Re Watson, L. Ex parte Watson, L.

[1993] FCA 893

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1	No. QN454 of 1993
BANKRUPTCY DISTRICT OF THE STATE )
DUEENSLAND	)

LAWRENCE WATSON

Debtor

EX PARTE:	LAWRENCE WATSON
CREDITOR:	B O T T O M S  E N G L I S H
(Solicitors  )

CORAW:	WILCOX J
PLACE :	BRISBANE
DATE :	18 NOVEMBER 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: The matter before the Court is an application by

Lawrence Arthur Watson, a person on whom a bankruptcy notice has been served, seeking that the bankruptcy notice be set aside on the basis that he has a counterclaim set off, or cross demand of the kind referred to in para.40(1) (g) of the

Bankru~tcv	Act 1966.
The affidavit is not very informative in regard to the facts of the matter, but as Mr Watson appears in person I have invited him to inform me about the circumstances of the claim. He has gone into a considerable amount of detail, over a period of over an hour. I do not propose to attempt to summarize the matters which Mr Watson has alleged.

In support of his application, Mr Watson filed, served, and today read an affidavit sworn by himself dated 27 August 1993. It appears from this affidavit that the creditor who issued the bankruptcy notice is a firm of solicitors who acted for Mr Watson in 1988 in connection with a claim which he wished to bring against two other people.

I form no judgment at all about the facts of his dispute with his former solicitors. It is obvious that a judgment on those matters could only be responsibly made after both sides of the case had been considered, and all relevant documents read.

An affidavit was produced by Mr Anthon, acting for the creditor; this affidavit was sworn by one of the partners in the creditor firm, MS Ann English. The affidavit is well out of time, having regard to directions made by the Registrar, and MS English was not available for cross- examination. I informed Mr Watson before I saw the affidavit that, under those circumstances, if he objected, I would not

me that he wished me to see the affidavit, and accordingly I	receive the affidavit. Mr Watson, after consideration, told	received it, and it has been read. It conveys some additional information, but I repeat that, without hearing both sides of the matter, and being satisfied that all documents are available, one could not form any final view.
It is however, relevant to note that there was a claim brought for the debt, the subject of the bankruptcy notice, in the Magistrates Court at Cairns. This was defended by Mr Watson. MS English appeared on behalf of the creditor. There was apparently some cross-examination on both sides and addresses. At the end of the hearing, the Magistrate found the claim proved, and gave the judgment which is the foundation of the bankruptcy notice. The Magistrate was not, of course, concerned with any question of a counter-claim for negligence but it is relevant to note that he thought that the claim that was made was properly founded.
At the end of the day I have to ask myself whether I am satisfied, on the evidence before me, that the debtor has a prima facie case in respect of a counterclaim, set-off or cross-demand. There is certainly no prima facie case on the material which is strictly evidentiary; that is to say the affidavits. Even if I took account of everything that has been said from the bar table by Mr Watson, I would still not be satisfied that there is a prima facie case of liability in damages. It is not clear to me that the matter was
material before me to indicate that Mr Watson suffered any negligently conducted; but, even if it was, there is no financial loss as a result of any act or omission of the
solicitors. Under those circumstances, it seems to me that I have no option other than to dismiss the application and I take that course.

[Discussion re costs]

The application is dismissed. I order that the applicant pay the respondent's costs of the application. Those costs are not to include costs in relation to the affidavit of Ann Lillian English sworn on 17 November 1993.

I certify that this and the preceding three (3) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated:	18 November 1993
Debtor/Applicant in person:	Lawrence Watson
Solicitor for the Creditor:	R Anthon, Hemming & Hart
Date of hearing:	18 November 1993