Kowanyama Aboriginal Council v Khadpekar
[2004] FMCA 337
•3 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWANYAMA ABORIGINAL COUNCIL v KHADPEKAR | [2004] FMCA 337 |
| BANKRUPTCY – Sequestration order. |
| Applicant: | KOWANYAMA ABORIGINAL COUNCIL |
| Respondent: | MANGALA KHADPEKAR |
| File No: | BZ663 of 2003 |
| Delivered on: | 3 February 2004 |
| Delivered at: | Cairns |
| Hearing Date: | 3 February 2004 |
| Judgment of: | Coker FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Bosel |
| Solicitors for the Applicant: | MacDonnells Solicitors |
| Respondent: | Appearing on her own behalf |
ORDERS
That the notice of intention to oppose the petition dated 30 January 2004 be dismissed.
That a sequestration Order be made against the Respondent Debtor, Mangala Khadpekar.
That the Applicant Creditor’s costs be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
The Court notes that the date of the act of bankruptcy is 30 September 2003.
FEDERAL MAGISTRATES |
BZ663 of 2003
| KOWANYAMA ABORIGINAL COUNCIL |
Applicant
And
| MANGALA KHADPEKAR |
Respondent
REASONS FOR JUDGMENT
I have two matters before me at the moment, upon which I am required to rule. The first of those, though in fact the second that I will deal with, is an application for a sequestration order in relation to the estate of the respondent Mangala Khadpekar. The applicant is the Kowanyama Aboriginal Council. Their application was filed on
12 December 2003. The application was returnable today.
Prior to dealing with that particular aspect of the matter, however, I am required to deal with an application, which has been filed by the respondent. In that application I am asked by Ms Khadpekar, in a notice of intention to oppose the petition, to consider a number of grounds, for opposing the petition. The document itself is dated 30 January 2004 and has been provided to me and to the legal representatives for the applicant, as well as having had originals forwarded to the Registry in Brisbane, to be dealt with.
The grounds, upon which the notice of intention to oppose the petition are detailed, include the following:
(1)that the creditor's petition is invalid as it is signed by an individual person who provides the signature of a fictitious individual person who does not exist and is not a solicitor as required by the Bankruptcy Act;
(2)a petition not signed by a solicitor comes within the meaning of a forged document pursuant to section 144 of the Criminal Code Act 1995 Commonwealth;
(3)a petition uttered to the Court carrying the signature of a fictitious person is a forgery;
(4)using a forged document in the Federal Magistrates Court is conduct contrary to the provisions of section 105 of the Criminal Code Act Commonwealth 1995;
(5)the filing of service of a forged document falls within the meaning of an act or omission constituting conduct contrary to the provisions of the Crimes Act 1914 Commonwealth;
(6)a valid petition is required to be signed within six months of the first available act of bankruptcy , ie. within 21 days of the service of bankruptcy notice which was 3 February 2003;
(7)the petition before the Court does not comply with this requirement;
(8)the hearing of the application to set aside the bankruptcy notice on 9 September 2003 was conducted out of time by the applicant's admission and the time was not extended at any time before the hearing;
(9)the default judgment on which the bankruptcy notice and petition is based was obtained by deceit;
(10)further criminal offences have been committed by the respondent in the Federal Court and the Federal Magistrates Court during the hearings in 1999 and 2003, particulars;
(a)the petitioner has sworn and filed false affidavits;
(b)the petitioner has sworn and filed misleading affidavits;
(c)the petitioner has sworn and filed falsified documents including a Court transcript and a notice served pursuant to the Criminal Code Commonwealth.
(11)this bankruptcy action is, by the petitioner's own admission an abuse of process for purposes contrary to the purposes of bankruptcy law and contrary to the Criminal Code Commonwealth, particulars:
(a)I have no assets to distribute and am now a pensioner so that the principle purpose of bankruptcy will not be realised by bankrupting me;
(b)it will forward the objectives of a longstanding conspiracy to destroy me involving approximately 30 public servants;
(c)the petitioner has made utterances evidencing that this action is part of the conspiracy;
(d)the petitioner has rejected a without prejudice offer of settlement worth several times more than the value of the judgment to the petitioner and the Australian tax payer with utterances evidencing that a personal vendetta is being pursued through the bankruptcy Courts out of the public purse;
(12)the Court has the power to go behind the judgment at the hearing of the creditor's petition;
(13)in light of all of the above it is in the interests of justice and in the public interest that it do so in this case.
At the commencement of the hearing today certain other documents were sought to be tendered by Ms Khadpekar and they included a notice of motion dated 3 February 2004, information of an offence dated 3 February 2004 and summonses directed to various persons dated 3 February 2004.
I inquired of Ms Khadpekar whether, in fact, a complaint had been lodged with the Federal Police and Ms Khadpekar confirmed that that particular course had been taken in relation to the matter and she provided to me, and I sighted, a copy of a notation of lodgment that had been provided to the Australian Federal Police. The notation was dated 2 February 2004, yesterday.
Ms Khadpekar also produced for me, to sight, a copy of a pensioner concession card number CRN404-4071-692B which had been provided to the Registry, in relation to filing of material and was also, of course, supportive of the submission, made in relation to Ms Khadpekar’s financial circumstances and therefore the course that should be followed by me, in relation to any determination of this matter.
I indicated, and am still of the view, that the notice of motion and information of an offence and the various summonses were outside the power of this Court. They relate to matters arising under the Commonwealth Crimes Act and are not powers that have been granted, at least at this time, to the Federal Magistrates Court of Australia.
Ms Khadpekar certainly, and quite properly, refers me to the provisions of the Bankruptcy Act and in particular section 7A which adopts chapter 2 of the Crimes Act. That enables the Court to take certain courses in relation to this matter, but in my view, it is not relevant in relation to my determination of this particular aspect of the proceedings.
I indicated that I intended to proceed therefore, to determine the notice that had been filed in relation to the matter and to that end, as is my normal course, I heard the submissions in relation to the matter on behalf of the legal representatives for the respondent, first. The reason for that, is that there is, in my view, always a situation that arises of some imbalance where one party is legally represented and the other is not.
The legal representative for the Kowanyama Aboriginal Council, provided written submissions in relation to these proceedings and a copy of those submissions was provided to Ms Khadpekar. Ms Khadpekar indicated, however, that she was not able to read the submissions that were made and accordingly I raised with her whether it would be appropriate to read into the record, the submissions made, with regard to the notice of objection and she confirmed that that was an appropriate course. Subsequently, Ms Khadpekar then addressed me in relation to the notice of motion.
It seems to me, that the appropriate course to follow in relation to this matter, is to deal with the various grounds for opposing the petition, in blocks. The first of those grounds relates to whether in fact the creditors petition is invalid, as it is signed by an individual person, who provides the signature of a fictitious individual person, who does not exist and is not a solicitor, as required by the Bankruptcy Act.
The submissions made related to, if you like, a compilation of those matters raised in point 1 as well as the comments that are raised in points 2 through 5 of the grounds, opposing the petition. They relate to breaches that are said therefore to arise in relation to sections 144 and 145 of the Commonwealth Crimes Act. It was submitted that the notice of intention to oppose the petition is based on a misunderstanding of the position that should, and properly, could be taken in relation to this matter.
In particular, I was referred to rule 2.03 of the Federal Magistrates Court Rules 2001. Rule 2.03 of the Rules provides as follows:
A document to be filed (other than an affidavit, annexure or exhibit) must be signed by a party or by the lawyer for the party unless the nature of the document is such that signature is inappropriate.
In this matter the petition was signed, I am advised, by Mr Bruce Pasetti, a partner of MacDonnells Solicitors. I note that the petition is signed MacDonnells and is noted, as the lawyers. It seems to be clear, and it was clear, that the document was signed by the solicitors for the petitioner. It is clear also that being a lawyer and signing in the name of the firm, rather than in the individual name of the solicitor signing the document, if that solicitor or in this case partner is authorised to do so, is a proper and appropriate course to follow, in relation to the proceedings.
Even if that were not to be the case, and I have found that it is, it was submitted that Rule 1.06 of the Federal Magistrates Court Rules allows the Court to exercise a discretion in relation to the conduct of this particular matter. Rule 1.06 of the Federal Magistrates Court Rules provides in subsection (1) as follows:
(1)the Court may in the interests of justice dispense with compliance or full compliance with any of these rules at any time, and;
(2)if in proceeding the Court gives a direction or makes an order that is inconsistent with any of these rules the direction or order of the Court prevails in that proceeding.
I am satisfied that the document has, in fact, in accordance with the rules, been properly signed and that it is an erroneous suggestion, in the notice of intention to oppose the petition, to suggest that the document is in any way, invalid.
The second issue relates to the grounds for opposing the objection, which could perhaps be described as grounds 6, 7 and 8. They relate to issues in relation to a valid petition being required, within six months of the first available act of bankruptcy, to be signed. It is submitted that the service of the bankruptcy notice was 3 February 2003 and that therefore, there is non compliance with the Act.
I am mindful particularly, of the fact, that there was an application made by Ms Khadpekar, some considerable time ago, being proceeding number BZ94 of 2002, to set aside the bankruptcy notice. On
9 September 2003, that application was dismissed by me. The submission therefore that there was non compliance with the rules must be read in conjunction with the ruling that I made in relation to the matter, on 9 September 2003.
At that time I ordered that the time for compliance with the bankruptcy notice be extended to a date, 21 days from the date of the order. Accordingly, with the order having been made on 9 September 2003, the time limit for presenting the creditors petition, in fact would not, and does not, expire until 30 April 2004. The creditors petition was therefore presented on 11 December 2003 and was presented in accordance with both the requirements of the Act and in accordance with the directions, that I had made.
It is alleged in the further grounds for opposing the petition, that in paragraph 9 of those grounds, that the default judgment, on which the bankruptcy notice and petition is based, was obtained by deceit. The submissions that were made in that regard relating to those allegations and whether in fact there was a proper course followed by the respondent, Ms Khadpekar, in relation to the matter.
Ms Khadpekar has, on a number of occasions, indicated that she has not appealed the decision and is in fact now considerably out of time. It is the fact, however, that she says she has not been well enough to proceed in relation to such a course, in relation to the matter and suggests, that there has been deceit and in fact quite implicit impropriety, in relation to the obtaining of the judgment and the continuation of the effectiveness of that judgment.
It is the case that the respondent, Ms Khadpekar, has applied to the Magistrates Court at Cairns for an order that the judgment be set aside. On 12 December 1997 Mr Fitzsimmon SM, dismissed that application to set aside the judgment. Ms Khadpekar has, in a considerable number of documents, indicated that that was in fact a direction or order made by Mr Fitzsimmon SM as a result of having been led into error by the legal representatives for the applicants, the Kowanyama Aboriginal Council.
The fact is, however, that not only I, but also her Honour, Keiffel J, of the Federal Court, in 1999 indicated that there was a proper course to be taken in relation to this matter and that included, making application for leave to appeal out of time. I am well aware, as I have indicated, that Ms Khadpekar has said, that she has not been able to do so.
However, it is also abundantly clear that there is very little, if any, real medical evidence in relation to this matter and, notwithstanding the apparent inability to appeal the decision, or the proceedings in the State Courts, Ms Khadpekar has been able to file, very considerable amounts of documents and very complex documents, in relation to these proceedings, as well as to gather, what she says, is significant evidence which has been presented to parliamentarians and as recently as yesterday, 2 February 2004, to present same to the Australian Federal Police. Ms Khadpekar also indicated, that with the assistance and under the auspices of, a State parliamentarian, the position that she has given concern to, has been forwarded to the Crime and Misconduct Commission in Queensland, for consideration.
It is clear, that the judgment, until such time as it is set aside, is valid and it is submitted on the part of the Kowanyama Aboriginal Council, that the issue of the validity of the judgment has been raised and dealt with in various other proceedings, including particularly, those which were before me and which were determined on 9 September 2003.
I am satisfied that there is a judgment in relation to this matter. What, however, needs to be considered, is whether there is a basis, upon which the Court could, and should, look behind the position in relation to the judgment. In paragraphs 12 and 13 of the grounds for opposing the petition, Ms Khadpekar says, that the Court has power to go behind the judgment and, as I have indicated previously, I am satisfied that that is the case.
It is conceded in fact on the part of the Kowanyama Aboriginal Council that the Court may go behind the judgment. However, it is also submitted on their part, that it is a situation where the Court will not lightly inquire into the validity of a judgment debt and will do so, only if there is evidence, that the judgment has been obtained by fraud or collusion or that there has been some miscarriage of justice.
All of those matters are clearly put by Ms Khadpekar, as a basis upon which the Court should properly inquire, in relation to this matter. The fact is, however, that I find myself clearly in a position where the allegations of fraud, of collusion, of conspiracy and of miscarriage of justice, all stem directly and only, from the material that has been generated by Ms Khadpekar.
It is the case, where she has been unable to convince anyone else in relation to the matter, and I must say, that she has not convinced me. Ms Khadpekar clearly is of the view, and perhaps understandably so, in light of the consequences of what has occurred over the last six or seven years, that there has been collusion and actions taken against her.
I am not satisfied, however, that there is any proper basis upon which it would be appropriate for me, to take any step in relation to going behind the judgment. I indicated many months ago, when the application to set aside the bankruptcy notice was before the Court, and then at the time of decision, that there should be proper steps taken by Ms Khadpekar, in relation to the matter. She has failed to do so. To then say, that it becomes the obligation of the Court, to make some determination in that regard is, in my view, misguided and simply a wrong application of the law.
I am required also to give consideration to the allegation made in paragraph 10 of the grounds as to whether there have been criminal offences committed by the respondent in both the Federal Court and the Federal Magistrates Court, during hearings in both 1999 and 2003.
The allegations have been made long and hard by Ms Khadpekar and she has filed considerable amounts of documentation as well as, as I have indicated, referring same to the Federal Police and no doubt, to the State authorities as well. The fact is, however, that apart from the allegations made by her and the theories that she has with regard to a conspiracy, not only on the part of the legal representatives but by many and varied senior public servants, there is not one skerrick of evidence in relation to this matter, nor in my view, is it a proper basis upon which I could or should make any determination in respect of the proceedings.
The final matter that I wish to turn to, however, is that which relates to whether in fact there is a proper basis for a bankruptcy to be obtained, when it is submitted that the application was based on the admission of the petitioner, that there has been an abuse of process. It is submitted that the respondent, Ms Khadpekar, has no assets to distribute. She says, as I indicated before, that she is a pensioner, so that the principal purpose of bankruptcy, will not be realised, by bankrupting her.
She goes on to make reference, as I have already touched upon, to a longstanding conspiracy and to other actions taken in relation to the matter. In particular, Ms Khadpekar suggests, that there has been a rejection by the Kowanyama Aboriginal Council of an offer of settlement, worth several times more, than the value of the judgment.
In reading the material that was filed, I note that there was a proposal put forward in relation to providing various documents including architectural diagrams and the like, which were of considerable value. The fact is, and I am using the colloquial here, that it is a situation of comparing apples and oranges. There is a debt owing and judgment for that debt.
To make some offer, of something of greater value but different, is not an offer upon which there can be any basis for suggesting that the judgment creditor should accept it, in payment. I am not satisfied that that is a proper basis to consider, not proceeding under the bankruptcy laws. The real consideration here, is whether there are assets for distribution.
In that regard, the legal representative for the Kowanyama Aboriginal Council indicated, that there must be consideration given to the evidence that is before the Court. I was referred particularly to re Lennard ex parte Lennard (1896) 1 QB 473 as quoted by the High Court in Bayne v Clark (1909) 9 CLR 360 at 364. There the quotation referred to was as follows:
But there must be evidence before the Court that there are no assets. Usually the case is that when a petition is presented it is impossible to say whether there will prove to be any assets or not. All the petitioning creditor then knows or need know is that a debt is owing to him and that after taking the necessary steps to procure payment of that debt he cannot get payment of it and therefore he asks that the debtor may be made bankrupt.
Quite clearly it is the case here that Ms Khadpekar has the obligation to show her own financial circumstances. In that regard she has certainly produced a Commonwealth concession card indicating that she is in receipt of a pension or benefit. There is, however, no other evidence whatsoever as to her financial circumstances.
I am satisfied that it is proper that if sequestration of her estate were ordered that the trustee in bankruptcy would be empowered to properly investigate the matter and of course if there are no assets, then there is no real effect upon the applicant, other than of course, the bankruptcy.
I have given serious consideration to the petition that is filed by Ms Khadpekar. In the end I found that there is no real or proper basis upon which the petition that is sought by Ms Khadpekar could be and should be upheld. Accordingly, the notice of intention to oppose the petition which is, dated 30 January 2004, is dismissed.
I am then required obviously, to consider the position in relation to the application, for sequestration of the estate. All the matters that are required, pursuant to the provisions of the Bankruptcy Act, have been complied with. The respondent to the sequestration, Ms Khadpekar, has failed to discharge her onus of satisfying the Court, that a sequestration order should not be made.
I am satisfied beyond any doubt that the appropriate course to follow in relation to this matter, is that a sequestration order be made in terms of the draft that has been provided to the Court and is initialled and dated by me today, 3 February 2004.
I will direct that my reasons be published in relation to this matter.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate: Christina Herbst
Date: 26 May 2004
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