Bullmore D.N. v Tyndall Life Insurance Co Ltd
[1995] FCA 735
•15 Sep 1995
IN THE FEDERAL COURT OF AUSTRALIA )
BANKRUPTCY DISTRICT ) No VP 1418 of 1993
OF THE STATE OF VICTORIA )
RE:
DAVID NIGEL BULLMORE
(Debtor)
EX PARTE:
TYNDALL LIFE INSURANCE COMPANY LIMITED
(Petitioning Creditor)
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 15 SEPTEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS:
That the creditor's petition filed on 22 December 1993 be dismissed.
That there be no order as to costs.
NOTE:Settlement and entry of orders is dealt with in Part X, Div 5 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
BANKRUPTCY DISTRICT ) No VP 1418 of 1993
OF THE STATE OF VICTORIA )
RE:
DAVID NIGEL BULLMORE
(Debtor)
EX PARTE:
TYNDALL LIFE INSURANCE COMPANY LIMITED
(Petitioning Creditor)
CORAM: RYAN J
PLACE: MELBOURNE
DATE: 15 SEPTEMBER 1995
REASONS FOR JUDGMENT
RYAN J: On 30 July 1993 a bankruptcy notice issued on the application of Tyndall Life Insurance Company Limited ("Tyndall") directed to David Nigel Bullmore ("the debtor") claiming the sum of $223,693.30 due under a final order of the County Court of Victoria made on 23 June 1993.
On 30 August 1993 Barry Sandars, a process server, retained on behalf of Tyndall, swore an affidavit of service in which he deposed to having served a copy of the bankruptcy notice on the debtor on 29 August 1993. By that affidavit it was deposed, as far as is relevant:
"...
I am a Process Server and I have attained the age of 16 years.
On the 29th day of August 1993 at 8.40 o'clock in the afternoon I served David Nigel Bullmore with a copy of the Bankruptcy Notice herein signed and stamped by the Registrar by delivering the said Notice to him personally at 42 Mundara Drive East Ringwood.
I identified the person served by me as David Nigel Bullmore by reason of the following statements made at the time of service -
I asked the person served "Is your name David Bullmore?", to which the person served replied, "Yes", and I also asked, "Are you the person referred to in the Bankruptcy Notice as the Judgment Debtor?", to which the debtor replied, "Yes" ..."
On 22 December 1993 Tyndall presented a creditor's petition seeking the making of a sequestration order against the estate of the debtor on the ground that the debtor had failed to comply with the bankruptcy notice within the time stipulated therein.
On 14 January 1994 Mr Sandars swore a further affidavit of service in relation to the service of the creditor's petition. That affidavit recited, again so far as is relevant:
"...
On Saturday, the 8th day of January, 1994 at 12.15pm, I served the above named DAVID NIGEL BULLMORE with an official copy of the Petition herein together with a copy of each of the Affidavits of GINO ANDREA VENTURA sworn the 6th day of December, 1993 and THALIA TSIAPLIAS sworn the 22nd day of December, 1993 in support of the said Petition together with a copy of the Consent of LEON LUMSDEN to act as Trustee by delivering the said documents to him personally at 42 Mundara Drive, East Ringwood.
I identified the person served by me as DAVID NIGEL BULLMORE by reason of the following statements made at the time of service:
I asked the person served: "Is your name DAVID NIGEL BULLMORE?" to which the person replied, "Yes", and I also asked, "Are you the person referred to in the Creditors Petition as the Debtor?" to which DAVID NIGEL BULLMORE replied "No".
The person who stated that he was DAVID NIGEL BULLMORE, then stated that he was not coming out of the house, he stated "I'm not dressed." He then said, "Post it to me".
I then said, "I will leave the document secured in the security door for you."
He then said, "I'm not David, that's not served. ..."
On 25 March 1994 the debtor filed a notice of intention to appear at the hearing of the petition in which the grounds of opposition to the petition were stated as follows:
The Bankruptcy Notice referred to in paragraph 4 of the Creditor's Petition was not served on the Debtor.
The Creditor's Petition was not served on the Debtor personally. The Debtor found it lying in the front yard of his house.
The Debtor intends making an application to the Supreme Court of Victoria to set aside the Judgment entered against the Debtor in the County Court on the 23rd day of June 1993 and being the Judgment upon which the Bankruptcy Notice referred to in paragraph 4 of the Creditor's Petition was issued.
Alternatively to (3), the Debtor intends making an application to the Supreme Court of Victoria against the decision of the County Court on or about the 24th August 1993 dismissing the Debtor's application to set aside the Judgment entered against the Debtor in the County Court on the 23rd day of June 1993."
In support of the grounds of opposition the debtor has made several affidavits and given oral evidence before me. In an affidavit affirmed on 13 April 1994 the debtor deposed as follows in relation to the alleged service of the bankruptcy notice and petition:
"ALLEGED SERVICE OF BANKRUPTCY NOTICE
I seek leave to refer to the affidavit of Sandars sworn 30th August, 1993 and filed herein. I have read such affidavit and deny the contents thereof as deposed to by him. In particular I deny that at any time on 29th August, 1993 being the date of the alleged service of the Bankruptcy Notice did anyone by that name:
(a)attend my residential address;
(b)identify himself as Sandars;
(c)enquire of me as to my name;
(d)enquire of me whether I was a person named in the Bankruptcy Notice.
ALLEGED SERVICE OF CREDITOR'S PETITION
(a) I seek leave to refer to the affidavit of Sandars sworn 14th January, 1994 and filed herein. I have read such affidavit and deny the contents thereof. In particular I deny that at any time on 14th January, 1994 being the
date of the alleged service of the petition did any person by that name:
(i)attend my premises;
(ii)identify himself as Sandars;
(iii)enquire of me as to my name.
(iv)enquire of me whether I was the person named in the said petition.
(b)Further, I deny that at any time on the alleged date of service of the petition or at any other time did I deny my identity as is alleged by the deponent of the said affidavit.
(c)I further refer to the affidavit of Sandars and say that I am not aware of having ever had any previous dealings with a person by his name. To the extent that he deposes to being familiar with me from other legal dealings, I say as follows:
(i)In or about June, 1993 I am informed by my wife and Mr. Peter Robinson and verily believe that a person attended at my residence on several occasions claiming to be acting for the creditor in respect of the County Court proceedings upon which the Bankruptcy Notice is founded and seeking to serve documents upon me. However, I was on no occasion present at my home when this person attended.
(ii)On or about 24th June, 1993 I telephoned the plaintiff's solicitors, Hall & Wilcox, and spoke to Mr. Andrew Ball solicitor, and sought from him the name of the person who was endeavouring to serve documents upon me. Mr. Ball declined to identify such person.
(iii)If the person who was endeavouring to serve me with documents in or about June, 1993 is the deponent of the Affidavit of Service of the petition and further if such alleged prior legal dealings referred to in Sandars' affidavit upon which identification of me is based are those events referred to by me as having occurred in or about June, 1993, then such basis of identification by the deponent is untrue. The circumstances described herein by me relating to the events in June, 1993 are further deposed to by me in an affidavit sworn by me in the County Court proceeding in support of an unsuccessful application to have the judgment upon which the Bankruptcy Notice is founded set aside. Now produced and shown to me and marked "NB-1" is a true copy of the affidavit."
The affidavit of 13 April 1994 also refers to the debtor's version of the events which led to judgment being obtained
against him in the County Court. Those matters are not of present relevance. A further affidavit was filed by the debtor on 26 April 1994. It is related to an application to have the judgment in the County Court set aside. Its present relevance is confined to the denial of personal service upon him of either the bankruptcy notice or the creditor's petition.
On 21 June 1994 Sandars swore a further affidavit in which the matters deposed to in his earlier affidavits were expanded as follows:
I refer to my Affidavit of Service of Bankruptcy Notice sworn 30 August 1993 ("my first affidavit") and my Affidavit of Service of Creditor's Petition, Affidavits Verifying Petition and Consent of Trustee sworn 14 January 1994 ("my second affidavit").
In or about August 1993 I was instructed by Robert Jackson ("Jackson") of Eastern Suburbs Detective Agency to serve David Nigel Bullmore ("the debtor") with a Bankruptcy Notice, a copy of which is annexed to paragraph 4 of my first affidavit and marked "A". Shortly prior to that I was instructed by Ivar Von Sivers ("Sivers") of IVS Mercantile Agency to serve on the debtor a witness summons ("the summons") filed on behalf of the National Australia Bank with respect to Magistrates' Court proceedings.
On receiving my instructions for service of the summons I was given a description of the debtor by Sivers. I was advised that he was between 30 and 34 years old, approximately 5 ft 9 in., of European extraction with a swarthy complexion, long, dark brown hair which was often worn in a ponytail and often wore a baseball cap. Furthermore, I was advised that I may experience difficulties in serving the debtor.
On 29 August 1993 at 8.40 o'clock in the afternoon I attended at 42 Mundara Drive, Ringwood East in the said State. A male fitting the description of the debtor answered the door. I did not introduce myself nor advise that I was a process server. The following conversation then took place:
I asked:"David Nigel Bullmore?"
He said:"Why?"
I told him I had some documents for him and he told me to leave them with him.
I told him that I had to be certain it was him if was to leave the documents.
I then asked him if he was David Nigel Bullmore and whether he was the person referred to in the bankruptcy notice?
He replied:"If you think am, then I am ... if you say I am, then I am."
He then took the bankruptcy notice and witness summons from me.
I refer to paragraph 3 of my first Affidavit. At no stage did the person referred to in paragraph 4 hereof deny that he was the debtor. Furthermore, by reason of his response when asked if he was the debtor and the person referred to in the bankruptcy notice and the fact that he took from me the bankruptcy notice and the summons I believed him to be agreeing to be the debtor and the person named in the said documents. Furthermore, I informed Jackson of my conversation with the debtor and queried whether I should amend the affidavit, namely the first affidavit, provided to me. Jackson advised that in view of the fact that the debtor did not deny who he was, the said affidavit was sufficient.
The debtor has not, to the best of my knowledge, information and belief, disputed service of the summons served on him at the same time as service of the bankruptcy notice.
I refer to my second affidavit and in particular to paragraph 3 thereof. The person I identified as the debtor is known to me as I had previously served him with the bankruptcy notice filed herein and the summons. I did not identify myself to the debtor save to say words to the effect that it was me again to serve another document on him.
Further to paragraph 3 of my second Affidavit, after leaving the creditor's petition, verifying Affidavits and consent of trustee ("the documents"), copies of which are annexed to paragraph 4 of my second Affidavit and marked "A", "B", "C" and "D", I walked away from the door towards my car. I had taken approximately six steps when the debtor opened the security door, picked up the documents and threw them at me. The documents landed on the front verandah, approximately 6 feet from the front door.
I said to the debtor that I knew him and that he was served with the documents. He said that they were not served to which I told him that they were served.
I then proceeded to my car and drove off."
PROCEEDINGS IN THE COURT:
The creditor's petition was first made returnable on 28 March 1994 and was adjourned without directions on that day, and was subsequently further adjourned on 27 April 1994, 25 May 1994 and 31 August 1994. On the latter date orders were made for the filing of an affidavit of service of relevant material with Tyndall being required to file its material by 21
September 1994 and the debtor by 5 October 1994. The petition was further adjourned to 26 October 1994 and from that date to 2 November 1994, at which time the petition came on for hearing before me.
On the morning of 2 November the debtor, through his Counsel, made application for an adjournment of the petition in order for the debtor to prosecute an appeal to the Supreme Court of Victoria against the order of her Honour Judge Balmford who had refused an application to set aside the judgment on which the bankruptcy notice is founded. I refused the application for an adjournment.
Counsel for the debtor then informed the court that his client proposed to rely on a statutory declaration made 31 August 1994 by a Mr Lane to the effect that the debtor was with Mr Lane in Sydney between 27 August 1993 and 30 August 1993. Counsel for the debtor sought to tender the statutory declaration over objection and I declined to receive the declaration as evidence of the truth of its contents. The admissibility of the statutory declaration was not pressed on any other ground.
The hearing of the petition then proceeded on 2 November 1994
when the principal issue was whether the bankruptcy notice and the creditor's petition had been served on the debtor as required by the Bankruptcy Act.
Mr Sandars gave evidence that he had personally served the bankruptcy notice and the creditor's petition on the debtor. He also identified in court the debtor as the person served. He said that apart from the two occasions on which documents had been served he had seen the debtor attending court on an earlier return date for the hearing of the petition.
In cross-examination, considerable attention was directed to the form and content of Mr Sandars' affidavits. Mr Sandars conceded in cross-examination that paragraph 3 of his affidavit of 30 August 1993 does not state precisely what occurred in the course of the attempted service of the bankruptcy notice. So much is clear from Mr Sandars' affidavit of 21 June 1994. However, Mr Sandars also conceded that the conversation deposed to in paragraph 4 of the affidavit of 21 June was incomplete in that it did not record, as the earlier affidavit of 30 August 1993 had done, that the person opening the door had replied "Yes" in answer to the first question: "Are you David Nigel Bullmore?". Mr Sandars said under cross-examination that this exchange did in fact occur.
In relation to the service of the creditor's petition, Mr Sandars said in evidence that he attended the premises at 42 Mundara Drive, East Ringwood and said to the person who answered the door:
"David, it's me again, I've got some more follow up papers for you. He [Bullmore] said, Well, post them to me, he said, because I'm not accepting them now, I've just gotten out of bed and I said, Well, look I'm sorry but I can't post them to you as you are well aware,
I'll just leave them in your security door. So with that I left them there and as I walked, took a few steps, six or so steps, he opened the door up, got the papers out and threw them after me and they landed on the verandah ... and with that he said, Look, I'm not served, you haven't done this correctly. I said, Well, as far as I'm concerned you're served and that's it and off I went."
Under cross-examination it appeared that Mr Sandars had no recollection either of asking the person at the door whether he was David Nigel Bullmore or of specifically identifying the documents which he was attempting to serve. It seems that the statements made in relation to the identification expressed in direct speech in paragraph 3 of Mr Sandars' affidavit of 14 January 1994 do not record Mr Sandars' best recollection of actual conversations.
The evidence of Mr Sandars was not completed on 2 November 1994 and the matter was adjourned to the following day. On 3 November, Counsel for the debtor informed the court that the debtor desired to adduce evidence from a Mr Peter Robinson to the effect that he was with the debtor in Sydney on 29 August 1993. No affidavit of Mr Robinson had then been filed and the creditor was not given notice until the morning of the hearing on 3 November that Mr Robinson would be called. In the circumstances I proceeded on that day to complete the evidence of Mr Sandars and granted leave to the debtor to file and serve an affidavit of Mr Robinson by 5pm that day and adjourned the hearing of the petition to 14 November.
On 14 November 1994 Tyndall completed its case and the debtor gave evidence. The evidence of the debtor was that he had flown to Sydney on 27 August 1993 and remained there until the evening of 31 August. The purpose of the visit was to attend meetings in relation to a proposed business venture involving water filtration. During his visit he stayed with a Mr James at Mount Street, Pyrmont. He had dined with Mr Robinson on the evening of 29 August at a restaurant in Darling Harbour, Sydney.
The debtor's explanation for the long delay in asserting that he had not been in Melbourne on 29 August 1993 was that he was able to recall the Sydney trip only after he located his diary for 1993, which had an entry for 27 August 1993 indicating that he had arranged to fly to Sydney on that day. The debtor was vague as to exactly when it was that he had located the diary, though he appeared to think that he had located it during September 1994.
Mr Robinson swore an affidavit in the proceeding and gave oral evidence to the effect that he had flown from Brisbane to Sydney on 27 August 1993 in order to discuss a business venture with the debtor and Mr James. He was collected from Sydney airport on 27 August by the debtor and Mr James and was taken to the latter's home in Pyrmont. He attended a dinner at Darling Harbour with the debtor on 29 August and returned to Brisbane on the following morning.
Mr Robinson said that he could recall the weekend because it had been near the time when an existing business had failed and he had recently separated from his wife. He had no documents to corroborate this evidence. Mr Robinson said he had been an acquaintance of the debtor for approximately fifteen years. However, he had not been in contact with him for some time before the debtor contacted him on 2 November 1994 in order to arrange for him to give evidence. The debtor said that he had tried unsuccessfully to contact Mr Robinson since September 1994 but had been unable to do so. Mr Robinson said he had frequently moved residences and he was not surprised that the debtor had been unable to locate him.
Mr Robinson's evidence was to the effect that he had a longstanding acquaintance with the debtor but in the course of that acquaintance there had been many periods where there had been little or no contact between them. He said that he had not seen a great deal of the debtor during the three years before 6 August 1993 as he had been living in Brisbane and their contact had been confined to occasional telephone calls. After the visit to Sydney in August 1993 there had, according to Robinson, been no contact at all until the debtor telephoned him on 2 November. That evidence is not easy to reconcile with para 5(c)(i) of the debtor's affidavit of 13 April 1994, quoted above, in which the debtor claims to have been informed by Mr Robinson and the debtor's wife of persons attending the debtor's home on several occasions in June 1993 to attempt to serve documents. The apparent inconsistency between the two versions was not fully explored in cross- examination.
Sub-section 41(4) of the Bankruptcy Act requires that service of a bankruptcy notice be effected as prescribed. Rule 15 of the Bankruptcy Rules prescribes that, unless an order of the court is made pursuant to s 309(2), service of a bankruptcy notice shall be effected on the debtor by delivering to the debtor personally a copy of the bankruptcy notice. Rule 122 stipulates a method of proof of personal service by providing:
Where service of a document is effected on a person by delivering the document or a copy of the document to the person personally, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit:
(a)the date on which and the place at which the document was delivered; and
(b)the means by which he established that the person to whom the document was delivered was the person required to be served with the document.
An affidavit of service of a document on a person personally shall be in accordance with Form 47.
Where:
(a)a document relating to a proceeding is, or is about to be, delivered to a person for the purpose of effecting service of the document on the person; and
(b)the person admits to the person who delivered, or is about to deliver, the document to the first-mentioned person that the first-mentioned person is:
(i)a specified person referred to in the document; or
(ii)a specified person to whom the proceeding relates,
the admission is evidence that the first-mentioned person is that specified person."
In my opinion the affidavits of Mr Sandars in relation to the service of the bankruptcy notice are not, of themselves, sufficient to constitute proof of personal service as contemplated by r 122. In relation to the first affidavit of 30 August 1993, the means by which Mr Sandars is said to have established the identification of Mr Bullmore did not occur in the manner deposed to. The further affidavit of 21 June 1994 attempts to rectify that defect. However, even it does not set out the means by which identification was established except by reciting that Mr Sandars had received a description of Mr Bullmore. No admission, as contemplated by r 122(3) is recorded in the affidavit of 21 June. Neither individually nor collectively do the affidavits of 30 August 1993 and 21 June 1994 constitute proof of service and, accordingly, by operation of r 122(1) service cannot be deemed to have been proved by affidavit.
It is, of course, open to a creditor to prove personal service otherwise than by way of affidavit. Where oral evidence of service is adduced it is not to the point whether or not any affidavit of service complies with r 122; see Re Roberts; ex parte Evans (unreported, Federal Court of Australia, per Hill J, 25 August 1989). In oral evidence, Mr Sandars stated that he personally served the bankruptcy notice on the debtor on 29 August 1993 and identified the debtor in court as the person served.
Against the evidence of Mr Sandars is the evidence of the debtor and Mr Robinson. To resolve the conflict of evidence one must have regard to the standard of proof required of service of a bankruptcy notice and consider upon whom the onus rests. It is common ground that the judgment creditor carries the onus of proving service in accordance with the Act.
The reasons for judgment of Hill J in Re Roberts; ex parte Evans (supra) contain a helpful analysis of the standard of proof of personal service of a bankruptcy notice. I respectfully agree with his Honour's conclusion that the consequences of an application for a sequestration order are so serious that a court must carefully scrutinize evidence of service. The use of pro forma affidavits purporting to record conversations which have not actually occurred in the terms recited should strongly be discouraged. Mr Sandars appears to have conceded that his affidavits purported to record in direct speech a summary of, or worse, an inference from, actual conversations. I do not regard the unsatisfactory state of Mr Sandars' affidavits as warranting a finding that he is not a witness of truth. However, I record the caution that, despite the frequency with which they are sworn, all affidavits of service require each deponent to pledge his or her oath to the matters deposed to. Accordingly an obligation of accuracy and precision is imposed which should not be treated lightly.
In seeking to persuade the court that it should reject the evidence of the debtor and Mr Robinson, Counsel for Tyndall relied on four matters which were said to be significant. First, it was said that the reply, "If you think that I am, then I am. If you say I am, then I am" constituted an admission that the person served was the debtor. Second, it was submitted that Mr Sandars had no reason to lie and was a witness of truth. Thirdly, Mr Bullmore's delay in adducing his alibi evidence despite a large number of occasions and opportunities to do so, together with his conduct in invoking a large number of other matters in seeking to avoid bankruptcy, strongly suggested that the alibi was a last-minute concoction introduced after his attempts to obtain an adjournment had failed. Finally, it was said that the court should draw an inference against the debtor by reason of his failure to call Mr James and Mr Lane who were said to have been in Sydney in August 1993 and accordingly, whose evidence could have assisted the Court by corroborating that of the debtor and Mr Robinson.
Although there is considerable force in the four points made by Counsel for Tyndall, at the end of the day I have been unable to conclude that the bankruptcy notice was personally served on the debtor on 29 August 1993. The considerations which have left me in that state of doubt include the fact that the first, and contemporaneous, affidavit of service was in a standard form which did not record the actual words said to constitute the debtor's admission of his identity as the process server later recalled them almost ten months after the event; and as he recalled them, still later and with a further important addition, when giving oral evidence. It is also significant that the recollection of the same witness of the later service in January 1994 of the creditor's petition has been demonstrated to be imperfect.
In making these strictures on the evidence of service, I should not be taken as impugning Mr Sandars' honesty or as suggesting that he tried to do other than assist the court to the best of his recollection. His task was made more difficult by the fact that he was required on instructions from two separate agencies to serve a variety of process on two different occasions on the same person whom he had later seen in the precincts of this court. As well, the incidents which are relevant to this case were doubtless but two of thousands of similar episodes which occur in the course of Mr Sandars' pursuit of his occupation. However, the difficulties to which I have just referred highlight the need, already noted, to record in an affidavit of service, as nearly verbatim as possible, the words relied on as constituting an admission of the identity of the person served.
I regard the statement "If you think I am, then I am. If you say I am, then I am" as by no means an unequivocal admission that the person to whom the bankruptcy notice was delivered was the debtor named in it. The words are equally to be construed as an obstructive incantation by a person, other than Mr Bullmore, who chose not to deny unambiguously that he was the debtor.
I have already indicated that I have accepted that Mr Sandars did not deliberately set out to mislead the court. However, because of the imperfections in his contemporaneous affidavit of service, he had necessarily to engage, at least to some extent, in an exercise of reconstruction. In that exercise, the duty which he owed, by reason of his retainer, to Tyndall and those acting for it, may have lead him, albeit unconsciously, to adopt a version of events which tended to identify the debtor as the person served. Secondly, the submission that Mr Sandars had no reason to lie can be paraphrased to apply with at least equal force to the evidence of Mr Robinson. Although he was a longstanding acquaintance of the debtor, their contact in the three years before August 1993 seems to have been no more than casual, and it was non-existent after that date, except for the debtor's request to Mr Robinson to give evidence. In view of the explicit and detailed nature of Mr Robinson's evidence, unless I were to find that he was mistaken about the weekend on which he met Mr Bullmore and Mr James in Sydney, a finding that the bankruptcy notice was served on the 29th August 1993 would entail the conclusion that Mr Robinson consciously and deliberately lied under oath. However, no continuing financial or business links between the two men was suggested in cross-examination as providing a motive for Mr Robinson to perjure himself on the debtor's account.
It is true that the debtor was not forthcoming in his notice of intention to appear or in his affidavit of 13 April 1994 by disclosing that he had been in Sydney on the date when service of the bankruptcy notice was allegedly effected. However, as I have already observed, the onus of proof of service remains at all times on the creditor, and Mr Bullmore's denials in those documents were not in a form that they misleadingly suggested that he had been at his residence throughout 29 August but had not been served. I cannot reject out of hand the explanation suggested by the debtor for his delay in raising the alibi that it was only the belated discovery of his 1993 diary that prompted his recollection that he had been in Sydney on the date in question.
I accept that Mr James and Mr Lane, who were said by the debtor to have been with him in Sydney can be regarded as within his "camp", in the sense used by Gillard J in O'Donnell v Reichard [1975] VR 916 at 920 in discussing what has become known as the "rule in Jones v Dunkel [(1958) 101 CLR 298]." However, the failure of a party to call a witness in that category gives rise to an inference no more favourable to the other party than that there is nothing which the absent witness could have said which would have assisted the case of the party who would normally been expected to have called that witness; see Diloso v Latec Finance Pty Ltd (1966) 84 WN (NSW) 557 at 582. The significance of that inference in the present case is diminished by the fact that evidence on the point was given by both the debtor and Mr Robinson, by the presumed residence in New South Wales of both the absent witnesses and the likely high cost of bringing them to Melbourne, and by the debtor's attempt to adduce evidence from one of the absent witnesses, Mr Lane, which was not received because of Tyndall's objection. (As I understand it, Mr Lane's alleged contact with the debtor in Sydney did not coincide with the contact to which Mr Robinson attested).
Given the state of the evidence tending for and against proof of service, I have been unable to find, with the requisite degree of satisfaction, that the person served with the bankruptcy notice on 29 August 1993 was the debtor. The hypothesis remains persuasively open that some other person, no doubt sympathetic to Mr Bullmore, was present at the debtor's home on that morning and made a deliberately ambiguous or equivocal response when Mr Sandars sought an admission that the person served was the debtor. In the circumstances, Tyndall has not discharged the onus of proving service of the bankruptcy notice and the petition must be dismissed. However, given the late stage at which the debtor allowed the real issue as to service to emerge, and the delays attributable to the debtor which occurred before that stage was reached, it is an appropriate exercise of the court's discretion to make no order as to the costs of the petition including any reserved costs.
I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for the debtor: Mr P Ginnane
Solicitors for the debtor: Milder Elfman Szmerling Krycer Pty
Counsel for the petitioning
creditor: Ms S Horovitz
Solicitors for the
petitioning creditor: Hall & Wilcox
Hearing date: 14 November 1994
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