Issa v Tan Republic Pty Ltd

[2013] FCCA 2068

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISSA v TAN REPUBLIC PTY LTD [2013] FCCA 2068

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – whether bankruptcy notice served in accordance with the Act.

Legislation:  

Bankruptcy Act 1966 (Cth) ss.30, 40, 41
Bankruptcy Regulations1996 (Cth) reg.4.02

Applicant: BILL ISSA

Respondent: TAN REPUBLIC PTY LTD

File Number: SYG 2441 of 2013

Judgment of: Judge Raphael

Hearing date: 20 November 2013

Date of Last Submission: 20 November 2013

Delivered at: Sydney

Delivered on: 20 November 2013

REPRESENTATION

Counsel for the Applicant: Mr J. Johnson

Solicitors for the Applicant: Kazi Portolesi Lawyers

Counsel for the Respondent: Mr R. Freeman

Solicitors for the Respondent: Harbour Side Legal Services

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs to be taxed if not agreed in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2441 of 2013

BILL ISSA

Applicant

And

TAN REPUBLIC PTY LTD

Respondent

REASONS FOR JUDGMENT

1. There comes before the court today an application originally filed on 9 October 2013 seeking declarations and orders to the effect that a document purporting to be a bankruptcy notice issued at the request of the respondent is not a bankruptcy notice as contemplated by the provisions of s.41 of the Bankruptcy Act 1966 (Cth), and that the notice be set aside. As things transpired, the real case that was being made was that the respondent to the application, the creditor in this case, could not establish to my satisfaction that the bankruptcy notice had been served in accordance with the Act and the Regulations, it being a requirement of s.30, s.40(1)(g), s.41 and reg.4.02 of the Bankruptcy Regulations that all the documents referred to in those regulations be served upon a debtor by one of the methods of service provided in the Act and in the Regulations.

2. Mr Issa, the debtor, is in prison.  Service of the bankruptcy notice was effected upon him by an officer in the prison service, Mr Mulholland.  He swore an affidavit on 17 October 2013, although at the commencement of the affidavit it is dated 16 October 2013.  The affidavit of service is in the standard form and annexed to it is a copy of the bankruptcy notice together with a copy of the judgment which is required to be attached to it by the Regulations.  On its face, the affidavit of service is in accordance with the rules and appears to me to establish that service was effected in accordance with the Act and Regulations.

3. However, the debtor seeks to impugn service, not by providing the court with any evidence of his own, but by seeking to utilise some other documents to indicate that I should have doubts as to the truth of Mr Mulholland’s affidavit.  The document that is primarily relied upon is a facsimile advice dated 4 October 2013.  It was sent by Mr Mulholland to the solicitors, and it has a message written in the hand of Mr Mulholland which states as follows:

   “Copies of bankruptcy papers served on Bill Issa.”

   Then there is an asterisk and then:

   “Note:  has copies of all bankruptcy paperwork.”

4. There was annexed to this facsimile three documents.  The first is a letter from the lawyers for the creditor, Harbourside Legal Services, to the corrections centre.  The second was a copy of the judgment of the District Court of New South Wales.  That has been signed both by Mr Issa and Mr Mulholland, and a date inserted on it of 24 September 2013.  The third document is a copy of the first page of the bankruptcy notice.  That is also signed by Mr Issa and Mr Mulholland, and is also dated 24 September 2013.

5. The effect of the submissions of Mr Johnson, who appears for Mr Issa, and of his cross-examination of Mr Mulholland, who was cross-examined by way of video link to the prison, was that these were really the only documents that the court can be satisfied were actually served upon Mr Issa.  There being no sufficient evidence, Mr Johnson argues, to satisfy the court that the balance of the documents – being the balance of the bankruptcy notice and the balance of the judgment – was actually served. 

6. There is an additional document that I believe is of some importance.  That is called an “officer report form” and is found as Exhibit 2 in these proceedings.  It states:

   “On the 24/9/2013 I was working as Assistant Superintendent One I noticed paperwork to be served on 52997, Bill ISSA  I entered C Wing and checked the Muster Book which has photo, name min, DOB of all inmates in the wing to verify ISSA identity prior to serving the Bankruptcy notice.  The wing had been cleared of all inmates except for the sweepers ISSA works as a painter and he was in the wing I called out for Issa, who came down the office C wing office I asked him his name  He stated He was Bill Issa  I informed Issa that I had a bankruptcy notice to be served  I witnessed issa sign the judgment order with the district court judge seal and further page of the bankruptcy notice with detailed costing. I then signed two pages with name, rank, gaol, and date I advised Issa to get urgent legal advice  I gave all other documents to issa except for cover sheet, judgement order and costing which were photocopied and then given to issa with copy placed on case file and electronic case note been entered that a bankruptcy notice was served on Issa. 

   On the 4/10/2013 I was contacted by ISSA lawyers I faxed the cover sheet, judgement order and second page of costing and wrote on the cover sheet that ISSA has full document.  I have attached copies of documents.” [As in original]

   And then underneath that:

   “1 fax cover sheet for issa.

   2 judgement order with district court judge name and seal. 

   3 bankruptcy notice. 

   4 electronic case note. 

   5 affidavit of service.”

   The document is signed by Mr Mulholland on 18 October 2013.

7. In the course of his cross-examination, Mr Mulholland agreed that he did not get Mr Issa to sign all of the documents that he served upon him, only those documents referred to in the original fax sent to the solicitors.  When asked how many pages he believed he served on Mr Issa, he said six or seven, and then added that he was familiar with all the documents that he has now seen, which were the documents that were contained within his affidavit of service.  When asked whether he could be sure that all the pages were handed to Mr Issa, he responded that he believed they were all handed to him.

8. I accept the submission by Mr Freeman that Mr Johnson is under something of a disadvantage without producing any evidence from Mr Issa that he had not been served with all of the documents, and relying only upon the possibility of my doubting the veracity of the affidavit of service.  I do not doubt it.  I am satisfied that Mr Mulholland did serve all the documents that were contained in his affidavit.  I believe that the note on the original facsimile advice of 4 October 2013 and the further note on the officer’s report form corroborate Mr Mulholland’s position.

9. It seems clear to me from the answers he gave in cross-examination that the standard practice is to get an inmate to sign what would appear to be the first pages, or most important pages, of documents that are served upon them, and only those pages, and this practice is understandable.  The fact that a contemporaneous note was made that Mr Issa had copies of all the bankruptcy documents, and that that note was confirmed in the later note of 18 October 2013 is sufficient, in my view, to satisfy me on the balance of probabilities that the document was served.  In those circumstances, the application is dismissed and the applicant must pay the respondent’s costs to be taxed if not agreed pursuant to the Federal Circuit Court Bankruptcy Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 December 2013