Dart v Singer

Case [2015] FCA 1353

FEDERAL COURT OF AUSTRALIA

Dart v Singer [2015] FCA 1353

Citation: Dart v Singer [2015] FCA 1353
Appeal from: Application for extension of time: Dart v Singer [2015] FCCA 109
Parties: FREDERICK WILLIAM DART and MEGAN ANN HAJRIDIN v CLIFFORD SINGER  and ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.
File number: QUD 108 of 2015
Judge: RANGIAH J
Date of judgment: 3 December 2015
Catchwords:

PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal against sequestration order – whether adequate explanation for delay – whether prejudice to parties – merit of proposed appeal – whether primary judge failed to consider argument that appellant had cross claim – extension of time granted

BANKRUPTCY AND INSOLVENCY – appeal against sequestration order – whether “other sufficient cause” not to make sequestration order – where appellants filed claim for damages against respondents – whether claim likely to succeed – whether sufficiently valid claim – insufficient evidence to establish claim likely to succeed – appeal dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) ss 24, 40(1)(g), 52, 52(1), 52(2), 52(2)(b), 60(2), 122(1), 126(1), 126(3) and 127(1)
Animal Care and Protection Act 2001 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)
Cases cited: Cain v Whyte (1933) 48 CLR 639 cited
Cubillo v Commonwealth (2001) 112 FCR 455 cited
Dart & Anor v Singer [2010] QCA 75 cited
Dart v Singer; Hajridin v Singer [2013] QCA 255 cited
Dart v Singer; Hajridin v Singer [2014] QCA 263 cited
Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346 cited
Ling v Commonwealth (1996) 68 FCR 180 cited
Mitchell v Cullingral [2012] NSWCA 389 cited
Re Brink; Ex parte Commercial Banking Coof Sydney Ltd (1980) 30 ALR 433 cited
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 cited
Singer v Dart & Ors [2011] QMC 37 cited
St George Bank Ltd v Helfenbaum [1999] FCA 1337 cited
Totev v Sfar (2006) 230 ALR 236 cited
Wilson v Alexander (2003) 132 FCR 273 cited
Date of hearing: 26 May 2015
Place: Brisbane (via Video Link to Townsville)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 75
Counsel for the Appellants: The appellants appeared in person
Counsel for the Respondents: Mr AJ Anderson
Solicitor for the Respondents: Roberts Nehmer McKee

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 108 of 2015
BETWEEN:

FREDERICK WILLIAM DART
First Appellant

MEGAN ANN HAJRIDIN
Second Appellant
AND:

CLIFFORD SINGER
First Respondent

ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.
Second Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

3 DECEMBER 2015

WHERE MADE:

BRISBANE (VIA VIDEO LINK TO TOWNSVILLE)

THE COURT ORDERS THAT:

1.The time for Frederick William Dart and Megan Ann Hajridin to file a notice of appeal be extended and their notice of appeal be taken to be filed on 26 May 2015.

2.The appeal be dismissed.

3.Frederick William Dart and Megan Ann Hajridin pay the respondents’ costs of the appeal.

Note:…

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AGLC
Dart v Singer [2015] FCA 1353
Case
[2015] FCA 1353
Decision Date

CaseChat Overview and Summary

The case of Dart v Singer involved the appellants, Frederick William Dart and Megan Ann Hajridin, appealing against the sequestration orders made against them. The primary issue before the court was whether the primary judge had erred in failing to consider the appellants’ argument that they had a cross-claim against the respondents, which could constitute "other sufficient cause" under section 52(2)(b) of the Bankruptcy Act 1966 (Cth) to refuse to make the sequestration orders. The appellants also sought an extension of time to file their notice of appeal against the sequestration orders.

The court examined the factors relevant to an application for an extension of time to institute an appeal, including the explanation for the delay, any prejudice to the respondents, and the merit of the proposed appeal. The appellants had mistakenly filed their application in the wrong court and had acted reasonably in light of their self-representation. The court found that the delay had not caused prejudice to the respondents.

Regarding the merit of the appeal, the court noted that the appellants had not provided sufficient evidence to support their claim that they had a cross-claim which was likely to succeed or had sufficient validity to justify dismissal or adjournment of the creditor’s petition. The court also found that the primary judge had failed to adequately consider the appellants’ argument about their alleged cross-claim, set-off, or cross demand. This oversight constituted an error in the primary judge’s reasoning.

The court granted the appellants an extension of time to file their notice of appeal but dismissed the appeal itself. The court held that the appellants’ claims against the respondents did not demonstrate a likelihood of success or sufficient validity to warrant refusal of the sequestration orders. Consequently, the appellants were ordered to pay the respondents' costs of the appeal.

In summary, the court allowed the extension of time for filing the notice of appeal, found that the primary judge had erred in not considering the appellants’ cross-claim argument, but ultimately dismissed the appeal and ordered the appellants to pay the respondents’ costs.

Orders

Orders of the court

1. The time for Frederick William Dart and Megan Ann Hajridin to file a notice of appeal be extended and their notice of appeal be taken to be filed on 26 May 2015.

2. The appeal be dismissed.

3. Frederick William Dart and Megan Ann Hajridin pay the respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Totev v Sfar, Allsop J said at [44]:Nevertheless, what is clear is that the fact that there has been an act of bankruptcy does not make the claim by the debtor against the petitioning creditor irrelevant. It should be examined to assess whether it can be said that there is sufficient evidence to show that it is a real claim which is likely to succeed. Also relevant is the stage of the litigation, the length of time for its vindication and any other relevant matters. It goes without saying that solvency is a relevant consideration. In some circumstances, it may be difficult to assess the likelihood of success of the debtor’s claim. All the authorities show that central to the showing of “other sufficient cause” for the purposes of s 52(2)(b) is the question of the prospects of success. The case is not tried in the bankruptcy court, but the material is examined for the purpose alluded to by Gibbs J in Re Schmidt. As Olney J identified in Re James, if a likelihood of success can be demonstrated, that may justify a refusal of a sequestration order. Alternatively, the circumstances may reveal a claim of a character and nature in which likelihood of success cannot be predicted with accuracy but in the circumstances the petition should be dismissed or an adjournment of the petition should granted: see the approach of Sundberg J in Ling v Commonwealth (1996) 68 FCR 180 at 195–6; 139ALR 159 at 172, with which Wilcox J and Whitlam J agreed. If the claim is one in which credit of witnesses will be involved, and a debtor sets out the nature and detail of the case and all his or her evidence the debtor may only be able to persuade the bankruptcy court that, if relevant criteria are believed, he or she has good prospects of success. What should be proved, or what is sufficient to be proved, in any given case will depend upon the circumstances. (Underlining added.) If the appellants are to establish “other sufficient cause” for the purposes of s 52(2), they must demonstrate that they have a claim which is likely to succeed. Alternatively, they may demonstrate that although the claim has difficulties, it has “sufficient validity to justify dismissal or adjournment of the petition”: see Ling v Commonwealth (1996) 68 FCR 180 at 195. This is not demonstrated merely by pointing to the existence of current litigation against the creditor or by producing a statement of claim in a proceeding against the creditor. The appellants have not supported their argument that they have a claim against the respondents with any evidence. They have merely relied upon the the existence of their proceeding against the respondents and upon their claim and statement of claim. That is not enough to justify a refusal to make a sequestration order. In any event, the allegations in the appellants’ claim and statement of claim do not support the appellants’ contention that they have a claim which is likely to succeed or that it otherwise has sufficient validity to justify dismissal or adjournment of the creditor’s petition.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I consider that the appellants’ grounds can be distilled into Ground 1 of the draft notice of appeal: in essence, that the primary Judge erred by failing to consider, or properly consider, the appellants’ argument that they have a counter-claim, set-off or cross demand. Consideration The factors relevant to an application for an extension of time within which to institute an appeal include the explanation for delay, any prejudice to the respondents and the merit of the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]. The appellants have explained their delay in filing their notice of appeal. They had mistakenly attempted to file an application for leave to appeal and draft notice of appeal in the Federal Circuit Court Registry, rather than in this Court. They made that attempt within 21 days of the judgment below, but by the time they discovered their mistake they were outside the prescribed period. As they are self-represented, their mistake is understandable and their excuse for the delay is a reasonable one. Their delay has not caused prejudice to the respondents. I will turn to the merit of the appellants’ proposed appeal. The appellants placed before the primary judge the claim and statement of claim they had filed in the Supreme Court of Queensland. The Court of Appeal had quashed Mr Dart’s conviction for contravening the prohibition order and three of Ms Hajridin’s four convictions for contravening the prohibition order. The Court of Appeal found that the respondents could not prove that animals in the possession of the appellants were obtained after the prohibition order was made. Before the primary judge, the appellants relied on the allegations in their claim and statement of claim. They also relied on the Court of Appeal’s findings to argue that Mr Singer lacked any reasonable belief that a prohibition order had been contravened when the search warrant was applied for and executed on 30 December 2008. They argued that the search warrant was invalid and that the respondents had no power to enter their vehicle or land, or to seize animals lawfully in their possession, or to detain the appellants. They argued that the respondents maliciously prosecuted them. They submitted a sequestration order should be refused under s 52(2)(b) of the Bankruptcy Act on the basis that they have a counter-claim, set-off, or cross demand within s 40(1)(g) of the Bankruptcy Act. In support of their application for an extension of time and their appeal to this Court, the appellants contend that the primary judge failed to consider their argument that there was “other sufficient cause” to refuse to make a sequestration order. The respondents submit that the appellants having failed to satisfy the primary Judge of the existence of a claim within the meaning of s 40(1)(g), it was open to the primary Judge to make the sequestration orders. The appellants squarely raised their argument concerning their alleged counter-claim, set-off or cross demand in an affidavit and orally before the primary judge. There was no obvious or explicit reference to that argument in his Honour’s reasons for judgment. The only possible reference to some part of that argument may be in para [6] of the reasons where his Honour referred to “further appeals from decisions of the District Court of Queensland made to the Supreme Court of Queensland and, to some degree, success has been forthcoming…”. If so, the reference is oblique and obscure. Paragraph [6] seems to do no more than say that the costs order relied on to found the bankruptcy notice has not been set aside. The reasons do not mention the claim and statement of claim filed in the Supreme Court or the appellants’ assertion that they are entitled to damages for trespass and so forth. The reasons do not explain why the argument was rejected. The absence of findings about an issue can properly be taken as showing that the judge has overlooked it: Mitchell v Cullingral [2012] NSWCA 389 at [116]. I consider that the appellants are correct in their contention that the primary judge erred by failing to consider their argument.