Brown v Shanahan (Trustee) [2011] FCA 329

REASONS FOR JUDGMENT 1 Raymond Wayne Brown applies to set aside an order made by default on 30 July last year, dismissing proceedings which he had commenced against the present respondents, John Gervase Shanahan and John Richard Park, as trustees of the bankrupt estate of Elizabeth May Forster. Mr Brown lived in a de facto relationship with Ms Forster for a period commencing in 1989 and ending in about 2006. As is implicit in what I have already said, Ms Forster is now in bankruptcy. About six weeks prior to the parties separating, Ms Forster inherited a property near Rockhampton from her deceased father. 2 At some time thereafter, Mr Brown commenced proceedings for relief, pursuant to s 286 of the Property Law Act 1974 (Qld) (the "Property Law Act"), based upon contributions which he claimed to have made during their period of co-habitation, in caring for their children and to their own maintenance. Prior to the bankruptcy, a consent order was made in the Supreme Court of Queensland pursuant to which Mr Brown acquired an interest in the property. However, after bankruptcy, the trustee successfully applied to have that order set aside. It is accepted that, for all relevant purposes, the order was validly set aside. A Judge of the Supreme Court also ordered that the proceedings be transferred to this Court. The basis for that order appears to have been that the respondents were trustees in bankruptcy, and therefore, as it was thought, the proceedings could only proceed in this Court. I am not sure that I accept the correctness of that perception. It appears to be a quite difficult question which depends, in the end, upon the proper characterisation of rights conferred by the Property Law Act. That matter has not been addressed before me in any detail. I also have substantial difficulty in understanding the precise nature and extent of Mr Brown's claim, so that my capacity to form any realistic assessment of his prospects of success is limited. I assume, for present purposes, that his cause of action is not completely without merit. However I suspect that he has an inflated view as to the extent to which he is likely to benefit from the proceedings, assuming that he is still able to proceed pursuant to the Property Law Act, whether in this Court or in a state court. 3 Following receipt by this Court of the file, the Registrar wrote to Mr Brown on 26 July 2010, advising him that the matter had been listed for directions before me at Brisbane on 30 July 2010. It seems that the solicitors for the respondents had previously advised him of the listing by email dated 7 July 2010. Mr Brown was told that if he wished to appear by telephone, he could make application to do so. By that time, he had already written to the Registrar (on 10 July 2010), advising that he had received certain information from the solicitors for the respondents, and asking a number of questions. He indicated that future communications should be sent to an email address. Subsequently, by letter dated 26 July 2010 (although I am not sure when it was received) he forwarded to the Registrar a document headed "Notice of Response With Prejudice and All Rights Reserved". It stated: Thank you for your notice dated 26/07/2010, as this is a NOTICE, and it is served to my email address it is my understanding that I have 14 days to respond. Please file this notice in reply dated 27/07/2010 under Court File No. (P)QUD 261/2010. Thank you 4 There is a pencil note suggesting that this was emailed on 27 July. It seems to have been attached to a document headed "Take Notice Notice to Reissue & Notice to Show Cause-Clarify With Prejudice and All Rights Reserved". In the document Mr Brown took issue with a number of steps taken by the Registrar, asserting that he did not consent "to your terms and conditions in relation to the above Documents and Listed above within the above documents dated 6/07/2010". He also complained that he had been referred to as "Raymond Brown" rather than as "Raymond Wayne Brown", and said that he would not accept any document or documents "not correctly addressed to the person Raymond Wayne Brown". He also said that he would not consent: …to accept any document or documents of any kind from any entity as a lawfully valid document or a document of good faith that has no identified - authenticated, subscribed full name of author, (Identified full name of the Person) lawful - authenticated subscribed signature and personal address and contact details. NOTE: The meaning of lawful signature will be as defined under Blacks Law Signature, the act of writing ones name upon a deed note contract or other instrument either to identify or authenticate it or give it validity as ones own act the Name so written is called a signature. 5 At para 5, he said: I, Raymond Wayne Brown, hereby request that if the notice of listing is in fact intended for the person Raymond Wayne Brown, will the Deputy District Registrar Murray Belcher reissue the document and amend the court file accordingly. Furthermore, will Deputy District Registrar Belcher then serve the notice again in accordance with the process of law. 6 He then referred to other correspondence and asked for "clarification", including clarification as to why the Deputy Registrar should not consent to pay a fee of $100,000 for every answer relating to this "show cause and clarify document that is misleading, a deception, or supports, condones, upholds a breach of any process of law or act of bad faith". The document continued in the same vein. It is not necessary that I set out all of the paragraphs. It concludes by asking that the Registrar show cause why he "should not be commercially and personally liable to Punishment fees on demand of $1 000 000.00 should any Court action proceed against the person Raymond Wayne Brown without the lawful notification process" and "show cause why Deputy District Registrar Belcher should not be held commercially and personally liable to Punishment fees on demand of $1 000 00.00, should any Court action proceed against the person Raymond Wayne Brown in his absence". 7 Mr Brown did not appear on 30 July. I therefore ordered that the application be dismissed pursuant to O 35A of the Federal Court Rules. As I recall, at that stage I had not seen the documents which he had sent and to which I have referred. I also do not know whether they had been received in the Registry at that time. I do not know whether the Registrar informed Mr Brown of my orders, but I now know that the respondents caused a copy of them to be sent to him on or about 7 September 2010. It is accepted by counsel for Mr Brown that the orders were received at about that time. 8 At some time in December, Mr Brown apparently spoke to his legal advisers. He claims that he then first became aware that his application had been struck out. He seemed to suggest that he had previously assumed that proceedings by the respondents had been struck out. However he did not make an application to set aside my order until 2 March this year. His notice of motion seems to have been received on 2 March, and issued on 10 March. 9 There was, therefore, a considerable delay between his becoming aware of the order and applying to set it aside. Although he asserts that he did not realize that his proceedings had been struck out, and suggests that he thought that the proceedings in question were proceedings by the present respondents, I simply do not understand any of that. I find great difficulty in giving it any weight. It seems that there were other proceedings on foot in the Supreme Court at that time. I accept that the existence of such proceedings may have explained some of his delay in making the application to set aside my order, but it cannot in any sense be taken as a full explanation of the delay until March of this year. Mr Brown asserts that he did not understand that if he failed to appear, the Court might dismiss his application. I have some considerable difficulty in accepting that assertion in view of the content of the documents sent to the Registrar. They suggest a quite defiant attempt to avoid responding to the process of the Court. 10 In an application to set aside orders, the applicant must demonstrate that he or she has a case of some kind which is worthy of ventilation. He or she must also explain the failure to appear, and any delay in applying to set aside the relevant order. I have said that, for present purposes, I am willing to accept that he has raised some sort of arguable case. However I am not satisfied that he has explained his failure to appear. The documents suggest that he made a deliberate decision not to appear, probably for tactical reasons. However, even if I were willing to accept that he had offered an acceptable explanation, I would refuse the application upon the ground of his delay alone. With the benefit of hindsight, I suspect that it would have been better had I made a self executing order, giving him an opportunity to appear. However I did not do so at the time, and the respondents are entitled to proceed upon the basis of the order which I made. Because of my concern with the process which I adopted, I am inclined to think that had he made a prompt application to set aside the order, I would have acceded to it, notwithstanding the reservations which I have about his explanation for not appearing. However, given the considerable delay, it seems to me to be impossible to infer a genuine desire to go on with the proceedings. He is simply engaging in delaying tactics. In the circumstances, I find that I am not satisfied on the balance of probabilities that he has offered a reasonable and acceptable explanation for his failure to make prompt application to set aside the order upon becoming aware of it early in September 2010. 11 In those circumstances, the application will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.