders (and, seemingly, these are the same orders as were to be sought in the Notice of Motion):
a)that the presiding member of the Court disqualify himself on the grounds of bias, namely the aforementioned “criminal conspiracy”;[42]
b)the hearing be stopped and declared “illegal”, because of the “illegal” recognition by the Court of the Respondent Creditor and Official Trustee, and because the Applicant was the one true representative of the Respondent Creditor;[43]
c)that proceedings be stayed pending:
i)appeals to the Federal Court, including an appeal against the Court’s decision to reject the filing of the Notice of Motion and affidavit, and, an as yet un-filed appeal against the decisions in Mahmoud 2006 [No 2] and Mahmoud 2006 [No 3]: appeals already out of time, and out of time[44] when first foreshadowed by the Applicant at the Directions Hearing on 31 January 2007;[45]
ii)appeals to the High Court on unspecified matters related to this Application;[46]
iii)appeals to the New South Wales Court of Appeal;[47]
d)the proceedings be stayed because of the Applicant’s health which he submitted had “suffered … caused … by the criminal … Wolody in conspiracy with the corrupt bribed police and corrupt racist dishonest doctors of the intensive psychiatric unit at Windsor Hospital”;[48] and
e)the Court order the payment of the Applicant’s costs. [49]
[42] Transcript of Proceedings, 27 March 2007, p.4.
[43] Transcript of Proceedings, 27 March 2007, p.4.
[44] FCR O.52 r.15(1)(a).
[45] Transcript of Proceedings, 31 January 2007, p.4.
[46] Transcript of Proceedings, 27 March 2007, p.4.
[47] Transcript of Proceedings, 31 January 2007, p. 4. Presumably being against the decisions of Rothman J, granting the Official Trustee a writ of possession in relation to the Applicant’s property, The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194; and the decision of Hall J refusing the Applicant’s application for a stay of the judgment of Rothman J: The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3.
[48] Transcript of Proceedings, 27 March 2007, pp.4-5.
[49] Transcript of Proceedings, 27 March 2007, p.5.
The Court, having regard to:
a)the issue of disqualification being raised by the oral submissions;
b)the original listing being to deal with a Notice of Motion concerning disqualification (as well as the disposition of orders 2-11 sought by the Applicant); and
c)that notwithstanding the Notice of Motion sought to be filed had been rejected,
asked the Applicant to outline the basis for disqualification of the application.
The Applicant then outlined the basis for disqualification as follows:
a)the Court’s decision in Mahmoud 2006 [No 3] contained gross errors which the Applicant intended to appeal to the Federal Court (but had not yet done so);[50]
b)the Court had subjected him to racial discrimination and injustice, and in support of this argument the Applicant referred to (without seeking to tender in evidence) press articles concerning:
i)the Managing Director of a company called Cazaly Mining referring to justice only being given to the “big end of town” a statement apparently made in connection with a dispute between Cazaly Mining and Rio Tinto; and
ii)the Mufti of Australia making statements concerning the “injustice” afforded to certain persons apparently convicted of rape in New South Wales;[51]
c)some general references to the overall power of the judiciary;[52] and
d)the Court erred in ignoring “the facts” stated by the Applicant when determining (as part of its judgment in Mahmoud 2006 [No 3]) that the Applicant’s evidence was inadmissible.[53]
[50] Transcript of Proceedings, 27 March 2007, p.5.
[51] Transcript of Proceedings, 27 March 2007, p.6.
[52] Transcript of Proceedings, 27 March 2007, p.6.
[53] Transcript of Proceedings, 27 March 2007, p.6; Mahmoud 2006 [No. 3] paras. 22-50 per Lucev FM.
The basis for the disqualification application as explained by the Applicant contain no ground or justification for the earlier mentioned basis for disqualification, namely, the alleged “criminal conspiracy”.
No evidence was, or was sought to be, tendered in relation to the oral disqualification application.
The Court dismissed the oral application that the presiding Federal Magistrate disqualify himself on the basis of bias. The Court indicated it would deliver its reasons for so doing later. Those reasons follow.
Bias
The onus is on the Applicant to distinctly make and clearly prove any allegation of bias.[54]
[54] Minister for Immigration & Multicultural Affairs v Jia Legeng & Another (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J, and at 546 per Kirby J; [2001] HCA 17 at para 69 per Gleeson CJ and Gummow J and at paras 1-7 Kirby J (“Jia”).
Actual bias is prejudgment unalterable by persuasion.[55]
[55] Jia at CLR 531 – 532 per Gleeson CJ and Gummow J; HCA at paras 71-72 per Gleeson CJ and Gummow J; CLR at 564 per Hayne J; HCA at paras 185-186 per Hayne J.
Apprehended bias is tested by whether a fair minded lay observer would reasonably apprehend that the Court as presently constituted might not bring an impartial mind to the resolution of the question to be decided.[56]
[56] Re Refugee Review Tribunal; ex parte H and Another (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para 27 per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
In this case, the allegation of bias was made, but not characterized as actual or apprehended bias.
The ground advanced by the Applicant in paragraph 33(a) above essentially alleges bias on the basis of alleged error in the Reasons for Judgment in Mahmoud 2006 [No 3]. The alleged “gross error” and ignoring of the "facts” by ruling the Applicant’s evidence inadmissible might be matters the Applicant might appeal against (although he had not done so), but there is nothing in the Reasons for Judgment (which related to an application to annul a sequestration order) which indicates or evidences bias, actual or apprehended, in relation to the orders (2 – 11) now sought.
In relation to the allegation of bias on the basis of racial discrimination there is no evidence before the Court as to the Applicant’s race. It is not a matter which arose in the course of the proceedings leading to the order dismissing the application for an order to annul the sequestration order, or in relation to the proceedings leading to the orders relating to the filing of affidavits (including the extended time for filing of affidavits) for this phase of the hearing. The submissions in support of this ground were directed to complete irrelevancies: namely, the view of the Managing Director of Cazaly Mining as to the dispensation of justice favoring the “top end of town”, and the Mufti of Australia’s view about justice in rape convictions in the state of New South Wales. There is simply no basis for an allegation of actual bias on the basis of racial discrimination. Likewise, there is no basis for an allegation of apprehended bias on the basis of racial discrimination. There is nothing in the course of these proceedings which would indicate to a fair-minded lay observer that the Court was not bringing an impartial mind to the decision making process.
Although the allegation of bias on the basis of the alleged “criminal conspiracy” was not pursued the Court observes that there is no basis for an allegation of actual or apprehended bias in this regard. Rather, it seems a case of the Applicant asserting that any person in authority with whom he has come into contact in the course of this matter, and who has not agreed with him, or who has acted, or might act, in a manner the Applicant considers contrary to his interests, is engaged in some kind of criminal or conspiratorial activity. For example, those types of accusations have extended in the course of these proceedings to:
a)a Federal Court Judge accused of making “deliberate vicious lies”;[57]
b)the police;[58]
c)doctors; [59]
d)Federal Magistrate Barnes;[60] and
e)Registrars of the Supreme Court of New South Wales.[61]
[57] Transcript of Proceedings, 25 October 2006 (2nd page of un-numbered transcript).
[58] See order 6 sought by the Applicant in para 3 above, and para 31(d) above.
[59] See para 31(d) above.
[60] See para 12 above.
[61] See order 10 sought by the Applicant in para 3 above.
In all of the circumstances, the application for disqualification of the currently presiding member of the Court on the basis of bias is not made out.
For the sake of completeness and notwithstanding that it was not raised by the Applicant, the Court notes that in Mahmoud 2007 [No 1] it did deal with orders 2-11 as sought by the Applicant in the context of determining whether or not to extend time for the filing of the Applicant’s affidavits. However, the Court did so “without determining them for future purposes”.[62] Further, the Court made it clear that there were various contestable issues, particularly in relation to orders 6, 8 and 11 as sought by the Applicant.[63]
[62] Mahmoud 2007[No 1] at para 8 per Lucev FM.
[63] Mahmoud 2007 [No 1] at paras 13, 15 and 18 per Lucev FM.
In the circumstances, there was clearly no unalterable prejudgment given that specific orders sought by the Applicant were identified as contestable issues by the Court. No fair minded impartial lay observer could find that the Court was biased against the Applicant when bringing its mind to a determination of the issues raised by the orders sought in these proceedings.
Orders 2-11 sought by Applicant
Following the Court’s refusal to grant the Applicant’s oral application to disqualify the currently presiding member of the Court on the grounds of bias, the Court invited the Applicant to address the Court in relation to orders 2 – 11 sought by the Applicant, that being the substantive matter in relation to which this hearing had originally been intended to be scheduled. The Court invited the Applicant to tender any evidence in support of orders 2 – 11 as sought by the Applicant. The Applicant refused to tender evidence, indicating that he was not prepared to do so before this Court and “before these people”, that being a reference (as the Court understood it) to Counsel for the Respondent Creditor and Official Trustee. The Applicant indicated his intention to immediately withdraw from the proceedings and to appeal to the Federal Court. The Applicant made it abundantly clear that he was not prepared to proceed before this Court.[64] On previous occasions when the Applicant had made similar threats, the Court had been able to persuade the Applicant to remain present for the duration of proceedings.[65] The Court warned the Applicant that the consequence of his withdrawal, without tendering any evidence, was likely to be the dismissal of the application for orders 2 – 11 as sought by him. The Applicant withdrew in any event.[66]
[64] Transcript of Proceedings, 27 March 2007, pp. 8-9.
[65] See, for example, Transcript of Proceedings, 25 October 2006.
[66] Transcript of Proceedings, 27 March 2007, p. 9.
Counsel for the Respondent Creditor and Counsel for The Official Trustee then addressed in relation to orders 2 -11 as sought by the Applicant.[67]
[67] Transcript of Proceedings, 27 March 2007, p. 9-11.
Jurisdiction and final and complete determination of matter
The determination of the Applicant’s application for orders 2 – 11 as sought will finally and completely determine the issues in these proceedings in this Court,[68] subject to the Court having jurisdiction to deal with the matters.
[68] FM Act, s.14.
Counsel for Creditor submitted that the Court had jurisdiction under s.18 of the FM Act, as the Applicant’s orders 2 – 11 sought were “associated” with the matter in which the jurisdiction of the Court was invoked, namely an application to annul the sequestration order.[69]
[69] Under s.153B of the Bankruptcy Act 1966 (Cth).
Associated Jurisdiction
Whether or not a matter is within the associated jurisdiction of the Court was recently dealt with by the Federal Court in New South Wales Department of Housing v Moskalev.[70] At first instance in this Court an application under s.46PO of the Human Rights and Equal Opportunities Act 1986 (Cth) claiming discrimination in the provision of accommodation was dismissed, but notwithstanding the dismissal, the Court ordered the Department of Housing to reassess eligibility for priority housing under the Department of Housing Priority Housing Philosophy. The issue for the Federal Court was whether this Court’s order for reassessment of priority was beyond power.[71] Ultimately, the answer to the issue depended upon whether the ability to make the order sought to be impugned was within this Court’s associated jurisdiction under s.18 of the FM Act.[72]
[70] [2007] FCA 353 (“Moskalev”).
[71] Moskalev at para 3 per Cowdroy J.
[72] Moskalev at para 25 per Cowdroy J.
In Moskalev the Federal Court set out the law concerning this Court’s associated jurisdiction as follows:
“In Philip Morris Incorporated and Another v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited and Others (1981) 148 CLR 457 at 474, Barwick CJ said of the application of s.32 of the Federal Court Act:
‘Thus, there may be circumstances in which the matter does not in substance itself attract federal jurisdiction, though that which attracts federal jurisdiction must in some way relate to the matter. Once federal jurisdiction is attracted, it is not lost because the claim or assertion which attracted it has not been substantiated or has been displaced by some countervailing fact. Once attracted, by whatever path attracted, the jurisdiction persists to enable the Court to resolve the matter.’
Since s.18 of the FMA is in virtually identical terms to s.32 of the Federal Court Act, his Honour’s observations are pertinent to the associated jurisdiction of the FMC.
There are however, limits to the type of matter which can properly be described as ‘associated’ with the jurisdiction of a federal court. Barwick CJ expressed the following caution at 474:
‘But the jurisdiction will not extend to any other matter, though that other matter might in some sense be an allied or associated matter. To be outside the accrued jurisdiction, however, the other matter must be separate and disparate from the matter in relation to or in connexion with which federal jurisdiction has been attracted.’
Gibbs J (as he then was) said of the extent of the jurisdiction of the Court to deal with matters, other than federal claims at 499:
‘The cases to which I have referred show that if a party claims relief on two different legal grounds, but the facts on which the relief is sought on each ground are identical, and the relief sought on each ground is the same in substance if not in form, there is only one matter for determination.’
Gibbs J made similar observations in Fencott and Others v Muller and Another (1983) 152 CLR 570 at 591:
‘It is now established by Philip Morris v. Brown that once a federal court is invested with jurisdiction with respect to a matter, it may determine all the questions which form part of that matter, even though they are questions which it would have no jurisdiction to entertain if they arose in separate proceedings.’
At 593 his Honour continued:
‘The question whether one claim is inseverable from another, so that both are part of one matter, is a question of fact and degree. The Constitution, however, makes it clear that the attached claim must be part of the matter that attracts jurisdiction; closeness of association is not enough.’
In Re Wakim; Ex parte McNally and Another; Re Wakim; Ex parte Darvall; Re Brown and Others; Ex parte Amann and Another; Spinks and Others v Prentice (1999) 198 CLR 511 at 585 Gummow and Hayne JJ said of the associated jurisdiction:
‘So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other (377), as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are "completely disparate" (378), "completely separate and distinct" (379) or "distinct and unrelated’ (380) are not part of the same matter.’
These authorities confirm that to enliven the associated jurisdiction of a court invested with federal jurisdiction, the facts must be common to each matter and the relief sought must be substantially the same.
Section 18 of the FMA provides a source of jurisdiction in associated ‘matters’. A ‘matter’ must be a justiciable dispute and not merely a legal proceeding. In In Re the Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 (1921) 29 CLR 257 at 265 the majority, having considered an argument that the word ‘matter’ in s 76 of the Constitution referred only to a legal proceeding, said:
‘We do not accept this contention; we do not think that the word " matter" in sec. 76 means a legal proceedings, but rather the subject matter for determination in a legal proceedings. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.’[73]
See also: The Queen v Kirby and Others; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 272-274; The Queen v The Trade Practices Tribunal and Others; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 per Kitto J at 374; Re Wakim; Ex parte McNally 198 CLR [10].
Two observations may be made. First, the facts and evidence relating to the claim of the Moskalevs’ alleging discrimination are different to those relating to the administrative review of the Department’s decision pursuant to its Priority Housing Policy and are not ‘inseverable’ (see: Gibbs J in Fencott v Muller 152 CLR 593). The Court accepts the submission of the Department that there was no requirement for it to adduce evidence of its procedures relating to the operation of the Housing Appeals Committee in view of the only matter before Driver FM, namely the claim of discrimination. The order requires the Department to undertake a merits review of its determination in relation to the Moskalevs’ application for priority housing when such question did not arise either as a federal or as an associated matter.
Second, the request of the Moskalevs’ to be placed on the priority housing list did not constitute a separate ‘matter’ for the exercise of the Court’s jurisdiction. The claim for such order was ancillary to the claim of discrimination under the HREOC Act. Accordingly s 18 of the FMA cannot be used as a source of jurisdiction to justify the order.” [74]
[73] The preceding quote is an accurate quote of the text of Moskalev at para 31 per Cowdroy J. However, the original text of In Re the Judiciary Act 1903-1920 and In Re the Navigation Act 1912-1920 (1921) 29 CLR 257 at 265 has “proceeding” rather than “proceedings” in both places where it appears in the preceding quote.
[74] Moskalev at paras 26-33 per Cowdroy J.
In Re Wakim ex parte McNally and Another it was said:
“What is a single 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 in relationships”. There is but a single matter if different claims arise out of a “common transactions and facts” or a “common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly co-incide”.
…
Often, the conclusion that, if proceedings were tried in different Courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.” [75]
[75] (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ (“Re Wakim”).
In Trainor v BMW Melbourne Pty Ltd and Others[76] this Court applied the passage cited from Re Wakim immediately above to hold that a claim under s.51AB of the Trade Practices Act 1974 (Cth)[77] alleging unconscionable conduct was part of a single controversy which included a claim under s.52 of the TP Act which alleged misleading and deceptive conduct.
[76] [2003] FMCA 7.
[77] “TP Act”.
In Fox v Robinson & Anor,[78] this Court considered s.18 of the FM Act and said as follows:
Section 18 of the FM Act is almost identical to s.32(1) of the Federal Court of Australia Act 1976. That section was considered by the High Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. In that case Mason J stated in relation to that section which applied to the Federal Court the following:
“Plainly it was intended to vest a jurisdiction in the Federal Court to hear and determine matters not otherwise within its jurisdiction, matters that are ‘associated’ with matters in which the jurisdiction of the Court is invoked. The expression ‘To the extent that the Constitution permits’ suggests that s 32 is directed, not merely to jurisdiction to hear and determine matters arising under federal laws not otherwise vested in the Federal Court, but also to jurisdiction arising under State or other non-federal laws. Problems of constitutional validity arise in relation to the latter, but not in relation to the former. The opening words of s.32(1) would serve no purpose at all if the sub-section was exclusively directed to matters arising under federal laws.”
[78] [2003] FMCA 107 (“Fox”).
In the Philip Morris case Mason J further states at p 512,
“Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction”.[79]
[79] Fox at paras 33-34 per McInnis FM.
In Fox the Court held that a claim for breach of contract was a claim within the associated jurisdiction in a matter also alleging breach of s.52 of the TP Act.[80]
[80] Fox at para 40 per McInnis FM.
Section 18 of the FM Act was adverted to in Windross v Transact Communications Pty Ltd[81] and Crowe v Comcare Australia (No 1)[82] but in neither case was there any discussion of the law in relation to s.18 of the FM Act.
[81] [2002] FMCA 145 at para 1 per Driver FM.
[82] [2000] FMCA 146 at para 2 per Driver FM.
Consideration of orders 2-11 sought by Applicant
It is against the above background that the Applicant’s Orders Sought have to be considered.
Order 2
The order the Applicant seeks is an order overturning the sequestration order made on 23 May 2005 by a Registrar of this Court, on the basis that the Applicant was not served with the Application for a sequestration order.
The Applicant led no evidence concerning the alleged failure of service.
The Respondent Creditor provided evidence of service.[83] Para 2 of the Hobbs Affidavit provides as follows:
“At the time of service I identified the person I served as the said Tosson Hussein Mahmoud by reason of the following statement made at the time of service :-
I said: “Tosson Mahmoud?”
He replied: “Yes, what’s this?”
I said:“It’s a Creditor’s Petition with supporting Affidavits.”
[83] Affidavit of Jane Frances Crittenden, affirmed 11 September 2006, para 3 and annexure JFC1 deposing to service of the affidavit of Antony Wolody sworn 25 August 2006 (“Wolody Affidavit”) on the Applicant which contains Annexure C being an affidavit of service of the creditors petition and supporting documents sworn by Steven Hobbs on 4 May 2005 (“Hobbs Affidavit”): see para 9 of Wolody Affidavit.
I then handed the Creditor’s Petition and supporting Affidavits to the Respondent Debtor.
He replied: “You tricked me. Fuck you. Fuck you.”
I said: Tosson Hussein Mahmoud you have been served.”
The Respondent debtor then threw the documents at me and said: “Fuck you, I’m ringing the Police.”
The Creditor’s petition served on 4 May 2005 contained the time and date for hearing, namely 10.15am Monday 23 May 2005.
The Court finds that the Applicant was served, and the application for this order must be dismissed.
Order 3
This order sought is far an adjournment of the hearing of the application on medical grounds.
In Mahmoud 2006 [No 2] the Court in rejecting an application for adjournment referred to evidence related to the Applicant’s trauma as follows:
“In respect of annexure D, which appears to relate to the trauma which the Applicant says he has suffered, it is evident that that trauma was one which was caused by events in April or May 2006 on my perusal of the material. I have no doubt that it was traumatic at the time and that there are follow-on consequences for the Applicant. We are, now, however, several months down the track, and it suffices to say that the Applicant says that there is nothing wrong with him and, in his submissions today, allowing for the fact that he is an unrepresented Applicant, who clearly passionately believes in the cause that he puts before this Court, he has been … relatively coherent and, certainly, does not have any difficulty, in my view, in making the points that he wishes to make: on occasions in a manner which has bordered on disrespect to the Court.”[84]
[84] Mahmoud 2006 [No 2] at para 14 per Lucev FM.
In dealing with the application for extension of time in which to file affidavits the Court in Mahmoud 2007 [No 1] said that:
“Order 3 to a certain degree, given that the sequestration order application has been dealt with, has become historical and/or requires appropriate current evidence of a medical practitioner. If an adjournment is sought on medical grounds in this matter the Court will require the medical practitioner to attend for cross-examination.” [85]
[85] Mahmoud 2007 [No 1] at para 10 per Lucev FM.
The Applicant filed no evidence on affidavit concerning any alleged current medical condition which would have prevented him from appearing and dealing with the Application. There was nothing in the conduct of the Applicant in the hearing which indicated that he was not capable of appearing or arguing the matter. If anything, the reverse was the case. In the end, the Applicant simply walked out, not because of his health, but because he disagreed with the Court’s approach to his application. The application for this order must be dismissed.
Order 4
This order sought seeks to stay all proceedings in the Supreme Court of New South Wales in relation to property at Ashfield formerly held by the Applicant.[86]
[86] “Ashfield Property”.
The New South Wales Supreme Court has already granted a writ of possession to the Official Trustee and refused to stay that decision,[87] and refused to stay the grant of that writ.[88] From comments made by the Applicant from the bar table it appears there may be an appeal against the decision to grant a writ of possession, but there is no evidence of that appeal before the Court. The application for the writ of possession follows on from the sequestration order issued by this Court on 23 May 2005. The Court has already dismissed the Applicant’s application for annulment of that sequestration order.[89] A “stay” ordered by this Court now would be inconsistent with its earlier reasons for judgment refusing the application to annul the sequestration order. As the evidence stands (again the Applicant refused to lead evidence in relation to this order sought) there is nothing for this Court to stay, the writ having been granted and a stay refused by the New South Wales Supreme Court in circumstances where this Court refused an application to annul a sequestration order and this Court’s order has not been appealed. The application for this order must be dismissed.
[87] The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194.
[88] The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3.
[89] Mahmoud 2006 [No 3].
Order 5
The grant of legal aid is not a matter within the jurisdiction or associated jurisdiction of this Court. It is a separate and distinct administrative act, not one giving rise to a claim for relief arising out of facts of this matter.
The Court cannot grant the Applicant legal aid, or make any orders or directions in that regard. The application for this order must be dismissed.[90]
[90] By way of analogy see Moskalev at para 33 per Cowdroy J.
Orders 6, 8 and 11
These orders essentially make assertions (in the case of orders sought 6 and 8) and seek a declaration (order sought 11) that:
a)the Respondent Creditors are not the legal representatives of the Respondent Creditors;
b)that the Respondent Creditors are acting without authority and have been doing so since 31 July 2000 with the consequence that the Applicant does not owe them any monies by way of strata levies;
c)that the pre-existing strata corporation of which the Applicant was the Chairman remains the only legitimate body with authority to collect strata levies; and
d)that the payment by the Applicant into a bank account set out in order sought 11 is payment of his strata levy fees.
The orders sought are within the associated jurisdiction of the Court. It is these matters that lie at the heart of the dispute between the parties, and which gave rise to the act of bankruptcy, and the issuance of a sequestration order.
Again, the Applicant led no evidence in relation to these Orders Sought. This was notwithstanding the fact that in Mahmoud 2007 [No 1] these orders sought were said to possibly give rise to “a contestable issue” requiring “evidence of the proper offices and proper records of the Owners’ Corporation”.[91]
[91] Mahmoud 2007 [No 1] at para 13 per Lucev FM.
No evidence having been led, the application for this order must be dismissed.
Order 7
This order sought seeks payment of costs and expenses of $800,000.00 for seven years of Court and Tribunal cases. The Applicant led no evidence concerning the costs or expenses, or the Courts or Tribunal cases referred to.
There is therefore no basis on which the Court can make a finding of fact in relation to the costs and expenses, even assuming that the relevant matters somehow fall within the associated jurisdiction of the Court to make a costs order. The application for this order must be dismissed.
Order 9
This order sought seeks the removal of a caveat over the Ashfield Property. Again, there is no evidence, and in particular no evidence as to the caveat. In any event, given that the Respondent Creditors have taken possession of the property the removal of any caveat may be futile. Therefore, the application for this order must be dismissed.
Order 10
This order sought is more in the nature of an assertion (and hence perhaps really an application for a declaration) that:
a)the applicant does not owe any money to the Respondent Creditor for costs in the New South Wales Supreme Court; and
b)the New South Wales Supreme Court Registrars (who presumably made orders concerning the costs) illegally recognized the representatives of the Respondent Creditors.
The order sought in sub-para (a) above cannot be made: it is wholly inconsistent with the issuance of the sequestration order, which this Court has refused to annul. The recognition of Respondent Creditor’s representatives is dealt with above.[92] The application for this order must be dismissed.
[92] See paras 19 and 72-75 above.
Conclusions
The Applicant:
a)failed to establish a basis on which the Court as presently constituted ought disqualify itself on the basis of bias; and
b)failed to prove any case in relation to the Applicant’s Orders Sought 2-11.
Consequently an order for dismissal of the Application in its entirety, was made at the hearing on 27 March 2007.
Costs
The Respondent Creditor is entitled to its costs in the matter, and an order was made at the hearing on 27 March 2007. The Official Trustee did not seek costs, taking the view that its costs would be covered by the administration of the matter.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 18 October 2007
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