Martin v Individual Homes Pty Limited (in liq) ACN 008 495 761 [2001] FCA 91

FEDERAL COURT OF AUSTRALIA

Martin v Individual Homes Pty Limited (in liq) ACN 008 495 761 [2001] FCA 91

ANTHONY GILBERT MARTIN AND SUE DOLORES MARTIN v INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) ACN 008 495 761 AND MALLESONS STEPHEN JAQUES SOLICITORS A 49 OF 2000 DRUMMOND, DOWSETT AND GYLES JJ 9 FEBRUARY 2001 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 49 OF 2000

BETWEEN: ANTHONY GILBERT MARTIN

FIRST APPLICANT

SUE DOLORES MARTIN

SECOND APPLICANT

AND: INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) ACN 008 495 761

FIRST RESPONDENT

MALLESONS STEPHEN JAQUES SOLICITORS

SECOND RESPONDENT

JUDGES: DRUMMOND, DOWSETT AND GYLES JJ

DATE OF ORDER: 9 FEBRUARY 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

2. The document entitled "Supplementary Notice of Appeal" filed by Mr and Mrs Martin on 18 October 2000 be dismissed.

3. The applicants pay the respondents' costs of and incidental both to the respondents' notice of motion and to the supplementary notice of appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 49 OF 2000

BETWEEN: ANTHONY GILBERT MARTIN

FIRST APPLICANT

SUE DOLORES MARTIN

SECOND APPLICANT

AND: INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) ACN 008 495 761

FIRST RESPONDENT

MALLESONS STEPHEN JAQUES SOLICITORS

SECOND RESPONDENT

JUDGES: DRUMMOND, DOWSETT AND GYLES JJ

DATE: 9 FEBRUARY 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT

1 DRUMMOND J: We have before us what is in form a notice of appeal from a decision of Miles CJ given on 12 July 2000 whereby the Chief Justice dismissed the applicants', as I will call them, notice of motion dated 4 July 2000. By that notice of motion many orders and declarations were sought. By pars 21, 23, 25 and 26 orders were sought staying what were referred to as a warrant of possession and a notice to vacate certain premises and staying the writ of possession in respect of those premises pending various appellate litigation that was already then on foot at the behest of the applicants. At the commencement of proceedings today, Mr Martin, who spoke on behalf of both himself and his wife, indicated that the applicants were no longer pursuing their appeal against the dismissal order by Miles CJ in respect of those four paragraphs of the notice of motion. 2 The applicants' notice of motion was filed in action SC 404 of 1999. Those proceedings took the form of an action for possession of the premises in question by a company in liquidation that was brought on the instructions of its liquidator. The background to that action for possession is complex and the litigation generated is tortuous in the extreme. The applicants and the liquidator of the company, initially controlled by the applicants, which took title over a decade ago to a property on which the applicants' former matrimonial home was erected has involved no less than five proceedings before the Full Court of this Court and four proceedings, including a number of applications for special leave in the High Court, in addition to numerous proceedings before single judges of this Court and the Supreme Court of the Australian Capital Territory. 3 Apart from the claims in the notice of motion in respect of which the applicants no longer seek to pursue their appeal against the order of 12 July 2000, all of the claims for relief made by the applicants' notice of motion which were dismissed by the Chief Justice, save only those raised by pars 5, 6, 7 and 24 of the notice of motion, in my opinion, raise issues which it was no longer open to the applicants to raise in proceedings SC 404 of 1999 once the cause of action sued on by the liquidator for possession (there being no cross-claim by either of the applicants) merged into the judgment of Higgins J given on 16 December 1999. The appeal, so called, in so far as it challenges the Chief Justice's dismissal of all of the other claims to relief raised in the notice of motion beyond those four to which I have already referred, can, in my opinion, be characterised as frivolous or vexatious for that reason. 4 After Higgins J pronounced judgment in respect of possession on 16 December 1999, it was entered on 20 December 1999. Then, on 19 June 2000, a writ of possession was issued out of the Court directed to the Sheriff of the Australian Capital Territory requiring him to cause the company to have possession of the premises in question. Shortly after the writ was issued the applicants filed the motion the subject of the orders now sought to be appealed. Possession was ultimately obtained by the company in September 2000. 5 So far as the claims in pars 5, 6 and 7 of the motion are concerned, they seek orders challenging the steps taken on behalf of the liquidator to give effect to the judgment for possession pronounced by Higgins J on 16 December 1999. By par 24 of the notice of motion, also dismissed by the Chief Justice, the claim is made for a declaration that the writ of possession dated 19 June 2000 is null and void. 6 In my opinion, the present proceedings, in so far as they seek to challenge the validity of the writ of possession, to which effect has long since been given, and the antecedent procedural steps followed by the Sheriff involve a challenge to orders of Miles CJ which are interlocutory so that leave to appeal is necessary. 7 In my opinion, this is not a case in which leave should be granted. There is an absence, in my view, of any grounds demonstrated by Mr Martin for thinking that the writ of possession issued on 19 June 2000 might be defective. There is no reason for thinking that even if there were any deficiency in the mechanical steps which were the subject of the unsuccessful claims for relief in pars 5, 6 and 7 of the motion, that deficiency could lead to the applicants being entitled to any useful relief: the applicants do not suggest in those proceedings that they still have any rights with respect to the property to which they can now be restored. 8 In my opinion, it is plain that the appeal cannot succeed. I would refuse the necessary leave to appeal that the applicants must have if they are to take the proceedings further. I would also separately uphold the respondents' application that the proceedings be dismissed as incompetent. 9 DOWSETT J: I agree. 10 GYLES J: I agree. I think it should be made clear that what has been said applies to pars 20 and 22 of the notice of motion as well, encompassing those as part of the procedural steps to which reference is made. I would also like to add that I think the joinder of Mallesons Stephen Jaques to these proceedings is plainly an abuse of the process of the Court. There is no possible basis upon which they should have been added. They were not parties below and that course of conduct should not be tolerated. 11 DRUMMOND J: The order of the Court will therefore be that the document entitled "Supplementary Notice of Appeal" filed by Mr and Mrs Martin on 18 October 2000 be dismissed. In view of the ordinary rule for which there is no reason to depart from, the applicants will be ordered to pay the respondents' costs of and incidental both to the respondents' notice of motion and to the supplementary notice of appeal. In the absence of agreement from the applicants to the quantification and fixing by agreement of the costs, there will be no further orders in respect of costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Dowsett and Gyles.