Williamson v Debney

There are two notices of motion before the Court. By notice of motion dated 29 September 2022, the first, third and fourth defendants (‘the defendants’) seek that the plaintiff’s statement of claim filed 1 September 2022 be summarily dismissed as incompetent and/or pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). In the alternative, the defendants’ seek that the whole of the statement of claim be struck out, pursuant to rule 14.28 of the UCPR.

By notice of motion filed 27 September 2022, the plaintiff seeks that: judgment against the first defendant for damages to be assessed; judgment against the second defendant for damages to be assessed; judgment against the third defendant for damages to be assessed; and judgment against the first defendant for damages to be assessed.

The plaintiff is Hugh Francis Arthur Williamson. The first defendant is Russell Stuart Debney. The second defendant is Julian Malnic. The third defendant is Robert Macaulay and the fourth defendant is Christine Byrne.

At the hearing, the plaintiff was self-represented. K. Holcombe of counsel, appeared for the defendants. The second defendant plays no role in this notice of motion and did not appear at the hearing. The defendants relied on a folder named Judges Working Documents (‘Ex 1’), dated 27 September 2022 and 12 October 2022.

The plaintiff relied upon his affidavit dated 11 May 2023. The defendants’ relied on three affidavits, those of Baron David Alder sworn 28 September 2022 and 27 April 2023 and an affidavit of Andrew John Crockett sworn 29 May 2023. The plaintiff relied upon his affidavit sworn 11 May 2023. The plaintiff opposes the orders sought in the motion. I shall first deal first with the defendants notice of motion: as they are successful in the orders sought by them, the plaintiff’s notice of motion is otiose.

Rules 13.4 and 14.28 of the UCPR read:

On 8 October 2021, Campbell J delivered a judgment in Williamson v Elders Rural Services Australia Limited & Ors [2021] NSWSC 1259 (‘Elders’). I have carefully read this decision. At [7], his Honour stated:

At [90], His Honour made the following orders:

The plaintiff in Elders ventilated fraud by the actions of the officer Bendigo Bank and the Adelaide Bank together with the real estate agents. Now by these proceedings, the plaintiff continues to ventilate, but against different defendants.

This time the plaintiff’s focus is on different defendants and their actions in relation to two companies, Direct Nickel Limited (‘DNi’) and Windward Prospects Limited (‘Windward Prospects’). As the plaintiff’s statement of claim, filed 1 September 2022. is difficult to comprehend. I shall summarise his oral submissions as best I can in order to briefly set out his allegations of wrongdoing against the current defendants.

The statement of claim as pleaded by the plaintiff is longer and more discursive. While the plaintiff underwent a serious operation in 2013, he does not now claim that he is under a disability as set out in s 52 of the Limitation Act 1969 (NSW).

By way of brief background, the plaintiff and the first defendant, Mr Debney, were in a legal partnership together between 2003‑2006. The second defendant is alleged to have been an investor in two companies, DNi and Windward Prospects Limited.

The plaintiff alleges in the statement of claim that the first defendant, his former partner, the third defendant and Bendigo Bank essentially formed an agreement to thwart his prosecution of the previous Bendigo proceedings, and that if that agreement had not been made, Bendigo Bank and other parties would have been found liable for “fraud” in those proceedings.

The first defendant allegedly promised the plaintiff shares in DNi. The first defendant allegedly told the plaintiff that he would protect DNi on the front line and he would always make sure that the company was protected. However, according to the plaintiff in 2013, the first defendant told the plaintiff that DNi was now insolvent.

By ‘on the front line’, he meant that the first defendant used to work with a web of companies, but he would not put DNi into deals. The first defendant would take shares from DNi and he would make sure that the shares in other companies were owned by DNi, but he would not do anything which meant that DNi would be exposed to a claim.

Apparently, the first defendant bought a company that dealt with stationery and changed its name to Windward Prospects Limited. Windward Prospects was meant to acquire minerals. It was said that Windward Prospects had made $695 million out of Nautilus shares. The plaintiff heard that there was a reasonable prospect of extracting gold out of the Papua New Guinea mine.

In 2013, the plaintiff was unable to express himself due to his brain injury. The first defendant denied that he had ever been involved in any company called Windward Prospects, registered in the UK in 2014 or 2015. Apparently Windward Prospects lent DNi $2 million dollars but did not receive any payment. Then Windward Prospects, which is owned by the first defendant and by the second defendant, then “takes DNi and makes it insolvent”.

When I asked the plaintiff about the fact that he was a bankrupt, the plaintiff made light of it. He agreed that he was bankrupt. The plaintiff then gave an involved explanation concerning his farm and the property next door that he bought subject to a mining lease and his investment in a forestry company that did not grow any trees.

Apparently, the plaintiff had borrowed money from this forestry company. However, it failed. The company did not turn a profit and thus the plaintiff was bankrupted. The plaintiff claims this was done without any proof he was lent $300,000 by Bendigo Bank.

Since these earlier Bendigo proceedings before Campbell J on 27 August 2021, the plaintiff has been declared bankrupt. The appointed trustee in bankruptcy was John Melluish of PCI Partner (NSW) (‘the trustee’).

In Samootin v Shea [2010] NSWCA 371, the Court of Appeal (Campbell JA (with Beazley and Hodgson JJA)) referred to the relevant provisions of the Bankruptcy Act 1966 (Cth) as follows:

The plaintiff’s claim is not one of personal injury. Rather, it falls within the definition of “property” in s 5 of the Bankruptcy Act 1966 (Cth). A search of the National Personal Insolvency Index conducted on 15 September 2022 reveals that the plaintiff was declared bankrupt on 27 August 2021. The plaintiff is a bankrupt: He has no standing to bring these proceedings.

On 22 September 2022, when the plaintiff commenced these proceedings, he was an undisclosed bankrupt. On 27 September 2022, the trustee replied to the defendants’ solicitor, Mr Crockett of Moray & Agnew. The reply relevantly reads:

A further letter to the trustee stated:

No reply from the trustee was forthcoming.

On 26 May 2023, the defendants’ solicitor emailed the trustee advising him of the defendants’ motion, the orders sought and the hearing details. The trustee confirmed that he did not intend to appear or be represented at the hearing.

On the same day, the defendants’ solicitor obtained an updated search of the National Personal Insolvency Index revealing that the plaintiff remains an undischarged bankrupt. A copy of the search is in evidence.

It is my view that the plaintiff has no standing to bring these proceedings. In the exercise of my discretion, there is no utility in granting him leave to replead his statement of claim: it is futile, as he cannot overcome being bankrupt. The pleading in the statement of claim has no reasonable chance of success. In these circumstances, these proceedings should be summarily dismissed as the plaintiff is incompetent. It follows that the plaintiff’s notice of motion does not need to be determined.

As the plaintiff is bankrupt and has no standing, he is incompetent to bring proceedings against the second defendant. Hence, I summarily dismiss the proceedings against all the defendants.

Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants costs (except the second defendant’s costs).