Federal Circuit and Family Court of Australia
(DIVISION 2)
Doyle v Lewis [2023] FedCFamC2G 205
File number(s): SYG 957 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 17 March 2023 Catchwords: BANKRUPTCY – application to adjourn hearing of application to set aside bankruptcy notice – whether there would be any utility in adjourning the hearing to set aside the bankruptcy notice – no utility – application to adjourn hearing dismissed – whether the bankruptcy notice was liable to mislead debtor – whether there are substantial grounds for questioning that the judgment debt on the basis of which the bankruptcy notice was issued is a true debt – application to set aside bankruptcy notice dismissed. Legislation: Bankruptcy Act 1966 (Cth) ss 41(6A), 41(6C), 82(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 11.07(1), 11.08(1), 13.06(1)(e), 17.05(2)(a)
Uniform Court Procedure Rules 2005 (NSW) rr 51.8, 51.9, 51.16(2)
Cases cited: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114
Lewis v Doyle (No 2) [2022] NSWSC 447
Mao v AMP Superannuation Ltd [2015] NSWCA 252
Division: General Number of paragraphs: 92 Date of last submission/s: 16 March 2023 Date of hearing: 28 February 2023 Place: Sydney The Applicant: No appearance by, or on behalf of, the applicant Counsel for the Respondent: Mr A Bailey Solicitor for the Respondent: Carroll & O’Dea Lawyers ORDERS
SYG 957 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PHILLIP DOYLE
Applicant
AND: DARREN JOHN LEWIS
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 march 2023
THE COURT ORDERS THAT:
1.The applicant’s application to adjourn the hearing of the application to set aside Bankruptcy Notice BN256377 issued on 1 June 2022 is dismissed.
2.The application to set aside Bankruptcy Notice BN256377 issued on 1 June 2022 is dismissed.
3.The applicant pay the respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
On 28 February 2023 I heard two applications. The first is an application by the applicant, Mr Doyle, to adjourn the hearing of his application to set aside a bankruptcy notice (Bankruptcy Notice). The Bankruptcy Notice was issued on 1 June 2022 on the application of the respondent, Mr Lewis. The second application is Mr Doyle’s application to set aside the Bankruptcy Notice. I need only consider Mr Doyle’s application to set aside the Bankruptcy Notice if I refuse Mr…
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- AGLC
- Doyle v Lewis [2023] FedCFamC2G 205
- Case
- [2023] FedCFamC2G 205
- Decision Date
CaseChat Overview and Summary
In the matter of Doyle v Lewis, the parties were involved in a legal dispute concerning the validity of a bankruptcy notice. The court had to decide whether the bankruptcy notice was valid and if it represented a true debt. The case was heard in the Federal Circuit and Family Court of Australia. The legal issues that the court was required to decide were whether the bankruptcy notice was valid and if there were substantial reasons for questioning whether behind the judgment there was, in truth and reality, a debt due to the creditor.
The court found that the bankruptcy notice was valid and that there were no substantial reasons for questioning whether behind the judgment there was, in truth and reality, a debt due to the creditor. The court dismissed the application to set aside the bankruptcy notice. The court also dismissed the application for an adjournment of the hearing, finding that there would be no utility in adjourning the hearing.
This case highlights the importance of ensuring that bankruptcy notices are properly served and that there are substantial reasons for questioning the validity of a judgment before seeking to set it aside. It also demonstrates the court's willingness to consider applications for adjournment on a case-by-case basis, taking into account the interests of justice and the utility of the proposed adjournment.
The court found that the bankruptcy notice was valid and that there were no substantial reasons for questioning whether behind the judgment there was, in truth and reality, a debt due to the creditor. The court dismissed the application to set aside the bankruptcy notice. The court also dismissed the application for an adjournment of the hearing, finding that there would be no utility in adjourning the hearing.
This case highlights the importance of ensuring that bankruptcy notices are properly served and that there are substantial reasons for questioning the validity of a judgment before seeking to set it aside. It also demonstrates the court's willingness to consider applications for adjournment on a case-by-case basis, taking into account the interests of justice and the utility of the proposed adjournment.
Orders
Orders of the court
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Background
Background to the litigation
In his email of 26 October 2022 Mr Barbeliuk requested that the listing of 28 October 2022 be vacated, the hearing of 3 November 2022 be vacated, the balance of the orders I had made on 20 October 2022 be stayed, and that the notice of address attached to the email be “filed in chambers”. The apparent basis of these requests was a breakdown in Mr Barbeliuk’s relationship with Mr Hall. Mr Barbeliuk set out part of his correspondence with Mr Hall, and set out the following (errors in original):Facts· I confirm I am the appointed power of attorney for Philip William Doyle (“Mr. Doyle”).· Mr Doyle is currently 79 years of age. · He has been diagnosed with dementia, and autism. · In general, health is precarious. · I confirm I have terminated the retainer with Hall Partners.· On 29 June 2022, I booked a flight to Singapore (for personal reasons/visit). My departure flight is at 4pm today, and my return flight is scheduled for 3 November 2022 6pm (Sydney time). · I first received sealed copies of the court’s orders dated 8 & 14 September & 20 October 2022 yesterday, 25 October 2022 4:29pm.· On or about 4 September 2022, Mr Hall collected a signed copy of the 7 September 2022. As at the current date, I have not received a sealed copy of my affidavit. · Pursuant to order (1) made on 14 September 2022, I have not received (and am unaware) if any reply evidence has been filed and served. · Pursuant to orders (1) & (2) made 20 October 2022, I have not instructed and am unaware if any subpoenas have been issued or documents produced. · Pursuant to order (3) made 20 October 2022, I have not instructed or received my written submissions. I am unaware if they were filed. · Pursuant to orders (4) made 20 October 2022, I have not received or been made aware if the Respondents have filed and served any written submissions.· Unitil yesterday, I was unaware there was a direction hearing set down for Friday 28 October 2022. · Until yesterday, I was unaware there was a hearing set down for 3 November 2022 at 10am. The date of 4 November was mentioned. I did not vacate the listing of 9.30 am on 28 October 2022. On that occasion Mr Bailey, counsel for Mr Lewis appeared, as did Mr Hall, who appeared for the limited purpose of being excused from further participating in the proceeding. Mr Barbeliuk appeared, and I permitted him, for the purpose of the hearing on that day, to speak on behalf of Mr Doyle. Mr Barbeliuk said that he sought a “stay of leave of at least four to five weeks until we can appoint new legal representation”.[5] Mr Bailey opposed the application for an adjournment, although in a qualified manner, namely, that if the hearing is adjourned it should not be adjourned too far beyond 3 November 2022. I expressed the view that there may be an issue about Mr Doyle’s capacity which may need to be formalised by the appointment of a litigation guardian. In the course of discussion, I indicated that I would vacate the hearing of 3 November 2022, and set the matter down for hearing in December 2022. I also indicated that I intended to list the matter for directions to receive evidence about Mr Doyle’s capacity. I explained to Mr Barbeliuk what I had in mind as follows:[6][5] 28.10.22 T3.5-10[6] 28.10.2022 T5.35-T6.40HIS HONOUR: Now, the issue I’ve raised, Mr Barbeliuk, is from your email and I’m not expecting you or compelling you to answer these questions, but you did say in your email that Mr Doyle has – I think you said – some form of dementia, and you’re the attorney. So when that issue arises with a party, the court needs to appoint someone – I think the expression is litigation guardian - - - MR BARBELIUK: Yes. HIS HONOUR: - - - to represent a party and instruct a lawyer, and that has consequences, for example, if a costs order is made, it’s made against the litigation guardian. Those sort of consequences. MR BARBELIUK: Right.HIS HONOUR: So at the moment, I’m on notice from your email that there’s an issue about capacity of a litigant. If a litigant hasn’t got capacity, then that person just can’t act in a proceeding other than through a litigation guardian. MR BARBELIUK: Right.HIS HONOUR: So what I have in mind with a directions hearing is for you to think about that, whether the position of Mr Doyle is one that does require a litigation guardian, and I will need material about that – evidence about what his capacity is so that I can determine whether a litigation guardian is required. So do you understand? MR BARBELIUK: Your Honour, would that be medical evidence, your Honour? HIS HONOUR: Well, I presume that there must be some medical evidence that he has. Presumably, Mr Doyle is under medical treatment at the moment. Is that the case or not? MR BARBELIUK: Correct, your Honour. Yes. HIS HONOUR: And I’m not obviously giving you advice, but the evidence that really would be required is at least the general practitioner or the medical practitioner [who] has the overall care of Mr Doyle to - - - MR BARBELIUK: Yes, your Honour. HIS HONOUR: - - - provide as best they personally can about Mr Doyle’s capacity and in particular Mr Doyle’s capacity to understand a proceeding and to give instructions in relation to litigation. It’s that sort of thing that I have in mind, so that’s one thing, and that assumes that you, Mr Barbeliuk, will be seeking to be a litigation guardian, and if not you, then I don’t know what I’m going to do. Somebody else will have to apply. MR BARBELIUK: I understand your Honour fully. HIS HONOUR: All right. So that’s the expectation, and if you have that material and a simple affidavit, I think the best thing to do – and I’m not going to make a direction – but what I suggest you do is you get a report of some form. As best you can, have an affidavit, attach it to an affidavit and file it before the 11th, possibly two days so everyone else can see it. MR BARBELIUK: Your Honour, I will do that asap.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Given I am satisfied that Mr Doyle would have no prospects of being granted leave to appeal against the Judgment and Costs, I am also satisfied there would be no utility in adjourning the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice, pending the determination of his application for leave to appeal against the Judgment and Costs.Conclusion on application for an adjournment I am not satisfied it is in the interests of justice that the hearing and determination of Mr Doyle’s application to set aside the Bankruptcy Notice should be adjourned; and that is because there would be no utility in adjourning the hearing. I will therefore dismiss Mr Doyle’s application to adjourn the hearing of his application to set aside the Bankruptcy Notice.application to set aside the bankruptcy notice Mr Doyle’s application states two grounds. Ground 4 Ground 4 claims that the address of Mr Lewis, as stated in the form of order that is annexed to the Bankruptcy Notice, is different from the address stated in the Bankruptcy Notice at which Mr Doyle is required to pay the amount the Bankruptcy Notice demands. This ground is without merit. There is no requirement under the Act, or under any regulations made for the purposes of the Act, that requires that the address at which the amount a bankruptcy notice demands be paid be the address of the judgment creditor as stated in the form of judgment that is required to be attached to the bankruptcy notice. In any event, in the circumstances of this case, there is no possibility that a person in the position of Mr Doyle could be, or could have been, misled by there being a difference between the address at which the Bankruptcy Notice demanded Mr Doyle pay the amount specified in the Bankruptcy Notice, and the address of Mr Lewis as recorded in the form of judgment that was attached to the Bankruptcy Notice.Ground 5 Ground 5 claims that the Judgment does not in truth represent debt. Ground 5 relies on the well-established principles concerning a bankruptcy court’s going behind a judgment. I have discussed the principles relating to going behind a judgment elsewhere, including in the context of a judgment debt that arises on the determination of a demand for unliquidated damages. [51] It is unnecessary to set out these principles other than to identify the question a bankruptcy court must address when considering whether it should go behind a judgment. That question is whether “substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner”.[52][51] See, for example, Ziman v McKellar [2018] FCCA 3401, at [4]-[7][52] Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212, at page 225 (Barwick CJ) Ground 5 of the application does not provide substantial reasons for questioning whether behind the Judgment (and Costs) there was, in truth and reality, a debt due to Mr Lewis. First, Mr Doyle has not provided any evidence to support the allegations made in the ground. Second, ground 5 lacks particularity or relevance, or both.(a)Paragraph (a) of the particulars to ground 5 does not identify the failing memory and mental capacity from which it is said Mr Doyle suffered, or the respects in which Mr Doyle’s being incarcerated led to Mr Doyle’s failing memory and metal faculty, or the procedural disadvantages it is said Mr Doyle suffered. Nor does paragraph (a) identify how Mr Doyle’s failing memory and mental faculties caused the procedural disadvantages.(b)Paragraph (b) of the particulars to ground 5 does not identify how the stigma Mr Doyle faced as an incarcerated person in respect of offences involving sexual assaults against juveniles relates to the claim that the Judgment does not represent a true debt.(c)Paragraphs (c)-(e) of the particulars to ground 5 relate to matters that are alleged to have occurred in the criminal proceedings. They do not particularise the allegations; and in any event do not identify how the matters there alleged relate to the claim that the Judgment does not represent a true debt.(d)Paragraphs (f) and (g) of the particulars to ground 5 assert facts that are said to have given rise to a conflict of interest on the part of the lawyers who acted for Mr Doyle in the criminal proceedings. The paragraphs do not articulate how the matters there alleged relate to the claim that the Judgment does not represent a true debt.(e)Paragraph (h) of the particulars to ground 5 makes the scandalous allegation that Mr Doyle’s solicitors provided confidential information to Mr Lewis’ solicitors. The confidential information is not identified; nor are the circumstances in which any confidential information was given to Mr Lewis’ solicitors, or how the disclosure of such confidential information operated to the detriment of Mr Doyle.(f)Paragraph (i) of the particulars to ground 5 asserts the Judgment is not a proper judgment because Mr Doyle has always denied the allegations that gave rise to the Judgment, and also because of the matters referred to in paragraphs (a)-(h). Mr Doyle’s continual denial of the facts as found by Davies J is incapable of constituting a substantial reason for questioning whether behind the Judgment there exists a true debt. Further, to the extent paragraph (i) relies on the other paragraphs of the particulars to ground 5, I have already concluded that the matters stated in those paragraphs do not constitute a substantial reason for questioning whether behind the Judgment and the Costs there is in truth a debt.
Ratio Decidendi
Legal Principle Established
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