Case: Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371
Outcome: related
An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 &#8226; my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding." 9 The respondents seek dismissal or stay of the substantive proceedings before me on the basis that: 1. First, in relation to paras1-4 and 6-7 under the heading "Details of Claim" and paras 2-3 in the "Claim for Interlocutory Relief": &#8226; the proceedings are identical to those previously before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , are attempt to re-litigate matters already determined by his Honour, and as such constitute an abuse of process; and &#8226; in any event, the applicant's application has no reasonable prospects of success and should be dismissed pursuant to s 31A Federal Court of Australia Act 1976 (Cth). 2. Second, in relation to para 5 under the heading "Details of Claim" and para 1 in the "Claim for Interlocutory Relief", the applicant does not have an existing counterclaim or set off upon which to set aside the bankruptcy notice and as such this claim should be dismissed. Relevant principles Abuse of process 10 It is not in contention that the Federal Court has power to dismiss or permanently stay proceedings as an abuse of process. This is clear from O 20 r 2 Federal Court Rules which provides: (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1). 14 Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: &#8226; Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). &#8226; Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). &#8226; The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). &#8226; It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). &#8226; The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). &#8226; The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]). 28 In any event, having regard to the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , it is clear that the applicant would be no more successful on the material before me in claiming relief under the ASIC Act than she was before his Honour in claiming relief under the Trade Practices Act . In light of the principles articulated by Lindgren J in White Industries [2007] FCA 511 , it is plain that the claim has no reasonable prospects of success in terms of s 31A Federal Court Act. 34 Mr Handran submitted further that the facts, matters and circumstances which the applicant relies on in support of the counterclaim or set off, are the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 and which have been dismissed by his Honour. Mr Handran submits that this is also evident from the supporting affidavit filed by the applicant in support of both her application in this case and that in QUD525/2005. 35 It is useful to compare this affidavit of the applicant, with an affidavit sworn by her on 30 November 2005 and filed in QUD525/2005. In particular I note that: &#8226; paragraphs 9-35 of the applicant's affidavit sworn 13 June 2007 and filed in these proceedings are identical to paras 4-30 of her affidavit sworn 30 November 2005 and filed in QUD525/2005 (before Spender J), and in summary, set out the applicant's version of the background to and nature of the dispute between herself and the respondents which gives rise to the relevant set off or counterclaim &#8226; the only different paragraphs paras 2-8 (set out above in this judgment) and paras 36-43 of the applicant's affidavit sworn 13 June 2007 and filed in these proceedings - concern the applicant's version of the events surrounding the service of the bankruptcy notice filed by the respondents on 19 April 2007 and the fact that this application has been brought under the ASIC Act . 36 Having reviewed the material before me, and read: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the application filed in QUD525/2005 (which is annexed to the affidavit of Mr Whittle sworn 19 June 2007 in these proceedings) and &#8226; the affidavits (including that of the applicant) filed in support of that application (which are annexed to the affidavit of Mr Whittle sworn 6 September 2007 in these proceedings). it is clear that the facts, matters and circumstances upon which the applicant is relying in the substantive proceedings before me to have the relevant bankruptcy notice set aside - and which relate to a set off or counterclaim for damages for financial loss and psychological or mental damage caused by conduct of the respondents - are exactly the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371. I note that Spender J dismissed the claim of the applicant for damages for economic loss and mental damage as a result of the conduct of the respondents. It is inappropriate to allow the application before me to continue, on the basis that there is a set off or counterclaim for damages for financial loss and psychological or mental damage as a result of the conduct of the respondents, which identical claim has already been dismissed. In this respect, I accept the submission of the respondents that there is, in fact, no setoff or counterclaim as envisaged by ss 40(1)(g) and 41 (7) Bankruptcy Act 1966 (Cth) and the High Court in Ebert 104 CLR at 350.