Case: Re Gargan; Ex parte Official Trustee in Bankruptcy (unreported, FCA, Kiefel J, 23 August 1996)
Outcome: referred to
As I understood his submissions, the central proposition was that whilst he accepted he had consented to the making of the sequestration order in 1994, he had done so in circumstances where he was na&iuml;ve about the operation of the legal system. His admission that the sequestration order had been by consent is recorded in the reasons of Kiefel J in Re Gargan; Ex parte Official Trustee in Bankruptcy [1996] FCA 685 (unreported, Kiefel J, 23 August 1996). Those proceedings involved an earlier attempt by Mr Gargan to annul the bankruptcy. 14 Her Honour recited an affidavit (at [21]) which had been filed by Mr Gargan and which recorded the fact that he no longer opposed the making of the sequestration order. I did not understand Mr Gargan to cavil with that in the course of argument but instead, as it were, he sought to admit and avoid. 15 Notwithstanding his, at times, ingenious submissions, I am not persuaded that the circumstances surrounding the making of the sequestration order in 1994 are such that I could now be satisfied that it ought not to have been made. It seems, therefore, that the power under s 153B to annul the 1994 bankruptcy does not arise. 16 Although it is unnecessary in those circumstances to consider the likely disposition of the exercise of the discretionary power thereby conferred if it had arisen, I should say for completeness, even if the power in s 153B had been enlivened, I would not have exercised the discretion in Mr Gargan's favour. This is because first, it is apparent and indeed accepted, that the sequestration order was not ultimately resisted. Whatever else one might say about that, it provides a powerful discretionary reason, 14 years later, not now to undo it. 17 Secondly and, perhaps, related to the first point, is the fact that there has now been an extensive delay of 14 years. Finally, there is, of course, the fact that a prior application has been made to annul this bankruptcy and has failed. In each of those circumstances, it seems to me that even construing the amended application and statement of claim in the most charitable of fashions, it simply could not be the case that a claim, now to be brought by Mr Gargan to annul the first bankruptcy, would have any prospects whatsoever. 42 The first and second respondents apply for indemnity costs orders in relation to the dismissal which I have just ordered. It seems to me that in the exercise of the costs discretion the following matters are pertinent. First, the current proceeding involves attempts to re-litigate a number of matters which Mr Gargan has extensively litigated in the past and unsuccessfully. Secondly, in relation to the annulment application, he has made at least one prior annulment application before Kiefel J and failed. Thirdly, he has sought to articulate an argument based upon s 86 of the Bankruptcy Act 1966 (Cth), which operation has been determined, to his knowledge, in a contrary way by the Full Court in Heinrich . 43 Finally, I take into account as a matter of overall impression, that this proceeding commenced by Mr Gargan, in common with a number of other proceedings commenced by him, involve what appear on their face sometimes to be engaging, if obscure, legal questions. However, those arguments are rarely thought through to their final conclusion, and despite Mr Gargan's protestation of having studied law for two years, seem to indicate a desire more to be involved in the disposition of clever legal arguments in court rather than any focused attention upon what the consequences of his actions might be in relation to the parties against whom he brings his proceedings. 44 I am particularly mindful of the fact that Mr Gargan is an undischarged bankrupt. The provisions of the Bankruptcy Act 1966 (Cth) are, by and large, directed to preventing the bringing of proceedings of the current kind. Although Mr Gargan articulated various ways in which it might plausibly be thought in some obscure circumstances that the current applications might be brought, I have found that those attempts were wholly unsuccessful and meritless. It seems to me that it is appropriate to mark disapprobation of the bringing of these proceedings by the making of the costs orders sought. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 8 December 2008 The applicant appeared in person. Counsel for the First Respondent: Mr CP Carter Solicitors for the First Respondent: Brock Partners Solicitors Counsel for the Second Respondent: Mr SM Golledge Solicitors for the Second Respondent: Australian Government Solicitor Date of Hearing: 29 October 2008 Date of Judgment: 29 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1718.html