Thorp v Hudson
[2022] FedCFamC2G 909
Federal Circuit and Family Court of Australia
(DIVISION 2)
Thorp v Hudson [2022] FedCFamC2G 909
File number: PEG 46 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 4 November 2022 Catchwords: BANKRUPTCY – De novo review of decision of Registrar to dismiss application for bankruptcy notice to be set aside – application of extension of time to seek review –extension of time granted – whether bankruptcy notice was sent by courier service to the applicant – whether bankruptcy notice was sent to the applicant at his address last known to the respondent – application for review dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 28A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Bankruptcy Regulations 2021 (Cth) regs 10, 102
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.02, 3.02
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.04
Cases cited: Fanini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 595
Hacker v The Owners – Strata Plan No. 17272 [2005] FCA 1936
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Macquarie Leasing Pty Limited v Culleton [2014] FCCA 1714
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 26 October 2022 Date of hearing: 11 October 2022 Applicant: The applicant appeared in person Respondent: The respondent appeared in person ORDERS
PEG 46 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOUGLAS HENRY ALBERT THORP
Applicant
AND: PAUL DOUGLAS HUDSON
Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
4 November 2022
THE COURT ORDERS THAT:
1.The time for the applicant to file his application for review of a decision made by a Registrar on 22 August 2022 is extended to 13 September 2022.
2.The application for review is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
The application before the Court is an application for review of a decision made by a Registrar of this Court on 22 August 2022, who exercised powers delegated pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth),[1] to dismiss the applicant’s application for a bankruptcy notice to be set aside.
[1] See also, r 2.02(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) and item 1 of Part 1 in Schedule 1 to those Rules.
The application for review of that decision was filed one day late and, accordingly, the applicant requires an extension of time in order to proceed with the review.
On balance, I am satisfied that it is appropriate to grant the extension of time to file the application for review. However, having conducted a de novo review of the matter, I dismiss the application for review. My reasons for these conclusions are set out below.
Relevant background
On 25 August 2021 the Official Receiver in Bankruptcy issued bankruptcy notice BN 254039 (bankruptcy notice) directed to the applicant in this proceeding. The named creditor in the bankruptcy notice is the respondent to this proceeding and the bankruptcy notice relates to a debt in the amount of $14,284.34, comprising costs payable pursuant to an order made by the Supreme Court of Western Australia (Supreme Court), together with interest.
On 15 March 2022 the applicant commenced proceedings in this Court seeking the following relief:
Bankruptcy Notice BN 254039 issued on 25 August 2021 which was left at the front door step of the premises [address redacted] Balcatta for me Douglas Henry Albert THORP to be set aside on the following grounds.
On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:
1.An Order hat service of the Bankruptcy Notice has not been affected – s 309(2) of the Bankruptcy Act, and rule 3.01 of the Bankruptcy Rules.
2. Alternatively:
a)That the bankruptcy notice be set aside on the grounds there are proceedings to set aside the underlying judgement – ss41(6A)(a) and 41(6C) of the Bankruptcy Act and Rule 3.02(4) of the Bankruptcy Rules.
b)That the debtor has a counterclaim, set-off or cross demand – s 40(1)(g) and 41(7) of the Bankruptcy Act and Rile 3.02(3) of the Bankruptcy Rules.
I pause here to note that I have not reproduced in this judgment the purported service address referred to in the application. The address referred to is an address in Balcatta, Western Australia, which has been referred to in the Court documents filed on behalf of both parties. Throughout this judgment, I will refer to the address as the ‘Balcatta address’ to protect the privacy of the homeowner, who is not a party to this proceeding.
On 22 August 2022 the matter came before a Registrar of this Court for hearing. The applicant did not appear at the hearing and the Registrar made several unsuccessful attempts to contact the applicant on the telephone number that he had provided to the Court. The Registrar decided to proceed with the hearing in the absence of the applicant and ultimately made a decision dismissing the application.
On 13 September 2022 the applicant filed an application for review of the Registrar’s decision. The application was filed one day outside of the 21 day period prescribed by r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). The application filed by the applicant included a request for an extension of time and the applicant filed an affidavit in support of his application which provided some explanation for the delay in filing the application for review.
The matter first came before me for hearing on 10 October 2022. The applicant requested leave to appear by telephone and provided a telephone number to the Court for this purpose. The Court agreed to hold the hearing by video link using Microsoft Teams and provided to both parties dial in details to join the hearing by Microsoft Teams. The applicant advised the Court that he had some difficulty accessing Microsoft Teams and requested that the Court contact him by telephone. The Court attempted to do this five times without success. In circumstances where the applicant did not appear, but had been communicating with the Court on the day of and around the start time of the hearing, I adjourned the hearing to the following day to give the applicant an opportunity to appear.
When the matter came before me on 11 October 2022 both parties appeared by way of Microsoft Teams.
Documents before the court
At the outset of the hearing, the Court confirmed with the parties the documents it had before it and both parties confirmed that there were no other documents that they had filed in this proceeding. Neither party had all of the documents before them during the course of the hearing. When it was necessary to refer to documents in the course of the hearing, the documents were displayed on the screen via Microsoft Teams so that both parties could see them. In proceeding in this manner, I am satisfied that both parties were able to meaningfully participate in the hearing.
At the time of the hearing, the documents before the Court that had been filed by the applicant included his original Form B2 application filed on 15 March 2022, his application for review of a Registrar’s decision filed on 13 September 2022 and affidavits sworn by himself filed on 15 March 2022, 4 April 2022, 20 April 2022 and 13 September 2022. The only evidentiary document before the Court filed on behalf of the respondent is an affidavit of service of the bankruptcy notice sworn by Neville Laurence Cridge on 3 July 2022 and filed on 16 August 2022.
At the hearing, the applicant objected to paragraphs 5, 16, 21 and 22 of the affidavit of Mr Cridge on the basis of hearsay and the respondent objected to certain paragraphs of the affidavit of the applicant filed on 13 September 2022. I indicated to the parties that I would deal with those objections in my reasons for judgment.
In relation to the applicant’s objections to the affidavit of Mr Cridge, I make the following rulings:
(a)Paragraph 5 is admissible. The paragraph deals with instructions given to the deponent, who is a process server. The first sentence addresses information given to the deponent about a previous unsuccessful attempt to serve the bankruptcy notice, and I treat that as admissible only as evidence of what the deponent was told, and not as evidence that there were any previous attempts of service.
(b)Paragraph 16 is admissible. In that paragraph, Mr Cridge deposes that he received confirmation of delivery of the bankruptcy notice from couriers who he engaged. In the following paragraph, he annexes the documentary record of the confirmation.
(c)Paragraphs 21 and 22 address information that the courier gave to the deponent about the service of the bankruptcy notice. They are relied on by the respondent for the purpose of proving that service was effected. They are inadmissible for that purpose, as the evidence is hearsay.
The respondent made submissions in relation to most paragraphs in the applicant’s affidavit filed on 13 September 2022, but for the most part these submissions were directed to the weight that should be given to the paragraphs and the reasons the Court should not accept the content of those paragraphs. I do not treat this as objections to the evidence. There were, however, some paragraphs that appear to have been objected to on the basis that they are irrelevant, including paragraphs 4 and 7 to 12. I find that paragraph 9 is admissible. That paragraph simply refers to the decision made by the Registrar and that the applicant now seeks review of that decision. These facts are obvious from the Court file in any event. Paragraphs 4, 7, 8, 10, 11 and 12 relate to the applicant’s attempts to block nuisance calls that he receives and his reasons for failing to appear at the hearing before the Registrar. The paragraphs are not relevant to the substantive issues that need to be determined in this proceeding and I do not have regard to them in determining any of the substantive issues. However, I acknowledge the explanation given by the applicant for his failure to attend the hearing before the Registrar.
An issue arose at the hearing as to whether the affidavit of service of Mr Cridge, filed on behalf of the respondent, had been properly served on the applicant. The applicant was afforded an opportunity to review the affidavit several times during the course of the hearing and to make objections to and submissions on the affidavit. Given that the applicant had raised non-service of the affidavit as an issue, I requested that the respondent provide proof of service after the hearing, and indicated that if the affidavit had been served, there would not need to be any further submissions, but if it had not been served, I would give the applicant a further opportunity to respond to the affidavit in post-hearing submissions.
After the hearing, the respondent provided confirmation that the applicant had been copied to an email to the Court’s registry on 4 July 2022, in which the respondent requested that the affidavit of service be accepted for filing. No evidence was provided to show that a sealed copy of the affidavit was served on the applicant. I initially formed the view that, although a sealed copy of the affidavit was not served, the applicant was otherwise provided with a copy of the affidavit in a timely way and no practical injustice arose as a result of the respondent’s failure to serve a sealed copy. I expressed to the parties by way of email sent by my associate that I did not propose to make any order allowing the parties an opportunity to file further submissions, and gave the parties a short opportunity to express any opposition to that course. The Court did not receive any email objecting to the course proposed. However, the applicant subsequently sent emails to my associate which I have not seen, but which I was informed contained submissions. My associate wrote to the parties indicating that it was not appropriate to provide submission to chambers by way of email, and that I would not have regard to the emails. A few days later, the applicant sent a further email to my chambers. Again, I did not read this email, having been informed that it contained submissions, and instead listed the matter for mention on 24 October 2022 to address the issues arising from substantive emails being sent to chambers.
At the mention, the applicant explained that he did not feel that he had an opportunity to properly respond to Mr Cridge’s affidavit of service. Although he had seen a copy on or around 4 July 2022, which was much later than permitted by orders made by a Registrar, a Registrar had made comments about the deficiencies in the affidavit and the applicant did not understand that it had been accepted for filing until the hearing before me. The applicant submitted that had he known the affidavit had been accepted for filing, he would have filed further evidence in response.
Having heard from both parties, I accepted that the applicant’s concerns were valid, and could have been easily avoided if a sealed copy of the affidavit of service had been filed. In order to ensure that neither party was denied procedural fairness as a result of any issues with service of Mr Cridge’s affidavit of service, I made orders granting leave to the applicant to file and serve any submissions or affidavit evidence in response to the affidavit of service by 4:00pm on 26 October 2022, and granting the respondent leave to file and serve any responsive submissions or affidavit by 4:00pm on 28 October 2022. It was made clear to the parties that this was not an opportunity to reopen their respective cases more generally. It was also made clear to the parties that I had not read the emails sent to my chambers regarding the substantive issues in the proceeding, and that I would not have regard to those emails in my judgment.
The applicant filed two further affidavits and submissions in accordance with the Order of 24 October 2022, and the respondent did not file any additional documents.
In one of his further affidavits filed on 26 October 2022, the applicant purports to ‘dispute the validity’ of Mr Cridge’s affidavit of service.
(a)The first basis for disputing the validity of the affidavit is that it was filed outside of the time prescribed by the orders. The late filing of the affidavit does not go to the validity of the affidavit, and I am satisfied that it is appropriate to receive the affidavit into evidence (except insofar as it has been ruled inadmissible), notwithstanding that it was filed outside of the timeframe set out in orders made by a Registrar.
(b)The second basis on which the applicant challenges the validity of the affidavit is that a Registrar made comments at a directions hearing just after the affidavit was provided to the Court about the late filing of the affidavit and that the affidavit contained hearsay. It is not clear to me that the Registrar made any rulings on any particular parts of the affidavit at that time, but in any event, as I explained to the parties at the hearing, I am to reconsider the matter for myself. I have considered the applicant’s objections to the evidence and set out my rulings above.
(c)The third basis for disputing the validity of the affidavit relates to concerns about whether it has been accepted for filing and the enquiries made in this regard. I have access to the Court’s Electronic Court File (ECF) and prefer the evidence of filing on the ECF to that in the applicant’s affidavit. The ECF shows that Mr Cridge’s affidavit of service was electronically lodged 16 August 2022 at 11:50am, and this is consistent with the information on the cover page of the affidavit affixing the Court’s seal. That cover page also shows that the affidavit was accepted as filed on the same day.
(d)The fourth basis on which the applicant challenges the validity of Mr Cridge’s affidavit is that he has made enquiries of the Legal Practice Board to confirm whether the ‘two signatories’ of the affidavit hold practicing certificates, as the affidavit will be invalid if the signatories do not hold practicing certificates. The applicant was awaiting a response from the Legal Practice Board at the time of making his affidavit, and sought further time. I do not agree to give the applicant additional time to pursue this enquiry. The ‘two signatories’ in relation to whom the applicant has made enquiries are the deponent, Mr Cridge, and the witness of the affidavit who is described as a ‘[l]awyer with a current practicing certificate’. There is no basis for supposing that Mr Cridge would hold a practising certificate. He is not a lawyer and has described himself variously as a ‘process server’, ‘law student’ and ‘paralegal’. His role is this proceeding is that of witness, not legal practitioner, and he does not require any practicing certificate for this purpose. Further, there is no basis for doubting that the lawyer who witnessed the affidavit has not accurately represented himself as a ‘lawyer with a current practicing certificate’. Any suggestion to the contrary is purely speculative.
I otherwise address the further documents filed by the applicant in the course of the consideration of the issues below.
Extension of time application
The principles relevant to the determination of whether an extension of time to bring an application should be granted are well-established. The Court will often consider matters such as the length of the delay, any explanation for the delay, any prejudice to the respondent and the merits of the proposed substantive application.
In the present matter, the length of the delay is short, being only one day.
The applicant deposed that the reason the application was filed one day late was due to ‘brain-fog’ which he has experienced at times over the past several years following a medical procedure.
While the applicant has referred to his medical conditions in his affidavits to the Court, there is no medical evidence, that is, evidence from a qualified medical professional, before the Court to explain the nature the applicant’s health conditions, how they impact him generally, or how or why those medical conditions contributed to the applicant’s failure to file his application for review on time.
The applicant further deposed that a person who had been assisting him to ‘vet [his] Court submissions’ has been away from Perth and that he received conflicting advice from the Court registry, although there is no evidence of what he was told by the registry. The applicant deposed that he intentionally left filing the application for review until the final day for filing so that he could make last minute corrections, but growing exasperation in completing the documents slowed his progress and he could not arrive at the Court through heavy traffic in time to file the documents in person.
While there are some deficiencies in the explanation provided by the applicant, I acknowledge that he has provided some explanation for a delay of one day in filing his application. I treat this consideration as neutral.
The respondent has opposed the extension of time being granted but has not claimed that he would suffer any prejudice as a consequence of the delay, and I do not find that he would suffer any prejudice as a result of the delay. While it is relevant for me to take into account the absence of prejudice, the absence of prejudice alone does not justify the grant of the extension of time: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344.
I am satisfied that the applicant at least has an arguable case in relation to the merits of the application. While the applicant has not provided evidence to show that there is any realistic prospect of him establishing that he has any set-off or counter-claim, and while he acknowledged that there are no current proceedings before the Supreme Court, there is an issue in relation to whether the bankruptcy notice was properly served that gives rise to an arguable case. The applicant’s position in relation to service is that he was not present at the Balcatta address at the time that the documents were served and did not receive them until a few days later. The applicant has further given evidence and made submissions to the effect that he has not lived at the Balcatta address at which the bankruptcy notice was purportedly served for more than a few weeks, and it is simply an address that he uses to receive official documents. The applicant deposed that he has had no fixed address for the last 30 years.
Although the respondent has provided an affidavit of service in relation to the bankruptcy notice, this affidavit is not as comprehensive as it might have been and it is the deficiencies in this affidavit that leave room for an arguable case in relation to the effectiveness of service. The affidavit addresses two occasions on which the respondent purported to serve the bankruptcy notice on the applicant. The respondent appears to be relying on reg 102(1)(a) of the Bankruptcy Regulations 2021 (Cth) (Regulations), which allows service to be effected by sending a document by courier service to a person, in this case the applicant, at their address last known to the person serving the document. In addition to the problems occasioned by the inclusion of hearsay evidence in the affidavit, addressed above, there is also nothing in the affidavit that explains why the respondent believed the Balcatta address to be the last known address of the applicant. It is these deficiencies in the affidavit evidence that leave room for the applicant to have an arguable case that service of the bankruptcy notice was not properly effected.
Taking into account and balancing these factors, I am satisfied that it is appropriate to grant an extension of time of one day for the filing of the application for review.
De Novo Review of registrar’s decision
A review of a decision made by a Registrar is to be conducted as a review de novo: r 21.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). It is appropriate for the Court to consider for itself whether the bankruptcy notice should be set aside and it is open to me to receive into evidence the evidence that was before the Registrar and to grant leave to the parties to file further evidence: r 21.04(2) of the GFL Rules
In the course of the hearing, I referred the applicant to the grounds in his originating application filed on 15 March 2022 and asked him to confirm whether he continues to rely on all of the grounds. The applicant indicated that his two matters in the Supreme Court had ‘lapsed’ because he failed to meet deadlines and that there are no current proceedings before the Supreme Court. I further note that, while the applicant did provide in his affidavits some earlier Supreme Court documents relating to an appeal, those documents did not confirm that the applicant was seeking to set aside or appeal the costs order, which has led to the bankruptcy notice being issued. The applicant has not established that he has any proceedings on foot to set aside the costs debt claimed in the bankruptcy notice.
There is no evidence before the Court of the type required by r 3.02(3) of the Bankruptcy Rules to show that the applicant has any counter-claim or set-off to the debt. Although he referred in submissions to a counter-claim that the respondent is aware of, he has not provided any evidence to the Court of this and he has not established that it is appropriate to set aside the bankruptcy notice on the basis of any counter-claim, set-off or cross demand.
The main basis on which the applicant asserts that the bankruptcy notice should be set aside is that it was not properly served on him. The submissions of both parties at the hearing focused on whether the bankruptcy notice was properly served on the applicant.
In assessing whether service has been properly effected on the applicant in the present case, it is relevant to have regard to reg 102 of the Regulations. This regulation provides:
(1)Unless the contrary intention appears, if a document is required or permitted by the Act or this instrument to be given or sent to, or served on, a person (other than the Inspector-General, the Official Receiver or the Official Trustee), the document may be:
(a)sent by a courier service to the person at the address of the person last known to the person serving the document; or
(b)left, in an envelope or similar packaging marked with the person’s name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility.
(2)In the absence of proof to the contrary, the document is taken to have been received by, or served on, the person when the document would, in the due course of business practice, be delivered to that address or document exchange.
There is a note after reg 102(1) referring to s 28A of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). Section 28A(1)(a)(ii) relevantly allows a document to be served on a natural person by ‘leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document’.
Mr Cridge, in his affidavit of service, deposed to two separate occasions on which the respondent purported to serve the bankruptcy notice on the applicant. Those two occasions can be summarised as follows (excluding any reference to evidence that I found to be inadmissible):
(a)On 23 February 2022 at 2.45pm, Mr Cridge attended an office in Claremont, where he was given a copy of the bankruptcy notice and he was instructed to deliver the bankruptcy notice to the Balcatta address. He arrived at the Balcatta address at 4:46pm and knocked on the fly wire front door repeatedly. There was no answer and after about five minutes, he left the bankruptcy notice on the front door step.
(b)Mr Cridge was asked to attend the Balcatta address again the next day to deliver the bankruptcy notice a second time. He was unavailable and offered to arrange a courier instead. On 24 February 2022 at 12.17pm, Mr Cridge engaged on behalf of the respondent Zoom2U Couriers to collect the bankruptcy notice from the office in Claremont and hand deliver it to the applicant at the Balcatta address. At 1.20pm on 24 February 2022, Mr Cridge received a delivery confirmation from Zoom2U Couriers that the bankruptcy notice had been received by ‘D Thorpe’ and he also received at text message notifying him of the delivery. Both the delivery confirmation notice and the text message were annexed to the affidavit.
The applicant asserts that service was not effective for the following reasons:
(a)he was not present at the time of service; and
(b)the Balcatta address is not and has never been his place of residence or business.
The applicant does not submit that he has never received the bankruptcy notice and gave evidence that he saw it on 26 February 2022 when he called at the Balcatta address.
I accept that the applicant was not present at the time of service and was not personally served. In relation to the purported service on 23 February 2022, there is no suggestion that Mr Cridge saw any person or spoke to any person when he attended the property. Mr Cridge’s evidence was that after nobody answered the door when he knocked, he simply left the bankruptcy notice on the front door step. In relation to the purported service on 24 February 2022, I have found those parts of the affidavit of Mr Cridge that assert personal service to be inadmissible. The applicant has provided evidence in his affidavit filed on 20 April 2022 to the effect that on 24 February 2022 he was in the south west of Western Australia, and he provided documentary evidence that suggested he had checked out of a hotel in the south west at 12:13pm. The respondent submitted that the documentary evidence provided by the applicant could be easily doctored or photo-shopped. I consider this submission to be purely speculative and there is no evidence before me to suggest that the documentary evidence is not genuine. I accept that the applicant was not at the Balcatta address at the time of the purported service on 24 February 2022.
I also accept that the applicant does not reside at the Balcatta address. The applicant’s uncontradicted evidence is that the property at the address belongs to his daughter and he has stayed there on occasion, with the longest stay being from July to September 2021, but has never lived there. The applicant deposed that he has had no fixed abode for the past 30 years. I also accept the applicant’s evidence that the Balcatta address was not his place of business.
However, this does not mean that service has not been properly effected. Regulation 102 of the Regulations does not require that the ‘last known’ address of a person be their residential or business address, and does not require that the applicant be present at the address at the time of service.
There are two main questions for the Court to consider in assessing whether the bankruptcy notice was served on the applicant in accordance with reg 102:
(a)Was the bankruptcy notice sent by courier service to the applicant?
(b)Was the bankruptcy notice sent to the applicant at his address last known to the respondent?
The meanings of ‘courier’ and ‘courier service’ were considered by the Federal Court in Hacker v The Owners – Strata Plan No. 17272 [2005] FCA 1936 (Hacker). The Court said at [39]:
A courier might be described as a carrier who travels from one place to another to provide a safe and urgent letter or parcel delivery service (see the Australian Legal Dictionary). A courier might also be described as a running messenger, a messenger sent in haste or a special messenger (see the Shorter Oxford English Dictionary). A courier service is a private company which provides a letter or parcel delivery service, especially one which guarantees speed or safety (see the Macquarie Dictionary). It would be surprising if Mr Warren regarded himself as a courier or as conducting a courier service. I do not consider that the Bankruptcy Notice was sent to the Narrabundah Premises by a courier service. It was not served in accordance with reg 16.01(a).
In Fanini v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 595 (Fanini) at [44], the Federal Court described a courier as ‘a person who physically provides a safe and urgent letter or parcel delivery between two places’.
Neither party in the present case made any submissions to the effect that either Mr Cridge or Zoom2U was not a courier or courier service. In these circumstances, I am prepared to accept that by engaging Mr Cridge to deliver the bankruptcy notice to the applicant, the respondent (or the respondent’s agent) sent the bankruptcy notice by courier service. Notwithstanding that Mr Cridge has not been described as a courier or courier service in the evidence before the Court, the description in his affidavit of being engaged to collect a document from the accountant’s office, deliver it to the Balcatta address, and then carrying out that task after being provided detailed instructions is not inconsistent with the descriptions of ‘courier’ and ‘courier service’ in Fanini.
I accept that Zoom2U, who effected the purported service of the bankruptcy notice on 24 February 2022, is a courier service. Zoom2U was described as a courier or courier service in the affidavit of Mr Cridge, and the contents of the job confirmation and delivery confirmations annexed to the affidavit of Mr Cridge are consistent with a person or body who performs the types of services described in Hacker and Fanini.
The respondent in this matter has provided no evidence as to why the Balcatta address is the address of the applicant last known to them. This is a significant deficiency in the evidence of the respondent and might have proved fatal to his ability to prove service in accordance with reg 102 of the Regulations.
However, based on the evidence as a whole, I find that the Balcatta address was the last known address of the applicant known to the respondent.
In reaching this finding, I have had regard to the following principles summarised in Macquarie Leasing Pty Limited v Culleton [2014] FCCA 1714 at [18], which relate to determining a person’s ‘last known address’:
The issue that arises in this case is whether the Notice was served on the Respondent at his “last known address” for the purposes of Reg.16.01(1)(c). A number of cases have considered the meaning of these words, and thus a number of principles have been established by these cases.
a)It does not matter whether the debtor actually resides at the particular address or not: Drake v Stanton [1999] FCA 1635 at [5] per Tamberlin J; Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No 7) [2011] FCA 1322 at [64] per Foster J.
b)The expression “last known address” does not expressly refer to the debtor’s residence or place of abode: Drake v Stanton at [5]; Napiat v Salfinger at [64].
c)The expression refers to the address that has been made known by the debtor to the world at large at the time closest to the date in question: Drake v Stanton at [8]; Napiat v Salfinger at [64]; Skalkos v Recoveries Limited (2004) 141 FCR 107; Magafas v Carantinos (2008) 222 FLR 185 at [15] per Raphael FM.
d) A business address can be a debtor’s last known address: Skalkos at [36].
e)A debtor’s last known address may be the address with which he had such a degree of connection with the premises that they may properly be described as his last known address: Drake v Stanton; Skalkos at [37].
f)A debtor cannot have two or more last known addresses within the meaning of the regulations: Napiat v Salfinger at [67].
g)The last known address does not necessarily have to be a residential address, but may be a business address, including a business address which is not occupied by the debtor personally pursuant to some legal or equitable entitlement: Napiat v Salfinger at [67].
h)The regulation is to be construed in light of the fact that the purpose of the rule is that Court process should be brought to the person’s attention: Civic Video Pty Ltd v Warburton [2013] FCA 934 at [70] citing Robertson v Banham & Co [1997] 1 WLR 446, which was itself referred to in Skalkos at [32].
i)The question of what address has been made known by the debtor is to be determined objectively on all of the facts of the case. In some instances it may be information that has been supplied to the world at large. In others it may be the most recent address supplied to the creditor: Civic Video v Warburton at [76].
j)Ordinarily a creditor is under an obligation to take steps to ascertain the debtor’s most recent address as made known by him or her in readily accessible public records: Civic Video v Warburton at [78].
The applicant gave evidence in his affidavit of 20 April 2022 that, although he never lived at the Balcatta address, he had permission from his daughter to use the Balcatta address as his consistent mailing address to receive correspondence relating to things such as his driver’s licence, bank correspondence and mail ordering. In his affidavit filed on 13 September 2022, he deposed that the Balcatta address ‘is used only as a mailing address, as I’ve been for many years of no fixed abode’. In his affidavit filed on 26 October 2022, the applicant deposed that ‘[b]ecause I have no permanent fixed place of abode I had utilised [the Balcatta address] as my address for service in historical actions’.
Further, the applicant and respondent were parties to Supreme Court proceedings that had been on foot prior to the commencement of this proceeding for a number of years and, on the applicant’s evidence, a Supreme Court proceeding was still continuing at the time he filed his Form B2 application to this Court. The applicant has annexed to his affidavits filed in this Court a number of documents that he filed in the Supreme Court proceeding, which record his address for service as the Balcatta address. The dates recorded on the Supreme Court documents referring to the Balcatta address show that the documents were filed or prepared on 16 January 2020, 12 March 2020, 24 April 2020 and 18 August 2020. The applicant has also annexed to his affidavit correspondence from the Supreme Court dated 20 October 2020 and addressed to him at the Balcatta address.
As can be seen from the above principles, the applicant did not need to live at the Balcatta address for it to be his last known address. On his own evidence, he has used this address for the purpose of receiving documents, and he used this address as his address for service in Supreme Court litigation to which the respondent was also a party. The applicant has sufficient connection with the Balcatta address for it to be properly described as his last known address.
I therefore find that the service of the bankruptcy notice on 23 and 24 February 2022 was properly effected on the applicant in accordance with reg 102(1)(a) of the Regulations. Based on reg 102(2), I accept that service was effected on 24 February 2022 at the latest, even though the applicant did not actually see the bankruptcy notice until two days later. The bankruptcy notice was issued on 25 August 2021 and therefore the date of service was within the six month period prescribed by reg 10(1)(a) of the Regulations.
Having found that the bankruptcy notice served on 23 and 24 February 2022 was effectively served in accordance with reg 102(1)(a), it is not necessary to address the applicant’s submission in relation to s 28A of the Acts Interpretation Act.
Conclusion
Given my findings above, it follows that the applicant has not established that there is a basis for setting aside the bankruptcy notice. The application for review of the Registrar’s decision must therefore be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 November 2022
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