Trkulja v Morton [2005] FCA 38 (2 February 2005)

Last Updated: 3 February 2005

FEDERAL COURT OF AUSTRALIA

Trkulja v Morton [2005] FCA 38

MILORAD TRKULJA v ROBERT WILLIAM MORTON and MURRAY BURTON ROUND

VID 1345 of 2004



SUNDBERG J
2 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1345 OF 2005

BETWEEN:	MILORAD TRKULJA APPLICANT
AND:	ROBERT WILLIAM MORTON FIRST RESPONDENT MURRAY BURTON ROUND SEVENTH RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	2 FEBRUARY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The Application herein be permanently stayed as against the first respondent pursuant to Order 20 rule 2 of the Rules.
2. The applicant pay the first respondent’s costs of the motion notice of which was filed on 24 January 2005.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1345 OF 2005

BETWEEN:	MILORAD TRKULJA APPLICANT
AND:	ROBERT WILLIAM MORTON FIRST RESPONDENT MURRAY BURTON ROUND SEVENTH RESPONDENT

JUDGE:	SUNDBERG J
DATE:	2 FEBRUARY 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 By application filed on 29 October 2004 the applicant seeks two orders:

"1. To set aside the extension of bankruptcy 2880 of 2000

2. An order prohibiting the use of all documents seized and obtained at the Oral examination of the bankrupt by the first respondent and his lawyers other than for the purposes of the bankruptcy."

The applicant filed two affidavits in support of his application. On 29 November 2004 Finkelstein J ordered that they and the exhibits to them be removed from the file and returned to the applicant. His Honour then ordered:

4. The applicant file proper affidavits in support of his application. Those affidavits should be limited to
(1) Improper use of documents taken from the Applicant
(2) Failure to account for $15,000
5. If the AAT application is withdrawn then the applicant can also bring his opposition to discharge ... application in this Court.

His Honour also ordered that any application by the first and seventh respondents (the applicant’s trustee in bankruptcy and the trustee’s solicitor) to strike out the applicant’s claim or for summary judgment be filed and served by a specified date, and that any such application be returnable before the Duty Judge on 31 January 2005.

2 Pursuant to par 4 of Finkelstein J’s order the applicant filed a fresh affidavit dealing with the following matters:

(a) the extension of the bankruptcy, claiming that the trustee extended the bankruptcy "on mere assertions only, without legal proof";
(b) the applicant’s arrangements for money totalling $138,938 to be transferred to Bosnia and Serbia on behalf of friends and customers;
(c) "blackmail" by the trustee;
(d) the trustee’s search of the applicant’s premises at 138 A’Beckett Street, Melbourne and 108/33 Jeffcott Street, West Melbourne;
(e) the trustee’s unlawful removal of three surveillance video tapes and invoices, and giving the tapes to the defendant in proceedings in another court;
(f) the trustee’s release of "my classified legal evidence" and "all my documents" to solicitors MM&R in the proceeding in the other court;
(g) the trustee’s removal of $15,713 from his National Bank accounts.

3 The affidavit concludes by seeking the following:

"(a) The extension of my Bankruptcy be set aside 2880 of 2000.

(b) The first respondent Mr Morton to return my monies unlawfully taken $15,713.90 ....
(c) This suppression is sought against the First respondent and the seventh respondent Mr Round from MM&R Solicitors that the evidence in my Examination in Federal Court be suppressed in any proceedings other than this bankruptcy.
(d) The first respondent is to return my computer and all Legal and Classified Files seized by the two search warrants."

4 By notice of motion filed on 24 January 2005 the trustee applied for summary judgment, alternatively for an order that the proceeding as against him be dismissed or stayed pursuant to Order 20 rule 2 of the Rules on the ground that it discloses no cause of action, is frivolous or vexatious, and is an abuse of process.

5 In support of the motion the trustee’s solicitor, Mr Nikolaidou, filed an affidavit deposing to the following:

(a) he is on record in the AAT as the solicitor acting for the trustee, has received no notification of discontinuance, and has been informed by a registry officer at the AAT that there has been no discontinuance, that so far as the AAT is concerned the matter is proceeding, and that she was trying to arrange a hearing date;
(b) the matters in [2] (a) and (b) relate to the extension of the bankruptcy;
(c) the "blackmail" allegations in [2](c) are the basis of an application in the Court in which the applicant seeks the removal of the trustee, judgment in which has been reserved (V614/2004, Application exhibited);
(d) the matters in [2](d) are the subject of proceedings in the Supreme Court of Victoria by the applicant against the trustee and his solicitor, Mr Nikolaidou (8389/2004);
(e) the matters in [2](e), so far as they concern the tapes, are the subject of the Supreme Court proceeding;
(f) the deponent is "unable to understand to what other documents or material the applicant is referring" in [2](e) and (f);
(g) The matter in [2](g) is the subject of the Supreme Court proceeding.

6 The Statement of Claim in the Supreme Court proceeding makes the following allegations:

(i) the "blackmail" events constituted intimidation, and breach of the trustee’s duty to act honestly, reasonably and impartially;
(ii) the search of the applicant’s premises constituted intimidation of the applicant and his mother, breach of the trustee’s duty, and assault of his mother;
(iii) taking possession of the tapes during the search, and delivering them to the defendant in other proceedings, constituted conduct engaged in for the improper purpose of injuring the applicant, intimidation, and breach of duty by the trustee;
(iv) conversion of the $15,000 removed from the National Bank accounts;
(v) defamation by the trustee.

7 It would appear from Finkelstein J’s order that his Honour informed the applicant that he could not pursue his opposition to his extension of bankruptcy in the Court unless he discontinued the AAT proceeding. Notwithstanding this, and his Honour’s order, the applicant’s fresh affidavit canvasses this issue. Where a litigant has been informed by a judge that he can pursue relief in the Court only if he discontinues an earlier proceeding for the same relief in another tribunal, and the judge makes an order in terms of par 5, it is in my view an abuse of process for the litigant to continue to pursue that relief without discontinuing.

8 Finkelstein J’s order 4(1) is prima facie to be read as pertaining to documents seized at the oral examination. See par 2 of the Application. The fresh affidavit does not deal with any such documents. It refers to tapes and invoices taken during the search, and to "Legal and Classified Files" seized pursuant to two search warrants. It also refers to "evidence" given in his examination in this Court, but not to any documents taken or seized during that examination. There is thus no evidence to support the misuse of documents claim.

9 If Finkelstein J’s order 4(1) is to be understood, despite the terms of the Application, as covering any documents taken from the applicant (whether or not at the oral examination), then the fresh affidavit does legitimately deal with such documents – tapes, invoices and legal and "classified" files. However, the complaints about the seizure of the tapes are the subject of current proceedings in the Supreme Court which were commenced before the instant Application.

10 The conversion claim (failure to account for the $15,000) is not within the scope of the Application. Why Finkelstein J’s order 4(2) encouraged the applicant to include this topic in his fresh affidavit does not appear. However, putting this to one side, the conversion claim is the subject of the Supreme Court proceeding.

11 In Moore v Inglis (1976) 9 ALR 509 at 513-514 Mason J said:

"Sir Gorell Barnes P in Logan v Bank of Scotland (No 2) [1906] 1 KB 141 at 150 ..., went on to say: ‘For instance, in this country, where two actions are brought by the same person against the same person in different courts governed by the same procedure, and where the judgments are followed by the same remedies, it is prima facie vexatious to bring two actions where one will lie’.
In Slough Estates Ltd v Slough Borough Council [1968] Ch 299 at 314-315 ... Ungoed-Thomas J said that ‘it is prima facie vexatious and oppressive to sue concurrently in two British courts’ and went on to quote Lord Esher MR’s dissenting judgment in The Christiansborg (1885) 10 PD 141 at 148, where his Lordship said: ‘Where both actions are in England in the same tribunals – because if they are in tribunals where the proceedings are not identical or the remedies are not equally effective the law would apply which is applicable to foreign countries – prima facie it is vexatious, and therefore it would lie on the party who brings the second action to show it was not so’."

More recently, in Lidden v Composite Buyers (1996) 139 ALR 549 at 559, Finn J said:

"where proceedings have been started in one court, it is an abuse of process to duplicate proceedings in another court when a complete remedy is available in the first court. It likewise seems the case that where proceedings are pending in a court, a separate action in the same court should at least be stayed where both actions involve the same parties and the same subject matter and where the hearing of the first will effectively dispose of the need for the hearing of the second."

12 To use the language of Finn J in Lidden, the Supreme Court adjudication of the tapes and conversion claims will effectively dispose of the need for a hearing of par 2 of the Application in so far as it relates to the tapes, if it does, and the conversion claim, if it is an issue in the Application.

13 That leaves the documents other than the tapes, which are not covered by the Supreme Court proceeding. Finkelstein J told the applicant that in any fresh affidavit he would have to specify the documents taken from him that he claimed were being used for improper purposes. The applicant has not done so. He refers to

• "invoices"

•	"my classified legal evidence"
•	"all my documents"
•	"the evidence in my Examination in Federal Court"
•	"all Legal and Classified Files"

Nothing more is said to enable the Court or the trustee to ascertain what it is that the applicant seeks to enjoin the trustee from using. This is the second occasion on which the applicant has had an opportunity to propound his case. He has had the benefit of Finkelstein J’s advice about the need for particularisation, and his Honour’s explanation of why he ordered that the first set of affidavits be removed from the file. Despite this, the applicant has not cured the serious deficiencies in his material, in particular the failure to identify the documents in question. I am satisfied that the applicant is unable or unwilling properly to formulate his case, and that his documents claim does not disclose a reasonable cause of action and is frivolous and vexatious.

14 I am aware that the power to stay under Order 20 rule 2 is one that should be exercised with due caution. However, since I am satisfied that the ground of abuse of process is made out in relation to par 1 of the Application and the tapes and conversion claims, that no reasonable cause of action is disclosed within par 2 of the Application, and that the more general documents claim discloses no reasonable cause of action and is frivolous and vexatious, I propose to make an order staying the action perpetually.

15 After I had reserved my decision on the motion, I adjourned the hearing of a related motion to a later time on 31 January in order to enable the applicant to study a short affidavit that he had not had the opportunity to examine. The related motion was then heard. After the moving party had completed his submissions and the applicant had made his substantive response, he applied for an adjournment of both motions on the ground that it was appropriate to await the decision in V614/2004. It was said that it was possible that in that proceeding Mr Morton would be removed as trustee. I indicated at the time that it was unusual for an adjournment application to be made after the conclusion of all argument in the case of the trustee’s motion and after the conclusion of most of the argument in the other motion. However I did not then refuse the adjournment. I do so now, because of the late stage at which it was sought.

16 In the course of argument in the related motion consideration was given to whether "the evidence in my Examination in Federal Court" (see [14]) is a reference to the transcript of the applicant’s oral examination. I refer to what I have said on the topic at [8] in my reasons dealing with the related motion.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 2 February 2004

The Applicant appeared in person.

The First Respondent appeared in person.

Date of Hearing:	31 January 2005
Date of Judgment:	2 February 2005