Pitney Bowes Inc v Robertson

[2000] FCA 863

FEDERAL COURT OF AUSTRALIA
Pitney Bowes Inc v Robertson [2000] FCA 863

PRACTICE AND PROCEDURE – Application to set aside orders made in default of appearance – Issue whether applicant on motion had notice of proceeding before orders made – Question as to identity of person running a registered firm.

PITNEY BOWES INC and PITNEY BOWES AUSTRALIA PTY v BOB ROBERTSON aka ROBERT SAMUEL ROBERTSON aka ELIAS KHURY trading as PITNEY MAILING SERVICES and MAHMOUD HOMSI trading as PITNEY MAILING SERVICES

NG75 of 1998

WILCOX J
SYDNEY
22 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG75 of 1998

BETWEEN:

PITNEY BOWES INC
First Applicant

And

PITNEY BOWES AUSTRALIA PTY
Second Applicant

AND:

BOB ROBERTSON aka ROBERT SAMUEL ROBERTSON aka ELIAS KHURY trading as PITNEY MAILING SERVICES
First Respondent

And

MAHMOUD HOMSI trading as PITNEY MAILING SERVICES
Second Respondent

JUDGE:	WILCOX J
DATE OF ORDER:	22 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Notice of Motion dated 20 April 2000 be dismissed.

2.The applicant on the motion, Robert Samuel Robertson, pay the costs of the motion incurred by the respondents to the motion, Pitney Bowes Inc and Pitney Bowes Australia Pty.  Those costs may be taxed forthwith.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG75 of 1998

BETWEEN:

PITNEY BOWES INC
First Applicant

And

PITNEY BOWES AUSTRALIA PTY
Second Applicant

AND:

BOB ROBERTSON aka ROBERT SAMUEL ROBERTSON aka ELIAS KHURY trading as PITNEY MAILING SERVICES
First Respondent

And

MAHMOUD HOMSI trading as PITNEY MAILING SERVICES
Second Respondent

JUDGE:

WILCOX J

DATE:

22 JUNE 2000

PLACE:

SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  The application heard today was instituted by a notice of motion filed on 20 April 2000 and supported by an affidavit of the applicant on the motion, Robert Samuel Robertson.  The thrust of Mr Robertson's application is that he had no knowledge of the proceeding prior to judgment being entered against him on 2 February 1999.  On that basis, he argues the orders then made should be set aside. 

2. The orders made on 2 February 1999 followed a lengthy process during which the applicants in the principal proceeding sought to serve a person whom they knew as Elias Khury trading as Pitney Mailing Services.  During the course of attempts at service and inquiries, they formed the belief that Elias Khury was the same person as the applicant on the motion, Robert Samuel Robertson also known as Bob Robertson. 

3. There seems to be no doubt that the applicant on the motion is indeed Robert Samuel Robertson; the question litigated in this motion is whether he is also the person known as Elias Khury. 

4. The records of the Department of Fair Trading show that the registered proprietor of the business name,“Pitney Mailing Services”, at material times was Elias Khury.  An address for Mr Khury was given at Bexley which appears to have been incorrect.  The firm was known to conduct business at premises known as 36 Cowper Street, Parramatta or, on some versions, Harris Park.  Harris Park, of course, adjoins Parramatta.  The lessee of the premises at Cowper Street was “Elias Khury trading as Pitney Mailing Services”.  The lease that is in evidence covers a term of two years commencing 1 April 1997.  However, the lessee may have entered into possession somewhat earlier.  I say this because there is evidence of an earlier conversation (apparently about November 1996) between a person who identified himself as Elias Khury and Timithy John Clare, a director of the lessor company.  The lessor itself carried on business at 36 Cowper Street. 

5. Mr Clare said Mr Khury identified himself as “the new tenant upstairs”. Thereafter he saw Mr Khury every two days or so for a period of about twelve months until November 1997.  Between that date and about April 1998, he saw Mr Khury less frequently; he estimates about once per month.  During April and May 1998, he saw Mr Khury a total of about six times.  Mr Clare identified the person he knew as Elias Khury as the person portrayed in a photograph annexed to his affidavit.  That photograph is conceded to be a photograph of Mr Robertson.  Mr Clare was not required to attend for cross-examination.  His evidence has not been challenged.  His evidence alone is enough to satisfy me that Mr Robertson is the same person as Mr Khury.

6. Mr Robertson denied he was Mr Khury.  In support of that denial, he gave evidence that I am not prepared to accept.  According to Mr Robertson, he had no interest in Pitney Mailing Services.  He was aware of the existence of the firm, because he knew a man called Mark Homsi who was running the business of that firm for a period of some months, perhaps about twelve months, after March 1997.  Mr Robertson had previously been in a business which held stock that would be of interest to Pitney Mailing Services.  This stock was not passed on to the purchaser when Mr Robertson sold his business and he had it stored in his garage.   Mr Robertson says that he arranged with Mr  Homsi to take this stock, to be sold on a consignment basis by Pitney Mailing Services.  In the picture portrayed in Mr Robertson's affidavit, that was his only association with Pitney Mailing Services. 

7. It turns out, however, that in June 1998, Mr Robertson was seen by Mr Robert Gargan, private inquiry agent, to leave premises at 8 Cooper Street, Smithfield, in company with a younger man, who might perhaps have been Mr Homsi, carrying three garbage bags of documents.  Mr Robertson put the bags into a rubbish skip.  Mr Gargan later examined their contents.  He found the bags contained numerous documents associated with Pitney Mailing Services.  Copies of some of these documents were produced in evidence.

8. It may be, of course, that Mr Robertson was simply helping the other man carry out his garbage, without Mr Robertson knowing what was in the bags.  If that is the situation, it can only be regarded as an interesting coincidence. 

9. An even more interesting coincidence is a connection between Pitney Mailing Services and a woman named Anne Dennis, with whom Mr Robertson has had a close relationship.  At one stage, Mr Robertson and Ms Dennis were joint owners of a business name, “R & N Baby Products”.  In their application for registration of that name, they each stated they were resident at 18 Vineyard Avenue, Smithfield.  Mr Robertson said in evidence he owns that property and lived in it for about three months.  As I understood him, he suggested he did not live there at the same time as Ms Dennis.  However, it is to be noted that each of them gave this as their current residential address when they made application for registration of the name R & N Baby Products. 

10. Two telephone numbers used for the business of Pitney Mailing Services were held in the name of Ms Dennis for a considerable period in 1997/1998.  When this association was put to Mr Robertson, he said Ms Dennis got a job with Pitney Mailing Services, but quite independently of any initiative by him.  I find this difficult to believe.  It is even more strange that, if she was a mere employee without a close relationship with the employer, she would be the telephone subscriber. 

11. During the course of his evidence, Mr Robertson made a number of assertions that conflict with statements in documents whose accuracy he has affirmed.  They include documents regarding registration of business names.  They also include applications for preselection by the Liberal Party, as a parliamentary candidate, in which he certified he had personally completed the details and they were correct in every particular; yet they are in conflict with sworn evidence he gave today.  I have no confidence in any uncorroborated evidence given by Mr Robertson.  The evidence before the Court indicates that, as a matter of probability, Mr Robertson and Mr Khury are one and the same person. 

12. It is conceded by Mr Stojanovic that the service effected in this case, although substituted service in the sense of being left with an employee of Pitney Mailing Services, would have come to the attention of Elias Khury, whoever he is.  It follows that if I find that Mr Robertson and Mr Khury are one and the same person, as I do, I have to conclude the process came to the knowledge of Mr Robertson before judgment was entered.  He had an opportunity of appearing and defending the matter, but chose not to do so.

13. Mr Stojanovic suggested that, if this application fails, his client should nonetheless be allowed to defend on the merits.  This may be so, and I do not shut the door against a subsequent application.  However, if there is to be any such application, it should be supported by an affidavit which indicates there is a good defence on the merits.  Whether Mr Robertson would be able to reconcile evidence of such a defence with the evidence he has so far given to the Court, is a matter he will have to consider.

14. The appropriate order in respect of the present application is that the notice of motion dated 20 April 2000 be dismissed.  I order that the applicant on the motion, Robert Samuel Robertson, pay the costs of the motion incurred by the respondents to the motion, Pitney Bowes Inc and Pitney Bowes Australia Pty.  Those costs may be taxed forthwith.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             22 June 2000

Counsel for the Applicant:	D Sibtain
Solicitor for the Applicant:	Colin Biggers and Paisley
Solicitor for the Respondent:	Stojanovic Solicitors
Date of Hearing:	22 June 2000