FEDERAL CIRCUIT COURT OF AUSTRALIA
SMITH & ANOR v JARVIE & ANOR	[2015] FCCA 2483	

Catchwords: 
BANKRUPTCY – Vexatious proceeding order – whether the requirements of the legislation satisfied – exercise of discretion.	

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), ss.5, 79, 88N, 88Q
Federal Circuit Court Rules 2001 (Cth), r.1.06, 6.01
Federal Court of Australia Act 1976 (Cth), s.37AO
Vexatious Proceedings Act 2008 (NSW), s.8(7)(b)	

Attorney-General (NSW) v Chan [2011] NSWSC 1315
Attorney-General v Wilson [2010] NSWSC 1008
Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Fuller v Toms [2015] FCAFC 91
HWY Rent Pty Ltd v HWY Rentals (in liq) [2014] FCA 65
HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449
Jones v Cusack [1992] HCA 40
Kowaski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 37
Luke v Kwon [2011] NSWSC 36
Official Trustee in Bankruptcy v Gargan (No 2) [2008] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Re Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 224
Siteberg v Maples [2010] NSWSC 1344
Smith v Jarvie [2014] NSWSC 1823	

First Applicant:	Michael John Morris Smith	

Second Applicant:	HWY RENTALS PTY LTD (IN LIQUIDATION)	

First Respondent:	Russell Alan Jarvie	

Second Respondent:	Mark Damian Charles Roufeil	

File Number:	SYG 423 of 2015	

Judgment of:	Judge Altobelli	

Hearing date:	29 June 2015	

Date of Last Submission:	29 June 2015	

Delivered at:	Wollongong	

Delivered on:	23 September 2015	

REPRESENTATION
Counsel for the First and Second Applicants:	Mr Marshall	

Solicitors for the First and Second Applicants:	Gillis Delaney Lawyers	

First Respondent:	No appearance	

Second Respondent:	No appearance	

ORDERS
(1)	Pursuant to s.88Q(2)(b) of the Federal Circuit Court Act 1999 (Cth), the First Respondent is prohibited from instituting proceedings in this Court.
(2)	That the First Respondent pay the Applicants' costs on an indemnity basis.
(3)	Leave be granted to the Second Respondent to approach Chambers for the purposes of relisting this matter in order to make submissions as to costs, at any time within 21 days of this date. 

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 423 of 2015
Michael John Morris Smith	
First Applicant

HWY RENTALS PTY LTD (IN LIQUIDATION)	
Second Applicant

And

Russell Alan Jarvie	
First Respondent
Mark Damian Charles Roufeil	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	By way of an application filed 20 February 2015, the Applicants seek a vexatious proceeding order against the First Respondent (Mr Jarvie) pursuant to s.88Q of the Federal Circuit Court of Australia Act 1999 (Cth) (hereafter referred to as ‘the Act’).  That section states:
	(1)  This section applies if the Federal Circuit Court of Australia is satisfied:
	(a)  a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
	(b)  a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
	(2)  The Federal Circuit Court of Australia may make any or all of the following orders:
	(a)  an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;
	 (b)  an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
	 (c)  any other order the Federal Circuit Court of Australia considers appropriate in relation to the person.
	Note:          Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
	(3)  Subsection (2) applies in relation to proceedings in the Federal Circuit Court of Australia other than proceedings under the Family Law Act 1975 .
	Note:          Part XIB of the Family Law Act 1975 deals with vexatious proceedings under that Act.
	(4)  The Federal Circuit Court of Australia may make a vexatious proceedings order on its own initiative or on the application of any of the following:
	 (a)  the Attorney-General of the Commonwealth or of a State or Territory;
	(b)  the Chief Executive Officer;
	(c)  a person against whom another person has instituted or conducted a vexatious proceeding;
	(d)  a person who has a sufficient interest in the matter.
	(5)  The Federal Circuit Court of Australia must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
	(6)  An order made under paragraph (2)(a) or (b) is a final order.
	(7)  For the purposes of subsection (1), the Federal Circuit Court of Australia may have regard to:
	(a)  proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
	(b)  orders made by any Australian court or tribunal; and
	(c)  the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
	including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

Background
2.	The Applicants are a company and its official liquidator.  Mr Jarvie was a director of the company. He was declared bankrupt on the company's petition on 9 May 2014 by orders of Registrar Hannigan in other proceedings in this Court.  The Second Respondent (Mr Roufeil) is Mr Jarvie's Trustee in Bankruptcy. He filed an appearance submitting to the Orders of this Court save as to costs. Mr Roufeil is joined in aid of enforcement of any Order for costs made in the proceedings against Mr Jarvie.

Service
3.	On 9 March 2015 Registrar Segal made findings and Orders in regard to the service upon Mr Jarvie in the following terms:
	1. Pursuant to rules 1.06 and 6.04 of the Federal Circuit court Rules 2001: 
	(a)	Finds that the application and a copy of the affidavit of Michael John Morris MSith sowrn [sic] 17 february2015 were served on the first respondent on 3 March 2015; 
	(b)	Orders that service up to 4 May 2015 of any document on the first Respondent in these proceedings may be effected by: 
	(i)		Leaving the document in a sealed envelope addressed to the first Respondent at 4 Jopling Street, North Ryde, in the State of New South Wales; and 
	(ii)	Sending the document by an email addressed to the first Respondent at the email address: hwyrussell@gmail.com. 
	And that service of the document upon the first respondent shall be taken to have occurred at the end of 7 days after steps in (i) and (ii) above have taken place.
4.	Mr Jarvie is thus found to have been served with the application in these proceedings on 3 March 2015. He has failed to attend Court on any of the occasions when the matter was listed.

Evidence
5.	The evidence relied on at the final hearing by the Applicants is as follows:
•	Affidavit of Michael John Morris Smith, sworn 17 February 2015 and filed 20 February 2015; (this is the primary affidavit and is accompanied by an exhibit folder)
•	Affidavit of Nicholas Anthony James Dale, sworn 4 May 2015 and filed 4 May 2015; (this affidavit annexes a copy of Mr Roufeil's affidavit sworn 9 February 2015 and read in Federal Court of Australia proceedings no. NSD 108 of 2015, together with its exhibit folder)
•	Affidavit of Nicholas Anthony James Dale, sworn 19 May 2015.

Relevant history
6.	During Mr Jarvie's directorship, the Second Applicant (the Company) was ordered by Registrar Wall to be wound up in insolvency on 3 October 2012 at the suit of the Deputy Commissioner of Taxation.  The First Applicant (Mr Smith) was appointed the Official Liquidator of the Company.
7.	Mr Smith brought Federal Court proceedings to recover the Company's assets (chiefly a fleet of more than 50 motor vehicles) from Mr Jarvie and another company directed by him with a similar name to the Company. On 14 December 2012, Emmett J made delivery up orders against Mr Jarvie for the motor vehicles. Mr Jarvie disobeyed those Orders. On 8 August 2013, Jacobsen J ordered that Mr Jarvie pay equitable compensation, other amounts, and legal costs to the Company. The costs were assessed on 23 August 2013 by Registrar Segal.
8.	On 13 November 2013, Mr Jarvie filed an application to seek leave to appeal Jacobson J's Orders out of time. That application was dismissed by Perry J on 7 April 2014.
9.	On 8 May 2014, Perry J made vexatious proceedings Orders under s.37AO of the Federal Court of Australia Act 1976 (Cth) against Mr Jarvie that he must not institute any proceedings in the Federal Court without leave of the Court.
10.	Notwithstanding that Order, on 25 July 2014 Mr Jarvie, without leave, filed proceedings against Mr Roufeil in the Federal Court.  Justice Foster dismissed those proceedings on 20 August 2014.
11.	On 12 February 2015, McCallum J in the Supreme Court of New South Wales, made vexatious proceedings Orders against Mr Jarvie under s.8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), prohibiting Mr Jarvie from instituting proceedings in New South Wales.

Summary of conduct
12.	McCallum J said in Smith v Jarvie [2014] NSWSC 1823 at [32]:
	…the vexatious proceedings appear to have been brought by Mr Jarvie to stymy [sic] the attempts of an official liquidator appointed by the Federal Court to fulfil his statutory obligations and to cause the liquidator intense vexation and inconvenience ...
Her Honour’s comments apply with equal force to this case.

The Law
13.	The purpose of a vexatious proceedings order is not to punish the vexatious litigant for past "litigious misdeeds" but to shield the Court and the public: Pascoe v Liprini [2011] NSWSC 1484 at [12].
14.	The Order will not be lightly made owing to the serious impact on the right to access to Courts: Kowaski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 37 at 380.  It should be regarded as an extreme remedy: see McCallum J at [12].  To grant the Orders would mean to limit Mr Jarvie’s access to an exercise of the judicial power of the Commonwealth by this Court.  Such access is an important civic right: Fuller v Toms [2015] FCAFC 91 at [30].

15.	“Vexatious proceeding” is defined in s.88N(l ) of this Court's Act to mean:
	“vexatious proceeding” includes: 
	(a) a proceeding that is an abuse of the process of a court or tribunal; and 
	(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and 
	(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and 
	(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 
	“vexatious proceedings order” means an order made under subsection 88Q(2). 
16.	Section 88Q(l)(a) provides:
	(1) This section applies if the Federal Circuit Court of Australia is satisfied: 
	(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals;
17.	The relief sought here is under s.88Q(2)(b), which provides:
	(2) The Federal Circuit Court of Australia may make any or all of the following orders: 
	…
	(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
18.	The Applicants have standing pursuant to s.88Q(4)(c).
19.	The Court must not make a vexatious proceedings Order without giving the person an opportunity to be heard: s.88Q(5). Mr Jarvie was served in accordance with Orders made by Registrar Segal.  As a general proposition, procedural fairness means that a litigant must be given the opportunity to be heard, but there is no requirement for that opportunity to be taken up: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42].
20.	This Court can have regard to proceedings conducted in any other Australian Court at any time, Orders made in such Court, and the person’s overall conduct in such proceedings: s.88Q(7).
21.	“Proceeding” is defined in s.5 of the Act to include an incidental proceeding in the course of or in connection with a proceeding including an appeal.
22.	Whilst there have been vexatious proceedings Orders made against Mr Jarvie in two other Courts, this Court must still satisfy itself that:
a)	Mr Jarvie has frequently instituted or conducted  vexatious proceedings  in Australian courts;
b)	that such proceedings were either:
i)	an abuse of process; or
ii)	a proceeding institute to harass or annoy, to cause delay or detriment or for another wrongful purpose; or
iii)	instituted or pursued without reasonable ground.
23.	To do this, the  Court  can have regard  to the  findings  of other  Courts  in other proceedings: Attorney-General (NSW) v Chan [2011] NSWSC 1315 at [33].
24.	“Frequently” is a relative term. These cases are directly on point:
a)	Jones v Cusack [1992] HCA 40, where Toohey J was deciding a case at the suit of the Registrar of the Court where Mrs Cusack filed two summons and four other applications concerning the legality of paper money and banking. At [14], His Honour was satisfied this was frequently, and then made an Order that Mrs Cusack shall not begin any proceedings in the Court without leave;
b)	Siteberg v Maples [2010] NSWSC 1344, where Ball J at [31] said:
	It is uncommon for most individuals to be involved in court proceedings. Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently. 
c)	Attorney-General v Wilson [2010] NSWSC 1008 per Davies J at [12] to [14], where His Honour said: 
	The important thing to note is that the individual number of proceedings can be quite small but still satisfy the word 'persistently'... There is no reason to think that such an approach should not be taken in relation to the word 'frequently'.
d)	McCallum J in Luke v Kwon [2011] NSWSC 36 at [29] to [33] followed the Maples v William decision and found that three sets of proceedings brought by Mrs Kwon was enough to constitute ‘frequently’.
e)	The Full Court of the Federal Court in Fuller v Toms at [114], referring to the test of frequency said there was “no numerical threshold” prescribed by the provision.
25.	What constitutes an abuse of process, harassment, annoyance, delay, wrongful purpose and without reasonable grounds are all matters of fact or mixed fact and law to be found in each different matter, and in particular each particular “proceeding” (as defined broadly under s.5 of the Act). The findings of two other judges in prior matters between the same litigants is a useful factual resource for this Court.

The vexatious proceedings complained of
26.	In this matter Mr Jarvie employed some specific and similar abusive devices in his proceedings, being:
a)	filing and relying upon documents that contained the forged signature of Susan Therese Ryan, the Registrar of the Local Court at Richmond, New South Wales. Those fake signatures were purportedly placed as justice of the peace witnessing the “deponent’s” signature on affidavits;
b)	making false statements in “affidavits” purportedly under oath (Ms Ryan’s false signature giving effect to the “oath”);
c)	deploying the false affidavits to gain a step or an advantage in Court;
d)	making false statements to the Court including otherwise in writing to achieve a delay in proceedings;
e)	bringing fictitious or false claims;
f)		bringing hopeless claims.

Proceeding No. 1
27.	On 13 November 2013, Mr Jarvie filed an application he signed to commence proceedings number NSD 2326 of 2013 in the Federal Court against the Applicants here.  Those proceedings were eventually taken to be an application for leave to appeal out of time against the orders made by Justice Jacobson on 8 August 2013 against Mr Jarvie, his mother and another company.  That application was accompanied by three purported affidavits: two by Mr Jarvie and one by his mother, Patricia Anne Jarvie (Mrs Jarvie). Each was apparently witnessed by Ms Ryan. Ms Ryan's signatures were forged: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (Perry J at [32] and [33]); affidavit of Susan Therese Ryan, sworn 20 March 2014 at [9] to [12].
28.	That case was dismissed by consent on 7 April 2014 by Perry J. The existence of those proceedings prevented the Applicants here from enforcing Jacobson J's Orders for a period of about 6 months: Smith v Jarvie (McCallum J at [20]).
29.	The case “…was not instituted or presented in good faith but for an improper purpose”: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [108]).

Proceedings No. 2
30.	On 7 February 2014, Mr Jarvie sought to resist a change to the trial date of NSD 2326 of 2013 in writing by email to the Court.  The email falsely stated that his mother (his supposed co-appellant) was in Tasmania on 7 February.  Perry J found that Mrs Jarvie was actually seen that day by Ms Ryan mowing the nature strip at premises at North Richmond.  Perry J found Mr Jarvie falsely made the interstate claim to “mislead the Court”: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [41]).
31.	This constitutes a specific instance of conducting proceedings in a vexatious manner to gain delay.

Proceedings No. 3
32.	On 25 March 2014, Mr Jarvie left a document purporting to be a subpoena issued in NSD 2326 of 2013 at Mr Smith’s residence.  It sought the same documents that Mr Smith had already produced to the Court on 14 March 2014 pursuant to a Notice to Produce served on Mr Smith, also at his home.  Mr Smith was at all times represented by his lawyers, Gillis Delaney, whose address was his address for service for the purposes of proceedings NSD 2326 of 2013.
33.	This conduct of serving a notice and a purported subpoena repetitive of the notice on Mr Smith at his home in circumstances where his address is kept secret (as a liquidator) and he had lawyers acting on the record, was done with the intention to “harass and intimidate Mr Smith” and showed “deliberateness and planning” by Mr Jarvie: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [44]).

Proceedings No. 4
34.	On 5 December 2013, Mr Jarvie filed a statement of claim against Mr Smith to commence proceedings number 2013/366659 in the Local Court at Parramatta.
35.	The pleading falsely claimed storage fees of $20 per day from Mr Smith for the fleet of motor vehicles Mr Jarvie was ordered on 14 December 2012 by Emmett J to deliver up to Mr Smith, the spurious claim allegedly totalling $8,520.  The pleading was purportedly verified by Mr Jarvie's affidavit, again bearing the forged signature of Ms Ryan: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [61] and [115]).
36.	The purpose of filing the pleading was to harass Mr Smith.

Proceedings No. 5
37.	On 13 January 2014, Mr Jarvie filed two documents in the Local Court proceedings:
a)	an application  for default judgment  that  incorporated  a purported  Affidavit  of Debt.  Ms Ryan’s false signature appeared as Mr Jarvie’s witness;
b)	an affidavit of service of the Statement of Claim. Once again, Mr Jarvie's signature was "witnessed" by a forgery of Ms Ryan's signature of Ms Ryan.
38.	Default judgment was thus obtained in the Local Court on 15 January 2014.
39.	The ‘evidence’ that Mr Jarvie gave was that service of the Statement of Claim was effected on 9 December 2013.  This was false.  Mr Smith was never served: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [62]).
40.	That this was done to harass or intimidate Mr Smith is supported by Mr Jarvie’s actions in obtaining the issue of a Bankruptcy Notice against Mr Smith reliant upon the Local Court’s certificate of judgment and the leaving of such notice at Mr Smith’s home.  The default judgment had an immediate effect on Mr Smith’s credit rating, i.e. his credit cards were frozen.

Proceedings No. 6
41.	On 28 February 2014, Mr Smith had the Local Court proceedings permanently stayed and the default judgment set aside.
42.	On 26 March 2014, Mr Jarvie made an ex-parte application by Notice of Motion in the Local Court proceedings.  It was supported by an affidavit purportedly sworn on 10 March 2014.  The Magistrate's comment on the file are that this was an “alleged fraudulently attested affidavit in support, purportedly sworn on 10 March 2014”: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [70]). 
43.	The Magistrate made Orders preventing Mr Jarvie having access to the Court’s file without prior written leave of a Magistrate.
44.	Whilst it is unclear exactly what relief Mr Jarvie was seeking in his Motion, and what the “affidavit” in support said, this Court infers that as the Local Court Magistrate rejected both for filing without troubling Mr Smith, the documents amounted to an abuse of process such as to warrant the extraordinary non-access Order.

Proceedings No. 7
45.	Whilst the issue of a Bankruptcy Notice from AFSA may not constitute a “proceeding” for the purpose of s.5, service of it on 20 February 2014 did cause Mr Smith to commence proceedings to set the Bankruptcy Notice aside in the Federal Court of Australia in NSD 216 of 2014.
46.	Mr Jarvie did not accede to the relief Mr Smith sought and left it to Mr Smith to prosecute his application to set aside the Bankruptcy Notice. Perry J found the issue of the Notice was itself an abuse of process: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) (Perry J at [73] to [76]).  As Mr Jarvie had the Bankruptcy Notice issued, he was in reality the aggressor in the matter.  Mr Jarvie’s persistence with the defence in the Federal Court of a Bankruptcy Notice knowingly fraudulently obtained, was also overall vexatious conduct “in proceedings conducted in any Australian court …”: s.88Q(7)(c).

Proceedings No. 8
47.	On 25 July 2014, Mr Jarvie made an application in the Federal Court in proceedings NSD 763 of 2014 against Mr Roufeil. He did not first seek that Court’s leave, notwithstanding Perry J's Orders of 8 May 2014.  A copy of the application and affidavit are annexed to Mr Dale's second affidavit.  The application was doomed to fail. A reading of it discloses this.  This Court infers Mr Jarvie intended to delay and distract Mr Roufeil in the performance of his trusteeship by bringing this case.  The case was dismissed by Foster J by consent with an Order for indemnity costs in a sum certain.  Mr Jarvie, on that occasion (only) was represented by Counsel (on a direct access basis).

Proceedings No. 9
48.	On 23 November 2012, Mr Jarvie appeared in person before Emmett J in NSD 892 of 2012.  It was the return of Mr Smith’s application to recover the Company’s assets (which application was filed in the wind up suit, NSD 892 of 2012).  Mr Jarvie obtained Orders that he be able to bring an appeal on the Company’s behalf against the Registrar’s Order winding the Company up.  On 5 December 2012 Mr Jarvie then filed an appeal and supporting affidavit.  A copy of those documents are annexed to Mr Dale's second affidavit.  There were no proper grounds disclosed to set aside the winding up Order in either document.  Those documents are in evidence.  Worse, the “affidavit” again bears the forged signature of Ms Ryan as witness.
49.	This was yet another example of a vexatious proceeding brought by Mr Jarvie. It caused the Deputy Commissioner of Taxation to have to appear on 7 December 2012 to resist the appeal and have it dismissed by Emmett J.  It also caused delay for Mr Smith, as he had to await the outcome of that appeal before pressing on with his recovery action and the liquidation of the Company.

Exercise of discretion
50.	The Court is satisfied that the criteria set out in s.88Q have been met.  This means that this Court’s discretion to make a vexatious proceedings Order is enlivened.
51.	In Official Trustee in Bankruptcy v Gargan (No 2) [2008] FCA 398 at [12], Perram J discussed factors relevant to the exercise of discretion:
	Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise. 
52.	This paragraph has been cited with approval in several other cases.  The impression formed by the Court from the evidence before it is that Mr Jarvie’s conduct had a deliberate element to it.  His actions appear to have gone beyond mere lack of judgment.  His failure to appear in the present proceedings means, at the very least, that he has not availed himself of the opportunity to make submissions about how the Court should exercise its discretion.
53.	The totality of the evidence leads the Court to conclude that it is both necessary and appropriate to make the Orders, even in circumstances where there are no current proceedings in this Court.  The nature and extent of Mr Jarvie’s abuses of process in other Courts results in the Orders extending generally, thus meaning Mr Jarvie will need to obtain the Court’s leave before the institution of any proceedings in this Court.  This is an Order necessary to protect the integrity of this Court’s processes.

Costs
54.	The Applicants also seek an Order that the First Respondent, Mr Jarvie, pay their costs on an indemnity basis.  Any such Order will be subject to the Second Respondent, the trustee of Mr Jarvie’s bankrupt estate, being granted leave to relist this issue before the Court in order to make submissions, at any time within 21 days after these reasons for judgment have been delivered.
55.	This Court has a broad discretion to order costs under s.79 of the Act.  The Applicants have been successful in these proceedings.  Indemnity costs involves a departure from the normal rule.  There must be some unusual feature of the case that warrants making an Order for indemnity costs: Re Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 224  (Justice Sheppard).  Do the circumstances of this case warrant the making of the Orders sought?  Was the behaviour of Mr Jarvie that led to the making of the Orders so unreasonable that the Applicants ought to be reimbursed for all their costs?  One could readily understand Mr Jarvie’s objection to such an Order if, for example, he had consented to the vexatious proceeding Order.  One might even be sympathetic to an assertion that he never intended to commence proceedings in this Court and thus, the present proceedings were unnecessary.  The fact is that Mr Jarvie chose not to participate in this case so the Court does not have any input whatsoever from him.  The evidence does suggest that his conduct in proceedings in other Courts has been of a standard that would normally warrant an Order for indemnity costs.  Indeed, that is the Order that Perry J made in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2).  It is also the Order for costs that the Court makes in this case.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:  

Date:		23 September 2015