Trkulja v Morton [2005] FCA 39 (2 February 2005)

Last Updated: 3 February 2005

FEDERAL COURT OF AUSTRALIA

Trkulja v Morton [2005] FCA 39

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 seventh respondent pursuant to Order 20 rule 2 of the Rules.
2. The applicant pay the seventh respondent’s costs of the motion notice of which was filed on 12 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 The seventh respondent, Mr Round, has applied by motion for an order that the Application herein, so far as it relates to him, be summarily dismissed or stayed on the ground that no reasonable cause of action against him is disclosed. The motion was heard together with one by the first respondent, the applicant’s trustee in bankruptcy, for somewhat similar relief. These reasons should be read in the light of my reasons in the trustee’s motion.

2 The applicant’s case against Mr Round, at least in a formal sense, is confined to the claim that he be restrained from using documents seized from the applicant at his oral examination other than for the purposes of the bankruptcy. In his Application the applicant seeks:

"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."

3 Mr Round submits that in order to obtain what is in effect a permanent injunction restraining the use of the "documents", the applicant must establish three matters:

•	the identity of the documents
•	material facts establishing a right in the applicant to restrain Mr Round, who is the trustee’s solicitor, from using the documents
•	evidence that Mr Round, as the trustee’s solicitor, has made or is threatening to make some impermissible use of the documents.

It is submitted that there is no evidence establishing these matters.

4 When the motion was before Finkelstein J, his Honour informed the applicant that it was necessary for him to "set out" the documents he alleges have been taken from him and which the trustee and Mr Round are threatening to improperly use. The applicant’s fresh affidavit does not do that. If the matter is approached via the relief sought in the Application, the affidavit does not disclose the existence of any documents "seized and obtained at the oral examination of the bankrupt". If Finkelstein J’s order 4(1) is limited to documents obtained at the applicant’s oral examination, I would stay the Application as against Mr Round on the ground that no reasonable cause of action is disclosed within Order 20 rule 2(1)(a).

5 However, if Finkelstein J was intending to permit the applicant to rely on any documents seized and obtained from the applicant (whether or not at the oral examination), the fresh affidavit legitimately 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 Mr Round to ascertain what it is that the applicant seeks to enjoin him from using.

6 It appears that most of the documents, whatever they are, were seized pursuant to search warrants. I assume the warrants were issued under s 130 of the Bankruptcy Act 1966. In order to establish his claim to relief against Mr Round, the applicant must show some basis for his claim that Mr Round, as the trustee’s solicitor, is not entitled to use the documents for particular purposes, such as an implied undertaking to that effect, that they are confidential documents, or that they are subject to legal professional privilege. No such ground, or any other, is put forward.

7 Nor does the applicant establish that Mr Round, as the trustee’s solicitor, has made or is threatening to make impermissible use of the documents. The fresh affidavit alleges that the trustee delivered the surveillance tapes personally to the defendant in another proceeding, released the applicant’s "Classified Legal Evidence directly to the Solicitors MM&R" in that other proceeding, and gave "all my documents" to MM&R, "the respondent’s Solicitors" in the defamation proceedings by the applicant against two defendants in the Supreme Court. The balance of the fresh affidavit dealing with seized documents does not assert relevant facts. Rather it makes the following claims to relief that affect Mr Round as well as the trustee:

"23. I seek this Honourable Court to order that the evidence in my Examination in Federal Court be suppressed in any Proceedings other than this bankruptcy. This suppression Order is sought against the first respondent and seventh respondent Mr Round from MM&R Solicitors.
24. I request the Honourable Court to prohibit the use of all my Legal Documents and the Evidence in my Defamation Proceedings in the Supreme Court & County Court.
On the following grounds;

(a) This is a breach of the legal profession privilege by my trustee Mr Morton.
(b) This is most unethical conduct. The First Respondent Mr Morton and seventh respondent Mr Round is an officer’s of Court and they are perverting the Course of justice."

Thus, although there are allegations of fact against the trustee, there are none against Mr Round. So far as Mr Round is concerned, there is merely a request for relief with no stated basis (par 23) and a request for relief based on a contention of law (par 24(b)).

8 In the course of argument it was suggested by counsel for Mr Round that "the evidence in my Examination in Federal Court", which the applicant wants "suppressed", is a reference to the transcript of his oral examination. Section 81 of the Bankruptcy Act deals with the examination of a bankrupt about the bankrupt’s examinable affairs. The examination is to be held in public: sub-s (2). Sub-section (17) provides in part that

"the transcript of the evidence given at the examination of a person under this section:

(a) may be used in evidence in any proceedings under the Act in which the person is a party; and
(b) shall be open to inspection by the person, ... the trustee or a person who states in writing that he or she is a creditor without fee and by any other person on payment of the fee prescribed by the regulations."

The transcript may be used in evidence only in a proceeding under the Act in which the applicant is a party. There is no evidence that Mr Round threatens or intends to use it in evidence in any other proceeding. If he were to seek to introduce it into evidence, the court or tribunal involved would refuse to receive it on the ground that sub-s (17)(a) precludes its use. So far as the information in the transcript is concerned, Mr Round is entitled to use it as he wishes. Section 81 imposes upon a person who has obtained a copy of the transcript no restriction on the use that may be made of the information contained in it. The suppression claim has no factual basis.

9 This motion was heard a short time after judgment had been reserved on the trustee’s motion. After counsel for Mr Round had completed his submissions and the applicant had substantially completed his, the applicant applied for an adjournment. The basis for the adjournment was that it was appropriate to defer the hearing of both motions until judgment was delivered in V614/2004, the application for the trustee’s removal. Without formally ruling on the application, I indicated how unusual an application it was given that argument had been completed on the trustee’s motion and judgment had been reserved, and that Mr Round had completed his argument and the applicant was on the point of completing his.

10 I now refuse the application for an adjournment for two reasons. First, the application was not made in a timely manner. I refer to what I have said at [9]. The second reason requires the statement of additional facts. The applicant was not represented. He claimed he had never received Mr Round’s notice of motion or one of the affidavits in support, namely that sworn on 12 January 2005. Ignoring formal parts and extracts from Finkelstein J’s order, that affidavit is ten lines long. There were also two quite lengthy affidavits prepared by Mr Round, which I was told by his counsel were prepared to answer any adjournment application the applicant might make. No application for an adjournment having been made when the two motions were called on, or when the trustee’s motion was heard, I encouraged Mr Round’s counsel not to rely on the two "adjournment" affidavits on the ground that there was no occasion to do so. In addition, it would avoid the need for the applicant to deal with them. Counsel then stated that he would not rely on them. That left the short affidavit for the applicant to consider. I adjourned the matter for three and a quarter hours in order that the applicant have time to consider that affidavit and prepare his submissions. He did not suggest he needed more time. Indeed I understood him to be happy with the course proposed. To permit the applicant now to have an adjournment, when the two "adjournment" affidavits had been abandoned, would be unjust to Mr Round.

11 For the reasons I have given, I propose to order that the Application be permanently stayed as against Mr Round on the ground that no reasonable cause of action is disclosed against him. I am aware that the power to stay is one that should be exercised with due caution. However, since I am satisfied that the ground in Order 20 rule 21(a) is made out, I propose to make the order. It is to be remembered that this is the second occasion on which the applicant has had a chance to propound his case. He has had the benefit of Finkelstein J’s advice about the need to identify the documents in question, and his Honour’s observations explaining why it was that he ordered that the first set of affidavits be removed from the file. Despite this background, the applicant has failed to cure the deficiencies in his material. I am satisfied that he is unable or unwilling properly to formulate his case, and that his documents claim does not disclose a reasonable cause of action.

I certify that the preceding eleven (11) 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

Counsel for the Seventh Respondent:	G Dalton
Solicitors for the Seventh Respondent:	Mulcahy Mendelson & Round
Date of Hearing:	31 January 2005
Date of Judgment:	2 February 2005