Mijac Investments Pty Ltd v Graham

[2014] FCA 366

FEDERAL COURT OF AUSTRALIA

Mijac Investments Pty Ltd v Graham [2014] FCA 366

Citation:	Mijac Investments Pty Ltd v Graham [2014] FCA 366
Parties:	MIJAC INVESTMENTS PTY LTD v WILLIAM GRAHAM, COSMICK PTY LTD (ACN 065 356 149) and MELBOURNE GRAVITY PTY LTD (ACN 490 584 339)
File number:	VID 77 of 2014
Judge:	JESSUP J
Date of judgment:	10 April 2014
Catchwords:	PRACTICE AND PROCEDURE – Application for orders about procedures under r 1.21 of the Federal Court Rules 2011 (Cth) – r 1.21 is not designed to provide an unsuccessful party guidance on how to reopen their case – r 1.21 is not to be used as a means of seeking legal advice from the court where that advice could be provided by a competent legal practitioner – Application dismissed
Legislation:	Federal Court Act 1976 (Cth) s 25(2B) Federal Court Rules 2011 (Cth) rr 4.01, 4.05, 11.02, 17.01
Cases cited:	Edwards Hot Water Systems (A Firm) v S W Hart & Co Pty Ltd (1985) 9 FCR 537 Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773 Mijac Investments Pty Ltd v Graham [2010] FCA 87 Mijac Investments Pty Ltd v Graham [2010] FCA 895 Mijac Investments Pty Ltd v Graham [2010] FCA 896 Mijac Investments Pty Ltd v Graham [2013] FCA 296
Date of hearing:	Heard on the papers
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant did not file any submissions

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 77 of 2014

BETWEEN: MIJAC INVESTMENTS PTY LTD
Applicant

AND:

WILLIAM GRAHAM
First Respondent

COSMICK PTY LTD (ACN 065 356 149)
Second Respondent

MELBOURNE GRAVITY PTY LTD (ACN 490 584 339)
Third Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	10 APRIL 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The claims contained in the applicant’s amended application filed on 26 September 2013 be dismissed.

2.The parties have leave to file and serve written submissions as to costs in accordance with the following timetable:

(a)the respondents, within 7 days;

(b)the applicant, within a further 7 days;

(c)the respondents in reply, if necessary, within a further 7 days.   

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 77 of 2014

BETWEEN: MIJAC INVESTMENTS PTY LTD
Applicant

AND:

WILLIAM GRAHAM
First Respondent

COSMICK PTY LTD (ACN 065 356 149)
Second Respondent

MELBOURNE GRAVITY PTY LTD (ACN 490 584 339)
Third Respondent

JUDGE:	JESSUP J
DATE:	10 APRIL 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. These reasons should be read against a background provided by the following judgments of the court:

   ·Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773, given by Gordon J on 22 July 2009;

   ·Mijac Investments Pty Ltd v Graham [2010] FCA 87, given by Gray J on 20 January 2010;

   ·Mijac Investments Pty Ltd v Graham [2010] FCA 895, given by Marshall J on 20 August 2010;

   ·Mijac Investments Pty Ltd v Graham [2010] FCA 896, given by Marshall J on 20 August 2010; and

   ·Mijac Investments Pty Ltd v Graham [2013] FCA 296, given by Tracey J on 18 March 2013.

2. Gordon J dismissed a proceeding brought by the applicant, Mijac Investments Pty Ltd.  The applicant appealed from that dismissal.  Gray J dismissed the appeal under s 25(2B)(bb)(i) of the Federal Court Act 1976 (Cth). Marshall J dismissed an application by the applicant for an extension of time in which to lodge a second appeal from the orders of Gordon J ([2010] FCA 895) and dismissed a motion by the applicant for the setting aside of the orders of Gray J ([2010] FCA 896). Tracey J dismissed a further application by the applicant for the setting aside of the orders of Gray J, alternatively for the setting aside of the orders of Marshall J, and for the reinstatement of the appeal which had been dismissed by Gray J.

3. On 12 September 2013, the Registry accepted for filing what was, on its face, an “Interlocutory Application” in the original proceeding which had been determined, more than four years previously, by Gordon J. That was irregular, for two reasons: first, there was no longer a “proceeding” which fell within the terms of r 17.01(1) of the Federal Court Rules 2011 (Cth), and secondly, the ostensible application was not over the name of a lawyer as required by r 4.01(2). Those irregularities may be put to one side for the moment, but they have made their unwelcome contribution to the difficulty, and I would have to say the oddity, of the present matter.

4. As amended on 26 September 2013, the applicant’s application seeks the making of orders in the following terms:

   1.That pursuant to Rule 1.21 Application for orders about procedures, a hearing be set down before a judge, to determine the procedure to be followed, given the Applicant is in doubt about the procedure for the future conduct of the case.

   2.That pursuant to Rule 2.25 when a document is Filed, concerning the Filed Application seeking Leave to Appeal the decision of Tracey J of 18 March 2013, which was stamped and accepted for filing, but later rejected by the Registry without a Hearing.  The Applicant also seeks Orders concerning the validity of that Application for Leave.

   3.That pursuant to Rule 2.02 Power to transfer to another place, this matter be transferred to the Sydney division of the Federal Court, given that Registrar Josan, in particular and Deputy Caporale, and other Registry employees (and 2 Judges), are key witnesses in this case concerning the Respondents’ solicitors conduct in having made secret contact with the sitting Judges.

   4.Costs be Reserved.

   5.Any other Orders the Court may see fit.

5. The application was listed for hearing on 11 March 2014. The respondents were represented, albeit that my Associate had previously indicated to them, in correspondence, that no appearance was necessary. As it happens, the applicant was not then in a position to present its case, and did not do so. It was represented by its solicitor, who had commenced to act for the applicant on 1 November 2013, but who had then recently given notice of withdrawal under r 4.05(1)(a). The solicitor made it clear that he was unable to make any submission on behalf of the applicant, save to accept the suggestion of the court that the applicant’s case be presented in writing.

6. In the circumstances, on 11 March 2014, I ordered that the applicant have leave to support its case by the filing of a written submission, and that any such submission be signed by counsel or solicitor and be filed on or before 8 April 2014. As to the latter aspect, I took, and continue to take, the view that, in the light of the matters referred to by Tracey J in his reasons of 18 March 2013, there could be no suggestion that effect should not strictly be given to r 4.01(2) in the circumstances presently before the court.

7. On 27 March 2014, the applicant’s former solicitor filed a notice under r 4.05(1)(b). No new address for service has been filed by the applicant conformably with rr 4.05(2) and 11.02.

8. The applicant did not take up the leave granted to it on 11 March 2014 to file, on or before 8 April 2014, a written submission in support of its application.  The application will, therefore, be dismissed.  What follows below should be seen as no more than a very brief rehearsal of some of the issues that the application would have encountered, had it been duly prosecuted.

9. Rule 1.21 provides as follows:

   A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:

   (a)the procedure is not prescribed by the Act, these Rules or by or under any other Act; or

   (b)      the person is in doubt about the procedure.

   In the absence of a written submission, it is necessary to turn to the affidavit of Alan Bradley Jorgensen sworn on 11 September 2013, and filed in support of the present application, to appreciate how the applicant seeks to use r 1.21.

10. Mr Jorgensen says that the applicant’s recourse to this rule has the purpose of “enforcing the applicant’s rights to obtaining information and documents concerning this case, from the respondents and the Melbourne Registry”.  He continues:

    The serious allegations that underpinned Mijac’s case to have the decisions of Gray J and Marshall J in 2010 set aside, have all now been proven in law.  Because [the respondents’ solicitors and two named Registrars] chose not to rebut the serious allegations levelled against them in the affidavit of Alan Jorgensen of 12 January 2013, and furthermore, refused to attend the hearing before Tracey J on 16 March 2013 to try and clear their names, then it is now established as fact in law, that [those solicitors and Registrars] were involved in a plot by [the respondents’ solicitor] to behind the scenes, influence the decision of the sitting judges, Gray and Marshall. 

    There follows a recitation of the applicant’s aggravations as to the refusal of Registry officers to give it access to what are said to be documents which would help establish the matters referred to in that passage.  Much of the material in the affidavit is scandalous.  Most of it involves allegations, at varying levels of seriousness, of misconduct or dereliction on the part of those officers.

11. Putting the applicant’s case most favourably to itself, it may be one in which the applicant would wish to rely upon a charge of apprehended bias as a basis for attacking one or all of the outcomes referred to in para 1 above.  It may be that, in the context of such a charge, the applicant would wish to have the court produce its relevant file or files, and to have the respondents produce some documents as well.  It would be apparent to any practitioner, however, that the means adopted by the applicant for the prosecution of such a challenge are hopelessly ill-adapted for the purpose.  It seems from Mr Jorgensen’s affidavit that the response which the applicant has frequently received from the Registry was to the effect that its case in court had been finalised, and there was no longer a proceeding in relation to which the applicant had any rights.  If that was the response, it would have represented, in my view, an accurate perception of the situation which confronted, and which still confronts, the applicant.

12. At base, the gravamen of the applicant’s concern is to find a means whereby it can re-open the appeal which was dismissed by Gray J.  Seemingly under the direction of Mr Jorgensen and without the benefit of anything more than nominal legal representation, the applicant seeks to achieve that objective by introducing accusations of bias and other malfeasances, accusations which, it appears, it cannot make good without obtaining documents to which it otherwise has no entitlement.

13. Rule 1.21 has antecedents in rules of courts going back over many years, and is concerned with a situation in which a litigant, or intending litigant, has a case which is presumptively worthy of consideration, but there is no clear procedure prescribed for the prosecution of such a case, or there may be two or more procedures as between which he or she is in doubt.  The rule makes no contribution to the resolution of the difficulties encountered by a party who has lost his or her case, or appeal, and desires to know where to go next.:  Edwards Hot Water Systems (A Firm) v S W Hart & Co Pty Ltd (1985) 9 FCR 537. The circumstance in which the applicant finds itself in this regard, and the principles which underlie the availability of r 1.21, cannot be sidestepped by the introduction of quite scandalous accusations of the kind which Mr Jorgensen seeks to express through the medium of the applicant. To the extent that the applicant perceives itself as the victim of some series of injustices or irregularities, it needs competent legal advice. It is not the function of the court, under cover of r 1.21, to provide that advice.

14. The remaining claims for relief advanced in the applicant’s amended application filed on 26 September 2013 must, in the circumstances, be addressed against the background that the applicant does not have a r 1.21 application on foot.

15. Rule 2.25 is a provision of a purely administrative kind.  It does not provide any jurisprudential basis for the seeking, or obtaining, of substantive relief by someone who is, or who intends to be, a party to a proceeding in the court.  In other words, it gives rise to no cause of action.

16. Because I propose to dismiss the applicant’s application under r 1.21, there is no proceeding to which the power of transfer under r 2.02 might have relevance.

17. The orders made in disposition of the matters brought before the court by the applicant’s amended application of 26 September 2013 will be to the effect that the claims set out in that application be dismissed.

18. I shall give the parties the opportunity to apply, in writing, for costs, and lay out a timetable in that regard.

I certify that the preceding seventeen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       10 April 2014