Shaw v NM Superannuation Pty Ltd (AMP)
[2023] FedCFamC2G 412
•7 March 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shaw v NM Superannuation Pty Ltd (AMP) [2023] FedCFamC2G 412
File number(s): BRG 173 of 2022 Judgment of: JUDGE VASTA Date of judgment: 7 March 2023 Supplementary reasons for judgment 19 May 2023 Catchwords: PRACTICE & PROCEDURE – Application for recusal – transfer of proceedings to another judicial officer – indemnity costs reserved Legislation: Competition & Consumer Act 2010 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 40 (including the Supplementary reasons) Date of hearing: 7 March 2023 Place: Brisbane Counsel for the Applicant: The Applicant appearing on his own behalf Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS
BRG 173 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN RASHLEIGH SHAW
Applicant
AND: NM SUPERANNUATION PTY LTD (AMP) ABN 31 008 428 322
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
7 MARCH 2023
THE COURT ORDERS THAT:
1.This matter be transferred to His Honour Judge Egan.
2.The costs of the Respondent be reserved on an indemnity basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
This matter came before me as a first court date on 25 July 2022. The applicant had filed an originating application that simply, in my view, was not a proper application, as it did not comply with many of the standard rules as to how applications are to be set. More importantly, it did not disclose a cause of action. Notwithstanding that it would have been in my power to dismiss the application there and then, I did not do so, but instead attempted to ensure that, if there were an identifiable grievance, that this could be litigated.
I made an order that summarised what those grievances were. They are contained in order 1(a), (b) and (c) of my orders of 25 July 2022. I ordered that the respondent file and serve points of defence to what it was that I had said in order 1, and that the matter then be adjourned.
It is obvious that this was to ensure that the applicant was not disadvantaged by the fact that he had not provided a proper originating application, and it gave the respondents an idea of what it was that they had to meet in any response.
When the matter came back before me on 29 August 2022, there had been compliance with that order by NM Superannuation; however, it transpired that the applicant was a bankrupt, information that I did not have at the time.
I ordered that the trustee in bankruptcy appear on the next court date because I needed to understand whether this action was one that was within the purview of the trustee, and that the trustee did want to proceed with the application.
On 24 October 2022, when the matter came back, the trustee informed me that, because it was a matter that dealt with superannuation, it was not something for which the trustee could claw back for the finalisation of an estate and the paying of creditors.
It is trite to say that an order for bankruptcy is an order made so that the community is protected from persons who do not have the ability to pay their debts as they come due; that such protection to the community needs to be enforced by the Court. If the applicant were a person who was not bankrupt and wished to commence an action, such as the present matter, then that is a decision that is made, weighing up the prospects of success with the reality of the fact that, if unsuccessful, there would be a costs order against the person.
That is the way that the system works; however, with a bankrupt, the bankrupt has no such fetter because a bankrupt does not have to worry about a costs order being made against them, because it would be one that would never be able to be enforced. Even if a Court made a costs order, it cannot be enforced against the bankrupt. It is something that would have to then go to the trustees.
The trustee advised that one measure, by which the Court could maintain the proper oversight of the Court, would be to consider an application for security for costs. That was a solution that was very attractive to me; however, given the state of the financial situation of the applicant, and that there may be some aspect of his claim that may be able to be resolved, I declined to make any procedural order at that stage but instead made an order that the matter proceed to mediation.
I did this contrary to the orders that I would ordinarily make, which would require the filing of affidavit material and, in effect, having both parties nailing their colours to the mast. I declined to do what I would have ordinarily done because that would be an expensive procedure, and it would, in the end, save both the applicant and the respondent time and money.
The mediation did not compromise the matter, and so the matter was sent back for me, as I thought I would be doing yesterday, to set the matter down for a trial.
The applicant yesterday told me that he had another application. I then saw that what had been also listed for yesterday was the hearing of an interlocutory application in which the applicant sought that I recuse myself from the hearing. The applicant filed an affidavit saying that, in the case management hearings leading up to the mediation, he formed the view that he had been denied procedural fairness, patronised, ridiculed and subject to bias from me, and that he had not been able to effectively present his case because I had shut him down and intimidated him.
I asked him to particularise these allegations; he could not. He said that he wanted the transcript of the previous hearings so that he could do so. I asked him then to give me a generalised account of what it is that I had done that he claimed led to a denial of procedural fairness. He could not do so.
He made a persistent claim for access to the audio hearings of the proceedings, and yet could not give a basis for needing those, to be able to enhance any argument that he had.
At near the conclusion of the hearing, I was informed by my Associate that there was a journalist on the line, and that that journalist had asked for permission to attend, which my Associate gave because my whole attitude is that these are open courts and that anyone is permitted to attend.
The applicant was insistent upon not only getting the tapes but having those tapes played in open court. What had then occurred to me, was that this was, in fact, the applicant attempting to set the Court up so that the Court could be ridiculed by the media.
I asked the applicant “why did he involve the media”? That may have been a leading question, because the applicant had yet to say that he had been the person who had involved the media, but the applicant admitted that he had been the one to contact the media. He said that he had little faith in me and so Googled me, and found articles that had been written by a particular journalist, and he contacted them, and the result was that he was making the application and he wanted the journalist there.
It was obvious to me that this was something that had been cooked up between the applicant and the journalist, and that the journalist was the one who really wanted access to the tapes.
After adjourning the matter, it then dawned on me why it was that the applicant was quite amenable yesterday and did not talk over the top of me and continually argue with me, as he had done on the previous three occasions that he was before me. I realised that he was putting on a performance for the benefit of the journalist whom he had invited to listen to the proceedings.
The applicant did have a transcript of a previous matter in which he had appeared before me, one that I had not realised that the applicant was the same applicant, and one of which I had no memory until it was prompted by looking at the transcript. I asked the applicant to tell me where in that transcript I had been in any way, shape or form unfair to him; he could not do so.
He made an inquiry of me as to whether I would expect any litigant to give me their argument on the first day in which a matter was put before the Court. I told him “of course I would want that, as this is the way that courts are run”.
The applicant obviously had not had time, it would seem, to confer with his journalist friend to make whatever points he wanted to make for the point of some journalistic article that was only meant to embarrass the Court. As can be seen from the chronology, and the orders that have been made, there has not been any determination as to the matter whatsoever.
Notwithstanding that the Court could have made a determination of the matter on the first day and simply dismissed the application, it did not do so. The application for recusal has absolutely no merit whatsoever.
However, I now know that the applicant is a person who could almost be considered a vexatious litigant, in that he has made, it would seem, about 20 applications over the last few years in these Courts (I also noted that he had taken action against his trustees where he was saying that they had, in effect, breached their duty and were not administering his estate in a proper way).
It is very obvious to me that the applicant is simply someone who, when he does not get his own way, instead attacks, on a personal level, those persons who are responsible for the decisions. He is not someone who can think, in any way, objectively about matters, and would rather do whatever he could to destroy reputations.
Having come to the realisation that he has no respect for my Court and was endeavouring to set the Court up in such a false and surreptitious way, means that I do not have confidence that it is a matter where I should continue to sit on the management of the application, now that I have seen the true character of the applicant exposed.
It is with reluctance that I do this, because applicants should not have the ability to pick and choose their quorum.
It is, as I remarked earlier yesterday in another case, the easiest thing for a litigant to do, when it is that they do not think things are going their way, to simply cry “bias”. It is symptomatic of the way in which the society we are now living in deals with matters that persons can make such allegations with seeming impunity and face no consequences for doing so.
But nevertheless, this is why it is a matter that I should now give over to another judge. The matter will be transferred to His Honour Judge Egan, the only other judge who deals with general federal law matters in Queensland. His Honour's Associates will be in touch.
It will be a matter for His Honour to deal with those reserved costs as His Honour wishes.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 7 March 2023
REASONS FOR JUDGMENT
(Supplementary Reasons)JUDGE VASTA
On 7 March 2023, I transferred this matter to the docket of His Honour Judge Egan.
I have been informed that my Chambers have been contacted by the applicant, Mr Shaw. Mr Shaw has sought a transcript of the comments/reasons that I made when I transferred the matter to His Honour Judge Egan. No response has been provided because of the circumstances I will now outline. It has been brought to my attention that, without some explanation, this would not be clear to His Honour or to anyone other than the parties who were present in Court. For this reason, I have published these supplementary comments/reasons.
Given that Mr Shaw has made allegations of bias, I am of the view that if those comments/reasons were transcribed and read by His Honour Judge Egan, Mr Shaw would make some form of allegation that the comments that I had made, have, or could, influence His Honour. This would be an unnecessary diversion from the disposition of the substantive matter. Given the history of this matter, I am also of the view that Mr Shaw would distribute the reasons more widely and would fixate on them, rather than on the substantive matter. They are an irrelevant distraction from the real issue that this Court needs to decide.
It is for these reasons, and these reasons alone, that I have declined to order a transcript of what I said and why I have yet to subsequently settle those comments/reasons. It is in the interests of justice that these comments/reasons not be distributed or published until a final determination by this Court is made on the substantive application launched by Mr Shaw.
I should make clear that nothing that I have said, when I transferred the matter to His Honour Judge Egan, dealt with the disposition of the substantive matter that has been transferred, but rather referred to a history of the matter and explained why it was in the best interests of justice that the matter be transferred.
I should also make clear that I ordered that the costs, on an indemnity basis, of the respondent be reserved. This was not an order that the applicant pay those costs, but rather that the question of who pays those costs be determined by the judge who ends up determining the substantive claim.
As far as the application made by Mr Shaw, it should also be clear that:-
·There is no need for me to decide whether to recuse myself because I have transferred the matter.
·There is no need to timetable this application for recusal because the substantive application is no longer being heard by me and has been transferred.
·There is no need to consider whether to play any audio recordings because they were only relevant if this was an application for recusal. As there is no application for recusal (because I have transferred the matter) there is no need to consider this request.
·The applicant can order a transcript of the hearing, as can any other litigant, and I have not stopped the applicant from ordering any such transcript.
·There is no need to consider a stay of any further steps, because the matter has now been transferred to another judge.
This has effectively dealt with the application in a proceeding filed on 20 February 2023.
The matter, which has been transferred to His Honour Judge Egan, is the substantive matter in which the applicant is seeking orders against the respondent where he claims that the respondent unlawfully and unconscionably deducted fees from his superannuation account for an insurance policy which he did not agree to having taken out.
I have already ordered a mediation in the matter and the mediation was unsuccessful. I was considering listing the matter for trial before I transferred it. Where the matter goes from here will be a matter solely for His Honour Judge Egan to decide.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 19 May 2023
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