Matheson v Insolvency and Trustee Service Australia, in the matter of Matheson

[2005] FCA 893

FEDERAL COURT OF AUSTRALIA

Matheson v Insolvency & Trustee Service Australia, in the matter of Matheson [2005] FCA 893

FREDERICK JAMES MATHESON v INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA

QUD 59 OF 2005

DOWSETT J
6 MAY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 59 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	FREDERICK JAMES MATHESON APPLICANT
AND:	INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	6 MAY 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The affidavit of Frederick James Matheson filed by leave on 28 April 2005 be excluded from evidence in these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 59 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	FREDERICK JAMES MATHESON APPLICANT
AND:	INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA RESPONDENT

JUDGE:	DOWSETT J
DATE:	6 MAY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate refusing an application by a bankrupt for annulment of his bankruptcy pursuant to a debtor’s petition filed on 20 May 2002, or thereabouts. The grounds upon which annulment was sought were numerous. A number of them involved alleged irregularities in the way in which the bankrupt had completed the statement of affairs attached to his petition as required by subs 55(3) of the Bankruptcy Act 1966 (Cth).

2. In the title page of the statement of affairs, provision is made for the potential bankrupt to insert his “family name” and “given names”.  This was not done.  On the front page of the actual statement of affairs, certain personal details are sought, including, a residential address, a home telephone number and a mobile telephone number.  The bankrupt deleted the word “Residential” in the heading “Residential Address”, and inserted in lieu of that word, the word “Business”.  He also inserted an address.

3. He initially entered a telephone number in the space provided for a home telephone number, but then deleted that number and wrote the same number as his fax address.  He did not provide a mobile telephone number, but at some later stage, an officer of the Official Receiver inserted a number which had been obtained from some other source.  It seems that the Official Receiver treated the irregularities as not being sufficient to justify rejection of the petition.  Subsection 55(3) provides that:

   ‘The Official Receiver may reject a debtor’s petition if:

   (a)      the petition does not comply substantially with the approved form; or

   (b)      the petition is not accompanied by a statement of affairs; or

   (c) the Official Receiver thinks that the statement of affairs accompanying the petition is inadequate.’

4. That the Official Receiver proceeded to act upon the petition implies that the statement of affairs was considered to be adequate.  It was largely upon that basis that the Magistrate disposed of the matter. 

5. There was a second point which seems to have been that the statement of affairs was in some way invalidated by the subsequent insertion of information.  No present ground of appeal addresses that point.  In any event, it is unlikely that the consequence of an officer inserting an additional telephone number is invalidity of the document.

6. The bankrupt now seeks to tender in evidence a facsimile transmission received from the office of the Insolvency and Trustee Service Australia (“ITSA”) dated 17 May 2002.  I assume, for present purposes, that ITSA is in some way associated with the Official Receiver.  The fax is said to come from somebody called “Janet” at ITSA, and states:

   ‘Received your application today.  To enable it to be accepted I require your residential address and current phone number.’

7. Mr Matheson did not reply to this.  When he was telephoned on, I think, the following day, he seems to have resented the fact that he was being asked to discuss his personal affairs over the telephone, or at least I infer as much from par 9 of his affidavit filed on 25 October 2004.

8. It may be arguable that the fax suggests that the Official Receiver had initially declined to accept the petition, and subsequently decided to do so.  It is possible that the bankrupt wishes to argue that there was no power to revisit the original decision.  However I am not sure that the bankrupt suggested as much.  There is no doubt that he would put such an argument had it occurred to him.  Such a point was not taken before the Magistrate.  As I say, the document was not before the Magistrate.  The question is whether it should be received now.  The applicant says that he received the fax and, at the time, he read it.  It was disclosed in his own affidavit of documents in the proceedings before the Magistrate but, for some reason, it was not led in evidence.  The only explanation offered by the bankrupt as to this failure was that the paper was curled up and partly obliterated.  That, for some reason, distracted his attention from it, or concealed it from him, and so he did not tender it.

9. I consider however, that he must be treated as having chosen not to put the document before the Magistrate.  He had previously read it and was aware of it in the context of his litigation.  To allow it to be put in evidence now, assuming that it goes to a relevant issue, may result in the need for further evidence from the Official Receiver as to the circumstances in which these events occurred.  I consider that it is too late for the bankrupt to ask the Court to follow that course.  The document should not be received in evidence.  I should say that I received the affidavit to which it is an exhibit solely to put it in evidence in order to consider its admissibility.  I now rule that it should not be received in evidence in these proceedings.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             27 June 2005

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 May 2005
Date of Judgment:	6 May 2005