Cincotta v Jones

[2002] FCA 937

FEDERAL COURT OF AUSTRALIA

Cincotta v Jones [2002] FCA 937

NORMAN JAMES CINCOTTA v MICHAEL JONES & ANOR
N7171 of 2002

MADGWICK J
16 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7171 of 2002

BETWEEN:

NORMAN JAMES CINCOTTA
APPLICANT

AND:

MICHAEL JONES
FIRST RESPONDENT

INSOLVENCY AND TRUSTEE SERVICE OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	16 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s statement of affairs be deemed to have been duly filed in accordance with the Bankruptcy Act 1966 (Cth) no later than 30 August 1995.

2.The applicant was discharged from bankruptcy on 1 September 1998.

3.No order as to costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7171 of 2002

BETWEEN:

NORMAN JAMES CINCOTTA
APPLICANT

AND:

MICHAEL JONES
FIRST RESPONDENT

INSOLVENCY AND TRUSTEE SERVICE OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	16 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. Brownlee v Manteit [2000] FCA 1937, which I never thought would have any value as a precedent, concerned a bankrupt who had failed to file her statement of affairs with the Registrar of the Court as the Bankruptcy Act 1966 (Cth) (“the Act”) required. In the circumstances of that case, I found that the filing of such a statement of affairs was a proceeding and it was not invalidated by that irregularity. In that matter, which is relevant to these proceedings, I said:

   “I might add that the first respondent would appear to misconceive his responsibilities as a trustee which are not to stay quiet and refuse to assist the court simply because the money in the estate has run out.”

2. On this occasion, the applicant bankrupt, Mr Cincotta, says that he delivered a statement of affairs to the Office of the Trustee in July or August 1995 following a sequestration order earlier that year.  There is no money in the estate.  The trustee has been more helpful than in Brownlee and has told the Court in effect that there is no record of his having received the statement.  It appears that a couple of months prior to the time when the

   
   
   

   applicant now says he filed the statement of affairs, the applicant was somewhat uncooperative and unhelpful generally.

3. As I indicated in the course of argument, one of two things has happened.  Either the applicant's evidence is truthful and reliable and he did deliver the statement of affairs as he says to the trustee's office but it has been misfiled or misplaced or lost or else, he did not and he is either misremembering what occurred or lying. 

4. If he is telling the truth and is reliable, the mere fact that there is no record of receipt of the document signifies nothing.  As I indicated in the course of argument if a member of the Court's Registry staff were to say that he or she had handed me a notice of a forthcoming judges’ meeting and I misfiled, misplaced or accidentally threw out that notice, I would have no record of its receipt.  I would have no reason to doubt the word of the officer later on, if a question arose as to whether the officer had in fact delivered it to me.  Despite the suspicions that attach to the claims of the applicant, who has been in prison for a substantial period for an offence involving dishonesty, the same is true here.  One would hope that a trustee in bankruptcy would have had systems in place to train counter staff to secure a religiously observed practice of immediately recording the receipt of every document but there is no evidence of any kind like that before me, and there is no opponent to the applicant's application.  Despite my suspicions, there are distinct limits to the extent that I can give effect to mere suspicions if no party wishes or has taken steps to test the applicant's claims as in the public interest, they ought to have been tested.

5. My own view is that the trustee ought, in the public interest and by way of accepting professional responsibilities generally, whether or not there is any money in the estate, have stood by his own apparent non-acceptance of the applicant's claims and sought to test those claims.  That would involve putting before the Court evidence of the kind I have indicated and probably other kinds of evidence too.  However none of this has been done.  In my opinion, steps ought to be taken in cases like this to ensure that there will be some adequate testing of claims made.  The question is really whether I should adjourn the proceedings to force that to be done.

6. Mr Cincotta, the applicant, has in fact been bankrupt for over seven years.  He has done as much as he can reasonably do to have the matter dealt with today, and he has put on some evidence which does not, on its face, compel disbelief.  I think I should not further adjourn the matter and cause him further inconvenience but deal with the matter on the basis of what is before me.

7. I consider that the filing of the statement of affairs was a proceeding under the Act within the meaning of s 306. It was an irregularity that it was not filed with the court under the Act as it then stood. That irregularity however appears to have been caused by the statement of affairs having gone astray in the office of the Trustee and accordingly I am not of the opinion that substantial injustice has been caused by that irregularity.

8. I therefore declare that the applicant's statement of affairs is to be deemed to have been duly filed under the Act not later than 30 August 1995.  Accordingly, I declare that the applicant was discharged from bankruptcy on 1 September 1998.  There will be no order as to costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            16 July 2002

Applicant appeared in person.
For the First Respondent:	Mr G Ward, employee of the First Respondent, appeared, with leave of the Court, on behalf of the First Respondent.
Solicitor for the Second Respondent:	Mr Tierney of Insolvency Trustee Service of Australia
Date of Hearing:	16 July 2002
Date of Judgment:	16 July 2002