Federal Court of
Australia/ Yap V ASIC FCA334
FEDERAL COURT OF AUSTRALIA
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IN THE FEDERAL COURT OF
AUSTRALIA
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First Applicant
ARCOLA PTY LTD
Second Applicant
WESTPOINT HOLDINGS PTY
LTD
Third Applicant
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AND:
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First Respondent
ESANDA FINANCE LTD
Second Respondent
ANZ BANK
Third Respondent
WESTPAC BANK
Fourth Respondent
BANK OF
SINGAPORE
Fifth Respondent
COMMONWEALTH BANK OF
AUSTRALIA
Sixth Respondent
CURTIN
UNIVERSITY OF WESTERN
AUSTRALIA
Seventh Respondent
GRANICH &
ASSOCIATES
Eighth Respondent
BAILIFF (WA)
Ninth Respondent
REGISTRAR OF TITLES
Tenth Respondent
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
Note: Entry of orders is dealt
with in Rule 39.32 of the Federal Court Rules 2011.
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WESTERN AUSTRALIA DISTRICT REGISTRY
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GENERAL DIVISION
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WAD 86 of
2013
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BETWEEN:
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YAP CHENG SEE
First Applicant
ARCOLA PTY LTD
Second Applicant
WESTPOINT HOLDINGS PTY
LTD
Third Applicant
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AND:
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AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION
First Respondent
ESANDA FINANCE LTD
Second Respondent
ANZ BANK
Third Respondent
WESTPAC BANK
Fourth Respondent
BANK OF SINGAPORE
Fifth Respondent
COMMONWEALTH BANK OF
AUSTRALIA
Sixth Respondent
CURTIN UNIVERSITY OF WESTERN
AUSTRALIA
Seventh Respondent
GRANICH &
ASSOCIATES
Eighth Respondent
BAILIFF (WA)
Ninth Respondent
REGISTRAR OF TITLES
Tenth Respondent
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JUDGE:
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BARKER J
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DATE:
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11 APRIL 2013
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PLACE:
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PERTH
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REASONS FOR
JUDGMENT
overview
1 Pursuant to a previous order of the Court,
the first applicant (Mrs Yap) needs the leave of the Court to issue a
proceeding in this Court. This order was made on the
basis that Mrs Yap had “habitually,
persistently and without reasonable grounds instituted vexatious
proceedings” against one or more of the respondents:
Yap v Australian Securities & Investments Commission
[2008] FCA 534 at [13] (French J).
2 Mrs Yap and two entities related to her
propose to commence a proceeding against a number of persons and entities. In
the proposed proceeding the applicants would assert various claims against the
respondents, all of which have been previously litigated. Mrs Yap now applies
for leave to commence the proceeding, alleging there is new evidence which
substantiates her claims.
3 Having regarded the applicants’ proposed
claims against the respondents and the evidence identified, the Court considers
the proposed proceeding is an abuse of process and that there is no prima facie
ground for it. Accordingly, the Court refuses leave to Mrs Yap to issue the
proceeding.
background
4 Mrs Yap seeks leave to issue a proceeding
against the Australian Securities and Investments Commission, Esanda Finance
Ltd, ANZ Bank, Westpac Bank, Bank of Singapore, Commonwealth Bank of
Australia, Curtin University of Western Australia,
Granich & Associates, the Bailiff (WA) and the Registrar of Titles (the
first to tenth respondents respectively). Mrs Yap, is a director of the second
and third applicants and a former director of Cheshire
Securities Pty Ltd (Cheshire).
5 Leave for Mrs Yap to proceed is required
pursuant to an order of French J (as his Honour then was) made under O 21, r
1(b) of the Federal Court Rules 1979 (Cth)
(previous Federal Court Rules) in Yap v Australian Securities
& Investments Commission [2008] FCA 534. Pursuant to O 21,
r 5(2), I have determined the application for leave without an oral
hearing.
6 If leave is granted, Mrs Yap and the other
applicants would seek the following relief:
1. 1st Respondent to reinstate CHESHIRE
SECURITIES PTY LTD ACN 009 264 082 to the register of Companies and to
compensate the company accordingly for its wrongful deregistration on 20 June
2000 as the Court sees just.
2. 2nd Respondent to reimburse CHESHIRE
SECURITIES PTY LTD all income receivable from its 50-years Leasehold property
from 17 November 1988 based on CPI with interest at rate prescribe by the Court
and
* to pay
1st Applicant damages as the Court sees just for its mortgagee sale of Lot 1978
for $130,000 on or about 31 May 1991 without the right of doing so
and
* to pay
1st Applicant damages and compensation for the sale of No 449 Canning Highway
Melville on 5 November 1993 for $142,000 by 9th Respondent pursuant to writ of
FiFa215/93 issued by M Ellison pursuant to DC1536/89 P Vivante & Co Pty Ltd
vs CS Yap concocted by M Ellison pursuant to its agreement with their
client.
3. 3rd Respondent to pay 2nd Applicant all
rentals receivable on 58 58A 58B & 60 2nd Avenue Rossmoyne from 17 November
1988 till Judgment with interest based on CPI at rate prescribed by the
Court.
4. 4th Respondent to pay 1st Applicant rentals
receivable for the three Units on Lot 896/No. 235
Preston Point Rd Bicton from 25 May 1988 till Judgment with interest based on
CPI at rate prescribed by the Court and
* to Pay
1st Applicant damages for selling short Lot 896/No. 235 Preston Point Rd Bicton
to Friendly Hldgs Pty Ltd for $240,000 on 10.8.88 while her auction bid for
$265,000 extant balance of $238,500 to be settled on or before
30.8.88.
5. 5th Respondent to pay Cheshire Securities
Pty Ltd damages as the Court sees just for acting in breach of fiduciary duty
and contract to the company.
6. 6th Respondent to pay 1st Applicant all
rentals from the 2 Townhouses and the original house on Lot 26/No. 254 Preston
Point Rd Bicton based on CPI and interest at rate prescribed by the Court and
damages in breach of agreement.
7. 7th Respondent to reinstate Cheshire
Securities Pty Ltd’s 50-years LEASE executed on 11.8.88 and to pay the company
damages as the Court sees just for acting in breach of agreement.
8. 8th Respondent to pay 1st Applicant damages
as the Court sees just for acting negligently on her behalf in DC1536/89 P
Vivante & Co Pty Ltd vs CS Yap that resulted in the sale of her home 449
Canning Highway Melville on 5.11.93 by 9th Respondent pursuant to writ of
FiFa215/93 issued by M Ellison pursuant to DC1536/89 P Vivante & Co Pty Ltd
vs CS Yap perpetrated by M Ellison pursuant to 2nd Respondent’s agreement with
their client.
9. 9th Respondent to pay 1st Applicant $142,000
for wrongful sale of her home 449 Canning Highway Melville as in 8.
10. 10th Respondent to revert back the Titles
to the rightful owners:
a) Lot 896/No. 235 Preston Point Rd Bicton
being Swan Loc. 70 Lot 896 on plan 3948 Vol. 1742 Folio 925 to Ms Yap Cheng See
of No. 57 Whaleback Avenue Parkwood WA 6147.
b) No. 254 Preston Point Rd
Bicton being Swan Loc. 70 Lot 26 on Diagram 15167 Vol. 1129 Folio 68 to Ms Yap
Cheng See of No. 57 Whaleback Avenue Parkwood WA
6147.
c) Swan Loc. 1978 CT Vol 1794
Folio 145 to Ms Yap Cheng See of No. 57 Whaleback Avenue Parkwood WA
6147.
d) No. 449 Canning Highway
Melville being Swan Loc. 73 Lot 6 on Diagram 5694 CT Vol. 1590 Folio 117 to Ms
Yap Cheng See of No. 57 Whaleback Avenue Parkwood WA 6147.
e) No. 140 Charles St W Perth
being portion of Perth Town Lot Y260 Lot 100 on Diagram 42401 CT Vol 1337 Folio
399 to Westpoint Hldgs Pty Ltd of No. 57 Whaleback Avenue Parkwood WA
6147.
f) Lot 337 on plan 4392 CT
Vol. 1733 Folio 274 and Lot 14 on Diagram 23627 CT Vol. 1218 Folio 962 to Arcola
Pty Ltd of No. 57 Whaleback Avenue Parkwood WA 6147.
7 The applicants would also seek the following
interlocutory relief:
1. Reinstatement of Cheshire
Securities Pty Ltd ACN 009 264 082 to the Register of Companies.
2. 1st
Applicant’s bankruptcy on 10.12.98 pursuant to WG 7047/98 to be
annulled.
claims
against the respondents
8 Cheshire was wound up by order
of the Supreme Court of Western Australia on a
petition presented by Mr Peter Fermanis on 5 June 1990. Cheshire failed to lodge
annual returns after 1988 and for that reason it was deregistered on 13 April
1992 pursuant to s 574 of the Corporations
Law. The applicants’ purpose in seeking the
reinstatement of Cheshire through the proposed proceeding appears to be to
facilitate the bringing of a claim by Cheshire against
the second respondent for a substantial sum of
money. This dispute arises from a building development
project at Curtin University (the seventh respondent)
involving the construction of housing units for overseas
students. Cheshire, who had undertaken the project,
engaged an associated company, Akibilt Pty Ltd, to build the housing units.
However, Cheshire then ran
into financial difficulties and the project was eventually taken over by
the second respondent,
Cheshire’s financier. The second
respondent, claiming to exercise powers which it had as
Cheshire’s mortgagee, sold the developed
property in March 1989. Various other properties owned
by the applicants also appear to have been sold as a consequence of Cheshire’s
default on its loan from the second respondent.
9 Related to the intended claim against the
second respondent, is an intended claim against the fifth respondent, who loaned
money to Cheshire in order to assist with the repayment of the loan from the
second respondent. Further, it is also alleged that Cheshire would have a claim
against the seventh respondent for breach of a lease agreement in relation to
the completed housing units.
10 The claim by the Mrs Yap against the eighth
respondent, Mrs Yap’s former solicitors, relates to alleged professional
negligence by the eighth respondent. This claim arises out of the eighth
respondent’s representation of Mrs Yap in a District Court of Western Australia
proceeding instituted against her by a subcontractor of Akibilt Pty
Ltd.
11 Unrelated to the building
development project at Curtin University and the deregistration of
Cheshire are the applicants’ claims against the third, fourth and sixth
respondents.
12 The claim against the third respondent is
alleged to arise from the exercise of the third respondent’s power of sale as
mortgagee of the second applicant’s properties at
58, 58A, 58B
and 60 Second
Avenue, Rossmoyne, Western
Australia.
13 The claims against the fourth respondent are
alleged to arise from the exercise of the fourth
respondent’s power of sale as mortgagee of Mrs
Yap’s property at 235
Preston Point Road, Bicton, Western Australia, as well
as for breach of contract in relation to a contract by way of offer
and acceptance entered into by the parties after auction whereby
Mrs Yap was the successful bidder for the
property.
14 The claim against the sixth respondent
arises from the sale by it in 1988, as mortgagee, of property at
254 Preston Point Road, Bicton, Western Australia. Mrs Yap contends
that the sixth respondent sold the property in breach of a lending agreement
between them.
15 The relief sought against the ninth and
tenth respondents is consequential upon the claims against the second, fourth,
sixth and eight respondents.
litigation history
16 Mrs Yap and entities related to her have an
extensive history of litigation in various courts, including litigating the same
issues the subject of the proposed proceeding.
17 For example, this application is the eighth
attempt by Mrs Yap to reinstate Cheshire to the register of
companies. The seven earlier applications were as
follows:
Cheshire Holdings Pty Ltd v Yap Cheng See
(unreported, Supreme Court of Western
Australia, Steytler J, 22
November 1995),
where Steytler J (as his Honour then was) dismissed Mrs Yap’s
application to reinstate Cheshire together with a related application to stay
its winding up. In Yap Cheng See v Cheshire Holdings Pty Ltd
(unreported, Supreme Court of Western Australia, Kennedy,
Franklyn and Ipp JJ, 9 April 1998) an appeal against Steytler J’s decision was
struck out for want of prosecution. An application for special
leave to appeal against the decision of the Full Court was unsuccessful.
While the decision of the Full Court was
pending, Mrs Yap unsuccessfully brought a further application in the Supreme
Court to reinstate Cheshire: Re Yap Cheng See; Cheshire Holdings
Pty Ltd (unreported, Supreme Court of Western Australia,
Sanderson M, 11 July 1997).
A further application to reinstate Cheshire
was made by Mrs Yap on 1 September 1997 in the Supreme Court. It was dismissed
by Sanderson M on 19 September 1997.
In the following year another application was
made, but was dismissed by Master Sanderson on 19 August 1998. Master
Sanderson’s decision was appealed to the Full Court,
but the appeal was dismissed: Cheng See Yap v
Cheshire Holdings Pty Ltd [2007] WASCA
50.
On 24 April 2008, French J dismissed Mrs Yap’s
application in the Federal Court seeking to reinstate Cheshire and also made an
order that Mrs Yap was not to institute any further proceeding in the Court
without leave: Yap v Australian Securities & Investments
Commission [2008] FCA 534.
On 5 August 2009, McKerracher J refused leave
for Mrs Yap to institute a proceeding again seeking to reinstate Cheshire:
Yap v Australian Securities & Investments Commission
[2009] FCA 831.
On 15 October 2009, Gilmour J refused leave
for Mrs Yap to institute a proceeding once again seeking to reinstate Cheshire:
Yap v Australian Securities & Investments Commission
[2009] FCA 1159.
18 Mrs Yap’s son, Mr Kelvin Chong
Chi Hoong, has also made at least two applications in the Supreme
Court to reinstate Cheshire. These applications were dismissed by Master
Bredmeyer on 4 October 2001: Chong v Cheshire Securities Pty Ltd
[2001] WASC 266 and Master Newnes on 6 June 2003:
Re Cheshire Securities Pty Ltd; Ex Parte Chong
[2003] WASC 132.
19 Further, Mrs Yap and her son have made an
unsuccessful application against the first respondent to terminate the winding
up of Cheshire: Yap v Australian Securities & Investments
Commission [2000] WASC 159.
20 The claims against the second, fourth and
sixth respondents have also all been previously litigated by Mrs Yap, in this
and other courts. These proceedings include:
Esanda Finance Corporation Ltd v Yap Cheng
See (unreported, District Court of Western Australia, Deputy
Registrar Harman, 6 December 1994), where the second respondent obtained summary
judgment in respect of a claim brought by Mrs Yap alleging that the second
respondent had unlawfully sold properties pursuant to mortgages it held. In
Yap Cheng See v Esanda Finance Corporation Ltd
(unreported, District Court of Western Australia, Principal
Registrar Harding, 8 November 1995) Mrs Yap’s application to have the summary
judgment set aside was dismissed. In See v Esanda Finance
Corporation Ltd (unreported, Full Court of the Supreme Court of
Western Australia, Kennedy, Franklyn and Ipp JJ, 9 April 1998) Mrs Yap was
refused leave to appeal.
Yap Cheng See v Challenge Bank Ltd
(unreported, Supreme Court of Western Australia, Parker J, 12
December 1997), where Mrs Yap claimed damages from the fourth respondent (who
was then named Challenge Bank Ltd) for wrongful exercise of its power of
sale in relation to
her property at 235
Preston Point Road, Bicton, Western Australia, as well
as damages for loss of commercial repute and
credibility and damages for breach of contract. These claims were
dismissed.
Yap Cheng See v Commonwealth Bank
(District Court of Western Australia, Gunning DCJ, 7 October
1996), where Mrs Yap claimed that the sixth respondent improperly exercised its
power of sale in relation to her property at 254 Preston Point
Road, Bicton, Western Australia. This claim was dismissed. In
See v Commonwealth Bank of Australia
(unreported, Full Court of the Supreme Court of Western
Australia, Murray and Templeman JJ, 10 September 1998) an appeal by Mrs Yap
against a decision refusing her leave to appeal out of time was
dismissed.
21 In addition, the applicants have
instituted proceedings against the eighth
respondent on numerous occasions. This
led to the proceeding in Granich & Associates v
Yap [2004] FCA 1567, where, on the application of
the eighth respondent, French J made an order under O 21, r 2 of the previous
Federal Court Rules preventing Mrs Yap from instituting or continuing any
proceeding against the eighth respondent without leave of the Court. The history
of litigation between Mrs Yap and the eighth respondent is usefully summarised
by French J at [3]-[4] (the separate numbering refers to the separate State and
Federal courts litigation):
1. P
Vivante & Co Pty Ltd obtained a default judgment against Mrs Yap in District
Court action 1536 of 1989 on 10 April 1989.
2. On 23
June 1992, District Court Registrar Kingsley set aside the default judgment and
gave Mrs Yap leave to defend the proceedings provided she paid $39,000 into
court by 7 July 1992.
3. Mrs Yap failed to pay the money
into court.
4. Mrs Yap
appealed the decision of District Court Registrar Kingsley to his Honour Judge
Viol. The appeal was heard by his Honour on 3, 10 and 21 August 1992. His Honour
dismissed the appeal with costs.
5. Mrs Yap
applied for leave to appeal the decision of his Honour Judge Viol to the Full
Court of the Supreme Court. On 10 June 1993 the Full Court dismissed her
application for leave to appeal and ordered that she pay the costs.
6. Mrs
Yap commenced proceedings against Granich & Associates for alleged
negligence in District Court action 6202 of 1993. Her action related to the
firm’s conduct of the District Court proceedings. Her action was dismissed by
Commissioner Martin QC on 7 May 1996. He found she failed to prove the firm had
been negligent. The solicitors, Granich & Associates, were awarded the costs
of the action.
7. Mrs
Yap instituted an appeal to the Full Court of the Supreme Court. That appeal was
dismissed on 21 July 1997 for want of prosecution. Mrs Yap was ordered to pay
the costs of the appeal.
8. Granich & Associates
initiated proceedings in the Local Court to recover legal costs from Mrs Yap.
She brought a counterclaim in those proceedings and sought to have it
transferred to the Supreme Court. On 24 October 1997, Master Bredmeyer dismissed
the action for removal as an abuse of process.
9. Mrs
Yap applied for special leave to appeal the judgment of the Full Court to the
High Court. The special leave application was dismissed on 22 October 1998 with
costs.
10. On 14
December 2001, Mrs Yap applied for judgment in the District Court action which
had been dismissed by Commissioner Martin QC on 7 May 1996. The application for
a judgment was allegedly based on admissions. It was dismissed with costs by his
Honour Judge Wisbey.
11. On 15
March 2002, Mrs Yap applied to the District Court for a retrial of the 1993
action against her solicitors based on alleged fresh evidence. Commissioner
Greaves dismissed the application with costs on 22 March 2002.
12. Mrs
Yap’s appeal against the decision of Commissioner Greaves was dismissed with
costs by his Honour Judge Williams on 12 April 2002.
13. Mrs
Yap applied to the Supreme Court for a rehearing of the 1996 District Court
action based on alleged fresh evidence. Her application was heard by the Full
Court of the Supreme Court on 14 August 2002 and dismissed by the Court on 4
December 2002. The Full Court found that she was making the same allegations as
she had in the hearing before Commissioner Martin QC.
14. On 30
December 2002, Mrs Yap made an application for special leave to appeal to the
High Court seeking, inter alia, to set aside the judgment of the Full Court of 4
December 2002. That application is yet to be listed for hearing.
15. On 13
December 2002, Granich & Associates made an application for leave to apply
in the Supreme Court of Western Australia to have Mrs Yap declared a vexatious
litigant under the Vexatious Proceedings Restriction
Act (2002) (WA). In a judgment delivered on 31 October 2003,
Heenan J made an order prohibiting Mrs Yap or any person acting on her behalf
from instituting proceedings against Granich & Associates without leave of
the Court or Tribunal in the manner prescribed in s 6 of the
Vexatious Proceedings Restriction Act – Granich Partners v
Yap [2003] WASC 206.
…
1. On 11
October 1997, Granich & Associates caused a bankruptcy notice to be served
on Mrs Yap. The notice required payment of $33,184.11. The debt comprised taxed
costs of $29,790.45 which Mrs Yap had been ordered to pay to Granich &
Associates upon the dismissal of her claim by Commissioner Martin on 7 May 1996,
and post-judgment interest of $3,393.66. The costs had been taxed on 12 August
1996.
2. On 17
October 1997, Mrs Yap filed an application to set aside the bankruptcy notice on
the basis that she had a counterclaim based upon the negligence of Granich &
Associates. On 1 December 1997 the District Registrar of the Federal Court
dismissed that application. Mrs Yap did not seek review of or appeal from that
order.
3. On 1
May 1998, Granich & Associates filed a creditor’s petition seeking
sequestration of Mrs Yap’s estate. The act of bankruptcy relied upon was
non-compliance with the bankruptcy notice served on 11 October 1997.
4. On 13
May 1998, Mrs Yap filed a notice of intention to oppose the petition based on a
pending application for special leave to appeal to the High Court of Australia
in relation to her unsuccessful professional negligence action against Granich
& Associates. She also alleged:
‘Deliberate concealment of facts
relating to [Mrs Yap’s] cause of action to conceal [Granich & Associates’]
breach of duty to [Mrs Yap] pursuant to [Granich & Associates’]
retainer/contract to [Mrs Yap].’
5. The
High Court dismissed Mrs Yap’s application for special leave to appeal on 22
October 1998, stating amongst other things that her application was ‘entirely
devoid of merit’.
6. Between the filing of the
notice of intention to oppose the petition and 10 December 1998, the hearing of
the petition was adjourned five times and Mrs Yap filed six affidavits. On 10
December 1998 the Registrar made a sequestration order against Mrs Yap’s estate.
7. The
matter came before me as a result of a motion filed by Mrs Yap on 16 December
1998 seeking an order that the judgment of the Registrar be set aside, the
sequestration order be annulled, and that Granich & Associates pay damages
and costs.
8. The
motion to review and set aside the sequestration order was dismissed by me on 30
July 1999 - Granich & Associates v Yap Cheng
See [1999] FCA 1039.
9. Mrs
Yap appealed against my decision to the Full Court which dismissed her appeal on
29 November 1999 – Yap v Granich &
Associates [1999] FCA 1867.
10. On 6
October 2000, Mrs Yap lodged an application for the annulment of her bankruptcy.
On the respondent’s motion, RD Nicholson J dismissed the application on the
basis, inter alia, that Mrs Yap was seeking in it to raise the same allegations
which she had previously raised in the Full Court of the Federal Court –
Yap v Granich & Associates [2001] FCA 799.
11. Mrs
Yap applied to the Full Court of the Federal Court for leave to appeal against
the decision of RD Nicholson J. Her application was dismissed by the Full Court
on 29 November 2001 – Yap v Granich &
Associates [2001] FCA 1735.
In dismissing her
application for leave to appeal, the Full Court, per Gyles J, accepted that the
primary judge was entitled to regard her proceedings ‘as doomed to failure and
so as an abuse of process and vexatious’. Mrs Yap was ordered to pay the costs
of Granich & Associates.
12. Mrs
Yap sought again to set aside the sequestration order in proceedings commenced
in the Federal Magistrates Court which were dismissed on 30 October 2002 by
McInnis FM – Yap v Granich & Associates
[2002] FMCA 284.
13. Mrs
Yap appealed against the decision of the Federal Magistrate. Her appeal was
heard by a single judge, Marshall J, who dismissed the appeal on 21 May 2004 –
Yap v Granich & Associates [2004] FCA 647.
His Honour said that the learned federal magistrate was (at [11]):
‘...
correct in characterising the proceeding before him as an abuse of
process.’
22 In Yap v Granich &
Associates [2005] FCA 309 and Yap v Granich
Partners [2008] FCA 1380 Mrs Yap was unsuccessful in seeking
leave to issue a proceeding against the eighth respondent.
23 In See v Granich and
Associates [2008] FMCA 27 Mrs Yap made a further application in
the Federal Magistrates Court to annul her bankruptcy. This application was
dismissed and an order was made preventing Mrs Yap from filing or continuing any
proceeding in that Court without first obtaining leave from a Federal
Magistrate.
24 Finally, the proposed proceeding is
essentially identical in terms of the claims and respondents to the proceeding
instituted before French J in Yap v Australian Securities &
Investments Commission [2008] FCA 534, and, following the order
of French J pursuant to O 21, r 1(b) of the previous Federal Court Rules, the
subject of the proposed proceedings before McKerracher J in Yap
v Australian Securities & Investments Commission [2009] FCA
831 and Gilmour J in Yap v Australian Securities &
Investments Commission [2009] FCA 1159. Indeed, one only needs
to look at the relief claimed or sought to be claimed in these proceedings to
appreciate this: cf Yap v Australian Securities &
Investments Commission [2008] FCA 534 at [1];
Yap v Australian Securities & Investments Commission
[2009] FCA 831 at [6].
consideration
25 Pursuant to O 21, r 5(1) of the previous
Federal Court Rules, a person against whom the Court has made an order under O
21, r 1 may only be granted leave to institute a proceeding if the Court is
satisfied that:
(a) the proceeding is not an
abuse of process; and
(b) there is prima facie ground
for the proceeding.
26 In assessing whether the conditions in O
21, r 5(1) are satisfied I am conscious of Kirby J’s caution in
Re Attorney-General (Cth); Ex parte Skyring
(1996) 135 ALR 129 at 31-32 that, in applications such as
these:
… it is
always important for every judge to keep an open mind in case a
person who has been rejected by courts in the past may have, hidden amongst the
verbiage of his or her arguments, a point which has not been previously seen and
which may have merit. Vigilance, and not impatience,
are specially required where that person is not legally
represented.
Secondly, it is regarded as a serious thing in this country to
keep a person out of the courts. The rule of law requires that, ordinarily, a
person should have access to the courts in order to invoke their
jurisdiction.
27 As is evident from the analysis in the
previous section, Mrs Yap is attempting to issue an essentially identical
proceeding to which was issued or attempted variously before French J,
McKerracher J and Gilmour J, and to litigate claims which have been the subject
of numerous past proceedings.
28 However, in Yap v
Australian Securities & Investments Commission [2008] FCA
534, at [12], French J stated that in his opinion the “application has no
reasonable prospect of success. It is on the face of it an abuse of process. It
seeks to relitigate issues that have been litigated over many years.”
29 In a similar vein, in Yap v
Australian Securities & Investments Commission [2009] FCA
831, at [7], McKerracher J commented that each of the claims that the applicants
sought to ventilate “has been previously pursued or alternatively depends upon
other claims which have previously been pursued, sometimes on numerous occasions
and in all cases those claims have been rejected”.
30 Finally, in Yap v
Australian Securities & Investments Commission [2009] FCA
1159, at [19]-[20], Gilmour J stated that:
19 … Mrs
Yap could never in a proceeding such as this, in effect, appeal against
judgments earlier made whether in this Court or other courts. That, in my view,
is the thrust of the proposed application.
20 In my
opinion, the proposed proceedings are an abuse of process.
31 Therefore, in the absence of new evidence
to substantiate her claims, it is apparent that the proposed proceeding should
be considered an abuse of process by Mrs Yap, seeking as she does to relitigate
essentially identical issues and claims as have been considered numerous times
before.
32 In support of her application, Mrs Yap
relies on her affidavit sworn on 5 November 2007 (November 2007 affidavit),
which was first relied upon in the proceeding before French J and then
subsequently relied upon in the applications before McKerracher
J and Gilmour J, and a new affidavit
sworn by Mrs Yap on 5 March 2013 (March 2013 affidavit), which is said by Mrs
Yap to contain “fresh evidence” in its three annexures.
33 However, in Yap v
Australian Securities & Investments Commission [2009] FCA
831, at [5], McKerracher J commented that the fact that Mrs Yap relied so
heavily on the November 2007 affidavit tended to support a conclusion that there
was nothing new in the matters which she was raising in her application. The
same reasoning applies here. The material in that affidavit has now been
ventilated on at least four occasions.
34 In Yap v Australian
Securities & Investments Commission [2008] FCA 534, at [2],
French J described the November 2007 affidavit as “long and turgid”. I am of a
similar view with respect to the March 2013 affidavit. The March 2013 affidavit
is disjointed, repetitive and largely incomprehensible. Similarly to the
November 2007 affidavit, it makes a number of serious allegations against
various persons, including theft, fraud, embezzlement and perjury.
35 Furthermore, it is difficult to see what
relevance, if any, the three annexures which purport to present new evidence
have. In my view, the annexures certainly do not provide new evidence such as
would provide a prima facie ground for the proposed proceeding.
(In fact, one of the annexures, annexure CSY2, is not even “fresh
evidence”: see Yap v Australian Securities & Investments
Commission [2009] FCA 1159 at [16].)
conclusion
36 I appreciate the manner in which Mrs Yap
has comprehensively presented her application. I am not satisfied, however, that
the proposed proceeding is not an abuse of process and nor am I satisfied that
there is prima facie ground for the proceeding.
Associate:
Its well written blog and very long!! Australia CommonWealth
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