Seymour v Housing Guarantee Fund Ltd

[1999] FCA 1441

FEDERAL COURT OF AUSTRALIA

Seymour v Housing Guarantee Fund Ltd [1999] FCA 1441

BANKRUPTCY – sequestration order made by Registrar – on review, judge declined to go behind judgment debt – no question of principle

Corney v Brien (1951) 84 CLR 343 applied
Udovenko v Mitchell (1997) 79 FCR 418 applied

WALTER JOHN SEYMOUR v HOUSING GUARANTEE FUND LTD

VG 7977 of 1998

CARR, SUNDBERG & KENNY JJ
10 AUGUST 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7977 of 1998

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	WALTER JOHN SEYMOUR Appellant
AND:	HOUSING GUARANTEE FUND LTD Respondent
JUDGES:	CARR, SUNDBERG & KENNY JJ
DATE OF ORDER:	10 AUGUST 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7977 of 1998

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	WALTER JOHN SEYMOUR Appellant
AND:	HOUSING GUARANTEE FUND LTD Respondent

JUDGES:	CARR, SUNDBERG & KENNY JJ
DATE:	10 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:           

Introduction

1. This is an appeal from orders made by a Judge of the Court dismissing the appellant’s motion for an order setting aside a sequestration order made against him by a Registrar of the Court.

   Factual Background

2. On 2 March 1999 a Registrar of the Court made a sequestration order against the appellant.  That order was made on the petition of the respondent, Housing Guarantee Fund Limited (“the Fund”).  The petition was founded on a bankruptcy notice that had been served on the appellant, requiring him to pay, or make arrangements for the payment of, a judgment debt in the sum of $62,297 together with interest fixed at $377.87.  The respondent obtained that judgment in the Domestic Building Tribunal (“the Tribunal”), a body established under the Domestic Building Contracts and Tribunal Act 1995 (Vic) now known as the Domestic Building Contracts Act 1995 (Vic) . That judgment was then registered as a judgment of the Supreme Court of Victoria. By motion on notice dated 11 March 1999, the appellant sought an order that the Registrar’s decision be set aside. The learned primary judge assumed that the appellant also sought an order that the petition be dismissed.

   The Proceedings before the Learned Primary Judge

3. His Honour noted that the appellant’s motion was supported by an affidavit sworn by his son.  His Honour set out the contents of that affidavit (omitting formal parts) in full in his reasons for judgment.  It read as follows:

   “I allege the following that the H.G.F. Ltd, an institution of the State Government of Victoria is guilty of breaching the Victorian and Federal Constitution and further allege that the H.G.F. Ltd, has commited (sic) an act of Treason by way of the following civil and criminal offences abuse of Parliament and public office obstruction of Justice, removal of democratic right of redress by secretly recalling Parliament 31.12.97 and the passing of illegal and unconstitutional legislation removing my right of redress to the Victorian Ombudsman prohibiting investigation of an unconstitutional Act of Parliament.  I further allege that the H.G.F. Ltd, in conjunction with the State Government of Victoria conspired to pervert the course of justice, conflict of interest both Political and Legal and allege the criminal acts of Fraud, Conspiracy Extortion, misleading the courts, slander, accesory (sic) to the fact, accesory (sic) after the fact, and prior knowledge. Illegally declaring W.D.J. Seymour Pensioner a man of good standing and of great service to the community a Bankrupt by way of illegal findings of a State run Tribunal.  The above is the truth, the whole truth and nothing but the truth, so help me God.”

4. His Honour examined the history of the events which led to the judgment debt and the attack made by the appellant on the Tribunal’s decision.  His Honour found that there was no evidence to show that there was any basis for the appellant’s allegation that the member who constituted the Tribunal had such a close involvement with the building industry in general and the State Government in particular, that he could not render a fair decision in the proceeding.  His Honour then turned to what he described as two other basic complaints made by the appellant in respect of the events which led to the decision of the Tribunal.  His Honour concluded that it did not appear that the proceedings before the Tribunal were in any way tainted as being unfair or procured by fraud or other misconduct on the part of the Fund.  His Honour concluded in the following terms:

   “The role of this court on a hearing such as this is limited.  If I was convinced that there was no foundation for the decision of the tribunal, then I might ignore the judgment given by it and the fact that that judgment has been registered in the Supreme Court.  But I am far from convinced that the tribunal erred in any way.  On the contrary, it seems to me that there is no basis, in fact or in law, that would entitle the debtor to say that the tribunal's determination should be ignored.”

Grounds of Appeal and Our Reasoning

1. We set out below, in full and as expressed in the notice of appeal, the grounds of appeal:

   “Breach of Federal Constitution, Breach of W.D.J. Seymour’s constitutional rites, (sic) the H.G.F. Ltd was in fact a defacto insurance Co. providing blanket cover for the consumer.  Illegal legislation requiring all builders to be members of H.G.F. Ltd by way of enforced law was unconstitutional, for an insurance Co to indemnify themselves against claims was unconstitutional, and in breach of the Australian Consiliation (sic) and Arbitration Act, Monopolies Act, Equal opportunities Act and Fair Trading Act.  Further evidence will be lodged.”

2. The orders sought by the appellant were expressed in the following terms:

   “to overrule a bankruptcy finding against W.D.J. Seymour; that the HGF Ltd and Victorian government acted outside their guidelines; that this matter be further investigated by the full bench and its findings be referred to the High Court.”

3. The grounds of appeal do not reflect the matters the appellant put to the primary judge and which his Honour rejected.  In any event, there is nothing in the grounds.  It was not explained why legislation requiring all builders to be members of HGF Ltd was beyond the powers of the Parliament of Victoria.  Nor was it explained why it was unconstitutional and in breach of the Australian Conciliation and Arbitration Act, the Equal Opportunity Act and the Fair Trading Act, for an insurance company to indemnify itself against claims.  We were not taken to any statute called the Monopolies Act.  The provisions of the Federal Constitution that are said to have been breached were not identified.  Nor were the constitutional rights of the appellant that were alleged to have been breached.

4. Since the appellant was not legally represented, we are prepared to treat him as having appealed against the primary judge's rejection of the complaints put at first instance.  However, no error has been shown in the way in which his Honour dealt with them. 

5. As the primary judge said, the Court has power to go behind a judgment on which a bankruptcy notice is based.  But where, as in the present case, the judgment followed a full investigation at a hearing of the kind afforded by this tribunal, at which both parties appeared, the Court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out.  See Corney v Brien (1951) 84 CLR 343 at 356-357 and Udovenko v Mitchell (1997) 79 FCR 418. No evidence of fraud or collusion on the part of HGF Ltd was placed before the primary judge and there is nothing to suggest that a miscarriage of justice occurred in the proceedings before the Tribunal.

6. The appellant filed detailed written submissions, which he developed orally this morning.  In the oral submissions the appellant raised some new points.  His principal submission was that the findings and determination made by the Tribunal are not legally enforceable.  This submission was supported on a number of bases, none of which is in our opinion valid.  There were other matters raised by the appellant in the course of his address, which we have considered.  None of those in our view would justify either going behind the judgment or declining to make a sequestration order.  The appeal will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:             

The appellant appeared for himself.
Counsel for the Respondent:	Mr R Wells
Solicitor for the Respondent:	Kalaja Clifton Lawyers
Date of Hearing:	10 August 1999
Date of Judgment:	10 August 1999