Fleet v R.S.P.C.A.

[2004] FMCA 755

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLEET v R.S.P.C.A. [2004] FMCA 755

BANKRUPTCY – Application to set aside bankruptcy notice – applicant alleging fraud in obtaining the judgment debt and a set off or cross claim – no substance to the applicant’s claims – application dismissed.

Prevention of Cruelty to Animals Act1979 (NSW)

Fleet v District Court of New South Wales and Ors [1999] NSWCA 363

Applicant: ROBERT FLEET

Respondent: ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY
TO ANIMALS

File No: SYG3000 of 2004

Delivered on: 26 October 2004

Delivered at: Sydney

Hearing date: 26 October 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms S Nash
Sally Nash & Co

ORDERS

1. The application is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3000 of 2004

ROBERT FLEET

Applicant

And

ROYAL SOCIETY FOR THE PREVENTION OF
CRUELTY TO ANIMALS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a disputed bankruptcy notice.  Mr Fleet seeks to set aside the bankruptcy notice on two possible bases.  The first is the assertion that the judgment supporting the bankruptcy notice was obtained by fraud and is subject to further proceedings in the New South Wales Supreme Court seeking equitable relief.  The second is, as I understand it, that Mr Fleet has a claim against the RSPCA which exceeds the judgment debt obtained against him.

2. Mr Fleet's application to set aside the bankruptcy notice is supported by an affidavit.  Receipt of that affidavit was opposed by the respondent creditor.  I agreed to receive it not as evidence of the truth of the assertions made in it but as written submissions only.  I did receive annexure A to the affidavit as evidence that a proceeding has been instituted in the Supreme Court of New South Wales by Mr Fleet against the RSPCA and others, although the grounds of the statement of claim are not apparent from the single page of the amended statement of claim forming annexure A.

3. I also received annexure B to the affidavit as evidence of orders made in the New South Wales Court of Appeal.  That document was verified by a full copy of the judgment of the New South Wales Court of Appeal in Fleet v District Court of New South Wales and Ors [1999] NSWCA 363. I have satisfied myself that the orders set out in annexure B to Mr Fleet's affidavit are the orders that were made by the New South Wales Court of Appeal in those proceedings on 8 October 1999.

4. Mr Fleet places emphasis on the fact that the New South Wales Court of Appeal found fault with a charge of failing to provide a name and address to a person vested with authority under the relevant state legislation. It is plain from a reading of the judgment of the New South Wales Court of Appeal that he was successful in obtaining a stay of further proceedings in respect of the charge and conviction under s.27A of the Prevention of Cruelty to Animals Act1979 (NSW). However, it is also apparent from the judgment that the Court of Appeal remitted other matters to the District Court for re-hearing and expressly left open the issue of costs for the hearing of the charge relating to s.27A for further determination.

5. The judgments supporting the bankruptcy notice followed the judgment of the New South Wales Court of Appeal and appear to have been a consequence of the re-hearing ordered by the Court of Appeal.  Mr Fleet is apparently in further proceedings instituted in the New South Wales Supreme Court seeking to continue to agitate the issues dealt with in the New South Wales Court of Appeal in 1999. 

6. I am satisfied that the issues addressed by Mr Fleet in his oral submissions to me today are all issues that, if they were not finally resolved by the New South Wales Court of Appeal judgment, could have been dealt with, and may well have been dealt with in fact, in the subsequent proceedings in the District Court.

7. I find that there is nothing in the current proceedings being agitated by Mr Fleet that could not have been raised in the proceedings leading to the judgment debts.  There is insufficient evidence before me to persuade me that the proceedings Mr Fleet is currently pursuing in the New South Wales Supreme Court could be said to constitute an appeal against the judgments of the District Court supporting the bankruptcy notice.

8. In the circumstances, I am not persuaded that a proper basis has been advanced for the Court to set aside the bankruptcy notice or to grant further time for compliance with it.  It is apparent from the judgment of the New South Wales Court of Appeal that a costs order was made in Mr Fleet's favour against the RSPCA and Louise Parker.  Mr Fleet tells me that the costs order has only partially been complied with.  However, Mr Fleet was a litigant in person and apart from the recovery of disbursements it is not apparent to me that there would be any basis for Mr Fleet to recover any professional legal costs. 

9. If there are any further costs to be recovered I would very much doubt that they would exceed the judgment debts relied upon by the RSPCA. If there is an amount owing to Mr Fleet arising from that costs order that would either be an issue of solvency to be considered on a creditor's petition or a chose in action which would as property vest in a trustee in bankruptcy if Mr Fleet is ultimately found to be insolvent.

10. There is no basis upon which I should set aside the bankruptcy notice before me.

11. In the circumstances, I dismiss the application to set the bankruptcy notice aside with costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  3 November 2004