Re Bauer, E.M. v Ex parte Fiddes, G.D.

[1991] FCA 254

IN'THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1
EANKRUPTCY DISTRICT OF THE	1
STATE OF NEW SOUTH WALES	1

ERNA MARIA BAUER

Applicant

Ex Parte:

Respondents

Einfeld J Svdney 24 April 1991.

On March 11 1991 a Registrar of the Court made a sequestration order against Erna Maria Bauer (applicant) on the petition of Christopher John Mackay representing the respondents. On March 19 Dr Bauer filed an application to the Court to rescind the sequestration order. In the course of the argument on the motion for rescission it became possible to conceive the application as in fact being an application for an annulment under section 154(l) (a) on the grounds that the sequestration order ought not to have been made. Although no application for an amendment of the application for rescission has in express terms been made, the applicant appears in person and I am willing to consider this matter and the evidence that has been brought as equally able to found an order of annulment as

an order of rescission.

The applicant is a medical practitioner carrying on practice at Narrabeen. The matters in dispute concern the costs incurred by the applicant with the creditors petitioning for her bankruptcy, a firm of solicitors, who are the respondents to the application, in respect of proceedings in the Family Court in which they acted for the applicant.

The grounds on which the applicant seeks rescission and/or annulment are expressed in multifarious ways. I shall deal with the strongest of them. In the first instance the applicant disputes the debt or debts claimed or referred to in the petition on which the sequestration order was pronounced. The petition claims a debt of some $7812.55 made up of three amounts respectively recovered by the respondents in judgments obtained in the Local Court at Manly on three different dates, namely 25 July and 13 and 14 August 1990.

he petition is a little unusual because it is based upon the

failure to comply with a bankruptcy notice which had issued

out of the Court on 19 October 1990 for the payment of the sum

owing under one only of those judgments, namely that obtained

on 25 July 1990. No point has been taken that the petition is in some way defective for this reason although counsel for the respondents was unable to draw my attention to any particular statutory or judicial endorsement of this practice. The Registrar's rule 22 certificate does not draw adverse attention to this matter. I therefore proceed on the basis that the petition is not defective for that reason.

The applicant's dispute with the debt is not based on that ground but is based upon some form of generalised attack on the respondents and in particular the partner, Mr Christopher John Mackay, directly associated with the subject matters in issue.

The affidavit material in support of the application asserts that the applicant has, over quite several months, been seeking a detailed itemised account from M r Mackay of all the moneys he alleges are owing to his firm by the applicant. Upon analysis during the course of the evidence, this assertion discloses that there does not seem to be any dispute that at least the moneys claimed and referred to in the petition, including as it does the one item contained in the bankruptcy notice, are in fact owing. What may be in dispute are other moneys not yet the subject of any legal proceedings.

It is not at all disputed that the applicant was served with the statements of claim issued out of the Manly Local Court

which led to the judgments, proceedings which she did not

defend, and the applicant certainly admits that she knows what

the subject matter of the debts are. She admits that she owes the respondents significant moneys but claims that she does not know how much in precise terms. Upon examination, this is not a true disputation with the debt at all but a generalised query concerning all the accounts supplied to her, some of which are reflected in the creditors1 petition on which the sequestration order was pronounced.

No case has been made out, in accordance with the authorities which bind me in matters of this kind, for the re-opening of the three judgments forming the basis of the petition. I have not had an opportunity in the time available to me to consider the relationship between the two additional judgments referred to in the petition as against the one it shares jointly with the bankruptcy notice, but as no point has been taken on this issue, I do not stop to deal with it now in any detail.

What can be said is that the applicant in substance admits the debts referred to in the petition and says nothing other than that she is not satisfied with the detail provided in -the accounts submitted by the respondents to her. There have been

exhibited to me a number of those accounts. For what it is worth, they seem to me to demonstrate that significant moneys are claimed by the respondents from the applicant over and above those set out in the petition. They also manifest considerable detail although not of course in a form in which they would be able to be taxed in the Family Court if the

necessary procedures for such taxation had been initiated by	the applicant.
Despite requests by the applicant during this hearing, there is nothing at all that this Court can do to particularise further or to require further particularisation of the amounts which the respondents claim are owing by the applicant. All I can do is to find that there exist three judgments of the Local Court at Manly which have not been challenged here and as to which there has been no application of which I have been
informed, for their re-opening, reconsideration or setting aside by the Local Court. They are legitimate judgments which are entitled to form the basis of bankruptcy proceedings as it is admitted that they have not been paid. In those circumstances this ground of the application must fail.
The applicant, secondly, disputes the service of the bankruptcy notice. The circumstances surrounding this matter are, to say the least, quite extraordinary. By an affidavit of 12 December 1990, subsequently replaced by an affidavit of 7 March 1991, Mrs Sharon Venes, a legal clerk employed by the respondents in their office at Manly, asserts on oath that on 23 October 1990 at about 11.30 a .m. , she served Dr Bauer with what her affidavit describes as "a sealed copy of a bankruptcy notice signed by the Deputy Registrar, a copy of which is annexed hereto and marked "A"". She says that she handed the document to Dr Bauer at her surgery at 8 Waterloo Street, Narrabeen. The only difference between the affidavits of Mrs
Venes of 12 December and 7 March is the addition in the later one of the assertion that she is over the age of 16 years.
Some evidence was given in these proceedings about this service but I delay first of all to consider whether the affidavit of service complies with rule 16(a) of the Bankruptcy Rules. This rule provides that due service of a bankruptcy notice shall be deemed not to have been proved by affidavit unless a copy of the bankruptcy notice, signed and
stamped by the Registrar, is marked as an annexure to the affidavit.
A possible discrepancy in this regard was not raised by the applicant here but was brought to my attention by a Deputy Registrar in her rule 22 certificate. She pointed out that in the affidavit of service, and I would add in both of the affidavits of service that have been filed in the matter, what has been annexed to the affidavit of Mrs Venes is a photocopy of the signed and sealed bankruptcy notice.
In Re Hatchett and another ex Darte Shell Com~anv of Australia Limited [l9851 11 FCR 118, Mr Justice Pincus, sitting as the bankruptcy court in Queensland, held that insofar as the provisions of rule 16 purport to make the failure to annex to an affidavit of service a document actually signed and stamped by the Registrar, and not a photocopy thereof, fatal to the notice, they are invalid as being beyond the regulation-making power of the Governor General under section 315 of the
Bankruptcy Act. His Honour held that the failure to annex to the affidavit of service an edition of the bankruptcy notice
actually signed and stamped is not necessarily fatal and may in fact be cured by the exercise of the powers provided in section 306 of the Act.
However, his Honour went on to say that where the deponent of an affidavit of service of a bankruptcy notice swears that the debtor was served with a copy of the notice signed by the Registrar but made no reference to whether the copy bore the stamp of the Registrar, and annexed thereto a photocopy of a signed arid stamped copy of the notice, it was unsafe to assume that the bankruptcy notice served was one on which the original signature and the stamp of the Registrar appeared.
There are two matters that arise in this connection. The first is that Mrs Venes has sworn that she served a sealed copy of the bankruptcy notice signed by the Deputy Registrar, a copy of which was the document annexed to her affidavit. The second is that as the evidence established, and I shall come to the evidence shortly, there is little doubt that the original bankruptcy notice came into the hands of the applicant. As far as I am aware, she still has it in her possession. Had it been the case that the bankruptcy notice served upon her did not bear the seal and the signature of the Registrar in original form, this document would have been able to set the matter completely at rest and decided definitively. The document was not produced by Dr Bauer despite a full
debate and discussion of the matter in the course of this application.
I read the affidavit of Mrs Venes as attesting that a sealed copy of the notice signed by the Deputy Registrar was served and that the photocopy annexed to the affidavit is merely a photocopy of the document served containing an original stamping and signing. I agree with Mr Justice Pincus that this finding enables me to conclude that it is an appropriate

case to exercise the powers and discretion vested by section 306 to excuse this breach of rule 16(a) as being a formal defect or irregularity.

I come now to the drama of the service of the document. Much of the evidence in this regard is actually not disputed. It appears that Mrs Venes was asked by her employers to serve the bankruptcy notice on Dr Bauer. Mrs Venes says that she knew that Dr Bauer had to be served personally with the bankruptcy notice and that the alternative of leaving the document at her place of business, even with a reputable person such as her secretary or receptionist, would not have complied with the legislative requirements. Either on her own initiative or with the advice of another clerical employee of the respondents, she decided to serve the document by making an appointment to visit Dr Bauer as a patient. Believing that Dr Bauer would have known her name from several visits to her employers' practice, she made this appointment in a false name. This subterfuge was adopted because Dr Bauer was known

by, or had been reported to, the respondents as having in the	past deliberately created difficulties for the service of
legal process issued by the respondents. The appointment was made for 10.30 am on 23 October 1990.
The evidence is that Mrs Venes attended Dr Bauer's surgery at about that time. When she arrived, she was asked by the receptionist/secretary for her name. She gave her correct name but a false address or at any rate an address which was not the address of her employers. Her name was apparently written in a registration or appointment book by the receptionist or by Dr Bauer at some time during that morning. There was no evidence to explain the anomaly of Mrs Venes turning up to keep an appointment which, from the applicant's and her secretary's standpoints, had been made by someone else.
Dr Bauer's appointments were running very late; it was not until about an hour after the time of the appointment that she emerged from her surgery to invite Mrs Venes to commence her consultation. It appears that when Mrs Venes' name was called by the applicant to commence the consultation, she then went up to Dr Bauer at or adjacent to the desk/counter in the reception area of the doctor's rooms. So much of the evidence appears to be agreed. From that moment onwards the facts are disputed. As I have earlier commented, and as her affidavit reveals, Mrs Venes says that with an appropriate introduction she handed the bankruptcy notice to Dr Bauer personally. She
also handed her another summons for further unpaid fees of the respondents issued out of the Manly Local Court. Dr Bauer
says that after telling her that she had some papers for her, Mrs Venes threw a paper or some papers on the counter/reception desk and left. The impression I gained was that it is not disputed that Mrs Venes left somewhat peremptorily.

- l0 -

Dr Bauer says that the document or documents were not in an envelope, that she picked them up and without looking at them, folded them over and put them in an envelope. She says that she also inserted into the envelope a card which presumably was to have formed Mrs Venes' first medical record in Dr Bauer's surgery. Dr Bauer says that she did not recognise Mrs Venes then as she said that she did not recognise her yesterday when she was here in the court. Mrs Venes disputes even the possibility that Dr Bauer would not have recognised her because she said they had met each other, if not engaged in any particular detailed conversations, on some of Dr Bauer's visits to Mrs Venes' employers' practice.

This extraordinary tale perhaps reaches its climax when I record that Dr Bauer entered up a charge for a consultation for Mrs Venes which never took place, says that she did not pursue the charge because she did not have any address, ana says that she thought that Mrs Venes had left because she could not be bothered waiting any longer. Dr Bauer says that

occasion for her missed consultation. This is manifest	she thought Mrs Venes would probably come back on another	nonsense, whichever view of what happened at the counter is accepted.
In resolving this dispute it is firstly to be observed that Dr Bauer placed some emphasis upon the actual or potential embarrassment to which she would be subjected by the service of bankruptcy or any legal process in a small surgery waiting room filled with other patients and with her secretary. That, of course, is quite understandable but if the surgery was full of other patients, there would have been records for them similar to those kept in relation to Mrs Venes. Thus Dr Bauer would know who else was present at the time Mrs Venes was in her surgery waiting room at the time when the service is alleged to have taken or not to have taken place. Even more significantly, the receptionist or secretary would undoubtedly have been in a position to witness what took place.
Such persons would have been readily available to Dr Bauer to corroborate this significant dispute of which Dr Bauer -has been aware for a considerable length of time, yet no
supporting evidence was called of any kind whatsoever. There were reasons to scrutinise with care the evidence given by Mrs Venes. She was described by counsel for the respondents as forthright, a term which I should have thought in the circumstances was somewhat euphemistic. The arrogance of her manner and attitude to questioning certainly provided a basis
upon which Mrs Venes' evidence could be doubted. However, upon a careful consideration of what she said, the way she
said it and all the surrounding circumstances, together with the way in which Dr Bauer related her side of the story and other matters arising in the hearing, I was persuaded that on balance Mrs Venes' account ought to be accepted. I therefore find that the service of the bankruptcy was carried out in accordance with the Act and the rules.
The next significant matter raised by the applicant is that she was not served with a sealed copy of the petition, fully completed, including the date of hearing for which the petition was fixed. The evidence on this matter is also in dispute in strange circumstances. As a prelude to the explanation and resolution of the dispute, it is necessary to outline the facts in some detail. Dr Bauer says that a process server, now named as Thomas William Manuel, came to her Narrabeen surgery on two occasions. Mr Manuel says in his affidavit of service that these were 25 and 31 January 1991. Dr Bauer does not dispute those dates although she was unable to fix them herself.
M r Manuel asserts in his affidavit that on the first of those
two occasions he attended at about 1.55 pm when he served the applicant with a sealed copy of the creditors' petition and a sealed copy of an affidavit of Mr Mackay of 13 December detailing a search of the bankruptcy indexes held in the registry. Copies of both of these documents which Mr Manuel
petition annexed contains original handwriting, including the claims to have served are annexed to his affidavit. The copy signature of Mr Mackay, the countersigning or witnessing by a Justice of the Peace, and the dating and numbering of the petition. Its third page, the notice of hearing, bears the original stamp and signature of a Deputy Registrar and the dating of 20 December 1990. Also in original handwriting is the fact that the petition was presented to the Court on 13 December and will be heard at its sitting on 11 March (1991) at 9.15 on level 18 (of this building).
The second annexure bore the original signatures of M r Mackay and the Justice of the Peace and contained other original handwriting of various dates and words. One of the features of this particular document is that it stated in paragraph 3:

Other than the proceedings filed herein, I could find no record of any Bankruptcy proceedings in this District pending against Edward Byron, nor could I find any record that the said Edward Byron has previously become bankrupt in the preceding three

(3) years.

I thought his Lordship stopped writing poems more than a

hundred and fifty years ago. The error of "Edward Byron" for "Erna Bauer", corrected by a later affidavit, was the more careless for the fact that it was in an affidavit that was supposed to have been read before it was sworn.

M r Manuel says that on the second occasion, 31 January 1991,

he attended Dr Bauer's Narrabeen surgery at about 3.40 pm where he served her with sealed copies of two affidavits of Mr Mackay, both sworn 13 December, one verifying paragraphs 1, 2	and 3 of the petition, the other verifying paragraph 4 of the	petition. Copies of these documents were annexed to M r
Manuel's affidavit. These do not appear to be original documents but are photocopies of signed documents. Apart from the annexure notes, there appears to be nothing original on the affidavit in support of paragraphs 1, 2 and 3. This is a short affidavit. It says that it relates to a petition dated 11 December which is, of course, an incorrect date and I have been asked to extend the provisions of section 306 to correct
this error. As provided in the rules, it annexes the petition. In the copy filed, the annexed petition is not merely a photocopy of the original but appears to be a photocopy of a copy because the annexure note is also in
photocopy form. In other words, the affidavit of Mr Manuel
says that what he served on Dr Bauer, although described as a sealed copy, was in fact a complete photocopy.
The third page of the petition (the notice of hearing referred to earlier), unlike the first two pages which are in completed if photocopied form, is left in blank. In other words, it contains neither the date on which the Deputy Registrar signed it, nor the Deputy Registrar's signature, nor the stamp, nor most importantly of all, the proposed date of hearing of the petition.
The second of the two affidavits said to have been served by
Mr Manuel on 31 January is annexed in similar form to those
which were served on 25 January, namely that it is a photocopy
of the original typing but it contains the original signatures of the deponent and of the witness and some originally affixed
dates. Another relevant feature of this affidavit, verifying paragraph 4, is that it says it relates to a petition dated 19 October 1990. There was no such petition and I am asked again to treat this as a formal irregularity. I am satisfied that the two date errors contained in the two affidavits annexed to
M r Manuel's affidavit as having been served on 31 January,
while careless, are, in fact, formal and that section 306 should be brought to bear in that regard. I have said that Dr Bauer agrees that M r Manuel came to her surgery on two occasions in January of this year and does not dispute that the dates were as asserted by Manuel. However, she says that the petition that she received was, as she first described it, in blank. She even talked of a blank page. It later turns out that what she was almost certainly referring to was the third page of the annexuxe to the first of the two affidavits annexed to I4r Manuel's affidavit as having been served on 31 January, namely the affidavit of truth of paragraphs 1, 2 and 3 of the petition.
Dr Bauer says that this was the only copy of the petition she ever received; that when she saw that there were blanks, she thought that she did not have to worry about the matter and that she would, in due course, be informed by the Court or someone else as to the date for hearing. She says in support of the credibility of that evidence that bankruptcy is a serious matter; that she would have recognised it as serious; that "you don't play around with bankruptcy"; that if she had
had any idea that the matter was as serious as bankruptcy she obviously would have responded promptly; and that if a date
for hearing had been stated, she would have been there at the Court with "all engines in motion".
There are many reasons for discounting this evidence. One is that she already knew by this time that the respondents intended bankruptcy proceedings. Another is the way she treated the bankruptcy notice when it first: came to her
attention. The most important reason for rejecting this evidence is that if the petition did come to her attention in the way she says and her reaction was that bankruptcy was serious and needed to be responded to, the fact that a blank was left would not, as it seems to me, be sufficient to justify her doing precisely nothing about it.
I was thinking while she was giving evidence what an ordinary person who was genuinely anxious to comply with his or her legal obligations and had received a notice such as this with a blank in it, would be likely to do. Dr Bauer would have me believe that a person whose attitude to such documentation-was
genuine would do nothing. Having no experience at all of bankruptcy proceedings, its recipient would make an assumption that the court would, at some time or other, be in touch about this very serious matter with serious consequences and that pending the court's doing something about it, the recipient would do nothing.
To be asked to come to that conclusion stretches the imagination much too far. Assuming that Dr Bauer received the
creditors' petition in the form she suggests; assuming that she was as concerned with bankruptcy as she says; assuming that she is correct that its contents are quite untrue or at least unjustified and have not been the subject of proper legal proceedings and procedures; it is not conceivable that she would not have acted very promptly to defend herself against the threat which she was then obviously facing. The file number of the matter was inscribed upon the petition. A genuine recipient would be likely to ring the court or the person or persons who were petitioning for her bankruptcy to ask what the matter was all about, even to complain that the notice of hearing had been left in blank. Of all the things that someone professing the philosophies and attitudes espoused by Dr Bauer would be likely to do, I should have thought nothing would not be one of the first 25 choices.
However, the matter must be dealt with on a more confrontational basis. The effect of Dr Bauer's evidence is that Mr Manuel's affidavit is false. Mr Manuel has sworn that on 25 January he served a fully completed petition on the applicant. She said in the first instance that she did not receive it; on another occasion that she did not recollect receiving it; on yet another occasion that she did not notice it; on another that she did not ever see a completed third
Page
Before this hearing the applicant had given notice to the respondents that she wished Mrs Venes and Mr Mackay to be
available for cross-examination. She therefore knew what: her rights were in relation to the matters in dispute in these proceedings. Yet she gave no notice that Mr Manuel was required. Indeed, when I first asked her whether she wished to challenge Mr Manuel's evidence, she told me that she did not wish to challenge it because he did in fact come to her surgery on the two occasions and that something like what he says in his affidavit took place.
When I explained to her that the effect of M r Manuel's affidavit was to oppose and deny completely her assertion that she was never served with a notice of hearing of the petition, she commenced to mouth words suggestive that Mr Manuel should be here for cross-examination. I took that indication to be in substance an application for an adjournment of this hearing to enable that to take place, as the hearing was already well advanced and it was obvious that Mr Manuel would not be able to be here in a short period of time.
It is perfectly obvious that if a debtor is not notified of the hearing of a petition and the petition is subsequently made the subject of a sequestration order, the Court would act to right that wrong, especially if there appeared to be slightest substance to any possible defence which the debtor was able to point.
I was therefore at first sympathetic to an adjournment to enable Mr Manuel to be here. It seemed to me that Dr Bauer
may have misunderstood the purport of Mr Manuel's affidavit, and in particular the nature of the real and important dispute
between her and him on the question of her notification of the date of hearing of the petition. However, as was her wont despite many requests and warnings to the contrary, Dr Bauer spoke up about matters peripheral and irrelevant to the point at issue. In the course of one set of such utterances, she volunteered some documents which she said were the actual documents that Mr Manuel served upon her. It was my impression that her evidence was that these were the only documents Mr Manuel served upon her, but certainly they were among the documents. Dr Bauer denied changing or interfering with these documents in any way. She said that what she produced was exactly what was served.
The first document consists of four pages stapled together. The first page is a photocopy of the affidavit of Mr Mackay of
13 December, containing the paragraph referring to "Edward
Byron" to which I have earlier referred (the index search). Stapled to that document is the copy of the creditors' petition to which I have referred earlier as having been- an annexure to Mr Mackay's affidavit of the truth of paragraphs 1, 2 and 3 of the petition.
It is common ground between Mr Manuel and Dr Bauer that all of these documents were served on Dr Bauer on one or other of his visits to her surgery. However, unless by a gross error, it is perfectly clear that the petition could not possibly have
been annexed to the affidavit of search of the indexes. That affidavit makes no reference to the petition, unlike the
affidavit of truth of paragraphs 1, 2 and 3.
The condition in which the documents produced by Dr Bauer are to be found make it perfectly clear that the documents have been subjected to significant interference. First of all, the first two pages of the petition are separately stapled together but are not stapled to the third page. The top document, that is, the copy of the affidavit, is stapled to the other two documents by a separate, very untidy and inadequate staple, most uncommon of solicitors' offices.
The documents contain numbers in red biro at the top between quotation marks, which Dr Bauer admits that she affixed. The affidavit is thus numbered 1, the first two pages of the petition are numbered 2, and the third separate blank page is numbered 3. The other document that she produced, namely, the copy of the affidavit of Mr Mackay verifying paragraphs 1,2
and 3, contains no annexure A and no petition. In fact it is
a single page.
I conclude without any doubt that these documents have been the subject of manoeuvring and manipulation by Dr Bauer and that her denial of this fact is a lie. I further conclude from her numbering that the way in which the documents are put together and the general presentation of them has been done deliberately for the purpose of at least misleading herself
and possibly misleading others.
I forbear from concluding that it was done especially to mislead the Court, because the tendering of these documents and their presentation came very late in the hearing - in fact, during her final address. It is true that she volunteered them and pressed for them to be accepted into evidence, but the circumstances were not consistent with a deliberate attempt to deceive the Court. The conclusion I draw is that at the very least Dr Bauer is prevaricating on this issue. At the very best she is unable to deny credibly that an original of the petition containing the hearing date was served upon her.
Courts must always scrutinise disputed affidavits of service, because in my experience it is not at all unknown that process servers "cut corners" on occasions, and are not always absolutely truthful about what takes place. Nevertheless I cannot conceive that if this was a serious complaint, had Dr Bauer really wished to dispute the service of the petition, she would not have made that palpably clear from an early stage, and would not have ensured that Mr Manuel was present for cross examination.
In her affidavit filed in support of the application for rescission on 19 March 1991, Dr Bauer annexes a blank notice of hearing and says that the creditors' petition does not specify the day and time at which the petition was to be
heard. However, this was not a complaint that she was not informed and aware of the hearing date. Like for many of her
other points to the Court in support of her application, it seems to me that the applicant has on this matter gone through the documentation and tried to find ways and means to delay these proceedings and the recovery of whatever is owing by her. In my opinion the case that she was not served with a sealed copy of the petition showing the date and place of hearing is not made out, and I reject it.
The applicant finally claims that she is solvent. Although there is no evidence supporting this claim, she said from the bar table, without any opposition or dispute, that she has $400,000 in assets and only $20,000 in debts. Although it was known that she was claiming to be solvent, she was not cross examined on this assertion. She says that all she has ever wanted is an itemised bill, that she has never refused to pay, and that whenever she has asked for an itemised bill all she ever got was a document accompanied by what she was pleased to call a "fairy tale".
I have read all the material placed before me, including considerable detail in the accounts rendered to the applicant by the respondents and more than one detailed letter of explanation of the situation by Mr Mackay in relation to her non-payment of fees and disbursements. These accounts and explanations deserve more than mere puffery and rhetoric, and certainly more than typecasting in pejorative terms. If they are wrong, specifics are absolutely essential. A generalised
broadside on accounts and correspondence of the kind which I have read and heard from the applicant proves nothing other
than that the person making it is willing to say anything to frustrate and delay.
Not a single item of evidence or even argument has been placed before me suggestive that the accounts are wrong in any significant way, that she has been overcharged by any amounts at all, that the explanations given and the advice rendered to her were in some way false, misleading or unprofessional, or that she has not been given ample time to respond to her legal obligations. Contrary to her suggestion in substance if not in words, I am quite unpersuaded that she has been the victim of some major conspiratorial confidence trick or fraud.
The applicant said several times that she is formerly from Yugoslavia. She informed me that in Yugoslavia people often serve documents on other people as a bluff, without the slightest intention of following them up or taking action to enforce them. For the purposes of argument at least, I accept that assertion of fact. On the other hand, the applicant has now been in Australia for several years, she is a medical practitioner in full time practice, and she is no doubt in contact with people in all walks of life. She would be well familiar with the fact of, and the publicity regularly given in the media and elsewhere to, the non-payment of debts by people, enforcement procedures, and Australian practices in these regards.
As do many people of overseas birth who come before the Court, she claimed some imperfection in English and her capacity to
understand it. I always find that very difficult to believe in relation to professionals, especially doctors who have to listen to people speaking in English all the time about intimate and technical personal matters requiring precise identification of areas of the body or mind afflicted, and make and convey sometimes complex diagnoses. They must also possess significant capacities to relate on these matters to patients, staff, chemists, and especially to specialists and other medical practitioners both as to the conditions of patients and at conferences and other inter-professional meetings.
I found Dr Bauer's command of English to be superb. I only
wish that my command of any of the Yugoslav dialects would be as good in as short a time as she has been able to master English. She appealed to me as a clever, astute and shrewd professional. I could detect no lack of capacity to protect and defend herself and although I offered her such assistance as the authorities require when parties appear alone, I found that she needed very little of my assistance except perhaps to try to help her keep on the relevant point at the time. Although there are many cases where the Court must make allowances for a litigant's lack of understanding of their rights or of the language of this country, I can see no reason for any special allowance in this particular case.
the petition in the two affidavits of Mr Mackay, together with I conclude that the defects concerning the dates stated for
the defect under rule 16(a) in the affidavit of Mrs Venes, are formal and that no injustice has been caused by those defects.
The application is dismissed. I order that the applicant pay the respondentsf costs of the application.

preccdlng o-cos 1r4 a true copy of the

Re?sms for dudgrncnt here~n of h ~ s Honour

Jusi'ce Einfeld