FEDERAL COURT OF AUSTRALIA Macchia v Nilant (Trustee) [2006] FCA 213 PRACTICE AND PROCEDURE – summary dismissal – Anshun estoppel – special circumstances ‑ abuse of process – relitigation of issues BANKRUPTCY – statements of affairs – whether to be treated as having been filed at a date earlier than it was actually filed Bankruptcy Act 1966 (Cth) Pt X, ss 30, 30(1), 30(1)(b), 33(1)(c), 33A, 33A(3), 54, 54(1), 55(3A), 146, 149, 149(1), 149(3), 188, 306, 306(1) Bankruptcy Legislation Amendment Act 2002 (Cth) Federal Court Rules O 20 r 2(1) Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246 cited Re; Rohde (1993) 42 FCR 149 cited Nilant v Macchia (1997) 78 FCR 419 cited Macchia v Nilant [2000] FCA 353 cited Nilant v Macchia (2000) 104 FCR 238 cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied Dumitrasku v Official Receiver in Bankruptcy [2003] FMCA 477 distinguished Baral v Official Trustee in Bankruptcy [1999] FCA 77 distinguished Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 10 applied Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669 applied State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81‑423 applied Webster v Lampard (1993) 177 CLR 598 cited MARIO SILVERIO MACCHIA v CHARLES PHILIPPE LOUIS NILANT (As trustee of the bankrupt Estate of Mario Silverio Macchia) WAD 127 OF 2005 SIOPIS J 13 MARCH 2006 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 127 OF 2005 BETWEEN: MARIO SILVERIO MACCHIA APPLICANT AND: CHARLES PHILIPPE LOUIS NILANT (as trustee of the bankrupt Estate of Mario Silverio Macchia) RESPONDENT JUDGE: SIOPIS J DATE OF ORDER: 13 MARCH 2006 WHERE MADE: PERTH THE COURT ORDERS THAT: 1 The applicant's application filed on 2 June 2005 and amended on 1 August 2005 is dismissed. 2 The applicant is to pay the costs of the respondent's notice of motion and of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 127 OF 2005 BETWEEN: MARIO SILVERIO MACCHIA APPLICANT AND: CHARLES PHILIPPE LOUIS NILANT (as trustee of the bankrupt Estate of Mario Silverio Macchia) RESPONDENT JUDGE: SIOPIS J DATE: 13 MARCH 2006 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application by the respondent by notice of motion for the summary dismissal, alternatively a permanent stay of an application made by the applicant on 2 June 2005. The respondent relies upon O 20 r 2(1) of the Federal Court Rules ('the Rules') and the inherent jurisdiction of the Court. 2 The applicant in the substantive application is a discharged bankrupt. He was declared bankrupt by a sequestration order made by this Court on 16 September 1991 and was, pursuant to the provisions of s 149 of the Bankruptcy Act 1966 (Cth) ('the Act'), discharged from bankruptcy with effect from 22 January 1997 ‑ being three years after the date on which his statement of affairs was filed with the Registrar in Bankruptcy. 3 By his application, the applicant, who is self‑represented, seeks relief under ss 30, 306 and 33A of the Act directed towards altering the date of discharge of his bankruptcy to a date earlier than 21 March 1995. 4 For the reasons that follow, I am of the view that the respondent's motion succeeds and the applicant's application should be dismissed. Statutory Framework 5 Section 30(1) of the Act states: 'The Court: (a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and (b) make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.' 6 Section 306(1) of the Act states: 'Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.' 7 Section 33A of the Act states: '(1) This section applies to a statement of affairs that was filed for the purposes of ss 54, 55, 56B, 56F or 57 by a bankrupt, or by a person who later became a bankrupt. (2) If the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed. (3) The Court cannot make an order that would result in the person being discharged from bankruptcy earlier than 30 days after the order is made. (4) In this section: filed includes presented, lodged or given.' 8 Section 33A of the Act was included in the Act by means of the Bankruptcy Legislation Amendment Act 2002 (Cth) and took effect on 5 May 2003. 9 On 16 September 1991, the date of the sequestration order, s 54(1) of the Act stated: 'Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he is notified of the bankruptcy: (a) make out and file in the office of the Registrar for the District in which the sequestration order was made a statement of his affairs; and (b) furnish a copy of the statement to the trustee.' 10 On the date of the sequestration order, s 149(1) of the Act provided that subject to that section, a person who became bankrupt was by force of that section discharged from bankruptcy on the expiry of three years from the date of bankruptcy. However, on 1 July 1992, s 149 of the Act was amended to provide, inter alia, that bankruptcies then on foot, or commencing thereafter, would be discharged at the end of three years from the date on which the bankrupt filed a statement of affairs. 11 Accordingly, the 1992 amendments to s 149 of the Act meant that the date on which the bankrupt filed a statement of affairs in compliance with s 54(1) of the Act, became of crucial importance to the determination of the date of the bankrupt's discharge pursuant to s 149 of the Act. The Application 12 The applicant's application, in its amended form, reads as follows: '1. The Applicant applies for an order Pursuant to section 306 and or 30 or 33A of the Bankruptcy Act 1966. 2. A declaration pursuant to section 306 of the Act. Where there has been an attempt to file a statement of affairs by the bankrupt. The statement of affairs filed with the Trustee on the 7th October 1991 to comply with section 54(1)of the Bankruptcy Act, be treated as having been filed in the office of the Registrar in bankruptcy on the 7th October 1991 in compliance with the requirements of section 54(1) of the Bankruptcy Act. 3. In the alternative to paragraph 2, [a] declaration, finding of fact pursuant to section 30 of the Act. The statement of affairs signed by the applicant and delivered by hand to respondent as trustee of the bankrupt on the 7 October 1991 be treated as having been filed in the office of the Registrar in Bankruptcy on the 7th October 1991. [I]n compliance with the requirements of section 54(1) of the Bankruptcy Act. 4. Further In the alternative to 2 and 3 the applicant applies for an order under section 33A of the Bankruptcy Act 1966 (Cth) that the applicants further statement of affairs dated 6th April 1993 sent to the trustee by the applicants solicitors, which was later filed by the Trustee on the 21 January 1994 is to be treated as having been filed with the Official Receiver two years four months and 30 days before making of this order. 5. There be no order for costs each to pay their own.' (original emphasis) 13 The respondent relies upon his affidavit sworn on 14 July 2005 in support of his application for summary dismissal. The applicant relies upon affidavits sworn on 2 June 2005 and 4 July 2005 respectively in opposition to the respondent's application for summary dismissal. 14 In his affidavit sworn 2 June 2005, the applicant deposes that shortly after he became bankrupt on 16 September 1991, he was advised by the respondent that an employee of the respondent, Mr Richard Cacho, would be in charge of his file and that he was to liaise with Mr Cacho in the future. The applicant says that by letter dated 2 October 1991, the respondent requested that he deliver to the respondent his statement of affairs. The applicant says further that on Monday, 7 October 1991 he delivered, enclosed in a big brown envelope, a statement of affairs dated 7 October 1991 as well as other books and records, to Mr Cacho who, the applicant says, was, at that time, standing outside the respondent's office building at 524 Hay Street, Perth. It is that statement of affairs to which the applicant refers in par 2 and par 3 of the application referred to above, and on which he relies for the relief claimed in par 4 of the application. 15 The applicant also refers in his affidavit sworn 4 July 2005 to three other statements of affairs that he says he made. The first was prepared on 16 July 1991 in connection with a proposed composition with his creditors under Pt X of the Act which was ultimately unsuccessful. The second statement of affairs was prepared by the applicant on 4 September 1991 as part of a debtor's petition which he filed with the Registrar in Bankruptcy. The third statement of affairs is a statement of affairs dated 6 April 1993 which the applicant says, but the respondent denies, was sent by the applicant's then solicitors to the respondent on or about that date. A statement of affairs dated 6 April 1993 was ultimately filed with the Registrar in Bankruptcy on 21 January 1994. The respondent says that this document is not the same document which the applicant alleges was sent on 6 April 1993 to his office. The applicant's period of bankruptcy was measured by reference to 21 January 1994. 16 The date on which the applicant was discharged from bankruptcy assumes its significance for the applicant in these circumstances. On 21 March 1995, the applicant's mother died intestate. The principal asset of the deceased estate is real property located in North Perth. Unless the applicant can obtain an order from this Court which has the effect of changing the date of discharge of the applicant from bankruptcy, any interest which the applicant may have in the property comprising his mother's deceased estate, will be regarded as after acquired property and would be property available to his creditors. 17 By the relief sought in pars 1, 2 and 3 of his application the applicant seeks to have his actions of 7 October 1991, when he says he handed a signed statement of affairs to the respondent's employee, treated as constituting compliance with s 54(1) of the Act. If he were to succeed in obtaining this relief, the date of discharge of his bankruptcy would be measured as three years from 7 October 1991. His discharge from bankruptcy would then predate the death of his mother. 18 The applicant explained during argument that, notwithstanding the actual wording used in par 4 of the application, the relief sought pursuant to s 33A of the Act in his application is founded on his belief that, by handing the statement of affairs to the respondent's employee on 7 October 1991, the statement had been filed at a time before it was actually filed. He thereby seeks under s 33A of the Act to have that statement of affairs treated as having been filed in October 1991, with the attendant consequence that the date of discharge from his bankruptcy would occur in October 1994. The relief claimed under s 33A of the Act is, therefore, also founded on the factual allegations that he made and provided to the respondent a statement of affairs on 7 October 1991. 19 The substantive application is not the first application brought in this Court by the applicant with the object of adjusting the date of discharge of his bankruptcy to a date prior to the death of his mother. The applicant has made two previous applications to this Court directed towards that end. The first such application was heard and determined by Lee J in 1997 and the second application was heard and determined by Lee J in 2000. The respondent to each of those applications was the respondent in this application. In respect of each application Lee J found in favour of the applicant. However, the respondent appealed against each of Lee J's decisions to the Full Court and was successful in each of the appeals. 20 One of the grounds on which the respondent relies for his claims for summary dismissal of the application is founded on the history of previous litigation between the same parties. Litigation history between the parties 21 It is necessary to examine briefly the history of litigation between the parties to understand the context in which the respondent brings his claim for summary dismissal or permanent stay. The matters set out below are based upon the reasons which were delivered in the course of this litigation. 22 The applicant was made bankrupt by a sequestration order made by this Court on 16 September 1991. The respondent was appointed as the trustee of the bankrupt estate of the applicant, pursuant to that order of the Court. 23 The sequestration order was made in these circumstances. On 16 May 1991 a creditor of the applicant presented a petition to the Court seeking a sequestration order against the estate of the applicant. On 16 July 1991, the applicant and his brother signed a joint authority under s 188 of the Act authorising the trustee to take control of their joint and several property and to convene a meeting of their creditors under Pt X of the Act. On 16 July 1991 the applicant and his brother gave the trustee a statement of their respective affairs and a joint statement of their joint affairs. The meeting of creditors rejected the composition which was offered by the applicant and his brother and resolved that the debtors be required to lodge their petitions in bankruptcy within 7 days. On 4 September 1991 the applicant and his brother each presented their respective petitions to the Registrar in Bankruptcy. Each petition was accompanied by a statement of affairs verified by an affidavit sworn on 4 September 1991. The Registrar in Bankruptcy, pursuant to s 55(3A) of the Act, referred the applicant's petition to this Court for a direction whether to accept or reject the petition. On 16 September 1991, this Court directed the Registrar in Bankruptcy to refuse to accept the applicant's petition and made a sequestration order against the estate of the applicant on the creditor's petition. 24 In October 1995 the applicant filed the first application directed towards adjusting the date of discharge of his bankruptcy to a date prior to the date of his mother's death. By that application, the applicant sought a declaration that he was discharged from bankruptcy on 17 September 1994, or alternatively, an order under s 33(1)(c) of the Act abridging the time limit under s 149 of the Act for the discharge of the applicant from the bankruptcy resulting from the sequestration order made by the Court on 16 September 1991. The respondent trustee objected to the discharge of the applicant from bankruptcy and the hearing of the application was adjourned for some time whilst the objections were taken on review. 25 The applicant's application was heard on 8 April 1997 and was opposed by the respondent. On 11 April 1997 Lee J delivered his judgment (Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246) and ordered that: '…the period of bankruptcy limited by s149 of the Act be abridged from 3 years to 1 year and 1 month from the date of filing of the statement of affairs. As a result, [the applicant] will be discharged from bankruptcy as at 22 February 1995.' 26 Lee J accepted that the date on which the statement of affairs had been filed with the Registrar in Bankruptcy was 21 January 1994. 27 The applicant was legally represented before Lee J. The case advanced by the applicant was that the applicant had provided to the trustee a statement of his affairs in July 1991 as part of the proposed Pt X composition, and in September 1991 as part of the debtor's petition, and that the respondent was therefore not prejudiced by the applicant's failure to provide a statement of affairs earlier than, on the applicant's version, 6 April 1993, or on the respondent's version, shortly before 21 January 1994. The applicant submitted that as the respondent had access to the July 1991 and September 1991 statements of affairs, he had sufficient information about the applicant's affairs to conduct the bankruptcy. No case was advanced on behalf of the applicant that the applicant had provided the trustee with a statement of affairs on 7 October 1991. 28 In his reasons, after reviewing the evidence, Lee J said at 4‑5: 'On 6 October 1992 the Trustee advised Mr Macchia that he had not received a copy of Mr Macchia's statement of affairs as required by s 54 of the Act and informed Mr Macchia that pursuant to s 149 of the Act discharge from bankruptcy would not occur until 3 years from the filing of the statement of affairs. On 9 October 1992 Mr Macchia replied to the Trustee that he had provided a statement of affairs on 16 July 1991 and again on 4 September 1991 and asked that the Trustee obtain a copy of the statements from the Registrar as soon as possible. In a letter to the Trustee dated 23 October 1992 Mr Macchia again referred to his debtor's petition and the statement of affairs and that he had "lodged" with that petition... By letter dated 28 October 1992 the Trustee informed Mr Macchia that he had been made bankrupt on a creditor's petition...and not on the debtor's petition with which the statement of affairs had been supplied. The Trustee asked Mr Macchia to file a statement of affairs. On 3 December 1993 the Trustee applied to the Court for an order that Mr Macchia be committed for contempt pursuant to sub‑s 54(3) of the Act for failure to file a statement of affairs as required by paragraph 54(1)(a). Before the application came on for hearing Mr Macchia filed a statement of affairs on 21 January 1994. Pursuant to s149 of the Act discharge from bankruptcy will occur on 22 January 1997 if the period of bankruptcy were not extended by an objection lodged by the Trustee.' 29 At 9‑10 of his reasons, Lee J said: 'In the present case the bankrupt has been the author of his own misfortune in that he continued to maintain, in the face of the Trustee's advice that he was obliged to file a further statement of affairs, that he had complied with the requirements of the Act when he presented his own petition and by declining to comply with the Trustee's request that he do so.' 30 Apart from the statement of affairs, which was filed with the Registrar in Bankruptcy on 21 January 1994, Lee J referred in his judgment only to two statements of affairs, made by the applicant, namely, the statement of affairs of 16 July 1991 (provided as part of the attempts to reach a composition under Pt X), and the statement of affairs of 4 September 1991 (provided with the debtor's petition). His Honour made the orders abridging the time relying upon the provisions of s 33(1)(c) of the Act and the case of Re; Rohde (1993) 42 FCR 149 ('Rohde'). 31 Before Lee J the applicant argued that there had in fact been compliance with s 54(1) of the Act in that the statement of affairs had been filed with the Registrar in Bankruptcy as part of the debtor's petition on 4 September 1991, being a date within 14 days of the sequestration order, albeit before the date of the sequestration order. Lee J rejected that argument, holding that on a proper construction, s 54(1) of the Act required that the statement of affairs be filed within 14 days after the date of the making of the sequestration order, and not 14 days before the making of that order. 32 The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act. 33 The Full Court said at 428: 'The result is that, in our opinion, the present matter has proceeded on an assumption which did not have a secure legal foundation. We will order that the matter be remitted to the learned trial judge for further consideration. It may be that some other basis can be advanced [apart from s 33(1)(c)] for treating one or other of the statement of affairs filed by the respondent as having being duly filed in accordance with the Act.' 34 It is plain from the judgment that the reference to 'one or other of the statement of affairs' is a reference to the two statements of affairs which had been referred to by Lee J in his judgment, namely, the statement of affairs which was prepared and filed as part of the Pt X proceedings and the second statement of affairs which accompanied the debtor's petition presented to the Registrar in Bankruptcy by the applicant. 35 There is no reference in either of the decisions of Lee J or the Full Court referred to above, to any claim or argument being advanced by the applicant on the basis that he made and supplied the respondent with a statement of affairs on 7 October 1991. 36 After the Full Court decision in 1997, the applicant in March 1999 applied for and was given leave to file a further amended application. The application was heard on 12 October 1999. At that time, there were in existence further objections by the respondent to the discharge of the applicant from bankruptcy. The hearing was adjourned part heard. However, on 17 December 1999, and before the hearing of the application was resumed the respondent withdrew his objections to the applicant's discharge from bankruptcy. The withdrawal of the objections meant that the applicant was discharged from bankruptcy pursuant to s 149 of the Act with effect from 22 January 1997 ‑ that being three years from the filing of the statement of affairs with the Registrar in Bankruptcy. However, as at 17 December 1999, the applicant had been treated as an undischarged bankrupt for almost three years beyond the date on which the bankruptcy terminated under the Act. 37 Thus, by the time the application came on for the resumed hearing before Lee J on 23 February 2000 the applicant had been discharged from his bankruptcy. At the resumed hearing the applicant further amended the application. In that amended application, the applicant relied upon s 30(1)(b) and s 306 of the Act to seek a declaration that a 'proceeding' under the Act had not been invalidated by a formal defect or irregularity. The 'proceeding' which the applicant sought to be validated was the statement of affairs prepared in relation to the Pt X proceedings, or alternatively the statement of affairs dated 4 September 1991 accompanying the debtor's petition. The declaration he sought was that either of those statements of affairs be deemed to have been filed in the office of the Registrar in Bankruptcy on 17 September 1991. 38 On 27 March 2000, Lee J, granting relief under s 306(1) of the Act, ordered that the statement of affairs signed by the applicant on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar in Bankruptcy, and a copy furnished to the trustee of the sequestrated estate of the applicant, on 16 September 1991 in compliance with the requirements of s 54(1) of the Act (Macchia v Nilant [2000] FCA 353). 39 The respondent appealed that decision and the Full Court upheld the appeal finding that s 306 of the Act does not confer a power to treat a failure to comply with s 54(1) of the Act as compliance with it. The case is reported as Nilant v Macchia (2000) 104 FCR 238. 40 The Full Court held that relief under s 306(1) of the Act was not available because the bankrupt had not made any attempt to comply with s 54(1) of the Act which required a filing of a statement of affairs after the date of sequestration. 41 Weinberg J said at 249, at [54]: 'In the present case, the plain fact is that the appellant did not file a statement of affairs in accordance with the requirements of s 54(1) of the Act, but assumed erroneously that a statement of affairs previously filed with the Registrar on a debtor's petition would serve that purpose. There was no act on the part of the appellant which could be described as even purported compliance with the requirements of the section. His failure to comply with the requirements of s 54(1) does not give rise to a "proceeding under this Act" which would be invalidated but for the fact that any defect or irregularity is merely formal. In these circumstances, there is no proceeding capable of being brought before the Court on an objection concerning that invalidity.' (original emphasis) 42 At 251, at [64] and [65], Weinberg J said: 'Where there has been an attempt to comply with the obligations of s 54(1), whether within the fourteen day period specified, or on some other occasion thereafter, it is entirely apt to speak of that attempt being a "proceeding under this Act", and being capable of being regarded by the Court as "not invalidated" by reason of any formal defect or error. Section 306(1) in such a case is to permit the period of bankruptcy to run from the date of purported compliance with the Act, or perhaps some later date. It follows that the bankruptcy will not continue for an unconscionably long period merely because of some relatively minor failure on the part of the bankrupt to comply with the strict requirements of s 54(1). Regrettably, it seems to me that s 306(1) cannot be invoked in the circumstances of the present case, where no step whatever has been taken by the bankrupt in purported compliance with the requirements of s 54(1). There is simply no "proceeding" or "step" taken in the course of the bankruptcy which is capable of being the subject of an order that it not be invalidated.' 43 Carr J at 246, at [36] said: '3. In the present matter, where there has been no attempt to comply with s 54 until (at the earliest) 6 April 1993, there was no proceeding which by the operation of s 306 could escape invalidity due to formal defect or irregularity.' 44 There was no case made by the applicant at the hearing of the second application before Lee J in 2000, nor at the hearing before the Full Court in 2000, that the applicant had made a statement of affairs dated 7 October 1991 and delivered it to the respondent. Indeed, the finding by the Full Court that the applicant made no attempt to make a statement of affairs until 6 April 1993 at the earliest, is at the heart of the Full Court's decision. It was a crucial finding on which the whole decision rested. Further background 45 In addition to the legal proceedings referred to above, the applicant also took proceedings against the respondent for compensation in respect of the manner in which the respondent had carried out his duties as trustee of the applicant's bankrupt estate. These proceedings included an action against the respondent in the Supreme Court of Western Australia for the negligent conduct of the applicant's bankruptcy administration. 46 On 20 May 2002, the applicant and the respondent entered into a deed of release in respect of mutual claims made by each of the parties against each other in the various proceedings then pending. Pursuant to the deed of release the respondent agreed to pay the applicant a settlement sum. Clause 4 of the deed of release is particularly relevant to these proceedings. Clause 4 provides as follows: '4. BAR TO PROCEEDINGS 4.1 Party not to take action Subject to clause 4.3, a Party must not at any time take or continue any action, suit or proceeding, or make any claim or demand of any nature against the other Party relating to, or arising out of, or connection with, the Dispute or Macchia's bankruptcy except that the terms of this Document do not affect, limit or restrict: (a) any issue between the Parties in relation to the estate of Macchia's mother; (b) the existing rights of any party to receive a distribution or benefit from that estate; or (c) any right of Nilant or Macchia's creditors in relation to any property or income of Macchia which Macchia failed to disclose to Nilant and which would have been vested in Nilant as his trustee in bankruptcy or been available to his creditors.' The respondent's notice of motion 47 The respondent sought the summary dismissal or a permanent stay of the claims made in the substantive application by relying on the inherent power of the Court to prevent an abuse of process, alternatively upon O 20 r 2(1) of the Rules. The gravamen of the respondent's argument is that by his current application the applicant is attempting to relitigate a matter which has already been litigated. 48 Further, as to the claim made by the applicant in par 4 of his amended application, the respondent submitted that this claim should, in any event, be summarily dismissed because the applicant's claim discloses no reasonable cause of action. 49 In support of his motion for summary dismissal, the respondent relied upon his affidavit sworn on 14 July 2005. Annexed to that affidavit are two affidavits which the respondent says were filed in relation to the first application heard by Lee J in April 1997. One of the affidavits was sworn by the applicant on 20 March 1997, and the other was sworn by Mr Cacho on 3 April 1997. In his affidavit the applicant made reference at par 5 and par 6 to the meeting with Mr Cacho. The relevant paragraphs read as follows: '5. On 7 October 1994 [sic] I delivered to Charters & Co all documentation requested in the letter of 2 October 1991. I delivered this documentation by hand. Included in this documentation was another completed statement of affairs. 6. I remember the matter clearly as I can recall upon attending Charters & Co Mr Richard Catcho [sic] whom I was dealing with at Charters & Co, was outside on the street. He was talking to an older gentleman to whom I was introduced by Mr Catcho [sic] as being Mr Richard Catcho's [sic] father. I handed him all the documents which included my statement of affairs as he said there was no need to go upstairs to his office. This was done on 7 October 1991.' 50 In the affidavit sworn by Mr Cacho, he said: '2. I cannot recall ever having met the Bankrupt in the street outside my office and him giving me documents. On one occasion I may have met the Bankrupt in the office and then walked out of the building with him at the end of the meeting. 3. I cannot recall the Bankrupt ever having given me a statement of affairs dated on or about the 7 October 1991. If this had occurred I would have had the statement of affairs filed with the Registrar in Bankruptcy and put a copy on the Charters bankruptcy file relating to the Bankrupt ("the Charter's File"). 4. I recall on a number of occasions asking the Bankrupt for a statement of affairs following the sequestration order made against him. His argument to me was that he had already provided a statement of affairs with his Part X proposal and with his debtors petition and that he did not have to provide another one.' 51 The respondent says in his affidavit that Mr Cacho was never cross‑examined on this affidavit and no claim was advanced by the applicant at any of the four previous hearings that there had been a statement of affairs made by the applicant on 7 October 1991. 52 The respondent also deposed it was oppressive that he should have to become involved in yet another proceeding brought by the applicant in respect of the filing of the statement of affairs. He said that this bankruptcy administration had been ongoing since 1991, and almost five years had elapsed since the Full Court decision in 2000. The respondent's submissions in support of the motion 53 The respondent submitted that the applicant was barred from bringing his application by virtue of cl 4 of the deed of release. 54 The respondent also submitted that the question whether the applicant had made a statement of affairs that was capable of comprising a 'proceeding' under s 306 of the Act was res judicata. This was because the Full Court decided in 2000 that there was no statement of affairs made by the applicant which was capable of constituting a 'proceeding' for the purposes of s 306 of the Act. 55 The respondent submitted further that the applicant is precluded from bringing the claims made in the application by reason of the principles enunciated in the case of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 ('Anshun'). The respondent submitted that the claims now made properly belonged to the earlier proceedings. This is because the claims are based on a factual allegation, namely, that the applicant made and provided to the respondent a statement of affairs on 7 October 1991, which was of crucial significance to the issues in contention in the previous litigation, and that it was open to the applicant to have advanced such a claim because there was evidence available to be presented. It was further submitted that the legal representatives of the applicant elected not to advance any case founded on the existence of a statement of affairs allegedly made on 7 October 1991 in any of the previous proceedings. It was, therefore, unreasonable for the applicant not to have made the factual allegation now made in this application, as part of any one or more of the previous proceedings. 56 The respondent also submitted that the claims made in the substantive application rendered the application an abuse of process. 57 Further, the respondent submitted that the applicant's claim made by reference to s 33A of the Act in par 4 of the substantive application, was, in any event, misconceived. It was submitted that although s 33A of the Act was enacted after the conclusion of the proceedings in 2000, the section did not assist the applicant. This was because s 33A(3) of the Act contains a restriction which precludes the Court from making an order which would result in the discharge of the bankruptcy occurring at a date earlier than 30 days after the making of the Court order. It was not possible, therefore, for the applicant to obtain an order which would treat the alleged 7 October 1991 statement of affairs as having been filed in October 1991, because this would have the effect of backdating the discharge to a date in October 1994. Relief under s 33A of the Act was, therefore, only open to a bankrupt who had not yet been discharged from bankruptcy. The applicant's submissions in opposition to the motion 58 The applicant submitted that the deed of release was not a bar to the applicant's substantive application because the application was not an action 'against' the respondent because it only sought a declaration. Further, the applicant submitted that the application was not barred because it related to the right of the applicant to receive a distribution or benefit from his mother's estate, and the deed of release did not prevent bringing proceedings seeking relief of that nature. 59 The applicant also submitted that in the previous litigation in this Court he had not advanced a claim based on the allegation that there had been a statement of affairs dated 7 October 1991. Accordingly, there had been no judgment on such a claim and therefore there was no res judicata. 60 Further, the applicant submitted that the Anshun estoppel principles had no application to this case because the doctrine only applied when the new application, if successful, would result in a judgment which conflicts with an earlier judgment. He said that because the judgments which had been given in his favour by Lee J in 1997 and 2000 had both been appealed and overturned, there was, therefore, no judgment which was extant with which any judgment that may be made in his favour on his new application could conflict. 61 The applicant also stated that he had not advanced claims founded upon the existence of a statement of affairs dated 7 October 1991 in the previous proceedings because he had acted on legal advice. This, he submitted, should operate as 'a special circumstance' which would preclude the Anshun estoppel principles operating against him. 62 In relation to his claim at par 4 in the application, the applicant relied upon the case of Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477 ('Dumitrasku') in support of his submission that the Court has power to make an order under s 33A of the Act which would have the effect of backdating the date of his discharge to a date in October 1994. The applicant also relied on the authority of Baral v Official Trustee in Bankruptcy [1999] FCA 77 ('Baral') in support of that proposition. 63 I record that the applicant also submitted that the respondent's motion was an abuse of process on the ground that it was brought for a collateral purpose. As is evident from what follows, I do not accept that submission. Reasoning 64 It is well established that the Court's power to grant summary relief should be exercised with great caution. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 Dixon J observed: '…A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination…' 65 I would not dismiss the applicant's application on the grounds that the claims made in the current application are within the ambit of cl 4 of the deed of release. It is arguable that on a proper construction of that clause, the applicant's substantive application relates to the applicant's right to receive a distribution or benefit from his mother's estate, and that the application is, therefore, not covered by the bar in the deed of release. 66 As to the respondent's arguments that these proceedings are res judicata, the claims made in these proceedings are founded upon a different allegation of fact which formed the basis for the claims which were considered by Lee J and the Full Court in 1997 and 2000. For this reason, I would also not summarily dismiss the application on the basis that the matter is res judicata (Anshun at 597). No argument was addressed to me that there was an issue estoppel in relation to the date of the first attempt made to comply with s 54 of the Act after the date of sequestration. 67 The Anshun estoppel principles have recently been considered by the Full Court of this Court in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 10 ('Wong'). The Full Court said that the doctrines of res judicata and issue estoppel are founded on the broad rules of public policy that a person ought not to be vexed twice for one and the same cause and that it was in the public interest that there be an end to litigation. At 17‑18, at [36]‑[37] the Full Court went on to say: '…It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceedings between the parties: Anshun at 602.' 68 Further, at 17, at [38] the Full Court said: '…As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558…' 69 What will be sufficient to constitute 'special circumstances' is not fixed and may involve a range of factors that bear upon the general discretion of the Court where justice requires the non‑application of the general principle (Wong at 18). 70 I do not accept the applicant's argument that the Anshun estoppel principles do not apply because the claims made in his current application would not conflict with any existing judgment as both of the decisions of Lee J in his favour were overturned on appeal. In my view, it is irrelevant to the operation of Anshun estoppel principles that the two first instance decisions were overturned on appeal. It does not follow that there are now no judgments with which the claims would conflict. Both of the Full Court decisions, and indeed, the decisions of Lee J, are based on findings of fact that during the period from the date of the sequestration order to 6 April 1993 at the earliest, there was no attempt made by the applicant to file a statement of affairs. As previously mentioned, this finding is central to the Full Court's decision in 2000. The claims made by the applicant in the application are directed at asking the Court to make factual findings which are directly contrary to the factual findings made in the previous proceedings, and to grant relief (previously denied) on the basis of that conflicting finding in the fact. 71 In my view, this is a circumstance where the Anshun estoppel principles are capable of applying. 72 It is then necessary to decide whether the factual issue, namely, whether the applicant made and provided the respondent with a statement of affairs on 7 October 1991, was an issue which properly belonged to the subject matter of the previous applications and appeals heard and determined in 1997 and 2000 respectively. In my view, this factual issue was an issue which properly belonged to the subject matter of earlier proceedings. Each of those proceedings was vitally concerned with the question of when the applicant filed or attempted to file his statement of affairs. The Full Court's decision in 2000, in particular, turned on the factual finding that there had been no attempt made by the applicant to file a statement of affairs between the date of the sequestration order and 6 April 1993 at the earliest. The applicant was legally represented in each of the proceedings and there was evidence available to the applicant's legal representatives upon which such claims could have been advanced had the applicant's legal representatives elected to do so. This factual issue was so relevant to those proceedings that it was unreasonable for the applicant not to have advanced the claim now made, as part of those previous proceedings. As a consequence of that issue not being advanced in the four previous proceedings, the resources of the courts involved in hearing and determining those four proceedings were expended upon determining the applicant's claim on a different factual foundation from that now sought to be advanced. One of the major policy considerations underlying the Anshun estoppel principles is that the resources of the State should not be expended on retrying cases that have already been decided. 73 Accordingly, in my view, the applicant should be precluded from pursuing the claims made in his application, unless there are special circumstances which would cause me in the exercise of my discretion not to apply the Anshun estoppel principles in his case. 74 In determining whether there are any special circumstances which would cause me to exercise my discretion against applying the principles, I would distinguish between the claims in pars 1, 2 and 3 of the application, and the claim in par 4 of the application. 75 In oral submissions, the applicant raised as a special circumstance the fact that the applicant acted on legal advice in not pursuing the claims based on the existence of a statement of affairs of 7 October 1991. Further, although it was not raised by the applicant in argument, I should also have regard to the circumstance that the respondent is acting in these proceedings in a representative capacity as a trustee, and so it is possible that he may not be 'vexed' by the relitigation of this matter in the same way as would be the case, if the litigation was brought against him in a personal capacity. 76 In my view, for the following reasons, these circumstances do not justify the exercise of my discretion not to apply the principles in relation to the claims made in pars 1, 2 and 3 of the application. Firstly, the fact that the claim now sought to be advanced, was not advanced in the earlier proceedings on legal advice will not, in my view, normally be sufficient to amount to a 'special circumstance'. In fact, it will usually be the case that a client relies upon legal advice as to which claims should be pursued in a legal proceeding. Advice as to which claims to pursue is a matter of professional judgment by a legal representative. There may be any one of a number of reasons why a legal representative may advise a client that a claim should not be pursued – for example, there may be no merit in the claim, the claim may undermine the credibility of other claims or of the applicant. Here there is no explanation as to why the claim was not pursued. I do not, therefore, regard the fact that the applicant acted on legal advice as comprising a 'special circumstance' in this case. 77 Secondly, although the degree of vexation which may be caused to a professional trustee, being sued in a representative capacity, could well be regarded as being of a different and less onerous character, than if he was sued in his private capacity, there are other considerations which must be taken into account in this case. There have already been four previous proceedings in which the question of the making of the statement of affairs has been litigated. The respondent would have had to expend his time and effort in participating in those proceedings. Further, the bankruptcy administration has been going on for 14 years and five years has elapsed since the Full Court decision in 2000. I do not, therefore, regard this circumstance, whether alone or in combination with the other circumstance already mentioned, as comprising a special circumstance that would cause me to exercise my discretion not to apply the Anshun estoppel principles. 78 I am conscious of the caution that should be exercised in summarily dismissing a claim, but in light of my views, as expressed above, I am satisfied that this is a clear case where Anshun estoppel principles apply and I would accordingly dismiss the claims set out in pars 1, 2 and 3 of the application. 79 In relation to the claim in par 4 of the application, in determining whether to exercise my discretion, it is also appropriate to consider the additional factor that s 33A of the Act was enacted after the decision of the Full Court in 2000, and was, therefore, not considered in any of the four previous proceedings. 80 This additional circumstance does not, however, cause me to take a different view in relation to whether the Anshun estoppel principles should be applied to the claim in par 4 of the application, to that expressed in relation to the claims made in pars 1, 2 and 3 of the application. As discussed below, in my view, this claim by the applicant misconstrues s 33A of the Act and the relief which is available under that section. It is devoid of merit. Further, the claim is based on the same factual allegation which is the basis of the other claims, and so is open to the same considerations that apply to the claims in pars 1, 2 and 3 of the application. 81 For the same reasons as expressed above in relation to claims 1, 2 and 3, I am of the view that the claim set out in par 4 of the application should also be dismissed. 82 Although, in light of the findings I have made, it is not necessary to do so, I now deal with the respondent's argument that the claims in the application are, in any event, an abuse of process. 83 In the case of Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669 French J at 20 at [66] said: 'The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted litigation of a dispute already judicially determined. As another Full Court said in Coffee v Secretary, Department of Social Security (1999) 86 FCR 434 (at 443): "An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding does not give rise to res judicata or issue estoppel; see Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393‑394. Whether it does depends on the facts of the particular case." ' 84 French J went on to say at 21 at [69]: 'The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 54 Carr J). The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court…' 85 French J approved the following observations of Giles CJ in the case of State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81‑423 at 64,089: '…whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate [an] issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice…' 86 French J also adopted as matters relevant to the determination of whether there was an abuse, a non exhaustive list set out by Giles CJ in that case. These factors were: '(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to full litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, from and including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of ‑ (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process'. 87 I would, on the application of these factors, have found that the applicant's substantive application was an abuse of process. 88 Firstly, the factual issue as to the time at which the applicant first made a statement of his affairs for the purposes of the Act was of crucial importance in the earlier proceedings. Secondly, there was every opportunity available to the applicant to have advanced in the earlier proceedings a claim based on the factual assertion now made in the application. Thirdly, there are factual findings made in the earlier proceedings which are contrary to the factual position now being asserted in this application. As previously mentioned, the finding that no statement of affairs was made prior to 6 April 1993 at the earliest, was crucial to the Full Court's decision in 2000. Fourthly, the nature and the object of the relief claimed in the application, is substantially the same as in the earlier proceedings. Each of the earlier proceedings was concerned with the question of if, and when, the applicant had filed a statement of affairs under the Act. Fifthly, there is no plea by the applicant of fresh evidence, nor could there be such a plea. There was evidence available to the applicant and his legal advisers at the time of the hearing of the first application in 1997 before Lee J upon which the claims now made could have been advanced in the earlier proceedings. Sixthly, if the Court were now to make factual findings along the lines claimed in the current proceedings, the factual findings on which the courts acted and upon which decisions were made in the earlier proceedings would be undermined. This would have a tendency to adversely impact upon the finality of judicial determination and public confidence in the administration of justice. Further, the respondent has already been involved in four previous proceedings relating to the issue of the filing of the statement of affairs; and five years have elapsed since the Full Court decision in 2000. 89 Finally, on performing an overall balance, I take into account that had the statement of affairs of the applicant been filed with the Registrar in Bankruptcy shortly after his bankruptcy, the applicant would, in the absence of objection from the respondent, have been discharged from bankruptcy before the death of his mother. I am conscious, therefore, that the consequence for the applicant of not being able to vary the date of discharge of his bankruptcy is potentially, depending upon the extent of his interest in the property comprising his mother's estate, seriously prejudicial. However, I also take into account each of the six factors referred to above. I am aware that the power to dismiss an application summarily for abuse of process is sparingly exercised, but, in my view, the balance favours the dismissal of the applicant's application on the grounds of abuse of process. 90 I turn now to the respondent's argument that the applicant's claim in par 4 is, in any event, misconceived. It is also not necessary to decide this issue, but as the matter was argued and I will briefly set out the view to which I would have come. It is a well established principle that a court should not summarily dismiss an application on the basis that there is no reasonable cause of action unless it is clear that the case is bound to fail (Webster v Lampard (1993) 177 CLR 598 at 602‑603). In my view, the applicant's claim is bound to fail. 91 I accept the submission by the counsel for the respondent that the Dumitrasku case does not assist the applicant. In that case, the applicant was still a bankrupt at the time that he brought the application. The applicant's primary ground of relief was founded on s 306 of the Act. The applicant sought declarations that a statement of affairs had been filed with the Official Receiver in compliance with s 54 of the Act on 3 October 2000; and that by the operation of s 149 of the Act he was discharged from bankruptcy on 4 October 2003. The Federal Magistrate granted the relief claimed pursuant to s 306 of the Act. 92 The Federal Magistrate also dealt obiter with the claim which the applicant had made in reliance on s 33A of the Act. He said that he would have been prepared to grant relief under that section had he been required to do so. However, what is significant in that case was that the applicant was still bankrupt at the time of the making and hearing of the application. Here the applicant had been discharged from bankruptcy for more than eight years when the application was made. It is plain from the terms of s 33A(3) of the Act that relief under s 33A of the Act would not be available to a person who has already been discharged from bankruptcy at the time of making an application for that relief. Accordingly, the case of Dumitrasku relied on by the applicant has no application to this issue. Further, the Baral case relied upon by the applicant deals with annulment of bankruptcy and has no application to the construction of s 33A of the Act. 93 I, therefore, grant the relief sought by the respondent and dismiss the application. The applicant is to pay the respondent's costs of the application and the motion. I certify that the preceding ninety‑three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 13 March 2006 The applicant appeared in person Counsel for the Respondent: Mr F Carles Solicitor for the Respondent: Carles Solicitors Date of Hearing: 5 October 2005 Date of Judgment: 13 March 2006