Theo, Sol v The Official Trustee in Bankruptcy
[1997] FCA 195
•10 Mar 1997
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
No QB 1422 of 1990
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLANDBETWEEN: SOL THEO
First Applicant
AND: SOL THEO AS TRUSTEE FOR
S. THEO FAMILY TRUST
Second Applicant
AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
AND: THE OFFICIAL RECEIVER
Second Respondent
AND: ANTHONY JAMES BENNETT
Third Respondent
AND: KENNETH PHILP
Fourth Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 10 March 1997MINUTES OF ORDER
1.Insofar as the amended application filed 31.1.97 seeks relief against the first and second respondent, the proceedings are dismissed.
2.Insofar as the amended application of 31.1.97 relates to the 3rd and 4th respondents, the proceedings are dismissed.
3.The first and second applicants are to pay the costs of and incidental to the principal proceedings, and of and incidental to the motion filed on 24.1.97 by the1st and 2nd respondents and of and incidental to the motion filed on 10.2.97 by the 3rd and 4th respondents, together with any reserved costs, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
No. QB 1422 of 1990
BANKRUPTCY DISTRICT OF THE
STATE OF QUEENSLANDBETWEEN: SOL THEO
First Applicant
AND: SOL THEO AS TRUSTEE FOR
S. THEO FAMILY TRUST
Second Applicant
AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
AND: THE OFFICIAL RECEIVER
Second Respondent
AND: ANTHONY JAMES BENNETT
Third Respondent
AND: KENNETH PHILP
Fourth Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 10 March 1997REASONS FOR JUDGMENT
The court has before it two notices of motion; the first is an amended notice of motion filed on 24 January 1997 by the first and second respondents to an application brought by the first and second applicants filed on 9 December 1996. That application was amended by the first and second applicants and filed on 31 January 1997. The notice of motion of the first and second respondents seeks orders that the amended application filed on 31 January 1997 be dismissed with costs, in respect of the relief sought in paragraphs 1, 2 and 6 of that application. The basis for the motion is that the Court has no jurisdiction to grant the relief sought, that the proceedings are embarrassing and vexatious and that the proceedings are an abuse of process.
The second notice of motion before the court was filed by the third and fourth respondents on 10 February 1997 and seeks orders that the amended application of the first and second applicants be struck out in respect of the relief sought in paragraphs 3 and 4 thereof, on the grounds that the paragraphs fail to disclose any or any proper cause of action against the third and fourth respondents. Further, or in the alternative, the third and fourth respondents allege that the court has no jurisdiction to grant any of the items of relief sought, and further, or alternatively, that the proceedings thereby pleaded as against the third and fourth respondents are embarrassing or vexatious or are an abuse of process and are scandalous.
In addition, the second notice of motion seeks that insofar as it purports to plead any case against the third and fourth respondent, the first and second applicants’ statement of claim filed on 31 January 1997 be struck out on the grounds that it discloses no or no proper cause of action. Further, or alternatively, it is alleged that the statement of claim is otherwise an abuse of process and that accordingly the action against the third and fourth respondents ought to be dismissed. The notice of motion seeks costs.
While I am dealing only with those two notices of motion, it is nonetheless necessary to have regard to a considerable history of litigation. The terms of the amended application of Mr Theo as first applicant and in his capacity as trustee for the S. Theo Family Trust as second applicant, are as follows:
“ ON THE GROUNDS APPEARING IN THE ACCOMPANYING STATEMENT OF CLAIM THE APPLICANTS CLAIM AGAINST THE FIRST, SECOND, THIRD AND FOURTH RESPONDENTS:
1.An Order that the First and Second Respondents be held responsible for the consequences of their action and in action in handling the affairs of the First Applicant’s estate, past, present or future, which was compounded as a result of their wrongful prosecution of the Applicants, which resulted in the applicant’s having sustained substantial pecuniary losses, relevant to all costs and expense as well as those emanating from the following hearings:-
(a) Justice Cooper’s decision handed down on 24th August 1995.
(b) The unsuccessful appeal with the Full Court in Brisbane.
(c) The unsuccessful leave to appeal with the High Court of Australia.
(d) Justice Heerey’s decision handed down on the 1st August 1996.
(e) Justice Kiefel’s decision handed down on the 2nd September 1996.
(g) Justice Kiefel’s decision handed down on the 3rd October 1996.
2.Reprimand the First Respondent, for having wilfully misguided the Honourable Court and possibly inflict upon him punitive damages in favour of the wronged parties, hence they influence wrongly the Honourable Justice Heerey’s, who made the unfortunate wrong decision on 1st August 1996.
This is confirmed in the Honourable Full Courts finding of their decision of 7th November 1996.
The seriousness of such actions by the First and Second Respondents, could be considered criminal, for the misuse of our legal system, in pursuing personal gains.
And any punitive decisions should effect not only the First & Second Respondents, which happen to be legal (non-physical entities), but also the individuals who acted on behalf of such bodies, which the Applicant will be only too willing to name.
3.A restraining order against the Third & Fourth Respondents to stop claiming their void (as from instigation) status of statutory trustees for sale, which was given to them by Justice Heerey on the 1st August 1996, which and in view of the Full Court’s decision of the 7th November 1996, such status is now legally non-existent.
4.A clarification for the benefit of the Third and Fourth Respondents that all their actions, during their short lived capacity as statutory trustees for sale, are:-
(a) Answerable as per the law on trust and that they should release all money and property held unlawfully to the rightful owners of same as there stance now, is nothing else but an abuse of their status of trusteeship for personal gain.
To date such Third & Fourth Respondents can be charged of misappropriation of funds and property unlawfully held by them.
(b) As the Third & Fourth Respondents were invited by the First and Second Respondents to nominate as statutory trustees for sale and in view of the Third & Fourth Respondents speculative/commercial adventure to nominate as such, they (the third & fourth Respondents) can only blame themselves for having undertaken such a speculative venture, hence beside the possible benefits they were hoping to gain, they are now facing expenses, to which they should only blame themselves and or the First and Second Respondents who invited them but definitely not the Applicants.
(c) An order that the Third & Fourth Respondents be held accountable as per the law of trusts, for any wrong and unnecessary administrative decisions and expenses incurred by them, during their appointment as statutory trustees for sale, and their liability is enforceable.
(d)As the Third & Fourth Respondents were given the opportunity by the Full Court’s decision of the 7th November 1996 to make any submissions, by a specific date, and hence they did not take advantage of same, their action in withholding money which is not their property should justify an order imposing against them excessive action by the Court. In view of the fact that they are also officers of the Court and their behaviour should have been impeccable.
(e) The Third & Fourth Respondents, following the Full Court’s decision of the 7th November 1996, should be held in contempt of same, and an order to that effect will be justifiable as they still are in legal possession of the relevant properties, having handed back only one set of keys (and this on the 29th November 1996), and withholding still another 3 sets of keys (a total of another 24 keys), and this in defiance of the Honourable Full Court’s order of the 7th November 1996.
(f) Following the Court’s decision of 7th November 1996 an order for the Third & Fourth Respondents to restore the status quo of the parties concerned, and relevant to their actions, as to the date prior to the unfortunate Honourable Justice Heerey’s decision of 1st August 1996 including the reversal of all their communications to the community at large, for the pending sell out of the properties concerned, which has caused damages to the credit rating of the individuals concerned, as well as had a defamatory effect.
(g) An order against the Third & Fourth Respondents, being the statutory trustees for sale be held responsible for the pecuniary damages they have caused and are still causing to the owners concerned as a result of their actions and inaction. The quantification of such damages to be ascertained in due course.
(h) A restraining order for the third and fourth respondents to stop self serving their legal firm, orchestrating legal representation and generating unnecessary legalistic activities, hoping to get eventually paid for same, and in the process harassing the recipients of same.
5.An order with reference to the last page of the Full Court’s finding, of the 7th November 1996, headed CONCLUSION.
In view of the Full Court’s findings in regard to the Applicant’s appeal against Justice Kiefel’s decision of the 2nd September 1996, and the Full Court’s relevant findings, the same should apply with the Justice Kiefel’s other decision of the 3rd October 1996 and the Applicant’s appeal, and the Applicant does not mind withdrawing same, at no cost to him.
Such withdrawal was even recommended by the barrister for the First & Second Respondents at the Full Court hearing, in regard to Justice Kiefel’s decision of the 3rd October 1996, and in view of the Full Court’s decision of the 7th November 1996, is now of no consequence, nor is the relevant appeal to it. Therefore irrelevant and an appropriate direction or order by the Court, for the parties to act ie: on a consent basis, for the withdrawal of the said appeal would be wise and advisable.
6.A Court Order instructing the First & Second Respondents to conform with the requirements of S.99 of the Bankruptcy Act of 1966 (relevant to the proof of debts) to be precipitated by an appropriate conference of the parties concerned, in order to investigate the accepted so called proven debts, by the First & Second Respondents, and relevant to the First Applicant’s estate.
7.Such further or other relief as to this Court shall seem appropriate.”
That amended application was filed as a result of orders made by Kiefel J on 20 December 1996. The original application filed 9 December 1996 was in similar terms, although the precise wording was not the same. By way of indication of the nature of that earlier application dated 9 December 1996, the first paragraph commenced:
“ ...Application is made to the Court by the Application for the following declarations and orders:
An order that the First and second Respondents be held responsible for the consequences of their actions and inaction in handling the affairs of the First Applicant's estate, PAST, PRESENT or FUTURE, which was compounded as a result of their WRONGFUL PROSECUTION of the applicants, which resulted in the Applicants having sustained substantial pecuniary losses, relevant to all costs and expenses as well as those emanating from the following hearings...”
Reference is then made to a number of proceedings in this Court. Paragraph 4 of the original application commenced:
“ A clarification for the benefit of the Third and Fourth Respondents, that all their actions, during their short lived capacity as Statutory Trustees for Sale, are:
(a)answerable as per the Law on Trusts, and that they should release all money and property held unlawfully, to the rightful owners of same as their stance now, is nothing else but and an abuse of their Status of TRUSTEESHIP for personal gain.
To date such third and fourth Respondents can be charged of misappropriation of funds and property unlawfully held by them.”
In support of the original application, Mr Theo filed an extensive affidavit dated 9 December 1996. The orders made by Kiefel J on 7 February 1997 were in the context of this affidavit. Paragraph 2 of the affidavit provided:
“ As a result of the wrongful prosecutions by the First and Second Respondents, extensive damages have been suffered by the Applicants, and for which the Applicants claim appropriate retribution :
a) Deprivation of the first applicant and possibility of gainful employment, forced into full time (24 hours a day) pre-occupation in defending such wrongful actions, for a period of 6 years, quantified at an amount of
........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..$360,000.00
b) Photocopying expenses, in excess of ........ ........ ...$2,000.00
c) Secretarial expenses, in excess of ........ ........ ...... $10,000.00
d) Travelling expenses in excess of........ ........ ........ ... $2,000.00d) Damages for defamation, pain and suffering to be
determined by the Court.”
Paragraph 4 in part provided:
“ The First Respondent as Trustee in Bankruptcy of the deponent's estate, demonstrated criminal negligence, in administering same. And for this reason the deponent seeks retribution in a form of damages...”
Paragraph 5 provided:
“ And the amounts claimed directly from the Third and Fourth Respondents, and by consequence from the First and Second Respondents, as jointly and severally responsible for all the said wrongful prosecution and actions.
The Third and Fourth Respondents, during their short lived status as statutory trustees for Sale, undertook various actions, some of them wrong administrative actions, which have caused damages to the owners, and for which they are responsible, also, with reference to the Trusts Acts, making enforceable such claims for damages, against them and which are relevant to their performance as Trustees, being as follows:
...”
The affidavit then sets out a vast number of alleged instances of wrongful actions committed by the third and fourth respondents.
The original application and the affidavit of Mr Theo to which I have just referred were before Kiefel J on 20 December 1996, when her Honour directed that:
“(1) Mr Theo file and serve a statement of claim setting out each claim against each of the respondents together with the facts relied upon as required by the rules of Court by 31 January 1997.
(2)Leave be granted to Mr Theo to amend the application as he may be advised by 31 January 1997.
(3)List for further directions on 7 February 1997 at 10.30 am.”
The statement of claim and the amended application foreshadowed by those directions were filed by Mr Theo on 31 January 1997. On 7 February, her Honour ordered:
“1. The Third and Fourth Respondents file and serve the foreshadowed Motion to strike out the Applicant’s proceedings by 11 February 1997;
2.Mr Theo and the Second Applicant to file and serve any material upon which they intend to rely in response to the applications by 25 February 1997;
3.The motions of the First, Second, Third and Fourth Respondents be adjourned for hearing to 13 March 1997 at 10.15am for 2 hours;
4.The costs be reserved.”
The hearing of the two motions which were adjourned to 13 March 1997 are the subject of today's hearings. The statement of claim which Kiefel J ordered to be filed and served by 31 January 1997, is in the following terms:
“1. (a) At all material times:
(i)The Applicants are entitled to sue
(ii)The First Applicant was and is the trustee of the S. Theo Family Trust, which is a discretionary trust, and is entailed to sue in such capacity.
(iii)The S. Theo Family Trust was settled by a deed of trust dated 1978.
2.The first and Second Respondents come under the same authority, and are entitled to be sued in their official names pursuant to the provisions of the Bankruptcy Act 1966 (the act). Section 18(8A) provides that all things done on behalf of the Official Trustee by the Office Receiver are deemed to have been by the Official Trustee.
Under Section 18(2)(c) of the act may be sued under its corporate name - Official Trustee in Bankruptcy, and the Official Trustee must act in the name of the Official Trustee.
3.The Official Receiver issued certain notices under Section 139zq of the Bankruptcy Act. Such notices were set aside by Justice Cooper on the 24th August 1995. An allowance for costs was made in favour of the Respondent. The said notices were issued on the 27th May 1993 and 16th July 1993, by the acting Official Trustee.
4.On the 1st September 1995 the Official Trustee filed an Application seeking:-
(i)Declarations that the two transfers were void as against the Official Trustee.
(ii)Declaration that Mrs Theo held a one half interest in the two properties in trust for the Official Trustee and;
(iii)The appointment of statutory trustee for sale, pursuant to S.38 of the Property Law Act 1974 (Qld)
(iv)The hearing took place on the 1st August 1996 and Justice Heerey allowed the Official Trustees application and nominated as statutory trustee for the sale of the properties the Third & Fourth Respondents’ names in this action.
(v)At the Full Court’s decision of the 7th November 1996, their Honours found that the Official Trustee misguided Justice Heerey, who proceeded with the relevant Orders.
(vi)On the 21st August 1996 the Applicant filed an appeal against Justice Heerey’s decision and a further notice of appeal against Kiefel J refusing (on the 2nd September 1996) the stay of execution of Heerey J of 1st August 1996;
(vii)On 28th August 1996 the Applicants filed an application for a stay of execution of Justice Heerey’s decision, which was rejected by Kiefel J on the 2nd September 1996.
(viii)On the 7th November 1996 the Full Court of Appeal allowed the appeal filed on the 21 August 1996 against Heerey J decision of the 1st August 1996 and ordered that such decision be set aside.
(ix)The Full Court also decided on the 7th November 1996 the consequential to such setting aside of Heerey J order the Appeal against Kiefel J decision of 2nd September 1996, as there was no need to proceed with same.
(x)On the 3rd October 1996 Kiefel J handed down a relevant to the Heerey J decision of 1st August 1996 which the Applicant filed an appeal against. At such an appeal was not on hand for the Full Court to consider on the 7th November 1996 and no relevant mention was made. Also the third appeal was erroneously dismissed by Kiefel J on 20th December 1996, and Justice Kiefel heard in doing so and a further appeal has been filed on the 30th December 1996, No. 216/96.
On the 23rd November 1995 the Full Court dismissed an appeal by the Applicant and the Trustees against the costs order of 24th August 1995 of Justice Cooper.
5.In 1996 the High Court of Australia dismissed the costs and application for leave to appeal against Cooper J decision of 24th August 1995 for costs.
AND THE APPLICANT CLAIMS THE RELIEF SOUGHT IN THE APPLICATION HEREIN.”
It will be noted that the statement of claim specifies only one instance of possible misfeasance by the Official Trustee, being the reference contained in paragraph 4(v) where the statement of claim alleges that:
“ The Official Trustee misguided Heerey J.”
The only references in the statement of claim to the third and fourth respondents appear in paragraph 4(iv). The reference in paragraph 4(x) to “Trustees” is not a reference to the third and fourth respondents.
By way of completeness, the affidavit filed by Mr Theo on 25 February 1997 is of a similar flavour to his earlier affidavit. Paragraph AB) of that affidavit commences:
“ It is the Applicant's intention to prove that the Respondents contumaciously contravened the Law and abused their powers following as well as the Federal Court's of Australia status hence they acted maliciously and contumaciously with their wrongful prosecutions:”
And later in paragraph 9:
“ And punitive damages should be imposed on such respondents of not less than ........ ........ ........ ........ ... $500,000.”
As earlier mentioned, it is necessary to have regard to the context of litigation in which the present motions appear.
On 24 August 1995, Cooper J set aside a number of notices pursuant to s 139ZQ of the Bankruptcy Act 1966 issued to Mrs Theo, the wife of the present applicant. The basis of the setting aside was that the Official Trustee had failed to prove the market value of the land in question. Mr Theo's application to have his bankruptcy annulled was dismissed, as was his action for damages against the Official Trustee.
Cooper J ordered that Mr Theo, as first applicant and trustee of the S. Theo Family Trust, pay 80 per cent of the respondents' costs of and incidental to the application, including reserve costs, if any, to be taxed if not agreed. In his Honour's reasons for judgment for making those orders, his Honour found that:
“ Mr Theo had disposed of his interest in the two properties in order to defraud his creditors and that Mrs Theo, the transferee, was not a purchaser for valuable consideration.”
The properties were not owned by the Theo Family Trust, but were beneficially owned by Mr and Mrs Theo jointly. His Honour found that the dispositions were made with the intent to defeat or delay Mr Theo's creditors, which included the Deputy Commissioner of Taxation.
Mr Theo appealed to the Full Court against the order for costs made by Cooper J. Mr Theo argued that the findings of fact adverse to his case, including the findings as to credibility, ought not have been made. The Full Court, consisting of Ryan, Sackville and Kiefel JJ., dismissed that appeal. An application by Mr Theo for special leave to appeal to the High Court was unsuccessful.
An application was subsequently filed by the Official Trustee in Bankruptcy for a declaration that the two transfers by Mr Theo to his wife dated 27 December 1984 of Mr Theo's interest in certain property were void as against the applicant by reason of s 121(1) of the Bankruptcy Act. That application came before Heerey J, and the Official Trustee relied upon the findings of fact of Cooper J as constituting binding issues estoppel.
Heerey J set aside the dispositions and made orders for the appointments of Trustees for Sale. It was by virtue of those orders that the third and fourth respondents became trustees of the land described in the application by Official Trustee.
Mr Theo appealed from the orders of Heerey J to the Full Court, and on 7 November 1996 the Full Court (consisting of Black CJ, Sackville, and Finn JJ) allowed the appeal. In so declaring, the Full Court set aside the declarations and orders of the trial judge, dismissed the application by the Official Trustee in Bankruptcy, and ordered the Trustee to pay the costs of the first appellant before the trial judge and on appeal.
Before the hearing on 7 November 1996, there had been two orders made by her Honour Kiefel J. The first was made on 2 September 1996, where an application by Mr Theo for a stay of execution of Heerey J’s decision was dismissed. Mr Theo was ordered to pay the costs of the Official Trustee and of the Trustees for Sale of and incidental to that motion. On 3 October 1996, Kiefel J ordered that paragraph 2(c) of the affidavit of Sol Theo filed by leave on 30 September 1996 be struck out, and for Mr Theo to pay the Trustees for Sale's costs of 3 October 1996 as well as other orders. In respect of those orders the Full Court said:
“ The application for leave to appeal from the orders of Kiefel J refusing a stay is refused on the basis that it is unnecessary in view of the other orders we have made.”
The question of the costs orders made by her Honour is not referred to by the Full Court either in its reasons or in the orders that it made. The only mention concerning the orders of Kiefel J was an order that:
“ ...
5.The application for leave to appeal from the orders of Kiefel J refusing a stay be dismissed.
...”
In their judgment, the Full Court considered a ground of appeal expressed by Mr Theo in his written submissions:
“ ...that [the trial judge] erred in relying heavily and exclusively on [Cooper J’s] findings which were incorporated wrongly in [Cooper J’s] decision of 24 August 1995.”
The Full Court held that that ground of appeal was wide enough to raise the question of whether Heerey J correctly applied the doctrine of issue estoppel. The appeal was upheld on the basis that there was no issue estoppel available to the Official Trustee to found a basis for the orders made by Heerey J.
The Full Court noted the findings made by Cooper J that Mr Theo was in fact beneficially entitled to an interest in the lands the subject of the original application of the 139ZQ notices, and had behaved with intent to defeat or delay his creditors. The hope expressed by the Full Court (that the point had been reached where an end must be brought to this litigation) was unfortunately dashed by subsequent events. It led to the present applications, and I am now concerned to determine whether those applications should be permitted to proceed. However, the Full Court had regard to the fact that the Official Trustee had made a deliberate choice to adduce no oral evidence in support of its application to the trial judge and had decided to rely solely upon the findings of Cooper J. The Full Court said:
“ In these circumstances, we consider that it would not be appropriate to remit the matter for rehearing. The Official Trustee has elected to rely upon the conclusive effect of findings which it knew were contested. It has been unsuccessful in this endeavour. It should not have the opportunity yet again to proceed against Mr and Mrs Theo. Whatever the factual findings that might be made on any further hearing, the point has been reached where an end must be brought to this litigation.”
Mr Theo, in the course of his extensive argument before me, made reference to the observations of Barwick CJ and McTiernan J in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319, where their Honours said:
“ But the making of unwarranted and vexatious applications in an action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court's process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand.”
As is apparent from its terms, the affidavit of Mr Theo filed on 9 December 1996, contained extravagant and unparticularised claims. The application, similarly filed on 9 December 1996 was wide ranging, but lacked detail as to the facts upon which the complaints were based. It was in that context that Mr Theo was ordered by the court on 20 December 1996 to file and serve a statement of claim setting out each claim against each of the respondents, together with the facts relied upon as required by the Rules of Court, by 31 January 1997.
The statement of claim by Mr Theo filed on 31 January 1997 does not disclose any cause of action against any respondent. In the course of his submissions, Mr Theo submitted that “format is a minor detail” and that the notices of motion should each be dismissed with costs.
The amended application, insofar as it seeks relief against the first and second respondents, seeks relief which is not within the jurisdiction of the court to grant. Certainly as far as paragraphs 1 and 2 are concerned, the relief claimed there is independently vexatious, but in addition has no foundation in anything pleaded in the statement of claim of 31 January 1997.
So far as the relief claimed in paragraph 6 is concerned, I note that Mr Theo has filed a notice of motion returnable on 2 April 1997 dealing with the question of s 99 of the Bankruptcy Act 1966 in relation to certain proofs of debt involving, amongst others, persons who are not parties to the present application by Mr Theo. But in any event, there is no power in respect of the request claimed in paragraph 6 to order an appropriate conference of the parties concerned before instructing the first and second respondents to conform to the requirements of s 99 of the Bankruptcy Act 1966.
Insofar as the third and fourth respondents are concerned, there is simply nothing in the statement of claim which discloses any cause of action against either of them. The orders made by Kiefel J on 20 December 1996 concerning the contents of the statement of claim have not been complied with.
Mr Theo, of course, is acting for himself. But that is no justification for exposing the respondents to proceedings where the statement of claim setting out the case against them demonstrates that there is no case pleaded. They are entitled to justice as much as any other party to litigation in this court.
The orders that I make are as follows:
Insofar as the amended application filed on 31 January 1997 seeks relief against the first and second respondents, those proceedings are dismissed.
I am satisfied that in the material respects, the court has no jurisdiction to grant the relief sought but, in addition, the proceedings are embarrassing, vexatious, and an abuse of process. Nothing in the statement of claim filed pursuant to the order of Kiefel J of 20 December 1996, indicates that there is a cause of action which can properly be advanced against the first and second respondents.
Insofar as the amended application of 31 January 1997 seeks relief against the third and fourth respondents, I order that those proceedings be dismissed. I am satisfied that in respect of the relief sought in paragraphs 3 and 4 of that amended application, there is no proper cause of action disclosed against the third and fourth respondents, nor do I think that the court has jurisdiction to grant the relief claimed therein. The proceedings are vexatious and embarrassing, and an abuse of process. Again, the statement of claim discloses no cause of action as against the third and fourth respondents.
I have heard the parties concerning the costs of the two motions in which I have indicated that I will dismiss the principal proceedings brought by Mr Theo for himself and as trustee for the S. Theo Family Trust. The gravamen of Mr Theo's complaint is that he ought not be penalised for not providing a proper formulated statement of claim, he being a lay person and not experienced in matters of law.
However, when this matter was before the court on 20 December 1996, Kiefel J made the orders to which I have referred and said:
“ What I proposed to do is to order that you file and serve a statement of claim, according to the Rules of Court, and that you have leave to amend your application to accord with the statement of claim. The problem with your application and the affidavit in its present form, Mr Theo, is that whilst I can see there might be some claims for damages based upon causes of action recognised by the law, there is a lot that is just general complaint that goes nowhere.
They are not set out as proper actions, proper claims, which is to say that you state your facts and explain why you get to your legal conclusion that you should have damages or some other form of relief.
Now, if it be the case that you require some legal advice, then so be it, but I do not think that this is the sort of action which can proceed on the basis simply of an application and an affidavit in its present form.
You will have to file a proper statement of claim which sets out clearly each of the causes of action that you are relying upon, because I think whilst you have been a litigant appearing for yourself for some time in this court, the other parties have a right to understand what is being alleged against them so that they can respond to it. I just do not see that they can respond meaningfully to the way in which it is being presented at the moment. Now, you might need some legal assistance to set up the case properly, Mr Theo, but it would be in your interests I think to do that, if you are serious in pursuing these claims.”
To which Mr Theo is recorded as saying:
“ Thank you for your clarifications.”
In the light of my reasons for judgment this morning, there is no reason, it seems to me, why the ordinary order as to costs should not be made. I have heard the parties. I order that the principal proceedings be dismissed and that the applicants on those principal proceedings pay the costs of and incidental to the principal proceedings, and the costs of the notices of motion, including any reserved costs, to be taxed if not agreed.
Whether there can be some resolution of matters between Mr Theo and the other parties may be a matter for discussion between them, but those are the orders that the court makes.
I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
10 March 1997
The applicant appeared in person
Counsel for the 1st and 2nd respondents : Mr P E Hack
instructed by : Australian Government Solicitor
Counsel for the 3rd and 4th respondents : Mrs D A Mullins
instructed by : Bennett & Philp
Date of hearing : 10 March 1997
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