Scott v Nimlaw Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Scott v Nimlaw Pty Ltd (No 2) [2024] FCA 1330  

File number(s): SAD 102 of 2024
Judgment of: O'SULLIVAN J
Date of judgment: 19 November 2024
Catchwords: BANKRUPTCY — appeal of decision from Federal Circuit and Family Court of Australia (Division 2) dismissing an application for review of a registrar’s decision to make a sequestration order —appeal dismissed
Legislation:

Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth)

Bankruptcy Act 1966 (Cth), s 52

Federal Court of Australia Act 1976 (Cth), ss 37AO(2)(b), 37AR, 37M and 37P

Cases cited:

In the matter of an application by Susan Jane Scott for leave to issue or file [2024] HCASJ 23

Nimlaw Pty Ltd v Scott, in the matter of Scott [2024] FedCFamC2G 647

North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 262 CLR 132

Scott v Nimlaw Pty Ltd (No 2) [2023] FCA 1472

Scott v Nimlaw Pty Ltd [2023] FCA 1420

Scott v Nimlaw Pty Ltd [2024] FCA 26

Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100

Division: General Division
Registry: South Australia
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 59
Date of hearing: 14 November 2024
Counsel for the Appellant: The appellant appeared in person
Solicitor for the Respondent: Mr J Stewart-Rattray for Stewart-Rattray Lawyers

ORDERS

SAD 102 of 2024
BETWEEN:

SUSAN JANE SCOTT

Appellant
AND:

NIMLAW PTY LTD

Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

19 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs to be agreed or taxed.

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


REASONS FOR JUDGMENT

O’SULLIVAN J:

  1. On 13 March 2024, a Registrar of the Court made a sequestration order against the appellant following the presentation of a creditors petition on 1 December 2023.

  2. On 4 July 2024, the Federal Circuit and Family Court of Australia (Division 2) dismissed an application for review of the Registrar’s orders:  Nimlaw Pty Ltd v Scott, in the matter of Scott [2024] FedCFamC2G 647 (Reasons).

  3. The appellant appeals from that decision.

  4. The question for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed.

  5. It is for the reasons which follow that the appeal is dismissed.

    The primary judge’s reasons

  6. This matter has an extensive history which the primary judge summarised in his Reasons at [1]-[4] and [8]-[9].

  7. The primary judge set out the applicable legislation and rules noting that a review of a Registrar’s decision proceeds as a hearing de novo.

  8. The primary judge found that the legislative and procedural requirements for the making of a sequestration order had been met, such that the only matter remaining for consideration was whether the appellant had shown sufficient cause why a sequestration order…

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Details
Case
[2024] FCA 1330
Decision Date

CaseChat Overview and Summary

Scott v Nimlaw Pty Ltd (No 2) involved an appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2), which had dismissed an application for review of a registrar’s decision to make a sequestration order. The appellant, Scott, had sought to challenge the decision of the registrar that led to the sequestration order against him, but the court dismissed his application for review. The appeal to the Full Court of the Federal Circuit and Family Court of Australia sought to overturn this decision.

The primary legal issue before the court was whether the appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) should be upheld. The court also considered the appellant's conduct, which had led to the respondent seeking an order to prevent further appeals without leave from the court. The appellant's reference to the Access to Justice Act was noted to be irrelevant to the case at hand.

The Full Court found that the appeal had no merit and dismissed it. The court reasoned that the appellant's reference to the Access to Justice Act did not provide any basis for the appeal. Furthermore, the court highlighted the appellant's history of vexatious litigation, noting that he had become a serial litigant. Although the court did not grant the respondent's request to prevent further appeals without leave, it left open the possibility for the respondent to seek such an order in the future if the appellant continued with further applications. The Full Court ordered that the appellant pay the respondent’s costs.

The orders of the court were that the appeal was dismissed and that the appellant pay the respondent's costs, which were to be agreed or taxed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs to be agreed or taxed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

So too, the appellant’s mere reference to the Access to Justice Act does not arise from the judgment under appeal nor does it provide any support to the appellant.Conclusion It is for these reasons that the appeal must be dismissed. There is no reason why the appellant should not pay the respondent’s costs.Leave to institute proceedings In view of the history in this matter, during the course of the appeal, the respondent sought an order that the appellant not be permitted to file any further appeals. That was clarified during argument as the appellant not being permitted to file any further proceedings without leave of the Court. Such an order may be made pursuant to s 37AO(2)(b) and s 37AR of the FCA Act. Those sections were considered by the Full Court in Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 (Lee, Feutrill and Jackman JJ). The Full Court observed at [1]-[3]:1Section 78 of the Judiciary Act 1903 (Cth) relevantly provides that in every Court exercising federal jurisdiction, “the parties may appear personally”.2It has become increasingly common for litigants in this Court to exercise their right to appear in person. As was observed by Richard Morehead in his article “The Passive Arbiter: Litigants in Person and the Challenge to Neutrality” (2007) 16(3) Social & Legal Studies 405 (at 406), litigants in person often disturb the normal conventions of the courtroom and substantially challenge the well-ordered roles of judges and lawyers in that they are “classic outsiders – legally uninformed in a technical and rarefied atmosphere, unaware of procedure, often unknowingly in breach of convention”: see also the Hon M J Beazley AO, “Communicating the law: self-represented litigants in the Court of Appeal” (Speech, NCAT Annual Conference, 29 October 2001) (at 1).3Most self-represented litigants behave courteously and are often forced to do so because of circumstances outside their control and sometimes, of course, they present valid claims and defences. But a few self-represented litigants, unrestrained by the norms regulating the professional conduct of lawyers and aggrieved by a perceived wrong, become serial litigants obsessed with seeking vindication of their position and in doing so mount, often repeatedly, arguments which would never be advanced by a responsible practitioner. This phenomenon has occasioned significant problems for this Court in the efficient exercise of its original and appellate jurisdiction. With respect, the observations in [3] of the judgment apply to the conduct of the appellant in this matter. The matter was raised only in submissions and in the absence of a formal application by the respondent, I am not prepared to make an order in those terms. Nonetheless, if the appellant brings yet another application, it is open to the respondent to apply for such an order if so advised.

Ratio Decidendi

Legal Principle Established

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