Ross Mining NL v Donnelly

[1999] FCA 1181

FEDERAL COURT OF AUSTRALIA

Ross Mining NL v Donnelly [1999] FCA 1181

ROSS MINING NL v ANDREW JOHN DONNELLY & ANOR

N7708 OF 1999

EMMETT J

20 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7708 OF 1999

IN THE MATTER OF ANDREW JOHN DONNELLY AND DAVID MARK MUNDINE

BETWEEN:

ROSS MINING NL
Applicant

AND:

ANDREW JOHN DONNELLY
First Respondent

DAVID MARK MUNDINE
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

20 AUGUST 1999

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1.On 26 May 1999, there was delivered to Andrew John Donnelly in the Court of the Registrar of the Land & Environment Court a document, a copy of which is annexure ‘A’ to the affidavit of Clifford Robert Ireland sworn 29 June 1999.

THE COURT ORDERS THAT:

2.The leave given by the Registrar for the applicant to have access to the documents produced in answer to a subpoena addressed to the Proper Officer, New South Wales Police Service, which was filed on 10 August 1999, be revoked.

3.The documents referred to in Order 2 above be returned to the party that produced those documents.

4.The costs of the petition to date be reserved.

5.The petition be stood over for directions before Emmett J on 10 September 1999.

6.The applicant notify David Mark Mundine as soon as possible of the orders made today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7708 OF 1999

IN THE MATTER OF ANDREW JOHN DONNELLY AND DAVID MARK MUNDINE

BETWEEN:

ROSS MINING NL
Applicant

AND:

ANDREW JOHN DONNELLY
First Respondent

DAVID MARK MUNDINE
Second Respondent

JUDGE:	EMMETT J
DATE:	20 AUGUST 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. On 29 June 1999, Ross Mining NL (“the Petitioner”) filed a creditor's petition under the Bankruptcy Act 1966 (Cth) (“the Act”).  The respondents to the petition are Andrew John Donnelly (“Mr Donnelly”) and David Mark Mundine (“Mr Mundine”).  The return date for the petition was 4 August 1999.  On that day, the Registrar before whom the petition was listed referred the matter to a judge.  The matter came before me on that day.  An appearance had been filed on behalf of Mr Donnelly on 29 July 1999 and, at the same time, a notice of intention to oppose the petition was filed on Mr Donnelly's behalf. 

2. The petition alleges an act of bankruptcy in the following terms:

   “The applicant creditor has obtained against the respondent debtors, a final judgment for assessed costs, the execution of which has not been stayed, and has served on the debtors in Australia a bankruptcy notice under this Act and the debtors have not, within the time specified in the notice, complied with the requirements of the notice, or satisfied the Court that either of them has a counter-claim, set-off, or cross demand equal to or exceeding the amount of the judgment debt, being a counter-claim, set off or cross demand that either of them could not have set up any action or proceeding in which the judgment or order was obtained.”

   The ground of opposition was that a bankruptcy notice had not been served on Mr Donnelly as alleged in Petition. 

3. The Petitioner apparently intended to rely, for proof of that allegation, on an affidavit of Clifford Robert Ireland, which was apparently sworn on 29 June 1999 although it is expressed, in the preamble to the affidavit, to be made on 28 June 1999.  In paragraph 3 of that affidavit, Mr Ireland said:

   “On 26 May 1999, at approximately 11.40a.m. in the Registrar's Court on Level 1 of the Land and Environment Court, I personally served the bankruptcy notice which was attached to this affidavit as Annexure ‘A’ on a person I know by sight to be Andrew John Donnelly.  I handed the bankruptcy notice to Andrew John Donnelly and he took it in his hands and proceeded to read it.

   Annexed to the affidavit is a document entitled “Bankruptcy Notice” that, on its face, appears to be in the form prescribed under the Bankruptcy Regulations.  It bears the matter number NN907 of 1999 and also bears the signature of the Official Receiver.  There is attached to it a document entitled “Certificate as to Determination of Costs”.  The notice is said to be based on an order of the Land and Environment Court.  However, a question may arise, at some stage, as to whether the certificate is a copy of an order of the Land and Environment Court, which, under the regulations, should have been attached to the bankruptcy notice.

4. When the matter was first called on before me, the Petitioner was represented by Mr Ireland and Mr Donnelly was represented by Mr A. Oshlack, who is not a qualified legal practitioner.  However, there was no objection to Mr Oshlack representing Mr Donnelly and Mr Oshlack represented Mr Donnelly during the hearing.  At that stage, no appearance had been filed on behalf of Mr Mundine.  Nor did Mr Mundine appear. 

5. Mr Ireland indicated that the making of the sequestration orders sought in the petition was, from his client's point of view, a matter of urgency. He said that the Petitioner sought to rely on the provisions of section 60 of the Act, which has the effect, when a sequestration order is made, of staying, by force of law, all legal proceedings involving the bankrupt’s estate. When asked whether staying proceedings was the purpose for making the application, Mr Ireland responded that the purpose for making the application was to enforce his client's legal rights in terms of a cost assessment.

6. Mr Ireland went on to say that there are other proceedings on foot brought, in his client's view, on no real legal or factual basis in the Land and Environment Court and that those proceedings were ongoing.  Mr Ireland said that the Petitioner is incurring considerable costs in the course of those proceedings.  The proceedings relate to a gold mine of the Petitioner's at Timbarra.  Mr Ireland said that the only way that his client could foresee that a swift end could be brought to those proceedings was by obtaining a declaration of bankruptcy on the basis of a cost order made on 9 July 1998 by the Land and Environment Court.  I indicated to Mr Ireland that, if that was the purpose for bringing the petition, I may well consider dismissing the petition on the basis that it was an abuse of process.  Mr Ireland said, however, that that was not the sole purpose of bringing the petition. 

7. Initially, the only ground of opposition raised, as I have said, was non-service of a bankruptcy notice.  However, Mr Oshlack then intimated that he wanted to take up the contention that the petition was an abuse of process. After further debate, it became apparent that it was not possible, on that day, to determine all the questions that would arise under the petition. 

8. Therefore, in the course of the hearing on 4 August 1999, I indicated that, since the parties were ready to deal with the question of whether or not the bankruptcy notice had been served, it may be appropriate to make an order, under Order 29 of the Federal Court Rules, that I deal with that question prior to any other question arising on the hearing of the petition.  Accordingly, I made an order that the question of whether a bankruptcy notice was served on Mr Donnelly on 26 May 1999 should be decided separately from any other question arising on the hearing of the petition and before the hearing of those other questions.

9. I then proceeded to hear evidence from witnesses called on behalf of both the Petitioner and Mr Donnelly.  The procedure that then followed was, in many ways, highly unsatisfactory.  Mr Oshlack indicated that he wished to cross-examine Mr Ireland on his affidavit and Mr Ireland indicated that he wished to cross-examine Mr Oshlack on an affidavit that Mr Oshlack had sworn and filed in the proceeding.  Notwithstanding the irregular nature of such a procedure, I allowed the hearing to proceed rather than send the parties away and insist on representation by people other than those who were to give evidence before me.

10. In the event, the matter could not be completed on 4 August 1999 and, accordingly, I stood the matter over to today to complete the hearing on the question of whether or not a bankruptcy notice was served.  In the course of debate and address today, questions have been raised as to whether the document, which was alleged to have been served on 26 May 1999, was indeed a bankruptcy notice.  It is not appropriate that that question be resolved by any decision that I might make on the material that I have had before me today.  Accordingly, I shall only decide the question of whether the document, a copy of which is annexed to Mr Ireland’s affidavit, was served on Mr Donnelly on 26 May 1999. 

11. It is, of course, very unsatisfactory that there not be final resolution of these matters immediately.  Bankruptcy would affect the status of Mr Donnelly and Mr Mundine and, on one view, the purpose for which these proceedings have been brought is to do just that.  From the Petitioner's point of view, there must also be finality as to the issues that are to be raised in opposition to the petition.  I shall deal with that when I have given my reasons for reaching the conclusion that I have reached concerning the service of the document to which Mr Ireland refers in his affidavit.

12. In addition to the affidavit to which I have just referred, Mr Ireland also swore another affidavit, also, apparently on 29 June 1999 notwithstanding that it bears the date 28 June.  Paragraph 3 of that affidavit is in the following terms: 

    “On 26 May 1999, at approximately 11.40am in the Registrar's Court on Level 1 of the Land and Environment Court, I personally served the bankruptcy notice which is attached to this affidavit as Annexure ‘A’ on a person I know by sight to be David Mark Mundine.  I handed the bankruptcy notice to David Mark Mundine and he took it in his hands and proceeded to read it.”

13. Two other affidavits were relied on by the Petitioner.  The first was an affidavit of Mr Alexander William Dwyer, a solicitor employed by the solicitors for the Petitioner.  His affidavit, after objections, said as follows:

    “2.On a number of occasions I have assisted Mr Clifford Robert Ireland (“Mr Ireland”) in respect of this matter which relevantly was listed on 26 May 1999 in the Land and Environment Court before Registrar Dafkovski for the purposes of conducting a debtor's examination of each of the respondents. 

    3.On 26 May 1999, I attended the Registrar's Court with Mr Ireland.  We arrived at the Court a few minutes before 11am. 

    4.I attended on that occasion for the purposes of observing the proceedings and assist in the serving of each of the Respondents with the bankruptcy notice referred to as Annexure ‘A’ in Mr Ireland's affidavit of service of 29 June 1999 in these proceedings. 

    6.At that time and after the Registrar had left the Court, I saw Mr Ireland turn from the bar table and serve on Mr Andrew John Donnelly a document. 

    7.I was sitting about 1 or 2 metres from Mr Ireland as he served this notice and I saw the exchange clearly. 

    8.I saw Mr Donnelly accept the document and proceed to study it while saying words to the following effect:

    "Oh yeah, what's this, Robert?" 

    10.At that point and without responding to Mr Donnelly I saw Mr Ireland leave the court room.”

14. The other affidavit relied on by the Petitioner was that of Mr Heath Robertson, a solicitor employed by Taylor Kelso, solicitors who act for Tenterfield Shire Council.  Mr Robertson's affidavit relevantly says as follows:

    “3.On 26 May 1999, I was sitting in the Registrar's Court of the Land and Environment Court at 225 Macquarie Street, Sydney observing the mention of Land and Environment Court Proceedings 40295 of 1997.  On this occasion, Clifford Ireland acted for Ross Mining NL and Allan Oshlack for the debtors. 

    4.I attended the Court, on that occasion, as an observer and did not sit at the bar table but in the section of the Court behind the bar table.

    5. Both Andrew Donnelly and Clifford Ireland are known to me by sight, as a result of many dealings I have had with each of them in the course of this litigation, in my capacity as an employed solicitor of the solicitors for Tenterfield Shire Council. 

    6.During an adjournment in the mention of Land and Environment Court Proceedings 40295 of 1997 on that day, at approximately 11.40am, I observed Clifford Ireland turn from the Bar table and hand a document to Andrew Donnelly.  Words were briefly exchanged between Andrew Donnelly and Clifford Ireland. 

    7.I observed Andrew Donnelly retain the document and proceed to read it.

    8.Shortly thereafter, as Clifford Ireland passed through the door of the Registrar's Court, I heard Andrew Donnelly yell in a loud voice words to the following effect:

    "I am ashamed for your grand-fathers." 

    9.        I then heard Mr Ireland say words to the following effect:

    "I am acting under instructions."”

15. All three deponents were cross-examined by Mr Oshlack.  In the course of that cross-examination, further evidence was elicited which I shall summarise as follows. 

16. Mr Dwyer was asked whether he was in the Land and Environment Court on 26 May 1999 and to describe what he saw and heard.  Mr Dwyer relevantly said that, on that day, he saw the respondents, Mr Mundine and Mr Donnelly, in court for the purposes of a debtor's examination.  He said that he saw Mr Ireland hand to Mr Donnelly, whom he identified, some pieces of paper.  Shortly thereafter, Mr Ireland left the courtroom and disappeared from sight.  Mr Dwyer said that he believed there was an exchange of words but that he did not recollect what words came from Mr Ireland's mouth.  He said he did recollect Mr Donnelly saying the words that are in his affidavit. 

17. Mr Dwyer also said that, while he saw writing on the face of the piece of paper handed by Mr Ireland to Mr Donnelly, he could not read what was on the piece of paper from where he was sitting.  All he could observe was that the paper was white and that there was typeface on the front page.  He could not see anything past the front page. 

18. Mr Dwyer was also asked about the issue of bankruptcy notices.  He was asked by Mr Oshlack whether he brought any documents to court on 26 May 1999 and said that he had two copies of a bankruptcy notice.  He said that four copies of the bankruptcy notice had been filed.  He explained that he had left his office with four copies of the bankruptcy notice and that he gave two of those copies to Mr Ireland on his way to, or prior to, entering court on 26 May 1999.  He said that, on arrival at the Registrar's Court, he assisted Mr Ireland in unpacking his bag of documents and books and placing them on the bar table.

19. In answer to further questions from Mr Oshlack, Mr Dwyer said that he had brought four copies of the bankruptcy notice with him to court and that he had handed two copies of the bankruptcy notice to Mr Ireland.  He could not recollect whether he had done that before he had departed from his office.  He said that it could have been when he got to court but could not recall.  He did recall that there were four copies because he had arranged for four copies to be filed.  He repeated that he had four copies but he did not recall whether he gave two copies to Mr Ireland before he left his office or when he arrived at court.  He was certain, however, that he gave Mr Ireland two copies before the proceedings in the Land and Environment Court commenced.  Mr Dwyer also said that, when he unpacked Mr Ireland's papers, he remembered seeing two copies of the bankruptcy notice on the bar table although he did not recollect whether he unpacked them.

20. Mr Dwyer said that he remained inside the courtroom after Mr Ireland handed the papers to Mr Donnelly and left the courtroom.  Mr Ireland was gone for maybe a minute or 2 minutes, not very long.  During that time, Mr Dwyer observed Mr Donnelly with the document that Mr Ireland had given to him.  He said that Mr Donnelly bowed his head and looked at the document and sat there for a little while longer, while Mr Dwyer commenced packing up.  He said that, when he packed up the documents on the bar table, he did not see any bankruptcy notices.  He said that the other two bankruptcy notices, which he had retained, were in his blue note book that he takes to court.  He said that he did not pick up any bankruptcy notices that were on the bar table.

21. Mr Dwyer said that Mr Ireland came back into the courtroom and they finished packing his bag and then Mr Robertson met with them.  They departed together, perhaps 5 or 10 minutes later.  He was asked whether it was possible that Mr Ireland could have packed the two documents that were allegedly on the bar table.  Mr Dwyer said that Mr Ireland had nothing in his hand when he returned to court and he did not recall seeing the documents on the bar table when he commenced packing up.  However, Mr Ireland had documents in his hand when he left the court.  Mr Dwyer said that he did not see any bankruptcy notices on the table, so he did not know how Mr Ireland could have packed up the bankruptcy notices that he had seen on the bar table.

22. Mr Ireland, in cross-examination, said that he expects that he would have unpacked his bag, or at least helped to unpack his bag, when they arrived in court on that day.  Mr Ireland was asked when Mr Dwyer gave him the documents purporting to be bankruptcy notices.  Mr Ireland said he could not recall exactly when he personally took possession of the documents, that is when Mr Dwyer handed them to him.  Mr Ireland said that it was not possible that Mr Dwyer never handed him those documents.  He said he could recall that he was given the documents but could not recall exactly when Mr Dwyer handed them to him.

23. Mr Ireland, in answer to Mr Oshlack, said that when he gave the document to Mr Donnelly, Mr Donnelly took it and proceeded to read it or look at it.  He then left the court while Mr Donnelly continued to read the documents.  Mr Ireland could not remember whether Mr Donnelly was still reading when he came back into the courtroom.  Indeed, he could not remember whether Mr Donnelly was still in court when he came back.  In answer to Mr Oshlack, Mr Ireland said that when he handed the document to Mr Donnelly he said:

    “Mr Donnelly, could I serve you with these documents or this document?”

    Mr Ireland said that he thought Mr Donnelly mumbled something, but he could not recollect the exact nature of the words Mr Donnelly used.  Mr Ireland could not recollect whether, at the time when he handed Mr Donnelly the document, Mr Mundine was still in court.  His recollection was that, if Mr Mundine had not already left, he was in the process of leaving court at that time.  He said that he followed him out and handed him the document.

24. In further answer to questions put by Mr Oshlack, Mr Ireland said that Mr Donnelly was sitting in the first row, more or less immediately behind where he, Mr Ireland, was sitting, or immediately behind where Mr Oshlack was sitting, in the first row behind the bar table.  His recollection was that Mr Dwyer was sitting on his left at the bar table.  Mr Ireland said that he went out of the court in order to locate Mr Mundine and found him “at the corner of the ante room and the lift foyer”.  He said that there were a number of people with him including a young female companion of his whose name Mr Ireland did not know.  Mr Eddy Neuman, a solicitor, was also in the vicinity of where Mr Mundine was standing.  Mr Ireland said that he stepped up to Mr Mundine, and said:

    “Mr Mundine, could I serve you with this document?”

    Mr Mundine simply said something like, “Thanks” or mumbled something short like that and took the document in his hands.

1. Mr Ireland acknowledged that at no time did he say to either of the people to whom he gave a document that he was serving a bankruptcy notice.  Mr Ireland was asked whether there was a possibility that Mr Dwyer had packed copies of the bankruptcy notice when he was packing the bags after Mr Ireland had walked out of the courtroom.  Mr Ireland said that Mr Dwyer would have packed the two bankruptcy notices that he had, but he would not have packed the two that Mr Ireland had just served.  He said there was no possibility of Mr Dwyer packing those bankruptcy notices because they were then in the possession of Mr Donnelly and Mr Mundine respectively.

2. Finally, Mr Robertson was also cross-examined.  He was asked where Mr Donnelly was.  He said that he was not actually at the bar table but was in the front row.  He said that he observed Mr Ireland turn from the bar table and hand a document to Mr Donnelly.  He said he could not hear Mr Ireland say anything, but that he said something.  He said there was an exchange but he could not hear what was actually said, at that stage, when the document was handed over.  Mr Robertson said that Mr Ireland handed the document to Mr Donnelly who started to read the document.  Mr Ireland stood up and was leaving the court when Mr Donnelly made, in quite a loud voice, the comment:

   “I'm ashamed for your grandfathers.”

   Mr Ireland turned and said, “I'm acting under instructions” and then went out of the court.  Mr Robertson then stood up, packed up his notes and was about to leave when Mr Ireland came back in.  He said that, in general, everybody appeared to be packing and leaving.  He also accepted that, while he could verify that a document was given to Mr Donnelly, he could not verify what it was.

3. Mr Oshlack submitted to me that I should not believe the evidence of those solicitors.  However, no submission was made as to the motivation that would prompt the solicitors to fabricate such a story.  Mr Oshlack did suggest to Mr Ireland that he had fabricated his story.  However, no motivation for doing so was put to him.  For that reason, it would be impermissible for Mr Oshlack to make any submission that there was a motivation that would have induced Mr Ireland, in effect, to perjure himself in fabricating the story contained in his oral evidence.

4. Mr Donnelly and Mr Oshlack also gave evidence by affidavit and orally.  Mr Donnelly's affidavit, sworn on 29 July 1999, is the following form:

   “2.I have read the affidavit of Clifford Robert Ireland, sworn 28 or 29 June 1999 and seek leave to refer to paragraphs 2 and 3 of that affidavit and say that I was present at the Registrar's Court at level 1, The Land and Environment Court on the morning of 26 May 1999. 

   3.During the morning I was with Mr Alan Oshlack, my legal representative, Mr David Mundine, co-respondent, his wife Sharon Bush and Robert Corowa. 

   4.Exhibited before me and annexed to this affidavit, and marked "A", is a copy of a bankruptcy notice naming myself and David Mundine as debtors and Ross Mining as creditors [sic] and state that I was not served a copy of this document by Clifford Robert Ireland on 26 May 1999. 

   5.I further state that I had never seen a copy of this bankruptcy notice until an employee of Blake Dawson and Waldron served me a copy of that document with the affidavit of Clifford Robert Ireland at the lift in the Federal Court on 9 July 1999 along with a creditor's petition from the applicant.”

5. Mr Oshlack also swore an affidavit on 29 July 1999, relevantly saying as follows:

   “3.During the morning of 26 May 1999, I was constantly in the presence of Mr Andrew Donnelly.  Also present on that morning, Mr David Mundine, his wife Sharon Bush and Robert Corowa, Mr Mundine's Native Title representative. 

   4.I seek leave to refer to annexure A of the affidavit of Andrew Donnelly, affirmed on July 29 1999 and state that a copy of this document was not served on Andrew Donnelly by Clifford Robert Ireland or any other person on 26 May 1999. 

   5.I further state that I have never seen a copy of this Bankruptcy Notice until an employee of Blake, Dawson and Waldron served a copy of that document on Andrew Donnelly with the affidavit of Clifford Robert Ireland referred to above at the lift in the Federal Court on 9 July 1999 along with the creditor's petition from the applicant.

   6. It is my position as representative of Mr Donnelly to deal with all documents served on him and obtain instructions and state that at no time was a bankruptcy notice served on Mr Donnelly on 26 May 1999.”

   Paragraphs 4 and 6 above were admitted only as denial of the Mr Ireland’s affidavit and not to prove the negative. 

6. Today, a further affidavit was relied on by Mr Donnelly, being an affidavit of Robert Ian Corowa, sworn 19 August 1999.  Mr Corowa's affidavit said as follows:

   “1.I am a representative for David Mark Mundine in his Native Title Application, NC 26 of 1997. 

   2.I have read the affidavits of Clifford Robert Ireland, sworn 28 or 29 June 1999 and seek leave to refer to paragraphs 2 and 3 of that affidavit and say that I was present at the Registrar's Court of level 1 of The Land and Environment Court on the morning of 26 May 1999. 

   3.During the morning, I was constantly with Mr David Mundine, and all during the day, as his legal adviser and assistant. 

   4.I seek leave to refer to annexure A of the affidavit of Andrew John Donnelly, affirmed 29 June 1999 which is a copy of a Bankruptcy Notice naming David Mundine and Andrew Donnelly as debtors and Ross Mining as creditors [sic] and state that I never saw David with a copy of that document during the day and that night, when I travelled back to Lismore.  At no time did he mention of ever receiving any documentation from Clifford Ireland or any other person.”

   It is significant that Mr Corowa does not deny ever having seen the bankruptcy notice.  Nor does he say that it was not given to him by Mr Donnelly at some stage. I shall comment on the significance of that shortly.  It is also significant that Mr Corowa was in court today but was not invited to supplement his affidavit.  There was no suggestion that Ms Sharon Bush was not available to swear an affidavit and to give evidence orally if need be.  Again, the significance of that will become apparent shortly.

7. Mr Oshlack was cross-examined both on 4 August 1999 and today.  Mr Donnelly was also cross-examined before me today.  No submission was made by Mr Skinner, of counsel, who appeared today for the Petitioner, that either Mr Oshlack or Mr Donnelly gave deliberately false evidence, either in an affidavit or orally.  I accept that, if he had been aware of the handing to Mr Donnelly of a bankruptcy notice, Mr Oshlack would have taken steps to deal with it.  I am satisfied, therefore, that he was unaware of the existence of the bankruptcy notice before the time that he asserted.  That, however, is not decisive of the question presently before me. 

8. Mr Donnelly, before the Registrar on 4 August 1999, said that he did not remember whether the bankruptcy notice was served.  He said in evidence before me today that that statement was truthful.  Some question arises as to what significance, if any, should be attached to that statement.  It was suggested that, by saying that he did not remember, Mr Donnelly was in effect saying, “That is something which I would have remembered and, because I didn't remember it, it didn't happen.”  That, however, is not the evidence that Mr Donnelly gave.  He did say words to the effect of “If such a document was served, one of us would have known about it.”  He said that “the document would have been shown around and we would have done something about it.”  That was the answer he gave in answer to the question, “You have no recollection, have you, of whether you were served?”

9. Mr Donnelly then went on to say, in answer to further questions, that he would have given the document, if it was given to him, either to Sharon Bush, Robert Corowa or Mr Oshlack.  I am satisfied that he did not give the document to Mr Oshlack, but, as I have said, there is no evidence from Mr Corowa or Ms Bush that the document was not given to either of them.  Mr Donnelly did say “No”, when asked point blank whether the document was served.  There was, however, some hesitation before giving that answer.  I do not make that as an observation against Mr Donnelly's credibility, but as an indication that he listened carefully to the question and was satisfying himself that his answer was an honest one. 

10. I accept the evidence of the three solicitors that I have set out above.  On the material that I have summarised above, I consider that, on the balance of probabilities, Mr Ireland did hand to Mr Donnelly the document a copy of which is annexure A to Mr Ireland's affidavit.  What happened thereafter is by no means clear.  I do find it puzzling that something was not done about the document after it was served in the way that I have indicated.  It may be that Mr Donnelly did not perceive the significance of the document.  As I have said, Mr Ireland acknowledged that he did not draw attention to the fact that the document was a bankruptcy notice and the very significant consequences that might flow from failure to comply with it.

11. However, it does not help at this stage to speculate.  No suggestion was made to Mr Ireland that he might have served some different document or that he might have handed some document, other than a bankruptcy notice, to Mr Donnelly.  While some submissions along those lines were put by Mr Oshlack, I do not regard it as open to him to make such a submission, not having put that to Mr Ireland.

12. For the reasons I have briefly indicated, however, I am not disposed to decide at this stage that the document was a bankruptcy notice.  I indicated in the course of addresses the disquiet that I have concerning this proceeding.  I took Mr Ireland to task, in the way that I have briefly indicated above, as to the possible motivation for bringing the proceeding.  The material before me to date, principally being Mr Ireland's submissions in open court, indicates that the motivation, for serving the document referred to as a bankruptcy notice and for filing this petition, is to frustrate proceedings brought by Mr Donnelly and Mr Mundine in the Land and Environment Court.  However, I make no firm finding about that at this stage.  That may well be an issue that will be raised before me in the fullness of time.  In due course, I will give directions for the parties to bring in such evidence as they wish in relation to that matter.

13. My feeling of disquiet is exacerbated by the circumstances of the service of the so-called bankruptcy notice.  At present, I would be disposed to draw an inference that Mr Ireland consciously decided not to draw attention to the nature of the document that he was serving.  Whether he perceived that some advantage was to be gained from that, I do not know.  However, as I have said, I will not make any finding on that question because it is not a matter that is in issue before me at this stage.

14. However, I will need to be satisfied, if the formalities for the making of a sequestration order are otherwise proved in due course, that I should exercise my discretion in favour of the Petitioner in the present circumstances.  I must say, and this is really no part of the judicial function that I am presently exercising, that it would be desirable for the Petitioner, if it wishes to rely on bankruptcy, to start proceedings afresh.  However, I cannot at this stage do anything other than make that observation.  I make it clear that the observation is made only by reason of the feeling of disquiet that I have already expressed.

15. I will stand over the petition for directions before me on 10 September 1999.  At that stage, I propose to give directions for, if need be, the filing of any further notice of opposition, and all evidence on all matters necessary to bring the petition on for final hearing.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             20 August 1999

Counsel for the Applicant:	C.R. Ireland for Blake Dawson Waldron (4 August 1999) B.J. Skinner (20 August 1999)
Solicitor for the Applicant:	Blake Dawson Waldron
The First Respondent was represented by Mr Alan Oshlack
Date of Hearing:	4 August 1999;  20 August 1999
Date of Judgment:	20 August 1999