See v Granich & Associates

Case [2008] FMCA 27


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SEE v GRANICH & ASSOCIATES [2008] FMCA 27

BANKRUPTCY – Annulment of sequestration order – previous failed applications in federal courts to annul sequestration order – discretion – delay.

PRACTICE AND PROCEDURE – Previous decisions of federal courts – comity – res judicata – whether applicant a vexatious litigant. .

Bankruptcy Act 1966 (Cth) s.153B
Federal Court of Australia Act 1976 (Cth) s.24(1)(d)
Federal Magistrates Court Rules2001 (Cth) r.13.11(1) and (2)

Vexatious Proceedings Restriction Act 2002 (WA) s.6

Granich v Yap [1999] FCA 1039
Granich Partners v Yap [2003] WASC 26
Legge v Mackinlays [2007] FMCA 223
R v Casey; R v Smythe [1977] Qd R 132
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Yap v Granich & Associates [1999] FCA 1867
Yap v Granich & Associates [2001] FCA 799
Yap v Granich & Associates [2001] FCA 1735

Yap v Granich & Associates [2002] FMCA 284
Yap v Granich & Associates [2004] FCA 647

Yap v Granich & Associates [2004] FCA 1566

JD Heydon, Cross on Evidence. Seventh Australian Edition (Sydney: LexisNexis Butterworths, 2004)

Applicant: YAP CHENG SEE
Respondent: GRANICH & ASSOCIATES
File Number: PEG 264 of 2006
Judgment of: Lucev FM
Hearing date: 22 February 2007
Date of Last Submission: 22 February 2007
Delivered at: Perth
Delivered on: 22 January 2008

REPRESENTATION

Counsel for the Applicant: Ms C S Yap in person
Counsel for the Respondent: Ms S E Harrison
Solicitors for the Respondent: Mallesons Stephen Jaques

ORDERS

  1. The application is dismissed.

  2. The applicant must not file any proceeding in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.

  3. The applicant must not continue any proceeding presently filed in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 264 of 2006

YAP CHENG SEE

Applicant

And

GRANICH & ASSOCIATES

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Yap Cheng See[1] was made bankrupt as a consequence of a sequestration  order made against her by the District Registrar of the Federal Court of Australia[2] on 10 December 1998.

    [1] “Applicant”.

    [2] “Federal Court”.

  2. In an attempt to annul the bankruptcy the Applicant instituted various proceedings in the Federal Court naming Granich & Associates[3] as respondent in the ensuing years, all of which were unsuccessful.[4]

    [3] “Respondent”

    [4] Granich v Yap [1999] FCA 1039 (“Yap Federal Court 1999”); Yap v Granich & Associates [1999] FCA 1867 (“Yap Federal Court Appeal 1999”); Yap v Granich & Associates [2001] FCA 799 (“Yap Federal Court 2001”); Yap v Granich & Associates [2001] FCA 1735 (“Yap Federal Court Appeal 2001”); Yap v Granich & Associates [2004] FCA 647 (“Yap FMC Appeal 2004”). 

  3. In this Court an application by the Applicant to annul her bankruptcy was dismissed on 30 October 2002, and in the course of dismissal described as an abuse of process.[5]  That description was held to be “correct” on appeal.[6]

    [5]

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Details
AGLC
See v Granich & Associates [2008] FMCA 27
Case
[2008] FMCA 27
Decision Date

CaseChat Overview and Summary

The parties involved in this case were the applicant, See, and Granich & Associates. The dispute centred around the annulment of a sequestration order, with See seeking to overturn the order. The case was heard in the Federal Circuit and Family Court of Australia. The applicant had previously made unsuccessful attempts in federal courts to annul the sequestration order, and this was the third such application.

The primary legal issues the court had to address were whether the applicant's third application for annulment constituted an abuse of process and whether the applicant should be considered a vexatious litigant. The court also had to consider the principle of comity in relation to previous decisions made by other federal courts, as well as the doctrine of res judicata.

The court held that the applicant's conduct in pursuing this application was an abuse of process and amounted to vexatious litigation. It found that the applicant had not demonstrated any new evidence or changed circumstances that would warrant the reconsideration of the sequestration order. The court further held that the applicant's previous failed applications and the delay in making this application demonstrated a disregard for the legal process. Consequently, the court dismissed the application and imposed restrictions on the applicant's ability to file further proceedings in the Federal Magistrates Court without obtaining leave from a Federal Magistrate.

Orders

Orders of the court

1.

The application is dismissed.

2.

The applicant must not file any proceeding in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.

3.

The applicant must not continue any proceeding presently filed in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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