Romeo v Wesley College
[2015] FCCA 3098
•17 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMEO v WESLEY COLLEGE | [2015] FCCA 3098 |
| Catchwords: BANKRUPTCY – Setting aside of bankruptcy notice – application dismissed. |
| Legislation: Bankruptcy Act 1996 (Cth), ss.40(1)(g), 41(2) Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r.3.02 |
| Romeo v Wesley College [2014] WADC 152 Romeo v Wesley College[2015] WASCA 52 |
| Applicant: | VINCENT JIM ROMEO |
| Respondent: | WESLEY COLLEGE |
| File Number: | PEG 377 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 17 November 2015 |
| Delivered at: | Perth |
| Delivered on: | 17 November 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms C. Rab |
| Solicitors for the Respondent: | Mossensons |
ORDERS
The orders of the registrar are affirmed.
The application is dismissed.
The applicant pay the respondent’s costs of the application. In the event of the bankruptcy of the applicant such costs be allowed as costs of the petition.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 377 of 2015
| VINCENT JIM ROMEO |
Applicant
And
| WESLEY COLLEGE |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application for review dated 2 November 2015 and filed by the applicant.
The application for review seeks a review of orders made by Registrar Trott on 26 October 2015, on an application filed by the applicant to set aside a bankruptcy notice served upon him by personal service and on 30 July 2015. The applicant also sought in that application by way of interim order, that time for compliance with the bankruptcy notice be extended up to and including 21 November 2015. Registrar Trott, in dismissing the application, ordered the applicant pay the respondent’s costs of the application.
The application for review is a hearing de novo. In evidence before the Court is the application of the applicant dated 17 August 2015 and his affidavit in support of that application sworn 17 August 2015 and its attachments. In addition, and tendered as an exhibit in the proceedings by the applicant, is a general procedure claim lodged on 9 November 2015 by the applicant, therein named Jim Vincent Romeo, in the Magistrates Court of Western Australia civil jurisdiction. That general procedure claim, which has yet to be served on the named defendants, claims an amount of $75,199.91 to be paid by the defendants to the claimant, and sets out in the description of claim essentially the same matters that are set out in the general procedure claim lodged on 22 December 2014 in the Magistrates Court of Western Australia civil jurisdiction, by the applicant, who therein referred to himself as Vincenzo Romeo, against differing named defendants, David Gee and Geoff Searle. The quantum claimed in that general procedure claim is $75,045.51. The named defendants in the application lodged 9 November 2015 are the Uniting Church, Wesley College and Trevor O’Sullivan.
In submissions made orally this day, the applicant confirms that the subject matter of both the general procedure claims referred to in the preceding paragraph, is the same as that subject matter contained in an earlier counter-claim filed by him in proceedings issued by Wesley College against the applicant in the Magistrates Court of Western Australia, in case proceedings Per/GCLM/15278 of 2012. The bankruptcy notice, number BN182827, issued by the Official Receiver on the application of Wesley College as a judgment debtor is founded in the judgment obtained by Wesley College in those proceedings. The applicant’s counter-claim brought therein was dismissed by the Magistrates Court of Western Australia on 20 December 2013. Attached to the affidavit of Mr Geoffrey Richard Searle sworn 26 August 2015 and marked as exhibit GRS1, is a copy of the applicant’s counter-claim in that proceeding. The respondent relies upon the evidence as contained in that affidavit. The respondent also relies in this proceeding on a notice stating grounds of opposition to the application dated 26 August 2015.
In essence, what the applicant’s counter-claim in the earlier proceedings and his claim in the two general procedure claims that he has lodged in the Magistrates Court of Western Australia which are currently on foot, is that Wesley College failed to properly supervise his son, Gabriel Romeo, and that as a consequence, his child was severely bullied by his peers. The period in which the applicant claims this treatment of, and the failure to supervise properly to avoid such treatment of, his son, by and at Wesley College, is the same period in each of the outstanding two general procedure claims and counter-claim earlier lodged, and the quantum sought by the applicant is approximately the same sum. The subject matter of each of the claims and counter-claim is, as confirmed and conceded by Mr Romeo this day, the same subject matter.
The counter-claim of the applicant was dismissed in the proceedings numbered Per/GCLM/15278 of 2012. Such dismissal was upheld on appeals to the District Court of Western Australia and the Supreme Court of Western Australia - Court of Appeal. The applicant does not argue that his outstanding claims on which he relies this day, are different from that contained in the counter-claim which was earlier dismissed. Nor, were it different, is any reason proffered as to why such claims could not have been litigated in the proceedings wherein the applicant’s counter-claim was dismissed.
In the affidavit in support of his application before the Court this day, the applicant set out a number of matters on which he sought to rely in this proceeding. He withdrew in respect of three of such matters. He withdrew his claim that the bankruptcy notice was an abuse of process. Clearly, it is not an abuse of process. He withdrew his claim that the original parties to the default were different, on the basis that his alleged legal name is Vincenzo Romeo. Again, it was clearly appropriate that he withdraw that claim. The parties to the original proceeding, in which orders were made on 20 December 2013, and which is the judgment which forms the basis of the bankruptcy notice, are Wesley College, and as one of the two defendants, Vincent Jim Romeo. Further, Mr Romeo swore an affidavit on 6 January 2014 referring to himself as Vincent Jim Romeo, the first named defendant. This application for review of the registrar’s decision has been filed in the name of Vincent Jim Romeo. Mr Romeo conceded before the Court this day Vincenzo Romeo and Vincent Jim Romeo and Jim Vincent Romeo are all one and the same person, who is the applicant in these proceedings.
The third matter that the applicant has withdrawn is his claim that the judgment debt was different from the bankruptcy notice. That is so because on the judgment made by the Magistrates Court of Western Australia dated 20 December 2013, there is not only judgment for the claimant against the defendant in the sum of $39,856.94, but a further order, being order number 2, that the defendants pay interest on the judgment sum from 17 July 2012, calculated at the rate of six per cent per annum. The order is dated 20 December 2013, and the bankruptcy notice sets out for the benefit of Mr Romeo the necessary calculation of the relevant sum. Again, it was appropriate that Mr Romeo withdrew that claimed ground.
Thus, in respect of the application to set aside the bankruptcy notice, the applicant proceeds on one ground, namely his assertion that he has a counter-claim exceeding the amount claimed in the bankruptcy notice and that he otherwise satisfies s.40(1)(g) of the Bankruptcy Act 1996 (Cth) (“Bankruptcy Act”).
As counsel for the respondent correctly submitted, the applicant has failed to comply with r.3.02 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth). The affidavit which he filed to provide an evidentiary basis to his claim did not provide any such basis. In fact, none of the matters referred to in r.3.02(2)(a), (b) and (c) were included in that affidavit.
The ground relied upon by the applicant does not warrant the setting aside of the bankruptcy notice. The counter-claim sought to be raised by the applicant has already been dismissed in the original substantive application between these parties in the Magistrates Court of Western Australia, and on appeal to the two superior courts, the applicant’s appeals have been dismissed. The applicant appealed the dismissal of the counter-claim to the District Court of Western Australia in the case of Romeo v Wesley College [2014] WADC 152. Such appeal was dismissed. The applicant then unsuccessfully appealed the decision of Judge Wager to the Supreme Court of Western Australia – Court of Appeal. The Supreme Court of Western Australia – Court of Appeal dismissed the appeal in the case of Romeo v Wesley College[2015] WASCA 52.
Finally, and for completeness sake, the bankruptcy notice was in the form of form 1 of Schedule 1 to the Bankruptcy Regulations1996 (Cth) and in accordance with reg.4.02 and s.41(2) of the Bankruptcy Act. There is no issue as to service, it having been personally served, and service is acknowledged by Mr Romeo. The act of bankruptcy is said to be committed under s.40(1)(g) of the Bankruptcy Act. The judgment debt is a final judgment or final order of the Magistrates Court of Western Australia. The bankruptcy notice is valid and there are no defects which are required to be cured or which would render the notice fatal. The notice accurately follows the judgment. The Court is not satisfied that the applicant has any counter-claim as required under the relevant section of the Bankruptcy Act.
In these circumstances, the orders which the Court makes are to dismiss the application with costs.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 19 November 2015
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