Re Vance, B.J. & Anor v Ex parte J.A. Parsons

[1985] FCA 569

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C A T C H W O R D S

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BANKRUPTCY - creditor's petition - whether bankruptcy notice

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served - what constitutes proper service

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RE: BARRY JAMES VANCE AND DIANE MARGARET VANCE

E X PARTE: J. A. PARSONS AND ORS.

QLD PFT 780 of 85

PINCUS J.

BRISBANE

15 NOVEMBER 1985

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IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION ) QLD PET 780 of 85

BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF OUEENSLAND )

FE: BARRY JAMES VANCE AND DIANE MARGARET VANCE

M PARTE: J. A . PARSONS AND ORS.

MINUTES OF ORDER

PINC S ORDER: MAKIN JUDGE S.

DATE OF ORDER:	15 NOVEMBER 1985
WHERE MADE:	BRISBANE
THE COURT ORDERS TPAT:

1. The petition be dismissed in so far as It

relates to Earry James Vance.

2. That the petitioning credicors pay the

costs of the said Barry James Vance of

and incidental to the petition, to be

taxed.

3 . That the petition be set down for further hearing in so far as it relates to Diane Margaret Vance.

4. That the costs of and incidental to the determination of the question whether the

petition was fully served on Diane

Margaret Vance be reserved.

m: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD PET 780 of E5

BANKRUPTCY DISTRICT OF THE SOUTHERN 1 i

DISTRICT OF THE STATE OF OUEENSLAND 1 !

RE: BARRY JAMES VANCE AND DIANE MARGARET VANCE

M PARTE: J . A. PARSONS AND ORS.

PTNCUS J. 15 November 1985

REASONS FOR JUDGMENT

This is a petition for a Sequestration Order against the debtors,

Mr. and Mrs. Vance. There has been tried before me the question whether the bankruptcy nocice was served on either debtor. At

the conclusion of the hearing I intimated that I was not prepared

to find that there had been service on Mr. Vance and the reasons

for that view appear below.

The process server used by the petitioning creditors was one

Ivor Williams who gave evldence and was cross-examined before me.

He made an affidavit on 5 August, 1985 deposing to the fact that

he served the notice on Mr. Vance by delivering it to him

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personally at Ingham Road, Bohle. Mr. Vance denies having

received the notice and gives a version of events diverging

sharply from that of the process server.

Counsel for the debtors attacked Mr. Williams' credit, claiming that he is biased against the debtors and is inclined to

dishonest conduct. As to the former point, I am in no doubt;

although Mr. Williams insisted that he is not persistently

hostile to the debtors, there was substantial evidence to the

contrary, including evidence of Miss Megan Crowley, that, quite

recently, Mr. Williams spat on Mr. Vance in a courtroom at

Mareeba and called him a little rat. I accept that evidence and

also find on the same occasion Mr. Williams referred to Mrs. to act on the evidence of Mr. Williams is his admission that he has, agaln recently, made application to the Warden's Court in

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Queensland under a false name. Counsel argued, and I am inclined

to agree, that attempting to decelve a court on such a baslc

question as one's name goes strongly agalnst credlt. There are other matters which tend in the same direction; in particular,

Mr. Williams' explanation for the admitted use of the expression

"old slut" in the court at Mareeba, namely that he was referring

to Mr. Vance's dog, seemed to me very implauslble.

To come now to the opposed accounts of the alleged service on Mr.

Vance, Mr. Williams swore that he went to premises of Curtain

Bros. in Townsville on 2 August 1985 and kept the premises under

observation. During the afternoon he noticed Mr. Vance walking

towards the front gate, came up beside him and told him he had a

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bankruptcy notice Tor him. Mr. Vance continued walking,

according to Mr. Williams, so Mr. Williams placed the bankruptcy

note against his shoulder; Mr. Vance is said to have kept

walking and let the notice fall to the ground. According to Mr.

Vance, nothing like that happened. His affidavit evidence was

that he saw Mr. Williams near the Curtain Bros. premises at a

distance of about 100 metres. On seeing Mr. Williams, he

"immediately" left Curtain Bros. and did not see or speak to

Williams again at any time that day. In his oral evidence, Mr.

Vance retreated from the suggestion that he left immediately but

adhered to the story that Mr. Williams did not come near him.

The only other point with respect to the alleged service on Mr.

Vance whlch requires mention is that Mr. Williams said, that

after serving Mr. Vance, he spoke to people in the Curtain Bros.'

office. He claimed that his Intention was to see Mr. Vance to

find out hls wife's address, to enable him to serve Mrs. Vance;

Mr. Wllliams said that he thouqht Mr. Vance "might like to be

present" when Mr. Wllliams served Mrs. Vance. I find that story

difficult to accept. It is common ground that Mr. InTilliams

enquired at the office of Curtain Bros. Mr. Cruckshank, an

accountant who was in the office at the time, said that Mr.

Williams said	he	wanted to serve "the Vances" with bankruptcy
documents.

It appears to me that the evldence of Mr. Cruckshank on this

point is more credible. I think it more likely that Mr. Wllliams

made enquiries of Curtain Bros., as is admitted, after the time

he had allegedly served Mr. Vance, because he had not in fact

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served him. I accept he accuracy of Mr. Cruckshank's

recollection that Mr. Williams said that he wanted to serve "the

Vances" .

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I was not impressed with Mr. Williams as a witness and am not

prepared to accept his version of events as against that of Mr.

Vance. Therefore, as indicated above, I am not prepared to find

there was any service on Mr. Vance.

The question of service on Mrs. Vance is a more difficult one

for, even not giving much credence to Mr. Williams' evidence,

there is other evidence in support of the contention that he

effected service on Mrs. Vance. It is not necessary to go into

the details of hls encounter wlth Mrs. Vance. The critical point

is that while she was seated in a motor car, he held the

bankruptcy notice up against a closed window of the car and at

least attempted to pass it to her. I think it probable that, had

Mrs. Vance looked, she could easily have seen that what was held

up was a bankruptcy notice. In Mr. Williams' affidavit, he says

that at one stage he put his hand on the driving side window, which was then partially open. Mrs. Vance wound the window up

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and caught one finger of his hand; some minutes after that she

released his finger. Mr. Williams goes on:

"I then handed the bankruptcy notice to her. She said, 'It

doesn't belong to me' and she then threw it out of the

vehicle on to the ground. I left it lying there."

Mrs. Vance gave evidence that she was frightened of Mr. Williams, who was banging on the window and windscreen of her vehic-le. In her affidavit, Mrs. Vance says that Mr. Williams placed the

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document against the windscreen and attempted to push it through

the window of the vehicle. Her evidence is that she did not know

what the document was but thought it was for her husband.

There are two apparently independent witnesses whose evidence may

be thought of assistance on this point. Mr. Fraser, the

Secretary of Curtain Bros., saw Mr. Williams attempting to serve

the notice while Mrs. Vance was In the vehicle. He asked Mr.

Williams what was going on and Mr. Williams said: "All I want to give her is this paper." Mr. Fraser suggested that Mr. Flilliams leave the property and arranged for the police to be called.

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Mr. Fraser observed the incident in	which Mr. Wllliams' fingers
were caught. His affidavit says:

"Williams was obviously in pain and asked Mrs. Vance to wind

the wlndow d o m again. She did wlnd the window down very

slightly, and as she did s o , Willlams removed his fingers

and at the same time, commenced to push the paper which he

had in his other hand through the small gap wnich had been

created. Mrs. Vance commenced to wind the window back up

agam and the paper fell	on the ground ...	I did not see Mrs.
Vance touch the paper."

When he gave oral evidence, Mr. Fraser was unable to say whether

Mrs. Vance took the piece of paper or not.

The other apparently independent witness on this issue was a

member of the Queensland Police Force, Const. A.E. Hussey. He

was called to the scene with a Sgt. Manfield and when he arrived,

Mrs. Vance was sitting inside the Curtam Bros.' office on a

chair. Const. Hussey said that Mrs. Vance said, among other

things, that a man had been trying to serve a notice on her,

mentioned the word bankruptcy, and said, "The notice was served '

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on me." Although I have no reason to think that Const. Hussey has any interest in the matter, I am not entirely convinced by his evidence. He did not appear to me to have any clear recollection of the details of the incident and seemed confident

only on the critical point, namely, the statement by Mrs. Vance

just mentioned.

Nevertheless, I am troubled by the evidence of Const. Hussey and

found that of Mrs. Vance, in some respects, unsatisfactory. I

turn now to the question: What must be shown to establish proper

service? Walters J. in re Long; ex parte Fraser Confirming Pty.

Ltd. (1975) 24 F.L.R. 392, in the course of a review of the

authorities as to service of bankruptcy notices, expressed the view that "strict compliance with the rules prescribing the

method of service of a bankruptcy notice must be insisted

upon ..." (p.396). To prove personal service, Mr. Hamwood

suggested It is necessary to show three elements; firstly that

the party be informed of the nature of the process; secondly that

the party be Informed of the processes intended for him, either

directly by necessary implication; and thirdly, that the document

be left so near to him that my stretching out his hand he could

receive it. Although the authorities cited by Mr. Hamwood

support his contentions, I am not satisfied that they apply to

service of a bankruptcy notice. Section 41(4) says, "Service of

a bankruptcy notice shall be effected as prescribed." The

prescription is to be found in Rule 15 which requires that,

unless otherwise ordered, "Service of a bankruptcy notice shall

be effected on the debtor by delivering to the debtor personally

a copy of the bankruptcy notice signed and stamped by the

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Registrar." It is not clear that leaving the nokice near the debtor, as might have been sufficient .for other purposes, is

enough to comply with Rule 15, nor that the requirements of the

I	general law as to personal service still-subsist, notwithstanding the provisions just mentioned.
Here, on the version given by Mr. Williams, .the notice was thrust
through the car window and Mrs. Vance took it and tossed it out.
Mrs. Vance, on the other hand, says that Mr. Williams tried to
push "this piece of paper" in the window. She said, "You can't
give me any documents from Pat." wound the window up and, ''as he
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snatched his hand back, the document went back too." Mrs. Vance said that only a small part of the document got inside the car.
It seems clear that Mrs. Vance knew that the document in question
had some legal significance. She said she was not sure what it
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It is difficult to come to any confident conclusion as to
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I	Mrs. Vance. I find, however, that a copy of the bankruptcy
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Mrs. Vance personally and hold that the fact that (although she

knew it was a legal document of some significance) she may not

i	have appreciated precisely what it was does not make the service
bad. It would have been quite easy for her to ascertain its
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i	I	It is necessary to add that Mrs. Vance complained of violent and
,	frightening methods used by Mr. Williams in the course of his
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attempts to serve her. I think that she was put in fear. It may

be that the use of such methods by process servers might found

an argument that service, although in compliance with Rule 15(a),

constituted an abuse of process. I am not satisfied that Mr.

Williams so behaved on the occasion in question	as to come within
the ambit of any such doctrine.

In the result, I hold that the bankruptcy notice is not shown to

I have been served upon Mr. Vance and the petition must be

dismissed so far as it relates to his estate. I hold, however,

that Mrs. Vance was duly served and the petltion will be listed

for further hearing as against her.

certify that this and the preceding

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judgment herein of His Honour

Mr. Justice Pincus

3.d- a e/ 'bociate

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