Re Larkin, Gwendoline Mary Clark v Ex Parte The Official Trustee in Bankruptcy
[1996] FCA 366
•14 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION ) No VB 2861 of 1992
BANKRUPTCY DISTRICT IN THE STATE )
OF VICTORIA )
BETWEEN: GWENDOLINE MARY CLARK LARKIN
(Applicant)
AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY
(As Trustee in Bankruptcy for Gwendoline Larkin)
(Respondent)
CORAM: Ryan J
DATE: 15 May 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the application dated 26 April 1996 be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION ) No VB 2861 of 1992
BANKRUPTCY DISTRICT IN THE STATE )
OF VICTORIA )
BETWEEN: GWENDOLINE MARY CLARK LARKIN
(A Discharged Bankrupt)
EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY
(As Trustee of the Bankruptcy Estate of Gwendoline Mary Clark Larkin)
(Applicant)
AND: GWENDOLINE MARY CLARK LARKIN
(Respondent)
CORAM: Ryan J
DATE: 15 May 1996
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That until further order the respondent be restrained from making any further applications in proceeding numbered VB 2861 of 1992 without leave of the Court.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION ) No VB 2861 of 1992
BANKRUPTCY DISTRICT IN THE STATE )
OF VICTORIA )
BETWEEN: GWENDOLINE MARY CLARK LARKIN
(Applicant)
AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY
(As Trustee in Bankruptcy for Gwendoline Larkin)
(Respondent)
AND:
BETWEEN: GWENDOLINE MARY CLARK LARKIN
(A Discharged Bankrupt)
EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY
(As Trustee of the Bankruptcy Estate of Gwendoline Mary Clark Larkin)
(Applicant)
AND: GWENDOLINE MARY CLARK LARKIN
(Respondent)
CORAM: Ryan J
DATE: 15 May 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
RYAN J: There is before the Court an application dated 26 April 1996 by Gwendoline Mary Clark Larkin seeking:
that the sequestration order of 29 September 1992 be struck out as an abuse of process; and
any further orders that are just.
Mrs Larkin's circumstances provide another regrettable illustration of how, through a combination of oversights, omissions, intransigence, confusion and ill luck, steps taken to enforce a relatively small alleged debt can proliferate legal proceedings in several Courts with an exponential increase in the costs claimed to be recoverable.
The applicant has now been accorded at least four substantial hearings by four different Judges of this Court since the making of the sequestration order. The history of those proceedings has been set out in reserved reasons for judgment of Olney J of 1 December 1995 and of Merkel J on 7 March 1996. At page 5 of the latter reasons for judgment, it was noted:
The matter of the sale of the property came before the County Court again on 24 January 1996. On that day orders were made that Mrs Larkin's husband, John Walter Larkin, surrender keys to the property; remove his chattels from it and generally co-operate in, and not hinder, its sale.
Since then, further summonses in relation to the land have been issued in the County Court and are pending part heard before his Honour Judge Meagher, having been adjourned to 17 May 1996. It is clear that the present application to set aside the sequestration order differs only in form from earlier applications made by Mrs Larkin for annulment of her bankruptcy. The factual basis for the application does not differ significantly from that described as follows by Merkel J in his reasons of 7 March 1996:
In support of her applications before me Mrs. Larkin relied on Affidavits deposed to by her and her husband in support of previous applications to the Court and generally sought to again agitate her contention that she did not owe Mr. Rickards the money claimed by him. Mrs. Larkin did not adduce any evidence or material before me that had not, directly or indirectly, been relied upon by her or her husband in previous applications to the courts, including this court.
I entertain very real doubt as to whether there is any power to set aside as an abuse of process in the sense used in Goldsmith v Sperrings Ltd [1977] 2 All ER 566 to which I was referred by Mrs Larkin, an order regularly pronounced and entered. By force of s.37 of the Bankruptcy Act, the process of this Court, in its original jurisdiction in bankruptcy, has effectively come to an end with the making of the order. Subject to some minor exceptions, irrelevant for present purposes, the order can only be set aside or varied in the exercise of the Court's appellate jurisdiction.
However, assuming that I have the power, I share the views, expressed by other members of this Court when confronted by essentially the same material, that an attack on the sequestration order cannot succeed. The application dated 26 April 1996 must therefore be dismissed with costs.
There is also before the Court an application by the Official Trustee filed and brought on by leave today which seeks an order that Mrs Larkin be restrained from making any further application to this Court related to the administration of her estate by the Official Trustee.
A similar application has been made to Merkel J which, in the exercise of his discretion, he declined to grant saying at page 8 of the reasons to which I have already referred:
The injunction is sought until further order. Accordingly it may be discharged upon cause shown by Mrs. Larkin. However, it is in respect of proceedings which are described in a general way. Such an injunction could have the effect of preventing the bringing of proceedings in this court, irrespective of whether the evidence is new and material and irrespective of whether the grounds sought to be
relied upon or the issue to be agitated have been raised before. That is a drastic step which I am not prepared to take at this stage.
On the other hand, if Mrs. Larkin continues to make further applications to the court seeking to agitate issues already determined against her in this or other courts, albeit in a different form, such applications will almost certainly constitute an abuse of process.
Given the history of the matter to date and the outcome of the present applications, that may warrant consideration being given at that stage to whether it was appropriate to make further or other orders which would deny Mrs. Larkin the right to bring such applications without leave of the Court or a Judge.
The fresh application on 26 April 1996 has necessitated my giving consideration to orders of the kind there foreshadowed by his Honour. It should also be observed parenthetically that on 1 December 1995 Olney J indicated that he would order:
...that unless and until the judgment of 18 December 1991 against her in the Magistrates' Court is set aside, Gwendoline Mary Clark Larkin be restrained from making any further application to this Court to annul the bankruptcy resulting from the sequestration order made against her estate on 29 September 1992.
In all the circumstances I consider that the point has been reached where Mrs Larkin should not be permitted further to trouble the Official Trustee or cast additional costs and expenses on her bankrupt estate by initiating further applications in the proceedings numbered VB 2861 of 1992 without the leave of the Court. By conditioning the facility to bring further applications on the leave of the Court, the order will not shut Mrs Larkin out from bringing applications based on new facts and raising an arguable legal entitlement to the relief which she may wish to seek.
I had considered conditioning the facility to which I have just referred on a prior certificate by a barrister and solicitor of the Supreme Court of Victoria to the effect that material provided to that practitioner on affidavit was sufficient to provide a tenable basis for the application or the proposed application. However, in view of Mrs Larkin's jaundiced view of legal practitioners derived in part from her experience with the petitioning creditor, Mr Rickards, I have decided against that course by requiring that any further application be subject to the leave of the Court.
The order which I propose, as well as screening the Court and the Official Trustee from unnecessary or inappropriate proceedings, will also protect Mrs Larkin from fruitless exposure to further orders for costs. Accordingly, the order that I make on the application of the Official Trustee is that until further order the respondent be restrained from making any further applications in proceeding numbered VB 2861 of 1992 without leave of the Court.
In the circumstances, including the fact that it was only issued today, and that the representation of the Official Trustee by Counsel was also necessitated by Mrs Larkin's own application, I propose to make no order as to costs on the Official Trustee's application.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for Applicant : Applicant in Person
Solicitors for Applicant : -
Counsel for Respondent : Mr M.J. Crennan
Solicitors for Respondent : Australian Government Solicitor
Counsel for Applicant : Mr M.J. Crennan
Solicitors for Applicant : Australian Government Solicitor
Counsel for Respondent : Respondent in Person
Solicitors for Respondent : -
Date of Hearing : 15 May 1996
Date of Judgment : 15 May 1996
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