THE REVIEW APPLICATION
43 The grounds of the review application read (the grounds commence with number 2):
2. The order by registrar Hird on 30 November 2021 issued substitute order based on the server of the applicant breach the Covid restrictions during the lockdown in Melbourne he said he left the notice of bankruptcy in the letter box with out to serve both the respondents further refused to provide a copy of the notice despite was requested in a few emails,the matter was reported to the police were being investigated the registrar of the federal circuit court legalised a a breach of Covid restrictions and allowed the applicant to proceed with out service
3. Registrar EdwardsR refused adjournment which was requested on the 12 May 2022 by the respondents on grounds to seek legal representation as self litigant on the following grounds
a) Appeal on Supreme Court been ignored by the registrar EdwardsR against bankruptcy act 2021 rule 5.5
b) Refused adjournment because of time needed rule 4 .10 and 5.4
c) Refused that the applicants never served the respondents accordingly to the rules of the bankruptcy act
d) Registrar refused the denial of the debt due to is appealed and terminated in August 2022 neither there any other debts by respondents neither are any other creditors
e) Registrar ignored the rules for respondents as self litigants were disadvantaged to be bankrupts while there claims for compensation with active cases in vcat and county court against commonwealth bank and Yarra ranges council because of loss and wrong demolition in our property in 132 Belgrave ferny creek road Tecoma in 2019 we win the court in Supreme Court and next county court in Supreme Court was finalised and heard by justice Bell and Victoria attorney general intervention at the time finally the Victoria bar association did a story about our matter in regards how disadvantaged self represented have luck before the justice
4. We request the review of registrar Hird on 30. November 2021 pending to Supreme Court appeal and stay of notice of bankruptcy due to never been served
5. Registrars order sequestration be staying pending to the Supreme Court decision
6. Review registrars decision as unfair and biased division 7.2 review of sequestration order by registrar federal court bankruptcy rules 2016
(sic.)
44 As correctly observed by counsel for the applicant, Mrs Von Risefer and Mr Von Risefer failed to comply with the requirements of rules 7.05 of the Bankruptcy Rules in that it was not served upon the appointed trustee at least 7 days before the date fixed for hearing and no notice was given to creditors of the making of the application. During submissions I suggested to counsel that it might be more efficient to overlook those matters and proceed to the merit of the application and she agreed.
45 The first ground concerns an order made by Registrar Hird on 30 November 2021, which dispensed with personal service of the creditor's petition and authorised service as follows:
1. Personal service of the creditor's petition be dispensed with.
2. The creditor's petition be served on the respondents as follows:
(1) By posting the following documents (collectively, the Documents) by regular mail address to the respondents at 21 Oakwood Court, Templestowe VIC 3106
(the Address):
(a) A covering letter;
(b) A sealed copy of this order;
(c) A sealed copy of the creditor's petition;
(d) A copy of the affidavit, or affidavits, verifying the creditor's petition;
(e) A copy of the affidavit required by r 4.04(1)(a) of the Federal Court (Bankruptcy) Rules 2016;
(f) A copy of the affidavit, or affidavits, of service of the bankruptcy notice; and
(g) A copy of any consent to act as trustee;
(2) By placing the Documents in an envelope addressed to the respondents and handing the envelope to a person apparently over the age of 16 years apparently residing at the Address or, in the event that no such person is in attendance, by placing the envelope in the letter box at the Address;
(3) By sending an email addressed to the first respondent at vonrisefer@icloud.com which attaches (by way of a PDF electronic document) the Documents and which contains in the subject header of the message the following: "Urgent - Important Legal Message" and which otherwise reads as follows in the body of the email:
EMAIL BY COURT ORDER - Proceeding VID612/2021 has been filed against you, ELIZABETH VON RISEFER and an Order for service has been made. Documents are attached and can be inspected by contacting the Federal Court on 1300 720 980; and
(4) By sending an email addressed to the second respondent at avgdg@yahoo.com which attaches (by way of a PDF electronic document) the Documents and which contains in the subject header of the message the following: "Urgent - Important Legal Message" and which otherwise reads as follows in the body of the email:
EMAIL BY COURT ORDER - Proceeding VID612/2021 has been filed against you, GEORGE VON RISEFER and an Order for service has been made. Documents are attached and can be inspected by contacting the Federal Court on 1300 720 980.
3. Service of the creditor's petition be deemed to be effected on 6 January 2022 upon condition that the 4 events referred to in paragraph 2 occur by 13 December 2021.
4. The costs of this application be reserved.
5. Liberty to apply.
46 It is difficult to understand what is meant by this ground, although some elucidation was provided in the oral submissions of Mrs Von Risefer. There are two points. One is that the process server failed to comply with the second order made by Registrar Hird in that the documents were not placed in the letterbox at the Templestowe address. I am satisfied in accordance with the two affidavits made by the process server, Mr Hogg dated 4 March 2022, that the creditor's petition, a copy of the orders made by the registrar, a copy of the bankruptcy notice, copies of the affidavit of service of each bankruptcy notice and a covering letter from the applicant's lawyers was left by him in an envelopes respectively addressed to Mrs Von Risefer and to Mr Von Risefer by placing those documents in the letterbox at the Templestowe address at 2:09 pm on 2 March 2022 and I reject as untruthful evidence to the contrary from Mrs Von Risefer and Mr Von Risefer.
47 The other is that service by that means was in breach of "Covid restrictions". What is meant by that? The substituted service orders concern the creditor's petition. I have found that it was served 2 March 2022. There were no relevant Stay At Home Directions made pursuant to the Public Health and Wellbeing Act 2008 (Vic) that operated on that day. The last such Direction was the Stay at Home Directions (Victoria) (No 8), which ceased at 11.59 pm on 23 September 2021. In any event, it is to be noted that cl. 10 of that Direction carved out from the restrictions imposed on leaving premises: leaving for purposes authorised by law or relating to the administration of justice.
48 It may be that this contention relates to the service of the bankruptcy notices as an anterior step which somehow (which was not explained) infects the substituted order for service of the creditor's petition. On that view it is of no merit as I find, in accordance with the two affidavits of the process server Mr Ramshaw, that each bankruptcy notice was served on 28 August 2021 at 2.10 pm by leaving the documentation in envelopes respectively addressed to Mrs Von Risefer and to Mr Von Risefer in the letterbox at the Templestowe address. Once again, I reject as untruthful evidence to the contrary from Mrs Von Risefer and Mr Von Risefer.
49 The second ground asserts that Registrar Edwards wrongly exercised her discretion to refuse an adjournment of the hearing of the creditor's petition on 12 May 2022. Six sub-contentions then follow, which I will assume are intended to address the well-understood House v The King (1936) 55 CLR 499 at 504-505 requirements. At the outset the date referenced is wrong. The request for an adjournment was made and refused on 5 May 2022. I will proceed on that basis.
50 The evidence as to what occurred before Registrar Edwards is set out in detail in the affidavit of Shao-Ping Gangur of 11 August 2022 at [40] - [53], which I accept. I also have the benefit of the sealed orders made by Registrar Edwards. The creditor's petition was made returnable on 27 January 2022 at 9:30 am. On that day a request to adjourn the hearing of the petition was granted and the proceeding was adjourned to 24 February 2022 at 11 am. It was ordered that if Mrs Von Risefer or Mr Von Risefer intended to oppose the making of a sequestration order, then they must appear at the adjourned hearing. It was also ordered that they provide up-to-date email addresses and telephone numbers and they were warned that a failure to do so may mean that the hearing would proceed in their absence. On 24 February 2022, the hearing was again adjourned, this time to 11 am on 24 March 2022. Mrs Von Risefer and Mr Von Risefer were ordered to file and serve any notice of opposition together with affidavits in support by 14 March 2022, including affidavits that they may seek to rely on which set out their financial position. A further order that was made required that any application for a further adjournment by Mrs Von Risefer or Mr Von Risefer be supported by an affidavit to be filed and served by 22 March 2022.
51 On 24 March 2022, the hearing was again adjourned, this time to 5 May 2022 at 2:15 pm. Inter alia, Mrs Von Risefer and Mr Von Risefer were ordered to file and serve any affidavit in support of the grounds of opposition by 27 April 2022 including, should they seek to do so, affidavits which set out their current financial position. Once again it was ordered that any application for a further adjournment by Mrs Von Risefer or Mr Von Risefer be supported by an affidavit to be filed and served by 3 May 2022.
52 Once again, there was non-compliance in that two documents purporting to be affidavits were filed on 5 May 2022. One is dated 23 February 2022 and the other 5 May 2022. It was asserted that Justice Connect "had promised to assist" at the hearing on 24 February 2022, the service did not provide assistance and for that reason a further adjournment was requested, which from the narrative that I have set out was granted.
53 I accept the evidence of Ms Gangur, and find accordingly, that Registrar Edwards granted an adjournment of the hearing on 24 March 2022 on two grounds. One, to afford an opportunity for Mrs Von Risefer and Mr Von Risefer to file material relevant to their opposition to the creditor's petition, including establishment of solvency, and the other to file further material about the substituted service contention relating to the orders made by Registrar Hird on 30 November 2021. At no point during that hearing were arguments put to Registrar Edwards to the effect of any of the six points relied upon under this ground.
54 I also accept the evidence of Ms Gangur, and find accordingly, that on 5 May 2022 there was no appearance by Mr Von Risefer, who relied on a medical certificate certifying that he was unfit for work for the period 23 February 2022 to 25 February 2022. That medical certificate patently did not satisfactorily explain his absence. And no application for a further adjournment was made on that day, supported by an affidavit, as required by the orders made on 24 March 2022.
55 I further find in accordance with the evidence of Ms Gangur that the hearing on 5 May 2022 proceeded as follows. Mrs Von Risefer and Mr Von Risefer attempted to file and rely on documents that were transmitted to the Registry on 4 May 2022, but which had not been accepted for filing. Accordingly, the hearing was stood down in order to allow the court staff to locate documentation and to provide an opportunity for consideration by the applicant's lawyers. Registrar Edwards invited the lawyers for the applicant to either make an application to adjourn the hearing in order to provide a written response to this new material or alternatively to address it by the making of oral submissions. The latter course was elected. On that basis Mrs Von Risefer and Mr Von Risefer were permitted to refer to (and I assume it was received in evidence) two documents, one being an affidavit of Mrs Von Risefer dated 23 February 2022 but filed on 5 May 2022 and the other being a document in the form of an unsworn affidavit filed on 5 May 2022. In general terms the first document agitates arguments to the effect that the process server acted in breach of unspecified COVID-19 restrictions in serving the bankruptcy notices; that an unresolved appeal from the decision in the Magistrates' Court had been brought in the Supreme Court; that Registrar Hird wrongly made the substituted service orders on 30 November 2021; that a police report had been lodged for "more than 60 illegal intercepted telephone calls"; that some sort of defamation claim was to be brought against the applicant and that an adjournment should be granted pending the resolution of the Supreme Court appeal. The other, in a somewhat unsatisfactory manner, purports to be a list of assets comprising: a house "owned by the family" at Ferny Creek, which was destroyed by arson in 2012; a house on 10 acres of land "that was repossessed by the Commonwealth Bank" and sold in 2015; a claim in the County Court "pending for undervalue sale and wrong possession" by the bank; an unspecified claim for damages against the Yarra Ranges Council and a defamation claim "due to be lodged" against Ms Gangur, that is somehow related to an apparently false insurance claim. Those affidavits are largely unintelligible.
56 Returning to the affidavit of Ms Gangur, I find that the applicant's lawyers put submissions to Registrar Edwards in response to this material and at the conclusion of the hearing the registrar reserved her decision to 12 May 2022.
57 I am satisfied that Registrar Edwards did not misuse her discretion to refuse to grant a further adjournment of the hearing on 5 May 2022 on any of the grounds now relied upon by Mrs Von Risefer and Mr Von Risefer. As to their inability to obtain legal representation, there was ample time to do so within the period between 27 January 2022 and 5 May 2022. Mrs Von Risefer and Mr Von Risefer failed to provide any satisfactory evidence or explanation as to their inability to obtain legal representation within that period. Further, it must not be overlooked that, according to the evidence of Ms Gangur, each has considerable experience in acting as a self-represented litigant (though usually Mrs Von Risefer is the leading advocate) through nine legal proceedings commencing with a case in the Supreme Court of Queensland in 2001, which ultimately resulted in a failed application for special leave to appeal to the High Court and which I note commenced with an application by Mrs Von Risefer for an adjournment: Von Risefer v Permanent Trustee Co Ltd [2003] HCATrans 354.
58 The next claim is that Registrar Edwards ignored the extant appeal from the decision of the magistrate to the Supreme Court. The history of that appeal is set out in considerable detail in a further affidavit of Ms Gangur dated 2 September 2022, which evidence I accept and I make the following findings of fact. Mrs Von Risefer and Mr Von Risefer filed a notice of appeal on 25 May 2021. A first case management hearing was conducted before a judicial registrar on 4 August 2021. The form of the notice of appeal was the subject of adverse comment. In response, Mrs Von Risefer and Mr Von Risefer requested an adjournment in order to prepare an amended notice of appeal. The directions hearing was adjourned to 24 August 2021. Mrs Von Risefer and Mr Von Risefer did not satisfy the court's requirements for amended documentation. Instead, they made an application for a stay of the Magistrates' Court judgment pending the determination of the appeal. That application was adjourned to 24 August 2021, and Mrs Von Risefer and Mr Von Risefer were directed to file and serve any affidavits they intended to rely upon in support by 4 pm on 13 August 2021. . The stay application was dismissed on 24 August 2021. A reason given by the judicial registrar was that:
The court is not satisfied the notice of appeal identifies sufficiently a question of law, or any question of law, on which leave to appeal might be granted and the grounds relied on do not justify the grant of a stay.
59 Procedural orders and directions were then made to advance the appeal. The appeal was listed for hearing on 11 August 2022, and various orders were made requiring Mrs Von Risefer and Mr Von Risefer to prepare a court book, file and serve an outline of submissions and leave was granted to serve an amended notice of appeal on or before 22 September 2021. On 12 April 2022, the lawyers for the applicant (the respondent to the Supreme Court appeal) filed an application that the appeal be dismissed on the grounds that either it had no prospect of success or by reason of various failures to comply with the orders made on 24 August 2021. The hearing of that application was dealt with by Associate Justice Matthews on 3 June 2022. She dismissed the appeal. Her Honour's reasons are more than adequately summarised in the preamble to the formal order. Her Honour was aware of the making of the sequestration order on 12 May 2022 and the consequential effect of s 58 the Bankruptcy Act. Importantly, her Honour dismissed the appeal for the reason that Mrs Von Risefer and Mr Von Risefer failed to comply with seven of the procedural orders that were made on 24 August 2021.
60 Thus, in the Supreme Court appeal, Mrs Von Risefer and Mr Von Risefer had a very considerable period of time (before the making of the sequestration orders) to prosecute the appeal within the period 25 May 2021 until 12 May 2022. No explanation that is adequate has been proffered by Mrs Von Risefer or Mr Von Risefer to explain that failure. Registrar Edwards was clearly aware of the Supreme Court appeal: it was first brought to her attention by the lawyers for the applicant at the first return date of the hearing of the creditor's petition on 24 January 2022 which is the evidence of Ms Gangur in her affidavit of 11 August 2022 (which I accept) and I further accept her summary that :
The Second Respondent (Mrs Von Risefer) was unable to articulate the status of the Supreme Court Appeal at the time and therefore Registrar Edwards requested for my solicitors for assistance at the hearing to understand the status of the Supreme Court Appeal.
At the hearing on 24 March 2022, my solicitors informed me that Registrar Edwards advised that she required the Applicant to file material regarding the Supreme Court appeal for her consideration.
Accordingly, my solicitors advised me to file a strike out application in the Supreme Court Appeal to dismiss those proceedings as the Respondents had no prospect of success in those proceedings. This would also assist the Applicant to succeed against the Respondents in the Bankruptcy Proceeding.
61 In submissions before me, Mrs Von Risefer repeatedly emphasised her view that this amounted to improper conduct by the applicant and or by the office of the Official Trustee, the latter in failing to prosecute the Supreme Court appeal. There is evidence that the Official Trustee advised the applicant's solicitors that the appeal would not be prosecuted. None of that establishes improper conduct. It was a perfectly legitimate decision for the applicant to seek to terminate the Supreme Court appeal because of substantial non-compliance with the procedural orders that were made. Further, it is perfectly normal for a respondent to litigation, following the making of a sequestration order against an applicant, to seek advice from the trustee in bankruptcy as to whether legal proceedings that were commenced by the applicant are to be proceeded with. There is simply no merit in the speculative and unfounded submissions of serious misconduct that were put to me by Mrs Von Risefer concerning how the Supreme Court appeal was ultimately terminated.
62 It also follows from this analysis that there is no merit in the contention that Registrar Edwards ignored the fact of the appeal to the Supreme Court of Victoria.
63 The next ground, 3(b), is unintelligible as there is no rule 4.10 or 5.4 of the Bankruptcy Rules that is concerned with the adjournment of a creditor's petition. Ms Carruthers submits that this may be an intended reference to a publication of this Court: Bankruptcy Information Sheet 3- Opposing a Creditor's Petition. Even if one assumes that this is the intended reference, paragraphs 4.10 and 5.4 contain general information relating to adjournment applications, but do not assist the argument that Registrar Edwards in the particular circumstances of the proceeding before her, wrongly exercised her discretion to refuse a further adjournment application at the hearing on 5 May 2022. This contention therefore is of no merit.
64 Ground 3(c), appears to be a contention that Registrar Edwards wrongly concluded that Mrs Von Risefer and Mr Von Risefer were served, one assumes with the bankruptcy notice and or the creditor's petition, in accordance with the requirements of the Bankruptcy Act. For the reasons that I have set out in detail, I am satisfied that service was lawfully effected for each of the bankruptcy notice and the creditor's petition and this contention is of no merit.
65 Ground 3(d) would appear to involve two points. One relates to the ending of the Supreme Court appeal, which I have addressed above. The other should be understood to be an application to engage my discretion to look behind the judgment debt in the Magistrates' Court, in order to be satisfied that there is in truth a judgment debt owing and which founds the bankruptcy notice and the creditor's petition. I recently had cause to summarise the principles that apply to the exercise of this discretion in Russo v CHEP Australia Ltd [2022] FCA 949, and for convenience I set out the relevant paragraphs from that judgment primarily by reference to Ramsay:
40. What is sought to be attacked by the appeal grounds is error which infects the exercise of the discretion by the primary judge not to "go behind" the default judgment for the reasons identified at PJ [33]. Before turning to how the discretion was exercised in this matter, it is important to understand the nature of the discretion, the favourable exercise of which was sought by Mr Russo. The plurality reasons of Kiefel CJ, Keane and Nettle JJ in Ramsay addressed the existence and scope of the discretion in the following passages:
54. In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as "res judicata" between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order. A Bankruptcy Court has a statutory duty to be "satisfied" as to the existence of the petitioning creditor's debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.
55. The scrutiny required by s 52 as to whether there is, in truth and reality, a debt owing to the petitioning creditor serves to protect the interests of third parties, particularly other creditor's of the debtor. It is of critical importance to appreciate that such persons were not parties to the proceedings that resulted in the judgment debt. It has long been recognised that their interest in being paid their debts in full should not be prejudiced by the making of a sequestration order in reliance on a judgment debt which does not reflect the true indebtedness of the debtor to the petitioning creditor....
...
72. The Full Court was correct to conclude that there was a substantial question as to whether the debt on which Ramsay relied was owing. That being so, the Bankruptcy Court should proceed to investigate this question in order to decide whether it was open to it to make a sequestration order.
(Footnotes omitted.)
41. In separate concurring reasons, Edelman J at [110] and [111] said in part;
...The circumstances which enliven the discretion to go behind the judgment are not constrained to any categories, even when the judgment debt was obtained after a contested hearing. As for the exercise of the discretion to go behind the judgment and to conduct a hearing into whether the underlying debt existed (which was not in issue on this appeal), Barwick CJ said in Wren v Mahony that the discretion to accept a judgment as satisfactory proof of a debt "is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner". The reference to "substantial reasons" echoed the language of earlier cases including a reference to "a prima facie case impeaching the judgment", by which the courts meant that there were prima facie grounds upon which a court of equity would choose to intervene.
Whether a matter will amount to substantial reasons so as to permit the exercise of the discretion will depend upon the particular circumstances. But, as history shows, where a judgment debt has been obtained after the testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which merged in the judgment was truly owed
(Original emphasis. Footnotes omitted.)
42. On the evidence that was before the primary judge, the substantial reason or issue that Mr Russo agitated in order to enliven the discretion to inquire into the existence of the underlying debt concerned the authority of Mr Singh to place orders for pallets on behalf of the company. If the primary judge had been satisfied that the circumstances as presented to him justified the exercise of his discretion to inquire into whether he should accept the default judgment as satisfactory proof of the debt relied upon by CHEP, then, as the second step, his Honour was obliged to conduct a hearing into that issue (although in appropriate cases the steps may be combined): Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 at [34], Bromberg, Mortimer and Lee JJ.
43. On the first question Mr Russo carried the initial or tactical onus: Ali v Retail Decisions Pty Ltd [2012] FCA 1130 at [20], Bromberg J. Further, as has been frequently remarked, where the judgment relied upon was obtained by default "the court in bankruptcy will more readily look behind" it: Wolff v Donovan [1991] FCA 222; (1991) 29 FCR 480 at 486, Lee and Hill JJ.
66 Further, as Ramsay demonstrates, the fact that a judgment debt has been entered in consequence of a defended hearing is not of itself a reason to refuse to exercise the discretion if the circumstances of the case justify taking that course. When the argument was developed by Mrs Von Risefer, and to a lesser extent Mr Von Risefer, before me various assertions (unsupported by the evidence) were relied upon: in summary, the magistrate was biased, the magistrate failed to afford procedural fairness, the Supreme Court appeal would have succeeded, there were many appeal grounds, the magistrate should not have preferred the evidence given by witnesses for the applicant and the defendants (or some of them) had a counter-claim or set-off which was ignored by the magistrate. I attempted to explain to Mrs Von Risefer that my discretion is not one to review, as if sitting upon an appeal, the reasoning and orders made by the magistrate, particularly by reference to paragraph [54] from the plurality reasons in Ramsay. Despite my attempt at guidance, Mrs Von Risefer persisted with her submissions.
67 I am not satisfied that Mrs Von Risefer and Mr Von Risefer have established any substantial reason or question to exercise my discretion to look behind the judgment entered in the Magistrates' Court. I reject their submissions as divorced from the evidence, irrational in part and objectively untrue. What must be recalled is that the magistrate conducted a hearing over nine days (although not all full days), received evidence from numerous witnesses, that evidence was tested by cross-examination, conducted largely by Mrs Von Risefer, and from the reasons that have been provided (the summary in the affidavit of Ms Gangur) and the partial transcript attached to the affidavit of Mrs Von Risefer dated 12 September 2022, I am quite satisfied that the magistrate conducted a procedurally fair hearing at which Mrs Von Risefer and Mr Von Risefer had more than adequate opportunity to present their defence. Further, despite the prospect of a set-off or counter-claim being raised in the Magistrates' Court proceeding (and at least one adjournment having been granted to enable that to be done), the fact is that no set-off or counter-claim was filed in the proceeding.
68 From the partial transcript of the magistrate's reasons I note that he accepted the plaintiff's evidence as to the standard of the products to be supplied and installed; accepted that the products as delivered suffered from numerous defects; noted that in an attempt to mitigate its loss the plaintiff used some of the defective products (with the consequence that the quantum of its claim reduced); rejected the defence that despite the defects the plaintiff accepted the goods upon inspection on or about 4 January 2017 and characterised a large number of the arguments and submissions of the defendants as having no merit. The magistrate further found that Mrs Von Risefer and Mr Von Risefer engaged in conduct that was misleading or deceptive or likely to mislead or deceive when they made various misrepresentations about the delivery, installation and quality of the goods to be supplied in order to obtain various pre-payments. None of this supports the submission that in truth the judgment debt is not owing.
69 There is no evidence to support the quite unsubstantiated claim of bias by the magistrate.
70 Although not the subject of any particularised ground in the review application, certain further arguments were put to me, primarily by Mrs Von Risefer. One, is that the costs order is not justified by reference to the scale of costs that applies to this type of proceeding in the Magistrates' Court. The short answer to that is that the magistrate exercised his discretion to make a costs order by reason of the unreasonable failure by the defendants to accept one of two Calderbank settlement offers that were made before the commencement of the trial. Another is that there is a discrepancy in the interest that was awarded. The partial transcript of the magistrate's reasons records the total amount of interest claimed of $16,949.73, calculated for the period 31 May 2017 until 20 April 2021. The certified extract of the judgment entered, as attached to the bankruptcy notice, is dated 15 June 2021 and the total amount of interest therein awarded is $17,021.37. In consequence, Mrs Von Risefer submitted to me that either the bankruptcy notice should be set aside as invalid or that I should exercise my discretion to investigate this discrepancy. I am not satisfied that either course should be taken: the simple explanation for the difference is that interest accumulated between the date that the magistrate delivered his reasons and the date that the formal order was taken out.
71 That last submission of Mrs Von Risefer was taken further by submitting that the Magistrates' Court order endorsed "fraudulent actions" by the plaintiff in that proceeding. When pressed by me to identify the basis of the fraud, I was taken to documents that evidence the settlement of an insurance claim between AIG Australia Ltd and the applicant for an amount of $14,000 in resolution of a claim made by the insured in consequence of the fraudulent conduct of one of its former employees. The recitals to the deed of settlement and release record that the applicant claimed indemnity from the insurer in the amount of $43,031.98 in consequence of an allegedly fraudulent arrangement between one of the applicant's employees and Outdoor Kitchens Group Pty Ltd. It is further recorded that the applicant commenced a proceeding against the insurer in the Magistrates' Court in order to recover the indemnified sum. The insurer denied liability, but without admission agreed to pay the applicant $14,000 in full settlement and in exchange for the usual releases.
72 None of that is evidence of fraud. What is not understood by Mrs Von Risefer is that the existence of insurance which indemnifies an insured for defined loss does not extinguish the claim of the insured against a third party, or by the insurer in exercise of the right of subrogation. It is a core principle of insurance law that a third party cannot avoid liability to an insured on the basis that there is a full or partial indemnity for the loss claimed: Bradburn v The Great Western Railway Company (1874) L.R. 10 Ex 1 where Bramwell B was "dismayed" by an argument to the contrary.
73 Finally, under this general group of complaints about in the judgment debt, Mrs Von Risefer submitted that no costs should have been awarded in the Magistrates' Court proceeding as the solicitors for the applicant in this matter, an incorporated legal practice, was not incorporated until 5 July 2019. I do not accept that for two reasons. One, the solicitor on the record in the Magistrates Court proceeding was the firm P W Sotir & Co. save for the period 13 October 2017 to 7 May 2018. And the other is that self-evidently, the corporate entity could not have acted prior to the date of incorporation: it must be the case that a predecessor firm with the same name or a similar name acted for the applicant as recorded in the magistrate's reasons.
74 Ground 3(e) contends that Registrar Edwards ignored the apparent fact that Mrs Von Risefer and Mr Von Risefer as self-represented litigants were disadvantaged in that no consideration was given to certain "active cases" in the Victorian Civil and Administrative Tribunal and the County Court of Victoria against the Commonwealth Bank and the Yarra Ranges Shire Council respectively that is somehow related to the loss of a property at Ferny Creek in 2019. In support of that contention I was taken to a decision of Bell J in Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 where his Honour upon judicial review set aside certain orders made in the County Court of Victoria which had struck out, for non-attendance, appeals lodged to it from a conviction entered in the Magistrates' Court of Victoria for certain offences contrary to the Building Act 1993 (Vic). The prosecution related to a home that was destroyed by fire on 26 August 2012 at 132 Belgrave-Ferny Creek Road, Tecoma. The responsible municipal authority on 13 September 2012 issued certain orders under the Building Act requiring the damaged building to be secured or demolished. Those orders were addressed to Ms Matsoukatidou and her mother Betty Matsoukatidou.
75 By this point a reader of this judgment might think: what does this case have to do with the bankruptcy proceedings? At an impressionistic level, nothing until one delves deeper as revealed by this extract of the submissions put by Mrs Von Risefer to me on 21 September 2022:
HIS HONOUR: What do you want to hand up now?
MS VON RISEFER: This is a case - my case in the Supreme Court with the loss of my house. I've been prosecuted by the Yarra Ranges and I have Bell J at the moment.
HIS HONOUR: So you want to refer me to an authority? Yes, you can refer me to an authority. So - - -
MS VON RISEFER: This is an authority I got to print.
HIS HONOUR: Yes. It's all right. Well, just - - -
MS VON RISEFER: And I got a copy for - so a fair trial and impartial - it's everyone's decision. Because it's very long, you can go on the back - on the last page where - by the way, Maria - Maria - it's my daughter. And she suffered - my son - he suffered great abuse from the Magistrate Court because he was ready to say that Maria - she got a disability as a witness. And he attacked my son in - in the courtroom. And that must be - - -
HIS HONOUR: So why are you referring me to a case involving your daughter?
MS VON RISEFER: Your - no, I - to refer to the principles of a fair hearing and….
76 At that point the submissions of Mrs Von Risefer pivoted, and evolved into a contention that I had failed to afford to her a fair hearing in that I rejected her attempt to rely upon further affidavit material filed after the close of the evidence and shortly prior to the resumption of submissions on 21 September 2022. I have explained why I rejected that evidence, and there is no merit in the contention that in doing so I failed to afford procedural fairness.
77 Returning to the Supreme Court decision, Mrs Von Risefer did not explain to me how this case involved her house when the judgment does not record her as a party. She did not lead evidence that she changed her name at some relevant point in time. If she is to be believed that Maria in that decision is her daughter, then by a not inconsiderable speculative pathway it might be said that "Betty" in that decision is a reference to Mrs Von Risefer, perhaps by a former name, or an alias by which she became one of the property owners. I am prepared to assume those facts in her favour. But they do not assist her. In the judgment of Bell J, the applicants successfully established that the County Court judge who heard the appeal failed to afford procedural fairness to each as self-represented litigants, particularly by reference to the obligations cast upon courts and tribunals by the Charter of Human Rights and Responsibilities Act 2006 (Vic), in striking out their respective appeals in their absence. There is no mention in the judgment of any civil claim, actual or proposed, against the Commonwealth Bank or the Yarra Ranges Council.
78 Further, no evidence of the commencement of any claim for damages against the Commonwealth Bank or the Yarra Ranges Council was adduced before me. No factual basis from which one may infer that a damages claim is open was set out in the evidence, save for an oblique assertion in the unsworn document in the form of an affidavit of Mrs Von Risefer dated 5 May 2022 where it is said:
House owned by the family in 132 Belgrave ferny creek road in 2012 was burned by arsonists in August
House and 10 acres of land was repossessed by commonwealth bank and sold in 2015
Claim in county court pending for under value sale and wrong possession by the bank as well
Vcat claim against Yarra ranges city council pending in September 2022 hearing.
Defamation claim is due to be lodged against Ping Gangur against the whole family of wrong claims in her insurance falsely claims $100.000 in the Magistrates Court
(sic.)
79 To the extent that these sentences might be characterised as evidence, they are too vague and imprecise to found factual findings on the question whether Mrs Von Risefer or Mr Von Risefer are able to pay their debts where they carry the onus: s 52(2)(a) of the Bankruptcy Act. An evidentiary basis must be set out in order to conclude that as a fact the debtor has a genuine claim with a likelihood of success and in an amount or amounts that equate or exceed the creditor's debt: Re Kostezky; Ex parte Milder Elfman Szmerling Kryer Pty (1996) 67 FCR 101 at 105-106, Sundberg J; Ling v Enrobook Pty Ltd (1997) 74 FCR 19 at 25-26, Davies, Wilcox and Branson JJ. These assertions are just that and amount to no more than speculative hyperbole.
80 For these reasons there is no merit in ground 3(e). Arguably there is another ground expressed in the paragraph numbered six in the review application: that the decision of Registrar Edwards was "unfair and biased". There is simply no evidence to support that contention, and I reject it.
81 Accordingly, there is no merit in the review application.
Grounds of opposition to the creditor's petition
82 I turn next to the grounds of opposition to the creditor's petition filed on 18 March 2022 ( without correcting for grammatical, spelling or punctuation errors):
1. The bankruptcy notice was issued in 28 June 2021 address in 78 Ryelands dr In Narre Warren which was residential address in 2018 in the magistrate court and appeal in Supreme Court our address is 21 Oakwood court Templestowe 3106
2. Registrar Hird excepted service affidavit only made by the server against the 3.4 bankruptcy information sheet 5 with out the requested by the practice quidence
3. Server Kenneth Ramsshaw was in breach of the Covid restrictions and required rules not to nock the door during the lockdown in Melbourne with out mask neither to approach any one as he alleged in his affidavit neither given evidence of investigate the matter neither he left any documents in the letter box which by the way wasn't allowed by the Covid restrictions evidence affidavit of Elizabeth Von Risefer sworn on 23 February 2022
4. The notice of bankruptcy proceedings was never been served before the 28 December 2021 according to the issue date of 28 June 2021 last 6 months further is invalid
5. Creditors petition was not served with in 5 days from the order of registrar Hird
6. We denied any debt of the alleged $101*938.38 because there is an appeal in the Supreme Court pending to be heard onl 1 August 2022and summons for the magistrate court judgement be staying pending Supreme Court S ECI 2021/ 01881
7. Grounds to win the appeal in my affidavit sworn on 15 March 2022
83 Ground one appears to contend invalidity in that the bankruptcy notice wrongly stated the address of Mrs Von Risefer and Mr Von Risefer at 78 Rylands Drive Narre Warren, Victoria, when the correct address was the Templestowe address. I find in accordance with the affidavit of Ms Gangur made on 11 August 2022, that at the time of the making of the application for the bankruptcy notice, the applicant reasonably believed that the respondent's resided at the Narre Warren address based on an affidavit made in the Magistrates' Court proceeding. Section 41(2) of the Bankruptcy Act requires the notice to be in accordance with the form prescribed by the Bankruptcy Regulations. Regulation 9 prescribes the form that is set out in the First Schedule. The form requires that an address be stated for the debtor to whom it is addressed, which must be an address in Australia by s 43(1)(b) of the Bankruptcy Act, to found the jurisdiction to make a sequestration order. There is no requirement for the creditor to specify an address that the creditor is unaware of: it is sufficient to state the address last known to the creditor: Mulhern v Official Receiver [2015] FCA 807 at [56], Rangiah J. Although his Honour was concerned with the Bankruptcy Regulations 1996 (Cth), I consider the reasoning as equally applicable to the current provisions. Moreover, this is hardly an invalidating defect within the meaning of s 306(1) of the Bankruptcy Act in that no substantial injustice has been caused. There is no merit in this ground.
84 Ground 2 is unintelligible, was not explained in submissions and for these reasons raises no valid ground of opposition.
85 Ground 3 is a repetition of the COVID-19 service/non-service of the bankruptcy notice point which I have found is of no merit.
86 Ground 4 is a misconceived assertion that the bankruptcy notice was not served within six months as required by r. 10 (1) of the Bankruptcy Regulations 2021. The notice was issued on 28 June 2021 and served on 28 August 2021. The false contention of Mrs Von Risefer rests upon her untruthful evidence that service was not effected on 28 August 2021.
87 Ground 5 rests upon another untruthful factual assertion made by Mrs Von Risefer. Orders were made for substituted service of the creditor's petition on 30 November 2021, and I find as a fact that service was effected on 2 March 2022 at 2:09 pm by delivery of the required documents to the letterbox at the Templestowe address, which documents were contained in separate envelopes addressed to Mrs Von Risefer and Mr Von Risefer as deposed to in the affidavits of Justin Hogg sworn on 4 March 2022.
88 Ground 6 is a denial of the judgment debt, particularly by reference to the Supreme Court appeal and is of no merit for the reasons I have set out.
89 Ground 7 asserts a likelihood that the Supreme Court appeal would have succeeded. There is no basis for that assertion. The appeal was dismissed by Matthews AsJ on 3 June 2022 for the reason that it was not prosecuted as required by the procedural orders made by Judicial Registrar Keith on 24 August 2021. The dismissal of the appeal is the consequence of the inertia of Mrs Von Risefer and Mr Von Risefer.
90 Despite the length of the grounds set out in the review application and the opposition to the creditor's petition, even more contentions were advanced, particularly by Mrs Von Risefer at the hearing. They can be shortly dealt with as, once again, none is of any merit:
(a) It is said that the trustee in bankruptcy should have continued with the Supreme Court appeal. The trustee was not obliged to do so, and frankly one can well understand why the trustee wanted to have nothing to do with the appeal;
(b) A general assertion fraud is made against the applicant and the trustee in bankruptcy in that each, it is said, colluded to have the Supreme Court appeal dismissed. That is complete nonsense;
(c) Many submissions were made to the effect that the creditor's petition is invalid and an abuse of process in that it was first issued in the Federal Circuit Court of Australia. This submission was expanded to embrace a contention that because some of the affidavits of service were titled in that court, it must follow that the entire proceeding is invalid. A creditor's petition was filed in this Court, but incorrectly titled in the Federal Circuit Court, on 22 October 2021. When that error was noticed an amended and correctly titled petition was filed on 25 November 2021, which is the petition I am concerned with. And the fact that some of the affidavits that were read before me incorrectly referred to the Federal Circuit Court, most certainly does not make the content of those affidavits "invalid",
(d) A claim is made that the substituted service order for service of the creditor's petition made by Registrar Hird on 30 November 2021 is invalid in that it was made upon documents filed "in the wrong court". That is not so: the sealed order was made in this Court. Mrs Von Risefer has managed to completely confuse herself by not appreciating that the applicant does not proceed upon the petition with the incorrect reference to the Federal Circuit Court as explained in the affidavit of Marianne My-An Phan made on 2 September 2022 at paragraphs [18] - [22], which evidence I accept and I find accordingly;
(e) It is not correct that the applicant failed to disclose the existence of the Supreme Court appeal, before the sequestration orders were made in this Court. I accept the evidence of Ms Gangur in her affidavit of 11 August 2022 at paragraphs [55] - [62] which is to the effect that Registrar Edwards was informed of the fact of the Supreme Court appeal as early as 24 January 2022;
(f) Some utterly irrelevant assertions were made about a claimed illegal interception of telephone calls made to or from Mrs Von Risefer by Ms Gangur. That claim has nothing whatsoever to do with this proceeding;
(g) Mrs Von Risefer claims that she and Mr Von Risefer were wrongly named as parties to the Magistrates' Court proceeding. That assertion cannot be reconciled with what happened in the Magistrates' Court; and
(h) As a fact, the creditor's petition was amended at paragraph 4 so as to substitute 20 September 2021 for the date of 28 June 2022, that being the last day for compliance with the bankruptcy notices served on 28 August 2021. Leave to do so was granted pursuant to an order made by Registrar Edwards on 12 May 2022. The manner in which the amendment was ultimately made is a little confusing in that there appears on the creditor's petition a strike through of the service date, rather than the wrong date for the commission of the act of bankruptcy. That typographical error is hardly of any consequence in that what is important is the order made by Registrar Edwards. The creditor's petition is not invalid by reason of that clerical mistake.
91 For these somewhat detailed reasons I have concluded that none of the points or arguments relied upon by Mrs Von Risefer or Mr Von Risefer upon the review and in opposition to the creditor's petition have any merit.