Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 4)

[2011] FCA 1296

FEDERAL COURT OF AUSTRALIA

Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 4) [2011] FCA 1296

Citation:		Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 4) [2011] FCA 1296
Parties:		NAPIAT PTY LTD v RODERICK NEIL SALFINGER; IN THE MATTER OF RODERICK NEIL SALFINGER
File number:		NSD 476 of 2011
Judge:		FOSTER J
Date of judgment:		8 November 2011
Legislation:		Evidence Act 1995 (Cth), s 136 Bankruptcy Regulations 1996, reg 16.01
Date of hearing:	8 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Mr AP Cheshire
Solicitor for the Applicant:	Gye Associates Lawyers
Counsel for the Respondent:	Mr P Fary
Solicitor for the Respondent:	Mr Barry B Moshel

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 476 of 2011

IN THE MATTER OF RODERICK NEIL SALFINGER

BETWEEN:	NAPIAT PTY LTD Applicant
AND:	RODERICK NEIL SALFINGER Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	8 NOVEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

Paragraphs 4‑10 of the affidavit of Clement Anthony Gye sworn on 7 November 2011 and filed herein on behalf of the applicant, together with Annexures B, C and D to that affidavit, be admitted into evidence but that the use which may be made of that evidence be limited to proving the state of knowledge of Mr Gye at various times in the period from February 2011 to June 2011.  

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 476 of 2011

IN THE MATTER OF RODERICK NEIL SALFINGER

BETWEEN:	NAPIAT PTY LTD Applicant
AND:	RODERICK NEIL SALFINGER Respondent

JUDGE:	FOSTER J
DATE:	8 NOVEMBER 2011
PLACE:	SYDNEY

REASONS FOR EVIDENTIARY RULING

1. The applicant reads several affidavits sworn by the applicant’s solicitor, Clement Anthony Gye.  The only objection taken to any of them is to the last which was sworn yesterday, that is to say, on 7 November 2011.  Objection is taken to paragraphs 4‑10 of that affidavit and to Annexures B, C and D to that affidavit.  Paragraphs 4‑10 are in the following terms:

   4.In about January 2011, my firm was retained by the Applicant to take bankruptcy proceedings against the Respondent.

   5.I instructed Jared Bennet, a law clerk in my office, to prepare and issue the Bankruptcy Notice against the Respondent.

   6.I then instructed Shane Shaw to serve it upon the Respondent.  I provided him with the search annexed to his affidavit of 11 April 2011.  I also instructed him in the following terms:

   “Mr Salfinger is involved in family law proceedings in Perth against his wife and the matter is back before the Family Court on 9 February 2011.  You should attend outside the Court and attempt to serve the Bankruptcy Notice on Mr Salfinger.  Try and find out Mr Salfinger’s current address in Perth in the event that he does not attend the Court hearing.”

   7.After the hearing on 9 February 2011 Mr. Shaw reported to me that the Respondent had given the address of 1 Davena Street, Dianella. 

   8.On or about 10 February 2011 I received the search in respect of Bema Gold (Australia) Pty Limited annexed hereto and marked with the letter ‘B’.

   9.On or about 24 May 2011 I obtained copies of the documents lodged with ASIC on 16 February 2010 and 18 May 2011 in respect of Bema Gold (Australia) Pty Limited that are annexed hereto and marked with the letter ‘C’.

   10.On 20 June 2011 I received the search in respect of Bema Gold (Australia) Pty Limited annexed hereto and marked with the letter ‘D’. 

2. Counsel for the applicant reads those paragraphs in support of an evidentiary case which the applicant wishes to propound to the effect that the relevant Bankruptcy Notice was served at the last-known address of the respondent as required by reg 16.01 of the Bankruptcy Regulations 1996.  Counsel for the applicant submitted that, until the respondent’s submissions were made available last Friday (4 November 2011), the applicant was not aware that the respondent wished to argue that the Bankruptcy Notice had not been served at the last-known address of the respondent. 

3. Once again, unfortunately, the Court has to mention the difficulties raised by the competing Notices of Opposition filed on behalf of the respondent.  The first Notice of Opposition contains paragraph 1 in the following terms:

   1.        The bankruptcy notice was not served on the respondent:

   (a)the respondent was not present within the jurisdiction at the time of purported service of the bankruptcy notice;

   (b)the respondent did not receive the bankruptcy notice in accordance with regulation 4.01 of the Bankruptcy Regulations or at all;

   (c)the address at which service of the bankruptcy notice is alleged is not the last known address to the applicant.

4. In other words, paragraph 1(c) of the first Notice of Opposition squarely raised the proposition which the respondent now wishes to run and which was covered by the submissions made available on his behalf last Friday. 

5. The second Notice of Opposition contains the following paragraph 1:

   1.        The bankruptcy notice was not served on the respondent:

   (a)the respondent was not present within the jurisdiction at the time of purported service of the bankruptcy notice;

   (b)the respondent did not receive the bankruptcy notice in accordance with reg 4.01 of the Bankruptcy Regulations or at all;

   (c)the applicant was aware at the time of alleged service that the address of alleged service was not the respondent’s address.

6. It may readily be seen that paragraph 1(c) in the second Notice of Opposition differs markedly from paragraph 1(c) in the first Notice of Opposition. 

7. It seems to me that the evidence now sought to be read, strictly speaking, arises in reply, if at all.  Mr Gye is subject to a notice for cross-examination.  It is therefore desirable that the evidence be ruled on before he is cross-examined.  Given the way in which the issue that is now sought to be agitated on behalf of the respondent has arisen, I do not think that the respondent can complain that the applicant now seeks to address that issue with some evidentiary material which, in part, addresses information passed to Mr Gye by a process server and, in part, relies upon public records maintained by the Australian Securities and Investments Commission.  The issue to which this material goes is whether the service of the Bankruptcy Notice was effected at the last-known address of the respondent.  The question of law embedded in that issue (ie, what is the meaning of the expression “…the last-known address” (of the respondent) in reg 16.01(1)(a)) is perhaps capable of more than one answer. This evidence is both admissible and relevant on one view of the meaning of that expression.

8. In the circumstances of this case, I propose to admit the material but, pursuant to s 136 of the Evidence Act 1995 (Cth), to limit the use to which it may be put to addressing only the question of what was known to Mr Gye in terms of the last-known address of the respondent at the times to which he refers in his affidavit. I appreciate that what was known to Mr Gye may be ultimately submitted as being that which was known to the applicant but that is a matter which will have to be looked at when all of the evidence is in.

9. I propose to allow the paragraphs and the annexures to which objection is taken on the limited basis to which I have referred.

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

Associate:

Dated:        14 November 2011