FLINT v RICHARD BUSUTTIL & CO PTY LTD and RICHARD BUSUTTIL & CO PTY LTD v FLINT

[2012] FMCA 1158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FLINT v RICHARD BUSUTTIL & CO PTY LTD and
RICHARD BUSUTTIL & CO PTY LTD v FLINT [2012] FMCA 1158

BANKRUPTCY – Review of Registrar’s order regarding bankruptcy notice – effect of costs assessment and registration under Legal Profession Act2004 (NSW) – claims concerning alleged counter-claim, set off or cross demand in excess of judgment debt – similar claims having already been raised in appeal proceedings in District Local Courts – allegations of abuse of process – allegations of “corporate debtor” not raised in earlier proceedings – principles in relation to whether a court should ‘go behind’ earlier judgments – power to amend retrospectively the life of creditor’s petition.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(1), 41(2), 41(3), 41(5), 41(6A), 41(7), 52(2) & (5), 309
Evidence Act1995 (Cth), s.186
Federal Magistrates Act1999 (Cth), s.104(2) & (3)
Legal Profession Act 2004 (NSW) ss.368(5), 369, 372, 373, 377

Federal Court Rules2011, rule 39.05
Federal Magistrates Court Rules 2001, rule 16.05

Adams v Lambert (2006) 228 CLR 409
Blair v Curran (1939) 62 CLR 464
Boumelhem v Commonwealth Bank of Australia (2008) 171 FCR 462
Burrell v The Queen (2008) 238 CLR 218
Corney v Brien (1951) 84 CLR 343
DJL v The Central Authority (2000) 201 CLR 226
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581
Re Ikin; Ex parte Ikin (1985) 4 FCR 582
Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
Guss v Johnstone (2000) 171 ALR 598
Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71
Lewis v Lamru Pty Ltd; In the matter of Lewis [2011] FCA 758
Massih v Esber (2008) 250 ALR 648
Olivieri v Stafford (1989) 24 FCR 413
O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518
Pattinson v Hadjimouratis (2006) 155 FCR 226
Port of Melbourne Authority Pty Ltd v Anshun (1981) 147 CLR 589
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372
Thoday v Thoday [1964] P 181

Totev v Sfar (2008) 167 FCR 193
Williams v Spautz (1992) 174 CLR 509
Wren v Mahony (1972) 126 CLR 212

Applicant: DENISE CHARLENE FLINT

Respondent: RICHARD BUSUTTIL & CO PTY LTD

File Number: CAG 20 of 2011

Applicant: RICHARD BUSUTTIL & CO PTY LTD

Respondent: DENISE CHARLENE FLINT

File Number: CAG 61 of 2011

Judgment of: Neville FM

Hearing date: 28 September 2012

Date of Last Submission: 28 September 2012

Delivered at: Canberra

Delivered on: 7 December 2012

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant:

Counsel for the Respondent: Mr S Hausfeld

Solicitors for the Respondent: Rod Barnett & Associates

ORDERS

FLINT v RICHARD BUSUTTIL & CO PTY LTD

CAG 20 of 2011

1. The Application for review, filed 10 November 2011, be dismissed.

2. The Applicant is to pay the Respondent’s costs, either as agreed or taxed.

RICHARD BUSUTTIL & CO PTY LTD v FLINT
CAG 61 of 2011

1. Pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth) the creditor’s petition, filed on 24 November 2011, shall be extended, and subject to further order of the Court, shall expire not before 23 November 2013.

2. The Court requests the Registry of the Court to list the creditor’s petition before a Registrar of the Court at the earliest possible time.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAG 20 of 2011

DENISE CHARLENE FLINT

Applicant

And

RICHARD BUSUTTIL & CO PTY LTD

Respondent

CAG 61 of 2011

RICHARD BUSUTTIL & CO PTY LTD

Applicant

And

DENISE CHARLENE FLINT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to review a Registrar’s orders made on 19^th October 2011.  On that date, the Registrar ordered that: (a) the application filed on 27^th April 2011 to set aside Bankruptcy Notice 1479/2011 is dismissed; (b) the Applicant is to pay the Respondent’s costs of the Application.

2. Ms Flint challenges the Registrar’s decision pursuant to an Application for Review, filed on 10^th November 2011.  In somewhat voluminous detail (set out below), she seeks to have the Registrar’s decision overturned, the bankruptcy notice set aside, and an order for costs.

3. Review of a Registrar’s decision is pursuant to s.104(2) of the Federal Magistrates Act1999 (Cth) (“the FMC Act”), and Division 20.2 of the Federal Magistrates Court Rules2001. Section 104(3) of that Act invests the Court with wide power to make such orders as the Court deems fit. Rule 20.03 provides, among other things, for such a review to be a hearing de novo, and that the Court may, with leave being granted, receive further evidence.

4. Further, the nature and conduct of a hearing de novo, as well as consideration of the amplitude of the Court’s power under s.104(3) of the FMC Act, are detailed in Totev v Sfar (2008) 167 FCR 193 at [9] – [15] (Emmett J); O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518 (Kiefel, Sundberg & Gyles JJ); and Pattinson v Hadjimouratis (2006) 155 FCR 226 at [3] – [20] (Nicholson J) and at [39] ff (Jacobson J).  Although said in the context of an appeal regarding a review of the making of a sequestration order, Jacobson J said, at [43]: “… the Federal Magistrates Court commences afresh without in any way being fettered by the decision of the Registrar.  The review is a complete re-hearing in the exercise of the original jurisdiction of the Federal Magistrates Court.  It is for the party seeking the sequestration order to satisfy the federal magistrate that all of the necessary conditions have been satisfied to warrant the making of a sequestration order ….”

5. Applying those basic principles in relation to a hearing de novo, here in relation to a review of the Registrar’s orders concerning a bankruptcy notice, it is important on the facts of this matter to attend to its history.  Indeed, as is not uncommon, there is a significant history that supports – in a manner of speaking - the current litigation. 

6. After dealing with the litigious history, and the consideration of Ms Flint’s grounds of review (notwithstanding that her “grounds of review” are also, in large measure, her submissions also, but supplemented by other submissions filed on 4^th July 2012), for the reasons that follow, her application for review must be dismissed with costs either agreed or taxed.

7. A creditor’s petition has already been filed (matter no. CAG 61 of 2011), but it has languished somewhat, for reasons explained later.  It should be dealt with by the Registrar at the earliest opportunity.

Litigious History

1. Perhaps somewhat curiously, in my view it is important to record the number of legal representatives retained by Ms Flint in the course of the litigation since 2007.  I do so only so as to put into immediate context her persistent claim for time to be granted to her so that she may attend to retaining lawyers to assist her in relation to what-ever stage her litigation has reached – including the current review of the Registrar’s orders. 

2. On its face, the request by a litigant to retain counsel and or solicitors is a relatively straight-forward affair.  Such an application for time for such a thing to occur is reasonably readily granted.  Unfortunately, the file indicates that there has been, on a significant number of occasions, more than ample opportunity for Ms Flint to retain legal representation.  Even more unfortunately, there appears to be a significant history where the solicitors retained have soon after their retention filed a notice of withdrawal because they have been unable to secure instructions.  As noted below, the most recent such occurrence was in June of this year.

3. The litigation that gives rise to the current proceeding dates back to 2007, when Ms Flint took action against former clients of hers by which she sought to recover unpaid commission pursuant to the sale of certain property.[1]  She retained the legal services of the current Respondent to prosecute that action.  To speak somewhat generally, there emerged a dispute between Ms Flint and those legal advisers.

   [1] Much of what follows is taken from the affidavit of Mr R Busuttil, sworn 17^th May 2011, filed in these proceedings.  The copious annexures to this affidavit support the bulk of the history narrated here.  This is so notwithstanding Ms Flint’s contrary version of some of the events, detailed in her affidavits, sworn 6^th and 9^th June 2011, and 23^rd September 2011 respectively, also filed in these proceedings.

4. By letter dated 23^rd July 2007, the Respondent wrote to Ms Flint (annexure B to Mr Busuttil’s affidavit filed 18^th May 2011; “the Busuttil affidavit”) confirming, among other things, that firm’s inability to secure adequate instructions from her and their intention to withdraw from acting for her.  An account for services rendered was enclosed with that letter.  The Respondent commenced proceedings in relation to that unpaid account in the Local Court, Small Claims Division, at Narooma, in October 2007 for the sum of $6178.80 (including interest) (case no.16 of 2007).  A copy of the statement of claim so filed is annexure D to the Busuttil affidavit.

5. In a Defence filed in those proceedings, Ms Flint denied that the Respondent had done the work for which professional fees were claimed, further denied that the work had been done in accordance with her instructions or in accordance with the costs agreement entered into by the parties, and finally, she pleaded that the Respondent had conducted her case in relation to the unpaid commission negligently and “in breech [sic] of the cost agreement.”  A copy of that Defence is annexure E to the Busuttil affidavit.

6. An Amended Statement of Claim was filed by the Respondent in March 2008, which amended the amount claimed to $5,232.62.  That document is annexure F to the Busuttil affidavit.

7. Annexure G to the same affidavit is the Applicant’s ‘Statement of Cross-Claim’.  As pleaded, the Applicant stated in that cross-claim: “I the Defendant, have suffered loss and damage because I have not recovered funds, which are owed by this person, which was caused by the Plaintiff’s negligence and delays.  Further details are to be advised.”  The cross-claim is dated 9^th November 2007.[2]  In addition to denying formally the claims of negligence raised by Ms Flint, the Respondent notes, at par.17 of the Busuttil affidavit, that this is “the same claim now raised by paragraph 5 of the Applicant’s affidavit [in support of the current application to review the Registrar’s judgment and order of 19^th October 2011].”

   [2] In passing, I note that the affidavit verifying the cross-claim is witnessed by a “Charles Flint”, who states that he is a “JP (NSW).”  Mr Flint is the Applicant’s Father.  Mr Flint’s capacity as a JP is formally put in issue by the Respondent’s solicitors following inquiries having been made of and searches having been conducted by the Attorney-General’s Department of NSW.  In correspondence from that Department that forms part of Mr Barnett’s Supplementary Submissions, filed on 22^nd July 2011, it says that there are no records of such a person ever having been made a “JP.” Accordingly, so the submission goes, any material relied upon by the Applicant and which is witnessed by the said Mr Flint should be rejected as not complying with s.186 of the Evidence Act 1995. I deal with this submission later in these reasons.

8. The matter between the current parties was heard in the Local Court by Magistrate Rabbidge on 12^th February 2009.  On 1^st May 2009, his Honour ruled that there was no evidence to found any claim in negligence on the part of the Respondent.[3]  His Honour entered judgment in favour of the Respondent.  The reasons of his Honour are annexure H to the Busuttil affidavit.  His Honour also found that the work done by the Respondent was fair and reasonable as were the charges sought against the Applicant.  This judgment is referred to by the Registrar in his reasons as “the first judgment.”

   [3] I note that although the matter was filed in the Local Court in Narooma, his Honour’s reasons for judgment were delivered under the heading “Local Court New South Wales, Bateman’s Bay” and under the file no. 145/08.  In my view, nothing turns on the change in locality; it is more than common for matters in various courts to be heard in one place and judgment delivered in another.

9. Ms Flint appealed that decision to the District Court of NSW in May 2009.  A copy of the Notice of Appeal is at annexure I of the said affidavit.

10. By consent, that appeal was ‘withdrawn and dismissed’ and a further order for costs was made in favour of the Respondent against Ms Flint.  A copy of that order of the District Court is annexure J to the Busuttil affidavit.

11. Upon that costs order being made, and the parties being unable to agree on costs, the Respondent referred the account for costs to the Manager Costs Assessment of the Supreme Court of NSW.  A copy of the relevant correspondence in this regard is annexure K to the Busuttil affidavit.

12. Following that process, a certificate of assessment issued together with a certificate of costs in favour of the Respondent.  Annexures L, M and N to the Busuttil affidavit are, respectively, copies of the Cost Assessor’s Reasons for Decision, the Certificate of Determination of Costs, and the Certificate of Determination of Costs of Costs Assessment (dated 31^st March 2010).[4] The latter confirms that the parties were to share equally in the costs of the cost assessment, being payment each of $771.88. The Respondent paid the [whole of the] sum ordered in relation to the costs of the costs assessment (including GST) in the sum of $1443.75 (see annexure O). Thereupon, the Applicant’s share of the costs so ordered, but otherwise paid by the Respondent, was added to the claim against her by the Respondent. There was no review sought by either party of the costs assessment pursuant to s.372 of the Legal Profession Act 2004 (NSW). Nor was any appeal lodged in relation to the costs assessment.

    [4] It should be observed that the reasons of the costs assessor readily disclose that Ms Flint, and Mr Busuttil on behalf of the Respondent, participated in the costs assessment, including the filing of written submissions.  In relation to the latter, under the heading “Costs of the assessment”, the Costs Assessor said: “On 8 January 2010 the Costs Respondent [Ms Flint] sought an extension of time to provide objections to the bill.  Her lengthy reply was received by me on 23 February 2010.  As stated above, I consider that virtually the whole of the 63 pages submitted to me was irrelevant to the cost application.”  See Annexure L to the Busuttil affidavit.

13. On 10^th May 2010, the Local Court in Narooma registered a judgment in favour of the Respondent against Ms Flint in the sum of $3746.88, including interest.  The Registrar refers to this in his reasons as “the second judgment.”  According to a letter from Mr Busuttil to Ms Flint dated 30^th June 2010 (annexure P to the Busuttil affidavit), that sum related to the judgment made at the Narooma Local Court on 6^th May 2010 (inclusive of interest and costs) “for costs as per costs assessment dated 31^st March 2010.”  I take the reference in Mr Busuttil’s letter to “6^th May” to be in error and that it should have referred to the judgment registered on 10^th May.

14. On 30^th June 2010, the Respondent wrote to Ms Flint to demand formally the amount outstanding to it – by this stage an amount in the sum of $10,874.07 – insisting that payment be made in 7 days, failing which enforcement proceedings would be commenced.  A copy of that letter is annexure P.  That correspondence was sent via email and by post to Ms Flint.  Mr Busuttil deposed to having had no response to that letter of demand.

15. In August 2010, the judgment obtained by the Respondent against the Applicant was registered in the ACT Magistrates Court (matter no. 07 of 2010). Following that registration, a copy of the judgment for matter no. 07 of 2010 was sent to Ms Flint under cover of a letter from the Respondent together with a copy of a Certificate of registration of enforceable order (No. CAR 106 of 2010), dated 11^th August 2010.  Mr Busuttil deposes to never having received any reply to that letter.

16. Finally, for the sake of completeness, I note that Ms Flint sought to appeal or otherwise to have set aside the judgment entered in favour of the Respondent on 10^th May 2010 in the sum of $3746.88, and to have the matter transferred from Narooma to the Local Court in Queanbeyan.  Unfortunately for Ms Flint, her application was dismissed with a further order that she pay costs in the sum of $555.50.  A copy of her application, and the judgment, is annexure F to the submissions of Mr Barnett, filed on behalf of the Respondent on 12^th July 2012.

[Annotated] Procedural History in this Court

1. Before dealing with the Applicant’s grounds of review, it is as well to note the various attempts of Ms Flint to secure legal representation and to do so in the context of the Court’s procedural orders, which speak for themselves.  What follows of course post-dates the legal contest with her former legal representatives that give rise to the bankruptcy proceedings per se and which are the principal matters before this Court.

2. The original application to set aside the bankruptcy notice was filed on behalf of Ms Flint on 27^th April 2011.  It was filed by a well-known and experienced firm of solicitors in Canberra.

3. On that date, a Registrar of the Court in Sydney extended the time to comply with the bankruptcy notice up to and including 24^th May 2011.

4. On 19^th May, Ms Flint’s solicitors filed a notice of intention to withdraw.  On 24^th May, Ms Flint filed a notice of appearance on her own behalf.  Also on that date, the Registrar in Canberra made orders setting a time-table for the filing of affidavit material, as well as extending the time for compliance with the bankruptcy notice up until 27^th June.  The notice of withdrawal of Ms Flint’s lawyers was filed on 27^th May.

5. In her affidavit filed on 8^th June 2011, Ms Flint deposed (par.20) that her cross-claim “in excess of $200,000 still has not been heard, but is currently being prepared for Court.”  Ms Flint does not explain the import of her cross-claim filed in the Local Court proceedings in Narooma having been the subject of specific comment by Magistrate Rabbidge, to which I have earlier referred, where his Honour found that there was no evidence of negligence on the part of the Respondent in the conduct of the matter on behalf of Ms Flint.  Nor does Ms Flint explain or refer to what time-frame she has in mind in stating that it “is currently being prepared for Court.”  Further, which court Ms Flint has in mind to take the action alleged or promised has never been identified.

6. On 24^th June 2011, Ms Flint filed a further affidavit (including annexures, of 77 pages).  It traverses background to the judgments entered against her in the NSW District Court as well as in the various costs orders (including the costs assessment in the NSW Supreme Court).  And again, Ms Flint unfortunately seeks to address issues that relate to her [alleged] claim of professional negligence against Mr Busuttil.  This is so notwithstanding that those matters were the subject of the reasons for judgment of Magistrate Rabbidge, and in relation to which the appeal from his Honour’s decision was withdrawn, by consent, in the District Court of NSW.

7. It is convenient here also to note – and I do so without undue criticism of Ms Flint being a self-represented litigant – that her protests about ‘the second judgment’, being the registration in the Local Court at Narooma of the costs assessment order and it not having been served on her, have no foundation. The legal reality is that by virtue of a certificate, issued by the Supreme Court pursuant to a costs assessor’s determination, and by virtue of the operation of s.368(5) of the LPA, upon its registration ex parte, it becomes a judgment and is not open to contest or cross-claim by the debtor.[5]  Accordingly, Ms Flint’s regular protests about that judgment have no foundation.

   [5] See Massih v Esber (2008) 250 ALR 648 at [38] ff.

1. On 27^th June 2011, the Registrar (in Canberra) made further orders for Ms Flint to file, by 11^th July, further [limited] written submissions that dealt with the specific matters outlined in those orders, as well as for the Respondent to file submissions in reply by 25^th July.  The Registrar also ordered that the time for compliance with the bankruptcy notice be extended to 31^st August, and that no further evidence could be filed in relation to Ms Flint’s alleged counter-claim, set-off or cross demand.  The matter was then adjourned until 31^st August 2011.

2. The Respondent filed supplementary submissions on 22^nd July.

3. On 29^th July, the Registrar made further orders extending the time for compliance with the bankruptcy notice to 26^th September; he adjourned the matter until that date.

4. Ms Flint filed a further affidavit on 23^rd September.  In this affidavit Ms Flint stated that she was ‘responding to the orders’ of the Registrar made on 10^th July.  Her comments in that affidavit, to the degree that the Court should have regard to what amounts to a ‘running commentary’ on orders of the Court, repeat matters addressed earlier, at least in so far as Ms Flint protests about the formalities of the process and the detail of (a) the registration of the judgment in relation to the costs assessment certificate, and (b) in relation to the allegation involving the flawed qualifications of the witness to her documents – Mr Flint.

5. I have addressed the issue of the judgment in relation to the costs assessment earlier in these reasons by reference to s.368(5) of the LPA and the decision of Flick J in Massih v Esber. 

6. In relation to the issue of the unqualified witness, Ms Flint asserts that the Attorney-General’s Department advised her, through advice received from the Crown Solicitor, that the rules for appointment of a JP had recently changed from life to terms of five years.  It is further alleged that the Department had advised Mr Flint that the documents had been legally executed under the “Colour of Office Syndrome.”  Whereas Mr Barnett annexed copies of correspondence from the Department, which confirmed his account of searches by the Department that Mr Flint had in fact never been so appointed, unfortunately Ms Flint provides no such evidence.  Moreover, it would be an almost bizarre circumstance that documents filed in Court continue to have been witnessed by someone who merely thought they had been appointed a JP when in fact the evidence before the Court is to the effect that there had never been such an appointment.

7. Finally, in relation to the commentary in her affidavit of 23^rd September, Ms Flint advances – but not for the first time – what she says are additional reasons why the bankruptcy notice is defective and should be set aside.  Those reasons all relate to her inability to determine accurately the amount due under the notice because of what she says are defects in relation to the calculation of interest on the judgments obtained against her. 

8. In short, I do not accept her contentions about the calculation of interest. Subject to matters of evidence discussed later in these reasons, I note that in the Registrar’s reasons beginning at [26], and on the basis of the extensive authorities there discussed (which I accept), in sum, the defects alleged by Ms Flint were either “formal” within the terms and meaning of s.306 of the Act, and or that there was no risk or possibility of Ms Flint being misled by the bankruptcy notice (or the amount claimed) because for each of the relevant events that gave rise to the liability now sought to be enforced, she was present following which judgments were entered (e.g. the contested hearing before Magistrate Rabbidge; the formal assessment of costs before the costs assessor).  In this regard, I adopt respectfully the comments of Foster J in Lewis v Lamru Pty Ltd; In the matter of Lewis,[6] particularly at [28] – [42], where his Honour dealt with a situation not dissimilar to the present case where there were claims of misdescription of the judgment, as well as overstatement of the amount claimed.  For the reasons that his Honour gave in that case, the claims or submissions to similar effect by Ms Flint in this case have no foundation.

   [6] Lewis v Lamru Pty Ltd; In the matter of Lewis [2011] FCA 758.

9. Further, as the case law makes plain, beginning with, for example, Re Ikin,[7] substantial compliance in relation to bankruptcy notices, is sufficient under the Act.

   [7] Re Ikin; Ex parte Ikin (1985) 4 FCR 582.

10. On 26^th September 2011, the Registrar further extended the time for compliance with the bankruptcy notice to 26^th October.

11. On 19^th October, the Registrar delivered reasons and made orders dismissing Ms Flint’s application to set aside the bankruptcy notice, together with an order for costs against her.

12. On 7^th November 2011, an affidavit of search was filed by the Respondent’s lawyers that attested to there having been no application to set aside the bankruptcy notice.

13. On 10^th November, Ms Flint filed an application to review the Registrar’s decision.[8]  No objection was taken by the Respondent that it was filed somewhat out of time.[9]  The first return date for the application before this Court was 7^th May.  As it happened, that date was brought forward to 20^th February on the Court’s own motion.  On that occasion, Counsel appeared for both parties, and a timetable was fixed for the filing of material in preparation for a hearing of the application, which was fixed for 8^th May 2012.

    [8] The time for such review is prescribed by Rule 2.03 of this Court’s Bankruptcy Rules, being 21 days.

    [9] See the Respondent’s Submissions, filed 12^th July 2012, par.4.

14. On 20^th February 2012, a Notice of Appearance was filed on behalf of Ms Flint by solicitors based in Sydney.[10]

    [10] In correspondence with the Court, Ms Flint forwarded a hand-written note from her doctor, which confirmed that he was treating her for post traumatic stress disorder following a car accident that took place in June 2010.

15. In correspondence with the Court, Ms Flint’s Sydney lawyers advised that her Father died in March 2012 following which she suffered depression.  In such circumstances, the matter was adjourned until 13^th June.

16. On 31^st May and 5^th June, the Court received further correspondence from Ms Flint’s [Sydney] solicitors in which they confirmed (a) that they had been unable to obtain instructions from her, and (b) their intention to withdraw from acting for her.

17. On 13^th June Ms Flint appeared on her own behalf.  Counsel appeared on behalf of the Respondent.  On that occasion Ms Flint sought a further adjournment so as to enable her to instruct other solicitors in Sydney, who she identified by name.  It is sufficient to note that they are prominently known lawyers.[11]  Thus far, there has been no appearance on behalf of Ms Flint by the lawyers she named in open court.

    [11] At the directions hearing/mention on 13^th June, Ms Flint provided a further medical certificate which stated that she was suffering from a “pathological grief reaction from the unexpected death of her Father.”  The certificate said that she would be unfit to attend Court until 13^th August 2012.

18. On 4^th July, Ms Flint filed further submissions.  Leaving aside that it did not comply with the Rules of this Court in relation to matters of form, it dealt with (a) her cost agreement with the Respondent, (b) the second judgment pursuant to the registration of the costs assessment under the LPA, and (c) Ms Flint’s attempt to set aside the second judgment, but which had been dismissed with an order for costs.  Notwithstanding having already commented on them earlier in these reasons, I note that, for example, in relation to the costs agreement, the action brought by Ms Flint against the Respondent was the subject of a contested hearing in the Local Court, which resulted in orders in the Respondent’s favour, and a withdrawn appeal in the District Court, also with an order for costs against Ms Flint.  And in relation to the two other matters raised by Ms Flint, there was never any review pursued by her (as permitted under the LPA), nor any appeal in relation to those matters.  Those matters having been dealt with, and now quite some time ago, and with no new evidence being adduced, there is no basis for continuing to re-visit matters that have been earlier and finally determined.

19. Due to a range of correspondence from Ms Flint, which unfortunately and despite many directions that she do so, was not copied to the Respondent’s solicitors, for more abundant caution the matter was re-listed for further directions on 29^th August.  This was also to consider whether the matter might more expeditiously be dealt with solely by written submissions.

20. On 29^th August, Ms Flint appeared in person, as did Counsel for the Respondent.  A yet further timetable was ordered for the filing of any further affidavit and limited submissions.  It was proposed that both the review application and the creditor’s petition be dealt with in Chambers on the basis of written submissions.

21. On 28^th September, which was outside the period prescribed or permitted for the filing of the submissions ordered on 29^th August, Ms Flint filed further submissions.  She confirmed, and it was apparent in their form and content, that they had been prepared by a lawyer.  Helpfully, Ms Flint identified the counsel who had assisted her in the preparation of these submissions, and no less helpfully attached a photograph of the Counsel in question.  With no disrespect to Counsel, this is not a practice to be encouraged.  I hasten to add that I do not suggest that Counsel knew of, still less promoted, the circulation of his photograph and brief outline of his areas of practice.

22. The 28^th September submissions addressed both the review of the Registrar’s decision in matter CAG 20 of 2011, and in relation to the creditor’s petition in matter CAG 61 of 2011.  In relation to the latter, Ms Flint seeks additional time “within which to properly instruct a legal adviser.”  She contends that her earlier – unfortunately unspecified – appearances were made in ignorance.  I leave such matters and the overall matter of the petition to be dealt with by the Registrar in due course.  However, I simply observe that on my reading of the material, and my involvement in the matter, more than ample time has been afforded Ms Flint to secure legal representation.  And unfortunately, on more than one occasion when that has occurred, and as I have recorded more than once, her legal representation has withdrawn.

23. The only substantive matter addressed in these most recent submissions with respect to the bankruptcy notice relates to the second judgment pursuant to the registration provisions of the LPA, and its force and effect for the purpose of it providing a base for the bankruptcy notice. It is contended that the amount specified under the costs assessment and its registration is defective under s.41(5) of the Bankruptcy Act (“the Act”).  I do not agree for the following reasons.

Grounds of Review

1. Formally, the first matter to address is whether Ms Flint relies upon each of the eleven (11) grounds set out in her Application for Review, filed on 10^th November 2011, or whether her submissions most recently filed on 28^th September 2012 represent the totality of the grounds of her application to review the Registrar’s decision and orders of 19^th October 2011.  If the latter be the case, then she has formally abandoned her earlier grounds of review.

2. Although, in my view, there is a strong argument that the most recent submissions set out the only grounds of review now pressed, for more abundant caution I will consider the other matters set out in her original application.  I do so also notwithstanding that many if not most of the grounds claimed have already been the subject of much comment already in these reasons.  I will deal primarily with the grounds and submissions in the Application proper.  To the degree necessary, given what has already been or is otherwise addressed in these reasons, and because of the overlap between the grounds of review,  I consider the remaining matters in the most recently filed submissions more by way of comment while dealing with the original submissions.

Cross claim, set off or cross-demand

1. Not for the first time, Ms Flint raises the alleged counter-claim against the Respondent in relation to the alleged negligent performance of legal services for her.  I have stated already that (a) this claim has been dealt with – adversely to Ms Flint - by way of a contested hearing in the Local Court at Narooma, (b) the judgment in favour of the Respondent was the subject of an appeal to the District Court of NSW, and (c) this appeal was withdrawn by consent and an adverse costs order against Ms Flint was made.  Ms Flint has stated on a number of occasions that the cross-claim in relation to the alleged professional negligence of the Respondent was/is being prepared for court.  There is no evidence of any such preparation, or when it might see the light of day.  In any event, it cannot succeed because the issue has already been the subject of determination.

2. Moreover, although Ms Flint argues in various places in her expansive material that she has not yet actually argued the professional negligence claim against the Respondent, and notwithstanding that Magistrate Rabbidge made significant comment that he could see no grounds upon which such a claim could succeed, and that the Respondent’s charges in all the circumstances were fair and reasonable, there are a number of significant legal impediments to her possible success in relation to such a claim.

3. First, it is strongly arguable that either the principle of res judicata or “cause of action estoppel” as stated by Lord Diplock in Thoday v Thoday applies to the current matter.[12]  Such a principle “prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the parties.  … If it was determined not to exist, the unsuccessful plaintiff [Ms Flint] can no longer assert that it does; [she] is estopped per rem judicatem.”

   [12] Thoday v Thoday [1964] P 181 at pp.197-198.

4. Alternatively, as the Registrar pointed out, it is also arguable that Ms Flint’s cross-claim is impeded by operation of issue estoppel.  That estoppel was described by Dixon J in Blair v Curran in the following terms:[13] “A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”

   [13] Blair v Curran (1939) 62 CLR 464 at p.531.

5. In addition to these matters, in any event, under s.40(1)(g) of the Act (which unfortunately Ms Flint does not directly specify) the Court must weigh up the legal and factual merits of the claim asserted. So much was said specifically by the High Court in Guss v Johnstone.[14]  Weighing them up, in my view, Ms Flint has next to no chance – factually or legally – of her claim against the Respondent in relation to alleged professional negligence succeeding.

   [14] Guss v Johnstone (2000) 171 ALR 598 at [40].

6. Further, in Massih v Esber, Flick J helpfully set out the following discussion, which I gratefully adopt, not least because of its relevance to the facts of this case. After setting out in full s.40(1)(g) and s.41(7) of the Act, his Honour said, at [17] – [19]:

   [17] To “satisfy” the Court it is not necessary for the debtor to prove, as on a final hearing, the asserted entitlement to recover as against the creditor.  That which is to be established is whether the Court is “satisfied” that the debtor “has a claim deserving to be finally determined”: Re Glew; Glew v Harrowell [2003] FCA 373 at [11], 198 ALR 331 at 334. Lindgren J there observed:

   [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters:

   • that they have a “prima facie case”, even if they do not adduce evidence which would be admissible on a final hearing making out that case…

   • that they have “a fair chance of success” or are “fairly entitled to litigate” the claim… and

   • that they are advancing a “genuine” or “bona fide” claim…

   It may be that the first and second formulations are intended to cover the same ground. In [Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135] Lockhart J treated (at ALR 438–9; FLR 141) the reference to a “prima facie case” … as a reference to “a fair chance of success”.

   This was subsequently characterised by His Honour as a “relatively low threshold”: at [64].  The judgment to be made “involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim”: Guss v Johnstone [2000] HCA 26 at [40], 171 ALR 598 at 606 per Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ.

   [18] A debtor cannot “satisfy” the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J.  It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J.  See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139.  Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98.  Nor is a “shadowy” claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.

   [19] The objective of the legislature in providing for a bankruptcy notice to be set aside where a judgment debtor has a “counter-claim, set-off or cross demand” is “to prevent a judgment creditor from pursuing bankruptcy proceedings when, as between himself and the judgment debtor, the balance of account is in favour of the judgment debtor”: In re Judd, Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ. See also: Van Leeuwen v Bank of Western Australia Ltd [2001] FCA 1826 at [14] per French J.

7. On the basis of the principles set out by Flick J in Massih, and on the facts of this case, Ms Flint’s regularly repeated assertion of having a cross-claim against the Respondent cannot be taken to be either legitimate, or have a reasonable prospect of success.  Indeed, and among other things, her assertion that her cross-claim has not yet been run has some difficulty to overcome given that in his judgment, Magistrate Rabbidge referred specifically to this claim on a number of occasions.[15]  In such circumstances, one might ask, not unreasonably, how could a court refer to a claim and make specific comments on its lack of success if it had not, to some relevant degree at least, been canvassed in that court?

   [15] See, for example, pars.11, 12, 13, 14, 15, 28, and 29 of the reasons for judgment of Magistrate Rabbidge, in the matter of Richard Busuttil and Co. Pty Ltd v Denise Flint, delivered 1^st May 2009.

8. In all of the circumstances I cannot be satisfied that her asserted claim is anything more than earnest aspiration.  There is no basis, factually or legally, that Ms Flint has any reasonable prospect of success.  Indeed, in my view, her prospects of success are exceedingly if not alarmingly remote, so much so that were she to prosecute such a claim in the light of the litigious history recounted here I suggest that she would risk putting herself at a very high exposure for another adverse costs order, even on an indemnity basis.  In my view, this ground of her application cannot succeed.

Abuse of Process, Personal Solvency and No Personal Liability

1. Ms Flint’s second ground of review is in the following terms: “That the service of the BN [bankruptcy notice] is an abuse of process because I am not insolvent and I had signed a cost agreement with the Creditor in my Company name and not in my personal name.”

2. Curiously and unfortunately, in the detailed submissions filed on behalf of the Respondent, none of them address this second ground of review raised by Ms Flint.  In any event, I note the following in relation to the matters she has raised.

3. In relation to each of the proceedings litigated between the parties, whether in the Local Court at Narooma, the District Court of NSW, or in any aspect of these bankruptcy proceedings, nowhere has Ms Flint claimed, for example, that any legal entity, other than herself, has been the proper party.  Indeed, on multiple occasions she has sworn affidavits attached to documents filed in various court proceedings in which she has described herself as “the Defendant.”  Presumably she swore those affidavits truthfully.[16]  Never having raised any corporate entity as the proper party in any of the proceedings, Ms Flint cannot now argue that those proceedings should have been conducted in the name of her company.

   [16] See, for example, her affidavit verifying her Defence in matter no.16 of 2007 in the Local Court at Narooma, the affidavit bearing a date 30^th October 2007, in which described herself as “the [first] defendant.”  In the same document, Ms Flint confirmed that the particulars of the [First] Defendant were “Denise Flint.”  There is provision in that document for particulars of an “ACN” to be provided.  No such detail is given.  In the Statement of Cross-Claim dated 9^th November 2007, the details of the First Defendant and the [First] Cross-claimant are given as “Denise Flint”.  The affidavit verifying the details in that pleading confirms that “Denise Flint” is the relevant “cross-claimant.”  Similar descriptions are set out in the Notice of Appeal filed in the District Court by Ms Flint in May 2009, where she also confirms that she – personally – is the appellant.  As recently as June 2011, in her Notice of Motion to Set Aside the ‘Narooma judgment” of Magistrate Rabbidge, Ms Flint describes herself (as opposed to any corporate entity) as the “Self Defendant.”  In her supporting and verifying affidavit, sworn 17^th June 2011, Ms Flint describes herself as “… the Defendant in this matter.”  Finally, nowhere in Magistrate Rabbidge’s reasons is there anything other than reference to Ms Flint as the Defendant, as opposed to any corporate entity, as now claimed by Ms Flint.

4. Ms Flint also contends in this ground of review that the costs agreement signed with the Respondent was in fact signed “in my Company name.”  To repeat: no such contention has ever been raised in any of the documents filed in the antecedent proceedings, or in the current matter.  For the reason already given, she cannot now raise such a claim.  She has had more than ample opportunity to raise such a contention and has never done so.  Indeed, again in the reasons for judgment of Magistrate Rabbidge, beginning at [5] and the following paragraphs, his Honour refers to the costs agreement (which is not in evidence before this Court) and states specifically that [the Respondent] and the defendant signed a costs agreement dated 10^th February 2007.”  With such a clear statement by a court of competent jurisdiction, following a contested hearing, it is not now permissible to argue, as Ms Flint does, that the proper party to that costs agreement, and the proper party to all proceedings, is some corporate entity rather than the Applicant personally.[17]

   [17] Among other things, see also the statements by the High Court in Port of Melbourne Authority Pty Ltd v Anshun (1981) 147 CLR 589 in relation to matters that are sought to be argued at a later time when they should have been argued in earlier proceedings.

5. The reasons just given are sufficient answer also to Ms Flint’s further contention that the service of the bankruptcy notice somehow constitutes an abuse of process.  Ms Flint points to no relevant authority, such as Williams v Spautz, in relation to any particular principle of abuse of process that has been committed (or any process that has been infringed).[18]   Ms Flint further avers that she herself is solvent.  There is no evidence before the Court that this is so.[19]  I simply suggest that the easiest way of confirming her solvency is to pay the sum found to be properly owing by her to the Respondent.

   [18] Williams v Spautz (1992) 174 CLR 509.

   [19] See the discussion in Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372, accepting that the discussion there was in the context of s.52(2) of the Act.

6. The grounds raised by Ms Flint in ground 2 of her Application are without merit.

Evidence of Miscalculation in Bankruptcy Notice

1. In relation to this ground of review, Ms Flint says that she gave evidence “on [sic] July that the sum specified in the notice as the amount due, to the creditor, exceedes [sic] the amount due.”

2. Three matters only need be observed here.  First, earlier in these reasons I recorded the multiple occasions that Ms Flint has challenged both the processes and the results there-from that have resulted in the amount that is now the subject of the bankruptcy notice.  Apart from the registration of the costs certificate under the LPA, Ms Flint has been party to and has participated in each of those processes.  On each and every occasion, she has had orders adverse to her made, including orders for costs.  Indeed, in relation to the costs certificate from the NSW Supreme Court, she never challenged or otherwise sought review of the award there made.  Thus, procedurally, she has had ample opportunity to challenge both the processes and the results of the orders made against her, which form the background to and the basis of the sum sought against her.

3. Secondly, in supplementary submissions filed on 22^nd July on behalf of the Respondent, there is set out detailed explanation for the calculations in the bankruptcy notice.[20]  Although not on affidavit, I accept the detail of the explanation set out in those submissions.  Indeed, in the alternative, the Respondent notes that there is in fact an understatement in relation to the interest calculations in the bankruptcy notice, rather than an overstatement, as alleged by Ms Flint.

   [20] See para.18 of the Respondent’s Supplementary Submissions.  I have noted earlier my respectful adoption of Foster J’s comments in Lewis v Lamru Pty Ltd, which provide further grounds for rejecting this, and most other of Ms Flint’s grounds for review.

4. Thirdly, on the basis of the principles and analysis set out by the High Court in Adams v Lambert, I am satisfied that, to the degree that there is any defect in the bankruptcy notice in relation to the calculation of interest (which I should not be taken to accept), in my view, it readily comes within those principles regarding what constitutes a formal defect that can be remedied by the operation of s.306 of the Act.[21]  I readily accept, of course, the High Court’s caution, at [22], that such matters invariably are matters of ‘kind and degree’, and at [31], that the “practical significance of an error or deficiency could vary according to the circumstances of each particular case.  Errors or deficiencies in compliance with requirements as to form may involve questions of degree as well as of kind.”  In the same place, the Court noted also, relying on the earlier decision of Kleinwort Benson Australia Ltd v Crowl,[22] that s.41(5) “made it clear that an overstatement, even a large overstatement, would not necessarily invalidate the notice.”

   [21] Adams v Lambert (2005) 228 CLR 409.

   [22] Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71.

5. In short, in accordance with the principles set out in Adams v Lambert, on the facts and circumstances in this matter, I do not see that Ms Flint has any relevant ground for complaint in relation to the detail in the bankruptcy notice.  Using the language of the High Court in Adams, at [27], I do not see that any error claimed by her “could reasonably mislead the debtor as to what is necessary to comply with the notice…” For the reasons already set out, in my view, no ‘substantial injustice’ is perpetrated on Ms Flint by the terms, or the form, of the bankruptcy notice. Further, to the degree that there is any error in relation to the calculation of interest as asserted by Ms Flint, it is, in my view, a formal defect and comes within the purview of s.306 of the Act.

6. Moreover, because grounds 4, 5, 8 and 10 of her Application deal with essentially the same or similar matters (all of which have been raised previously and commented on earlier in these reasons), the reasons just given should be taken to reject the contentions there asserted. The defects alleged by Ms Flint, even if established (which I should not be taken to accept), in my view, are formal and also come within the provenance of s.306 of the Act.[23]  Indeed, it is apposite to set out in some detail the High Court’s comments in Adams v Lambert, at [31]:[24]

   Section 306, in its application to bankruptcy notices, makes it plain that some instances of non-compliance with the requirements as to the form of a notice will not invalidate the notice.  The practical significance of an error or deficiency could vary according to the circumstances of each particular case. Errors or deficiencies in compliance with requirements as to form may involve questions of degree as well as of kind.  At the same time, the decision in Kleinwort Benson Australia Ltd v Crowl shows that an error may be covered by s 306 even though it involves a substantial misstatement of an amount of money.  It was essential that the bankruptcy notice state the amount claimed. Was it essential that the amount be correct?  Section 41(5) made it clear that an overstatement, even a large overstatement, would not necessarily invalidate the notice.  This Court concluded that it was not the legislative purpose that a substantial understatement should necessarily invalidate the notice.  That is to say, accurately stating the amount of interest owing was not a matter of such importance that error necessarily resulted in invalidity.  In the present case, overstatement or understatement of the amount of post-judgment interest owing would not necessarily have invalidated the notice.

   [23] I also accept the Respondent’s Supplementary Submissions, at para.5 ff with respect to the two costs certificates for the reasons there set out.  I also accept the Supplementary Submissions, at para.16 and following with respect to whether the District Court appeal judgment should have been annexed to the bankruptcy notice.

   [24] See also the comments by the Court in Adams at [32] – [34]. I note too the discussion by the Court in relation to s.306 of the Act beginning at [16] ff.

7. It is unnecessary to consider ground 6 because it simply states Ms Flint’s preferred conclusionary order namely, that “the judgment should be set aside.”  This appears to be the summation of grounds 4 and 5 in her Application in relation to the “second judgment.”

Certificates of Judgment: Final Orders?

1. In ground 7 of her Application Ms Flint contends that the two certificates of judgment that were attached to the bankruptcy notice “are not final orders issued by the court as required by the Bankruptcy Act s.40(1)(g) when read with s.41(1)(a)(i).”[25]

   [25] I have amended/corrected slightly the references to the relevant sections.

2. The two certificates of judgment attached to the bankruptcy notice are, on their face, copies of judgments duly entered in (a) matter no. 16 of 2007 in the Local Court at Narooma (which bears the seal of that Court and the signature of the Registrar), dated 12^th July 2010, and (b) matter no.7 of 2010 in the Local Court at Narooma (which bears the seal of that Court and is dated as being registered on 10^th May 2010).

3. From what has been set out at length earlier in these reasons, the first judgment in the 2007 proceeding was appealed to the District Court and ultimately withdrawn.  The 2010 judgment arose out of a costs assessment, also set out in detail earlier in these reasons.

4. To put it most beneficially to her, Ms Flint suggests that the certificates have been prepared by the Respondent (or rather by Mr Busuttil) and are inaccurate, therefore they cannot be relied upon.

5. The reality is that in all the circumstances outlined here regarding the certificates, it is not permissible for Ms Flint to challenge the entry of the two sets of orders by the Local Court at Narooma.  As already noted, on their face, the orders have been regularly made.  And as such, it is not permissible to challenge them.[26]  Certainly no evidence, other than the insinuation against Mr Busuttil’s drafting, is presented.  As well, the earlier reasons in relation to quantification of interest apply here.  This ground has no merit.

   [26] For discussion and clear statement of principle confirming that once judgment is entered the judicial role of the court is at an end, and the only recourse is to appeal to a higher court, see DJL v The Central Authority (2000) 201 CLR 226 and Burrell v The Queen (2008) 238 CLR 218. In those cases, the High Court also made plain the importance of ensuring that litigation is brought to an end and that “controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances.” Here in Burrell, at [15], the plurality of Gummow A-CJ, Hayne, Heydon, Crennan & Kiefel JJ, was citing from the earlier decision of D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at p.17 [34].

6. In my view, in relation to the submissions of Ms Flint set out at paras.5 – 14, filed out of time on 28^th September 2012, which are essentially a complaint in relation to the registration of the ‘costs certificate’ pursuant to the LPA, the reasons already provided are sufficient to dispose of and to reject the arguments there set out.

A “request” to go behind the judgments

1. Here Ms Flint “requests” that the Court ‘go behind’ “these judgments included in the BN [bankruptcy notice] to investigate and order … that they are in breach of the s.41(2) and s.40(1)(g) and [s.]41(1)(b)(i).”

2. In addition to the various reasons provided earlier in this judgment, which have detailed Ms Flint’s unsuccessful attempts either to appeal, or to set them aside, it is sufficient to note the following in answer to Ms Flint’s “request” now to go behind those judgments.

3. First, case law of long-standing makes plain that, particularly in circumstances where, as here, there has been a trial on the merits (as well as a formal process for the assessment of costs in which Ms Flint participated), “the court will not reopen the matter unless a prima-facie case of fraud or collusion or miscarriage of justice is made out.”[27]

   [27] Corney v Brien (1951) 84 CLR 343 at pp. 347-348 (Dixon, Williams, Webb & Kitto JJ), pp.356-357 (Fullager J). See also Wren v Mahony (1972) 126 CLR 212.

4. Secondly, case law also of long-standing confirms that the court should not go behind the judgment where, on the debtor’s case, to do so would leave a substantial sum still due and owing but unpaid.[28]  Such are the circumstances in this case.

   [28] See the Full Court decisions of Olivieri v Stafford (1989) 24 FCR 413, particularly the judgment of Gummow J commencing at p.427; and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (to similar effect as in Olivieri).

5. In the light of the authorities mentioned, there is no evidence provided to the Court by Ms Flint, and nothing other than her bare assertions, that would warrant the Court taking the extreme course she urges to go behind the judgments mentioned.  The Court will not embark on such a course here.  There is simply no evidentiary or legal justification to do so.  Accordingly, this last ground also has no merit.

6. In all of the circumstances, with none of the grounds asserted by Ms Flint established to warrant the Court to overturn, or otherwise to intervene in relation to, the orders of the Registrar of 19^th October 2011, her Application for Review, filed 10^th November 2011, must be dismissed.  The Respondent should also have an order for costs, either as agreed or taxed.

Other Matters

1. The matter, however, does not end here, because (as I have noted) there are related proceedings, CAG 61 of 2011, in which a creditor’s petition was filed on 24^th November 2011.

2. Orders were made in this Court in both sets of proceedings on 29^th August 2012, which provided for the filing of submissions in both the review application and in relation to the creditor’s petition.  In relation to the latter, Ms Flint objected to the petition being dealt with by way of written submissions and in Chambers and sought to have it dealt with in open court.

3. Case law, at least at the level of the Full Court of the Federal Court of Australia, confirms that there is power, under the rules of Court (e.g. Rule 39.05 of the Federal Court Rules2011, and Rule 16.05 of the Federal Magistrates Court Rules 2001) to amend orders, even retrospectively, to extend the life of a creditor’s petition in an appropriate case, and notwithstanding the wording of s.52(5) of the Act.[29]

   [29] See, for example, Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 and Boumelhem v Commonwealth Bank of Australia (2008) 171 FCR 462.

4. In relation to the petition in this case, two things may be noted.  First, orders were made, as I have already indicated, on 29^th August in relation to the filing of submissions.  Learned Counsel for the petitioning creditor did not, nor did Ms Flint, make any application to stay the petition proceedings on that occasion, or to seek an extension of the life of the petition.

5. Secondly, the solicitor for the Respondent in the review proceeding and the Applicant Creditor wrote to the Court on 22^nd October 2012 indicating a concern in relation to the pending expiry of the life of the petition (and of the bankruptcy notice).  He said in the letter that there had been a stay in relation to the petition pending the determination of the review application.  I can find no such order.  Nonetheless, it would certainly appear that he has been proceeding on the presumption that a stay had been so ordered.  In any event, for other reasons, the solicitor for the Respondent suggested that the matter might be re-listed.

6. In the circumstances where (a) the petition was founded upon and continues to rely upon the bankruptcy notice, (b) that bankruptcy notice was the subject of review by the Registrar, (c) the Registrar’s decision was itself the subject of review to this Court, and (d) orders were made on 29^th August 2011, and a letter received from the legal representatives for the petitioning creditor seeking to have the matter re-listed and the same letter expressing concern about the possible expiry of the petition, in my view, the Court should order, pursuant to rule 16.05 of this Court’s rules, and in the light of the authorities mentioned, that the time for the life of the petition should be extended until 23^rd November 2013.

7. If, for any reason (procedural or otherwise) an extension of time is necessary in relation to the bankruptcy notice itself, I would be content, and upon due notification to the Court and to the other party, and subject to the briefest of submissions, to make an order in Chambers to that effect, pursuant to s.41(6A) of the Act. I indicate this possibility simply for the reason that the matter needs to progress to finality – whatever the ultimate orders made - without any further delay.

8. The Court so orders.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Neville FM

Date:  7 December 2012