Holmes v Sweeney [2011] FMCA 269 (1 April 2011)

Federal Magistrates Court of Australia

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Holmes v Sweeney [2011] FMCA 269 (1 April 2011)

Last Updated: 21 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOLMES v SWEENEY

[2011] FMCA 269

BANKRUPTCY – Application for review of Registrar’s decision.

Federal Magistrates Act 1999 (Cth), s.104

Applicant:

LILLE HOLMES (NEE KOSETSKA)

Respondent:

P.D. SWEENEY

File Number:

BRG 73 of 2010

Judgment of:

Burnett FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Brisbane

Delivered on:

1 April 2011

REPRESENTATION

The Applicant appeared on her own behalf

Solicitors for the Respondent:

Bennett & Philp Lawyers

ORDERS

(1) That the application for review is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 73 of 2010

LILLE HOLMES (NEE KOSETSKA)

Applicant

And

P.D. SWEENEY

Respondent

REASONS FOR JUDGMENT

1. On 13 May 2010, Jarrett FM ordered, among other things, that in the event of certain matters not happening, an enforcement warrant for possession of property issue. The condition the subject of his Honour’s order was that the applicant deliver up vacant possession of a property situated at 29 Plantation Road, Tamborine within seven days of the date of the order. That did not occur and on Wednesday, 30 March, Queensland police attended at the premises to give effect to the enforcement warrant which had issued by the Court.
2. The applicant immediately sought to invoke the Court’s jurisdiction by seeking to file an application at the registry of the Court seeking, among other things, a stay of execution of the enforcement warrant pending determination by the High Court of Australia of an application to show cause why the order should not be quashed by writ of certiorari and that further action be taken, including orders for the issue of a writ of prohibition. The Registrar refused to accept the application and the supporting affidavit. In informing the applicant of his decision, he wrote in his letter of that date in these terms:
   • “Earlier today you sought to file an application in the above matter seeking a stay of execution of an enforcement warrant for possession of property issued pursuant to an order of the Court made on 13 May 2010. The application seeks such a stay pending determination by the High Court of Australia of an application for an order to show cause which may be brought pursuant to the process outlined in part 25 of the High Court of Australia Rules 2004. Given the nature of the application it seemed prudent to ascertain from the face of the document itself the details of the application to the High Court including where it was up to and what if any interlocutorial procedural orders may have been made by the Court to date.”
3. What becomes clear from reading the supporting affidavit is that there is no such application currently before the High Court at all and the Registrar proceeded to return the original application and attachments under cover of his letter.
4. The applicant seeks an order for review of the Registrar’s decision. Section 104 of the Federal Magistrates Act 1999 (Cth) makes provision for orders for review. Such reviews which are conducted ab initio; that is to say they are conducted afresh. The applicant filed an application for review on 31 March, to which she attached material which had been the subject of the application which has been refused by the Registrar. In summary, she contends that she has sought review in the High Court of a decision of the Court of Appeal Queensland by their Honours Justice of Appeal Muir, Chesterman and McMeekin J dated 9 November 2010.
5. Muir J, in his brief reasons for judgment, sets out the relevant history of these proceedings which indicate that the application has its genesis with a judgment which was obtained in the Magistrates Court on or about 11 July 2005. That application, it appears, had been the subject of an application for judicial review before McMurdo J in the Supreme Court, which application was dismissed. Then in turn it was the subject of the appeal before the Court of Appeal, which too was dismissed. The judgment also gave support for the sequestration application which was determined by his Honour and resulted in the orders that were made by his Honour, which in turn led to the orders for possession.
6. It is apparent that there has been no efficacious application filed in the High Court. The material includes within it some correspondence from the Registry of the High Court under the hand of the Deputy Registrar, Ms Ruth Cheetham directed to the applicant. In correspondence addressed from her dated 26 November, she states:
   • “I refer to the application for special leave to appeal which was presented for filing at the Brisbane office of the Registry on 23 November 2010. I also refer to my previous correspondence to you dated 24 February 2010, 10 March 2010, 7 July 2010 (two letters), 28 July 2010 and 6 August 2010. In particular, I refer to my letters 7 July and 28 July 2010. In those letters, I provided you with comprehensive procedural advice on the manner in which an application for special leave to appeal to the High Court must be commenced. I strongly urge you to heed that advice.”
7. I interrupt the letter to note that correspondence predates the orders of the Court of Appeal but by reason of other matters contained within the body it can be inferred that there have been either ancillary or directly related applications made by the applicant to the High Court in respect of decisions concerning which she is unhappy. The Registrar continued:
   • “Your most recent application is therefore incompetent and will not be accepted for filing.”
8. The applicant was not content with the response from the Registrar on that occasion and obviously attempted to refile the material, this time addressing it directly to Chief Justice French. On 23 December 2010, the Registrar again wrote to the applicant, at this time in these terms:
   • “I refer to your letter dated 23 December 2010 addressed to the Chief Justice of the High Court. As I have repeatedly informed you, the justices of the Court do not correspond with members of the public. There was nothing in your letter which requires a response. I have repeatedly (my previous correspondence to you dated 24 February 2010, 10 March 2010, 10 July 2010 (two letters), 28 July 2010, 6 August 2010 and 26 November 2010) and at some considerable expense, time and public money given you extensive procedural advice. You have ignored my advice and given that it is clear that any further assistance of mine would be wasted your documents will be destroyed for reasons given in my letters dated 28 July 2010 and 26 November 2010.”
9. In summary, no efficacious application has been commenced by the applicant in the High Court. It follows that there having been no application made in the High Court, the application which was attempted to be lodged by the applicant on 29 March seeking a stay, pending proceedings in the High Court, has in fact no foundation and in my view cannot be received by the registry of the Court. It follows that I affirm the decision of the Registrar to refuse the receipt of the application for filing. The application for review is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 19 April 2011