Dart v Singer

REASONS FOR JUDGMENT 1 The appellants, Frederick William Dart and Megan Ann Hajridin, have applied for an extension of time to seek leave to appeal and for leave to appeal against a judgment of the Federal Circuit Court of Australia delivered on 20 January 2015. By that judgment, the Federal Circuit Court made a sequestration order against each appellant's estate. 2 Under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), a litigant may appeal as of right to this Court against a final judgment of the Federal Circuit Court. The judgment of the Federal Circuit Court was final, as it finally determined the substantive rights of the parties: cf Cubillo v Commonwealth (2001) 112 FCR 455 at [182]. Accordingly, leave to appeal, although sought, is not required. 3 It follows that the proper application before this Court is an application for an extension of time to file a notice of appeal. I directed that the application for an extension of time and any appeal be heard together. 4 The appellants did not have legal representation before the Federal Circuit Court or this Court. However, I gave Mr Dart leave to make submissions on behalf of Ms Hajridin. 5 The appellants should be granted an extension of time to file their notice of appeal, but the appeal should be dismissed for the reasons that follow.

History of the matter 6 There was substantial litigation leading to the making of the sequestration orders. It is necessary to set out something of the history of the matter in order to place the appellants' application into context.

2008 Prosecutions 7 In July 2008 the second respondent, the Royal Society for the Prevention of Cruelty to Animals ("the RSPCA"), seized a number of animals owned by the appellants following the execution of a warrant obtained under the Animal Care and Protection Act 2001 (Qld) ("the ACP Act"). In late 2008, the appellants pleaded guilty to 131 offences under the ACP Act relating to the mistreatment of various animals, including dogs, rats, guinea pigs and birds. 8 On 12 December 2008, the appellants were fined $12,500 each in the Magistrates Court in Townsville for their contraventions of the ACP Act and were placed on probation for two years. The Magistrate further ordered that various animals seized in July 2008 be forfeited to the RSPCA and that the appellants pay the RSPCA the sum of $57,161.30 for the cost of taking possession of and caring for the animals. Importantly, the Magistrate made the following prohibition order: I order that each of the defendants, Frederick DART and Megan HAJRIDIN having been convicted of an animal welfare offence must not purchase or otherwise acquire or take possession of any dog or rat for trade or commerce, for a period of two years from this date. 9 The appellants appealed to the District Court of Queensland against the orders made by the Magistrates Court. The District Court delivered judgment on 11 December 2009. The appellants succeeded in having their fines and cost orders reduced, but their appeal was otherwise dismissed with costs. Relevantly, the District Court did not disturb the prohibition order made against the appellants. 10 The appellants applied to the Court of Appeal for an extension of time and leave to appeal against the orders of the District Court. The appellants relied on an agreement executed in November 2007 between the RSPCA and the Department of Primary Industries and Fisheries which purported to limit the powers of RSPCA inspectors. The appellants submitted that the effect of the agreement was that the RSPCA had no power to obtain the search warrant, to enter upon their property, or to deal with the animals which led to their charges under the ACP Act. 11 On 30 March 2010, the Court of Appeal dismissed the appellants' applications for an extension of time and leave to appeal: Dart & Anor v Singer [2010] QCA 75. 12 The appellants then applied to the Supreme Court of Queensland for judicial review of the Magistrate's orders of 12 December 2008. There is a transcript in evidence of the proceeding before Cullinane J on 4 March 2011. There it is explained that the appellants sought to have their 2008 convictions set aside on the basis of a miscarriage of justice, the miscarriage apparently being that there were defences available to the appellants at the time of entering their guilty pleas but that their solicitors had failed to bring this advice to the appellants' attention. Cullinane J held that the application provided no reasonable basis for an order setting aside the convictions and dismissed the appellants' application with costs to be assessed. 13 A certificate of the costs assessor was filed on 28 January 2014. The costs payable by the appellants to the respondents were assessed as $25,987.32. On 29 January 2014, pursuant to the order of Cullinane J made on 4 March 2011, a Registrar of the Supreme Court ordered that the appellants pay the respondents' costs of the proceeding certified as $25,987.32. 14 The appellants filed an application in the Supreme Court seeking review of the costs assessment. On 3 June 2014, North J dismissed the application with costs. 15 The appellants then applied to the Supreme Court seeking, inter alia, an order that they be allowed to make payment by instalments in respect of the costs order made by Cullinane J. That application was dismissed with costs in September 2014.

2011 Prosecutions 16 The appellants were convicted of further offences under the ACP Act in late 2011. The convictions followed from a "sting" operation conducted by the RSPCA on 22 December 2008 and a search warrant executed on 30 December 2008. That operation resulted in the seizure of various animals including dogs, rats and mice at the appellants' property. 17 Ms Hajridin was charged with four breaches of the prohibition order made by the Townsville Magistrate on 12 December 2008, five offences of breach of duty of care and one count of possession of a seized animal under the ACP Act. Mr Dart was charged with one breach of the prohibition order, five offences of breach of duty of care and one count of possession of a seized animal under the ACP Act. 18 On 7 November 2011, the appellants were found guilty of all charges brought against them by the RSPCA: Singer v Dart & Ors [2011] QMC 37. A Magistrate sentenced Mr Dart to three years' probation for contravening the prohibition order and the five counts of breaching his duty of care. Ms Hajridin was sentenced to three months' imprisonment suspended after one month for an operational period of 12 months on four counts of contravening the prohibition order. Both appellants were fined $2,000 each for the offence of possessing a seized animal. A further prohibition order was imposed on Ms Hajridin preventing her from purchasing, acquiring or otherwise taking possession of any animal for trade or commerce for a period of five years. All animals seized during the investigation, together with any other animals registered with or in the possession of the appellants, were ordered to be forfeited to the RSPCA, save for any companion animals permitted by local government laws. The Magistrate ordered the appellants to pay the RSPCA the sum of $80,481.20 for the cost of seizing and caring for the forfeited animals. 19 Both appellants appealed to the District Court against their conviction and sentences. The District Court delivered judgment on 21 December 2012. Mr Dart's appeal was dismissed. Ms Hajridin's appeal against her conviction was dismissed, but the District Court allowed her appeal against sentence, varying her term of imprisonment so that it was wholly suspended. In respect of Ms Hajridin, the other sentences, forfeiture order and costs orders made by the Magistrates Court were expressly confirmed by the District Court. There was no specific confirmation of the forfeiture order made in respect of Mr Dart. 20 On 10 September 2013, the Court of Appeal granted the appellants an extension of time for leave to appeal and leave to appeal from the District Court's orders: Dart v Singer; Hajridin v Singer [2013] QCA 255. The Court of Appeal limited the appellants' appeal to the following questions: • whether the [appellants] contravened the prohibition order of 12 December 2008 if the respondent failed to establish that they did not purchase or otherwise acquire or take possession of any dog or rat for trade or commerce prior to the date of the prohibition order; and • if so, whether their convictions for the offences of contravening the prohibition order should be quashed and verdicts of acquittal entered; and • if so, whether their sentences for their remaining convictions should be varied. 21 It may be seen that the appeal was concerned only with contraventions of the prohibition order made by the Magistrates Court on 12 December 2008. The remaining convictions against the appellants on 7 November 2011 in respect of breach of duty of care and possession of a seized animal were not the subject of the appeal. 22 On appeal, the appellants contended that the prohibition order did not extend to animals in their possession before the date on which the order was made and that as a result, the Magistrate fell into error by finding them guilty of contravening the order. 23 The Court of Appeal determined that the prohibition order had only a prospective effect: Dart v Singer; Hajridin v Singer [2014] QCA 263. President McMurdo found at [8] that, "It was therefore reasonably possible that the animals in the possession of the appellants on 22 and 30 December 2008, only days after the prohibition order was made, were already in their possession at the time of the order". The Court held that the evidence before the Magistrate was insufficient to prove that the animals were not in the appellants' possession prior to 12 December 2008. Accordingly, the Court of Appeal allowed the appeals and ordered that the first respondent pay the appellants' costs of the appeals. Mr Dart's conviction for contravening a prohibition order and three of Ms Hajridin's four convictions for contravening a prohibition order were set aside. 24 In respect of Mr Dart, the Court of Appeal expressly confirmed "the ancillary orders" of the Magistrates Court made on 1 December 2011. Those ancillary orders include the forfeiture order. While the Court of Appeal did not specifically confirm the forfeiture order made against Ms Hajridin, the forfeiture order made by the Magistrates Court was left undisturbed. 25 After the Court of Appeal handed down its judgment, the appellants commenced proceedings against the respondents in the Supreme Court of Queensland. Their claim and statement of claim can be construed as seeking damages for negligence, trespass to property, false imprisonment and malicious prosecution.

In the Federal Circuit Court of Australia 26 The respondents served bankruptcy notices on Mr Dart and Ms Hajridin on 28 April and 1 May 2014 respectively. The judgment debt underlying each notice was for $25,987.32 plus interest of $502.30. That amount is traced to the order of a Registrar of the Supreme Court made on 29 January 2014 pursuant to the costs order of Cullinane J made on 4 March 2011 described earlier at [12]-[13]. 27 On 12 June 2014, the respondents filed a creditor's petition. The respondents alleged that the appellants had failed to comply with the bankruptcy notices described above. 28 The creditor's petition came before the learned primary Judge for hearing on 27 October 2014. The appellants sought an adjournment of the hearing, but it was refused. The appellants placed the claim and statement of claim before the Court. The appellants put an argument to the primary judge, both in an affidavit and orally, that a sequestration order should be refused because they had a set-off, counter-claim or cross demand against the second respondent. They argued that the first respondent, Clifford Singer, an officer of the RSPCA, had obtained a warrant when he could have had no reasonable basis for believing that there was a breach of the prohibition order, and that the warrant was invalid. The appellants alleged that officers of the second respondent had unlawfully entered their property, detained them and seized their animals and had maliciously prosecuted them in the Magistrates Court. 29 In his reasons, the primary judge referred to the 2008 prosecutions and the lengthy litigation that followed. His Honour then described the proceedings giving rise to the costs order which founded the bankruptcy notices. 30 In respect of the 2011 prosecutions, his Honour said: In fact, there have been further appeals from decisions of the District Court of Queensland made to the Supreme Court of Queensland and, to some degree, success has been forthcoming for the respondents. However, the various proceedings and appeals in the State Courts have not related to the costs order made on 4 March 2011, or the assessment of costs and the order relating to costs made on 29 January 2014. 31 The primary Judge noted that the appellants had sought to file an application to have the bankruptcy notices set aside, but that the appellants were out of time and did not press the application. 32 The primary judge proceeded to consider the matters specified in s 52(1) of the Bankruptcy Act 1966 (Cth), but did not refer to s 52(2). His Honour held on the material before him that the debt was due and owing and had not been paid. His Honour made orders for sequestration of the appellants' estates.

Grounds of appeal 33 The appellants seek to appeal from the whole of the judgment of the Federal Circuit Court. Their draft notice of appeal sets out seven grounds of appeal: 1. That the Honourable Judge Coker erred when he failed to properly consider, or consider at all, as another sufficient cause not to make the sequestration order, that pursuant to section 40(1)(g) of the Bankruptcy Act 1966, the [Appellants] had a counter-claim, Supreme Court Claim 795 of 2014 (the claim), substantially exceeding the amount of the sum payable to the Respondents under the final order, being a counter-claim, that could not have been set up in the proceeding in which the order was obtained. 2. That having made the Order that the Honourable Judge made, without due consideration to the [Appellants'] claim, the [Appellants], by operation of Judge Coker's Order and the operation of the Bankruptcy Act 1966 (the Bankruptcy Act), have now been denied their natural justice right, to pursue damages for economic losses that formed part of the [Appellants'] claim, and that are directly attributable to the actions of the First Respondent and/or the Second Respondent as the then, employer of the First Respondent. 3. That having made the Order that the Honourable Judge made, the [Appellants], having been granted leave to re-plead their claim, following an Application made by the Second Respondent to strike out the [Appellants'] claim, are now, by the effect of Judge Coker's Order and the operation of the Bankruptcy Act, denied their natural justice right to properly commence proceedings for compensation and damages that fall within the meaning of the Personal Injuries Proceedings Act 2002 (PIPA) that formed part of the [Appellants'] originating claim, but had not first complied with the PIPA, and that are directly attributable to the actions of the First Respondent and/or the Second Respondent. 4. That it is not in the interests of Justice to deny the [Appellants'] right to be compensated for valid losses and damages directly attributable to the actions of the First Respondent and/or the Second Respondent. 5. That it is not in the public interest to force the [Appellants] into bankruptcy which may, subject to the successful prosecution of their claim, be for a relatively short period of time, and thereby allow wrongs perpetrated upon the [Appellants] by one or the other, or both, of the Respondents, to go unanswered and deny the [Appellants] natural justice to be compensated for the wrongdoing of the First and/or Second Respondent. 6. That the alleged costs which ground this matter were ordered in proceedings finalised in the District Court on 4 March 2011 and those costs were not pursued by either [Appellant] in this matter for almost 30 months from the date of the Order, and were only pursued following commencement of the [Appellants'] successful appeals 40 and 41 of 2013 in the Supreme Court, Court of Appeal, which flowed from further matters in the Magistrates and District Courts brought by the First Respondent that further contributed to the [Appellants'] current financial position due to delays by the First Respondent in the Magistrates Court matters. 7. That it is not in the public interest or in the interests of Justice to allow the Respondents to hide behind a Sequestration Order to prevent the [Appellants'] right to recover their lossess and damages from either of the Respondents. (Errors in original.) 34 Some of the appellants' grounds of appeal do not assert error on behalf of the primary Judge. Grounds 2 and 3 complain about the bankrupts' inability to institute and prosecute legal proceedings - a consequence dictated by s 60(2) of the Bankruptcy Act and the sequestration order, rather than an allegation of error. 35 Grounds 4, 5 and 7 assert that it was not in the public interest or in the interests of justice to make a sequestration order, but the grounds do not explain why this shows error on the part of the primary judge. 36 Ground 6 appears to complain about the length of time taken by the respondents to enforce the judgment debt, but does not point to any relevant time limit under the Bankruptcy Act or elsewhere. 37 I consider that the appellants' grounds can be distilled into Ground 1 of the draft notice of appeal: in essence, that the primary Judge erred by failing to consider, or properly consider, the appellants' argument that they have a counter-claim, set-off or cross demand.

Consideration 38 The factors relevant to an application for an extension of time within which to institute an appeal include the explanation for delay, any prejudice to the respondents and the merit of the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]. 39 The appellants have explained their delay in filing their notice of appeal. They had mistakenly attempted to file an application for leave to appeal and draft notice of appeal in the Federal Circuit Court Registry, rather than in this Court. They made that attempt within 21 days of the judgment below, but by the time they discovered their mistake they were outside the prescribed period. As they are self-represented, their mistake is understandable and their excuse for the delay is a reasonable one. Their delay has not caused prejudice to the respondents. 40 I will turn to the merit of the appellants' proposed appeal. 41 The appellants placed before the primary judge the claim and statement of claim they had filed in the Supreme Court of Queensland. The Court of Appeal had quashed Mr Dart's conviction for contravening the prohibition order and three of Ms Hajridin's four convictions for contravening the prohibition order. The Court of Appeal found that the respondents could not prove that animals in the possession of the appellants were obtained after the prohibition order was made. 42 Before the primary judge, the appellants relied on the allegations in their claim and statement of claim. They also relied on the Court of Appeal's findings to argue that Mr Singer lacked any reasonable belief that a prohibition order had been contravened when the search warrant was applied for and executed on 30 December 2008. They argued that the search warrant was invalid and that the respondents had no power to enter their vehicle or land, or to seize animals lawfully in their possession, or to detain the appellants. They argued that the respondents maliciously prosecuted them. They submitted a sequestration order should be refused under s 52(2)(b) of the Bankruptcy Act on the basis that they have a counter-claim, set-off, or cross demand within s 40(1)(g) of the Bankruptcy Act. 43 In support of their application for an extension of time and their appeal to this Court, the appellants contend that the primary judge failed to consider their argument that there was "other sufficient cause" to refuse to make a sequestration order. The respondents submit that the appellants having failed to satisfy the primary Judge of the existence of a claim within the meaning of s 40(1)(g), it was open to the primary Judge to make the sequestration orders. 44 The appellants squarely raised their argument concerning their alleged counter-claim, set-off or cross demand in an affidavit and orally before the primary judge. There was no obvious or explicit reference to that argument in his Honour's reasons for judgment. The only possible reference to some part of that argument may be in para [6] of the reasons where his Honour referred to "further appeals from decisions of the District Court of Queensland made to the Supreme Court of Queensland and, to some degree, success has been forthcoming…". If so, the reference is oblique and obscure. Paragraph [6] seems to do no more than say that the costs order relied on to found the bankruptcy notice has not been set aside. The reasons do not mention the claim and statement of claim filed in the Supreme Court or the appellants' assertion that they are entitled to damages for trespass and so forth. The reasons do not explain why the argument was rejected. The absence of findings about an issue can properly be taken as showing that the judge has overlooked it: Mitchell v Cullingral [2012] NSWCA 389 at [116]. I consider that the appellants are correct in their contention that the primary judge erred by failing to consider their argument. 45 As the appellants have demonstrated that there is merit in their proposed appeal and have provided a satisfactory explanation for their delay, they should be granted an extension of time to file their notice of appeal. 46 I will consider whether the creditor's petition should have been dismissed on the basis that there is "other sufficient cause" why a sequestration order should not have been made. 47 The respondents argue that the appellants do not "satisfy" the Court of the matters required by s 40(1)(g) of the Bankruptcy Act merely by establishing that a claim exists: they must demonstrate sufficient merit in their claim. They argue that the appellants have failed to do so. 48 Section 52 of the Bankruptcy Act provides, relevantly: (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. ... (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not be made; it may dismiss the petition. 49 The "other sufficient cause" that the appellants rely on is that they allege they have a counter-claim, set-off or cross demand of the kind described in s 40(1)(g) of the Bankruptcy Act. 50 Section 40(1) of the Bankruptcy Act provides, relevantly: (1) A debtor commits an act of bankruptcy in each of the following cases: … (g) if a creditor who has obtained against the debtor a final judgment or final order… has served on the debtor in Australia… a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia - within the time specified in the notice; … comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained. 51 The appellants' reliance on s 40(1)(g) is misconceived. The issue of "other sufficient cause" under s 52(2) is a different question involving additional issues. In Totev v Sfar (2006) 230 ALR 236, Allsop J (as the Chief Justice was then) said at [44]: The discretion involved in s 52(2)(b) is a broad one, and, importantly, it is informed by public interest considerations concerned with the dealing with insolvents. It is to be distinguished from the task involved in deciding whether a claim exists that satisfied s 40(1)(g) of the Act. There, the task, prior to the commission of an act of bankruptcy, is the identification of a bona fide or genuine claim. (Citations omitted.) 52 The distinction drawn by Allsop J between the exercise of the discretion under s 52(2)(b) and the question of whether a claim satisfies s 40(1)(g) is an important one. Section 40(1)(g) applies before an act of bankruptcy is committed, whereas s 52(2) applies afterwards. For the purposes of s 40(1)(g), it is enough to demonstrate a prima facie case that there is a counter-claim, set-off or cross demand: Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346 at 350; Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433 at 438-439. After an act of bankruptcy is committed, the debtor must show "other sufficient cause" to avoid a sequestration order being made. More is required under s 52(2). 53 As to what more is required, in Cain v Whyte (1933) 48 CLR 639, a case concerning the predecessor of s 52, the High Court approved the following passage at 645-646: I rule then that I am fully entitled to examine the contention put forward by Mr. Philp on behalf of the debtor that there is, in the present case, other sufficient cause sufficient to justify the dismissal of this petition. I approach that question with the full appreciation that, prima facie, on proof of the matters mentioned in sec. 56 (2), the Court will proceed to make an order for sequestration, and that it is for the debtor to show some cause overriding the interest of the public in the stopping of unremunerative trading, and the rights of individual creditors who are unable to get their debts paid to them as they become due. Something has to be put before the Court to outweigh those considerations before it can be said that sufficient cause is shown against the making of a sequestration order. 54 In Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111, Gibbs J (as he was then) said at 116: Where, however, the debtor claims to be entitled to unliquidated damages in tort against the petitioning creditor the position seems to me to be different. As a general rule this Court is not an appropriate forum to decide such a claim and is limited to forming a view as to whether it appears that there is sufficient validity in the debtor's claims to justify a dismissal or adjournment of the petition… Considerable evidence directed to this issue has been given before me and it seems to me that I ought to consider this evidence for the purpose of deciding only whether it is probable that the debtor has against the petitioning creditor a claim which is likely to succeed. If I am satisfied that the debtor has a claim against the petitioning creditor equal to or exceeding the amount of the judgment debt, I should not make a sequestration order. (Underlining added.) 55 In St George Bank Ltd v Helfenbaum [1999] FCA 1337, Sundberg said at [13]: The existence of a cross-claim may be a 'sufficient cause' within s 52(2)(b) for declining to make a sequestration order. It is for the debtor to establish the existence of 'sufficient cause'. He must establish that he has a real claim against the creditor that is likely to succeed. If the Court is satisfied that there is such a claim, and that its quantum is likely to equal or exceed the creditor's claim, it will not make a sequestration order. If the claim is likely to be less than the creditor's claim, the Court will require the debtor, if he is to avoid a sequestration order, to pay the difference between the judgment debt and the amount he is likely to recover on his claim. A debtor does not establish a real claim that is likely to succeed merely by producing a statement of claim in an action against the creditor, or by pointing to the existence of current litigation against the creditor. While the Court does not try the cross-claim in advance, the debtor must adduce sufficient evidence to show that it is a real claim which is likely to succeed. (Citations omitted and underlining added.) 56 In Totev v Sfar, Allsop J said at [44]: Nevertheless, what is clear is that the fact that there has been an act of bankruptcy does not make the claim by the debtor against the petitioning creditor irrelevant. It should be examined to assess whether it can be said that there is sufficient evidence to show that it is a real claim which is likely to succeed. Also relevant is the stage of the litigation, the length of time for its vindication and any other relevant matters. It goes without saying that solvency is a relevant consideration. In some circumstances, it may be difficult to assess the likelihood of success of the debtor's claim. All the authorities show that central to the showing of "other sufficient cause" for the purposes of s 52(2)(b) is the question of the prospects of success. The case is not tried in the bankruptcy court, but the material is examined for the purpose alluded to by Gibbs J in Re Schmidt. As Olney J identified in Re James, if a likelihood of success can be demonstrated, that may justify a refusal of a sequestration order. Alternatively, the circumstances may reveal a claim of a character and nature in which likelihood of success cannot be predicted with accuracy but in the circumstances the petition should be dismissed or an adjournment of the petition should granted: see the approach of Sundberg J in Ling v Commonwealth (1996) 68 FCR 180 at 195-6; 139ALR 159 at 172, with which Wilcox J and Whitlam J agreed. If the claim is one in which credit of witnesses will be involved, and a debtor sets out the nature and detail of the case and all his or her evidence the debtor may only be able to persuade the bankruptcy court that, if relevant criteria are believed, he or she has good prospects of success. What should be proved, or what is sufficient to be proved, in any given case will depend upon the circumstances. (Underlining added.) 57 If the appellants are to establish "other sufficient cause" for the purposes of s 52(2), they must demonstrate that they have a claim which is likely to succeed. Alternatively, they may demonstrate that although the claim has difficulties, it has "sufficient validity to justify dismissal or adjournment of the petition": see Ling v Commonwealth (1996) 68 FCR 180 at 195. This is not demonstrated merely by pointing to the existence of current litigation against the creditor or by producing a statement of claim in a proceeding against the creditor. 58 The appellants have not supported their argument that they have a claim against the respondents with any evidence. They have merely relied upon the the existence of their proceeding against the respondents and upon their claim and statement of claim. That is not enough to justify a refusal to make a sequestration order. 59 In any event, the allegations in the appellants' claim and statement of claim do not support the appellants' contention that they have a claim which is likely to succeed or that it otherwise has sufficient validity to justify dismissal or adjournment of the creditor's petition. 60 The appellants' claim against the respondents in the Supreme Court is for: 1. An award of damages for loss of valuable breeding stock dogs of $57,400. 2. An award of $284,250 for lost future earnings being $56,850 per year calculated over a period of 5 years. 3. An award of damages of $450,000 for each Plaintiff for: a. trespass upon the [appellants'] property, b. invading the [appellants'] privacy, … 4. An award of $90,000 for the First [appellant] having been wrongfully charged and convicted of a Breach of the Order made on 12 December 2008. 5. An award of $270,000 for the Second [appellant] for having been wrongfully charged and convicted of 3 Breaches of the Order made on 12 December 2008. 6. An award of $200,000 for each of the [appellants] for aggravated damages or in the alternative, 7. An award of $200,000 for each of the [appellants] for exemplary damages. 8. An award of $240 being for 2 pet crates seized valued at $65 each and 1 large pet crate borrowed by the First Respondent which was not returned valued at $110. 9. In the alternative; such orders as the Court deems meet. (Errors in original.) 61 The appellants' statement of claim alleges that Mr Singer, on 22 December 2008: (a) negligently and/or unlawfully and/or maliciously detained Ms Hajridin, seized two golden retriever pups and two carry cases from her, threatened to break into the vehicle she was driving and then searched the vehicle after unlawfully enticing her to surrender the keys; (b) searched and seized property that was lawfully in Ms Hajridan's possession in the vehicle; (c) trespassed upon the property of Mr Dart; (d) knew or ought to have known that a buyer had entered into an agreement to purchase one of the golden retriever pups prior to the order made by the Magistrate and so must have known that it was in Ms Hajridin's possession prior to the order, so that there could be no contravention of the prohibition order; (e) was informed by Mr Dart about the correct interpretation of the terms of the order, to which Mr Singer replied, "You're wrong" and continued to search the property; (f) should not have proceeded with complaints of contraventions of the prohibition order. 62 The statement of claim also alleges that Mr Singer: (a) knew or ought to have known that he could not ground an application seeking a warrant to enter the appellants' property on 30 December 2008 on the basis that they had contravened the prohibition order by being in possession of the two golden retriever pups seized on 22 December 2008; (b) negligently and/or unlawfully and/or maliciously sought a warrant to enter the appellants' property; (c) misled a Justice of the Peace into issuing the warrant by providing irrelevant information or failing to provide relevant information; (d) trespassed on the appellants' property and invaded their privacy on 30 December 2008; (e) seized and removed 38 dogs and puppies and other animals from the appellants' property without their consent causing loss of valuable animals; (f) admitted in the Magistrates Court trial that he did not know when the animals seized from the appellants came into the appellants' possession and thereby confirmed that he could not have formed a reasonable belief to grant an application for a warrant. 63 It was common ground between the parties that after the making of the sequestration order, North J struck out the claim and statement of claim, but gave the appellants leave to re-plead. The basis for the striking out was that the appellants' could not pursue the property claims as they were bankrupts and could not pursue so much of their claims as consists of personal injury without complying with the procedural requirements of the Personal Injuries Proceedings Act 2002 (Qld). I will proceed on the basis that North J's judgment does not reflect upon the merit of the appellants' claims. 64 The claim and statement of claim may be construed as seeking damages for negligence, trespass to property, false imprisonment and malicious prosecution. The first three of these causes of action rely on the invalidity of the warrant obtained by Mr Singer. The appellants provide no substantial argument by reference to the ACP Act as to why the warrant is invalid. 65 The warrant was not in evidence before the Federal Circuit Court or this Court. I assume that Mr Singer is an "inspector" under the ACP Act. Section 122(1) allows an inspector to enter and stay at a place, other than a vehicle, if the entry is authorized by a warrant. It appears that Mr Singer and other RSPCA officers relied on the warrant to enter the appellants' premises on 30 December 2008. 66 Section 126(1) allows an inspector to apply to a Magistrate or Justice of the Peace (Qualified) for a warrant for a place. Under s 126(3), the application must be sworn and state the grounds on which the warrant is sought. Section 127(1) provides that a warrant may be issued only if the Magistrate or Justice of the Peace is satisfied that there are reasonable grounds for suspecting, relevantly, that there is a particular animal that may provide evidence of an animal welfare offence or another offence against the ACP Act, and that the evidence is at the place. 67 Mr Singer's application for a warrant is not before the Court, but, presumably, it contained information that satisfied the Justice of the Peace who issued it that there were reasonable grounds for suspecting there were particular animals that may provide evidence of an animal welfare offence or another offence at the appellants' premises. The application may have also contained information concerning the other charges with which the appellants were later charged, such as possessing a seized animal and breaches of duty of care, but I will proceed on the assumption that it only referred to the breaches of the prohibition order. Mr Singer may have sworn that he believed the appellants to possess animals in breach of the prohibition order. 68 The appellants allege that there was no basis for Mr Singer to swear that he suspected on reasonable grounds that the appellants possessed animals in breach of the prohibition order. However, the ACP Act did not require him to swear that he had a reasonable suspicion and it is not apparent that he did so. It is the Justice of the Peace issuing the warrant, not the person applying for the warrant, who must be satisfied that there are reasonable grounds for suspecting that a particular animal that may provide evidence of an animal welfare offence or another offence is at the place. Further, even if Mr Singer did swear as to his suspicion in that matter, that suspicion seems, on the face of it, reasonable. A Magistrate and a District Court Judge were persuaded by the argument that on the proper construction of the prohibition order and on the evidence, the appellants were guilty of breaching the prohibition order. That the Court of Appeal ultimately and authoritatively took a different view does not mean that matters Mr Singer may have sworn to in the application for the warrant were false or unjustifiable or unreasonable. 69 Further, the warrant was not relevant to the events of 22 December 2008 when Mr Singer is alleged to have detained Ms Hajridin, seized animals from her and searched her vehicle. Under s 130 an inspector may enter and stay in a vehicle if the person in control of the vehicle consents to entry or the inspector reasonably suspects that the vehicle has been used in the commission of an animal welfare offence. There is no evidence before the Court as to whether Mr Singer detained Ms Hajridin and how he came to enter the vehicle. There does not appear to be any power in the ACP Act for an inspector to detain any person, but there is no evidence that Ms Hajridin was in fact detained. 70 As to their allegation of malicious prosecution, the appellants will be required to prove, inter alia, that Mr Singer acted maliciously and without reasonable or probable cause: A v New South Wales (2007) 230 CLR 500 at 503. On the facts disclosed to this Court, it appears unlikely that the appellants will be able to demonstrate either of these matters. 71 The assumptions I have had to make about the appellants' case shows the difficulty they have in demonstrating that they have a case that is likely to succeed, or even that it enjoys any reasonable chance of success. Their case is made all the more difficult by the fact that they were convicted of other offences. Mr Dart was convicted of possession of a seized animal and breaches of duty of care. Ms Hajridin was convicted of possession of a seized animal, as well as one offence of breaching the prohibition order. These convictions were not overturned by the Court of Appeal. In addition, the forfeiture orders made by the Magistrates Court were undisturbed, so it is not easy to see that the claim for damages for loss of their animals can be sustained. 72 The appellants have failed to demonstrate that they are likely to succeed in their proceeding in the Supreme Court. They have also failed to demonstrate that their claim otherwise has a sufficient validity to justify dismissal or adjournment of the creditor's petition. 73 Shortly before the hearing, I was informed that the trustees in bankruptcy sought leave to appear by telephone to make submissions at the hearing. In view of the late notice, I refused leave. However, I indicated that I would ask the parties whether they had any objection to me taking into account the trustees' written submissions. The parties did not object to that course. 74 The trustees' submissions concern one issue only, namely if the appeal were allowed, whether the sequestration orders should be set aside, or the bankruptcies annulled under s 153B of the Bankruptcy Act. In view of my earlier findings, it is unnecessary to deal with the trustees' submissions. 75 The application for an extension of time will be granted. The appeal will be dismissed. I will order that the appellants pay the respondents' costs of the proceeding. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.