Doyle v Lewis - [2023] FedCFamC2G 205

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

Lewis v Doyle [2022] NSWSC 92

Mao v AMP Superannuation Ltd [2015] NSWCA 252

Smilevska v Smilevska [2015] NSWSC 1794

Wren v Mahony [1972] HCA 5

Ziman v McKellar [2018] FCCA 3401

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 Doyle’s application for an adjournment.
Both applications have been made or, at least, I have proceeded on the basis that both applications have been made, even though neither Mr Doyle nor any person on his behalf, appeared at the hearing on 28 February 2023. Mr Doyle’s interests in the proceeding were initially in the care of his solicitor, Mr Hall; but after Mr Hall ceased acting for Mr Doyle, I granted Mr Doyle’s attorney, Mr Barbeliuk, who is not legally qualified, leave to appear on behalf of Mr Doyle at the directions hearings of 28 October 2022 and 11 November 2022; and at the hearing on 9 December 2022.
Before I consider the applications, it will be necessary to show how I came to hear the two applications on 28 February 2023, even though neither Mr Doyle nor Mr Barbeliuk appeared at the hearing.
procedural history
1 June 2022 – Bankruptcy Notice issued
In 2018 Mr Lewis commenced a proceeding in the Supreme Court of New South Wales (SCNSW) against Mr Doyle in which he alleged that Mr Doyle had sexually assaulted him in 1986 and 1987 (SC proceeding). Mr Lewis’ claims were heard by Davies J over five days in October 2021 and, on 18 February 2022, Davies J accepted Mr Lewis’ claims and ordered that Mr Doyle pay Mr Lewis damages in the sum of $1,353,850 (Judgment).[1] On 27 April 2022 Davies J ordered that Mr Doyle pay Mr Lewis’ costs in the amount of $255,000 (Costs).[2]
[1] Lewis v Doyle [2022] NSWSC 92
[2] Lewis v Doyle (No 2) [2022] NSWSC 447
On 1 June 2022 the Bankruptcy Notice was issued, and it was served on Mr Doyle on 11 June 2022. The Bankruptcy Notice demanded Mr Doyle pay Mr Lewis $1,633,646.35. That is the sum of the Judgment and Costs, together with interest on those amounts.
Events up to 20 October 2022
On 3 July 2022 Mr Doyle electronically lodged for filing an application to set aside the Bankruptcy Notice. The application claims an order under s 41(6A) of the Bankruptcy Act 1966 (Cth) (Act) to extend the time for compliance with the requirements of the Bankruptcy Notice. Orders extending the time for compliance with the requirements of the Bankruptcy Notice have been regularly made, and an order extending time for compliance with the requirements of the Bankruptcy Notice is on foot until the day I deliver judgment on Mr Doyle’s the application to set aside the Bankruptcy Notice. Mr Doyle’s application also seeks declarations and orders in relation to the service of the Bankruptcy Notice. This part of the application is no longer relevant, however, because Mr Lewis accepts Mr Doyle filed his application to set aside the Bankruptcy Notice before the time for complying with its requirements expired.[3]
[3] Written Submissions of the Respondent, filed 7 December 2022, [41]-[45]
Mr Doyle’s application relies on the following two grounds to set aside the Bankruptcy Notice.
4.A Declaration and / or Orders setting aside the Bankruptcy Notice numbered BN256377 on the grounds that:
(i). the notice was capable of misleading and confusing the debtor in that it appears from the face of the notice and the judgement annexed (and that is dated 1 day prior to the notice) that the address of the creditor is misstated or that the creditor is not property identified by his address on the notice, in that the creditors address on the notice is 5 Blundell Circuit Kellyville; whereas the address of the Darren John Lewis referred to on the judgements accompanying, and issued only 1 day prior, is 53a Marton Crescent, Kings Langley, NSW, 2147;
5. An Order setting aside the Bankruptcy Notice numbered BN256377 on the grounds that the judgement relied upon for the purposes of the Bankruptcy Act 1966 Cth is not a proper judgement for the purposes of bankruptcy, and that it be set aside:
Particulars
(a) In the proceedings in which the judgement debt was obtained, those proceedings miscarried on the basis that the Applicant was the subject of a procedural disadvantage in that he had not been able to properly defend them, as he was an incarcerated person, and was of failing memory and metal faculty at the time at which the judgement against him was obtained;
(b) At the time of trial, the Applicant was a convicted felon and was confronted by circumstances in which he had been convicted of various offences at a trial before the District Court at Sydney, (only upon a re-trial of those matters), and faced the stigma of being an incarcerated person in respect of offences involving sexual assaults against juveniles, that he maintains did not occur;
(c) At the trial of the criminal proceedings and from which the civil proceeding followed, the Applicant's former solicitors had failed to lead certain evidence including the evidence of an independent witness who, if called, would have given evidence to the effect that at the time that one of the offences of which the Applicant was convicted could not have occurred, because the circumstances in which the offence was said to have occurred did not exist at the relevant time;
(d) In the trial criminal proceedings, the Applicant was convicted in circumstances in which he was charged in respect of multiple offences against multiple persons, of which the Plaintiff was alleged to have been one such person;
(e) Giving regard to the evidence not led at trial, but that the Applicant instructed his counsel to lead at trial, there is significant doubt that a conviction would have followed had the counsel at the trial followed his instructions and led the evidence of the matters referred to above, (most particularly where the Applicant was only convicted upon a re-trial, before a newly impanelled jury);
(f) Undisclosed to the Applicant at the time at which his former solicitors Uther Webster and Evans were acting for him, was the fact that his solicitors had a clear and obvious conflict of interest in continuing to act for him, (and that they did not disclose as soon as they became aware of it), in that the responsible solicitor of UWE who had the carriage of the Applicant's matter, was herself a client of the Respondent's solicitors, the Applicant's solicitors having refused to act on aspects of his instructions and having refused to take the necessary steps to have disgorged themselves of the conflict, as soon as they became aware of it;
(g) At all material times the conflict in UWE accepting and receiving the Applicant’s instructions to appear and to act for him was manifest and the solicitors for the Respondent may be taken to have been aware of it;
(h) Confidential information concerning the Applicant was, (in all probability), passed to the Respondent’s solicitors and used by them against the Applicant, and to his detriment in the course of the proceedings below;
(i) The judgement of the Court below is not a proper judgement for the purposes of bankruptcy in that it is occasioned by sufficient doubt, in the circumstances where the Applicant denies and has always continued to deny the allegations that gave rise to the judgement, and the circumstances described above served to deprive the Applicant of a fair and just trial as to the facts upon which the judgement was based, according to law;
(j)For the reasons recited above, the Applicant is not the Respondent’s creditor and the Respondent is not the Applicant’s debtor.
Mr Doyle supported his application with an affidavit made by his solicitor, Mr Hall, on 3 July 2022.
The following procedural events then occurred:
(a)On 19 July 2022 the Registrar ordered that by 9 August 2022 Mr Doyle file and serve any further evidence on which he intends to rely; that by 23 August 2022 Mr Lewis file Notice of Grounds of Opposition; that by 29 August 2022 Mr Doyle file and serve evidence in reply; and that the matter be listed for directions at 11:00 am on 30 August 2019.
(b)Mr Doyle did not file any further evidence by 9 August 2022. At 10:24 am on 30 August 2022, however, Mr Hall lodged an affidavit. It appears Mr Hall prepared this affidavit in support of an application that Mr Doyle be granted further time to file his evidence.
(c)On 30 August 2022 the Registrar ordered that Mr Doyle file and serve his evidence by 4 September 2022, and adjourned the matter for directions to 11:00 am on 8 September 2022.
(d)Mr Doyle filed an affidavit on 4 September 2022; and, on 7 September 2022, Mr Doyle, through Mr Hall, filed an affidavit made by Mr Barbeliuk on 7 September 2022.
(e)On 8 September 2022 the matter again came before a Registrar who ordered, among other things, that Mr Lewis file a Notice of Grounds of Opposition by 15 September 2022, and that the matter be referred to a Judge for hearing of the application to set aside the Bankruptcy Notice.
The matter was entered in my docket, after which I listed the matter for directions on 14 September 2022. Mr Hall appeared for Mr Doyle, and Mr Bailey, barrister, appeared for Mr Lewis. I made orders for the filing of evidence, and set down for hearing at 10 am on 3 November 2022 Mr Doyle’s application to set aside the Bankruptcy Notice. Pursuant to my orders Mr Lewis filed two affidavits, one made by Mr O’Brien on 28 September 2022, and one made by Mr Algie, also on 28 September 2022.
The matter was relisted before me on 20 October 2022 for the purpose of making orders for the issue of subpoenas. I made orders in relation to subpoenas, but also for the filing of objections, submissions, and a court book. Pursuant to my orders Mr Doyle, through Mr Hall, filed written submissions on 24 October 2022. On 26 October 2022 however, Mr Hall filed a notice of intention to withdraw as lawyer.
Directions hearing on 28 October 2022
The matter was listed before me for a return of subpoenas at 9:30 am on 28 October 2022. At 11:43 am on 27 October 2022, however, Mr Barbeliuk sent an email to my Associate attaching a notice of address for service, and a number of other emails. One is an email Mr Barbeliuk sent at 10:19 am on 26 October 2022 which, in the email he sent to my associate at 11:43 am on 27 October 2022, Mr Barbeliuk said had been inadvertently sent to the “incorrect court/associate” at 1:02 pm on 26 October 2022.[4]
[4] I have marked the chain of emails in chambers as “MFI1 (Chambers)”
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-T6.40
HIS 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.
I vacated the hearing date of 3 November 2022, listed Mr Doyle’s application to set aside the Bankruptcy Notice for hearing at 10:15 am on 9 December 2022, and listed the matter for further directions on 11 November 2022.
Directions hearing on 11 November 2022
At 4:38 pm on 10 November 2022 Mr Barbeliuk sent an email to my Associate stating that the “parties are unable to reach consent on vacating the directions hearing” of 11 November 2022. The email was the last of an extensive chain of emails between Mr Barbeliuk and Mr Lewis’ lawyers.[7]
[7] I have marked in chambers the email chain as “MFI2 (Chambers)”

At the directions hearing Mr Barbeliuk made a number of claims about Mr Hall, including Mr Hall having filed affidavits without instructions, and Mr Hall having refused to provide documents to Mr Barbeliuk. Mr Barbeliuk also said he was looking for alternative legal representation, and asked that the hearing that had been set down on 9 December 2022 be adjourned. The directions hearing concluded by my confirming that the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice would proceed on 9 December 2022.
Hearing on 9 December 2022
On 7 December 2022 Mr Barbeliuk, on behalf of Mr Doyle, lodged for filing an application in a proceeding for orders that included an order that the hearing of 9 December 2022 be vacated. Mr Doyle also lodged for filing an affidavit he made on 3 December 2022. At my direction, my Associate sent an email to the parties noting that the application for an adjournment would be listed at 10:15 am on 9 December 2022. The email stated that the “parties should be in a position to argue both the application for an adjournment, and the merits of the application to set aside the bankruptcy notice, on the assumption that an adjournment is not granted”.
At 5:35 pm on 8 December 2022 Mr Barbeliuk sent the following email to my Associate and to the lawyers for Mr Lewis.[8]
I refer to the medical documents dated 15 November 2022 (Dr. Quan) and 24 November 2022 (St George Hospital) provided to the court concerning Mr. Doyle's current medical status. With due respect, it appears the seriousness of his condition is not being considered. The last-minute demand for him to appear now in person, poses further undue risks.
If I attempted to persuade Mr. Doyle to appear in person tomorrow at this late hour (or I tried to force him) I have real concern it may trigger a medical tragedy, ie: a heart attack or worse. I am not prepared to take that risk, particularly having regard for the medical documents and advice therein.
Further, on the eve of a hearing, we have been bombarded with volumes of last-minute documents including a court book prepared at the “sole direction” of the respondents?
We have advised Carroll & O'Dea ad nauseam (and the court), that under no circumstances do we relinquish our legal right to prepare the court book. For reasons not requiring further clarification, Mr. Hall communications, respectfully, are null and void.
In my respectful opinion, is it seriously arguably that these late circumstances would prejudice a party who was fully and adequately legally represented, “without” the known legal and medical handicaps Mr. Doyle’s factually has before him. My background is in investigative journalism in the media, I at least have a basic understanding of a parties right to procedural fairness.
Appearing by video link tomorrow is the only option if the respondent's solicitors or court demands an appearance. However, an obvious compromise appears to be having the matter be stood until either Thursday 15 December or Friday 16 December 2022 ie: the immediate days after our in-person conference with Mr. Fernon SC. Surely this can be agreed. Otherwise, the legal and medical prejudice to Mr Doyle is set down to occur tomorrow.
I respectfully invite the respondent via their solicitors, Carrol O'Dea, to agree this compromise, ie: a 4-5 business days adjournment?
Otherwise, I respectfully call upon His Honour to use his discretionary power to balance the partie’' respective position(s) and stand the matter over until next Thursday or Friday next week.
[8] Exhibit A
Mr Barbeliuk attached three documents to his email.
(a)A letter addressed to “To whom it may concern” dated 15 November 2022 and signed by Dr Quan, a general practitioner (Quan referral). It is as follows:
Dear To Whom it may concern
Re:      Mr Phillip Doyle
Thank you for seeing Philp Doyle whom I have been the treating doctor since 7/7/2022. He currently has the following medical conditions/history and medication below
Medical History:
Autism spectrum disorder
Dementia
Atrial fibrillation
07/07/2022 . . .
07/07/2022 . . .
15/07/2022: . . .
Current Medications:
. . . .
Mr Doyle presented to me today with several historical & recent stressors.
The stressors I am advised are;
1.   On or about 22 July 2022, Mr Doyle was released from prison after service 10 years.
2.   There are currently 2 sets of legal proceedings active. One in the Federal Circuit Court and one in the Supreme Court of New South Wales.
3.   Since 28 October 2022 Mr Doyle has been without legal representation.
4.   As of today, his former solicitors have not provided his case file.
5.   His next hearing in the Supreme Court is on 21 November 2022.
6.   In the Supreme Court of New South Wales matter, he has outstanding matters to review and reply to.
7.   The main hearing in the Federal Court Matter is on 9 December 2022.
8.   In the Federal Court matter, he has outstanding matters to review and respond to.
With his ongoing medical history and need to be assessed by a specialist geriatrician and cardiologist, a respite from court activities would be appreciated for the next 3 months.
(b)A hospital discharge report issued on 26 November 2022 in relation to an episode from which Mr Doyle recovered quickly.
(c)A retainer letter dated 7 December 2022 from Mr Fernon SC addressed to “Mr Philip Doyle c/ Mark Barbeliuk”.
With my leave, Mr Barbeliuk appeared on behalf of Mr Doyle at the hearing on 9 December 2022, and he confirmed that he wished to apply to vacate the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice. I indicated that I would hear both the application for an adjournment, and Mr Doyle’s substantive application to set aside the Bankruptcy Notice.
The ground on which Mr Barbeliuk sought an adjournment until the following week was that Mr Fernon SC, who was not available to appear at the hearing on 9 December 2022, would be available to appear in the following week. I asked Mr Barbeliuk whether he believed Mr Doyle had any grounds on which to set aside the Bankruptcy Notice. Mr Barbeliuk said that “we intend to appeal the judgment. We believe the judgment is wrong”.[9] By “judgment” I understood Mr Barbeliuk to intend to mean the Judgment and Costs on the basis of which the Bankruptcy Notice was issued. When I asked Mr Barbeliuk why he believed the Judgment was wrong, Mr Barbeliuk asserted, without any detail, that Mr Doyle had not been properly represented at the trial before Davies J.[10]
[9] 9.12.2022 T18.45
[10] 9.12.2022 T19.5-T19.35
After hearing further submissions from Mr Bailey, who appeared for Mr Lewis, I reserved judgment on Mr Doyle’s application for an adjournment and, in the event the application for an adjournment were refused, I reserved judgment on Mr Doyle’s application to set aside the Bankruptcy Notice; and listed the matter for judgment at 9.30 am on 23 December 2022.
Directions hearing 15 December 2022
At 9:40 pm on 12 December 2022 Mr Barbeliuk sent an email to my Associate (copied to Mr Lewis’ lawyers) requesting that “the application to set aside the bankruptcy notice and adjournment application be listed for further directions” or, in the alternative, that the matter be relisted on 15 or 16 December 2019 “so that Mr Fernon can appear”. At 1:28 pm on 14 December Mr Barbeliuk sent a “prompt follow up” email to my Associate (copied to Mr Lewis’ lawyers) repeating the request Mr Barbeliuk made in his email of 12 December 2022.[11] I arranged to relist the matter before me at 2.15 pm on 15 December 2022.
[11] I have marked the chain of emails in chambers as “MFI3 (Chambers)”
At the hearing on 15 December 2022 Mr Bailey appeared for Mr Lewis, and Mr Fernon SC appeared for Mr Doyle. Mr Fernon SC, however, was briefed with very little information, as is apparent from the opening exchange:[12]
[12]15.12.2022 T2.5-T3.10
MR FERNON:   Your Honour, I met with Mr Doyle this morning. That’s my first time. I was informed that this matter had been set down for directions for today by your Honour. I wasn’t told why, so I’ve turned up. I’ve spoken to Mr Bailey who informs me that there was an issue raised with your Honour, I think, by Mr Barbeliuk who appeared before your Honour last Friday about the content of a court book about that. So I query whether this matter has been listed in relation to that issue. I don’t ‑ ‑ ‑
HIS HONOUR:   I don’t quite understand any of that.
MR FERNON:   All right. Well ‑ ‑ ‑
HIS HONOUR:   You’ve come here repeating some information which doesn’t seem to be the subject of any inquiry by you; is that right?
MR FERNON:   Well, I’ve only just received the information in the last few minutes, your Honour, so I’m limited in my capacity to make inquiry. What I was informed ‑ ‑ ‑
HIS HONOUR:   Sorry, you said somebody in the morning. That’s a few hours ago.
MR FERNON:   I met Mr Doyle this morning.
HIS HONOUR:   Yes.
MR FERNON:   I was told that this matter was listed before your Honour this afternoon.
HIS HONOUR:   Yes.
MR FERNON:   I was asked to turn up this afternoon.
HIS HONOUR:   Yes.
MR FERNON:   I asked what it was listed for.
HIS HONOUR:   Yes.
MR FERNON:   I was informed – we didn’t know what it was for. I said, “Well, okay, I will come along with whatever limited information I have”.
HIS HONOUR:   All right.
MR FERNON:   And since I arrived here I’ve discussed with Mr Bailey that information.
HIS HONOUR:   Right.
MR FERNON:   So I don’t have capacity to make any further inquiries about anything in that regard, your Honour. I’m just telling you the state of my knowledge.
After further discussion and submissions I decided to vacate the order which listed the matter for judgment on 23 December 2022, and instead I listed the application to set aside the Bankruptcy Notice for hearing on 28 February 2023. I also ordered that by 2 February 2023 Mr Doyle file an amended application and any further affidavits on which he intended to rely. Mr Doyle did not file an amended application; and he did not file any additional affidavits.
Events leading to hearing of 28 February 2023
At 8:28 pm on 14 February 2023 Mr Lewis’ lawyers sent an email to my Associate stating that Mr Doyle had not complied with my orders of 15 December 2022, and requested that the matter be relisted.[13] At my direction my Associate notified Mr Lewis’ lawyers and Mr Barbeliuk that the matter was relisted before me at 9.30 am on 16 February 2022.[14]
[13] This email is one of a chain of emails the last of which is an email Mr Barbeliuk sent to my Associate at 12:49 pm on 27 February 2023. I have marked this chain of emails in my chambers as “MFI4 (Chambers)”.
[14] MFI4 (Chambers)
At 4:40 pm on 15 February 2022 Mr Barbeliuk sent an email to my Associate (copied to Mr Lewis’ lawyers). Mr Barbeliuk said that Mr Lewis’ lawyers had applied prematurely to relist the matter.[15] Mr Barbeliuk said that he had “reluctantly appeared in person” before a Registrar of the SCNSW on 14 February 2023. Mr Barbeliuk then referred to a medical incident he suffered after the directions hearing, and stated a number of reasons why he would not be able to appear at the listing on 16 February 2023. He suggested making an affidavit to explain the “slippage to the 15 December 2022 timetabling orders”, which he expected to complete by 21 February 2023; and he requested that no further court orders be made.
[15] MFI4 (Chambers)
The listing proceeded at 9.30 am on 16 February 2023. Mr Bailey appeared for Mr Lewis, but no one appeared for Mr Doyle. I made no order, but simply confirmed the hearing on 28 February 2022 of Mr Doyle’s application to set aside the Bankruptcy Notice.
At 12:49 pm on 27 February 2023 Mr Barbeliuk sent an email to my Associate (copied to Mr Lewis’ lawyers) in which he said (italics and bold in original):[16]
If I am to appear tomorrow it will be against medical advice. The only feasible way I could do this would be via phone/video dial in. There is otherwise way too much psychiatric risk to my mental health. Please provide the dial in detail for tomorrow.
I otherwise confirm I am working frantically to try and safely set out our position for tomorrow.
[16] MFI4 (Chambers)
At my direction, at 1:19 pm on 27 February 2019 my Associate sent an email to Mr Lewis’ lawyers and to Mr Barbeliuk informing the parties that, subject to any objection, I was content for Mr Barbeliuk to appear by telephone at the hearing of 28 February 2023.[17] At 3:38 pm on 27 February 2023, Mr Lewis’ lawyers sent the following email to my Associate (copied to Mr Barbeliuk):[18]
[17] This email is part of a chain of emails ending with an email Mr Barbeliuk sent to my Associate at (12:49 pm on 28 February 2023. I have marked this chain of emails in my chambers as “MFI5 (Chambers)”
[18] MFI5 (Chambers)
Subject to the hearing of this matter proceeding tomorrow and Mr Barbeluik [sic] being in a position to run the applicant’s case, our client has no objection to Mr Barbeliuk appearing by telephone or video tomorrow.
We also take this opportunity to provide the following update since the matter was last before the Court on 15 December 2022:
1.The applicant has not filed and served an amended application setting out the grounds on which the applicant seeks to set aside the Bankruptcy Notice;
2.The applicant has not filed and served any further affidavits on which the applicant intends to rely;
3.The applicant has not filed and served any application to adjourn the hearing tomorrow;
4.The applicant’s Counsel, Mr Andrew Fernon SC, is not briefed to appear tomorrow; and
5.the applicant retained solicitors, O’Neill McDonald, who have withdrawn as legal representatives in the proceedings.
We shall provide further details of the above matters at the hearing tomorrow.
At 5:51 pm on 27 February 2023 Mr Barbeliuk sent to my Associate (copied to Mr Lewis’s lawyers) the following email (emphasis, highlighting, and errors, in original):[19]
[19] MFI5 (Chambers)
I refer to the emails below;
My email 27 February 2023 12:49pm
I have since completed the safest method to advance our position for the hearing tomorrow given the cumulative medical and legal risks.
Attached is my affidavit sworn 27 February 2023. It has been served on the respondents’ lawyers today This affidavit along with my 3 December 2022 affidavit before Your Honour are relied upon. This affidavit covers inter alia;
Medical/ Litigation Guardian
(1). Emails between the plaintiffs’ lawyers 30 January - 1 February 2023 attaching a medical certificate (dated 12 January 2023) from the defendant’s doctor, Dr. Quan. It records his position on the issue of a litigation guardian.
(2). 23 February 2023 medical letter to the court from my treating psychologist/psychotherapist date
(3) 23 February 2023 medical certificate from my doctor, Dr Quan, dated 23 February 2023.
Legal
Documents that our then legal representation, Mr. Trevor Hall of Hall partners point blank refused to file (appeals) and failed to offer legal advice on (stay applications). This includes the matter related to these proceedings, Lewis v Doyle. The affidavit also records our genuine/ongoing efforts to resolve various issues, impeded again by third parties;
(1). Notice of Appeal filed 24 February 2023 - AA v PD 2021/155673. (Your Honour being the presiding judge).
(2). Notice of Appeal filed 24 February 2023 - Miles v Doyle 2018/204001. (Cavanagh being the presiding judge).
(3). Notice of Appeal filed 24 February 2023 - Lewis v Doyle 2018/200890. (Davies J being the presiding judge).
(4). Notice of motion to STAY judgements/proceedings pending appeal hearings. filed 27 February 2023 - AA v PD 2021/155673. (Your Honour being the presiding judge).
(5). Notice of motion to STAY judgements/proceedings pending appeal hearings. filed 27 February 2023 - Miles v Doyle 2018/204001. (Cavanagh being the presiding judge).
(6). Notice of motion to STAY judgements/proceedings pending appeal hearings. filed 27 February 2023 - Lewis v Doyle 2018/200890. (Davies J being the presiding judge).
(7). Letter to our most recent solicitor. Mr. Greg McDonald recording factual legal representation issues. I under Your Honour worked with Mr. McDonald as a clerk.
I hold no objection to the respondent orally responding to the affidavit tomorrow. I further note the respondents also served another affidavit today, 27 February 2023 - for the hearing.
Mr O'Briens email below 27 February 2023 3:38pm
The email is in part accurate, it omits a number for facts and issues before Mr. O'Brian.
In light of the medical evidence contained in my affidavit and various issues. I refer to my 27 February 2023 affidavit.
Hearing
I will need to assess the stratus of my mental health in the morning. If I feel I can cope, I will dial in. If I feel too fragile and the risk is too high, I rely on my 3 December 2022 and 27 February 2023 as to the applicant's position.
The medical certificates dated 12 January 2023 and 23 February 2023 to which Mr Barbeliuk refers are respectively annexures “G” and “P” to Mr Barbeliuk’s affidavit of 27 February 2023.
At 9:55 am on 28 February 2023 Mr Barbeliuk sent to my Associate (and to Mr Lewis’ lawyers) the following email (emphasis, highlighting, and errors, in original):[20]
After an extremely traumatic night last night, I have 0% capacity to dial in, listen, speak, or in any way legally protect Mr. Doyle’s interests.
I further note that;
1. On 16 February 2023, Your Honour refused our request to put on an affidavit to support the reasons there was a slippage in the 15 December 2022 evidence timetabling orders. Effectively, disenabling our right to our amended evidence.
2. In addition to my email below confirming my 27 February 2023 affidavit is relied on, including all Annexures, on the morning of the hearing 28 February 2023 at 6:06am Mr. O'Brien (solicitor for respondent) emails submissions and lists of authorities. Your Honour replies acknowledging receipt.
3. On the morning of the hearing 28 February 2023 at 8:28am, Mr. Bailey (counsel for respondent) emails submissions and lists of authorities. Your Honour replies acknowledging receipt.
4. The above has occurred in circumstances all parties are aware of the enormous prejudice faced by the applicant and plainly, the above is another last minute/untoward strategy to proceed with a hearing that is plainly improper, unfit for hearing, unfair and highly prejudicial to the applicant.
The communications recorded in this matter reveals, with respect, a clear bias in favour of the respondents. I will be either having a confidant login and take notes of what occurs today and or will obtain the transcripts. Should the matter proceed and or any adverse orders be made against the applicant, the conduct and events (within our rights) in this matter will be made public and the responsible parties held to account, in the interest of justice.
I call upon Your Honour to make orders in the interest of justice ie: not proceed with the hearing having regard for the evidence before him (my 27 February 2023 and 2 December 2022 affidavits).
[20] MFI5 (Chambers)
Hearing on 28 February 2023
At the hearing on 28 February 2023 Mr Bailey appeared, but there was no appearance by, or on behalf of, Mr Doyle. Mr Bailey proposed that I first consider the application for an adjournment, and, depending on the outcome, Mr Bailey said he apprehended he would proceed summarily. I decided to proceed in the following way:[21]
HIS HONOUR: . . . . So what my preference will be is to hear the application of the adjournment, assume it’s not granted, and then deal with what you would do in any event, and then I will reserve judgment, not for long. And then in my judgment, deal with the application of the adjournment. If I decide the adjournment should be granted, well, I will give judgment on that and that will be it. And then set the matter down for further directions. If I don’t grant the adjournment, that will be in the judgment and then I will deal with the underlying application. So that’s how I proceed to deal with it. Rather, it just gives me more confidence in getting it right ‑ ‑ ‑
MR BAILEY:   Yes.
HIS HONOUR:   ‑ ‑ ‑ which is in the interest of everyone.
MR BAILEY:   Yes.
. . . .
HIS HONOUR:   So perhaps, what we will do is identify the material as best as you can. And in fact, we will identify all of the material, including one on the application for an adjournment and the merits, and then you can make your submissions on the adjournment application, and then you can make your submissions on the substantive application, which has been brought against you. Are you content to proceed that way?
MR BAILEY:   Yes.
[21] 28.02.2022 T4.15-4.35

Mr Bailey then proceeded to identify the material. First, he identified the affidavit of Mr Barbeliuk made on 27 February 2023, being the affidavit Mr Barbeliuk attached to the email he sent to my Associate at 9:55 am on 28 February 2023. I read that affidavit. I also read the affidavit of Mr Barbeliuk made on 3 December 2022, being the other affidavit on which, in the email he sent at 5:51 pm on 27 February 20223, Mr Barbeliuk stated he intended to rely. Mr Bailey then read the following affidavits:
(a)Affidavit of Daniel O’Brien sworn on 27 February 2023.
(b)Affidavit of Robert Andrew Algie made on 28 September 2022.
(c)Affidavit of Daniel O’Brien sworn on 28 September 2022.
(d)Affidavit of Susan Page affirmed on 3 January 2023.
I then heard submissions from Mr Bailey and reserved my judgment. I listed the matter for judgment at 9:30 am on 10 March 2023. After I had given notice to the parties that I would not be in a position to give judgment at 9.30 am on 10 March 2023, at that time I listed the matter for judgment at 9.30 am on 17 March 2023, and on 10 March 2023 I made an order extending the time for complying with the requirements of the Bankruptcy Notice to 17 March 2023.
Correspondence after hearing
Mr Barbeliuk continued to send emails to my Associate (copied to Mr Lewis’ lawyers) after the hearing of 28 February 2023.[22] It began with an email Mr Barbeliuk sent at 9:20 am on 1 March 2020. Mr Barbeliuk referred to the sealed orders I had made at the conclusion of the hearing on 28 February 2023 that my Associate had sent to the parties, and requested that I confirm the evidence on which the parties relied at the hearing. Mr Barbeliuk stated:
Against medical advice, I am forced into trying to obtain legal advice and require this information at the earliest possible time.
[22] I have marked these emails in my chambers as “MFI6 (Chambers)”
At 5:00 pm on 2 March 2023 Mr Barbeliuk sent the following email:[23]
[23] “MFI6 (Chambers)”
I verify the respondents’ solicitors are copied in this email.
Please accept my apology upfront for the prompt follow up. The email is sent considering the time restraints and potential complications with the 28 February 2023 orders summarised below.
The orders Your Honour made on 28 February 2023, the absence of the information requested in my email below 1 March 2023 9:20am, the current absence of knowing what was discussed and or orally submitted by the respondents on 28 February 2023, combined with the known legal and medical issues places us in a precarious position, if the orders proceed in the current form.
I can confirm we have ordered the transcripts of the hearing on 28 February 2023. We are awaiting provision. Once received, we will require adequate time to review and likely try obtaining take legal advice. This however does not resolve the evidence issued detailed below.
Request/requirement 1
Firstly, could Your Honour please verify the evidence related questions in my email of 1 March 2023/below;
Adjournment Application
1. Please confirm the evidence of the parties to be relied upon in this application?
BN Notice Application
2. Please confirm the evidence of the parties to be relied upon in this application?
28 February 2023 Orders (Request 2)
Order 4 invokes some difficulty and in all probability, complications in the current form;
4. The time for compliance by the applicant with the requirements of the Bankruptcy Notice BN 256377 issued on 1 June 2022 be extended up to and including 5:00 pm on 10 March 2023.
Having the judgements handed down simultaneously would mean we have no time to review the judgement and or orders prior to the BN judgement being handed down. If the adjournment was rejected, it would be most likely be that judgement/orders would form part of our submissions on the BN notice and/or may be appealed. Again, most undesirable. Same applies for the BN judgement.
I understand it is not uncommon and moreover in this case, be reasonable, for an Ex Tempore Judgement on the adjournment application be handed down in the first instance. While we do not have firm legal advice in place about how the proceedings/hearing was conducted on 28 February 2023, without question we would seek to put on closing submissions as a minimum. This can only occur upon provision of the information requested herein and after review of the transcripts we await. For the reasons recorded, I would request with respected;
1. The evidence related questions above/below be clarified asap.
2. Your Honour provide the parties his decision/reasons and orders on the adjournment application on 24 March 2023 (two weeks after proposed date). This request is made to allow us the opportunity to put on closing/reply written submissions. This is most important to us in light of the known legal and medical issues resulting in our non-appearance on 28 February 2023.
3. For the same written submission's reasons, the BN judgement be deferred be deferred to 14 April 2023 (3 weeks after the proposed judgment of the adjournment application).
Effectively, our respectful request would be to amend the 28 February 2023 to as minimum, permit us to file and serve closing/rely written submissions supportive of our cases. The respondents have done this both in written submissions and oral submissions on 28 February 2023.
As I understand it, amendments to the 28 February 2023 orders similar to the attached marked up orders would assist in providing some level fair and non-prejudicial balance in this matter.
I await Your Honours urgent direction.
At 9:37 am on 8 March 2023 Mr Barbeliuk sent the following email to my Associate (emphasis and errors in original):
I refer to my emails below. We are still awaiting Your Honour’s directions.
From the outset of these emails (from 1 March 2023) hav been and is with great apprehension. I am following up again because the current orders see judgments being handed down at 10:00am 10 March 2023 ie: in 2 days' time. I see no other way to try protecting Mr. Doye’s interests without prejudice.
Respondents Affidavits
With competent legal representation in place, I confirm;
1.We would instruct that Ms. Susan Page be called for cross examination pursuant to her affidavit filed on16 February 2023 in this matter.
2.In all probability, we would instruct Mr. O’Brien to be called for cross examination pursuant to his affidavit filed on 27 February 2023 in this matter.
3.In all probability, we would instruct Mr Algie to be called for cross examination pursuant to affidavits field in this matter.
Subpoenas
Subpoenas instructed on but were 'never actioned' by former lawyers would be required in order to fairly and effectively cross examine the parties mentioned above. This includes, but not limited to, in relation to the bankruptcy trustee referred to below.
With competent legal representation in place, I confirm;
1. Mr. Fabian Michetto of SV Partners (bankruptcy trustee) would be subpoenaed to give evidence at the hearing.
2. Subpoenas instructed on but ‘never actioned by former lawyers would be required in order to fairly and effectively cross examine the bankruptcy trustee.
Submissions & List of Authorities
Notwithstanding the known legal and medical issues, I note that;
1.The respondent's submissions were sent to Your Honour on the morning of the hearing, 28 February 2023 6:02AM.
2.The respondents list of authorities were sent to Your Honour on the morning of the hearing, 28 February 2023 8:28AM.
Tutor (litigation guardian) applications
My 27 February 2023 affidavit records inter alia, delays outside of our control in relation to the litigation guardian issue. We have been, again, forced to rectify this issue due to respectfully - the failings of previous solicitors.
1. Please find attached Tutor application filed in the Supreme Court 3 March 2022, related to this matter - Darren Lewis v Phillip Doyle.
Transcripts
I am sure Your Honour has ready access to court transcripts. Nevertheless, I have attached a true copy of the 28 February 2023 transcripts referenced below (provided by Ausscripts).
In relation the transcript recordings below;
HIS HONOUR:
All right. Now, what I’m going to do. I’m going to make probably exactly the same orders I made back in December. Now, the likelihood is – I won’t say likelihood. There’s a real risk that Mr Barbeliuk will make further applications between now and the time I’m going to set my judgement down.I don’t – now, depending on what – if it’s made and on what basis, I am mindful of not increasing costs.  And what will happen is, if we do, if my chambers does receive further material, I will notify the parties, how I propose to deal with it. And I’ve done this in many other cases.  It might well be that I’m going to say I will deal with it in my judgement without requiring any further submissions about it. And, of course, that’s always on the basis that if there is something adverse to somebody, well, you, for example, you could be assured that I will give notice first before I do anything.
MR BAILEY:
Yes.
HIS HONOUR:
So that’s how I propose to deal with it because I don’t – it has happened before.  I don’t want this to be a broken record and it would be an embarrassment to the court if there’s another application.  So again, all I’m saying is if that occurs, there will be a communication obviously through my authority to the parties about that material.  I will either list the matter or I will say I will deal with the material in my judgement without requiring any further submissions.  Of course, if you wish to make submissions, there’s something there that, well, I can’t stop you and I won’t stop you.
1.The cumulative adjournment application has been deferred since 9 December 2023. While I am not a lawyer, I believe ample evidence was before the court to grant the adjournment on 9 December 2022. With respect, I cannot see how a fair and proper hearing could have occurred on that day. Moreso now.
2.We have respectfully requested that we be afforded the opportunity to put on closing written submissions and have adequate time to do so in the circumstances. Notwithstanding the transcript recordings above, at the present date we have not been notified as to our requests.
3.In relation to “Of course, if you wish to make submissions, there’s something there that, well, I can’t stop you and I won’t stop you”, I trust Your Honour extends the same to the applicant?
4.In relation to “And, of course, that’s always on the basis that if there is something adverse to somebody, well, you, for example, you could be assured that I will give notice first before I do anything”, I trust Your Honour extends the same to the applicant?
In relation the transcript recordings below;
HIS HONOUR:
Yes.  I mean, things really happen when I give judgement, apart from shock from one of the parties.  Maybe often both of them. So that no one needs to be anxious about things not, you know, being done in a way that gives people an opportunity to say what they want to say or do what they want to do.  So these will be the orders:
(1) Judgement on the applicant’s application to adjourn the hearing is reserved.
(2) So in the event that the application on adjournment is refused, judgement on the application to set aside bankruptcy notice BN256377 is reserved.
(3) The matter is listed for judgement at 9.30 am on 10 March 2022.
(4) The type of compliance by the applicant with the requirements of bankruptcy notice BN256377 issued on 1 June 2022 be extended up to and including 5 pm on 10 March 2023.
5. Unless I am reading things incorrectly, it seems the orders made would in-fact deny us the “opportunity to say what they want to say or do what they want to do” as the hearing on 10 March 2023 is to hand down the judgments. Further, my mental health and the legal representation issues before the court would, with respect, impose a great disadvantage to us should this course be maintained.
6. I reserve our rights to make full and complete closing submissions with the benefit of (1) legal advice and (2) adequate time.
Requested Orders to Placate
In the interim, we hold no option but to rely on the emails and documents sent to Your Honour from 28 February 2023 to date in support of our cases.
Without having the benefit of legal experts reviewing the collective evidence, including the respondents' late submissions and list of authorities sent on the morning of the hearing, there seems to be a range of issues and complications in how the BN was allegedly served on Mr. Doyle in prison. Indeed, his ability to be served in his then state.
Unless Your Honour is minded to setting aside the BN notice, I maintain adjourning or staying proceedings is most appropriate. An order that;
1. Proceedings adjourned pending the outcome of the appeal hearings in the Supreme Court of Appeal.
Alternatively, given the time that has now passed without reply, I make a revised request below to allow us adequate time for us to prepare closing arguments. I have also considered the respondents position in the revised and requested orders;
1. The applicant file and serve any closing written submissions in support of his adjournment application by 27 March 2023.
2. The respondents file and serve any reply closing written submissions in support of his adjournment application by 3 April 2023.
3. Judgment on the applicant’s application to adjourn is listed for judgment at 9:30am on 7 April 2023.
4. In the event that the application for an adjournment is refused, judgment on the application to set aside Bankruptcy Notice BN 256377 is reserved.
5. If the application to adjourn is refused, the applicant file and serve any closing or reply written submissions in support of his application to set aside Bankruptcy Notice BN 256377 by 21 April 2023.
6. If the application to adjourn is refused, the respondents file and serve any reply written submissions in support of his application to set aside Bankruptcy Notice BN 256377 by 28 April 2023.
7. Judgment on the application to set aside Bankruptcy Notice BN 256377 The matter is listed for judgment at 9:30 am on 5 May 2023.
8. The time for compliance by the applicant with the requirements of the Bankruptcy Notice BN 256377 issued on 1 June 2022 be extended up to and including 5:00 pm on 5 May 2023.
9. Costs be reserved.
Costs
We will seek adequate time to review, take legal advice, and be heard on the matter of costs.
.....................................................................................................................................
I understand the current situation is not ideal. Equally, I maintain the key contributing factors were outside of our control and or was invoked by third parties' actions (or lack of). While not ideal, a self-represented party should be afforded the same rights as a fully represented party. My ongoing proposals have been made in effort to get some kind of equal balance as to procedural fairness in this matter.
With the utmost respect, independent review of the materials over the period October 2022 to date has, in all probability, conclude a bias in favour of the respondents / Carrol & O'Dea Lawyers has occurred. I note that any and all emails sent to Your Honour by Carrol & O'Dea Lawyers in this matter have been met with prompt responses.
Consistence with the transcripts we ask, respectfully, for Your Honours direction on the material and positions put forward in this email chain 1-8 March 2023.
At 1:21 pm on 16 March 2023, on the afternoon before the day on which I listed the matter for judgment, Mr Barbeliuk sent the following email:
The respondent’s lawyers are copied on this email.
I refer to our ongoing emails asking for Your Honour’s assistance and direction permitting us to submit closing submissions in support of our cases. We have not received replies to any of our emails dated 1, 2, 6, 8 and 13 March 2023. As I understand it, the matters remain listed for judgment tomorrow - 17 March 2023.
Your Honour previously recorded in the 28 February 2023 transcripts he would advise the parties on how he will deal with any additional material received. Other than making orders on 10 March 2023 (not accounting for our emails 1-8 March 2023) we have been left in the dark. The orders made 9 December 2022 and 10 March 2023 are exactly the same, save for the dates.
With the utmost respect, it appears being a self-represented litigate has led to the complete denial of procedural fairness. In my respectful opinion, I believe the documents over the period October 2022 to date show a clear bias in favour of Carrol & O'Dea Lawyers and the respondents. It is extremely distressing to say the least. I reserve our rights on this issue.
Authority
I have recently located an authority that appears to align with one of the issues raised by Your Honour in this matter on 28 October and 11 November 2022, the litigation guardian and my power of attorney issue. The authority is relied upon;
Smilevska v Smilevska [2015] NSWSC 1794
We have not received any legal advice on the case law above. Moreover, we do not waiver our respectful position that we should be afforded the opportunity to put on closing submissions.
Hearing 17 March 2023 - Requested Orders
Currently there is a hearing set down for tomorrow. Your Honour has medical evidence before him recording the medical recommendation I not to appear. The ongoing emails and non-replied has without question contributed to increased stress and anxiety/ mental health risks. Plainly Mr. Doyle is under legal incapacity and cannot speak for himself.
Unless Your Honour is minded setting aside the bankruptcy notice to avoid further complications and ongoings costs, we ask Your Honour to make the orders similar to the below tomorrow;
1. The applicant file and serve any closing written submissions and list of authorities in support of his adjournment application by 21 April 2023.
2. The respondents file and serve any reply closing written submissions by 28 April 2023.
3. Judgment on the applicant’s application to adjourn is listed for judgment at 9:30am on 5 May 2023.
4. In the event that the application for an adjournment is refused, judgment on the application to set aside Bankruptcy Notice BN 256377 is reserved.
5. If the application to adjourn is refused, the applicant file and serve any closing written submissions and list of authorities in support of his application to set aside Bankruptcy Notice BN 256377 by 22 May 2023.
6. If the application to adjourn is refused, the respondents file and serve any reply written submissions in support of his application to set aside Bankruptcy Notice BN 256377 by 29 May 2023.
7. Judgment on the application to set aside Bankruptcy Notice BN 256377 The matter is listed for judgment at 9:30 am on 9 June 2023.
8. The time for compliance by the applicant with the requirements of the Bankruptcy Notice BN 256377 issued on 1 June 2022 be extended up to and including 5:00 pm on 9 June 2023.
9. Costs be reserved.
We believe the orders proposed over the period 1 March 2023 to date would be procedurally fair and reasonable having regard for the evidence before Your Honour.
Having directed my Associate not to respond to the emails Mr Barbeliuk has sent after the hearing of 28 February 2023, at 3:01 pm on 16 March 2023 my Associate, at my direction, sent to the parties the following email:
The below email has been brought to the attention of Judge Manousaridis.
The matter will remain listed for judgment at 9:30 am on 17 March 2023.
His Honour will in his reasons for judgment refer to the emails Mr Barbeliuk sent to his Honour’s Associates after the hearing of 28 February 2023.
To join the listing at 9:30 am on 17 March 2023 please telephone . . . .
I will address Mr Barbeliuk’s emails later in these reasons.
PRELIMINARY QUESTION
As I have already noted, at the directions hearing of 28 October 2022 I raised the question whether Mr Doyle needed to proceed by a litigation guardian. The question of a litigation guardian was intended to be a reference to the requirements of r 11.08(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (GFL Rules), which provides:
A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by the person’s litigation guardian.

A “person who needs a litigation guardian” is defined in r 11.07(1) of the GFL Rules, which provides:
For the purposes of these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
I need to address, therefore, whether there is material before me that engages, or which may engage, r 11.07(1) of the GFL Rules. I begin with the principles stated by the Full Court of the Federal Court of Australia in L v Human Rights and Equal Opportunity Commission:[24]
The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).
[24] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, at [27] (Black CJ, Moore, and Finkelstein JJ)
In his counsel’s written submissions dated 7 December 2022, Mr Lewis submitted that the Quan referral was not sufficient to show that r 11.07(1) of the GFL Rules applies to Mr Doyle. Mr Barbeliuk does not dispute this. In his affidavit of 3 December 2022 Mr Barbeliuk said: “We accept the 15 November 2022 medical certificate is not sufficient to say Mr. Doyle needs a litigation guardian, nor do we rely on it for that purpose”.[25]
[25] Affidavit M Barbeliuk 03.12.2022, [58]
In his affidavit made on 27 February 2023, however, Mr Barbeliuk deposes to matters and annexes documents on the basis of which I understand he intends to submit that Mr Doyle requires a litigation guardian. First, Mr Barbeliuk deposes to a conversation to the following effect he says he had with Mr McDonald, a principal of the firm O’Neil McDonald Lawyers Pty Ltd, on 21 December 2022 (errors and bold in original):[26]
[26] Affidavit M Barbeliuk 27.02.2023, page 8 [56]
Mark [Barbeliuk]
Mr Hall ever explained the litigation guardian issue to us. Now I understand it, Mr. Doyle clearing needs a litigation guardian. His memory is poor and he gets confused easily. He doesn’t no hold the capacity to understand the various proceedings before him never lone instruct on legal matters.
Mr. McDonald
This issue needs to be resolver urgently. You need to get medical evidence and we need an application to appoint a /litigation ASAP so the matters can progress.
Mark
I'll attend to it as soon as possible.
Mark
There has been a huge miscarriage of justice in these matters. Mr Hall was completely incompetent in the civil hearings. He failed to lead evidence and refused to follow instructions. He also refused to pursue appeals instructed on.
Mr. McDonald
They are serious accusations do you have evidence of this.
Mark
Absolutely, I collated it for you. We want to appeal the civil judgements.
Second, Mr Barbeliuk relies on a letter prepared by Dr Quan dated 12 January 2023 (Quan report):[27]
On 15 November 2022 I wrote a medical certificate for Mr. Doyle. I outlined his medical conditions and status at the time and proposed my recommendations in relation to court related matters.
I reviewed Mr. Doyle again. I was provided a copy of Federal Circuit and Family Court Of Australia (Division 2) (General Federal Law) Rules 2021 (F2021 l01220) - Rule I 1.07, concerning person who needs a litigant guardian.
The link I was provided is;
. . . .
I feel it is suitable for Mr. Doyle to require a litigation guardian. I do not have enough information about Mr. Doyle's medical conditions and cognitive deterioration from Justice Health but it is likely he required a litigant guardian during the years following his imprisonment in 2012.
[27] Affidavit M Barbeliuk 27.02.2023, [61]; annexure “G”
Mr Barbeliuk says that on 19 January 2023 he sent an email to Justice Health to obtain a completed medical release from Justice Health “for the purpose of the litigation guardian application”.[28]
[28] Affidavit M Barbeliuk 27.02.2023, [62]
Third, in his affidavit made on 27 February 2023 Mr Barbeliuk refers to the possibility of a Mr Stuart Green acting as a litigation guardian. According to Mr Barbeliuk, Mr Green and Mr Barbeliuk met with Mr Fernon SC on 9 February 2023 in an effort “to resolve the litigation guardian issue”.[29] On 13 February 2023, however, Mr Green sent to Mr Barbeliuk an email stating that he needed “a little time to consider the litigation guardian”, noting that he was “not saying no to the role at this stage”, as he would like to support Mr Doyle; but he needed “to consider it in full before committing”.[30]
[29] Affidavit M Barbeliuk 27.02.2023, [84]
[30] Affidavit M Barbeliuk 27.02.2023, [88]; annexure “O”
I am not satisfied that this material, considered alone or together with the procedural history of the matter I have set out above, is reasonably capable of supporting a finding that Mr Doyle does not understand the nature and possible consequences of this proceeding, which he initiated, to set aside the Bankruptcy Notice; or that Mr Doyle is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding; and, for that reason, requires a litigation guardian.
(a)The Quan referral does not express an opinion that Mr Doyle does not understand the nature and possible consequences of this proceeding he initiated to set aside the Bankruptcy Notice; or that he is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding. On the contrary, it appears Mr Doyle communicated to Dr Quan the stressors Dr Quan identified in the Quan referral, which in turn suggests that, at the time he communicated the stressors, Mr Doyle did understand that he was involved in this proceeding, and that he understood its nature and requirements.
(b)The Quan report does not appear to have been prepared on the basis of any examination of Mr Doyle; and Dr Quan in any event does not express any opinion to the effect that Mr Doyle does not understand the nature and possible consequences of this proceeding to set aside the Bankruptcy Notice; or that Mr Doyle is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding. Dr Quan goes no further than expressing an opinion that it is “likely” that Mr Doyle would require a litigation guardian. That opinion, however, carries no weight. Dr Quan himself says he needs to review medical information from Justice Health to be in a position to assess Mr Doyle’s “medical conditions and cognitive deterioration”.
(c)Mr Barbeliuk’s statements to the effect that Mr Doyle requires a litigation guardian carry no weight, because Mr Barbeliuk is not qualified to make such statements.
I have considered the judgment of Slattery J in Smilevska v Smilevska to which Mr Barbeliuk referred in the email he sent to my Associate at 1:21 pm on 16 March 2023. In Smilevska Slattery J held that a party who does not have the legal capacity to conduct litigation must conduct litigation by a tutor, even though the party may have granted an enduring power of attorney. As should be apparent from what I said to Mr Barbeliuk at the directions hearing on 28 October 2022, I have proceeded on the assumption that if Mr Doyle does not have the capacity to conduct this proceeding, he must conduct the proceeding through a litigation guardian.
adjournment application
Whether an adjournment of a hearing should be granted is a matter for the discretion of the Court; the overriding consideration is the interests of justice. Although the circumstances that may be relevant to granting an adjournment may vary from case to case, there are usually three factors that must be considered. The first is why the party seeking the adjournment is not in a position to proceed on the day the matter had been set down for hearing. The second is whether there would be any utility in granting the adjournment. The third is whether the party resisting the application for an adjournment will suffer prejudice if an adjournment is granted, and the extent to which such prejudice can be compensated by an order for costs.
Reason for inability to proceed
The evidence which Mr Barbeliuk submits explains Mr Doyle’s failure to be in a position to proceed with the hearing on 28 February 2022 is contained in the affidavits Mr Barbeliuk made on 3 December 2022 and 27 February 2023. I do not propose to set out the details of that evidence. Its effect is that Mr Doyle terminated Mr Hall’s retainer; Mr Doyle has been seeking to secure alternative legal representation, and he succeeded for a short time in obtaining legal representation, but on 8 February 2023 Mr Barbeliuk decided not to proceed with that representation;[31] and, because of physical and mental health issues, neither Mr Doyle nor Mr Barbeliuk is in a position to proceed with the hearing.
[31] Affidavit M Barbeliuk 27.02.2023, [81]; annexure “M”
This evidence does not provide adequate grounds for Mr Doyle not being in a position to proceed with the hearing on 28 February 2023. The proceeding was initiated by Mr Doyle on 3 July 2022; the hearing of the application to set aside the Bankruptcy Notice on 3 November 2023 was vacated, and again set down for hearing, this time on 9 December 2022; the hearing of the application to set aside the Bankruptcy Notice proceeded on 9 December 2022 but, on 15 December 2022, on the basis that Mr Doyle had secured legal representation, I vacated the date on which I was to give judgment, and I again set the matter down for hearing, this time on 28 February 2023. The evidence does not explain, or at least satisfactorily explain why:
(a)Mr Barbeliuk was only able to secure the appearance of a barrister on 15 December 2022, in circumstances where on 28 October 2022 I had set down the hearing of the application to set aside the Bankruptcy Notice on 9 December 2022;
(b)the barrister Mr Barbeliuk had retained to appear on 15 December 2022 knew next to nothing about the proceeding; or
(c)assuming Mr Barbeliuk believes Mr Doyle requires a litigation guardian, Mr Barbeliuk has taken no steps to secure a medical examination of Mr Doyle with a view to obtaining a proper opinion on whether Doyle does not understand the nature and possible consequences of this proceeding to set aside the Bankruptcy Notice, or that he is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding.
Further, it is not apparent that Mr Barbeliuk’s suffering from the medical conditions Mr Lewer identifies in his letter dated 23 February 2022 has impaired Mr Barbeliuk’s capacity to assist Mr Doyle in this proceeding.[32] Mr Barbeliuk had prepared two substantial affidavits for the purpose of this proceeding, he has appeared on a number of directions hearings, he has sent a number of detailed emails to my Associate; and it appears he has prepared the “Notice of Appeal” to which I refer later. These actions show that Mr Barbeliuk has the capacity to take what he considers to be the appropriate steps to protect Mr Doyle’s interests in the proceeding, including appearing by telephone at the hearing on 28 February 2023
[32] Mr Lewer’s letter is annexure “P” to Mr Barbeliuk’s affidavit of 27 February 2023.
In any event, my not being satisfied that Mr Doyle has not given an adequate explanation for failing to proceed on 28 February 2023 would carry little weight, if I were satisfied there would be some utility in granting the adjournment.
Utility in granting adjournment?
I have already noted that at the hearing on 9 December 2022 I asked Mr Barbeliuk whether he believed Mr Doyle had any grounds to set aside the Bankruptcy Notice. Mr Barbeliuk said “we intend to appeal the judgment. We believe the judgment is wrong”;[33] and Mr Barbeliuk asserted, without providing any detail, that Mr Doyle had not been properly represented at the trial before Davies J.[34] It appears from Mr Barbeliuk’s affidavit of 27 February 2023, however, that the purpose for which Mr Doyle seeks an adjournment is to await the determination of an application for leave to appeal that Mr Doyle has filed with the Court of Appeal of the Supreme Court of New South Wales (Court of Appeal). That is apparent from Mr Barbeliuk’s having annexed to that affidavit a “Notice of Appeal” that was filed with the Court of Appeal on 24 February 2023.
[33] 09.12.2022 T18.45
[34] 09.12.2022 T19.5-T19.35
Whether Mr Doyle’s filing of the Notice of Appeal against the Judgment or the Costs is relevant to adjourning the hearing of the application to set aside a Bankruptcy Notice must be determined by reference to the grounds on which Mr Doyle relies to set aside the Bankruptcy Notice. The Notice of Appeal is relevant to ground 5, which claims that, for the reasons stated in the particulars to that ground, the Judgement and Costs do not reflect a true judgment. In other words, ground 5, in effect, claims that this Court, sitting as a court of bankruptcy, should go behind the Judgment and consider for itself whether there is in truth a debt.
It is doubtful that an applicant, who seeks to set aside a bankruptcy notice on the ground that the judgment referred to in the bankruptcy notice is not based on a true debt, can seek an adjournment pending the determination of an appeal to set aside that judgment. The reason for this doubt is that s 41(6A)(a) of the Act provides for this set of circumstances. That paragraph provides:
Where, before the expiration of the time fixed for compliance with a bankruptcy notice:
(a)proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
. . . .
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
Subsection 41(6C) of the Act provides:
Where:
(a)a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and
(b) the Court is of the opinion that the proceedings to set aside the judgment or order
(i) have not been instituted bona fide; or
(ii) are not being prosecuted with due diligence;
the Court shall not extend the time for compliance with the bankruptcy notice.
Mr Doyle did not apply to set aside the Bankruptcy Notice on the ground that, within the time by which he was required to comply with the Bankruptcy Notice, he had applied to set aside the Judgment or the Costs. It would therefore not be open to Mr Doyle to rely on the prospect of the Judgment and Costs being set aside on appeal as a ground for adjourning the hearing of his application to set aside the Bankruptcy Notice on the ground that the Judgment and Costs are not in truth debts.
I will assume, however, that it is open to Mr Doyle to rely on his having filed the Notice of Appeal as a ground for adjourning the hearing of the application to set aside the Bankruptcy Notice. That Mr Doyle has done so, however, does not mean an adjournment should be granted. It is necessary to assess the apparent merits of the appeal. If the appeal has no apparent merits, there would be no utility in adjourning the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice pending determination of the appeal because the appeal would be bound to fail.
Apparent merits of appeal
I have used the word “appeal”, but Mr Doyle does not have a right to appeal from the Judgment and Costs. The Judgment was pronounced on 18 February 2022. By the combined operation of r 51.8 and r 51.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Mr Doyle was required to file a notice of appeal within three months after the date on which the Judgment was pronounced, provided that, within 28 days after that date, Mr Doyle had filed a notice of intention to appeal. There is no evidence Mr Doyle has complied with these requirements. The Notice of Appeal was filed on 24 February 2023, some nine months after the day on which Mr Doyle was required to file his notice of appeal. Mr Doyle, therefore, will be able to appeal against the Judgment and Costs only if the Court of Appeal makes an order under r 51.16(2) of the UCPR.
The Notice of Appeal contains two main sections. The first section, which appears under the heading “Details of Appeal” (DA), contains alleged facts that are intended to explain Mr Doyle’s delay in filing an appeal against the Judgment and Costs, and to support the grounds of appeal that are stated in the second section of the Notice of Appeal. The allegations made in the DA may be summarised as follows:
(a)Mr Doyle had retained legal representation during the “original criminal proceedings” and in “various civil proceedings”.[35]
[35] DA, [3]-[9]
(b)In 2011 Mr Doyle was arraigned on various charges alleging sexual assault against five male complainants said to have been employed by Mr Doyle.[36]
[36] DA, [11]
(c)In a trial before Judge North and a jury, the jury was unable to reach a verdict; but in a subsequent trial before Judge Woods QC Mr Doyle was convicted of all 38 counts. Mr Doyle was sentenced to an overall term of 7 years imprisonment.[37]
[37] DA, [12]-14]
(d)In about May 2012 Mr Doyle and Mr Barbeliuk “terminated criminal legal representations retainer, alleging incompetence of counsel”.[38]
[38] DA, [16]
(e)Mr Doyle appealed against his conviction, the appeal being heard on 11 July 2013. Contrary to Mr Barbeliuk’s instructions, Mr Doyle’s lawyers (UWE) did not run the “incompetency of counsel” ground, and Mr Doyle’s appeal against conviction was dismissed.[39]
[39] DA, [17]-[25]
(f)From 2015 Mr Barbeliuk began experiencing adverse mental health deterioration.[40]
[40] DA, [27]
(g)From 2017-2018 onwards Mr Doyle, while imprisoned, suffered a rapid and sustained decline in mental and physical health, and memory loss. Mr Doyle was diagnosed with dementia.[41] From around 2016 and 2017 Mr Doyle was under legal incapacity, and had no ability to understand, comprehend, or instruct on legal matters.[42]
[41] DA, [31]
[42] DA, [32]
(h)UWE “were acutely aware” Mr Doyle “was under legal incapacity in real time and as the deterioration evolved/worsened from around 2016 onward”.[43]
[43] DA, [33]
(i)In August 2018 Carol O’Dea Lawyers commenced separate civil proceedings against Mr Doyle on behalf of Mr Miles and Mr Lewis.[44]
[44] DA, [39]-[43]
(j)In late 2019 Mr Barbeliuk terminated UWE’s retainer, and then retained Mr Accoto, a director of Acorp Legal Pty Ltd.[45] His services were terminated in “October 2022” (sic).[46]
[45] DA, [45]
[46] DA, [47]
(k)In late 2019, at Mr Accoto’s direction, Mr Barbeliuk retained Mr Hall. Both Mr Hall and Mr Accoto provided legal services in a number of civil matters, including in the SCNSW proceeding and in the proceeding to set aside the Bankruptcy Notice. At no time did Mr Hall or Mr Accoto provide legal advice that Mr Doyle’s “deterioration and cumulative medical conditions while in prison gave rise to the necessity of making an application for a litigation guardian (or Tutor) to act and instructed on his behalf”.[47]
[47] DA, [49], [50]
(l)In about September 2020, while Mr Doyle was under legal incapacity, Mr Doyle was coerced into pleading guilty in relation to other charges. Mr Doyle was consequently convicted and sentenced to an aggregate sentence of imprisonment for 6 years and 6 months, with a non-parole period of 4 years.[48]
[48] DA, [52]-[54]
(m)In May 2022 Mr Doyle was declared bankrupt.[49]
[49] DA, [62]
(n)Before the hearing in the SC Proceeding had commenced, Mr Hall “execute[d] and or neglected to” do the following:[50]
a)Co-ordinated a conclave with the Plaintiffs medical expert Dr. Baker, and Dr Apler at his sole direction;
b)Neglected to provide a draft and or take instructions a true copy of the instructions provided to Dr. Baker, and Dr Apler for a conclave and;
c)Neglected to provide a true copy of a joint report from Dr Baker and Dr Apler dated 1March 2021 relied upon at trail.
d)Neglected to disclose expert accounting reports the plaintiff relied upon at trial for damages, prepared by Mr. Mark Thompson (Mr. Thompson) from Vincent's Chartered Accountants provided (two expert reports).
e)Neglected to offer advice and or executing adducing Mr. Thompsons reports by way of responsive expert evidence.
f)Neglected to settle lay responsive evidence that was plainly called to enable a proper hearing.
g)All of the above in circumstances they were in possession of ample evidence rendering it plainly obvious the appellant would suffer great prejudice at trial by the actions and or absent thereof.
[50] DA, [65]

I will stop at this point of my summary of the assertions made in the DA, because most of the remaining allegations are scandalous and bereft of particulars and evidence.
The second section of the Notice to Appeal is headed “Appeal Grounds”, under which the following appear (errors in original):
1        Ground 1;
“Incompetence of counsel”. Understanding is not by itself a ground of appeal in a civil case, this ground feeds into the question of whether there has been a “miscarriage of justice”. In this case, plainly the threshold is exceeded.
2         Ground 2:
“'Incompetence/lack of capacity of the litigant, leading to the denial of a proper hearing”. The plain lack of capacity, absence of any litigation guardian advice, and absence of a litigation guardian (tutor) being appointed, couple with the collective grounds of appeal, has plainly led to the denial of proper hearings has occurred.
3        Ground 3:
Notwithstanding grounds 1 and 2, there are a number of jurisdictional issues with (1) how these proceedings were conducted and (2) how the trial was conducted. To be further articulated in submissions.
4         Ground 4:
The trail judge erred in not giving adequate or sufficient reasons and or making sufficient enquiries into the appellant’s plain legal incapacity, the absence of any competent or legally qualified person (tutor) to instruct Mr. Hall, with no attempt to remedy the obvious prejudice the defendant suffered in the manner the trial was conducted.
5         Ground 5:
The trail judge erred in not providing adequate or sufficient reasons and or failed to make adequate or sufficient enquires, into the facts and circumstances surrounding the appellants bankruptcy declaration verified in May 2022 and proceeded with the trial with a bankrupt litigant.
6         Ground 6:
The trial judged error in determining the defendant’s alleged actions were the causation invoking the plaintiff's loss and damages awarded.
7        Ground 7:
Notwithstanding grounds 1-6, the trail judge erred in awarding damages that were manifestly excessive.
The Notice of Appeal has no apparent merits, and Mr Doyle, therefore, has no prospects of obtaining leave to file the Notice of Appeal. The assertions made in the DA are general and unparticularised; in some cases scandalous; and they are in any event not supported by evidence. Further, the grounds stated in the “Appeal grounds” section of the Notice of Appeal lack particularity.
(a)Ground 1 alleges “incompetence of counsel”, but it does not identify the conduct which it is alleged constitutes incompetence; in which proceeding the conduct occurred; and the connection between the conduct said to be incompetent and the Judgement and the Costs.
(b)Ground 2 asserts lack of capacity, but there are no particulars on the basis of which it is said Mr Doyle lacked capacity; the facts and matters it is alleged manifest Mr Doyle lack of capacity; the respects in which it is alleged Mr Doyle was denied a proper hearing; and how the incapacity resulted in Mr Doyle being denied a proper hearing.
(c)Ground 3 does not identify the conduct that will be the subject of the further submissions the ground foreshadows, or the jurisdictional issues to which such conduct is said to be relevant, or what the nature of the jurisdictional issues is.
(d)Ground 4 does not identify the respects in which Mr Doyle is said to have suffered from any incapacity, or what if anything ought to have led Davies J to make inquiries about such alleged incapacity, or ought to have led Davies J to make any inquiry about the potential need for Mr Doyle to act through a tutor.
(e)As to ground 5, it is the case that on 11 May 2021 Mr Doyle was made bankrupt on the presentation of a debtor’s petition. That, however, could not have had an effect on Mr Lewis’ causes of action for unliquidated damages for assault. Under s 82(2) of the Act “demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust, are not provable in bankruptcy”. In any event, ground 5 does not articulate the reasons why Davies J ought to have been aware that Mr Doyle was a bankrupt, or why that fact ought to have been the subject of enquiry by Davies J, or the nature of the enquiry Davies J ought to have undertaken.
(f)Ground 6 does not state the ground on which it is said Davies J erred in determining that Mr Doyle’s alleged actions caused Mr Lewis’ loss and damage on the basis of which Davies J awarded the Judgment.
(g)Ground 7 does not articulate the grounds on which it is said the award of damages was manifestly excessive.
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.
For these reasons, ground 5 fails.
other matters
There are four other matters it is appropriate to address.
Assumption Mr Doyle requires a litigation guardian
The first relates to my finding that I am not satisfied that r 11.07(1) of the GFL is engaged in relation to Mr Doyle. Let it be assumed, however, that r 11.07(1) of the GFL Rules is engaged; that is, there is evidence that supports a finding that Mr Doyle does not understand the nature and possible consequences of this proceeding to set aside the Bankruptcy Notice, or that he is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding.
On this assumption, Mr Doyle would have had no capacity to commence this proceeding. This would not have rendered the proceeding a nullity, because it would have been open to rectify this defect by the Court appointing a litigation guardian.[53] No application, however, has been made for the appointment of a litigation guardian for Mr Doyle; and there is no evidence that suggests there is any person who would be willing to consent to being appointed Mr Doyle’s litigation guardian. In those circumstances, given that Mr Barbeliuk has been on notice since at least 28 October 2022 of the possible need for the appointment of a litigation guardian, I would have had the discretion to dismiss the proceeding as being incompetent. It would also have been open to me to dismiss the proceeding to prevent an abuse of this Court’s process. It would have been intolerable for Mr Doyle to have commenced the proceeding to set aside the Bankruptcy Notice while incompetent, and yet rely on his incompetence as a basis for continuing to adjourn the hearing of his application to set aside the Bankruptcy Notice and, on that basis, continue to obtain orders extending the time for compliance with its requirements. Another possible response to Mr Doyle’s (assumed) incompetence may have been to stay the proceeding and make no further order extending the time for compliance with the Bankruptcy Notice.
[53] See Mao v AMP Superannuation Ltd [2015] NSWCA 252, at [59]
There would be an additional difficulty for Mr Doyle if I were to have found that Mr Doyle does not understand the nature and possible consequences of this proceeding to set aside the Bankruptcy Notice, or that he is not capable of adequately conducting, or giving adequate instructions for the conduct of, the proceeding. I also would have had to find that Mr Doyle lacks capacity to apply for leave to appeal against the Judgment, other than through a tutor; and Mr Doyle’s having purported to file the Notice of Appeal without a tutor would have meant that I would have had to regard his application to the Court of Appeal as having no legal effect until such time as Mr Doyle had a tutor. That would have constituted an additional reason for dismissing this proceeding as an abuse of process, or staying the proceeding, because Mr Doyle would have been unable to rely on his having filed Notice of Appeal as a ground for obtaining an adjournment of this proceeding or for setting aside the Bankruptcy Notice.
Even if, therefore, I were satisfied that Mr Doyle is incompetent, given the history of this proceeding, I would have concluded that it would be an abuse of the process of this Court to permit the proceeding to remain on foot; and I would have dismissed the proceeding to prevent this Court’s processes from being abused.
Mr Barbeliuk’s appearing for Mr Doyle
The second matter I wish to address relates to Mr Doyle’s not having appeared in person at any of the hearings, and my having granted leave to Mr Barbeliuk to appear for Mr Doyle.
Mr Doyle commenced this proceeding through his solicitor, Mr Hall; and Mr Hall appeared at a number of directions hearings. Mr Hall did so until 28 October 2022 when, after Mr Hall had given notice of his intention to withdraw as Mr Doyle’s lawyer, I granted Mr Barbeliuk leave to represent Mr Doyle on that and at later hearings. I did so on the basis that Mr Doyle had granted Mr Barbeliuk an enduring power of attorney. Mr Barbeliuk has deposed in his affidavit of 3 December 2022 that he has held a power of attorney granted by Mr Doyle since 2012; and he has annexed to his affidavit what he says is the most recent power of attorney, which is dated 21 July 2021.[54] I am satisfied from the material before me, including the enduring power of attorney dated 21 July 2021 which appears to have been signed by Mr Doyle in the presence of a solicitor, that Mr Doyle granted an enduring power of attorney to Mr Barbeliuk; and that Mr Barbeliuk has appeared on Mr Doyle’s behalf with the knowledge and approval of Mr Doyle.
[54] Affidavit M Barbeliuk 03.12.2022, [4]; annexure “A”
Mr Barbeliuk’s emails
The third matter I wish to address are the emails Mr Barbeliuk sent to my Associate after I reserved my judgment on 28 February 2023. There are a number of matters to note.
(a)First, Mr Barbeliuk had no right or other justification to ask for confirmation about the evidence that was read at the hearing on 28 February 2023. Mr Barbeliuk had the opportunity to appear at the hearing on 28 February 2023 to seek leave to represent Mr Doyle, but, for reasons I do not accept, Mr Barbeliuk did not appear at the hearing.
(b)Second, there is no basis for the unparticularised claim Mr Barbeliuk makes in the email he sent to my Associate at 9:49 am on 28 February 2023 that “communications recorded in this matter reveals, with respect, a clear bias in favour of the respondents”; and there is equally no basis for the unparticularised claim Mr Barbeliuk makes in the email he sent to my Associate at 9:37 am on 8 March 2023 that “independent review of the materials over the period October 2022 to date has, in all probability, conclude [sic] a bias in favour of the respondents . . . has occurred”.
(c)Third, Mr Barbeliuk had no right or other justification to request procedural orders by email after the hearing of 28 February 2023. Mr Barbeliuk had an opportunity from 15 December 2022, when I set down Mr Doyle’s application to set aside the bankruptcy Notice for hearing on 28 February 2023 (being the third occasion on which I had set down for hearing Mr Doyle’s application) to ask for procedural and other orders. Mr Barbeliuk has misunderstood comments I made at the hearing of 28 February 2023 as inviting the parties to make further submissions after I had reserved my judgment. Although loosely expressed, my comments were directed to my having to deal with the possibility of Mr Barbeliuk making an application, after I reserved my judgment, and without my permission, in relation to the matters that were the subject of the hearing on 28 February 2023 at which neither Mr Doyle nor Mr Barbeliuk appeared.
In any event, I have considered each of the emails Mr Barbeliuk sent after the hearing of 28 February 2023.
(a)As to the email Mr Barbeliuk sent at 5:00 pm on 2 March 2023:
(i)Mr Barbeliuk has gained access to the transcript of the hearing of 28 February 2023, and should therefore be aware of the evidence that was read at that hearing.
(ii)Mr Barbeliuk seeks time to put on further submissions in support of an application for an adjournment. Mr Barbeliuk, however, does not say whether the material he seeks to file is in addition to the material I considered at the hearing on 28 February 2023.
(b)As to the email Mr Barbeliuk sent at 9:37 am on 8 March 2023:
(i)Mr Barbeliuk, assuming he were granted leave to do so, had an opportunity before the hearing of 28 February 2023 to apply for the procedural orders he purportedly seeks in this email. In any event, Mr Barbeliuk has not identified the purpose for which he would cross-examine the persons identified in this email, or the purposes for which Mr Doyle would issue the subpoenas referred to in the email.
(ii)I have considered in my reasons for judgment the material relating to the appointment of a tutor or litigation guardian to which Mr Barbeliuk refers in his email.
(iii)Mr Barbeliuk repeats his request that I adjourn the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice, but he has not identified any material beyond the material I have already considered when determining whether to adjourn that hearing.
(c)As to the email Mr Barbeliuk sent at 1:21 pm on 16 March 2023:
(i)I have referred above to the judgment of Slattery J in Smilevska v Smilevska.[55]
(ii)Mr Barbeliuk repeats his request that I adjourn the hearing of Mr Doyle’s application to set aside the Bankruptcy Notice, but he has not identified any material beyond the material I have already considered when determining whether to adjourn that hearing.
[55] Smilevska v Smilevska [2015] NSWSC 1794
Dismissal for non-appearance?
The fourth matter I wish to address relates to my hearing the application for an adjournment and the substantive application in circumstances where there was no appearance by or on behalf of Mr Doyle.
Rule 13.06 of the GFL Rules set out the powers that are available to the Court when a party is absent from a hearing:
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.

At the hearing on 28 February 2023 it was open to me to proceed in the manner provided for by r 13.06(1)(e) of the GFL Rules. I decided to proceed in that way, even though Mr Bailey indicated he intended to apply for an order for dismissal; and even though, if I were to make adverse orders against Mr Doyle, it would be open to Mr Doyle to apply under r 17.05(2)(a) of the GFL Rules to set aside my orders. I considered it preferable to proceed with the hearing, first, because Mr Lewis was in a position to proceed on the merits of the applications; and second, because if Mr Doyle were to apply under r 17.05(2)(a) of the GFL Rules to set aside any adverse orders I were to make against him, I would in any event be required to consider and determine on that application most of the issues that I would be required to consider if I were to proceed with the hearing on 28 February 2023.
disposition
I will dismiss Mr Doyle’s application for an adjournment of the hearing of his application to set aside the Bankruptcy Notice; and I will dismiss his application to set aside the Bankruptcy Notice. I am satisfied that costs should follow the event. I will therefore also order that Mr Doyle pay Mr Lewis’ costs.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 17 March 2023

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 Lewis v Doyle [2022] NSWSC 92 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Smilevska v Smilevska [2015] NSWSC 1794 Wren v Mahony [1972] HCA 5 Ziman v McKellar [2018] FCCA 3401
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

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