Gould v Day

Federal Court of Australia (Full Court)|2002-11-28|Before: Emmett J, Conti J, Downes JJ

INTRODUCTION 1 This is an appeal from a decision of Emmett J given on 19 February 2002. His Honour dismissed an application by the appellant for an order under s 153B of the Bankruptcy Act 1966 (Cth) (the Act) for the annulment of a sequestration order made by Conti J on 7 September 2000. 2 At the commencement of the hearing on 27 August 2002, the appellant sought an adjournment. It was not because he was taken by surprise about the date of the hearing of the appeal. He acknowledged that, although he had not attended the callover, he had been notified by the Court of the hearing date. Apparently, the appellant sent a copy of his submissions of 19 August 2002 to the solicitors previously acting for the respondents. They were not acting in this matter. They responded to the Court by letter of 21 August 2002, copied to the appellant, that they were not acting and that, because (the solicitors asserted) neither of the respondents had been served with the notice of appeal and neither was in Australia, they requested the appeal date be vacated. In fact they were wrong. The respondents had attended the callover and were aware of the appeal date. They were acting in person. Nevertheless, rightly or wrongly, the appellant took the view that the appeal would not then proceed on the date fixed. He attended without his papers. The Court offered to sit later in the day to enable the appellant to collect his papers for the purposes of making his submission, as he had apparently prepared for the appeal including his detailed submission of 19 August 2002. He declined that offer. In the circumstances, rather than proceeding when he said he could not present his submissions, the Court indicated it would proceed on the basis of written submissions. A timetable for the submissions was set. 3 At the hearing, the respondent Day appeared in person. The respondent Manly was called but did not appear. Each of the respondents had been notified by the Court of the hearing date, and had attended the callover at which the hearing date was fixed. The respondent Day produced an authority from the respondent Manly, unsigned and sent by facsimile, requesting the Court to "accept this e-mail as my written authority for Mr Julian Day to represent me in the above matter". It was not necessary to rule upon whether to permit that to occur as, in the event, the appeal did not proceed to a full hearing on that day. Each respondent has had an opportunity to consider the written submissions of the appellant and to respond to them. 4 The appellant subsequently presented detailed written submissions dated 9 September 2002 in support of his appeal. He also later presented a proposed motion for leave to adduce further evidence on the appeal. He was notified that the Court as presently constituted did not require any such notice of motion, but that he could submit by a specified date an affidavit setting out the proposed new evidence, the reasons why such evidence had not been adduced before Emmett J on the hearing of his application to annul the sequestration order, and the reasons why such evidence had not been the subject of a timely application prior to the hearing of the appeal in accordance with O 52 r 36(6) of the Federal Court Rules. The respondents were to be given the opportunity to respond to any such material. The Court then proposed to rule upon the reception of any proposed additional evidence, and if received, upon its significance, when delivering judgment on the appeal. In the event, no such affidavit was presented by the appellant. The appellant also presented a further detailed submission dated 8 October 2002, said to be in response to the submission of the respondent Manly dated 27 September 2002, and two affidavits sworn on 9 October 2002.

background 5 Before considering the reasons for decision of Emmett J, and the grounds of appeal, it is necessary to note in a little detail the route by which the appellant came to make the application before Emmett J. The history is a lengthy one. 6 The starting point is an action commenced by the appellant against the respondents and another party on 2 December 1994 in the District Court of New South Wales. On 4 November 1997 his action was dismissed. The appellant was ordered to pay the costs of the respondents. On 16 March 1999 an appeal to the New South Wales Court of Appeal from the decision at first instance was also dismissed. On 4 August 1999, the costs of the respondents payable by the appellant pursuant to a costs order made on 4 November 1997 were fixed at $37,715.94. 7 On 23 August 1999 the respondents issued a bankruptcy notice to the appellant requiring him to pay the costs outstanding plus interest, then totalling $44,515.16. The appellant applied to set aside the bankruptcy notice under s 41(6)(A) of the Bankruptcy Act. He alleged that he had a counterclaim against the respondents equal to or in excess of the costs order, and so sought to invoke s 40(1)(g) of the Act. He also challenged the validity of the costs order made on 4 November 1997, and its quantification. Time for compliance with the bankruptcy notice was extended until his application was heard. On 24 November 1999, Sackville J dismissed that application. In his judgment, his Honour sets out in some detail the history of the issues between the parties to that time: Gould v Day [1999] FCA 1650 at [2]-[19]. 8 The appellant did not comply with the bankruptcy notice. On 1 March 2000, the respondents petitioned for a sequestration order in respect of the appellant's estate. On 7 September 2000, Conti J made a sequestration order in respect of his estate. The appellant appealed to the Full Court. He alleged that the decision of Conti J was infected by ostensible bias. The appeal was unsuccessful. It was dismissed on 24 November 2000. The judgment of the Full Court (Heerey, Moore and Goldberg JJ) Gould v Day [2000] FCA 1673 at [3]-[7] sets out again in some detail the ongoing history of the issues between the parties. The High Court subsequently refused the appellant special leave to appeal from that decision. 9 The appellant did not rest there. On 8 November 2001 he applied to the Federal Magistrates Court for an order under s 153B of the Act to annul the sequestration order. He alleged the respondents had an ulterior and improper motive in applying for the sequestration order. On 20 December 2001 that application was dismissed. The appellant appealed from that decision to this Court. He complained that he had not had a reasonable opportunity to present his case, and to show that the respondents had sought to damage his reputation and to destroy his capacity to earn income, rather than to seek to recover the costs. On 9 May 2002, Madgwick J dismissed the appeal. His Honour concluded that the basis of the application was not made out. 10 In the meantime, the appellant brought a separate application in this Court under s 153B of the Act for an order annulling the sequestration order. On 19 February 2002, that application was dismissed by Emmett J. That is the decision which is the subject of the present appeal. 11 On 20 March 2002 the appellant instituted yet further proceedings for orders based upon alleged contraventions by the respondents of ss 45D, 45DB and 51AC of the Trade Practices Act 1974 (Cth) (the TP Act). That matter was heard before Emmett J on 28 March 2002. His Honour dismissed the application: Gould v Day [2002] FCA 423. He dealt with the claims made under those sections in the following terms: "I do not understand how the actions complained of could have, or be likely to have, the effect of causing substantial loss or damage to the business of the organisation described as 'Software Engineering Australia (NSW)', assuming that organisation is a corporation. It follows in my view that no cause of action has been established based on any contravention of s 45D of the Trade Practices Act. … When invited, in the course of argument in the context of s 45D, to indicate whether he relied on conduct that hindered or prevented the supply of goods, the applicant [the appellant on this appeal] referred to the Electronic Association Information Management Project, but was unable to explain how that constituted goods. I am not persuaded that there is any basis at all for concluding that there has been any contravention or threatened contravention of s 45DB of the Trade Practices Act. … Section 51AC of the Trade Practices Act generally prohibits a corporation from engaging in conduct of a certain kind, that is, in all the circumstances unconscionable. Neither Mr Day nor Mr Manly has a corporation and I do not understand how s 51AC can be called in aid in support of the relief sought by the applicant. No attempt has been made to suggest that any of the other extending provisions of the Trade Practices Act operate to apply to any of the conduct in question, notwithstanding that it is conduct by individuals. I am not persuaded that there is any basis for relief under s 51AC." As those provisions were the only basis upon which relief was sought by the appellant in those proceedings, it followed that his application failed. It was dismissed. No appeal was brought from that decision, at least not so far as the Court as presently constituted was informed.

the reasons for decision 12 The learned judge at first instance noted in some detail the reasons of Sackville J for refusing to set aside the bankruptcy notice, and the reasons of Conti J why his Honour was not satisfied that the appellant had a counterclaim, set off or cross-demand equal to or exceeding the judgment debt, and being one that could not have been set up in the District Court action commenced on 2 December 1994, so he did not bring himself under s 40(1)(g) of the Act. Emmett J noted that, following the making of the sequestration order by Conti J on 7 September 2000, a stay of the operation of that sequestration order had been granted upon terms, pending, inter alia, resolution of the appeal from the order. As noted, subsequently, on 24 November 2000, the appeal against the making of the sequestration order was dismissed. 13 The learned judge at first instance also referred to the proceedings for annulment of the bankruptcy in the Federal Magistrates Court. They were dismissed on 20 December 2001. An appeal was brought from that application to the Court, and an application for a stay of proceedings was made pending the hearing of that appeal. Emmett J noted at [9]: "As a term of my proceeding to hear the application for a stay, Mr Gould undertook to discontinue that appeal or indicated that he would consent to its dismissal. That term was imposed in circumstances where Mr Gould had on foot both an appeal from the decision of Driver FM as well as a further application in this Court for an annulment. At the moment the appeal is still on foot. It is against that background that I have heard Mr Gould's second application for an annulment. It may be that this application should have been dismissed as being vexatious, having regard to the orders that were made by Driver FM. Mr Gould's justification for bringing this second application within weeks of the dismissal of his earlier application is that new material has come to light." 14 Despite his undertaking, upon which Emmett J proceeded to hear and determine his second application to annul the sequestration order, Mr Gould proceeded with his appeal before Madgwick J. It was dismissed on 9 May 2002. Madgwick J noted at [16]: "In light of the procedural history which I have recounted, it was inevitable that I should refuse the application. Mr Gould has had ample opportunities to get his house in order. Indeed, had he complied with a term of the hearing of the stay application which Emmett J had thought appropriate, this appeal would have been either discontinued or by consent dismissed." Although the appellant was apparently in breach of that undertaking, his Honour nevertheless considered the appeal on the merits. 15 The learned judge at first instance correctly identified that s 153B of the Act authorises the Court to annul the bankruptcy only where the Court is satisfied that the sequestration order ought not to have been made, and then only if the Court in its discretion considers it appropriate to set aside the sequestration order. The expression "ought not to have been made", as his Honour said, applies only if it is established that the judge hearing the sequestration order was bound not to have made the order. Later evidence of previously unknown facts might disclose matters that show the sequestration order ought not to have been made. 16 There is no complaint upon this appeal that his Honour misunderstood the relevant legal principles in considering the application. 17 Emmett J then identified the grounds upon which the application was made. They were as follows: "(i) Conti J was aware that Mr Gould had a claim in the Supreme Court but did not have before him the evidence as to the likely success of that claim; (ii) Messrs Day and Manly are not pursuing their debt but are intending to prevent Mr Gould from earning a living; and (iii) Mr Gould cannot earn a living as a bankrupt." His Honour dealt with each of those contentions in turn. 18 The Supreme Court proceeding to which the grounds of application referred was apparently Action No.20542 of 2000 in the Supreme Court of New South Wales (the second Supreme Court action). By reference to the statement of claim, his Honour identified the essence of that claim. It was not commenced at the time of the sequestration order, but appears to have been accepted by his Honour as having been a "follow on" of earlier proceedings in the Supreme Court of New South Wales being Action No.12242 of 1999 (the first Supreme Court action). Sackville J in his earlier judgment had observed that, at that time, the appellant asserted that he had an action under way in the Supreme Court of New South Wales (apparently, the first Supreme Court action) against the respondent Manly for defamation arising out of a letter allegedly written by Manly to a member of the Commonwealth Parliament, but that no statement of claim alleging a cause of action in defamation had by then been filed. The letter was dated 20 November 1997. The appellant said the first Supreme Court action against Manly was not pursued because an application for a joinder of additional parties had been refused, and an appeal from that order had been dismissed, although an application for leave to appeal from the dismissal of the appeal was outstanding. His Honour noted that there was nothing to suggest there were any prospects of success in that application for leave to appeal. 19 Emmett J considered further there was insufficient evidence to support any conclusion that the appellant had a real prospect of succeeding in making out the elements of the cause of action in defamation in order to recover damages against Manly. There was no evidence that, whatever imputations might be drawn from the letter, the imputations were false. Nor did the evidence address the damages that might be recovered, should the cause of action ultimately be made out. 20 His Honour then considered the "new material" which the appellant asserted would demonstrate that he had a good and substantial claim against the respondents. His Honour characterised the "new material" as being the appellant's newfound knowledge of the terms of the TP Act. His Honour said the appellant: "… now asserts that he wishes to make a claim against Messrs Day and Manly under that legislation. However, he does not refer to any material or evidence that has come to light that was not available to him at the time when the matter was before Conti J. The application for an annulment does not specify any grounds for contending that the order ought not to have been made. Mr Gould has formulated his grounds in the course of the hearing." 21 His Honour then addressed those grounds. In fact they involved re-traversing earlier arguments. He identified the additional material as being the second Supreme Court action. It claims that the respondents have on many occasions since 1997 abused the legal process and damaged the appellant's reputation, and continue to endeavour to disrupt his business arrangements so as to cause him loss. That proceeding, the appellant told Emmett J, was instituted following his lack of success in having additional parties joined in the first Supreme Court action. The appellant then referred to the letter of 20 November 1997 sent by Manly to a member of the Parliament. As his Honour noted there was no suggestion that the letter was not available to the appellant at the time when the sequestration order was made by Conti J or at the time when the application to set aside the bankruptcy notice was heard by Sackville J. 22 Despite the letter of 20 November 1997 not getting the appellant over the hurdle of establishing he had acquired new evidence after the sequestration order, his Honour dealt with its contents. He accepted that it is capable of being defamatory of the appellant and of causing him damage. However, he had no means of determining on the material before the Court the truth of any of the assertions made in the letter. His Honour said at [17]: "The important matter is that the letter of 20 November 1997 was available to Mr Gould at the relevant time. Whether it was tendered or not is not clear, but even if it were not, there is no explanation as to why it was not tendered and was not relied upon in support of the contentions advanced before Sackville J and before Conti J, that Mr Gould had a significant and substantial claim against [the respondents]." His Honour concluded: "The complaint in this first ground is not in my view made out. I am not satisfied on the material before me that Mr Gould has a reasonable prospect of success in the proceeding brought in the Supreme Court. That is not to say that ultimately he may have some success; that is not a matter for me to judge. However, on the material before me I am not satisfied that he has any reasonable prospect of success in claiming damages in excess of the amount of the judgment debt in the District Court." 23 The second ground of review was dealt with by Emmett J in the following passage: "The second ground does not in my view constitute a ground for annulling a bankruptcy. It is not an abuse of process to petition for bankruptcy with an indirect motive, that is, for a purpose other than the equal distribution of a debtor's assets. For example, it is not an abuse to exclude the debt of a partnership. If it be the fact that consequences flow from the making of a sequestration order, the fact that those consequences are desired does not of itself render the order an abuse. However, I do not consider in any event that the evidence before me is sufficient to establish that the purpose of the petitioners in presenting the petition was to prevent Mr Gould from earning a living. It may be that their purpose was to ensure that the judgment debt from the District Court was paid. That is not a disqualification for the commencement and prosecution of a proceeding." 24 The third ground of review before Emmett J was dealt with in the following terms: "This ground appears to me to be misconceived, as appears from the third ground, namely, that the bankruptcy should be annulled because Mr Gould cannot earn a living as a bankrupt. Being a bankrupt is not a disqualification from earning income. Division 4B of Part VI of the Bankruptcy Act has the object of requiring a bankrupt who derives income during the bankruptcy to pay contributions towards the bankrupt's estate and to enable the recovery of certain money and property for the benefit of the bankrupt's estate. The whole object of Division 4B is designed to encourage a bankrupt to earn income in order to meet the debts that are provable in the bankruptcy."

the grounds of appeal 25 The grounds of appeal as expressed in the appellant's outlines of contentions do not correspond entirely with those in his notice of appeal. It is desirable, as the appellant appeared in person, to address the grounds of appeal in the notice of appeal as well as the matters he addressed in his outlines of contentions. 26 The notice of appeal contains four grounds. It alleges: "1. p2-p8 - Applicant not given opportunity to clarify documents handed from the Bench 2. p16 - Material on the inaccuracies of damaging letter dated 20 Nov 1997 from MANLY to Ross CAMERON MP already provided to the Court 3. p19 - Clarification of abuse of process 4. p21 - How applicant has been prevented from earning a living by Creditors." 27 Those matters were expanded by an "affidavit" in the nature of argument filed on 12 March 2002. The affidavit thus provides an understanding of the appellant's real contentions. They are dealt with below. 28 It is difficult to extract from the lengthy submission filed on 9 September 2002 after the hearing any submissions which relate to the grounds of appeal in the notice of appeal. It contains a "Management Summary" which asserts four matters which, we assume, are said to involve errors on the part of the judge at first instance in reaching the decision appealed from. As they do not apparently relate to the grounds of appeal, we propose to deal with them after considering the grounds of appeal. 29 The first ground of appeal concerns procedural fairness in the conduct of the hearing before Emmett J. It complains that certain documents were produced in evidence by the trustee of his bankrupt estate at the hearing, without notice to the appellant. Secondly it complains that the appellant was not given an opportunity to explain how the evidence supplied to Conti J and Sackville J demonstrated how creditors had been in breach of the TP Act prior to the issue of the sequestration order. 30 The ground of appeal must fail. 31 The appellant was given notice of the hearing and was aware of the date of hearing. His affidavit sworn on 29 January 2002 expressly acknowledges he was then aware of the hearing to take place on 19 February 2002. He attended a directions hearing on 5 February 2002 when the hearing date was confirmed. He himself presented evidence. Other parties were entitled to present evidence. There was no indication that he sought an adjournment to respond to evidence which caught him by surprise. He clearly had ample opportunity to present such evidence as he wished to present at the hearing, providing of course it was properly admissible. 32 The appellant has not identified in the grounds of appeal or in submissions the documents said to have been handed to the Court during the hearing to which he was unable to respond, or which took him by surprise. It is in the nature of litigation that evidence is adduced in the course of the hearing. The appellant himself did so. Of the 14 documents sought to be adduced in evidence, six were adduced by the appellant, and five by the respondents. They were received in evidence. The remaining three documents, including two produced by the trustee of his bankrupt estate, were marked for identification only and were not received in evidence. Nor has the appellant demonstrated, even if the documents handed to the Court by the representative of his trustee in bankruptcy did become evidence on the hearing (and they did not), that they were used by the learned judge in any way adverse to the appellant. 33 The second aspect of his complaint of procedural fairness reflects his misunderstanding of the law. Indeed, much of the history of this matter indicates that he has sought to re-ventilate time and time again matters which were properly put to rest by the sequestration order. The submission that he was not given an opportunity to explain how the evidence adduced before Conti and Sackville JJ demonstrated the respondents had been in breach of the TP Act, is not made out. No material was adduced to demonstrate that. Even if it were correct, the appropriate course was to appeal from the decisions of Conti J and Sackville J. No appeal was brought from the decision of Sackville J. The appellant appealed from the decision of Conti J but on a different basis. The appeal was dismissed. An application for special leave to appeal to the High Court was refused. The present application before Emmett J should not be a vehicle to establish that those decisions were procured through procedural unfairness. 34 The second ground of appeal alleges "previous evidence of untruths in letter by Manly", being the letter from Manly of 20 November 1997. The appellant's contention asserts that he had submitted before Driver FM on 20 December 2001 a three page detailed explanation of the inaccuracies in that letter. It was for the appellant to demonstrate to Emmett J that he has a reasonable prospect of success in the proceeding brought in the Supreme Court. His Honour concluded that there was no means of determining from the material available to him the truth or untruth of any assertions made in the letter. It does not appear that the submissions put before Driver FM were put before his Honour. In any event, the submissions are not evidence. The evidence put before his Honour did not seek to demonstrate in appropriate form the falsity of any of the assertions made in the letter. The attempt by the appellant to demonstrate the falsity of that material by reference to a decision of the Administrative Appeals Tribunal made on 27 April 1999 did not, in his Honour's view, demonstrate that falsity. Moreover, his Honour was not given any explanation as to why evidence about the allegedly false and defamatory contents of that letter, and the consequences of any alleged defamatory imputations, was not adduced in evidence at the hearings before before Conti J or Sackville J. 35 In fact, the question whether the letter gave the applicant any real prospect of succeeding in any significant and measurable way in either the first Supreme Court action or in the second Supreme Court action had been ventilated in the earlier proceedings. 36 Driver FM in his reasons for decision given on 20 December 2001 also referred to having been told that the appellant was pursuing litigation in the Supreme Court of New South Wales seeking to recover damages from the respondents. The issue as to whether those proceedings could be continued without the consent of the trustee in bankruptcy was discussed. The appellant acknowledged before Driver FM that his application for annulment of his bankruptcy is, at least in part, to overcome that procedural obstacle which he may face in those proceedings. Also, in the Full Court decision of 24 November 2000 it was noted that Sackville J had earlier referred to the appellant's defamation claim against the respondent Manly in the first Supreme Court action. Sackville J considered there was no evidence to establish that the appellant had a reasonable chance of success in those proceedings. There was no evidence to suggest that the alleged imputations were false, or as to the damages which might be recovered. The Full Court in its reasons for decision of 24 November 2000 also referred to an affidavit filed by the appellant in opposition to the creditor's petition which asserted, inter alia, that he sought in the proceedings in the first Supreme Court action damages in excess of $750,000 for loss of income and loss of business against Manly, and that he proposed to join Day as a defendant. 37 In our view, it is clear the appellant has had a number of opportunities to demonstrate that he has some realistic prospect of succeeding in substantial claims for damages for defamation against each respondent. Those opportunities have arisen in his various attempts to avoid the commission of an act of bankruptcy, and to avoid or have annulled the sequestration order. He has failed to demonstrate any realistic prospect of succeeding in those claims for the reasons noted. Relevantly for present purposes, Emmett J addressed the material before him on the issue. His conclusion was that there was not shown to be any real prospect of success in recovering substantial damages in those proceedings. His Honour's conclusion accords with the conclusions in the other decisions referred to. 38 In our judgment, his Honour's conclusion has not been shown to have been erroneous. Indeed, with respect, we agree with it. His Honour has identified the material upon which the appellant now asserts that he has, and had at the time of the sequestration order, significant claims against each of the respondents. He has considered that material. He concluded, as we do for the same reasons, that the material does not demonstrate that the appellant has, and had at the time of the sequestration order, claims against each of the respondents which had reasonable or realistic prospects of success and which might result in any significant award of damages against either of the respondents. The measure of significance must be by reference to the debt upon which the sequestration order was made. As his Honour found, there was no material upon which the appellant could show that any award of damages of any amount other than a nominal amount might be recovered. The appellant's assertions on that topic did not of themselves advance the evidentiary picture. 39 Moreover, his Honour correctly considered whether any of the material relied upon was fresh evidence not available to the appellant at the time of the sequestration order. He did not think it fell into that category. His Honour is not shown to have fallen into error in that assessment. The reason why the evidence should be new or fresh is clear enough. There is a public interest in the finality of litigation. It is not in the interests of the public, or of the parties, that one or other party should be entitled to hold back from determination at the appropriate time evidence or arguments for use at a later time. The rules upon when fresh evidence may be introduced on an appeal are therefore quite circumscribed: see per Dixon CJ in City of Wollongong v Cowan (1955) 93 CLR 435 at 444. 40 Consequently, the second ground of appeal must also fail. 41 The third ground of appeal is entitled "abuse of process". To the extent to which the submission refers extensively to material which was not put before his Honour it cannot show error on the part of his Honour. His conclusions, when dealing with the second ground of review, are set out in [23] above. 42 A review of the evidence before Emmett J indicates that his Honour's conclusion was well justified. The appellant had sworn and apparently relied upon three affidavits, two of 16 January 2002 and one of 29 January 2002. One sworn on 16 January 2002 was simply assertive, and so far as it was relevant was received by Emmett J simply as part of the submissions in the case. It asserted breaches by the respondents of the TP Act in "colluding" to prevent him from earning a living, in damaging his reputation, in deterring people from working with him on projects, and in disrupting government funding for projects in which he was or is involved. As part of the submissions, and given its generality, it did not advance the proof of the appellant's claims. Other contents of that affidavit were rejected as inadmissible. The second affidavit of that day purported to offer an explanation as to why a new application was being brought, namely that the appellant had new evidence of the respondents breaching the TP Act. It did not say what that evidence was. It did not explain why it was new evidence, or when the evidence was obtained, or how the evidence might demonstrate the alleged breaches of the TP Act. It was not therefore of any particular evidentiary significance. The third affidavit, sworn on 29 January 2002, also did not contain any details on those matters. It referred to the statement of claim in the second Supreme Court action, but did not take the matter further. 43 We are of the firm view that his Honour's conclusions are not shown to be incorrect either in law or in fact. This ground of appeal must fail. 44 The fourth ground of appeal must also fail. It also refers to extensive material not presented to his Honour. Again, it cannot demonstrate error on the part of his Honour that he did not deal with material which was not presented to him. No attempt has been made to adduce fresh evidence on this appeal in a proper manner, although as noted earlier in these reasons the appellant was given the opportunity to do so. 45 The submission of 9 September 2002 is a difficult document to comprehend. The "Management Summary" first complains that Emmett J erred in refusing to hear a motion for contempt of court apparently sought by the appellant on 28 March 2002. We say nothing about the allegation. It is not necessary to do so. It clearly cannot demonstrate reviewable error on the part of Emmett J in the judgment appealed from, which was given on 19 February 2002. The point demonstrates, however, the appellant's failure in his submission of 9 September 2002 to recognise that the present appeal is only from the judgment given on 19 February 2002 dismissing his application to annul the sequestration order which was made on 7 September 2000. 46 The remaining matters mentioned in the "Management Summary" relate to his Honour's conclusion that the appellant had not shown any realistic prospects of success in the second Supreme Court action, or in his claim against the respondents for contraventions of the TP Act. They do not demonstrate error on his Honour's part.

47 The appellant asserts that his submission contains new evidence to show his claim in the second Supreme Court action, if successful, may result in a significant award of damages. He did not take up the opportunity to present his proposed fresh evidence by affidavit, dealing with the issues relevant to the reception of fresh evidence on an appeal. The Court has not, therefore, considered whether the material to which he has referred is in fact material which the appellant could not reasonably have adduced at the hearing. In any event, the appellant cannot show that material, which he contends goes to the quantum of his claim in the second Supreme Court action, would have or was likely to have produced an opposite result at the hearing. That is simply because it addresses only one aspect of the claim in that action. The judge at first instance was also not satisfied that the letter which is the foundation of the second Supreme Court action was actionable at all, apart from the amount of damages which might be recovered if it were actionable. The appellant's "new evidence" is not said to address that topic. We note by way of aside that the appellant's submission of 8 October 2002 indicates that his statement of claim in the second Supreme Court action was struck out on 3 June 2002. 48 The appellant's contention that the judge at first instance ignored evidence of the alleged breach of ss 45D and 45DB of the TP Act is simply wrong. His Honour referred to the evidence, and formed a judgment about its significance. His judgment has not been shown to have been in error for the reasons already given. Moreover, to the extent that the appellant in his submissions seeks to reargue the facts which his Honour decided, it should be noted that in the subsequent decision in another matter, given on 28 March 2002, Emmett J dismissed the appellant's separate proceedings against the respondents for contraventions of the TP Act. In addition, it cannot demonstrate error on the part of Emmett J that the appellant has, as indicated in his submission of 8 October 2002, now instituted yet further proceedings against the respondents in the Supreme Court of New South Wales in Action No. 20438 of 2002 for contraventions of the TP Act. 49 The submission of 9 September 2002 refers extensively to the history of the appellants dealings with the respondents, most of which was based upon material not put into evidence on the hearing before Emmett J of the appellant's then application to annul the sequestration order. It is not necessary to refer to it in detail. The material referred to cannot demonstrate error on the part of the judge at first instance if it was not in evidence before his Honour. 50 The submission of 9 September 2002 also appears to treat the present appeal as an appeal from the decision of Emmett J of 28 March 2002. References in the submission to passages in the judgment, for example to the "Electronic Association Information Management" material, and to the amount a bank was prepared to contribute to development of a prototype of an electronic information management tool, or to "Software Engineering Australia, New South Wales", relate to the judgment of 28 March 2002. They are not references to the judgment under appeal in this matter. In fact, the appellant's submission of 9 September 2002 refers to certain numbered paragraphs [24]-[28] of the judgment of Emmett J, to contend that the findings there made were in significant respects erroneous. The judgment under appeal concludes at [23]. Those references can be seen to refer to the judgment given on 28 March 2002. There is also a section of that submission headed "Mis-Interpretation by Emmett J on 28 March 2002". There are other indications in that submission which clearly indicate that the appellant has lost sight of the fact that the present appeal is not from that judgment. 51 It is neither necessary, nor appropriate, for the Court on this appeal to consider those contentions. They do not relate to the present appeal. They do not demonstrate any error on the part of Emmett J in his consideration of the appellant's application to annul the sequestration order. 52 The submission of 9 September 2002 has, however, been carefully considered to determine whether it contains any further matters which might expose error on the part of the judge at first instance in relation to the judgment the subject of this appeal. So too has the submission of 8 October 2002. Neither does so. To the extent that the submission of 8 October 2002 in fact refers to matters relevant to the present appeal, it merely repeats contentions already put by the appellant about the weight which he claims the judge at first instance should have given to the evidence he presented. We have already rejected those contentions for reasons given earlier in this judgment. 53 For those reasons, we have concluded that the appellant has failed to demonstrate any error on the part of Emmett J in his Honour's judgment of 19 February 2002. The appeal is

therefore dismissed. There is no reason why the costs of the appeal should not follow the usual path. We also order the appellant to pay to the respondents costs of the appeal. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Mansfield & Downes.

Associate: Dated: 26 November 2002 Counsel for the Appellant: The appellant appeared in person.

Counsel for the First Respondent: The first respondent appeared in person.

Counsel for the Second Respondent: The second respondent made written submissions.

Date of Judgment: 28 November 2002

Trade Practices Act 1974(Cth)

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