Caporale v The Owners Strata Plan 58631
[2010] FMCA 346
•20 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAPORALE & ANOR v THE OWNERS STRATA PLAN 58631 | [2010] FMCA 346 |
| BANKRUPTCY – Affidavit relating to service – not given any persuasive evidentiary weight. |
| Evidence Act 1995 (Cth), s.140 |
| NAB v Rusu (1999) 47 NSWLR 309 Penhall-Jones v State of NSW [2007] FCA 925 Re F: Litigants in person guidelines (2001) FLC 93-072 |
| Applicants: | TOMMASO CAPORALE & GUISEPPE CAPORALE |
| Respondent: | THE OWNERS STRATA PLAN 58631 |
| File Numbers: | SYG 379 of 2010 & SYG 381 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 31 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2010 |
REPRESENTATION
| The Applicants: | Ms Rosa Caporale appeared with leave of the Court on behalf of both Applicants. |
| Solicitors for the Respondent: | Mr Edney |
ORDERS
The Court finds that Bankruptcy Notice Numbers NN296/10 and NN295/10 in respect of Mr Tommasso Caporale and Mr Guiseppe Caporale respectively, were served on 4 February 2010 and as a consequence the Caporale’s Applications to Set Aside the above Bankruptcy Notices were filed within the 21 day statutory timeframe.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 379 of 2010
SYG 381 of 2010
| TOMMASO CAPORALE & GUISEPPE CAPORALE |
Applicants
And
| THE OWNERS STRATA PLAN 58631 |
Respondent
REASONS FOR JUDGMENT
Background
The Applicants, Tommaso Caporale and Giuseppe Caporale have filed separate applications in the Federal Magistrates Court seeking similar orders in relation to two separate Bankruptcy Notices. Mr Tommaso Caporale has been issued with Bankruptcy Notice numbered NN296/10 and Mr Giuseppe Caporale has been issued with a Bankruptcy Notice number NN295/10. On 25 February 2010, the Applicants applied to this Court to set aside Bankruptcy Notice Numbers NN295/10 (in proceedings SYG 381/2010) and NN296/10 (in proceedings SYG 379/2010), respectively.
In their set aside applications, both Applicants include a request for an extension of time to comply with the Bankruptcy Notices. At the time of filing, a Registrar of this Court made an order extending the time for compliance with the Bankruptcy Notice “on condition that the Bankruptcy Notice … was filed on or about 4 February 2010” up to and including 9 March 2010.
The matter was first before the Court on 9 March 2010 before Registrar Hedge in the Bankruptcy list. Ms Rosa Caporale, the sister of the Applicants, has appeared with leave of the Court on all occasions in these proceedings, however I note that Ms Caporale is not a legally qualified representative and as such has not filed a Notice of Appearance. There has been no objection to Ms Caporale’s appearance in these matters. On the first occasion before the Court, Ms Caporale sought an adjournment of both matters and further extension of time to comply with the Bankruptcy Notices. Registrar Hedge granted the adjournment and further extended the time for compliance until 9:45am on 30 March 2010 “conditional upon the said Bankruptcy Notice[s] being served on 4 February 2010”.
On 11 March 2010 Tommasso Caporale and Giuseppe Caporale provided the representatives of The Owners of Strata Plan number 58631 with cheques discharging the full amount of the debts claimed in the above mentioned Bankruptcy Notices.
It is the time of service of the Bankruptcy Notice that constitutes the substantive argument in these proceedings, as each party attests to differing service dates and times of the Bankruptcy Notices. The issue of the deemed date of service is critical to the success of the Application to Set Aside the Bankruptcy Notices filed by the Applicants. As filing of the Applications to Set Aside the Bankruptcy Notices was effected on 25 February 2010, the Bankruptcy Notices would have to have been served on or after 4 February 2010 for the applications to be filed within the legislative timeframe of 21 days. The Respondent claims that the payment in respect of these notices was made out of time and thus wishes to progress the matters under the operation of original Bankruptcy Notices and, as the Respondents contend, the resulting non-compliance with such notices.
The proceedings
The matter was referred to this Court by Registrar Hedge during the duty list on 30 March 2010. A number of other unrelated matters were also referred to this Court at that time. As time did not permit the hearing of these matters on that occasion, I stood both matters over to 31 March 2010.
At the hearing of 31 March 2010, I heard both matters at the same time as the facts were substantially the same.
The Respondents to this application, The Owners of Strata Plan 58631, contend that the relevant Bankruptcy Notices were served at 10:40pm on 3 February 2010, thus making the Applicants’ Application to Set Aside the Bankruptcy Notice out of time, and outside of the determinative jurisdiction of this Court.
The determination of the time of service in these proceedings is heavily weighted upon the evidence provided by the parties. Such a finding is, in any event, a finding of fact and the evidence must be examined accordingly.
Evidence of the Applicants relating to service of the Bankruptcy Notices
Ms Rosa Caporale relies on her own affidavit sworn 18 March 2010. This affidavit also contains paragraphs that constitute submissions, however many of the issues covered therein are not relevant to the current issue which is purely in relation to the deemed service time. In relation to the service of the Bankruptcy Notices, she relevantly states at [5] – [16]
5. I live in the house that Mr Edney claims that he delivered the two notices on the night of 3rd February 2010.
6. The living area is located on the first floor overlooking the street and the letterbox of the house.
7. From the living area the letterbox is in full view. The letterbox is open looking form the street and looking from inside the property as well as from the living area on the first floor.
8. The letterbox is open due to the rendering of the brick piers of the fence meant that the metal front of the letterbox had to be removed to allow for the rendering to take place. This has meant that the metal front has not been replaced back since.
9. I usually watch the late news and at that time of night, our street being a quiet street can hear cars that stop outside and have the car doors open and close when people come in and out of their cars.
10. On the night of the 3rd February I did not see anyone come out of their car and place any envelopes in our letterbox. Nor did I see anything in our letterbox which is lit up by our night light when I went to bed. Nor did I hear any car door open and shut as I usually do when the car stops at the front of the house in question.
11. The next morning, being the 4th February 2010, I left the house at approximately 6:45am as I had to catch a flight to Melbourne and I had to be at the airport that morning. Annexure D – confirmation of flight to Melbourne.
13. I do not believe that therefore the envelopes containing the notices could have been delivered the night before on 3rd February 2010 as they were not in the letterbox the next morning on the day of 4th February 2010.
14. The notices could not have been delivered any earlier than when I left the house for the airport, being at around 6:45am on 4 February 2010.
15. The photos taken show a reconstruction of the open letterbox at 10:40pm on the night and the open letterbox at 6:45am in the morning. Photos have been taken at both times with and without the yellow envelopes in the letterbox to show the difference. See Annexure E.
16. The photos clearly show that the yellow envelopes are prominent and not easily missed in the open letterbox, and that as I have to walk right past the letterbox to leave the house I could not have missed the yellow envelopes at 6:45am in the morning. This proves that there were no envelopes in the letterbox in question up until 6:45am on the 4th February 2010.
Ms Caporale attaches photos at Annexure “E” to her affidavit. The photos demonstrate various views of the letterbox and indicate that it would have been quite apparent to anyone walking by the letterbox if there had been envelopes left inside. As Ms Caporale indicates she left the premises at 6:45am and did not notice any envelops in the letterbox.
Evidence relied upon by the Owners of SP58631
Mr Edney appears for The Owners of SP58631 in these and other related proceedings in the Federal Magistrates Court. Mr Edney relies on an affidavit sworn 9 March 2010 in which he attests to drafting and serving the Bankruptcy Notices in these matters. In relation to the service of the Bankruptcy Notices the affidavit states at paragraph [3] – [9]
Validity and Date of Service
3. On 26 February 2010 I sent a letter to Rosa Caporale, who has been the sole contact for the Caporale family throughout the Respondents’ proceedings against them. Annexed and marked “A” is a true copy of this letter.
4. I have not received any reply to the above letter.
5. As such, I do not know the basis on which the Applicant alleges he was not validly served with the Bankruptcy Notice the subject of these proceedings.
6. I served the Bankruptcy Notice the subject of these proceeding after work on the night of 3 February 2010. Annexed and marked “B” is a true copy of an Affidavit of Service I intend to swear, setting out when and how the Notice was served.
7. I drafted the above Affidavit later in the evening after returning home from serving the said Bankruptcy Notice, and it is true statement of how I served the Notice.
8. I have been told by Rosa Caporale that she believes the above Bankruptcy Notice was served during the day on 4 February 2010.
9. I can say with certainty that the Notice was served on 3 February 2010 as attested to above, and not during the day on 4 February 2010, for the following reasons:
(a) Immediately after serving the Notice I made a note of it on my file copy of the cover letter under which the Notice was served. Annexed and marked “C” is a true copy of this letter from my file.
(b) As stated above, I drafted my Affidavit of Service in relation to the Notice on the same night as I served the Notice. My firm’s document management system records the time at which a document is created. The above Affidavit of Service is timestamped as being created at 12:13am on 4 February 2010.
Consideration
The relevant legislative framework in which to examine the evidence provided is comes from the Evidence Act 1995 (Cth), relevantly s.140 which states:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is important to note that Ms Caporale acted as a representative of her brothers without any legal qualifications or background. In this respect, the approach in the Full Family Court decision in Re F: Litigants in person guidelines (2001) FLC 93-072 has been adopted, particularly in respect of the affidavit evidence supplied by Ms Caporale which also included several submissions in respect of this matter. The decision in Re F: Litigants in person guidelines (2001) (supra) states at [221]
… the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.
The critical issue for determination is the assessment of the veracity of the evidence supplied by both parties in affidavit form, particularly in the absence of any cross-examination in respect of the service time of the Bankruptcy Notices.
Mr Edney’s sworn affidavit of 9 March 2010 in its attempt to seek to prove service of the Bankruptcy Notice on the evening of 3 February 2010, the affidavit relies upon several annexures as evidence of the attested events. Annexure “A” refers to a letter between Mr Edney and Ms Caporale shortly after the Application to set aside the Bankruptcy Notice was filed. On review of the letter sent by Mr Edney to Ms Caporale dated 26 February 2010 (Annexure “A” to the affidavit of David John Edney dated 9 March 2010) it is pertinent to note that in his request for further details about Ms Caporale’s dispute as to service, there is no reference made to the view that the Applicants’ Application to Set Aside was made out of time. In fact, the stated service date of the Bankruptcy Notices contained in these applications, being 4 February 2010, was not disputed.
Mr Edney also relies on Annexure “B” to his affidavit of 9 March 2010 at which appears as an unsworn draft copy of an Affidavit of Service attesting Mr Edney’s personal delivery of the Bankruptcy Notice to the Applicants’ residential address at 10:40pm on 3 February 2010. This document states that such service was effected by leaving a sealed envelope in a hole which was intended for the mailbox, but at the time the front mailbox plate had not yet been affixed. Mr Edney states in this document that a rock was placed on top of the envelope to ensure it would not blow away.
The annexed unsworn Affidavit of Service must be given little to no evidentiary value in support of the time of service of the Bankruptcy Notices. In NAB v Rusu (1999) 47 NSWLR 309 His Honour Bryson J considers the responsibility of the Court in the treatment of such evidence, at [34]:
If the Court is to find a significant fact on which a large liability may depend, there is a need for the Court to have some measure of confidence in the source of the Court’s belief that the fact exists. The Court acts almost always on narrations which must have a human origin; not usually on the Court’s own knowledge or on states of fact which are taken to be incontestable. The balance of probabilities is not a demanding standard, as the possibility that the less probable state of fact may be the true one is very obvious, and makes civil justice very vulnerable to error. For the Court to feel confident that it should act on any narration it is very important to have a human witness who has pledged, by oath or affirmation, that the narration is true: someone who is responsible for it.
In taking this view, it is important to note that Mr Edney did not avail himself of the opportunity to swear or file a copy of this Affidavit of Service in these proceedings and as a consequence, the contents of this affidavit cannot be given any persuasive evidentiary weight.
Further, Mr Edney refers to a copy of a file note (Annexure “C”) to which he annotated the time of service. I also note that this copy shows an adjusted annotation to which the original intention is not clear. As Mr Edney was not cross-examined on any of the material before the Court, it would be inappropriate to draw any conclusions other than on the face value of the document. In this respect, as it appears as a copy of an original document, it also cannot be given any evidentiary value in respect of the service of the Bankruptcy Notices.
In the Federal Court decision of Penhall-Jones v State of NSW [2007] FCA 925, Buchanan J identified the distinction between the standard of proof and quality of evidence required [118]:
[118] It is generally accepted, and the citations I have extracted are examples, that there is a need to distinguish between identification of the appropriate standard of proof (on the balance of probabilities in a civil case) and the quality of evidence which will satisfy the standard in a particular case. That is a matter which may vary according to the gravity of the accusations or contentions to be evaluated. Although the balance of probabilities remains the civil standard of proof, what may be required to satisfy that standard of proof in a given case, and satisfy it to the 'reasonable satisfaction' of the court, is not fixed.
I am not satisfied in that the evidence presented in these proceedings is conclusive enough to prove service of the Bankruptcy Notice on the evening of 3 February 2010. Particularly considering that such a finding would result in the Applicants’ Set Aside Applications being out of time. It is apparent that the Applicants were of a firm belief that service of the Bankruptcy Notices occurred on 4 February 2010 and as such I take the view that had the Applicant’s been informed of an earlier service date, they would have effected filing of their Applications one day earlier. I do not consider it in the interests of justice to make such a finding when the evidence provided in support of the earlier service time was so poorly presented to the Court. Additionally, I do not consider that a course of continuing these proceedings serves any purpose considering the debts under each Bankruptcy Notice have been discharged by the Applicants.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
20 May 2010
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