Sayer-Jones v Juju Bean Investments Pty Ltd

Federal Court of Australia|2020-02-21|Before: Bromwich J

The originating application be dismissed.
The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 By an originating application filed on 2 October 2019, the applicant, Mr Robert Lyndon Sayer-Jones, seeks to have a bankruptcy notice set aside. The creditor respondent, Juju Bean Investments Pty Ltd, obtained the issue of the bankruptcy notice based upon a "judgment/order" of the Local Court of New South Wales. That judgment/order required Mr Sayer-Jones to pay Juju Bean $55,391.14, made up of the amount claimed of $49,997.18 plus pre-judgment interest of $5,393.96. The bankruptcy notice additionally claims post-judgment interest of $1,247.44, giving rise to a total debt of $56,638.58. 2 The bankruptcy notice was issued by the Official Receiver on 10 September 2019, numbered BN 246234. It required payment within 21 days after service. Juju Bean's case is that the bankruptcy notice was served by way of an email to Mr Sayer-Jones' email address sent on 11 September 2019, to which was attached both the bankruptcy notice itself and the Local Court judgment/order. The time for compliance with the bankruptcy notice has been extended three times, on 2 October 2019 (the last day for compliance if the service date was in fact 11 September 2019), on 22 October 2019 and on 3 December 2019, most recently until 21 February 2020. 3 There is no evidence before the Court of any stay of the Local Court judgment/order application to appeal from, or otherwise set aside, the Local Court judgment/order. Mr Sayer-Jones asserted during the course of the hearing of the application that he was unable to take any step to challenge the Local Court judgment/order because, despite being present when the oral judgment was delivered, he was not able to obtain a transcript before the time to appeal had elapsed.

Legal principles 4 Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) provides that a debtor commits an act of bankruptcy in the following circumstances as relevant in this case: [I]f a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, 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; or (ii) where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service; 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 … 5 Regulation 16.01 of the Bankruptcy Regulations 1996 (Cth) make provision for the service of documents for the purposes of the Bankruptcy Act. In particular: (1) reg 16.01(1)(e) provides: Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be: … (e) sent by facsimile transmission or another mode of electronic transmission: (i) to a facility maintained by the person for receipt of electronically transmitted documents; or (ii) in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person. (2) reg 16.01(2)(b) provides: A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person: … (b) in the case of service in accordance with paragraph (1)(c), (d) or (e) - when the document is left, delivered or transmitted, as the case requires. 6 A bankruptcy notice that is issued and served is required to be in the prescribed form, which includes attaching a final judgment or order when that is what is relied upon for its issue: see Bankruptcy Act s 41(2); Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; 225 FCR 458 at [29]. In Curtis, the Full Court made it clear that this requirement was satisfied, and service was satisfied in accordance with reg 16.01, the bankruptcy notice and the final judgment or order were attached as separate pdf documents to an email sent to the debtor: see [29]-[53], especially [51]. Mr Sayer-Jones submits that Curtis was wrongly decided, accepting that I am bound by the Full Court's decision. I am fortified in the conclusion I had independently reached that Curtis is plainly correct by a recent Full Court decision to that effect: see Mastronardo v Commonwealth Bank of Australia Limited [2019] FCAFC 127 at [16]-[20]; see also [8]-[15]. 7 Section 306(1) of the Bankruptcy Act 1966 (Cth) provides that a formal defect is not to invalidate bankruptcy proceedings commenced by serving an otherwise valid bankruptcy notice: Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. 8 Following Adams v Lambert [2006] HCA 10; 228 CLR 409, the modern focus is on substance rather than form in the application of s 306 of the Bankruptcy Act: see Adams v Lambert at [34]; see also [5]. Following Adams v Lambert, especially at [27], when an error in a bankruptcy notice is proven, the issue is whether, objectively determined, a debtor could be misled as to what it is necessary to do in order to comply with the requirements of the bankruptcy notice. If a debtor could be so misled, such an error is a defect that s 306 cannot cure. For example, in Adams v Lambert, there was no doubt that the bankruptcy notice was directing the debtor to pay a sum which included post-judgment interest: [19]-[20]. The fact that a mistake had been made in referring to the wrong provision of the District Court Act 1973 (NSW) was held to be covered by s 306: [30]-[31]. Thus the bankruptcy notice was misleading in form but not in substance, because it was clear what the debtor was required to do. 9 Mr Sayer-Jones submits that Adams v Lambert is wrongly decided, while again accepting that I am bound by that decision. I have no reason to think that the High Court is remotely likely to entertain reopening that decision, for the very simple reason that it makes perfect sense. 10 There is an undoubted power reposed in this Court to go behind a judgment or order upon which a bankruptcy notice is based if a proper basis for doing so has been established. That is what ultimately happened in Corney v Brien (1951) 84 CLR 343, where the High Court found that a default judgment had been obtained upon the basis of an agreement that had never existed, which in turn was the basis for the issue of the bankruptcy notice. In a separate judgment, Fullagar J observed (at 356-7) that: if the judgment in question followed a full investigation at a trial on which both parties appeared, [a bankruptcy court] will not reopen the matter unless a prima-facie case of fraud or collusion or miscarriage of justice is made out. 11 More recently, Griffiths J refused to go behind a judgment debt upon which a bankruptcy notice was based: Dunkerly v Comcare [2019] FCA 1002. In reaching that conclusion, his Honour helpfully summarised the applicable principles as follows (at [68]): I turn now to summarise the principles relating to the circumstances in which the Court may go behind a judgment debt. It is generally accepted that a Court will accept a judgment as being conclusive of the existence of a debt, however, the Court has a discretion in an appropriate case to go behind a judgment debt to examine whether there is in truth consideration for it. The relevant principles may be summarised as follows: (a) The Court has the power in an appropriate case to go behind a judgment in an application to set aside a bankruptcy notice, but that power "is not readily exercised if there has been a substantive hearing of the matter on its merits by the court in which the judgment was granted" (see Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] FCA 461; 315 ALR 523 at [55] (Xu) per Robertson J). (b) In determining whether to go behind a judgment on which a bankruptcy notice is based, the Court will take into account similar considerations to those which apply when determining whether or not to go behind a judgment on the hearing of a creditor's petition (see Xu at [55], [118]-[120] and [131] per Robertson J). (c) Although the Court has the power in an appropriate case to go behind a judgment on which a bankruptcy notice is based, the Court does not have the power to set aside the judgment itself and it is also important to bear in mind that the Court is not hearing an appeal from the judgment on which a bankruptcy notice is based (Xu at [57]). (d) A judgment debt is usually expected to provide the most reliable statement of debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. That is why there usually is no occasion in a bankruptcy proceeding to investigate whether the judgment debt is a true reflection of the underlying debt (Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 (Ramsay) at [68] per Kiefel CJ, Keane and Nettle JJ). (e) Ms Dunkerley must establish special circumstances for the Court to go behind the underlying judgment debt (Petrie v Redmond [1943] St R Qd 71 at 75-76 per Latham CJ, with whom Rich and McTiernan JJ agreed and see also Ramsay at [69] per Kiefel CJ, Keane and Nettle JJ). As a matter of practical experience, special circumstances of this nature are usually only when there has been a consent judgment, default judgment or some other circumstance which means the judgment debtor was unable to present his or her case on its merits in the litigation leading to the judgment debt (Ramsay at [70] per Kiefel CJ, Keane and Nettle JJ). (f) The Court is reluctant to go behind a judgment once it has been the subject of adjudication by a Court, even if there were problems relating to such matters as the debtor's representation or some other unusual feature. It is accepted, however, that the Court can inquire into the validity of a judgment where there is evidence that it has, for example, been obtained by fraud, collusion or a miscarriage of justice, but the debtor carries the onus of establishing that the fraud was "directly material to the judgment" (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (Emerson) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the absence of some evidence of fraud, collusion or miscarriage of justice, a court sitting in bankruptcy will rarely have substantial reasons to investigate whether the judgment debt was truly owed (Ramsay at [111] per Edelman J). (g) It is insufficient to set aside a bankruptcy notice merely because the debtor establishes that a judgment is irregular because, for example, the pleadings or proof that were offered were inadequate to support the judgment or the judgment is for the wrong amount (see, for example, Re Skaff; Ex parte Farrow Mortgage Services Pty Ltd (1993) 41 FCR 331 per Drummond J and Re Bedford; Ex parte H E Sleigh (Queensland) Pty Ltd (1967) 9 FLR 497 per Gibbs J). (h) Absent some good reason for doing so, a Court exercising bankruptcy jurisdiction should avoid embarking on a course which amounts to a re-trial of the issues that have been determined by another Court after a contested hearing. This is, particularly so where that other Court's determination has been the subject of an appeal because the appeal is the appropriate form in which to review the correctness of the judgment (Emerson at 588). (i) A court exercising jurisdiction in a bankruptcy proceeding should not re-litigate on the same evidence, a dispute which has already been fully litigated in adversarial proceedings (Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 (Doggett) at [49] per Kerr, Davies and Thawley). 12 In a decision handed down the day after the hearing of this application, the Full Court in dismissing the debtor's appeal in Dunkerly, said (Dunkerly v Comcare [2020] FCAFC 8 at [52]): The primary judge considered the relevant principles and applied them. In so doing, he did not fall into appealable error. Indeed, we respectfully agree with his Honour that the appellant did not provide any reason to warrant the Court going behind the costs orders and judgments underlying the bankruptcy notice.

Grounds relied upon 13 Mr Sayer-Jones raises the following 16 grounds for setting aside the bankruptcy notice, each of which is said to be independent, as follows: (i) The bankruptcy notice is invalid because the debtor's name is misdescribed. [ground 1] (ii) The bankruptcy notice is invalid because the interest amount claimed has been miscalculated. [ground 2] (iii) The bankruptcy notice is invalid because the debtor's address is not correctly listed. [ground 3] (iv) The bankruptcy notice is invalid because the respondent has no proper basis to believe that the applicant is insolvent whatsoever. [ground 4] (v) The bankruptcy notice is invalid because its issuance can be properly described as an abuse of process. [ground 5] (vi) The bankruptcy notice is invalid because the judgment was not "attached" to the notice as required by the Bankruptcy Act 1966 (Cth). [ground 6] (vii) The bankruptcy notice is invalid because the issuance of a document by email is inconsistent with the Bankruptcy Act 1966 (Cth). [ground 7] (viii) The bankruptcy notice is invalid because the judgment or order cannot be described as "final". [ground 8] (ix) The bankruptcy notice is an abuse of process by the respondent because the applicant has a set off against the respondent in respect to the claimed debt. [ground 9] (x) The bankruptcy notice is an abuse of process because it was obtained in circumstances which can be properly described as a miscarriage of justice. [ground 10] (xi) The bankruptcy notice is invalid because solicitor issuing the bankruptcy notice was not specified. [ground 11] (xii) The bankruptcy notice is invalid because it provides no articulation of what "service" means under the notice. [ground 12] (xiii) The bankruptcy notice is invalid because it was never capable of being properly served to the purported debtor's last known address. [ground 13] (xiv) The bankruptcy notice is invalid because it was never capable of being received by the debtor by post to their residential address. [ground 14] (xv) The bankruptcy notice is invalid because the conducts of Mitry Lawyers in their capacity as the solicitors acting for Juju Bean Investments Pty Ltd represent an abuse of process because the circumstances in which the document was issued and formulated amount to an abuse of process. [ground 15] (xvi) In light of the constellation of matters [(i) to (xvi)], the bankruptcy notice is invalid because it has the capacity to mislead. [ground 16] 14 At the hearing, ground 11 was not pressed and no oral submissions were made in support of it. However it is still addressed below for completeness, lest any point be taken later about the abandonment. 15 At a case management hearing on 31 January 2020, Mr Sayer-Jones resisted a request by Juju Bean to compel him to file an amended originating application, so as to provide clarity as to the case that it was required to meet and to make it clear which grounds were not going to be relied upon. Mr Sayer-Jones stated that he relied upon all the grounds in his existing originating application and opposed being required to file an amended originating application at that late stage. Juju Bean's request was not granted.

Evidence 16 Mr Sayer-Jones relied upon his affidavit sworn 2 October 2019 (read without objection or cross-examination), and the oral evidence he adduced from a solicitor formerly employed by Mitry Lawyers, Ms Chauntelle Ingenito. Ms Ingenito had carriage of the proceedings brought in the Local Court against Mr Sayer-Jones, took steps to enforce the judgment prior to the issue of the bankruptcy notice, arranged for the issue and service of the bankruptcy notice, and, until recently moving to another law firm, had carriage of this proceeding. 17 Mitry Lawyers arranged for Ms Ingenito to voluntarily attend court to give evidence at the request of Mr Sayer-Jones. The burden of her oral evidence achieved the opposite of what Mr Sayer-Jones evidently intended. He sought to prove impropriety in the conduct of the proceedings in the Local Court and impropriety in the issue of bankruptcy notice, going to invalidity and rising to the level of an abuse of process. 18 Ms Ingenito was a careful and impressive witness and I am comfortably of the view that, far from engaging in any impropriety, the evidence did not come close to establishing, at a factual level, any impropriety on her part, on the part of her principal, Mr Mitry, or on the part Juju Bean. While the steps Ms Ingenito took of seeking to garnishee money from a number of different banks were unsuccessful, and while an examination notice was sent to the wrong address, I find that she took genuine steps and made reasonable efforts to secure payment of the judgment debt before resorting to the obtaining and service of a bankruptcy notice. 19 Juju Bean relied upon the following evidence in opposing the application: (1) An affidavit of Mr Michael D'Anella, a former paralegal from the solicitors acting for it in this proceeding, Mitry Lawyers, to prove that Mr Sayer-Jones went to the offices of that law firm on 30 November 2017, at which time he signed the deed upon which the Local Court judgment/order was based at the offices of that firm. This evidence was relied upon to demonstrate that Mr Sayer-Jones knew where Mitry Lawyers' office was, being the address identified in the bankruptcy notice where payment could be made. Mr D'Anella produced a copy of the deed and a copy of an email that he sent to Mr Mitry at 12.57 pm on 30 November 2017, describing his meeting with Mr Sayer-Jones. Mr D'Anella was cross-examined by Mr Sayer-Jones to little effect. Mr Sayer-Jones repeatedly accused Mr D'Anella of lying and otherwise giving false, fabricated or unreliable evidence. I am satisfied that Mr D'Anella is a witness of truth and that Mr Sayer-Jones did in fact go to the offices of Mitry Lawyers on 30 November 2017, and therefore knew where he had to go to make payment in satisfaction of the bankruptcy notice. I refused an application by Mr Sayer-Jones to adjourn the hearing and to grant leave to issue subpoenas to obtain telephone records which he contended would prove that he was not in that location at that time, noting that he did not give any evidence to that effect and did not provide any adequate explanation for not having done this in time for the hearing. (2) Paragraph 8 of the affidavit of Ms Ingenito, which refers to and produces as annexure "D" the documentary evidence that was before the Local Court magistrate, but only tendering pages 102-113 of that annexure, being a fully executed copy of the deed and a chain of emails, including a covering email by which it was sent to Mr Sayer-Jones on 30 November 2017 at 6.53 pm.

Mr Sayer-Jones' conduct during the hearing of his application 20 During the course of the hearing of the application, Mr Sayer-Jones made numerous applications to adjourn the proceeding, all of which were refused because each involved him being given time to take further steps in the proceeding that could and should have been made in time for the hearing. He made, but did not persist with, a recusal application. He sought several times to discontinue the proceeding, including seeking leave to do so, which was opposed by Juju Bean, and refused. 21 Despite being given considerable latitude in the conduct of the application, Mr Sayer-Jones made numerous allegations during the course of the hearing to the effect that he had not been treated fairly, but did not, in the greater part, identify what else should have happened apart from acceding to his demands. Mr Sayer-Jones ultimately was able to complete adducing evidence and was able to complete his oral submissions, supplementing his written submissions which he sought, at one stage, to withdraw. 22 Counsel for Juju Bean was permitted to rely upon and speak to an outline of further submissions, supplementing prior written submissions, which largely addressed the new issues that had emerged during the course of Mr Sayer-Jones' cross-examination of Ms Ingenito and during his oral submissions. Mr Sayer-Jones objected to that outline being received, and after listening to the oral submissions for a short time, asked to be allowed to leave the court, and then did so without being formally excused. As he was leaving the bar table and before he left the court room, I advised him that judgment would be delivered at 9.00 am on 21 February 2020 (that is, 10 days after the hearing). I doubt that there was much, if anything, more that Mr Sayer-Jones could have said in support of his case.

Formal defect grounds 23 Mr Sayer-Jones asserts that the bankruptcy notice is defective on its face because: (1) his middle name was not stated: ground 1; (2) the amount of interest has been miscalculated: ground 2; (3) his address is incorrectly stated: ground 3; (4) the solicitor issuing the bankruptcy notice was not specified: ground 11; (5) the bankruptcy notice was never capable of being properly served at his last-known address: ground 13; (6) the bankruptcy notice was never capable of being received by him by post at his residential address: ground 14. 24 Mr Sayer-Jones' middle name is not stated in the bankruptcy notice (ground 1), his then address was apparently not stated (ground 3), and the individual solicitor issuing the bankruptcy notice (as opposed to the law firm) was not stated (ground 11, albeit not pressed). However, none of those matters have been shown to be defects, let alone defects that could in any way have impeded his understanding of what he was required to do to satisfy the bankruptcy notice. As Kiefel J observed when a member of this Court in Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670 at [10] (a decision that preceded, but conforms with, Adams v Lambert): Mr Matheson has referred me to the definition of 'legal name' in Black's Law Dictionary, 8th edn, ed BA Garner, West Pub Co, USA (2004) pg 1048 as 'a person's full name as recognised in law'. That does not however mean that a court document such as a bankruptcy notice or petition is void if the full legal name of the person is not provided. There is no doubt that Mr Matheson is the person named in the District Court proceedings and in these proceedings and that he has understood that to be the case. He has represented himself and appeared. There was no ambiguity created by the bankruptcy notice or petition. In any event if there was an irregularity in the mode of description, it is of a formal nature and one that can be validated by s 306(1) of the Bankruptcy Act: Re Draper; Ex parte Australian Society of Accountants (1989) 154 FCR 41. A 'formal defect or an irregularity' within the meaning of that section is one that could not reasonably mislead the debtor: Re Wimbourne; Ex parte The Debtor (1979) 24 ALR 494. In my opinion, the petition notice does not cause any injustice as it was not likely to mislead the debtor. 25 Each of grounds 1, 3 and 11 must therefore fail. 26 As to ground 2 concerning interest, Mr Sayer-Jones written submissions proceed upon the false premise that post-judgment interest must be claimed in the statement of claim upon which judgment was obtained. His oral submissions took a different tack, perhaps because it is clear from the terms of s 101 of the Civil Procedure Act 2005 (NSW) that interest is payable by force of legislation, supplemented by regulation, and that interest is payable on so much of a judgment (excluding costs) as is unpaid from time to time. Rule 36.7 of the Civil Procedure Rules 2005 (NSW) prescribes the rate of interest for the purposes of s 101. The bankruptcy notice only referred to r 36.7 of the Civil Procedure Rules and should instead have referred to s 101 of the Civil Procedure Act as the source of the entitlement to post-judgment interest. Mr Sayer-Jones submits that this is a fatal defect. This very issue was addressed adversely to that submission in Nand v Fuji Xerox Australia Pty Ltd [2015] FCAFC 51. After referring to Adams v Lambert, the Full Court held (at [18]): Here, the reference in the notice to r 36.7, as opposed to s 101, could not have misled the debtor as to what was necessary for her to do to comply with the notice. In any event, had she referred to that rule, she would have seen that the calculation of post-judgment interest in the notice was justified by the rule and that it was based on s 101 of the Civil Procedure Act. The omission of the correct statutory source, namely, a reference to s 101 of the Civil Procedure Act, in the circumstances, was not a failure to comply with an essential requirement prescribed in Form 1. It was a formal defect or irregularity of the kind contemplated by s 306(1) and its omission was not reasonably capable of misleading the debtor in relation to what she had to do in order to comply with the notice. 27 Following Nand, ground 2 must therefore fail. 28 As to grounds 13 and 14, Mr Sayer-Jones has not shown why service of the bankruptcy notice had to be effected at his last-known address (as opposed to being one of the ways in which it could have been effected), nor why the bankruptcy notice had to be capable of being received by him by post at his residential address unless that was the mode of service that was relied upon. Nor does he demonstrate that the error in his address misled him in any way about what he was required to do to satisfy the bankruptcy notice. I am satisfied that any error in the address recorded for Mr Sayer-Jones was not a material defect and could not in any way have misled him about what he was required to do to satisfy the bankruptcy notice. Each of grounds 13 and 14 must therefore fail. 29 In oral argument, Mr Sayer-Jones also asserted as part of ground 12 that no timeframe was given within which payment could be made, addressed further below. 30 Separately, and apart from the grounds pleaded, Mr Sayer-Jones asserted that he was misled because the bankruptcy notice advised that payment of the debt could be made to (using the sans serif font in the original): Mitry Lawyers Level 1, I67 Castlereagh Street, Sydney, NSW 2000 Phone: [number] Email: [email address] 31 Mr Sayer-Jones' complaints in this regard were: (1) the street address in Castlereagh Street, commenced with a the capital letter "I", instead of the numeral "1", so that it read "I67 Castlereagh Street" instead of "167 Castlereagh Street" - he seemed to be suggesting that with this typographical error he would not know where to go to make a payment; (2) the correct street address for Mitry Lawyers was 161-167 Castlereagh Street; (3) the opening hours or Mitry Lawyers were not disclosed, and in particular did not say when the office would be closed for the Christmas break (remembering that the bankruptcy notice was dated and served in September 2019) - this point was also advanced in relation to ground 12, but it is difficult to see how it arises from that ground. 32 Juju Bean responds by relying upon Fuller v Alford [2017] FCA 782; 252 FCR 168, wherein Perry J said (at [64]): Finally, notwithstanding that the test for determining whether a bankruptcy notice is misleading is an objective one, the question of whether the notice is misleading is not determined in a vacuum. Rather, the Court may have regard to facts extraneous to the notice itself, including relevantly the surrounding circumstances from the perspective of the actual debtor served with the notice as opposed to a hypothetical debtor: Re Crisafulli; ex parte National Commercial Banking Corporation of Australia Ltd (1985) 11 FCR 272. Thus, for example, in Northam v Commonwealth Bank of Australia [1999] FCA 544, Weinberg J at [22] said that "a bankruptcy notice must, while being read strictly, also be read sensibly, and not perversely. It must also be read as a whole, and may be read in light of facts extraneous to the notice itself". 33 In keeping with Fuller v Alford, Juju Bean adduced evidence of extraneous facts to establish that Mr Sayer-Jones could not have been misled as to the address for Mitry Lawyers because he had attended Mitry Lawyers when he went there to sign the deed on 30 November 2017, and the address for Mitry Lawyers was recorded on the judgment/order electronically attached to the bankruptcy notice (see below), on the front page of the deed (as 161-167 Castlereagh Street), and in the originating process for the proceedings which gave rise to the deed (as 161 Castlereagh Street). I am satisfied, especially by the evidence of Mr D'Anella about the signing of the deed, that Mr Sayer-Jones could not possibly have been misled by the use of a letter instead of a numeral for the street address. I would have reached that conclusion in any event, without any of that extraneous evidence. This argument, not pleaded in the originating application, must fail. 34 I do not accept that there was any need for the bankruptcy notice to disclose the hours that Mitry Lawyers were ordinarily open, nor that, even if this was required, that any such defect could possibly have resulted in Mr Sayer-Jones being misled about what the bankruptcy notice required him to do, or when he would be able to do it. The use of a business address ordinarily connotes ordinary business hours, which are usually from at least 9.00 am to 5.00 pm. The absence of any precise statement of opening hours could not possibly have mislead Mr Sayer-Jones. He must have known that he could attend at the offices of Mitry Lawyers during ordinary business hours to pay the sum required by the bankruptcy notice, had he any intention of doing so. This argument, also not pleaded in the originating application, must fail as well.

Insolvency 35 Mr Sayer-Jones also asserts that the bankruptcy notice is invalid because there was there is no basis to believe he was insolvent: ground 4. 36 In Australian Securities and Investments Commission v Forge [2003] FCAFC 274; 133 FCR 487: (1) Branson and Stone JJ said (at [15]): Nothing in the language of s 40(1)(g) indicates a legislative intention that the general description 'a creditor who has obtained against the debtor a final judgment or final order' should be subject to any limitation. Nor, in our view, does the context provided by s 40, or the Act as a whole, suggest that any limitation on the generality of the expression is intended to be found by implication. The conduct encompassed by s 40(1)(g), even where undertaken in respect of a final judgment or final order in respect of a debt not provable in bankruptcy, is an act which prima facie demonstrates insolvency. All persons are under an obligation to comply with final judgments or final orders. Failure to do so, especially after having been placed on notice that compliance is required by the party in whose favour the final judgment or final order was made, may be assumed to indicate an inability to do so; that is, to indicate insolvency. The public interests with which the Act is concerned are thus engaged. (2) Emmett J said (at [32]): It is clear that the Commission is a creditor for the purpose of s 40(1)(g). There is no reason, in the scheme of the Act, to suggest that s 40(1)(g) is limited to the case where a bankruptcy notice is founded upon a judgment debt that could be proved in the bankruptcy. Further, the fact that such a debt is not paid after demand by the judgment creditor is just as much a marker or criterion of insolvency as where the bankruptcy notice is based upon a debt that is provable in the bankruptcy. 37 Mr Sayer-Jones submits that Forge is wrongly decided. That submission is recorded, but I consider that Forge is plainly correct, and that I would follow it even if I was not bound to do so by reason of being a decision of a Full Court. 38 In this case, the judgment/order was provable in bankruptcy. If, as Forge makes clear, independent proof of insolvency is not to be read as a requirement when the debt in question is not provable in bankruptcy, before relying upon the plain words in s 40(1)(g) of the Bankruptcy Act containing no such requirement, it follows that it certainly is not required for a debt that is so provable, being the situation in this case. Non-payment of a judgment debt is in any event prima facie evidence of insolvency; and Mr Sayer-Jones did not attempt to adduce any evidence to the contrary. 39 Mr Sayer-Jones has not demonstrated any error in proceeding to issue a bankruptcy notice in reliance upon the Local Court judgment/order, especially as this was only done after attempts to garnish several banks, and after an attempt was made to summons him to appear at an examination (albeit that an error was made in the address used). Ground 4 must fail.

Invalid service grounds 40 Mr Sayer-Jones asserts that the bankruptcy notice was not validly served because: (1) the judgment was not "attached" to the bankruptcy notice as said to be required by the Bankruptcy Act: ground 6; (2) the bankruptcy notice was issued by email, as said to be inconsistent with the Bankruptcy Act: ground 7. 41 While Mr Sayer-Jones complains about the email address to which the 11 September 2019 email attaching the bankruptcy notice and judgment/order was sent resulting in that email going to his "junk" email box, his affidavit at [9] (handwritten) states "The respondent served the bankruptcy notice BN 246234 on 11th September 2019", an express admission as to that fact. He also said in the course of the hearing that he received a copy of those documents on 30 September 2019, a fact that is supported by his own affidavit evidence. Thus his complaint is left with the pleaded technical points as to service, rather than any dispute that he was in fact served with copies of those documents. 42 Both of these grounds must fail, following Curtis at [51] (endorsed in Mastronardo at [8]-[20]) as to ground 6 and the plain terms of reg 16.01(1)(e) and reg 16.01(2)(b) of the Bankruptcy Regulations as to ground 7. There was nothing wrong with the judgment/order and the bankruptcy notice being attached as separate pdf documents, nor with those documents being served by email.

Judgment/order not final 43 Mr Sayer-Jones asserts that the Local Court judgment/order cannot be relied upon because it is not "final": ground 8. 44 In Autron Pty Ltd v Benk [2011] FCAFC 93; 195 FCR 404, the Full Court observed on the topic of a "final" judgment or order (at [21]): The Bankruptcy Act does not define the expressions "final judgment" and "final order" as used in ss 40(1)(g) and 41(1). Historically, in bankruptcy law, a rigid distinction has been drawn between a "final judgment" and a "final order". In context, a "final judgment" is strictly construed to mean a final judgment "obtained in an action". Thus, in Clyne v Deputy Commissioner of Taxation (NSW) (1983) 57 ALJR 673 at 675; 48 ALR 545 at 547-548 Gibbs CJ (with whom the other members of the High Court agreed) said: A final judgment within the meaning of the provisions of the Bankruptcy Act has been held to mean a judgment obtained in an action by which the question whether there was a pre-existing right of the plaintiff against the defendant is ascertained or established: Opie v Opie (1951) 84 CLR 362 at 372. In other words it is a judgment which finally disposes of the rights of the parties: see Licul v Corney (1976) 8 ALR 437; 50 ALJR 439 at 444. The fact that a judgment is subject to appeal or that it may later be set aside or become inoperative does not mean that it is not final: Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378. 45 Mr Sayer-Jones' basis for saying that the judgment/order is not final turns on asserted irregularities in the conduct of the Local Court proceedings leading to the judgment/order made against him. The substance of his complaint is that instead of reading an affidavit, Juju Bean tendered business records that were annexures to that affidavit, depriving him of an opportunity to cross-examine the deponent. The hearing was then adjourned for written submissions. When the matter was back before the magistrate for delivery of an oral judgment, Mr Sayer-Jones unsuccessfully sought to reopen the proceedings, complaining about the way in which Juju Bean chose to prove its case. He also complains about the refusal of a stay upon delivery of the judgment/order, but this does not create a lack of finality in the sense described in the passage from Autron Pty Ltd v Benk reproduced in the preceding paragraph. None of Mr Sayer-Jones' complaints come close to any proper basis for going behind the judgment, as set out in Dunkerly v Comcare at [68], reproduced at [11] above. 46 I go further. I cannot see anything wrong with the course that Juju Bean took in the way in which it ran its case in the Local Court. This is especially so given that Mr Sayer-Jones was able to advance a defence, albeit an unsuccessful one, as is made clear by the magistrate's reasons annexed to Mr Sayer-Jones' affidavit. But even if I was wrong about that, I would not be satisfied that any sufficient basis had been established for going behind the judgment/order as a matter of discretion. Bankruptcy proceedings must not be allowed to descend into a means of collaterally attacking antecedent litigation as an alternative to using the usual appeal processes. Ground 8 must fail.

Abuse of process grounds 47 Mr Sayer-Jones asserts that the bankruptcy notice is an abuse of process because of: (1) the way in which the bankruptcy notice was issued, including an asserted failure to find out if he was insolvent before taking that step, not using his middle name (ground 1 again), the way in which interest was claimed in the bankruptcy notice (ground 2 again) and the use of his incorrect address (ground 3 again): ground 5; (2) the fact that he has a set-off against Juju Bean in respect of the claimed debt, implicitly relying upon the set-off provisions in s 40(1)(g) of the Bankruptcy Act, with the existence of that set-off to be divined by the Court reading and interpreting the deed, without any meaningful assistance from Mr Sayer-Jones: ground 9: (3) the bankruptcy notice being obtained in circumstances that were a miscarriage of justice - a complaint about the terms of the deed upon which he was sued, including a complaint about the way in which the judgment/order was obtained, apparently a reference to the matters considered in relation to ground 8 above: ground 10; (4) the conduct of Juju Bean's solicitors, because of the circumstances in which the bankruptcy notice was issued and formulated, accepted by Mr Sayer-Jones to be a restatement of ground 5: ground 15. 48 I am not satisfied that Mr Sayer-Jones has come close to establishing any abuse of process in causing a bankruptcy notice to issue and be served, or on any of the other grounds and arguments relied upon. To the contrary, I am positively satisfied that the purpose of the bankruptcy notice was genuinely to invoke the insolvency jurisdiction, and readily infer a genuine intention to pursue the exercise of that jurisdiction if Mr Sayer-Jones does not comply with that notice: Maxwell-Smith v S & E Hall Pty Ltd, in the matter of Maxwell-Smith [2006] FCA 825; 233 ALR 81 at [43]-[44]. Unlike the situation in Maxwell-Smith, in which an abuse of process was found to be established (at [45]-[51]), there is no evidence of any collateral purpose or undue pressure, the onus lying on Mr Sayer-Jones to adduce any such evidence. As Gleeson J pointed out in Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485 at [76]: The onus of proving the existence of a collateral purpose lies on the debtor: Cavoli v Etl [2007] FCA 1191 at [17] per Heerey J, and more than mere assertion is required: Watts v Adelaide Bank Limited [2009] FCA 420 at [19]". 49 During the course of argument, Mr Sayer-Jones suggested that the judgment/order was not a sufficient basis for the issue of a bankruptcy notice, and that the transcript of the magistrate's reasons were required also to be attached to the bankruptcy notice (which would then not be valid because there was no court seal affixed to the transcript). There is no foundation for the claim that reasons are required for the issue of a bankruptcy notice to be valid. The issue of bankruptcy notices based upon the orders made following judgment is routine and unexceptional. In the absence of evidence adduced by Mr Sayer-Jones as to the irregularity of the notice or its issue, there was never any serious prospect of the bankruptcy notice being set aside upon this basis. 50 Grounds 5, 9, 10 and 15 must fail.

Ground 16: In light of the constellation of matters (i) [ground 1] to (xv) [ground 15], the bankruptcy notice is invalid because it has the capacity to mislead. 51 As none of the foregoing grounds has been established, ground 16, which relies upon success on one or more of grounds 1 to 15, must also fail.

Post-hearing/pre-judgment communication by Mr Sayer-Jones 52 At 12.34 pm on 19 February 2020, prior to judgment delivery scheduled at 9.00 am on 21 February 2020, Mr Sayer-Jones sent the following email to my associate, copied to Mr Mitry and to the registry: Dear Associate, In this matter I would like to advise the Court that I do not wish to make any submissions on the question of costs if my originating application is dismissed. Costs follow the event and I kindly and respectfully do not want to waste the Court's time with submissions on the question. Given the way proceedings were conducted by the respondent there will be no practical difference between indemnity costs and costs on the ordinary basis. May I also please note that I have no objection whatsoever as to the judgment being published and then sent to me via email to avoid Costs to the Court of reconvening. I emphasize, for clarity, the judgment can be emailed and there is no need to reconvene the Court. There will also be no application to stay the judgment pending an appeal to the Full Court which would necessitate an oral hearing either. I raise these matters in a direct way to avoid any delay at the Registry. Thanking you very much indeed, Robert Sayer-Jones. 53 It is a requirement of open justice that at least the making of dispositive orders, and usually (but not always) the reason for making such orders, takes place in open court. I see no reason why that should not take place in this case, and accordingly this judgment will be delivered in the usual way as scheduled, with a copy then sent to the parties by email. It is a matter for Mr Sayer-Jones as to whether or not he attends Court. An email was sent to Mr Sayer-Jones, copied to the solicitors for Juju Bean, to that effect.

Conclusion 54 As no basis for setting aside the bankruptcy notice has been established, the originating application must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Civil Procedure Rules 2005(NSW)r 36.7

Bankruptcy Act 1966(Cth)s 40(1)(g), s

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