Mr Lawless' submissions
39 Mr Lawless does not claim he is able to pay his debts. I invited Mr Lawless during the hearing to address me on any cause which he relies on to say that a sequestration order should not be made.
40 Mr Lawless' submissions at the hearing involved a general and somewhat vitriolic attack on Dr Mackendrick by way of inadmissible assertions. However, doing the best I can, I was able to discern the following arguments:
(a) the primary judge made mistakes in the Supreme Court trial and did not understand the significance of the evidence;
(b) Mr Lawless has evidence that shows that the primary judge was wrong;
(c) Mr Lawless has arranged for statements to be taken by a barrister and solicitor that reveal the evidence at trial was 'perjured evidence';
(d) those statements were drafted by a solicitor 3 months before the judgment was delivered by the primary judge;
(e) he has a 'heavyweight of evidence…. to bring forward' to show that he is telling the truth and other witnesses lied;
(f) the bankruptcy was instigated by the applicants to prevent Mr Lawless proceeding in the High Court;
(g) Mr Lawless has filed a further application for special leave to appeal to the High Court.
41 Despite the programming orders made by Siopis J, Mr Lawless did not evince any evidence in support of his claims that he has evidence that shows that the primary judge's decision was wrong or that witnesses had perjured themselves. The alleged witness statements were not provided. He did not provide any copies of his alleged further special leave application. There was no suggestion he has brought any stay application pending the determination of a further special leave application.
42 Mr Lawless repeated during oral submissions the assertion that he had made in his affidavits to the effect that Mr Rabe had misled the Registrar.
43 Distilling Mr Lawless' submissions in the context of a rehearing, it is not necessary to determine whether Mr Rabe told the Registrar that he had never seen the special leave application. In any event, the evidence, including Mr Rabe's evidence to the effect that he knew about the special leave application and had filed the appearance prior to the hearing, tells against Mr Lawless' version of what was said. Mr Rabe's version is inherently credible. In light of his contemporaneous file note, I would accept Mr Rabe's evidence that there was discussion during the hearing about the special leave application with the Registrar. Mr Rabe said that he told the Registrar no documents had been served on him by the respondent. That is a different statement to the one alleged by Mr Lawless to the effect that he did not have such documents at all. It may be that Mr Lawless simply misunderstood what was said by Mr Rabe at the time. Regardless, it is not in issue that the Registrar knew at the hearing that a special leave application had been filed when he made the sequestration order. Even on Mr Lawless' version of events, that must be the case.
44 However, I take Mr Lawless' submission about the conduct of Dr Mackendrick and the Supreme Court proceedings to be a submission that there is no underlying debt because judgment should not have been entered against him and so no costs order would have been made against him. Such a submission is relevant on a rehearing and invites the Court to go behind the judgment in the Supreme Court proceedings.
45 In Ramsay Health Care Australia Pty Ltd v Compton, the plurality said (at [68]):
[68] For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.
46 In this case, Mr Lawless has not satisfied me that circumstances exist that justify an investigation as to how the judgment debt arose. The costs orders arose following a trial that had occupied some 10 hearing days, after which Mr Lawless unsuccessfully appealed to the Court of Appeal. Mr Lawless was represented by counsel both before the primary judge and before the Court of Appeal. The application for special leave to appeal to the High Court was dismissed.
47 Based on his oral submissions before me, much of Mr Lawless' complaints about the trial outcome relate to a letter dated 7 January 2000 (Letter) from Dr Mackendrick to Ms Groves of Joseph Charles Learmonth Duffy Real Estate. The Letter was the subject of close examination and factual findings by the primary judge. It was described as 'pivotal' and a 'central underlying feature of the case' (at [51], [73]). The primary judge made various factual findings about the date Mr Lawless first was shown or received a copy of the Letter, facts that had the effect of denying Curtin's claims against the applicants (at [215] - [233]). The findings about the Letter were the principal issue in the appeal. Each ground of the appeal was dismissed. The High Court in rejecting leave to appeal expressly stated that Mr Lawless had not identified a question of law sufficient to warrant a grant of special leave, had otherwise advanced no arguable ground of appeal and would enjoy no prospect of success on an appeal to the High Court.
48 When Mr Lawless filed his final affidavit in this review hearing, he handed to the Registry staff a copy of what appears to be the Letter. It was not formally tendered before me or attached to any affidavit.
49 I simply note that I have seen the Letter. Even had it been tendered, there is nothing on the face of the letter that causes me to doubt the findings of Martin J or the validity of the costs orders that comprise the judgment debt.
50 The evidence before me, including Mr Lawless' affidavits, provides no basis for this Court to reconsider the findings made in the Supreme Court proceedings.
51 Nor is there any evidence to support the scandalous assertions made by Mr Lawless against the applicants or Mr Rabe during his submissions before me.