Cottrell v Wilcox

In Cottrell v Wilcox, David Mervyn Cottrell appealed against a sequestration order made against him by Conti J. The initial sequestration order was made by a Registrar of the Court following a petition by John Alfred Wilcox, based on Cottrell's failure to comply with a bankruptcy notice demanding payment of a judgment debt of $36,697.42. Cottrell attempted to set aside the sequestration order, alleging abuse of process and a champertous agreement between Wilcox and others. Conti J rejected Cottrell's application, and the Full Court later allowed the appeal but only to remit the matter to Conti J for reconsideration as a hearing de novo.

During the appeal to the Full Court, Cottrell sought to lead additional evidence in the form of an affidavit and numerous annexures. The Full Court declined to admit this evidence, finding it largely tendentious, irrelevant, scandalous, and containing numerous assertions of hearsay. The Court held that the evidence did not meet the threshold for admission under s 27 of the Federal Court of Australia Act 1976 (Cth), which requires the exercise of judicial discretion in a manner consistent with the judicial process.

The case was remitted to Conti J, who heard the matter again by telephone link. Conti J found that Cottrell's notice of motion to set aside the judgment did not disclose a basis in law for doing so, and that Cottrell's oral explanation was not comprehensible in terms of legal principle. Conti J concluded that nothing said by Cottrell in opposition to the sequestration order was comprehensible in terms of legal principle. The appeal was ultimately dismissed, and the respondent's costs were ordered to be taxed and paid from Cottrell's estate in accordance with the Bankruptcy Act 1966 (Cth).