Ray v Perrett

REASONS FOR JUDGMENT 1 This is an application for a direction that the trial of certain questions of fact, or so-called questions of fact, be had before a jury when the Creditor's Petition filed 12 July 2007 is heard. 2 Section 30(3) of the Bankruptcy Act 1966 (Cth) ('the Act') provides: '30(3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action. 3 When this matter was last before the Court on 11 October 2007, the Court was asked to give a direction under s 30(3) of the Act in respect of what were said to be 18 questions of fact. In my reasons for judgment of 11 October 2007 (see Ray v Perrett [2007] FCA 1624 at 20 - 21) I said: '20 The 'questions of fact' so called referred to in the respondent's motion filed 8 October 2007 are 18 in number. Not one of them answers the description of a question of fact within the meaning of s 30(3) of the Act. However, the motion is listed before the Court today for directions only. Whilst it may be that the Court can be persuaded, contrary to the view which I have just expressed, that the 18 questions are indeed questions of fact or that some of them are questions of fact, it is necessary to fix a date for the hearing of the Notice of Motion. 21 Given the observation which I have just made in relation to questions of fact within the meaning of s 30(3) of the Act, I will grant leave to the respondent to file and serve an Amended Notice of Motion so that he may give consideration to whether he wishes to redefine questions of fact which may warrant trial by a jury on the hearing of the Creditor's Petition. It is important to note that the Court has a discretion to order a jury trial in respect of questions of fact. If all that remains is the formulation of a series of questions of law the Court could not be expected to order a jury trial in respect of those questions.' 4 I proceeded to make an order on 11 October 2007 granting leave to the respondent named in the Creditor's Petition ('the respondent') to file and serve such Amended Notice of Motion as he may be advised on or before 19 October 2007. 5 As it transpires, an Amended Notice of Motion was filed on 16 October 2007. On this occasion, four questions of fact were notionally identified. They were expressed as follows: '1. The fact that at the Federation of Australia in 1900, Section 118 Constitution came into effect and all "courts" in the New Nation of Australia became, by the "autochthonous expedient" federal courts, and were charged with exercising the Judicial power of the Commonwealth on behalf of Her Majesty Queen Victoria as the Majesty and only Majesty in the now complete New Nation. 2. That unless a "court" is constituted as a "court" with a judge and jury, or consent of all the parties, the Federal Court of Australia refuse to receive and give full faith and credit to the proceedings, and refuse to accept any orders made in such a Court, for the purposes of bankruptcy. 3. That before the Federal Court of Australia makes a sequestration order, it order an account under S 86 (1) Bankruptcy Act 1966 under section 30 (2) Bankruptcy Act 1966 and determines such inquiry into the mutual dealings between the parties as a feigned issue. 4. That Newcastle Newspapers Pty Ltd, as the employer of Greg Ray [referring to the applicant named in the creditor's petition], and the real instigator of these proceedings be joined as a party.' 6 The facts leading up to the filing of the Creditor's Petition are not presently before the Court. However, the Court file reveals that numerous applications have been made, directed at the respondent avoiding liability under a Bankruptcy Notice served upon him, which was founded upon judgments obtained in the local court, which were founded upon costs certificates filed in the local court in accordance with s 368(5) of the Legal Profession Act 2004 (NSW) (the 'LP Act'). The cost certificates would appear to have arisen from defamation proceedings brought by the respondent against the applicant in the Supreme Court of New South Wales which were disposed of in a manner which required the respondent to pay the costs of the applicant in those proceedings. Section 368(5) of the LP Act provides: 'In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.' 7 My understanding is that on the hearing of the Creditor's Petition, the respondent wishes to challenge the validity of judgments in the local court which arose out of such a provision. 8 It may well be that relevant questions of law can be raised when the creditor's petition is heard, and I have not reached any conclusion in that regard. However, there is no basis on which it could be said that any of the so-called questions of fact identified in the Amended Notice of Motion filed 16 October 2007 are indeed questions of fact that could be tried by a jury. If I were wrong in that regard, I certainly would not be disposed to exercise my discretion in favour of ordering that any of them be tried by a jury. 9 As I would understand it from submissions by Dr Walsh on behalf of the respondent, the respondent does not challenge the validity of the Constitution of the Commonwealth of Australia ('the Constitution'), nor does he challenge the validity of the Federal Court of Australia as a court created by the Parliament in accordance with the Constitution, nor does he challenge the power of the Federal Court of Australia to decide matters arising under the Act without a trial by jury. 10 The respondent acknowledges that the only provision relating to trial by jury in the Constitution is to be found in s 80, which provides: '80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.' 11 In support of the Amended Notice of Motion the respondent read five affidavits, being those of Paul John Perrett, the respondent, sworn 11 October 2007, Lawrence Hannigan, sworn 22 October 2007, Alan Leslie Riley, sworn 19 October 2007, Peter James Spencer, sworn 18 October 2007 and Patricia Edith Thirup, sworn 22 October 2007. Objection was taken to virtually all of each and every one of the affidavits on the ground of relevance and such objections were upheld so that there was no material factual evidence placed before the Court on the hearing of the motion, leaving the Court to decide the matter by reference to the Creditor's Petition itself and the form of the Amended Notice of Motion. 12 The evidence which the respondent sought to lead on the hearing of the motion bore no relevance whatsoever to the issue tendered by the Amended Notice of Motion. 13 I do not consider any of the so-called questions of fact to be questions of fact at all. 14 The first two are plainly questions of law and the third 'question' seems not to be a question at all. If it is, it is certainly a question of law. However, it seems to me that it really is expressed as a prayer for relief under the Act rather than a question that will arise, whether of fact or law, on the hearing of the Creditor's Petition. 15 The fourth so-called question of fact is plainly an application for a third party to be joined as a party to the Creditor's Petition. No evidence is provided to support the making of such an order and it would be, in my view, outrageous in the circumstances to contemplate any such order. 16 In my opinion the application is totally without merit. It has involved an enormous waste of expense in the preparation of affidavit material that has no bearing whatsoever on the issues raised by the motion. 17 The circumstances in which the motion came to be filed are somewhat unusual. The original Notice of Motion was filed by the respondent named in the Creditor's Petition personally. It gave as the address for service 'Agent: 8/369 Glebe Point Road Glebe 2037', which as I understand it is the address of a Peter Alexander Gargan, who on the last occasion was granted leave to represent the respondent as his agent on that day and that day only. It is not inappropriate to note in passing the judgment of Spender J in Slack v Bottoms English Solicitors [2003] FCA 1337 where his Honour considered the right of a person who claimed to be an agent to appear for a debtor, in that case. At paragraph 6 of his Honour's reasons he said: '6. This section [referring to section 308(d) of the Act] does not provide a basis for Mr Laghaifar to act on Mr Slack's behalf in the Federal Magistrates Court in resisting the making of a sequestration order, nor does it provide a basis for him to act on Mr Slack's behalf on this appeal. Such acting is not the doing of an act "for the purposes of" the Bankruptcy Act.' 18 It was not until about 11:30 am today that a Notice of Appearance was filed by Mr Robert George Christie, solicitor for the respondent, as required by rule 2.05 of the Federal Court (Bankruptcy) Rules 2005 (Cth) and Form 4 of the Bankruptcy Forms. 19 On the hearing of the motion Dr Walsh appeared for the respondent on the instructions of Mr Christie. I accept that he was only instructed in the matter very late in the piece. He has indicated from the bar table that he received instructions in the matter about 8:00 pm last night. This may offer some explanation for the rather extraordinary application which does not, in my respectful view, do credit to anyone who has been associated with it. It has involved a complete waste of the Court's time and a complete misunderstanding of the provisions of s 30(3) of the Act. 20 In the circumstances I propose to order that the Amended Notice of Motion filed 16 October 2007 be dismissed. 21 I propose to make an order for the payment of indemnity costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.