McDougall v WorkCover Corporation of South Australia
[2016] FCCA 2589
•7 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDOUGALL v WORKCOVER CORPORATION OF SOUTH AUSTRALIA | [2016] FCCA 2589 |
| Catchwords: CONSTITUTIONAL LAW – Delegation of judicial power – power of Registrar to make orders – s.78B Notice – asserted Constitutional point without merit. |
| Legislation: Bankruptcy Act 1966 (Cth), s.27 and 52(1) Commonwealth of Australia Constitution Act |
| Cases cited: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others (1999) 167 ALR 303 Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 |
| Applicant: | GRANT ROBERT MCDOUGALL |
| Respondent: | WORKCOVER CORPORATION OF SOUTH AUSTRALIA |
| File Number: | ADG 359 of 2013 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 4 October 2016 |
| Date of Last Submission: | 4 October 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 7 October 2016 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondent: | Ms Huddleston for Hudson Lawyers |
ORDERS
The application for an extension of time in which to file an application for review of the sequestration order dated 26 May 2014 is dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 359 of 2013
| GRANT ROBERT MCDOUGALL |
Applicant
And
| WORKCOVER CORPORATION OF SOUTH AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Grant Robert McDougall (‘the applicant’) to extend the time in which to file an application under r.2.03 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) (‘the Bankruptcy Rules’) to review a sequestration order made by Registrar Bochner on 26 May 2014.
On 22 August 2016, the applicant filed his application to review that order. The application was made approximately 2 years and 4 months out of time. Pursuant to r.2.03 of the Bankruptcy Rules, as they then were, it was necessary for him to file an application for review within 21 days of the making of the order.
At a directions hearing in this matter on 6 September 2016, I informed the applicant that a preliminary issue was the application to extend the time in which to seek the review. I also advised him of the fact that given his affidavit dated 22 August 2016, purported to raise issues of the interpretation of the Constitution, it would be necessary for him to file a Notice pursuant to s.78B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) if he sought to agitate those issues.
I heard the preliminary matters on 4 October 2016. The applicant was self-represented. He had filed a Notice pursuant to s.78B of the Judiciary Act. He relied on two affidavits sworn by him and dated 22 August 2016 and 13 September 2016. The respondent relied upon the affidavit of Mr Scott Dienelt dated 27 September 2016.
At the hearing of this application on 4 October 2016, the applicant sought to provide an unsworn and unsigned affidavit in response to the affidavit filed by the respondent. I have marked that document for identification as ‘MFI-A1’. The respondent submitted that I should not receive it as it was unsworn material. The respondent did not object to me reading the document for the purpose of establishing whether it was admissible. That document purports to take issue with respect to a number of matters in the affidavit of Mr Dienelt. In any event, all of the matters it refers to are events that occurred prior to the orders of the Magistrates Court which formed the basis of the debt in relation to which the sequestration order was made. I took the view that it had no relevance to the application to extend time and I declined to receive it for the purpose of this application. As I have already noted, it was neither sworn nor signed.
Background
On 29 November 2013, the respondent filed a Creditor’s Petition. On 26 May 2014, a sequestration order was made by Registrar Bochner. A costs order was also made in the amount of $5,710.47 to be paid from the applicant’s estate. As I have already noted, on 22 August 2016, the applicant filed his application for review of the sequestration order. That application seeks the following orders:
“1.Bankruptcy against my name – Dissolved;
2.Removal of my name of the Bankruptcy registrar;
3.Costs awarded against my name – Dissolved.
4.Compensation for :- Mental Health & Anguish directly caused due to bankruptcy and my defence;
5.Compensation for :- Loss and Restriction of Trade;
6.Compensation for :- Defamation, both Private and Business;
7.Compensation for :- Associated family disputes and issues directly related to the situation;
8.Compensation for :- Withdrawals of funds held as Personal Superannuation – (approx..) $17,000;
9.Compensation for :- Loss of required and associated business and private licences as a direct result of bankruptcy.
10.Extension of time to file review.”
At the hearing of this matter, it was explained to the applicant the questions central to whether or not it was in the interests of justice to extend time, included: the length of the delay; the reasons for the delay; any prejudice that might be occasioned to the respondent if the extension were to be granted; the impact of refusing the application on the applicant; and, the merits of the proposed application for review.
Notice of a Constitutional Matter
I will deal firstly with the Notice of a Constitutional Matter. On 29 September 2016, the applicant e-lodged a Notice of a Constitutional Matter. That Notice indicates that it is addressed to the Attorneys- General of the Commonwealth and the States. In that section of the document where the applicant was required to state briefly and specifically the nature of the Constitutional matter he wished to agitate, the applicant has simply copy typed verbatim ss.71-80 in Chapter 3 of the Constitution. That chapter of course deals with the judicature and judicial powers. No issue arising from any of these sections is identified in the Notice.
In his Affidavit of 22 August 2016, the applicant identified the Constitutional issues he seeks to raise before me. The issues concern the delegation of judicial power and can be summarised as follows:
a)A Registrar has no Constitutional power to make a sequestration order because a Registrar is not authorised or empowered to exercise judicial power; and
b)A Registrar has no power to make an order for costs for the reason identified in the subparagraph above.
Pursuant to s.78B of the Judiciary Act, where a cause pending in a federal court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed unless and until the court is satisfied that Notice has been given to the Attorneys-General of the Commonwealth and the States and they have been given a reasonable opportunity to consider intervening in the cause.
The critical question is whether this cause ‘involves’ a matter arising under the Constitution or involving its’ interpretation in the relevant sense. In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd and Others,[1] French J, as he then was, made the following observation at paragraph 14:
“Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.”
[1] (1999) 167 ALR 303.
In that matter, his Honour also referred to the decision in Re Finlayson; Ex parte Finlayson,[2] a decision of Toohey J, where his Honour observed with respect to s.78B of the Judiciary Act:
“A cause does not involve a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical but it must be established that the challenge does involve a matter arising under the Constitution.”[3]
[2] (1997) 72 ALJR 73.
[3] Ibid at p 74.
I turn to consider the powers of this Court and the Registrar in bankruptcy matters. It is necessary that I do so in order to consider whether the matters identified by the applicant involve a Constitutional issue for the purposes of s.78B of the Judiciary Act. I note that the applicant does not appear to dispute that at the relevant time, Ms Bochner was a Registrar of the Court. His challenge is directed at the powers of a Registrar.
By virtue of s.27 of the Bankruptcy Act 1966 (Cth) (‘the Bankruptcy Act’), the Federal Court and the Federal Circuit Court have concurrent jurisdiction in bankruptcy.
Under s.101 of the Federal Circuit Court Act 1999 (Cth) (‘the Federal Circuit Court Act’) Registrars of the Federal Circuit Court of Australia are persons engaged under the Public Sector Act 1999 (Cth). Section 102 of the Federal Circuit Court Act permits certain powers of the Federal Circuit of Australia to be exercised by a Registrar. Section 102(2)(i) allows for a power of the Federal Circuit Court of Australia to be exercised by a Registrar if it is a power prescribed by the Rules of Court. The Rules of Court referred to are those made under the Federal Circuit Court Act.[4]
[4] Section 5, of the Federal Circuit Court Act, ‘definitions’.
At the time the sequestration order was made, the relevant rules were the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth). These Bankruptcy Rules were made under the Federal Circuit Court Act 1999 (Cth).[5] Rule 2.02 of the Bankruptcy Rules stated that for the purposes of s.102(2)(i) of the Federal Circuit Court Act, if the Court so directs, a Registrar may exercise a power of the Court under a provision of the Bankruptcy Act mentioned in Schedule 2 of the Bankruptcy Rules. Schedule 2 is headed, ‘Powers that may be exercised by a Registrar’. Item 9 in Schedule 2 provides that at the relevant time, a Registrar had power under subs.52(1) of the Bankruptcy Act to make a sequestration order against the estate of a debtor. At the time the sequestration order was made, the Registrar clearly had power to make such an order.
[5] Rule 1.02A of the Federal Circuit Court (Bankruptcy) Rules 2006.
By virtue of s.102(2)(f) of the Federal Circuit Court Act, a Registrar has power to make an order for costs.
The applicant referred me to the decision of Re The Queen v Davison[6] to support the proposition that the Registrar had no power to make the order. That authority does not assist him. The question of delegated judicial power has been dealt with by courts on a number of occasions since Davison’s case was decided. The topic was recently dealt with by McKerracher J in Conlan v Pratt (No.2)[7] and it is appropriate to quote the following relevant passage:
“This point of law has been re-visited on a number of occasions in a series of cases dealing with the question of delegation of judicial power. The High Court has repeatedly held under Ch III of the Constitution judicial power may be delegated providing that the delegation is subject to the supervision and control by Ch III judges: see Harris v Caladine (1991) 172 CLR 84 and Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 150 CLR 49. In addition in other courts, mainly this Court, see also Amos v Monsour Pty Ltd (formerly Monsour Legal Costs Pty Ltd) [2010] FCA 741; Totev v Sfar (2008) 167 FCR 193; Re Socket Screw & Fastener Distributors (NSW) Pty Ltd (in prov liq) (1994) 51 FCR 599; Taylor v DCT (Cth) (1999) 42 ATR 220; Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554 and on appeal in Chisholm v Official Trustee in Bankruptcy [2000] FCA 1234.”[8]
[6] (1954) 90 CLR 353.
[7] [2013] FCA 105.
[8] Ibid at [8].
Given the ample authority on the point, in particular the decision of the High Court in Harris v Caladine,[9] the above passage was understandably referred to with approval by the Full Court of the Federal Court when it recently considered the question in Cristovao v Registrar Scott.[10]
[9] (1991) 172 CLR 84.
[10] [2013] FCAFC 92.
With respect to the orders made by Registrar Bochner in 2014, Constitutional protection existed at the relevant time by virtue of the judicial power to conduct a review of a sequestration order pursuant to r.2.03 of the Bankruptcy Rules. Such a review is a hearing de novo. It is exactly such a review that the applicant asks the Court to conduct in this matter.
Whilst the applicant has identified in his affidavit a potential Constitutional topic, namely the lawful delegation of judicial power, his argument is one that has already been concluded against him. Accordingly, I decline to adjourn these proceedings as I am not satisfied that the applicant has raised an argument that ‘involves’ the Constitution within the meaning of s.79B of the Judiciary Act.
Extension of time
I turn to the question of an extension of time in which to make the application for a review. Under the Bankruptcy Rules, as they then existed, the applicant had, as I have already observed, 21 days in which to apply for a review.
Pursuant to r.3.05 of the Federal Circuit Court Rules 2001 (Cth) (‘the Federal Circuit Court Rules’), the Court may extend time fixed by the Federal Circuit Court Rules including in circumstances when the time fixed has passed.
The applicant has made various submissions as to why time should be extended in this matter.
Delay
With respect to the very considerable delay in filing his application, the applicant claims in his affidavit of 13 September 2016 that he found it almost impossible to find legal advice and any representation once he had been made bankrupt. He claims to have been treated like a “criminal” by the legal profession. He became depressed after the sequestration order was made, contemplating suicide and drinking to excess. Given the difficulty he had obtaining representation, he says that he embarked upon his own research of the Constitution in a bid to “defend” himself. He says that his research and preparation, in combination with his depression, played a major role in the delay in filing his application for review. The affidavit does not contain any information as to what unsuccessful attempts he made to obtain legal representation.
The effects of the sequestration order were no doubt distressing to the applicant. No doubt his circumstances did make it difficult to obtain any legal representation. The length of the delay is a relevant consideration when looking at the adequacy of the explanation for the delay. I am not satisfied given the extreme length of the delay in this case that the applicant’s affidavit material provides a satisfactory explanation for having waited almost 2 and half years before filing his application.
Impact on applicant of a refusal to extend time and prejudice to respondent if time is extended
I accept that if I were to refuse to extend time, the consequence for the applicant would be that the sequestration order will remain in place and that he would remain a bankrupt. I accept that this is a significant matter. Against that, I must balance the significant prejudice to the respondent and indeed the trustee if I were to grant an extension of time.
Merits
I turn then to a consideration of the merits of the proposed application to review the sequestration order. The applicant’s affidavit of 22 August is in large part an outline of submissions that he proposes to put on the substantive application reviewing the sequestration order. It provides particulars of his proposed arguments. I will summarise the arguments the applicant seeks to make, which he says support his submission that review should be successful.
As I have already indicated, the Registrar has both power to make the sequestration order and the power to make a costs order. I accord the applicant’s arguments on these matters no weight in determining whether I should extend the time in which to apply for a review of the Registrar’s order.
The applicant says that the signature of the official receiver on the ‘Certificate of Appointment of Trustee’, and the ‘Bankruptcy Notice’, appears to be identical. It was, he submits, placed electronically on to those documents. This amounts to a misrepresentation and is unjust. Furthermore, there is no evidence that the official receiver is in fact a real person. I am not satisfied that the use by the official receiver of an electronic signature is either a misrepresentation or unjust. I accord this argument no weight.
The applicant makes the extraordinary submission that in making an order for costs against him, the Registrar committed an offence against the “CRIMES CODE ACT 1995” (sic)[11] in particular s.268.10. It should be noted that Division 268 of the Criminal Code deals with genocide, crimes against humanity, war crimes and crimes against the administration of justice of the International Criminal Court. Section 268.10 creates the offence of “enslavement”.
[11] I assume the applicant is referring to the Criminal Code Act 1995 (Cth) and the sections of the Criminal Code.
There is no merit in the proposed argument that the making of both the sequestration order and the costs order by Registrar Bochner amounted to a crime of any description, let alone a crime against humanity or enslavement as described in the Criminal Code. I accord that argument no weight in determining whether or not I should grant an extension of time.
The next matter the applicant seeks to argue is what he alleges to have been a “misappropriation and misrepresentation” of the Bankruptcy Act by the Trustee in Bankruptcy, Mr Gregg Robertson Johnson. No action taken by Mr Johnson after the sequestration order made affects the validity of the sequestration order. I accord this argument no weight in considering whether or not to extend time.
The applicant asserts that there was a defect in both the “Notice of Filing” dated 29 November 2013 and the “Notice of Filing and Hearing – Creditors Petition documents” in the bankruptcy proceedings because the signature of the Registrar Adele Byrne is clearly an electronic signature, and for that reason the authenticity and validity of those documents cannot be established.
That argument can be answered simply enough. The filing and entering of documents by means of electronic communication is now the norm. It is dealt with in rr.2.07A and 207B of the Federal Circuit Court Rules. Pursuant to r.2.10(2) of the Federal Circuit Court Rules, the stamp of the Court must be attached to all processes filed in the Court and orders entered by the Court. By virtue of r.2.11(b) of the those Rules, the seal or stamp of the Court may be attached to a document by electronic means. An order of the Court may be entered under the seal of the Court and signed by a Registrar.[12] An order may be signed by electronic means.[13] There is no defect in the documents identified by the applicant. There is no merit to the applicant’s argument on this point.
[12] Rule 16.08(1)(b)(ii) of the Federal Circuit Court Rules.
[13] Rule 16.08(1A) of the Federal Circuit Court Rules.
There is no power for this Court in reviewing a sequestration order to make the orders sought by the applicant in paragraphs 4 – 10 inclusive of the application.
There is one other matter that I think is fatal to any assessment of the merits of the applicant’s proposed grounds of review. The applicant did not provide any evidence that at the time of the making of sequestration order, he was solvent. In his submissions before me, he acknowledged that at the time the sequestration order was made, he would not have been able to pay the debt that was owed. In other words, during his submissions, he appeared to acknowledge he was insolvent at the time the sequestration order was made.
In summary, I am not satisfied there is an adequate explanation for the delay in filing the application for review. I am not satisfied that there is any merit in the arguments advanced by the applicant in support of his application for review. I am not satisfied that it is appropriate to make an order extending the time in which to file his application.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 7 October 2016
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