Re Brljevic, Vlado Mirko & Anor v Pavlovic, Jozo

[1996] FCA 839

IN THE FEDERAL COURT OF AUSTRALIA                 )

BANKRUPTCY DISTRICT OF THE  )       VN 1584 of 1996

STATE OF VICTORIA  )

GENERAL DIVISION  )

BETWEEN:VLADO MIRKO BRLJEVIC and

MARIA BRLJEVIC

Judgment Debtors

AND:JOZO PAVLOVIC, IVOR ROSO and MILAN SIMIC

Petitioning Creditors

COURT:Sundberg J

DATE:28 August 1996

PLACE:Melbourne

EX TEMPORE REASONS FOR JUDGMENT

SUNDBERG J:
This is an application to set aside a bankruptcy notice.  The notice is based on a judgment given against the applicants, who are husband and wife, in the County Court on 4 October 1995.  The affidavit in support of the application is sworn by the husband.  I will read it:

My wife Maria Brljevic was unlawfully tried, Her human rights were taken away from her and treated as though by Gastapo.

Pavlovic, Roso and Simic used communist methods towards me.  I was tried without being present, To give the judge a false impression that I was a dangerous criminal.  All costs from my judgment were sent to my wife.  This is
likend to China's Communist methods employed on the victims of the Tianamin Square who's parents were sent the bill to cover the costs of the bullits used to kill their children  This is not the first time in Australia that Communist agents from Jugoslavia have tricked the Judges and Jury, to accuse an innocent Australian/Croatian.  To only have the Tax payer, pay the bill.

Before the hearing I requested a Translater due to my poor English.  Being a Pensioner I was not given any help in this matter.  During the hearing I had great difficulty understanding and responding to the issues brought up.

Never had I any legal representation, but had two solicitors against me.  My former solicitor, Galboli and O'brien, solicitors, worked to my detriment only to misrepresent me.

Long I have thought of going public with my plight, but have held back because of the shame to the Australian public, thinking that something like this can happen in a free, Democratic Australia.  Pavlovic, Roso and Simic have no reason to seek any claim from me.  It is my wife who was falsley accused and tried who has the reason to claim compensation.

Mr Irlicht, who appeared for the judgment creditors, asked me to strike out the affidavit under r 134 of the Bankruptcy Rules, which provides that:

The court may order that scandalous, irrelevant or objectionable matter included in a document filed in connection with the proceedings be struck out.

The first and second paragraphs, and the last sentence of the final paragraph, are scandalous and should be struck out.  Their sole purpose is to abuse the plaintiffs in the County Court proceeding and make offensive observations about the judicial system in Australia.

The third and fourth paragraphs and the second sentence of the final paragraph do not offend r 134.

In so far as the first sentence of the final paragraph, containing the husband's deliberations about "going public" with his "plight", is based on the material in the first and second paragraphs, it falls with them.  In so far as it is based on the material in the third and fourth paragraphs, it is irrelevant.  Either way, it should be struck out.

Pursuant to rule 134 I order that the first and second paragraphs and the first and third sentences of the final paragraph be struck out.

The application to set aside the bankruptcy notice is thus supported only by the third and fourth paragraphs and the second sentence in the final paragraph of the affidavit.  The Court will not reopen the judgment on which a bankruptcy notice is based unless a prima facie case of fraud or collusion or miscarriage of justice is made out.  The material that remains in the affidavit consists of unparticularised and, therefore, unsubstantiated generalisations, which do not establish such a case.

The applicant objected to the late service of the affidavit of Andrew Peter Dickinson, which he says was given to his daughter last night.  He did not seek an adjournment from the Registrar.  In fact he declined what I understand to have been the offer of an adjournment.  He rather suggested that he might have liked an adjournment from me, but I did not pursue the matter with him because I have not relied on anything in Mr Dickinson's affidavit in coming to the conclusion I have reached.

The application is dismissed with costs.

I certify that this and the preceding three pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg

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Associate

28 August 1996

Mr V Brljevic appeared in person for the judgment debtors.

Mr Irlicht of Irlicht & Broberg, as agents for Price Higgins, appeared for the judgment creditors.

Date of hearing:  28 August 1996