Pollack, P.J. v Walker, P.J

[1989] FCA 351

2-

LIMITED D I S T R I B U T I O N

JUDGblEF!T No. ........ ........ .. ........ .. 351 8 7

CATCHWORDS

CONTEMPT OF COURT - S w e a r l n g of fa lse a f f l d a v l t of servlce of

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bankruptcy n o t l c e .

P H I L I P JOHN POLLACK V PAUL JAMES WALKER

NG	22	of 1 9 8 9
11 MAY	1 9 8 9

LOCKHART	J .
SYDNEY

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	NO. NG22 of 1989
GENERAL DIVISION

BETWEEN:  PHILIP JOHN POLLACK

Applicant

AND :  PAUL JAMES WALKER

Respondent

11 MAY 1989

REASONS FOR JUDGMENT

LOCKHART J .

This is a proceeding by Philip John Pollack against Paul James Walker alleging contempt of court. The statement of charge asserts that on 2 May 1988 Mr. Walker made and verified an affidavit of service of a bankruptcy notice upon

MC. Pollack, which affidavit falsely and incorrectly stated	that Mr. Walker served Mr. Pollack by delivering a true copy	signed by the Deputy Registrar in Bankruptcy to him
personally at 41 Surrey Street, Epping, on Friday, 29 April 1988 at 5.00 pm and that Mr. Walker identified the person he served as Hr. Pollack by saying to a male person: "Are you Philip John Pollack the person referred to in the Bankruptcy Notice I now hand to you", to which the male person replied: "Yes, I am."
The charge proceeds in its second paragraph to assert that Mr. Walker made and verified on oath the affidavit of service of the bankruptcy notice knowing that it would be used in bankruptcy proceedings to be brought against Mr. Pollack including the issue of a creditor's petition by and on behalf of Westpac Banking Corporation.
In the defence filed by Mr. Walker he admits that on 2 May 1988 he verified on oath an affidavit of service of the bankruptcy notice in question which affidavit incorrectly stated that he served a true copy of the notice upon Mr. Pollack by delivering it to hlm personally on 29 April 1988. M . walker admits that he did not serve a copy of the bankruptcy notice personally on Mr. Pollack. He says the making of the affidavit of service and its verification upon oath was done honestly, mistakenly and inadvertently and not knowingly, fraudulently or neglrgently.
Hr. Walker denies in the fourth paragraph of his defence that he has been in contempt of court in the circumstances.
Following the filing of the affidavrt of service of the bankruptcy notice a petition seeking the sequestration of Mr. Pollackls estate was presented to this Court by the petitioning creditor, Westpac Bankrng Corporation, and that petition was served upon Mr. Pollack.
Mr. Pollack later applied to this Court to set aside the bankruptcy notlce which was heard before a Registrar on 27 October 1988. The creditor, Westpac Banking Corporatlon, appeared and orders were made by consent dismissing the petition.
Subsequently a motion for contempt has been filed and argued before me today. The issue before the Court is whether the affidavit of service of the bankruptcy notice, which was sworn by Mr. Walker and is admitted to be inaccurate, was inaccurate due to a genuine mistake and inadvertence or was an intentional and dishonest mistake.
There is dispute as to the facts surrounding the service of the bankruptcy notlce. Mrs. Pollack, the wife of Mr. Pollack, has sworn that at 1.10 pm on Friday, 29 April 1988 a man came to the front door of her home at 41 Surrey Street, Epping, and said to her "Does Philip Pollack live here?", to whch she replied: "Yes, he does", whereupon the man handed her a document and said to her: "Would you give this to him,
please." That document was the relevant bankruptcy notice. Mrs. Pollack deposes to the fact that immediately after she received that document she telephoned her husband at his office, her husband being a solicitor, and sald words to the effect that a man had just come to the front door with a document from Westpac headed "Bankruptcy Notice". She says that her husband left home that morning at about 7.15 a.m.
and did not return home until after 10.00 p.m. that night. She denies that the bankruptcy notice was given to her on 29
~ p f i l at 5 o'clock at her home.
Mr. Pollack has given evidence that at about 1.10 p.m. on Friday, 29 April 1988, he was in conference with a client in his office in Castlereagh Street, Sydney when his wife telephoned him and said to him words to the effect: "A man has just come to the front door and given me a document from Weetpac headed: 'Bankruptcy Notice'." Mr. Pollack swears that he is familiar with the bankruptcy rules and procedures and he believed that service of the notice had to be effected personally upon him. As it was not served personally he assumed that no further action would be taken in respect of it by Westpac Bankrng Corporation or their solicitors, Messrs. Hunt and Hunt.
Mr. Walker has given evidence and he says that after three or four unsuccessful attempts to serve Mr. Pollack at his home in Epping, finally, on 29 April at about 5.00 pm he served Mrs. Pollack with the bankruptcy notice. He said that
his wife was with him in the car at the time and that it was
her practice to accompany him when he served process.
An important document in the case is a letter from Hunt and Hunt, Solicitors, of 26 April 1988 addressed to Mr. walker whrch should be set out in full so far as its material parts are concerned. It says:

"Please find enclosed two copies of sealed Bankruptcy Notice. One copy is to be served upon Mr. Philip John Pollack at 41 Surrey Street, Epping, 2121 and the other copy is to be attached to a completed Affidavit of Service. We thank you for your help in this matter."

There appears on the letter certain handwritten material, some of which is crossed out but which appears to be in substance much the same as the handwritten material that has not been crossed out. That material reads: "Served female inmate 5.00 pm 29/4 at above." There is also a reference to $40 and to the letter and figures "H339" which in evidence was said to refer to a map reference of the particular area and street at which service was effected that day by Mr. Pollack.

Mr. Walker says that on the following day, Saturday 30 April, in accordance with his normal practice, he left with his secretary, a Mrs. Simons, a copy of the bankruptcy notice and the letter from Hunt and Hunt with the written notes on it. He says that M r . Simons prepared the affidavit of

service and that he picked it up from her three or four days	later and then took it with hrm to the Kensington post office
on 2 May 1988 where he swore the affidavrt. He says it was his practice to swear such affidavits at that post office. He says he had with him at that time about frve or six affidavits of service and that this was the last or almost the last of them. There was a queue behind him and he was hurried on by the person at the counter before whom the affidavits were to be sworn. In these circumstances he did not read that particular affidavit at all prior to swearing it before the postal officer who was a Justice of the Peace.
Mr. walker says that he recognizes that he made a mistake and that his affidavit was wrong. There is evidence that at or about this time Mr. Walker was suffering considerable personal misfortune and ill health, and that his wife was in a state of distress. He has sworn that he did not know the law as to the requirements for personal service of bankruptcy notices but he thought it was sufficient if he served bankruptcy notices upon someone apparently over the age of 16 years who had the authorrty of the debtor to receive the document. He says he learned later that his understanding of the law was in error.
Putting it at its highest for Mr. Walker, his conduct in and about the swearing of the affidavit was negligent. I do not accept that there was any excuse for his not properly instructing his secretary, even assuming his own case is
contents of it. Also, if he failed to check the affidavit true, as to what affidavit was to be prepared and as to the
after it had been prepared and swore it in a hurry, he did so with carelessness that in my opinion would constitute reckless indifference to its truth.

A real question arises as to whether I accept Mr.

walker's evidence. It was not corroborated by his wife but there is medical evidence that she is not in a fit state to give evidence, which I accept. I therefore dr-aw no inference adverse to Nr. Walker from the absence of his wife from the witness box.

I should say that the secretary of Mr. Walker, Mrs. Simons, also gave evidence today. It is a fair summary of her evidence to say that she has no real recollection of anything relevant to the preparation of the affidavit in this case that bears on the resolution of the factual dispute in the matter.

I neither accept nor reject the evidence that the notes on the letter of 26 April 1988 were made at or about the time of service of the bankruptcy notice. Plainly Mrs. Simons received instructions in some form to enable her to prepare the affidavit of service. Possibly she had before her the letter as well as a copy of the bankruptcy notice itself, but possibly she received oral instructions from Mr. Walker. At any rate, whatever the position be as to that matter, she prepared from some source the affidavit in the form which it

bears. I must however say that I do not accept that the	bankruptcy notice was served as Mr. Walker has sworn it was
at or about 5 o'clock on 29 April.
The critical question concerns the circumstances in which Mr. Walker came to swear his affidavit on 2 Nay 1988.
I have already summarised his evidence. I do not accept Hr.
Walker's evidence as to the circumstances in which he failed to check the affidavit, namely, that he did not check it because he was under pressure at the post office to hurry up. In my opinion, and I am satisfied beyond reasonable doubt, Mr. Walker knew when he swore his affidavit of service of the bankruptcy notice that it was false. He also knew that it would have serious consequences in bankruptcy proceedings to the creditor Mr. Pollack, and to the administration of bankruptcy law, but he hoped that, amidst the many other documents which he has served and in respect of which he has sworn affidavits of service, his error would go undetected.
I therefore, in all the circumstances, am satisfied beyond reasonable doubt that the charge has been established. I now turn to the question of sentence.
In view of Mr. Walker's long history of practice as a commercial agent and process server involving the service of process over some 17 years without any known blemish upon his charcter save these proceedings, and taking into account his emotional stress and poor health, I do not propose to impose any custodial sentence or fine. However this is not to
Bankruptcy notices are important documents to creditors and suggest that the offence is other than very serious.
debtors alike and to the due administration of the bankruptcy law.
Non-compliance with bankruptcy notices has quasi-penal consequences. Great care must be taken with their service and with the service of other documents, both in bankruptcy matters and other court proceedings. It is very easy for process servers to swear false documents as to service because in many instances the truth would never come to light. Process servers therefore have cast upon them considerable responsibility and trust.
I think it is sufficient In all the circumstances for the reasons I have given, that the Court seriously reprimands
MC. walker but takes no further actlon.
It is to be hoped that he will not repeat the conduct in question that is involved in these proceedings.

I certlfy that this and the preceding

eight (8) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

~ s s o c i a t e

Date: 11 May 1989