Worchild v The Drink Nightclub

DECISION OF RIMMER FM 5 After setting out the facts of the case and explaining the statutory framework, Rimmer FM noted that the key issue was the regularity of the creditor's petition presented by the respondents. Her Honour said that: · if she were not satisfied of the matters set out in s 52 of the Bankruptcy Act, the petition must be dismissed, but · if she were so satisfied then it was the debtor - the appellant in this case - who bore the onus of establishing there was some other sufficient cause why the sequestration order ought not be made. 6 In relation to the first point, s 52 Bankruptcy Act provides, so far as relevant, that: '(1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. … (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition.' 7 On the evidence, her Honour was satisfied of all the matters in s 52(1), and noted that the appellant had not in his evidence or submissions to the court put a case that he was solvent (par 29). Accordingly in her Honour's view the matter turned on the question whether there was other sufficient cause within the meaning of s 52(2) why a sequestration order ought not to be made, and whether her Honour should exercise her discretion to dismiss the petition. In deciding whether to exercise her discretion her Honour considered: · a potential counter-claim, set-off or cross-demand of the appellant related to the original litigation between the parties, but which her Honour considered continued to suffer from all the deficits identified by Cooper J in Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642. · a potential counter-claim, set-off or cross-demand in the appellant in that he claimed the respondents had committed contempt of court, but which her Honour considered was unlikely to have any prospects of success, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). · a potential counter-claim, set-off or cross-demand in the appellant in that he claimed that the judgment of Cooper J had been obtained by fraud or collusion or mistake, but which her Honour considered was not supported by the evidence before her nor by the decision of Cooper J, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). · a claim described by her Honour as being essentially that an act of bankruptcy had not been committed by the appellant. Her Honour summarised this claim of the appellant as being that he should have been successful before Cooper J, the order for costs should not have been made, the appellant should not be indebted to pay those costs to the respondents, and, as a result, in not paying the debt the appellant has not committed an act of bankruptcy. Her Honour considered that the appellant had committed an act of bankruptcy, and that this was not a proper matter to be taken into account when exercising her discretion under s 52(2). · a claim by the appellant that the bill of costs produced for taxation following the decision of Cooper J included items which did not relate to the proceedings under Pt 4A Trade Practices Act 1975 (Cth). In her Honour's view, these matters should have been addressed by the appellant in the taxation process in the Federal Court of Australia, and there was no evidence before her to establish that they were raised nor what the outcome was of it being raised at the taxation. · a claim by the appellant that there were defects in the petition and/or bankruptcy notice. Her Honour considered this claim in detail, including reviewing Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 and The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33, which are the leading authorities in this area. Her Honour summarised this claim as follows: 'In this matter the debtor contends that par 1 of the petition states that the creditors are owed an amount due under the order of the Federal Court and that the bankruptcy notice fails to contain the judgment or certificate of taxation. He says that where in par 2 it says that the creditor does not hold security over the property of the debtor, that this leaves doubt as to whether the one or the other holds security over the property of the debtor. Further he contends that the petition refers to the words 'creditor' and 'creditors' including reference to the agent for the Petitioner which creates a doubt as to who the Petitioner is and whether or not there are two joint petitioners and whether or not the agent holds instructions to act on behalf of both petitioners. He says that par 4 of the Petition fails to state the date of the act of bankruptcy.' (at [69])

Her Honour was satisfied that the creditors' petition was overall compliant and in all respects clear and unequivocal, that the appellant's submissions concerning the reference to 'creditor' and 'creditors' was a spurious argument without merit, and that par 4 was compliant with the formal requirements of the prescribed Form. 8 Accordingly, there was nothing in the submissions made or on the evidence produced which would lead her Honour to find that there were defects in the bankruptcy notice or the creditor's petition sufficient to dismiss the petition, nor to exercise her discretion in favour of the appellant under s 52(2)(b) Bankruptcy Act.

APPEAL 9 The appellant's original notice of appeal against the decision of Rimmer FM was filed 18 October 2005. The grounds of appeal were as follows: 1. Rimmer FM failed to appreciate that the respondents failed to comply with O 77 r 19 Federal Court Rules. 2. Rimmer FM erred in holding the debt on which the respondents relied was still owing at the hearing date for the petition contrary to the weight of the evidence. 3. Rimmer FM erred in finding that the appellant committed an act of bankruptcy where there has yet to be a final determination of the application to set aside the bankruptcy notice as required under s 43 of the Act. 4. Rimmer FM erred in finding that the creditors' petition was verified by a person who knew the relevant facts, contrary to the weight of the evidence. 5. Rimmer FM erred in finding the petition was not defective, contrary to the weight of the evidence. 6. Rimmer FM erred in holding that there was no other sufficient cause why a sequestration order not to be made under s 52 of the Act, contrary to the weight of the evidence. 7. Rimmer FM erred in finding that the respondents did not hold security over the appellant's property, contrary to the weight of the evidence. 8. Rimmer FM failed to appreciate that security for costs is required to contest a bill of costs in the Federal Court. 10 Further, by way of supplementary notice of appeal filed 7 December 2005 the appellant also raised the following grounds of appeal: 1. Rimmer FM erred in finding that the creditors' petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. 2. Rimmer FM erred in finding that the order attached to the bankruptcy notice was a final judgment or order of the Federal Court. 3. Rimmer FM erred in that she failed to appreciate no fresh affidavit verifying par 1 of the petition was filed at the time of the hearing. 4. Rimmer FM erred in that she failed to investigate the claim in the circumstances where there was sufficient cause to doubt the judgment debt. 5. Rimmer FM failed to accept and act upon documents put before her. 6. Rimmer FM failed to obtain and act upon documents which she should have considered. 11 There is some overlap between these grounds of appeal. Written and oral submissions were made by both the appellant and the respondents in relation to these grounds of appeal. The issues to which the grounds of appeal relate may be summarised as follows: 1. Whether the respondents failed to comply with O 77 r 19 Federal Court Rules. 2. Whether the debt was still owing on the date of the hearing. 3. What constitutes a final determination of the bankruptcy notice, and a final order or final judgment. 4. Whether the creditor's petition was verified by a person who knew the relevant facts. 5. Whether there were defects in the creditor's petition. 6. Whether there was other sufficient cause under s 52(2)(b) Bankruptcy Act. 7. The relevance of issues pertaining to security for costs. 8. Whether there was cause to doubt the judgment debt. 9. Whether documents were accepted, obtained and acted upon. 12 I propose to deal with the grounds of appeal in my judgment by references to these issues.

applicable RULES 13 Bankruptcy proceedings in the Federal Court are now governed by the Federal Court (Bankruptcy) Rules 2005; similarly bankruptcy proceedings in the Federal Magistrates Court Rules are now governed by Federal Magistrates Court (Bankruptcy) Rules 2006. The proceedings before me relate to parts of the Federal Court Rules and the Federal Magistrates Court Rules which have been repealed, but remain applicable to this case. 14 Order 77 r 19 Federal Court Rules read as follows: '(1) Before the hearing of a creditor's petition, the applicant creditor must file the affidavits required by: (a) subrules (2) to (4); and (b) if subrule (5) applies - that subrule. (2) The applicant creditor must file an affidavit stating that documents required to be served under rule 18A have been served, and stating when and how they were served. (3) The applicant must file an affidavit of a person who has searched, or caused a search to be made, in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition: (a) setting out the details of any references in the Index to the debtor; and (b) stating that there were no details of a debt agreement, in relation to the debt on which the applicant relies, in the Index on the day when the petition was presented; and (c) that has attached to it a copy of the relevant extract of the Index. (4) The applicant must file an affidavit of a person who knows the relevant facts : (a) sworn as soon as practicable before the hearing date for the petition; and (b) stating that each debt on which the applicant relies is still owing. (5) If the debt stated in the petition is an amount payable to the petitioner under a judgment that ordered the amount to be paid into the court that gave the judgment, the applicant must file an affidavit of a person who has searched in the proper office of that court, not earlier than the day before the hearing date for the petition, stating whether the amount, or part of the amount, has been paid into the court in accordance with the judgment. (6) If it is not practical for the applicant to file the original of an affidavit mentioned in subrule (2), (3), (4) or (5): (a) a facsimile copy of the affidavit must be filed; and (b) the original affidavit must be filed within 2 days after the hearing at which the facsimile affidavit is used.' 15 Further, so far as relevant, Pt 31 Federal Magistrates Court Rules read as follows: 'Part 31 Creditors' petitions 31.01 Application of Part This Part applies to a creditor's petition seeking a sequestration order against the estate of a debtor. 31.02 Requirements of creditor's petition and supporting affidavits (1) The petition must be in accordance with Form 150. (2) The petition must be accompanied by: (a) sufficient copies of the petition for service; and (b) an affidavit of a person who knows the relevant facts verifying the petition. (3) The petition must not be attached to the affidavit mentioned in paragraph (2)(b). … 31.04 Petition founded on failure to comply with bankruptcy notice or set up counter-claim etc (1) If the petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the affidavit verifying the petition must state: (a) that an application was made for an order setting aside the relevant bankruptcy notice and that the application has been finally decided; or (b) that an application was made for an order extending the time to comply with the bankruptcy notice and that the application has been finally decided; or (c) that the Court records and the records of the Federal Court have been searched and that no application in relation to the bankruptcy notice has been made. (2) The affidavit must be accompanied by an affidavit of service of the relevant bankruptcy notice. (3) If an application mentioned in paragraph (1)(a) or (b) has been made, the affidavit must also be accompanied by a copy of the order finally deciding the application. … 31.06 Additional affidavits to be filed before hearing (1) Before the hearing of a creditor's petition, the applicant creditor must file the affidavits required by this rule. (2) The applicant creditor must file an affidavit stating that the documents required to be served under rule 31.05 have been served, and stating when and how they were served. (3) The applicant must file an affidavit of a person who has searched, or caused a search to be made, in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that: (a) sets out the details of any references in the Index to the debtor; and (b) states that there were no details of a debt agreement, in relation to the debt on which the applicant relies, in the Index on the day when the petition was presented; and (c) has attached to it a copy of the relevant extract of the Index. (4) The applicant must file an affidavit of a person who knows the relevant facts that: (a) was sworn as soon as practicable before the hearing date for the petition; and (b) states that each debt on which the applicant relies is still owing. … …'

Whether the respondents failed to comply with O 77 r 19 Federal Court Rules: Original Notice of Appeal Ground 1 16 The appellant submits that an affidavit of final search must be performed no earlier than the day before the hearing of the creditor's petition. The creditor's petition in this case was initially before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005, and subsequently before Rimmer FM on 26 August 2005. The appellant submits however that: · no affidavit of final search was conducted by the respondents on 25 August 2005, and · no affidavit was filed which states that there were no details of a debt agreement in relation to the debt on which the respondents rely on the date of the hearing, or whether any amount had been paid into court or to the respondents in accordance with the judgment. 17 In this respect the appellant claims failure to comply specifically with O 77 r 19(3) and (5) Federal Court Rules. This rule is mirrored in r 31.06(3) and (5) Federal Magistrates Court Rules. Given that the matter was in the Federal Magistrates Court, rather than the Federal Court, on this point it appears that the Federal Magistrates Court Rules apply and the appellant has incorrectly framed this ground of appeal in terms of the Federal Court Rules. In the interests of justice however I am prepared to allow the issue to be advanced. 18 In relation to this ground of appeal, the respondents submit: a) the matter was not raised before Rimmer FM, and should therefore not be included as a ground of appeal b) in any event, the petition originally came before a Registrar on 24 June 2005, and an affidavit of search of Nicole Jeanette Tovey was filed on 23 June 2005 wherein Ms Tovey deposed that she had undertaken a search of the National Personal Insolvency Index and ascertained that o there were no references in the Index to the debtor other than this petition, and o there was no debt agreement in relation to the debt on which the applicant relies in the index on the day when the petition was presented. The affidavit of Ms Tovey was therefore sworn no earlier than one day before the original hearing date held before District Registrar Ramsey and, notwithstanding that the hearing date was adjourned, the validity of the affidavit remained and was unchallenged by the appellant before her Honour. c) dealing with the actual ground of appeal raised, at the hearing of the matter before Rimmer FM the appellant relied upon two affidavits of himself. 19 In relation to the matter not being raised previously before Rimmer FM, the appellant during the hearing strongly disputed that the Federal Court was bound by any principle with respect to consideration of matters not previously raised before a Federal Magistrate at the primary hearing of the case. The appellant submitted that common law doctrines in this respect have no place before the Federal Court. 20 I do not accept this submission of the appellant. 21 The general rule is clear. It has been a principle of the common law for many years. Lord Hobhouse, delivering the judgment of the Privy Council, articulated the rule in Grey v Manitoba and North Western Railway Co of Canada (1897) AC 254 at 267 as follows: 'The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the Courts below. As the matter stands they have not been touched by the Courts below… (Their Lordships) confine themselves to deciding the issues which the Courts below were invited by the plaintiffs to decide, namely, whether there can be a judicial sale, and what it is that the receiver of the revenues of the division is entitled to receive.' 22 This articulation was adopted by the High Court in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. 23 More recently, the High Court explained in Metwally v University of Wollongong (1985) 60 ALR 68 at 71: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.' 24 The principle was again applied by the High Court in Water Board v Moustakos (1994) 180 CLR 491 at 497 where Mason CJ, Wilson, Brennan and Dawson JJ said: 'More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.' 25 This principle has also been applied in many decisions of the Federal Court, including Iyer v MIMIA [2000] FCA 1788 and Gomez v MIMIA (2002) 190 ALR 543. 26 Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: · where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) (Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Green v Sommerville (1979) 141 CLR 594 at 608) · the importance of avoiding the repetition of similar mistakes of law in the future (Crampton v R (2000) 206 CLR 161 at 236, Giannarelli v R (1983) 154 CLR 212) · taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12]) · whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61]) · whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal (Gomez v MIMIA (2002) 190 ALR 543 at 549) · whether the appellant had the benefit of legal representation at the primary hearing (Iyer v MIMIA [2000] FCA 1788 at[24]) · the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at[24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.' 27 In the case before me although the appellant was not legally represented, I understand that he is in fact a solicitor and therefore at somewhat less of a disadvantage in conducting a case before a court than self-represented litigants without legal qualifications. No explanation was provided by the appellant as to why this ground of appeal was not raised before her Honour - indeed that hearing would have been a timely opportunity to do so - other than the fact that the appellant considered that he was entitled to raise new issues by way of appeal before this court. Finally, the fact that this ground of appeal is but one of a number involving issues which were not raised before her Honour suggests, to paraphrase Gyles J in Iyer v MIMIA [2001] FCA 929 at 61, that the appellant is asking this court to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. In my view the Court should not permit the proper process to be so ignored. 28 In any event, a brief consideration of this ground of appeal indicates that it is without merit. The respondents had satisfied their obligations by conducting a search and filing the required affidavit the day before the nominated date for the hearing of the petition, namely the date on which the matter came before District Registrar Ramsey and was adjourned to be heard before a Federal Magistrate. This is clear because: · section 104 Federal Magistrates Act 1999 (Cth) contemplates registrars of the court hearing, continuing to hear, or not hearing, applications which come before them · section 104(4) also contemplates a registrar making arrangements in appropriate circumstances for a matter being heard by the registrar to instead be heard by a federal magistrate · accordingly when the respondents' petition came before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005 the proceedings constituted a 'hearing', notwithstanding that the decision of the registrar was to make arrangements for the matter to instead be heard by a Federal magistrate. 29 To find otherwise would in my view impose unnecessary additional burdens on creditors in such circumstances. 30 Further, at the subsequent hearing before Rimmer FM the appellant was at liberty to raise issues relevant to the contents of the National Personal Insolvency Index so far as applied to him, including for example details of any debt agreement in relation to the debt on which the creditor relies. The purpose of O 77 r 19(3) Federal Court Rules (and r 31.06(3) Federal Magistrates Court Rules) would seem to be to provide the court with evidence that there is no debt agreement in force which would preclude a creditor from proceeding further with a creditor's petition, and to provide evidence of any other proceedings in bankruptcy which might have a bearing on the making of a sequestration order (French v Wilcox [2001] FCA 95 at [34] per Lee and Carr JJ). In this case the appellant did not raise any issues of this nature before her Honour and accordingly her Honour was entitled to make the findings she did. A similar issue was raised in French v Wilcox where an affidavit under O 77 r 19(3) was sworn on 21 July 2000 and, after the matter came before the court on that date, the hearing of the creditor's petition was adjourned to 30 August 2000 when the primary judge made a sequestration order. On appeal Lee and Carr JJ said: 'Likewise, his Honour had an index search sworn on 21 July 2000. In the absence of any suggestion from the appellant that any proceedings in bankruptcy had taken place between 21 July 2000 and 30 August 2000, he was, in our opinion, entitled to assume that no such proceedings (including the making of any debt agreement) had taken place.' (at [37])

Whether the debt was still owing on the date of the hearing: original notice of appeal ground 2 and supplementary notice of appeal ground 3 31 These grounds of appeal are referable to O 77 r 19(4) Federal Court Rules, mirrored in r 31.06(4) Federal Magistrates Court Rules. As pointed out by Lee and Carr JJ in French v Wilcox [2001] FCA 95 at [35]. 'The evident purpose of rule 19(4) is to provide a means of proving what is required by s 52(1)(c) of the Act, ie the fact that the debt or debts on which the petitioning creditor relies is or are still owing.' 32 In written submissions, the appellant claims that the respondents failed to file an affidavit of final debt sworn as soon as practicable before the hearing date stating that the debt relied upon is still owing and the amount of the debt. In the absence of that affidavit, there was no material before the court to justify a finding of a final debt or the making of a sequestration order. 33 The appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. 34 The respondents submitted that at the hearing of the matter before Rimmer FM the appellant relied upon two affidavits of himself and there was no reference whatsoever to advance any other position than the debt relied upon was still owed at the date of the hearing. The respondents submitted that the only relevant affidavit was that of the second respondent sworn 23 June 2005 which stated that the sum of $24 000.00 owing by the appellant was still wholly due and unsatisfied. 35 In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act, the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo, Padagas and CSR cited earlier in this judgment as authority for this proposition. 36 It is clear that the petitioning creditor's debt must answer the description contained in s 44(1)(a),(b) Bankruptcy Act both at the date of the presentation of the petition and at the date of the hearing. In this case however her Honour noted that the court had received affidavit evidence in proof of the matters stated in the creditor's petition (at [21]), that the debt was still outstanding at the date of the hearing before her Honour, and that there was no dispute about the fact that the debtor had not paid the creditor the amount outstanding (at [22]). 37 The circumstances of this case bear interesting similarities to those in French v Wilcox. In the absence of any real indication that the debt had been paid when the matter was before her Honour on 26 August 2005, it was open to her Honour to infer that the debt was still owing. 38 The appellant has not brought any evidence before me which would in any way negate that finding. I reject the submission by the appellant that there was no material before Rimmer FM to justify a finding of a final debt or the making of a sequestration order.

What constitutes a final determination of the bankruptcy notice, and a final order or final judgment: Original Notice of Appeal Ground 3 and Supplementary Notice of Appeal Ground 2 39 Both grounds of appeal raise issues of finality of decision. It is convenient to consider these grounds together.

Original Notice of Appeal Ground 3 40 In the original notice of appeal, the appellant claimed as his third ground of appeal that there had yet to be a final determination of the application to set aside the bankruptcy notice as required under s 43 of the Bankruptcy Act. Specifically, the appellant submits that in an affidavit of 3 June 2005 filed by Mr Bisson, a solicitor acting for the respondents, in accordance with r 31.04 of the Federal Magistrates Rules, Mr Bisson deposed that an application was made for an order setting aside the bankruptcy notice and that the application had been finally decided by Deputy District Registrar Baldwin on 13 May 2005. However, the appellant submitted that no affidavit was filed before the creditor's petition was heard by Rimmer FM to the effect that the decision of Deputy District Registrar Baldwin had been appealed to Dowsett J, and an appeal from the decision of Dowsett J was pending before the Full Court. (The decision of Dowsett J was subsequently upheld: Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240.) The appellant submits further that as at the date of the hearing before me there was an application for special leave to appeal the decision of the Full Court to the High Court of Australia. 41 In summary, the appellant submits that the application to set aside the bankruptcy notice is not spent and will only be spent when leave to appeal is refused by the High Court, and orders are settled. Accordingly, the respondents could not produce an affidavit verifying par 4 of the creditors' petition as required by r 31.04 of the Federal Magistrates Court Rules 2001 (as they were prior to amendment) until an order is settled. As authority for this proposition, the appellant relies on Guss v Johnstone (2000) 171 ALR 598. 42 In Guss a bankruptcy notice was issued in respect of a judgment of the Magistrates Court which was eventually appealed (unsuccessfully) to the Full Court of the Supreme Court of Victoria. The debtor filed an affidavit pursuant to s 41(7) of the Bankruptcy Act, with the result that time for compliance with the notice was extended until the Federal Court determined whether it was satisfied that the appellant had a counter-claim, set-off or cross demand such as referred to in s 40(1)(g) of the Act. Sundberg J held that he was not satisfied that the appellant had such a counter-claim, set-off or cross demand; the debtor did not comply with the requirements of the bankruptcy notice, and as a result the debtor committed an act of bankruptcy. The debtor appealed unsuccessfully to the Full Court of the Federal Court, and then to the High Court. 43 Rimmer FM considered this issue in the course of her decision. Her Honour noted that the appellant applied to have the bankruptcy notice set aside; the application was heard on 13 May 2005 by Deputy District Registrar Baldwin and dismissed; the appellant was then served with the creditor's petition; as of the date of the hearing of the matter by Rimmer FM the appellant had not paid the debt owing to the respondents, and clearly he had committed an act of bankruptcy. 44 Turning to the submissions of the appellant, it is difficult to see how the appellant is assisted by his reliance on Guss. The only relevance of Guss is that the debtor in that case, like the debtor in the case before me, also sought to raise issues as to the validity of the debt upon which the bankruptcy notice was founded. In that case, as has also been the case here as evidenced by the history of litigation involving the appellant and the respondents, the debtor was unsuccessful. 45 In my view it is incorrect for the appellant to assert that the issue is not 'finally decided' until all avenues of appeal in the matter are exhausted. This is for at least two reasons. 46 First, the plain reading of r 31.04 is that, once a bankruptcy notice is issued by the official receiver, it is open to the debtor to make an application to have the bankruptcy notice set aside by a court. In this case, the courts having jurisdiction under the Bankruptcy Act are the Federal Court of Australia and the Federal Magistrates Court (s 27 Bankruptcy Act). The application by the appellant to have the bankruptcy notice set aside was heard in the Federal Court before Deputy District Registrar Baldwin. In relation to matters before the Federal Court, it is open to either a judge or a registrar of the Federal Court of Australia to deal with an application to set aside a bankruptcy notice (this is clear from s 35A(1)(h) Federal Court of Australia Act 1976 (Cth) and O 77 r 7 and Sch 3 Federal Court Rules). 'Decided' in this context bears the plain meaning of the court having entertained an application, and making an order on the basis of that application. In this case, the appellant's application to have the bankruptcy notice set aside was decided by Deputy District Registrar Baldwin on 13 May 2005 when the application was dismissed. 47 The second issue is that it is very clear that the application to set aside the bankruptcy notice was finally decided by the Deputy District Registrar on 13 May 2005. In the context of r 31.04 Federal Magistrates Court Rules, the concept of finality is referable to whether the decision in relation to the application to set aside the bankruptcy notice finally determined the rights of the applicant or the respondent in favour of either of them. A similar test applies in a number of contexts, for example: · interpreting the meaning of 'final judgment or final order' in s 40(1)(g) Bankruptcy Act (see, for example, the test articulated by Lord Esher MR in In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512 at 516); and · distinguishing a 'final judgment' from an 'interlocutory judgment' (see, for example, Hall v Nominal Defendant (1966) 117 CLR 423 per Taylor J at 440 and Windeyer J at 443). 48 Where an order is made either allowing or dismissing an application to set aside a bankruptcy notice, the decision does finally determine the rights of the parties in relation to the validity of the bankruptcy notice either in favour of the applicant or the respondent. The terms of r 31.04 indeed imply that the decision on the application is 'final'. The fact that the decision is capable of being appealed, ultimately to the High Court of Australia, does not in any way derogate from its 'finality'. 49 This ground of appeal fails.

Supplementary Notice of Appeal Ground 2 50 In the supplementary notice of appeal, the appellant claimed in his second ground of appeal that Rimmer FM erred in finding that the order attached to the bankruptcy notice was a final judgment or order of the Federal Court. 51 In his written submissions, the appellant submitted: 'The Court erred in holding that the order of the Federal Court was a final judgment or order with (sic) the meaning of the act. Where an application for leave to appeal is not brought within 7 days does not render the judgment a final judgment or order within the meaning of the Act: Re Carmody: Ex parte Glennan [2000] HCA 37 at 19, 20 and 26. The Federal Court rules provide that extensions of time for an application for leave to appeal is brought out of time.' 52 In this case the act of bankruptcy upon which the sequestration order was founded was the failure of the appellant to comply with a bankruptcy notice in respect of a debt the subject of a final judgment or final order within the meaning of s 40(1)(g) Bankruptcy Act. That debt arose from the failure of the appellant to pay the respondent the sum of $24 000.00 in accordance with a costs order made by Deputy District Registrar Baldwin in the Federal Court on 26 November 2004. 53 In my view this submission of the appellant is misconceived. 54 Principally, it appears that the issue of whether the order of the Deputy District Registrar was in the nature of a final order has already been raised by the appellant in other litigation, and dealt with by the Full Court in that context: Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240. In particular I note par 10 of the joint judgment of Kiefel, Jacobson and Greenwood JJ where their Honours said: '10 In our view the order of 26 November 2004 is a final order within the meaning of the Bankruptcy Act, one in which the respondents' rights were ascertained and given effect to. Unlike a mere Certificate of Taxation, an order made under O 62 r 45(3) of the Federal Court Rules directs the payment of money. This was a feature absent in Re Walker; Ex parte Noble Einsiedel Pty Ltd [1992] FCA 327, a decision of Northrop J of 16 April 1992 at p 4. A purpose of the rule is to permit enforcement and execution under the order. The latter is an important element in determining whether an order is final or not: Pepper v McNiece (1941) 64 CLR 642 at 657. In Re Draper; Ex parte Australian Society of Accountants, an unreported decision of 3 February 1989, von Doussa J held that an order made under the rule was final, within the meaning of s 40(1)(g) of the Bankruptcy Act. In his Honour's view, if there be any doubt about that, it is removed by the provisions of s 40(3)(b) of the Bankruptcy Act, as the orders are ones which can be enforced as final judgments. See also Re Luckins; Ex parte Columbia Pictures Industries & Anor (1996) 67 FCR 549, a decision of Beaumont J at p 559.' 55 This is enough to dispose of this submission. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned (inter alia) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context. 56 This ground of appeal fails.

Whether the creditor's petition was verified by a person who knew the relevant facts: Original Notice of Appeal Ground 4 57 The appellant submits that the learned Federal Magistrate erred in finding that the creditor's petition was verified by a person who knew the relevant facts, contrary to the weight of the evidence. The relevant affidavit is that of the second respondent filed 3 June 2005, which is the same date that the creditor's petition in this matter was filed. 58 The affidavit, which is headed 'AFFIDAVIT VERIFYING PARAGRAPHS 1, 2 & 3 OF PETITION (rule 31.02)' describes the applicant as The Drink Nightclub (Qld) Pty Ltd and Bill Cross, and describes the respondent as Andrew Worchild. The body of the affidavit is as follows: 'I, Bill Cross c/- Hynes Lawyers Gold Coast, Level 6, Gateway Building, 40 Appel Street Surfers Paradise in the State of Queensland state on oath:- 1. I am the Sole Director of The Drink Nightclub (Qld) Pty Ltd, and as such have access to the books and records of the Applicant. I am duly authorised to make this affidavit on behalf of the Applicant Creditors. 2. The statements contained in paragraphs 1, 2 and 3 of the petition signed and dated 17 31 May 2005 are within my own knowledge true. 3. The abovenamed respondent has not paid, nor made any arrangement to the Applicants satisfaction for settlement of the debt claimed in the bankruptcy notice herein issued on the Application of the Applicant to in paragraph 4 of the petition.' 59 The amendment to the date in par 2 of the affidavit is initialled. 60 In his written submissions, the appellant submits inter alia: · the petition should be a separate document and must not be attached to the affidavit (r 31.02(3)) · the affidavit does not identify the petition that it refers to or annexe a copy of the petition to the affidavit, and because of this it is possible that the affidavit may in fact refer to another petition or bankruptcy notice · the bill of costs was not prepared by the second respondent and 'he had no knowledge of the contents of the material in circumstances where he has now filed an affidavit verifying that monies are due for the perusal of documents that he deposed did not exist during the part 4a proceedings' · he has given notice of overstatement of the debt to the respondents. 61 The respondents submit in reply that this was not an issue raised before the learned Federal Magistrate and accordingly the Court ought not to entertain it on appeal. 62 I accept the submissions of the respondents on this issue. In accordance with the legal principles explained earlier in this judgment, there are no exceptional circumstances which warrant the Court allowing the appellant to raise any of these arguments on appeal when he had an opportunity to do so before her Honour, and no submissions have been made supporting the notion that it is in the interests of justice that this issue be entertained on appeal. In any event I also note: · In the circumstances it is absurd for the appellant to suggest there was any potential confusion as to which petition or bankruptcy notice Mr Cross' affidavit referred. · To the extent that the appellant claims that one of the creditors in question cannot depose as to the amount of costs contained in a court order in that creditor's favour, the submission is also absurd. It is difficult to imagine a deponent who would be in a better position to verify the relevant facts in a creditor's petition, than the creditor himself. Further, no 'evidence' was referred to by the appellant, the weight of which should cause the Court to find that her Honour erred. 63 This ground of appeal fails.

Whether there were defects in the creditor's petition: Original Notice of Appeal Grounds 5 and 7, and Supplementary Notice of Appeal Ground 1 64 The appellant submitted in the fifth ground of the original notice of appeal that Rimmer FM erred in finding that the petition was not defective, contrary to the weight of evidence. In the seventh ground of the original notice of appeal, the appellant submitted that the learned Federal Magistrate erred in finding that the creditors did not hold security over the debtor's property contrary to the weight of the evidence. Further, the appellant submitted in the first ground of the supplementary notice of appeal that Rimmer FM erred in finding that the creditors' petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. 65 Dealing with the appellant's submissions as follows:

1. The appellant submits that 'paragraph 1 of the Petition states that the applicant Creditors are owed an amount due under an order of the Federal Court. Paragraph 4 refers to a judgment referred to in the bankruptcy notice. The bankruptcy notice fails to contain the judgment or certificate of taxation'. 66 Rimmer FM in her judgment considered this issue. Her Honour said at par 70: 'I am satisfied that this creditor's petition is overall compliant. It is in all respects clear and unequivocal. In relation to paragraph 1 the petition is compliant and the Bankruptcy Notice contains the order made on 25 November 2004. Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs. No application for review of the Registrar's decision was made by the debtor. No new substantive issues have been raised by the debtor. Whilst I accept that at any time prior to the making of the sequestration order the debtor can raise issues of formal defects in the Bankruptcy Notice, he cannot continue to raise the same or similar issues when that issue has been heard and determined both at first instance by a Registrar and then on review to the Federal Court.' 67 The nature of the 'weight of evidence' against her Honour's finding in relation to par 1 of the petition is unclear. As I have already noted, none of the facts to which par 1 refers appeared to be in dispute before her Honour. Indeed, I note this same issue has been raised by the appellant before the Full Court in other proceedings, and the Full Court found that it was not necessary that a certificate of taxation be attached to the bankruptcy notice, and that the relevant order of Deputy District Registrar Baldwin was - as required by the Bankruptcy Act - attached to the bankruptcy notice (Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240 at 8, 9). The appellant has sought to rely on the decision of the Full Court (see TS ll 38-42) however he appears to have misread the judgment of their Honours. No error in the reasoning of Rimmer FM is demonstrated by this submission. 68 Further, the appellant claimed in ground 1 of the supplementary notice of appeal that Rimmer FM erred in finding that the creditor's petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. In his submissions on this point, I note that the appellant, in relying on Thompson v Metham [1999] FCA 935, actually addressed the issue whether a copy of the judgment and/or a copy of the certificate of taxation ought be attached to the bankruptcy notice. However in any event this ground of appeal fails for the reason that her Honour made no such finding as claimed by the appellant. Indeed, after considering the appellant's submission at par 69 of her judgment, her Honour went on to state: 'In relation to paragraph 1 the petition is compliant and the Bankruptcy Notice contains the order made on 25 November 2004. Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs.' (emphasis added)

2. The appellant submits that paragraph 2 of the petition 'states that the applicant creditor does not hold security of the property of the debtor this leaves doubt as to whether the one or the other holds security over the property of the debtor'.

69 This issue was dealt with by her Honour at par 71 of her judgment where her Honour said: 'Paragraph 2 of the petition to (sic) also clear and unequivocal. It is a requirement of the standard form for such a statement to be made in those terns as to the holding of any security over any property of the debtor by the creditors. There is no uncertainty raised to a reasonable person with the knowledge of the debtor. There is no defect in the making of this statement.' 70 There is no 'weight of evidence' indicating that the respondents do hold such security, or even raising doubt as to whether they hold such security, contrary to her Honour's finding. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. 71 This also answers the seventh ground of appeal in the original notice of appeal, which accordingly fails. 3. The appellant submits that the 'petition refers to creditor and creditors including reference to the agent for the Petitioner. This creates doubt as to who the Petitioner is and whether or not there is two joint petitioners and whether or not the agent holds instruction to act on behalf of both petitioners'.

72 In the judgment of Rimmer FM, her Honour dealt with this issue at par 73 as follows: 'Following his Honour's reasoning with which I agree the fact that an 's is left off the word creditor on one occasion does not create any confusion and is not a matter which would properly give rise to a substantive defect in the notice as required to set the Petition aside. I am satisfied that the debtor is fully aware that there are two creditors, one a company and one the director of that company. He is also well aware that the solicitors Hynes Lawyers act for both of the creditors. This is a spurious argument without merit.' 73 I note that the Full Court in Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240 at par 5 explained to the appellant that there was no uncertainty as to the amount he should pay to satisfy the relevant debt, nor to whom he should make payment. It is concerning that the appellant continues to raise this putative 'doubt' as to the identity of the petitioners as an issue. 74 There is no 'weight of evidence' against her Honour's finding. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. 4. The appellant submits that 'paragraph 4 of the Petition fails to state the date of act of bankruptcy'.

75 In respect of this point, her Honour at par 74 of her judgment held that she was satisfied that the petition was compliant with the formal requirements of the prescribed Form. 76 I find no error in the finding of her Honour in relation to this issue. 77 The fifth ground of appeal in the appellant's original notice of appeal fails.

Whether there was other sufficient cause under s 52(2)(b) Bankruptcy Act: Original Notice of Appeal Ground 6 78 Rimmer FM in her judgment considered in some detail the application of s 52(2)(b) Bankruptcy Act to this case. Section 52(2) provides: 'If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made: it may dismiss the petition.' 79 Her Honour carefully considered the leading authorities including Cain v Whyte (1933) 48 CLR 639 and issues relevant to the exercise of her discretion, which in the case before her Honour appeared to have been identified by the appellant as: · whether the appellant had a counter-claim against the respondents concerning the discount card · whether the appellant had a counter-claim against the respondents for an alleged contempt of court · whether the judgment of Cooper J was obtained by fraud and or collusion and or mistake · whether the respondents had acted in abuse of process · whether the appellant had actually committed an act of bankruptcy. 80 After exhaustive consideration of these issues, her Honour concluded there was nothing in the submissions or on the evidence produced which would lead her to exercise her discretion in favour of the debtor under s 52(2)(b) of the Bankruptcy Act. 81 The appellant is not appealing in relation to the exercise of Rimmer FM's discretion under s 52(2)(b) for the reasons found in her Honour's judgment. In his written submissions before me the appellant raised one new issue relevant to s 52(2)(b), namely: 'The applicant is prosecuting a claim against the Law societies to recover the costs and damages in relation to the cost order.' 82 At the hearing before me, the appellant explained that he commenced proceedings against the respondents on the basis of representations made by the Student Law Societies concerning the student discount card, and that he had commenced proceedings against the Student Law Societies on the basis of representations made by the second respondent. The essence of his submission was that, if the sequestration order were to be upheld, those proceedings would be stayed (TS p 6 ll 18-19). 83 The respondents have drawn my attention to the decision of McGill DCJ of the District Court of Queensland in Worchild v University of Queensland Law Society Inc [2005] QDC 161. I note that his Honour's decision was delivered on 10 June 2005. In this case it appears that the appellant was prosecuting the claim against the Law Societies to which he adverted in ground 6 of the original notice of appeal. His Honour found against the appellant, and the appellant unsuccessfully appealed the decision of Gill DCJ to the Queensland Court of Appeal. The decision of the Court of Appeal was delivered on 5 October 2005 (Worchild v. University of Queensland Law Society [2005] QCA 37). I understand the appellant sought special leave to appeal to the High Court from this decision, and it was refused (Worchild v University of Queensland Law Society [2006] HCA Trans 181). 84 Two issues are therefore clear: · as the hearing before Rimmer FM took place on 26 October 2005, there appears to be no reason why the appellant could not have raised the issue of the proceedings against the Law Societies in the State Courts, including the prospect of an appeal by him to the High Court, before her Honour as an issue relevant to the exercise of her discretion under s 52(2)(b) · in any event the appellant had been unsuccessful in prosecuting that claim in the State Courts, and the appellant was presumably aware of this at the time of the hearing before Rimmer FM. 85 Further, I understand that subsequent to the decision of Rimmer FM the appellant commenced fresh proceedings in the Federal Court against the Student Law Societies. These proceedings, or the prospect of commencing them, were not raised before her Honour. In any event, the proceedings were recently dismissed by Spender J (Worchild v University of Queensland Law Society [2006] FCA 1078). 86 On the basis of the principles I explained earlier, I do not consider there are exceptional circumstances which entitle the appellant to raise this new issue on appeal. Accordingly this ground of appeal fails.

The relevance of issues pertaining to security for costs: Original Notice of Appeal Ground 8 87 The appellant claimed that Rimmer FM failed to appreciate that security for costs is required to contest a bill of costs in the Federal Court. In particular, the appellant submitted that: · in order to contest a bill of costs in the Federal Court one needs to file security for costs · if a party cannot provide security for costs because of impecuniosity, then ostensibly the provision is a statutory abrogation of the right to a hearing, a denial of natural justice or a right to be heard. 88 This ground of appeal fails for the following reasons: 1. This issue was raised by the appellant in related litigation before the Full Court, and dismissed by the Full Court (Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240at [19]). 2. It is incorrect to claim that the learned Federal Magistrate 'failed to appreciate' that security for costs was required to contest a bill of costs in the Federal Court: it does not appear that the issue was actually raised before her Honour. 3. On the basis of the principles I explained earlier, I do not consider there are exceptional circumstances which entitle the appellant to raise this new issue on appeal.

Whether there was cause to doubt the judgment debt: Supplementary Notice of Appeal Ground 4 89 This ground of appeal is founded in a claim that Rimmer FM failed to investigate the appellant's allegations in circumstances where there was sufficient cause to doubt the judgment debt. 90 In my view this ground of appeal, and the appellant's submissions in support, are misconceived. At the hearing, the appellant submitted that there was a 'real and relevant issue of fact', namely that there were grounds for the learned Federal Magistrate to 'go behind the judgment in circumstances where there was no other material before the court' (TS p 10 ll 1-2). 91 The appellant has submitted, in essence, that the absence of reasons given by the learned Federal Magistrate for refusing to go behind the judgment gave rise to an error of law. He has cited as authority Petitt v Dunkley (1971) 1 NSWLR 376, a decision of the New South Wales Court of Appeal. However, with respect, Petitt is in no way comparable to the case which was before her Honour, or the case before me. In the present case there is a history of litigation demonstrating that there is a judgment debt upon which the bankruptcy notice, and subsequently the creditor's petition, are founded. It was clear to her Honour, as it is clear to me, that the appellant has had numerous opportunities in Court, across both Federal and State jurisdictions, through multiple actions, and through multiple levels of appeal, to establish flaws in either the judgment debt or the process which has resulted in the judgment debt being enforceable against him. He has been consistently unsuccessful. While as a general rule it is desirable to give reasons for a decision, to paraphrase Cussen ACJ in Brittingham v Williams [1932] VLR 237 at 239, a case may 'be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person'. In my view, this is such a case with respect to this ground of appeal. 92 I can find no error in the judgment of Rimmer FM on this issue. This ground of appeal must fail.

Whether documents were accepted, obtained and acted upon: Supplementary Notice of Appeal Grounds 5 and 6 93 The fifth ground of appeal in the supplementary notice of appeal was that the learned Federal Magistrate 'failed to accept and act upon documents put before her'. This is similar to the sixth ground of appeal, namely that the learned Federal Magistrate 'failed to obtain and act upon documents which she should have considered'. 94 The appellant has not addressed the court in relation to these grounds of appeal, either in the form of written or oral submissions. In my view, in the absence of submissions or any evidence to this effect, these grounds of appeal must fail.

ORDERS 1. The appeal be dismissed. 2. The respondents have liberty to apply within seven (7) days as to costs. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Appellant: The Appellant appeared in person