Moore v Macks

Case [2007] FCA 585

FEDERAL COURT OF AUSTRALIA

Moore v Macks [2007] FCA 585

DAVID GERALD MOORE v PETER IVAN MACKS

No SAD 84 of 2006

DAVID GERALD MOORE V PETER IVAN MACKS

No SAD 7 of 2007

FINN J
27 APRIL 2007
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 84 OF 2006

BETWEEN:

DAVID GERALD MOORE
Applicant

AND:

PETER IVAN MACKS
Respondent

JUDGE:

FINN J

DATE OF ORDER:

27 APRIL 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The motion seeking leave to appeal be dismissed. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 7 OF 2007

BETWEEN:

DAVID GERALD MOORE
Applicant

AND:

PETER IVAN MACKS
Respondent

JUDGE:

FINN J

DATE OF ORDER:

27 APRIL 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The motion seeking leave to appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 84 OF 2006

BETWEEN:

DAVID GERALD MOORE
Applicant

AND:

PETER IVAN MACKS
Respondent

SAD 7 OF 2007

BETWEEN:

DAVID GERALD MOORE
Applicant

AND:

PETER IVAN MACKS
Respondent

JUDGE:

FINN J

DATE:

27 APRIL 2007

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The two motions before me arise in separate appeals (SAD 84/2006 and SAD 7/2007) but can conveniently be dealt with together.  Each motion seeks leave to appeal against orders, inter alia, that the appellant, David Gerald Moore, provide security for the costs of the respective appeals in the sums, respectively, of $4,000 and $4,200 by a specified date and that the hearing of each appeal be stayed until the security is provided or until further order.  While the motions themselves raise similar issues of narrow compass, it is necessary to refer in a little detail to the background giving rise to the two appeals.

    BACKGROUND

  2. The genesis of the litigations giving rise to the appeals was an oppression action under the Corporations Act 2001 (Cth) in which Mr Moore was an unsuccessful respondent: see Wilson v Manna Hill Mining Co Ltd [2004] FCA 912. Mr Moore instituted two separate appeals from the orders made in this action (“the primary action”) including the costs orders.

  3. In the course of the primary action two orders for costs were made against Mr Moore which were made payable forthwith.  Judgment was later entered against Mr Moore in respect of these leading ultimately to his being declared bankrupt by order made on 21 January 2005.  The present respondent, Peter Ivan Macks, was appointed his trustee in bankruptcy.  The sequestration order having been made by the District Registrar, Mr Moore sought to have it reviewed in the Federal Magistrates Court.  That application was dismissed:  Moore v Wilson [2005] FMCA 870. An appeal to this Court was, in turn, dismissed. Special leave to appeal to the High Court was sought but the application was deemed…

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AGLC
Moore v Macks [2007] FCA 585
Case
[2007] FCA 585
Decision Date

CaseChat Overview and Summary

The appeals in Moore v Macks [2007] FCAFC 59 arose from two separate appeals that David Gerald Moore sought to lodge against orders made in a prior proceeding. The appeals were against orders requiring Mr Moore to provide security for costs amounting to $4,000 and $4,200 respectively, and to stay the hearing of each appeal until the security was provided. Mr Moore, who had been declared bankrupt, sought leave to appeal against these orders. The appeals stemmed from an earlier oppression action under the Corporations Act 2001 (Cth), in which Mr Moore was an unsuccessful respondent. The primary issues involved the appropriateness of the security for costs orders and whether Mr Moore's appeals had reasonable prospects of success.

The Federal Court, in particular Mansfield J, exercised its broad and unfettered discretion under s 56 of the Federal Court of Australia Act 1976 (Cth) to determine the applications for security for costs. Mansfield J acknowledged Mr Moore's impecuniosity and the risk that if the appeals were unsuccessful, Mr Moore would be unable to meet the costs. However, the court considered that the appeals did not raise issues of public interest or matters of general significance, and the prospects of success for each appeal were poor. The grounds of appeal were found to be discursive, unhelpful, and did not coherently focus on alleged errors made by the Federal Magistrate. Mansfield J dismissed Mr Moore's applications for leave to appeal, finding that the security for costs orders were appropriate given the circumstances.

In conclusion, the Full Court dismissed the motions seeking leave to appeal the orders for security for costs. The Full Court upheld the primary judge's determination that the security for costs orders were justified and that Mr Moore's appeals lacked reasonable prospects of success.

Orders

Orders of the court

1. The motion seeking leave to appeal be dismissed.

Background

Background to the litigation

The two motions before me arise in separate appeals (SAD 84/2006 and SAD 7/2007) but can conveniently be dealt with together. Each motion seeks leave to appeal against orders, inter alia, that the appellant, David Gerald Moore, provide security for the costs of the respective appeals in the sums, respectively, of $4,000 and $4,200 by a specified date and that the hearing of each appeal be stayed until the security is provided or until further order. While the motions themselves raise similar issues of narrow compass, it is necessary to refer in a little detail to the background giving rise to the two appeals.BACKGROUND The genesis of the litigations giving rise to the appeals was an oppression action under the Corporations Act 2001 (Cth) in which Mr Moore was an unsuccessful respondent: see Wilson v Manna Hill Mining Co Ltd [2004] FCA 912. Mr Moore instituted two separate appeals from the orders made in this action (“the primary action”) including the costs orders. In the course of the primary action two orders for costs were made against Mr Moore which were made payable forthwith. Judgment was later entered against Mr Moore in respect of these leading ultimately to his being declared bankrupt by order made on 21 January 2005. The present respondent, Peter Ivan Macks, was appointed his trustee in bankruptcy. The sequestration order having been made by the District Registrar, Mr Moore sought to have it reviewed in the Federal Magistrates Court. That application was dismissed: Moore v Wilson [2005] FMCA 870. An appeal to this Court was, in turn, dismissed. Special leave to appeal to the High Court was sought but the application was deemed abandoned under the High Court Rules. I simply note in passing that while many of the matters relied upon by Mr Moore at the hearing of the present motions may well have been of some relevance in the proceedings referred to in the preceding paragraph, they had no relevance for present purposes. The same observation was made by Mansfield J in the decision against which Mr Moore now seeks leave to appeal. I would also note that Mr Moore’s two appeals in the primary action had not been heard before he was declared bankrupt. Apart from challenging the making of the sequestration order, Mr Moore separately applied to the Federal Magistrates Court both for the removal of Mr Macks as his trustee pursuant to s 179 of the Bankruptcy Act 1966 (Cth) for alleged conflict of interests and other conduct and for an order that Mr Macks continue to conduct the appeals in the primary action. Mr Macks applied to have these proceedings summarily dismissed. On 27 April 2006, Lindsay FM dismissed the application to have Mr Macks removed as trustee: Moore v Macks [2006] FMC 594. The Federal Magistrate referred to this Court that part of Mr Moore’s application which concerned the proposed decision of Mr Macks to abandon the appeals in the primary action. Mr Moore then appealed from the order dismissing his removal application. That appeal (SAD 84 of 2006), the first of the two of present relevance, has been listed for hearing by a Full Court on 15 May 2007. The substantive grounds of appeal assert that:“… [Mr Moore was] not given a fair hearing, due process not followed, bias displayed. Magistrate did not properly regard my evidence, allow cross-examination, he had regard to irregular matters, irrelevant including matters of political, legal reputations. Magistrate aware of illegal actions of Macks, I let, Wilson, Lawton. Not given procedural fairness. Unlawful activities. Trustee has a conflict of interest, negligent.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J
The matter referred to the Federal Court by Lindsay FM was heard by Besanko J. His Honour dismissed Mr Moore’s application for an order directing Mr Macks not to implement his decision to abandon the appeals in the primary action: Moore v Macks [2007] FCA 10. Mr Moore’s appeal from that decision (SAD 7 of 2007), the second appeal of present relevance, has also been listed for hearing on 15 May 2007. The grounds of appeal in this matter assert:“The legal principles governing the evidence and procedures were not properly applied.Admissible evidence was excluded.The judge acted unfairly and was biased.”Then follow about forty paragraphs of alleged errors, assertions of wrongdoings by third parties, and generalised complaints.THE APPLICATIONS FOR SECURITY AND THE PRIMARY JUDGE’S DECISIONS His Honour’s statement of the principles applicable to an application for security for costs is, with respect, wholly unexceptionable. Mansfield J noted that the discretion given by s 56 of the Federal Court of Australia Act 1976 (Cth) must be exercised judicially, but it is a broad and unfettered discretion. His Honour referred to those of the factors that have been held to be relevant to the exercise of that discretion which were of significance to the circumstances before him. Mr Moore’s impecuniosity was acknowledged as was the demonstrable risk that if the two appeals were unsuccessful Mr Moore would be unable to meet the costs of Mr Macks of the appeals. Mansfield J noted the now well accepted proposition that where an impecunious litigant has had the benefit of a full hearing at first instance, the significance of the fact that a security for costs order may frustrate the exercise of the right of appeal should carry less weight than in the circumstances where a litigant at first instance may be put out of litigating a matter at all: see Cowell v Taylor (1885) 31 Ch D 34 at 38; Skyring v Sweeney [1999] FCA 61 at [6]. His Honour accepted that to order security against Mr Moore would be likely to frustrate the conduct of the appeals. He went on to note there was no suggestion on the evidence that the cause of Mr Moore’s impecuniosity was the consequence of any conduct or fault of Mr Macks. His Honour noted of this that, while Mr Moore asserted to the contrary in his submissions, he did not explain why that was so. I would simply note in passing that a similar allegation was made before me. It had no proper evidentiary foundation. Mansfield J then observed, unexceptionably in my view, that the appeals did not raise issues of public interest or matters of general significance. Finally, consideration was given to the prospects of success of each of the appeals. First, the appeal from the decision of Lindsay FM. Mansfield J observed that the stated grounds of appeal self evidently were discursive and unhelpful and they did not focus in any coherent way upon errors allegedly made by the Federal Magistrate. His Honour noted, with respect correctly, that the Federal Magistrate properly identified the “threshold requirement” that had to be satisfied before a case had been made out for inquiry into the trustee’s conduct under s 179 of the Bankruptcy Act. Mansfield J then considered the manner in which Lindsay FM dealt with the evidence before him and the conclusions he reached that there was nothing in the alleged conflict of interest which provided any sufficient basis to embark on a s 179 inquiry and there was no communication with Mr Moore from Mr Macks from which properly to infer significant animosity towards Mr Moore or allegedly improper conduct on Mr Mack’s part. As to the latter, Lindsay FM concluded there was no foundation for any of the allegations made. Nor was there material of any substance to establish any impropriety in the professional relationship between Mr Macks and his legal advisers nor any foundation for the serious allegation made against those legal advisers. Put generally, the Federal Magistrate characterised Mr Moore’s allegations as having no factual basis and his “miscellany of other complaints” as falling in the category of “unsubstantiated assertion”.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

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