Pekar v Rickards Legal (No 3)

[2017] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEKAR v RICKARDS LEGAL (No.3) [2017] FCCA 1196

Catchwords:
PRACTICE AND PROCEDURE – Vexatious litigation – application pursuant to s.88Q – where Applicant has made 20 applications against the Respondent on same subject matter – where Respondent has been awarded 11 costs orders against the Applicant – Applicant declared a vexatious litigant.

Legislation:

Federal Circuit Court of Australia Act 1999, s.88Q

Bankruptcy Act 1966 (Cth), s.153B(1)

Cases cited:

Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22
Pekar v Rickards Legal [2015] FCCA 2888

Applicant: FIMA PEKAR

Respondent: RICKARDS LEGAL

File Number: MLG 2171 of 2016

Judgment of: Judge Hartnett

Hearing date: 13 April 2017

Delivered at: Melbourne

Delivered on: 7 June 2017

REPRESENTATION

The Applicant: No appearance

Solicitor for the Respondent: Mr Rickards

Solicitors for the Respondent: Rickards Legal

THE COURT DECLARES THAT the Applicant, Mr Fima Pekar, is a vexatious litigant.

THE COURT ORDERS THAT:

1. Pursuant to s.88Q(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) the Applicant, Mr Fima Pekar, is prohibited from instituting proceedings in the Federal Circuit Court of Australia other than proceedings under the Family Law Act 1975 (Cth).

2. The Applicant, Mr Fima Pekar, pay to the Respondent costs in the sum of $5,000. Such costs are to be paid out of the bankrupt estate of the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2171 of 2016

FIMA PEKAR

Applicant

And

RICKARDS LEGAL

Respondent

REASONS FOR JUDGMENT

1. On 28 October 2015 the Court made orders and delivered reasons for judgment in respect of an application filed by the Applicant, on 17 July 2015, wherein he sought that the sequestration order made on 2 October 2014 against the estate of Fima Pekar be annulled pursuant to s.153B(1) of the Bankruptcy Act 1966 (Cth). Mr Pekar’s application was dismissed. Prior to that time, as set out in the published reasons of the Court,[1] Mr Pekar had engaged in extensive litigation. He has continued to engage in such litigation.

   [1]  Pekar v Rickards Legal [2015] FCCA 2888.

2. The proceeding before the Court now, is the Respondent’s application for an order that Mr Pekar be declared a vexatious litigant pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999 (Cth) (‘the Act’). The Applicant is clearly on notice as to the proceedings before the Court, the Respondent having set out the orders he seeks from the Court in paragraph 2 of his affidavits affirmed the 6 April 2017 and the 12 April 2017. This followed Mr Pekar being put on notice, on 3 November 2016, that the Respondent intended to seek the orders now sought by him, in Mr Rickard’s making of an oral application in the same terms, and in the presence of Mr Pekar.

3. The Respondent relies on three affidavits of evidence. Those affidavits are an affidavit of evidence in chief affirmed the 6 April 2017 by Mr Rickards, and two affidavits affirmed the 12 April 2017, also by Mr Rickards. The affidavits of 12 April 2017 go to personal service upon Mr Pekar of the Respondent’s affidavit material, amongst other things. Mr Pekar was served with the Respondent’s affidavit of evidence in chief on 6 April 2017. At the time of serving the affidavit Mr Rickards spoke with Mr Pekar about the Respondent’s application pursuant to s.88Q of the Act, and Mr Pekar’s then recent request of the Trustee in bankruptcy, Mr Holden, to provide a payout figure to annul his bankruptcy. The Respondent’s evidence as to that conversation is as set out in paragraph 5 of Mr Rickard’s affidavit affirmed 12 April 2017 as follows:-

   “…

   I asked Mr Pekar why he was continuing with proceedings, including further appeals and applications by him and why he does not stop the matter and reduce what he owes including substantial legal costs that he is adding to by his continual litigation and agitation. Fima Pekar’s response to me is that he will never settle and he will not seek to pay out and annul his bankruptcy and that he will continue to litigate and agitate the matter until he obtains $600,000 from me.”

4. In his second affidavit of 12 April 2017 Mr Rickards deposed also to personally delivering to Mr Pekar’s letter box on 9 April 2017, a letter dated 7 April 2017 (together with attachments) from the Respondent to Mr Pekar. The attachments included correspondence from Mr Pekar to the Respondent advising that he did not propose to attend the hearing on 13 April 2017. The Respondent made clear in its correspondence to Mr Pekar that the hearing would proceed in the absence of Mr Pekar unless otherwise ordered by the Court.

5. Mr Pekar’s correspondence to the Respondent and to the Court was to the effect that he sought the hearing of the application for an order under s.88Q of the Act not proceed because he had an appeal pending in the Federal Court of Australia. Mr Pekar also filed an application in a case seeking an adjournment of the s.88Q of the Act hearing pending his appeal hearing. That course was opposed by the Respondent. The Court determined no adjournment of the proceeding should be granted. There was no proper basis for same.

6. Mr Pekar failed to attend the final hearing. The Court is satisfied that the Applicant was given an opportunity to be heard. He refused such opportunity. The Court is satisfied that s.88Q(5) of the Act is met.

The Legislation

1. Section 88Q of the Act is as follows:-

   “FEDERAL CIRCUIT COURT OF AUSTRALIA ACT 1999 - SECT 88Q

   Making vexatious proceedings orders

   (1)  This section applies if the Federal Circuit Court of Australia is satisfied:

   (a)  a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

   (b)  a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

   (2)  The Federal Circuit Court of Australia may make any or all of the following orders:

   (a)  an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;

   (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;

   (c)  any other order the Federal Circuit Court of Australia considers appropriate in relation to the person.

   Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

   (3) Subsection (2) applies in relation to proceedings in the Federal Circuit Court of Australia other than proceedings under the Family Law Act 1975 .

Note: Part XIB of the Family Law Act 1975 deals with vexatious proceedings under that Act.

(4)  The Federal Circuit Court of Australia may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)  the Attorney-General of the Commonwealth or of a State or Territory;

(b)  the Chief Executive Officer;

(c)  a person against whom another person has instituted or conducted a vexatious proceeding;

(d)  a person who has a sufficient interest in the matter.

(5)  The Federal Circuit Court of Australia must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(6)  An order made under paragraph (2)(a) or (b) is a final order.

(7)  For the purposes of subsection (1), the Federal Circuit Court of Australia may have regard to:

(a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)  orders made by any Australian court or tribunal; and

(c)  the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.”

1. This proceeding is instituted pursuant to s.88Q(4)(c) of the Act. Mr Rickards is the sole proprietor of the legal firm, Rickards Legal. He is a person against whom Mr Pekar has both instituted and conducted many vexatious proceedings. The Court’s satisfaction of s.88Q(1)(a) is reached by a consideration of those matters as set out in s.88Q(7) of the Act.

Consideration

1. Mr Pekar issued numerous proceedings against the owners’ corporation managers, Gough Partners Pty Ltd, of the units where he resides or resided. He so resides or resided with his wife, Ida Pekar, at Unit 1, 64 Alexandra Street St Kilda East in the State of Victoria. This is real property of which he was a joint proprietor with his wife before a transfer to his wife of his interest in July 2012. Below is a table setting out firstly, those proceedings in which Mr Pekar engaged with Gough Partners Pty Ltd:-

Tribunal/ Court Ref	Parties
VCAT C366/2008	Pekar –v- Gough Partners Pty Ltd
VCAT C9394/2008	Pekar –v- Gough Partners Pty Ltd & Owners Corporation SP34630
VCAT C1902/2008	Pekar –v- Gough Partners Pty Ltd
VCAT C1448/2008	Pekar –v- Gough Partners Pty Ltd
VCAT C10677/2009	Pekar –v- Gough Partners Pty Ltd & Owners Corporation SP34630
VCAT OC1423/2010	Pekar –v- Gough Partners Pty Ltd
Magistrates’ Court Y02555108	Pekar –v- Gough Partners Pty Ltd
Magistrates’ Court Y01867945	Pekar –v- Gough Partners Pty Ltd
Supreme Court 2010 2008 (Appeal VCAT C10677/2009)	Pekar –v- Gough Partners Pty Ltd

1. Mr Pekar was unsuccessful in his various litigations. Costs were awarded against Mr Pekar in respect of the proceedings including some indemnity costs orders.

2. In or about 2010, Mr Pekar retained Rickards Legal to assist him in dealing with two of the costs orders which had been made against him by the Magistrates Court of Victoria in favour of Gough Partners Pty Ltd, amongst other matters. These costs orders remain to this day, unsatisfied. A tax invoice for $6,302.73, dated 29 July 2011, was sent to Mr Pekar for work carried out on his behalf by Rickards Legal. Mr Pekar paid the monies due. Thereafter he commenced extensive, repetitive and often illogical litigation against Mr Rickards personally, Karen Katz, an employee of Rickards Legal, and against Rickards Legal. Such litigation has spanned the Magistrates Court of Victoria, Supreme Court of Victoria, Supreme Court of Victoria Costs Court, VCAT and this Court.

3. The proceedings issued by Mr Pekar and their outcome are tabulated in the affidavit of Mr Rickards affirmed 6 April 2017 at Exhibit “MR-1”. That table is accepted as accurate by the Court and provides compelling evidence of the frequent institution and conduct of vexatious proceedings in Australian courts and tribunals by Mr Pekar. It is set out below:-

LIST OF PROCEEDINGS ISSUED BY FIMA PEKAR (FP)/ IDA PEKAR (IP) AGAINST
RICKARDS LEGAL (RL) / MICHAEL RICKARDS (MR) / KAREN KATZ (KK)

No.	Date	Proceeding No	Court and Nature of Proceeding	Outcome
1.	31/10/2011	SCI 2011 05829	Supreme Court Costs Court, First Summons for Taxation issued by Fima Pekar seeking to tax RL bill of costs dated 29 July 2011. FP alleges fraud against MR before As J Wood but he withdraws Summons upon warning of As J Wood regarding unsupported allegation of fraud.	On withdrawal of Summons for Taxation by Fima Pekar. As J Wood ordered on 4 May 2012 costs against Fima Pekar to be taxed in default of agreement. Orders made by Costs Registrar Conidi on 28 May 2014.  Costs allowed as against FP $3,753.70
2.	20/02/2012	VCAT J26 2012	VCAT Application issued by FP against RL seeking a refund of $6,302.73 paid by RL for legal costs including allegations of fraud against RL.	Orders made by Senior Member Smithers on 3 October 2012 dismissing FP’s application. Orders made by Senior Member Smithers on  12 June 2012 FP to pay RL’s costs from the date of settlement offer made on 3 July 2012 under s112 of the VCAT Act 1998 on a party/party basis to be determined by the costs court in default of agreement. Orders made by Costs Registrar Conidi dated 28 May 2014 (pursuant to orders of Senior Member Smithers on 11 January 2013). Costs allowed of $7,930.46
3.	10/10/2012	SCI 2012 05726	Supreme Court of Victoria, Second Summons for Taxation. FP v RL	RL opposed Second Summons on the basis that FP had already issued the First Summons and elected to withdraw it and that the Second Summons was an abuse of process. On 5 March 2013 As J Wood dismissed the Second Summons with no Order as to Costs on the basis that the Court had no jurisdiction to entertain it.
4.	14/03/2013	D10723108	Magistrates Court Complaint issued by FP against KK seeking compensation for wrong and incompetent legal advice with claims of deception,  harassment and intimidation on the part of KK against FP.	KK makes application for summary dismissal of claim. Orders made on 18 June 2013 by: i)          Registrar B Johnstone summarily dismissing proceeding; ii)         Order FP to pay KK’s costs of $3,725.25.
5.	10/05/2013	SCI 2011 05805829	Supreme Court Notice of Appeal against Orders of As J Wood made 4 May 2012 issued by FP against RL.	Orders made on 30 May 2013 by Justice Pagone dismissing Notice of Appeal. FP to pay RL costs limited to appearance of Counsel on 30 May 2013 to be assessed in default of agreement. Orders made by Costs Registrar Conidi (pursuant to orders of Justice Pagone of 30 May 2014) on 9 May 2013: Costs allowed of $1,018.12.
6.	01/11/2013	D13289017	Magistrates Court Complaint issued by FP v RL. FP raises same issues as already raised by him which were the subject of VCAT proceeding J26/2012.	Application made by RL seeking an order to summarily strike out FP’s proceeding. Orders made by Magistrate Lauritsen on 24 February 2014:     I.            Striking out proceeding;      II.            Order FP to pay RL $3,195.
7.	04/06/2014	SCI 2014 02762	Supreme Court, Originating Motion issued under Section 56 of the Supreme Court Rules seeking review of VCAT Registrar to refuse FP’s application seeking to review the Orders of Senior Member Smithers of 3 October 2012 and 11 January 2013.	Orders made by As J Mukhtar on 1 August 2014 dismissing application. Orders FP to pay RL $3,300 costs.
8.	26/08/2014	E12840498	Magistrates Court proceeding issued by FP against RL. FP claims breaches against Sections 9(1),12(j)21(a)(b)(i), 161 and 163 of the Fair Trading Act 1999 in relation to allegations of deceiving and misleading conduct and extortion by RL in relation to RL costs of $4,203.73.	Order made 18/09/14 by Registrar Christie that parties attend PHC. Order made 10/12/14 by Registrar Vendy, PHC not held.
9.	MLG1636/2015	Federal Circuit Court bankruptcy application issued by RL against FP.	Orders by Registrar Caparole on 2 October 2014 that a Sequestration Order to be made against the Estate of Fima Pekar. Costs of bankruptcy proceeding to be paid by bankrupt estate of FP.
10.	20/10/2014	MLG 1675/2014	Federal Circuit Court Application for Review of Sequestration Order issued by FP. FP issues subpoena seeking from RL documents the subject of Sequestration Order.	Orders made by Judge Burchardt on 12 February 2015, that orders made by Registrar Caporale of 2 October 2014 are upheld and application for review is dismissed. Subpoena is also dismissed.
11.	17/07/2015	MLG 1636/2015	Federal Circuit Court Application seeking Sequestration Order to be annulled issued by FP.	Orders made by Judge Hartnett on 28/10/2015 dismissing Application. Orders made by Judge Hartnett on 31 March 2016 for FP to pay RL costs on an indemnity basis.
12.	03/02/2016	G10340588	Magistrates Court proceeding issued by FP against RL. FP raises same issues as already raised by him which were the subject of VCAT proceeding J26/2012 including allegations of fraud.	Order of Magistrate Crisp dated 1 March 2016 stating that FP is bankrupt and no cause of action is disclosed.  The filing of this claim is an abuse of the court’s process. Application struck out with no order as to costs.
13.	03/03/2016	MLG1636/2015	Federal Circuit Court Interim application issued by FP seeking Orders that the Orders of Judge Hartnett made on 31 March 2016 were obtained by fraud.	Orders made by Judge Burchardt on 29 August 2016 dismissing application and further order made on 20 October 2016 that FP to pay RL costs on an indemnity basis.
14.	26/08/2016	C3079/2016	VCAT Application issued by Ida Pekar seeking Order that RL has done no work expected from him under the terms of the contract and seeking recovery of monies paid under Section 82 of the Fair Trading Act 1999	Order made by Member A Kincaid on 21 September 2016: Having found that RL has incurred costs expenses loss inconvenience and embarrassment resulting from the proceeding, IP to pay RL compensation pursuant to s75(2) of the VCAT Act fixed in the sum of $3,000. Member noted that IP not a client of RL and had no standing to issue application. FP appeared for IP.  No appearance on behalf of IP. Member Kincaid noted that FP provided assistance to IP in completing the application form which started the proceeding.
15.	05/10/2016	MLG2171/2016	Federal Circuit Court Application – Consumer Protection. FP v RL. FP seeking order that RL refund the sum of $6,302.73 already paid by FP to RL plus interest and seeking an order for payment to him for financial losses incurred by the application of $40,000 and compensation arising from injuries to be determined by a court and pecuniary penalties. The grounds of the application made by FP were breach of a legally binding contract by RL, inflicting injuries and aggravation of FP and unconscionable conduct by RL and seeking an interim order that RL provide all documents relating to payment of $6,302.73 paid by FP within fourteen days of the order to the registry of the court by inspection of FP. Subpoena issued by FP against RL seeking documents, the subject of the Sequestration Order.	Orders made by Judge Hartnett on 3 March 2017 dismissing Subpoena. Order that the bankrupt estate of FP pay RL $1,000 with respect to the Subpoena. FP files Notice of Discontinuance on 15 November 2016. FP files further application on 17 February 2017 for appointment of litigation guardian.  Judge Hartnett makes further Orders on 03/03/17 with respect to litigation guardian and matter adjourned until 23/03/17. On 20 March 2017 Judge Hartnett makes an order dismissing FP’s application and ordering that FP pay the costs of RL on an indemnity basis (in respect of FP’s Application for the appointment of a litigation guardian) and out of his bankrupt estate.
16.	20/3/2017	MLG2171/2016	Application in a case seeking appointment of litigation guardian. Adjourned date from 3 March 2017.	Orders made by Judge Hartnett on 20 March 2017 dismissing application. FP to pay RL costs on an indemnity basis in relation to litigation guardian appointment application from bankrupt estate regarding application issued 15 November 2016. FP failed to appear having advised the Registry on 20 March 2017 that he proposed not to appear.
17.	14/03/2017	MLG2171/2016	Application in a Case issued by FP against RL. Orders sought: ·    That Order made by Judge Hartnett on 03/03/17 be set aside; ·    RL to comply with Subpoena issued by FP 28/02/17 This proceeding not served on RL.	Proceeding dismissed by Judge Hartnett on 20 March 2017 with no order as to costs.
18.	29/03/2017	VID302/2017	Application for Leave to Appeal the Orders of Judge Hartnett made 3 March 2017 and 20 March 2017. Affidavit of Fima Pekar dated 27/03/2017 in support of leave to appeal.	Matter not yet heard or decided.
19.	31/01/2017	MLG 171/2016	FP issues Application by Affidavit sworn 31/01/17 and filed 31/01/17 to transfer proceeding to Federal Court.	Orders made by Judge Hartnett on 20 March 2017 dismissing proceeding.
20.	31/03/2017	FP served personally upon RL: 1.   FP Application by Affidavit sworn 31/01/2017 and filed 31/01/2017 to transfer proceeding to Federal Court. 2.   FP Application in a Case filed 14/03/2017 seeking: i)    Orders made 03/03/2017 by Judge Hartnett be set aside; and ii)    RL comply with Subpoena issued by FP on 28/03/2017.	Application already dismissed by Judge Hartnett on 20 March 2017. Application already dismissed by Judge Hartnett on 20 March 2017.
21.	04/04/2017	MLG171/2016	FP issues Application in a Case seeking Orders that the hearing listed on 13/04/2017 before Judge Hartnett pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999 be adjourned pending the hearing of appeal.

1. The Court notes in the above table that on 26 August 2016 the Respondent also issued proceedings on behalf of his wife against Rickards Legal in VCAT, as detailed at item 14. This conduct was nothing other than vexatious.

2. Mr Pekar has also issued various proceedings on his own behalf and on behalf of his wife, Mrs Ida Pekar, against the Trustee of his bankrupt estate, Mr Timothy Mark Shuttleworth Holden. The last of these was an unsuccessful appeal to the Federal Court of Australia by Mrs Ida Pekar, against orders sought by the Trustee and made in this Court on 20 January 2017.[2] In those proceedings, the Court declared the transfer of Mr Pekar’s interest in his real property in East St Kilda to his wife was void and made consequential orders for possession and sale.[3]

   [2]  Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22.

   [3] Ibid.

3. Since 2011, Mr Pekar has sought to continually litigate the same subject matter, namely the tax invoice paid by him to Rickards Legal and of which he sought a refund. Since 2014, Mr Pekar has sought to challenge the sequestration order made against him and has issued further proceedings on behalf of himself and his wife. He has also sought to make other claims and seek damages against the Respondent, Michael Rickards and Karen Katz.

4. Despite issuing no less than 21 applications or proceedings in the various jurisdictions, as set out in exhibit “MR-1” (paragraph 12 herein) Mr Pekar has not succeeded in any one of these proceedings. They have been entirely misconceived, an abuse of process and vexatious. As a result of these repeated applications, Mr Pekar has caused considerable costs to be incurred by Rickards Legal. He has used extensively the resources of the courts and VCAT. Those parties against whom he has taken these proceedings, in particular, Mr Rickards and Rickards Legal have borne the significant costs of applying their time in opposing the various applications or on occasion simply as a courtesy to the Court without payment, adding to the other unquantified costs, including emotional, that vexatious proceedings involve and that other parties need protection from. Mr Pekar has, not once, paid any costs orders awarded against him. He appeared to recognise that his pattern of litigation was oppressive, and unusual, in an application he made for a litigation guardian. However, he then provided no relevant evidence to support such an application despite being given an opportunity to do so. It became just another provocative piece of litigation and was not in any way indicative of insight.

5. By letter dated 21 March 2017 from the solicitors acting on behalf of the Trustee in bankruptcy, Mr Pekar was advised that excluding the various costs orders made against him, and the costs of the solicitors for the Trustee, the amount payable to annul his bankruptcy was approximately $168,477.64. This letter was forwarded as a consequence of Mr Pekar discussing annulling his bankruptcy whilst in a directions hearing on 20 March 2017 before Justice Tracey in the Federal Court of Australia in respect of an application filed by his wife. No response to that correspondence was received.

6. If an order is not made prohibiting Mr Pekar from bringing further vexatious proceedings in this Court, he will not cease. On its own initiative the Court can make a vexatious proceedings order on the facts before it. On the application of Rickards Legal, which is before the Court, the Court can also make such order. It will be necessary to award a further costs orders against Mr Pekar which in my exercise of that discretion pursuant to s.79(3) of the Act will fix in the sum of $5,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  7 June 2017