Re Barbaro, D. Ex Parte Amalgamated Television Services Pty Ltd (ACN 000 145 246)

[1992] FCA 213

JUDGMENT ~o.2!..3 .... /.,q2

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE	) No. P3978 of 1991
STATE OF NEW SOUTH WALES	)

RE:	DOMINIC BARBARO Debtor
EX PARTE:	AMALGAMATED TELEVISION SERVICES PTY LIMITED (ACN: 000 145 2461
Creditor

CO-:	HILL J
PLACE :	SYDNEY
DATED :	25 MARCH 1992

REASONS FOR JUDGMENT

Amalgamated Television Services Proprietary Limited petitions the court for the making of a sequestration order against the estate of Dominic Barbaro, the debtor.

The parties agree that, but for the matter of the service of the bankruptcy notice, the evidence before me proves all of the matters of which s.52(1) of the Bankruptcy Act 1966 ( " t h e A c t " ) requires proof and that the present is a case where the court would appropriately make a sequestration order. The debtor, however, challenges the service of the bankruptcy notice.

It is not in dispute that the bankruptcy notice must be delivered to the debtor personally as required by the

combination of s.41(4) of the Act and r.15 of the Bankru~tcy
Rules. So far as is relevant, r.122 provides that:

"(1) Where service of a document is effected on a person by delivering the document or a copy of the document to the person personally, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit -

(a) ...

(b)	the means by which he established that the person to whom the document was delivered was the person required to be
served with the document. "

An affidavit of service of the bankruptcy notice was
filed in the proceedings and was read. That was an affidavit

of Mr Glover, dated 12 September 1991. In that affidavit, Mr

Glover deposed that on the day before at 9.10 am he served Mr

Barbaro with the notice by delivering a sealed copy of it to

Mr Barbaro personally at Mr Barbaro's home in Fairfield. The	affidavit deposes that Mr Glover identified Mr Barbaro by
saying:

"Are you Dominic Barbaro, the person
described in this bankruptcy notice?"

He then says he handed that notice to Mr Barbaro who replied that he was. The affidavit annexes a sealed copy of the bankruptcy notice.

Mr Glover gave evidence orally and was cross- examined on his affidavit. Not surprisingly, for a person whose occupation is, essentially, that of a process server, a job which he had carried out for some 20 months, his independent recall of the transaction was somewhat minimal. However, M r Glover in cross-examination conceded ultimately that what was deposed to in para.2 of the affidavit was not accurate. Rather, Mr Glover, in his oral evidence, said that he identified Mr Barbaro merely by asking him: "Are you

Dominic Barbaro?". He accepted that the did not use the

words : "The person described in this bankruptcy notice" as suggested in the affidavit of service. He also says that at the time, he said to Mr Barbaro: "I have some documents for

you". He said he did not know what the documents were, other

than the fact that he knew that it was a bankruptcy notice. Apparently, Mr Glover had used similar words in other affidavits of service, which is perhaps not surprising given a tendency for process servers to use standard form affidavits,

which they do not record the true facts.	a tendency which is not to be encouraged to the extent to
Mr Glover was asked whether he had typed the affidavit and he denied having done so. One can infer that the affidavit was prepared by someone else, certainly in the sense that it was typed by someone else. I am not prepared, however, to infer that it was prepared without any regard to Mr Glover's instructions.
The case for the debtor was that the bankruptcy notice had not been served upon him but rather that it had been served upon his wife. It was submitted that there were served upon Mr Barbaro some documents, but those documents were the petition rather than the bankruptcy notice itself.

M r Barbaro gave evidence and was cross-examined.

According to this evidence, he was unable to speak other than very little English and, as a result, his evidence was assisted by a translator of the Italian language. Mr Barbaro was a somewhat unimpressive witness. He seemed to have a total inability to remember anything, even events that had nothing much to do with the present proceedings.

He was cross-examined about his ability to speak English, having regard to an encounter which was televised by the petitioning creditor and which resulted in defamation proceedings being taken by M r Barbaro which were apparently

unsuccessful and gave rise to cost orders which in turn gave

rise to the judgment upon which the bankruptcy notice is

apparently founded. The conversation, so far as it was put to

Mr Barbaro, was relatively mono-syllabic and of itself it does

not leave me in a position to form a view one way or the other as to Mr Barbaro's ability in the English language. However, his failure to respond to questions does cause me a great deal of concern.

Not only does his evidence suggest that he does not know whether he received the document or not, or more accurately, does not remember; his failure to remember other details and his demeanour in the witness box at the end of the day make it difficult for me to accept Mr Barbaro's evidence, such as it is. His counsel did not suggest that I was able to glean from Mr Barbaro's evidence anything of great assistance to his case.

Mrs Barbaro also gave evidence. She is obviously an intelligent lady and, I have no doubt, understood the significance of the evidence that she was giving. She was initially asked whether, in September 1991, she had received some documents on behalf of her husband. She was shown the bankruptcy notice, or a copy of the bankruptcy notice, and replied in terms which indicated that she had received documents "l ike t h a t " although she was not sure of the time when this had happened. The impression given by this evidence

was of some uncertainty. However, her recollection became stronger as the examination and the cross-examination

progressed until by the end of her evidence she thought that

she was positive, that she was " q u i t e s u r e u .

Mrs Barbaro's credit was attacked, particularly in the context of a transfer of the family house, which had previously been in the name of Mr Barbaro and herself, solely into her own name approximately one and half years ago. She was asked the reasons for so doing and indicated that initially she had paid most of the money for the house and that she thought that the transfer was a "good i d e a " . She was then asked whether she remembered discussing with her husband at the time of the transfer the possibility of his going bankrupt. She denied that she had. I have no doubt that there was a great deal more behind the transfer of the property into her name than that it was merely a "good i d e a " . Indeed, I have no doubt that there were conversations that took place between her husband and herself. I formed the view that she was not, in that respect, being frank in giving her evidence. She was also cross-examined about whether she had ever mentioned to any of the various solicitors that had advised on the matter the fact that the bankruptcy notice had been served upon her and not upon her husband. Her evidence was that she had not, until Monday of this week when the petition was listed for hearing on Tuesday. This I believe. The submission in essence of the petitioning creditor was that

purposes of the present case. I should see her evidence as a recent invention for the

At the end of the day the case depends solely on whether I believe Mr Glover, on the one hand, or whether I believe Mr and Mrs Barbaro, on the other. Having regard to the matters of credit to which I have referred, counsel for Mr Barbaro submitted that, where the question of the service of a bankruptcy notice is in issue the proof had to be established to the standard of reasonable satisfaction according to the nature of the case in accordance with the onus discussed in Helton v Allen (1940) 63 CLR 691. This was said to be so because bankruptcy involved an issue of great seriousness. Not only does it involve the sequestration of the estate of a debtor, but also a change of status.

For the purposes of the present case, I am prepared to accept that the seriousness of the issue affects the process by which reasonable satisfaction is obtained and that I should look at the matter in the way suggested. Although the cross-examination of Mr Glover did touch on his credit by revealing that that part of his affidavit to which I have referred was incorrect, at the end of the day I see no reason to disbelieve him. His evidence was, and to some extent this was confirmed by Mrs Barbaro, that he called at the house a number of times. It seems hardly likely that he would have done so if he believed that the documents could be served on

Mr Barbaro by leaving them with his wife.

The initial case of Mr Barbaro may well have been that Mr Glover served the petition and not the bankruptcy notice upon Mr Barbaro, but the evidence in the proceedings before me makes it clear that, in fact, another process server served the petition, so that that case clearly was not able to be made out. As I have already indicated, I do not accept Mr Barbaro's evidence. In particular, I do not accept his evidence that he does not recall being served. With greater doubt, I do not accept Mrs Barbaro's evidence either. On the whole, I formed the view that she was prepared under oath not to be frank with the court, at the very least, and, accordingly, I do not accept her evidence, at least in the more assured form that it finally took that she was positive that she had actually received the bankruptcy notice from Mr Glover.

The difficulty, of course, is that to a layman, most legal documents look the same and I have no doubt that it is possible that some legal documents, have at some stage, been served upon Mrs Barbaro, but I do not accept her evidence that the bankruptcy notice was.

On this basis I am reasonably satisfied, having
regard to the seriousness of the issue of bankruptcy, that the
bankruptcy notice was indeed served personally upon Mr Barbaro

being the case, and having regard to the concession of counsel on the 11 September 1991, as deposed to by Mr Glover. This

for Mr Barbaro that all other matters had been proved, I would
accordingly make a sequestration order against his estate.

I order the costs, including reserved costs, be taxed and paid according to the Act. I direct the draft of the order be delivered to the Registrar within seven days in accordance with r.124.

I certify that this and the
preceding eight (8) pages
are a true copy of the Reasons
for Judgment herein of his Honour

Mr Justice Hill.

Date: 25 March 1992 /

Counsel and Solicitors	I. Wales instructed by
for Applicant:	Mallesons Stephen Jaques
Counsel and Solicitors	J.T. Johnson instructed by
for Respondent:	Richard A Licardy & CO
Dates of Hearing:	25 March 1992
Date Judgment Delivered:	25 March 1992