Biztole Developments Pty Ltd v McLean, H.M

[1995] FCA 287

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF
THE STATE OF VICTORIA
GENERAL DIVISION
  NO VP 486 of 1994

Re:           STEPHEN FRANK McLEAN

-and-

Ex parte: BIZTOLE CORPORATION PTY LIMITED

Coram:       Olney J

Place:       Melbourne

Date:        31 May 1995

REASONS FOR JUDGMENT - PRELIMINARY QUESTION

The bankruptcy notice in this matter was issued out of the Court on 17 December 1993, which was a Friday.   Mr Pinkerton says that he received instructions to serve the bankruptcy notice as a matter of urgency, and that he served it on Mr McLean at 34 Berkeley Street, Hawthorn, which is acknowledged to have been Mr McLean's address at that time.  

Mr Pinkerton described his conversation with the person that he says he served, and whilst he was understandably a bit vague as to peripheral matters he was confident that there were two standard questions he was required to ask.   One was to ask the person served if he was the person named, which he says he did, and to which he says he obtained an affirmative answer.  Then he said there was another question which he was unable initially to recall, but in fact recalled something to the effect:  Are you the person referred to in this bankruptcy notice as the judgment debtor?   I think those were the words that he used in evidence, and as it happens they are exactly the words that he deposed to in his affidavit sworn on 18 May 1994.   He says that he asked that question and again obtained an affirmative answer.   His evidence is that he continued for a short time in conversation and then left the premises.   He made no contemporaneous note of the time, place and date of service but he says that on the following day he gave instructions to his secretary to complete a standard form of report, giving particulars of the service, the place, date and time and the manner of service and that this report contained an account or a note of the fee for the service.   The document that he says his secretary, Ms Gannon, prepared has been put in evidence.   It bears date 21 December 1993 and it refers to the same particulars as deposed to in Mr Pinkerton's affidavit sworn in May 1994.

The only significance I attach to the report prepared on Pinkerton's instructions by the secretary is that it is consistent with the system which he says applied at the time with respect to recording of the service of process.   Obviously, on Pinkerton's evidence, the report at best can only reflect what he told the secretary and if what he told the secretary was wrong then one would expect the report to be wrong too.  Nevertheless, it does establish that there was a system in place which was a system relevant to the recording of the process serving activities of the firm.  

Mr Pinkerton was cross-examined at some length.   He was not challenged as to the address at which he attended and it was not suggested to him, and has not been suggested, that he has any conflict of interest or ulterior motive that would in any way be suggestive of the likelihood of him giving false evidence.   There is nothing about his evidence that one could say suggests that he was deliberately giving perjured testimony and taken in isolation, it would be appropriate to accept it as both truthful and probative of the facts asserted.

Mr McLean has given evidence confirming that he was home at his residence on 20 December 1993 but he denies having received the bankruptcy notice as alleged by Mr Pinkerton.  He denied that he had ever seen Mr Pinkerton before today.   Much of the examination-in-chief and cross-examination was directed to matters touching upon the credibility of the evidence which he was then giving.

There is no question Mr McLean is obviously an honest man, nothing to the contrary has been suggested.   I do not think the records in his diary add much one way or the other.   He concedes that not every important event is recorded and indeed, if one accepts his practice of endorsing process with the time and date of service as was done with the bankruptcy petition, then one might forgive him for not having made a second record in his diary on an occasion when a bankruptcy notice was served, assuming of course it was served and that he endorsed it with the same sort of reference as he did with the bankruptcy petition.

I do not think the records in the diary help or hinder his case.   Again, it has been said that he was not required to recall the events of 20 December 1993 until the petition was served on 29 May 1994.   Of course, on his evidence he was not served with the bankruptcy notice and one would not expect him to have any real recollection of a date five months earlier when he says nothing happened.   But nevertheless, even five months after an event it is rare that people have a very clear recollection of events which have in fact happened on that occasion.

The question of standard of proof is one which exercises the Court's attention in this jurisdiction on many occasions.   I think the idea of the Briginshaw standard is one which is attractive but has probably not been pursued.   The approach which is normally adopted is that referred to by Hill J in Roberts Ex parte Evans to which counsel referred where at the bottom of page 8 his Honour said:

It is, however, somewhat of a truism that the more serious the allegation the more grave the consequences flowing from the particular finding the more likely it would be that the tribunal of fact will require some actual persuasion of its occurrence or existence before that fact is found.

Which may only be another way of saying that in matters involving the seriousness of this type of matter it is sometimes more difficult to tip the balance of probabilities in favour of reaching a positive conclusion.

Certainly it is not suggested that proof beyond reasonable doubt is required.   I have had the opportunity of observing both witnesses.   There is nothing about the evidence of either of them which leads me to conclude that he is dishonest or was knowingly giving false testimony.   An explanation of the difference in the testimony is that Mr McLean may be mistaken.   I do not think there is any reasonable basis upon which, on the evidence before the Court, it could be said that Mr Pinkerton was mistaken.   He is positive as to the facts and his contemporaneous conduct was consistent with his system of operating whereas Mr McLean was obviously a man with extensive business and legal activities going on around him over a long period.   It is conceivable that he was mistaken.  I prefer the evidence of Mr Pinkerton to Mr McLean's in respect of this particular matter and I am satisfied that personal service was effected on 20 December 1993.

As this is a matter which I now have on board and which I will have to see through to the end, it is appropriate if questions of costs be left to the end, so that a proper discretion can be exercised.   I simply make no order, and the question of today's costs can be raised when the matter is finally resolved.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard:       31 May 1995

Place:       Melbourne

Judgment:     31 May 1995

Appearances:

Mr M. Derham QC and Mr R. Berglund (instructed by Blake Dawson Waldron) appeared for the petitioning creditor.

Mr P. Murdoch QC and Mr P. Ginnane (instructed by Kingdon Lawyers) appeared for the debtor.