Zegarac v Pitcher Partners [2009] FCA 889

FEDERAL COURT OF AUSTRALIA

Zegarac v Pitcher Partners [2009] FCA 889

SLAVICA ZEGARAC v PITCHER PARTNERS

VID 577 of 2009

SUNDBERG J

14 AUGUST 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 577 of 2009

GENERAL DIVISION

BETWEEN: SLAVICA ZEGARAC

Applicant

AND: PITCHER PARTNERS

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 14 AUGUST 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal from the decision of Justice Tracey given on 28 July 2009 be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 577 of 2009

GENERAL DIVISION

BETWEEN: SLAVICA ZEGARAC

Applicant

AND: PITCHER PARTNERS

Respondent

JUDGE: SUNDBERG J

DATE: 14 AUGUST 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from the judgment of Justice Tracey given on 28 July 2009 by which he dismissed notices of motion filed by the applicant. 2 The substantive relief sought by the applicant was annulment of her bankruptcy. By notice of motion she had sought three orders: (a) that the case be heard by a jury; (b) that there be discovery of documents by the respondent (Pitcher Partners), Paul Dellios (trading as Dellios West & Co) and ITSA; (c) that subpoenas be issued for the attendance of witnesses. 3 In the course of proceedings before his Honour the applicant asked him to withdraw from further hearing on the ground of apprehended bias. She relied on four matters that she said had arisen in the course of the hearing. (a) the judge had refused to require counsel for the respondent and the creditor to go into the witness box when required by her; (b) the judge had referred to the proceeding as a game; (c) he refused to require counsel to answer verbal interrogatories administered by her; and (d) he had made rulings which prevented her rehearsing various aspects of the history of the proceeding. 4 Justice Tracey explained at pars 4, 6 and 7 of his reasons why he had taken the course complained of in relation to the first, third and fourth matters. As to the second, he said he had not referred to the proceeding as a game, but had said that no party would be permitted to play games in the proceeding. 5 The judge posed the apprehended bias test in accordance with the High Court's decision in Johnson v Johnson (2000) 201 CLR 488 at [11], and said that none of the matters relied on by the applicant, either individually or collectively, supported the conclusion that he might not bring an impartial and unprejudiced mind to the matter. He declined to disqualify himself. 6 Justice Tracey refused the application for a trial by jury. He referred to s 39 and s 40 of the Federal Court of Australia Act. The latter provides that a judge may direct a trial by jury where the ends of justice appear to render it expedient to do so. 7 His Honour noted that there were at present no pleadings which disclosed the basis on which the annulment was sought. He said that on the material before him, it was not possible for him to make the judgment required by s 40 in order to depart from the general rule under which proceedings are conducted by a judge alone. He refused that part of the motion. 8 As to discovery, his Honour noted that the applicant sought all documents and books bearing her name or property name (6 Wadham Road, Ivanhoe), or referring to her or her property, kept by each of the three entities referred to earlier plus the Official Receivers Office. 9 His Honour observed that the application was unlimited as to time and would cover material created after the sequestration order in May 2006. There were no pleadings and no detailed affidavit against which the potential relevance of the documents sought could be assessed. He refused this part of the motion, saying that the applicant was really seeking to review a whole range of documents with a view to determining whether she had a case on annulment. 10 The motion as to subpoenas was refused. The witnesses were not named. The applicant declined to identify them because she expected the Court would not issue the subpoenas if she did, in view of an experience she had had in another Court. 11 To obtain leave to appeal leave an applicant must generally show (a) that the decision sought to be appealed is attended with sufficient doubt to warrant reconsideration by the Full Court, and (b) that substantial injustice would result if leave were refused, supposing the decision to be wrong. These two tests bear upon each other. In some cases the degree of doubt may be so slight that "supposing the decision to be wrong" may be unrealistic. 12 In my view none of the decisions made by Justice Tracey is attended with sufficient doubt to warrant reconsideration. The matters said to demonstrate bias would never pass the test propounded in Johnson. 13 No doubt attends the Judge's dismissal of the application for trial by jury. All I need say here is that the application was quite premature in the absence of pleadings disclosing the ambit of the controversy. The Judge could have taken no other course but to dismiss it. 14 The subpoenas and discovery applications relate to matters of procedure, in respect of which the Court is especially reluctant to grant leave. In any event, the Judge's decisions on these points are attended by no doubt. 15 As to the second limb of the leave test, even making the unrealistic assumption that the decisions were wrong, no substantial injustice will be caused by refusing leave. When the case is properly pleaded and the issues become clear, the applicant can seek leave to issue subpoenas, have discovery, and seek a trial by jury, on proper material. 16 Leave to appeal is refused with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.