Piepkorn v Caroma Industries Ltd [2002] FCAFC 37 Piepkorn v Caroma Industries Ltd [2002] FCA 182 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Piepkorn v Caroma Industries Ltd [2002] FCA 182 PRACTICE AND PROCEDURE – application for leave to appeal from direction of judge to registrar to refuse to issue application – application no prospects of success – application frivolous and vexatious – interlocutory direction – whether leave to appeal should be granted – whether direction of judge attended by sufficient doubt – whether substantial injustice if leave refused – notice of appeal and application for leave to appeal disclosed no proper grounds of appeal – claim against respondent determined by previous judgment. Federal Court of Australia Act 1976(Cth): ss 24(1)(a), 24(1A) Federal Court Rules: O 46 r 7A National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 referred to Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 referred to Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied Jarrett v Seymour (1993) 46 FCR 557 applied HENRIETTE PIEPKORN v CAROMA INDUSTRIES LTD S 145 of 2001 NORTH, GOLDBERG & HELY JJ 1 MARCH 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 145 of 2001 BETWEEN: HENRIETTE PIEPKORN Applicant AND: CAROMA INDUSTRIES LTD Respondent JUDGE: NORTH, GOLDBERG & HELY JJ DATE OF ORDER: 1 MARCH 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for leave to appeal and the purported notice of appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 145 of 2001 BETWEEN: HENRIETTE PIEPKORN Applicant AND: CAROMA INDUSTRIES LTD Respondent JUDGES: NORTH, GOLDBERG & HELY JJ DATE: 1 MARCH 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT: 1 The applicant has filed a notice of appeal, and an application for leave to appeal, from a direction given by a judge of the Court to the district registrar of the Court in the South Australia District Registry pursuant to O 46 r 7A of the Federal Court Rules that the district registrar refuse to issue an application of the applicant bearing the date 19 June 2001 which was lodged by the applicant with the Registry on or shortly after that date. 2 The application lodged by the applicant was expressed to be an application under the "Constitution 51(xxiv), Law Court Contract". In the application, the applicant claimed: "1. The respondent obtained a District Court ruling, by breaching law court contract 469/98. 2. The respondent enacted a bankruptcy action, sequestration order 476/2000. 3. Entering a counter‑claim to oppose the applicants contract.", and claimed the following interlocutory relief: "An order or declaration that the sequestration order 476/2000, be dismissed, and restitution for illegal action by the respondent. Seen fit by the Federal Court." 3 The applicant lodged with the application an affidavit in which she stated: "1. That the bankruptcy notice taken out by the respondent, was done by overriding the applicants action in the District Court contract 469/98. 2. The respondent entered a Common Law action, 991/84 as a counterclaim the an Industrial action of breach of contract – employment agreement – contract. 3. The respondent using constitution 51(xxiv) to prevent persecution of contractual right. Breach of contract – illegal dismissal, employment contract. 4. The respondent breaching the applicants District Court contract. 469/98. By entering the counter-claim, under the applicants name. 5. The applicant seeks to have the bankruptcy order dismissed and the applicants credit line cleared of any defamation of name." 4 On 25 July 2001, the district registrar referred the application to a judge of the Court pursuant to O 46 r 7A of the Federal Court Rules and requested that a direction be given that the district registrar refuse to accept or issue the proposed application. 5 Order 46 r 7A provides: "If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him: (a) to accept or issue it; or (b) to refuse to accept or issue it; or (c) to refuse to accept or issue it without the leave of a Judge first had and obtained." 6 On 26 July 2001, pursuant to O 46 r 7A of the Federal Court Rules, the judge directed the district registrar to refuse to issue the application. In the direction, the judge observed that he had regard to the proposed application and to the affidavit which had been lodged and also had regard to the proceedings in which a sequestration order was made in respect of the estate of the applicant on 13 March 2000 at the suit of the respondent, and to an appeal from that order which was dismissed by a Full Court of the Federal Court on 28 August 2000: Piepkorn v Caroma Industries Ltd [2000] FCA 1230. 7 In the direction, the judge found that the application was unintelligible, but concluded from the claim for interlocutory relief and par 5 of the affidavit that the applicant's real claim was to set aside the sequestration order made on 13 March 2000. The judge concluded that there was no apparent prospect of such a claim succeeding. He found that the grounds set out in pars 1 to 4 of the affidavit were obscure and did not assert primary facts upon which any conclusion of law might be reached such as to warrant the setting aside of the sequestration order. The judge noted that the applicant had appealed from the making of a sequestration order and that the appeal had been dismissed on 28 August 2000 which was the appropriate avenue to seek to have the making of the sequestration order set aside. The judge concluded that the proposed application had no prospects of success and was frivolous and vexatious. 8 On 27 July 2001, the district registrar wrote to the applicant informing her that the judge had directed her to refuse to issue the application and that, accordingly, she refused to issue the application. 9 On or about 8 August 2001, the applicant lodged a notice of appeal from the direction of the judge and specified the following grounds of appeal: "That Justice Mansfield J, in his refusal of the action sought, perverts the course of Justice, in his personal prejudice against the appellant. Justice Mansfield contradicts his own confirmation that the appellant is still employed. As proven in Piepkorn H v Gerard Industries Pty Ltd no S97/1999." In the notice of appeal, the applicant sought the following orders: "1. That the application between Piepkorn H v Caroma Industries Pty Ltd be set down for hearing. 2. As the matter is of Federal Jurisdiction; and that the appellant is still employed; and the bankruptcies be dismissed. [As to prevent prosecution no 251/93. 3. That Justice Mansfield uphold his jurisdiction and honour the Industrial Law of the work agreement." 10 On 6 September 2001, the applicant lodged with the Court an application for leave to appeal from the direction of the judge given on 26 July 2001 and an affidavit in support of the application. In the application it was stated that leave to appeal was required by: "Constitution 51(xxiv), (xxxv.), (xvii), Conciliation and Arbitration Act s.144A. HENRIETTE PIEPKORN, (Applicant) & CAROMA INDUSRIES LTD, (Respondant)." The application stated that the grounds appeared in the annexed affidavit. In the affidavit the applicant stated: "1. I, the Applicant entered a summons against the employer CAROMA INDUSTRIES LTD ON THE 19th June, 2001. As the Applicant is still legally employed, due to continual legal action in Court: - [Comparable verdicts High Court] 2. Justice MANSFIELD J., as an employee of the court has failed in his legal duties of obligation to his contract of the legal court, through his ethics to the third party. constitution 51(xxiv.) 3. As state in paragraph 1:- Comparable Verdicts, High Court:- R. v. J. B Sweeney, Ex parte Northwest Exports Pty Ltd. (1981) 35 A.L.R. 135. The court ruled constitutional validity of s.144A and that A144A(5) was a valid exercise of commonwealth power: -Conciliation and arbitration – constitution 51(xxxv.) 4. Justice Mansfield enacted third party constitution 51(xxiv); to prevent prosection, SB251/93 PIEPKORN H. & HOCKLEY B.J. Then Justice Mansfield personal predjuce against the applicant, when a question of law was ask about the refusal to employ; n. S97/99, PIEPKORN H. & GERARD INDUSTRIES PTY LTD. In this matter Justice Mansfield J., directed the respondant; not to answer, confirmed the applicants employment. 5. If in law Justice Mansfield is well aware of the business transaction of the work agreement contract. Then why does he direct to court to prohibit prosecution by refusing to issue the process for hearing? The applicant seeks an appeal against the Justices and Courts action perverting the course of justice and set a legal hearing date." 11 The background to the making of the sequestration order can be gleaned from the judgment of the Full Court on 28 August 2000 in the reasons for judgment of Wilcox J. In short, Mansfield J made a sequestration order against the estate of the applicant on 13 March 2001. The debt, the subject of the petition, namely $2,598.17 plus interest, arose as a result of an order for costs made by the District Court of South Australia in a proceeding commenced by the applicant against the respondent. The debt had not been paid, and there had not been any appeal from the judgment of the District Court. Mansfield J rejected the claim by the applicant that the District Court had no jurisdiction to make the costs order and found that the District Court had not rejected the applicant's claim because of any problem of jurisdiction but had found that no reasonable cause of action was disclosed by the applicant's statement of claim in the proceeding. The Full Court rejected the applicant's submission that the District Court had no jurisdiction to make the costs order against her and also rejected her submission that Mansfield J was prejudiced. Specifically, the Court could see no reason whatever to attribute prejudice to Mansfield J. 12 The first issue which arises for consideration is whether the direction given by the judge on 26 July 2001, pursuant to O 46 r 7A of the Federal Court Rules, is a judgment which falls within s 24(1)(a) of the Federal Court of Australia Act 1976(Cth) which gives the Court jurisdiction to hear and determine: "Appeals from judgments of the Court constituted by a single judge" Section 4 of the Federal Court of Australia Act defines "judgment" as meaning: "A judgment decree or order, whether final or interlocutory, or a sentence". There is no direct authority on the question whether a direction by a judge pursuant to O 46 r 7A is a "judgment" for the purpose of s 24(1)(a) of the Federal Court of Australia Act, although in some cases it has been assumed that there would be a right of appeal to a Full Court for the purposes of the argument in circumstances where the application for leave to appeal, the direction being interlocutory in nature, failed on the merits. See, for example, Bird v Free (1994) 126 ALR 475; Jessop v Westpac Banking Corporation [1999] FCA 1646; Gunter v Doogan [1999] FCA 1648. 13 For the purposes of the argument the Court is prepared to assume, without deciding the issue, that the direction is a judgment of the Court within s 24(1)(a) of the Federal Court of Australia Act. 14 In such circumstances s 24(1A) of that Act becomes relevant as it provides that: "An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or Judge gives leave to appeal." 15 The direction did not finally dispose of the rights of the parties as a matter of law and is accordingly interlocutory in nature. As the Full Court pointed out in National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) Pty Ltd (2001) 183 ALR 700 at 703: "… it is the legal effect of the order and not its practical effect which is relevant to the issue of whether or not the proceedings are finally determined between the parties, was made clear by Gibbs CJ in Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; 34 ALR 449 at 450." In Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 Gibbs CJ said at 248: "The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney … In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present." See also Malouf v Malouf (1999) 86 FCR 134. 16 Accordingly, it is necessary to determine whether leave to appeal should be granted in the circumstances of this case. The general principle applied in making that determination is to ask first whether, in all the circumstances, the direction of the judge is attended with sufficient doubt to warrant it being reconsidered by a Full Court, and secondly whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Jarrett v Seymour (1993) 46 FCR 557. We consider that these tests are appropriate to apply in the circumstances of this case. 17 We do not consider that the judge's direction is attended with any doubt which would warrant it being reconsidered by a Full Court. The judge made no error of law in the direction which he gave on 26 July 2001. It is difficult to discern from the application and the affidavit the grounds upon which the relief claimed was sought. Nevertheless it appears that the application was directed to setting aside the sequestration order made on 13 March 2000 and reviving the subject matter of the District Court proceeding which had been dismissed. So much appears from the claim for interlocutory relief and par 5 of the affidavit lodged in support of that application. That claim has no prospects of success and is undoubtedly frivolous and vexatious and an abuse of the process of the Court. It was finally determined by the judgment and order of the Full Court on 28 August 2000. As between the applicant and the respondent, the matter has been finally and conclusively determined and it is res judicata. Where any proceeding has been brought and judgment has been entered in the proceeding, no other proceeding can be maintained in respect of the same cause of action or claim: Jackson v Goldsmith (1950) 81 CLR 446 at 466‑468; Effem Foods Pty Ltd v Trawl Industries Pty Ltd (Receivers and Managers Appointed) (In Liq) (1993) 43 FCR 510. The notice of appeal lodged by the applicant did not disclose any proper grounds of appeal, nor did the grounds of the application for leave to appeal set out in the accompanying affidavit. There are no grounds on which any appeal might be brought in respect of the direction of the judge. 18 No injustice will result to the applicant if leave to appeal is refused as the matter in respect of which she appears to make complaint has been finally and conclusively determined against her. 19 Although the Court has an inherent jurisdiction to prevent abuse of its process and the maintenance of frivolous and vexatious claims, that jurisdiction should always be exercised with great care as litigants, with legitimate claims, should not be shut out in a summary way from invoking the jurisdiction of the Court: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 92 per Dixon J. However, if it is clear beyond peradventure that a claim cannot possibly succeed and is doomed to failure at the outset, the prosecution and maintenance of such a claim will constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. The present proceeding, which the applicant has sought to bring before the Court, is such a case. 20 The application for leave to appeal and the purported appeal should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 1 March 2002 The applicant appeared in person There was no appearance by the respondent Date of Hearing: 1 March 2002 Date of Judgment: 1 March 2002