Anne v Ask Funding Ltd

[2014] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANNE v ASK FUNDING LTD [2014] FCCA 1153

Catchwords:
BANKRUPTCY – Proceedings in connection with bankruptcy – application to inspect documents produced on subpoena.

Legislation: 
Uniform Civil Procedure Rules 1999 (Qld)

Anne v Ask Funding Ltd [2013] FCCA 1271
Wren v Mahony (1972) 126 CLR 212

Applicant: PATRICIA ANNE

Respondent: ASK FUNDING LTD ACN 094 503 385

File Number: BRG 164 of 2014

Judgment of: Judge Jarrett

Hearing date: 22 April 2014

Date of Last Submission: 22 April 2014

Delivered at: Brisbane

Delivered on: 30 April 2014

REPRESENTATION

The applicant appeared on her own behalf

Solicitor for the Respondent: Ms S.J. Williamson

Solicitors for the Respondent: Dibbs Barker

ORDERS

1. With the consent of the applicant the subpoena issued to the Chief Executive Officer of KPMG on 15 April 2014 is discharged.

2. The Applicant is refused leave to inspect the documents issued by the National Australia Bank pursuant to the subpoena.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 164 of 2014

PATRICIA ANNE

Applicant

And

ASK FUNDING LIMITED ACN 094 503 385

Respondent

REASONS FOR JUDGMENT

ex tempore

1. The subpoena to the National Australia Bank seeks the production of documents which are said to be relevant by the applicant to her claim in these proceedings to set aside a bankruptcy notice that was issued at the request of the respondent against her on 16 October, 2013.

2. By her application filed on 26 February, 2014 the applicant seeks that the bankruptcy notice be set aside on a number of different bases.  The first is that the bankruptcy notice has not been served on her properly.  The second is that it is an abuse of process.  The third is that the bankruptcy notice is fatally defective because it is in the name of Patricia Anne McBride and her name is now Patricia Anne.  She also asserts that she is not properly identified in the bankruptcy notice and that the original judgment upon which the bankruptcy notice is based was gained by fraud and misconduct upon the part of the petitioning creditor and its lawyers.  She claims that there is no real debt owed by her to the respondent sufficient to found a bankruptcy notice.  She argues that the bankruptcy notice does not follow the judgments of the courts below and that alternatively, and finally, execution of the orders upon which the bankruptcy notice is based have been stayed by reason of some restraint that is presently in place upon her and her property. 

3. An attempt in the applicant’s submissions was made to confine her arguments about relevance of the documents produced by the National Australia Bank to any identifiable ground upon which she applies to seek to set aside the bankruptcy notice.  It seems to me, arguable that the documents might be relevant to the ground that the bankruptcy notice is an abuse of process, or alternatively they might be relevant to an argument that the judgment has been obtained by a fraud.  They might be relevant to an argument that there is in reality no debt sufficient to found the bankruptcy notice.

4. The difficulty for the applicant with each of those arguments, however, is that insofar as they assert a defect in the original judgment upon which the bankruptcy notice is based, those arguments have been the subject of consideration in the Court of Appeal. 

5. These proceedings have their genesis in a summary judgment application that was made by the respondent against the applicant in proceedings brought by the respondent to recover a debt from the applicant.  The summary judgment application was dealt with on 7 November, 2012 by a judgment given by the District Court of Queensland against the applicant in favour of the respondent for about $150,000 plus costs.  That judgment was the subject of an appeal and the Court of Appeal dismissed the appeal.

6. There were a number of issues raised in the Court of Appeal, but in particular, the Court of Appeal dealt with the applicant’s claims that the judgment was obtained against her by reason of the respondent’s fraud or the fraud of those acting for the respondent.  Those claims were carefully considered by the Court of Appeal and rejected.  The Court of Appeal also considered the applicant’s claim that there was no debt that was owed.  She made complaint before the Court of Appeal that she had been denied access to relevant documents held by the respondent and others, which might demonstrate that the allegations that she was making were valid.  But the Court of Appeal rejected all of those arguments.

7. I traverse the history of the litigation between the applicant and the respondent, at least to some extent in the judgment that I delivered in Anne v Ask Funding Ltd [2013] FCCA 1271.

8. It is right to say that the Court has a discretion to go behind a debt which is said to found the issue of a bankruptcy notice.  That discretion can be enlivened even where the debt is based upon a judgment of another court.  But the authorities, and Wren v Mahony (1972) 126 CLR 212 is but one of them, demonstrate that where there has been a finding by a court on the merits, then it is unlikely that a bankruptcy court will go behind a judgment. The judgment is likely to be seen as satisfactory proof of the petitioning creditor’s debt. A court is likely to exercise its discretion more readily if the judgment that is sought to be attacked is a judgment which has gone by default.

9. The judgments in this case do not meet that description.  The first is a summary judgment in the District Court given after a contested hearing.  To some extent one might argue that it is not a judgment on the merits in the sense that there has been no trial or determination of fact between the parties.  But a summary judgment is a judgment arrived at by a judicial officer who is bound to consider whether the defendant has an arguable defence to the proceedings, or whether there is a reasonable prospect of the defendant successfully defending the proceedings, which I think is the phrasing in the Uniform Civil Procedure Rules1999 (Qld). In any event, it is hardly a judgment by default. Moreover, the judgment was examined in the Court of Appeal and as I have already recorded, the Court of Appeal dealt with each of the allegations and arguments raised by the applicant and rejected them.

10. Two issues then arise in this Court.  The first is whether it is likely that this Court will go behind the judgments upon which the present bankruptcy notice is based.  Having refused to do so once, it could hardly be thought that the Court will now change its mind and do so, absent some new facts or evidence that was not available when the applicant sought to challenge the judgments on an earlier occasion in this Court.  Whilst it is right to say that there is an obligation on this Court to consider the matter as afresh because this application concerns a different bankruptcy notice, the arguments at the base of the application is the same as that raised in connection with the earlier bankruptcy notice.  Having considered the issues once, it is difficult to envisage that a different answer will be arrived at the second time around. 

11. The second issue that arises is whether in those circumstances it is likely that these documents will be relevant in the sense of the tests described so usefully in the oral submissions of the applicant and in the written submissions of the respondent.  My view is that they will not.

12. I refuse the applicant leave to inspect the documents produced by the National Australia Bank pursuant to the subpoena in question.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 30 April 2014

Associate: 

Date:  3 June 2014