Derriman v National Australia Bank

[2005] HCATrans 467

[2005] HCATrans 467

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S102 and S103 of 2005

B e t w e e n -

KYM DERRIMAN

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Applications for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 1 AUGUST 2005, AT 3.01 PM

Copyright in the High Court of Australia

GUMMOW J:   The applicant seeks special leave to appeal against the decision of Wilcox J in two appeals from the Federal Magistrates Court.  That Court had affirmed a decision of a registrar of the Federal Magistrates Court, who ordered that the applicant’s application to set aside a bankruptcy notice issued against him be dismissed with costs.  The Federal Magistrate further ordered that a sequestration order be made against the applicant’s estate.

The only matter about which the applicant now complains is that the bankruptcy notice omitted a note, entitled “For the information of the Creditor”.  The note was contained in the prescribed form of notice in Form 1 in the Schedule to the Bankruptcy Regulations 1997 (Cth) and pointed out to creditors that it “may be necessary to disclose some or all of the information provided by you on this Form to Government agencies and departments for any purpose under the Act” and that such information may be included on a public record or given to other persons for purposes authorised by the Act. 

Wilcox J held that the omission of this note would not render the bankruptcy notice invalid, since the intention revealed by the provisions and purpose of the Bankruptcy Act 1966 (Cth) was that compliance with the Act could be achieved by a notice that omitted the note. Alternatively, his Honour said, if the omission was a defect it was a merely formal defect in relation to a non-essential matter. The conclusion that the bankruptcy notice was not invalid necessarily disposed of the complaint that the sequestration order was invalid.

The applicant contends that Wilcox J overlooked the fact that the note to creditors contained information relating to the creditor’s right to privacy of information, which constitute a human or fundamental right, interference with which should not lightly be permitted in construing a statute.  However, Wilcox J’s reasons demonstrate that, upon a creditor causing a bankruptcy notice to issue, whether or not including the note to creditors, the purpose of the note to creditors will have been served.

There are insufficient prospects of success in any appeal to this Court from the Federal Court to warrant a grant of special leave.  Accordingly, special leave to appeal is refused in both applications.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing each application for special leave.  I publish the disposition signed by Kirby J and myself in both applications.

AT 3.03 PM THE MATTERS WERE CONCLUDED