Tolmie, D.M. v Communication Credit Union Limited

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JUDGMENT No. ....... , o..... ,..D I ........ .... , .

I N TRE FEDERAL COURT OF AUSTFtMLA )

GENERAL DIVISION 1
EANKRUPTCY DISTRICT OF TFIE

1 No NP 613 of 1992
STATE OF NEW SOUTEI WALES 1

Re: DAWN MARGARET TOLMIE
Debtor

EX Parte: C O ~ I C A T I O N CREDIT
UNION LIMITED

P e t i t i o n i n g Cred i to r

EX TEMPORE JUDGMENT

EINFELD p- SYDNEY 1 DECEMBER 1992

*

This is an ext raordinary case . Judgment was obtained aga ins t t h e

debtor by t h e pe t i t i on ing c r e d i t o r i n t h e Parramatta Local Court on 24 October 1988 f o r $6508.71 including c o s t s by reason of not being paid moneys due under a loan. On 5 December 1 9 9 1 a

bankruptcy no t ice i ssued ou t of t h i s Court c a l l i n g upon t h e

debtor t o pay $7234.84 inc lus ive of i n t e r e s t . Payment was not

made and t h e pe t i t i on ing c r e d i t o r has now proceeded t o t h e po in t

a considerable amount of evidence has been taken, l a rge ly on

of seeking a seques t ra t ion order but t h e debtor has f i l e d a

no t i ce of opposi t ion t o t h e p e t i t i o n . I t provides t h r e e grounds,

two of which a r e r e l a t ed . The two r e l a t e d grounds a r e t h a t t h e

bankruptcy no t ice was no t served upon t h e debtor and t h a t

t he r e fo re no a c t of bankruptcy has been committed, t h e debtor

thereby not being i n de f au l t under t h e bankruptcy not ice . The

t h i r d unre la ted ground, is t h a t t h e r e is no debt. Although t h i s

case has turned on t h e i s s u e of service of t h e bankruptcy not ice ,

credit, which addresses the issue of whether there was a debt 1 '
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, r
owing.
As to the question whether the bankruptcy notice was served.upon i
the debtor, the petitioning creditor led evidence first by way

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of affidavit and then oral evidence from a Richard Leslie

Jorgensen, a licensed commercial sub-agent .working from an ' i i '
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address in Parramatta. Mr Jorgensen deposed in his ' affidavit

that on Monday 16 December 1991 he served a person claiming to L

be the debtor at 8.10 pm by delivering a copy of the petition to her personally at an address that he gave as "8 Edwards street, Northmead 2152". Mr Jorgensen said in his affidavit that he identified the debtor by asking a female who came to the door upon his knocking, "Are you MS Dawn Margaret Tolmie, the person named in this bankruptcy notice?" Mr Jorgensen deposed that the female replied, "Yes, that's me".
M r Jorgensen asserted in oral evidence that the person whom he
saw only opened the door of the premises about 6 inches, accepted
the bankruptcy notice and then closed the door. He said that it
appeared that the house was in a bit of a mess and that some work

was happening there. He described the person at the door as between 5 feet and 5 feet 6 inches tall, of medium build, medium complexion, brown short hair and as an Australian-born person. His evidence in these regards was supported by a document headed "Agent's Service Report" which he said he filled out shortly after serving the document.

From my observations it would appear that Mrs Tohie is between 5 feet and 5 feet 6 inches tall, that she has hair which might be described as short brown although it is to my way of thinking somewhat closer to short blond or red hair, and that she might be described as someone who had medium complexion. But she is significantly larger than what is usually understood by the term medium build. The form of report which is in evidence provides a series of choices for the build of the person served. They are medium, slim, fat, stocky, plump, tall, short or other. Mr Jorgensen agreed in the witness box that the woman in court, who is Mrs Tolmie, is probably closer to one of the other descriptions in the choices, as I can see for myself.

This error can be explained in a number of alternative ways. Firstly, it might simply be that, an error. Second, it might be that the process server could not see well in the 6 inches that the door was opened for the short period it was open. A third possibility of course is that he did not serve Mrs Tolmie at all and that there was another woman there claiming to be Mrs Tolmie.
or see anyone but has made up the story altogether. I suppose a fourth possibility is that he did not serve anyone

Mrs Tolmie denies being at 8 Edwards Street, Northmead on the day in question. She says that she has lived all of her married life, certainly the last 35 years, at 13 William Street, Stockton, a suburb of Newcastle, in a house which she and her husband have jointly owned for all that period. Mrs Tolmie says that for a number of years she worked as a laundress at Tattersall's Club in Newcastle, that her husband worked as a painter at the Hunter District Water Board in the Newcastle district for more than 20 years, and that neither of them has ever lived at any other place besides the Stockton address. Mrs Tolmie has given evidence that she does not drive a motor car, that she does not know where Northmead is, that she does not know anyone who lives in Northmead, and that she has never been to Edwards Street, Northmead. Mr Tolmie has coxroborated that account to some extent.

Mrs Tolmie's evidence to this effect appeared in the first instance in four affidavits or documents affecting to be affidavits, which she has signed in this matter. Two are dated 1 October 1992 and are said to have been signed at Newcastle, and two are dated 19 November 1992 and are said to have been signed at Stockton. They are all alleged to have been prepared by a solicitor whose name Mrs Tolmie did not know and whom she has never met or even spoken to on the telephone. She was not even sure whether her solicitor was a male or a female and at one
by which I took her to mean that she had two solicitors. In fact stage actually had the one solicitor being both male and female,

documents in the file show that Mrs Tolmie has been represented in these proceedings by a solicitor named Duncan McLean of Tamworth whose Sydney agent has been Sally Nash and Company. This would perhaps explain Mrs Tolmie's belief that she had two solicitors, one a male and one a female.

The disturbing thing about her evidence, however, is that she did not herself give any instructions either to Mr McLean or MS Nash about the contents of the "affidavits". She said that the documents were presented to her for signature and that she signed them, apparently at the request of one of her sons who is a police officer. Even perhaps more importantly, Mrs Tolmie said that she was not in the presence of a justice of the peace when any of the affidavits were supposedly sworn. Her account was that the affidavits were taken away, apparently by her son, after she had signed them. She presumed they were taken to the justices of the peace for signature. There is thus immediately raised the question as to whether these are in truth affidavits at all, on which I should place any weight at all.

Mr Tolmie swore an affidavit today. He was not asked anything about the justice of the peace but his affidavit was apparently signed in counsel's chambers today. In his affidavit he said that he and his wife do not have a solicitor because they have never needed one; that their son Paul arranged for Mr McLean of
mailed to them and that he read them to his wife and she read Tamworth to act for them; that the affidavits were prepared and

them also in his presence. He said that his wife signed the affidavits on 19 November, which would explain perhaps the two with that date but not those dated 1 October.

It is, to say the least, surprising that Mrs Tolmie, when questionedyesterday about the signing of the affidavits, did not recall her husband reading them to her and barely recalled reading them herself. The facts I have so far outlined them are disturbing enough. They represent a significant departure from the law and from appropriate and proper practice and may in fact be quite serious offences in which more than Mrs Tolmie herself is involved.

Mrs Tolmie's oral evidence on the service of the bankruptcy notice was consistent with what appeared in the so-called "affidavits", viz. that she had never been to 8 Edwards Street, Northmead. But a great deal of evidence was elucidated in the course of the proceedings about the connection if any between Mrs Tolmie and the Communication Credit Union, the petitioning creditor. She said that she has never been a member of that credit union, has never borrowed any money from it, has never paid it any money, and has never been in contact with it or had anything to do with it. Mrs Tolmie said that the loan application which led to these proceedings was not in fact signed, completed or authorised by her. She said that none of the writing is hers, including the signature. Her affidavit said
recollection of ever signing such an agreement. She said that that the signature looks like hers but that she has no

she did not sign any documents of the credit union and that she did not provide the credit union with any of the information contained in the application.

The credit union alleged in its evidence that on or about 4 April 1985, that is about 10 days after the loan application was completed, Mrs Tolmie gave a bill of sale to the credit union over a 1978 Ford six cylinder manual drive panel van, registered number HGC571. Reference to this vehicle is contained in the application on which the credit union is proceeding, but this entry is clearly in a different handwriting to most of the rest of the document.

Mrs Tolmie said in her affidavit of 1 October 1991 that she has never owned a Ford panel van and her husband's evidence was that neither of them has ever owned such a vehicle. Another vehicle is referred to in the loan application, viz. a 1981 Toyota Corona. This entry is also in different handwriting to the majority of the document, but it appears that although the Tolmies have owned a Toyota Corona for a number of years, or did so at the time, it was not a 1981 model. There is considerable doubt as to what its year of manufacture was, but Mr Tolmie said in evidence that it was about a 1978 or 1979 model.

Most of the evidence relating to the loan application really went to credit in this proceeding, although the loan application will
have to be closely examined in the upcoming application to set aside the judgment in the Parramatta Local Court, which I am told

is due for hearing shortly. It will be for that Court to decide whether the signature on the document is in fact that of Mrs Tolmie. I do not now go into all the evidence on the subject, although the evidence is considerable. It will suffice to say that there is a very close resemblance indeed between the signature on the loan application and Mrs Tolmie's acknowledged signatures on the four affidavits or purported affidavits which are in evidence in these proceedings.

Mrs Tolmie and her husband were cross-examined about two other applications for loans made in Mrs Tolmie's name on the same membership number of the credit union as applies to the one involved in this case. These are respectively dated 9 June 1983 and 31 January 1984. Associated with the first of those loan applications were a loan agreement, which apparently the credit union gives after an application for loan has been approved, and a document which purports to be an acknowledgment that the loan agreement was explained to the persons taking it out. In this case the document asserts that those persons were Mr and Mrs Tolmie. It says that they were given the opportunity to take the loan agreement away to read or to receive legal advice, that they declined to do so and that they acknowledged that they understood their obligations under the loan agreement.
The application of 9 June 1983, and the associated loan agreement
and acknowledgment document, all bear a signature of D. Tolmie, again very similar in appearance to the signature of the debtor

on the affidavits in evidence in these proceedings. Mrs Tolmie denied that the signatures are hers and M r Tolmie said also that his wife's signature does not appear on any of the three documents. Once again it is not for me precisely to determine this issue, but Mrs Tolmie's evidence concerning the signatures and the giving of the details contained in the documents was quite unsatisfactory. Two of the documents, the loan agreement and the acknowledgment document, purport also to be signed by Mr Tolmie, but he denied that the three signatures appearing on those two documents are his and I must say that they bear no resemblance at all to the signatures which appear on the affidavit which he has filed in these proceedings. It is not strictly an issue here but in my opinion the signatures on those documents purporting to be that of Mr Tolmie are not his at all.

The second of the two earlier loan applications of 31 January 1984 also purports to be in the name of Mrs Tolmie, and again bears the same membership number. Once again both she and her husband denied that the document contains her signature or any other examples of her writing. Once again this evidence is unsatisfactory and is, as it seems to me, unlikely to be correct. At the conclusion of her evidence today, Mrs Tolmie, when confronted with these documents, conceded that she may have signed anything and did not quite know what she had signed. Her account up to that moment was that the subject document of this action, and later the other documents, were signed or probably
hers, named Joyce Feeney, or her sister, Mary McMillan sometimes signed in and with her name by a former friend and workmate of
known as Mary Williams.

Mrs Tolmie's evidence in this regard was that Mrs Feeney was always seeking money for her sister to operate businesses or for private affairs, and that the relationship with the Communication Credit Union was Mrs Feeney's. Mrs Tolmie's initial account was that her signature must have been forged by either Mrs McMillan

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or Mrs Feeney; that this was done without her knowledge and consent; that Mrs Feeney knew her personal details including, in two out of the three loan applications, the correct birth date of Mrs Tolmie's husband; and that the accuracy of most of the information on the documents came because Mrs Tolmie had conveyed this information to Mrs Feeney over many years when she worked with her at the Tattersalls Club in Newcastle.

If this account is possible, Mrs Feeney would also have needed to know the fact and extent of Mrs Tolmie's indebtedness to Waltons and the Commonwealth Bank, amongst others things, at particular times. This is because Mrs Tolmie agreed that she did owe money to these enterprises. Mrs Feeney would also have needed to know the make and vintage of the vehicle or vehicles which the Tolmies owned from time to time; in some cases their values; and whether they were comprehensively insured, and even with whom. This is really quite unlikely to be the case unless Mrs Tolmie specifically told her at the time of the loan application. If not, Mrs Tolmie filled out the application

herself, directly or indirectly.

Mrs Tolmie agreed in cross-examination that from time to time notices were received at her house in Stockton from the credit union which, whether she did or did not open them, she passed on immediately to Mrs Feeney, knowing that they were Mrs Feeney's debt, or the debt of Mrs McMillan. Thus Mrs Tolmie must have known that there was a loan which was in her name. If she did not did not sign the application herself, it is difficult to conceive how she would have known to send the notices she received on to Mrs Feeney. If she knew that her signature had been forged without her knowledge and consent, it is difficult to understand why she would have done so.

No doubt realising that this situation was quite untenable, Mrs Tolmie said in further cross-examination that in fact Mrs Feeney had told her that she had forged Mrs Tolmie's signature, but begged Mrs Tolmie not to report her to the police because she would go to gaol. Mrs Feeney is said to have promised Mrs Tolmie that she would make all the repayments. Mrs Tolmie said that because of Mrs McMillanfs propensity to get into debt, Mr and Mrs Feeney had in fact lost their home on one occasion which, so I am led to believe, had been given as some form of security.

Mrs Tolmie said that two months ago Mrs Feeney took her to a

solicitor named Baker in Newcastle to discuss the matter, but

nothing much seems to have occurred, except Mr Baker's apparent

advice to Mrs Tolmie that she should not have anything to do with

Mrs Feeney again. This story was that Mrs Tolmie did not choose

Mr Baker as a solicitor, Mrs Feeney chose him. It would be strange advice indeed for a solicitor to tell a stranger that his own client should not be communicated with further in the matter on which the parties had come to see him for advice.

There is another piece of evidence that must be addressed. The original summons out of the Local Court which formed the basis of the judgment in this matter was allegedly served by George Robert Reeves, now a retired licensed commercial agent, on

Mrs Tolmie on 28 September 1988 at 13 William Street, Stockton. Mrs Tolmie yesterday denied that there had been any such service. Mr Reeves was called. Naturally he had no recollection of the event, but he had sworn an affidavit of service on the day on which the document was served; coincidentally swearing it at Northmead, even though the service was at Stockton. Mr Reeves gave his own address at the time as 39 Hood Street Northmead. Mr Reeves' evidence was that at the time of the service Mrs Tolmie said, "Yes, I am Dawn Tolmie. I got this loan for my sister. I will ring them up." Mrs Tolmie said that she has no sister, has never had one and would not have said to a process server that she did. She once denied receiving the summons but later in effect admitted it.

One of the earlier loan agreements to which I referred earlier - the one of 9 June 1983 - suggests that there was a Mrs C McDonald living at President Wilson Walk, Tanilba Bay, who was Mrs Tolmie's sister. Reliance was placed upon Mr Reeves' statement

that she said she took the loan for her sister to support her

contention that it was never served on her and that whoever it

was served on, it was not the debtor. Today Mrs Tolmie agreed that she did get this summons in 1988 and that she passed it on to Mrs Feeney. It cannot be a coincidence that Mrs Feeney did have a sister to whom she periodically gave money.

There are many other peculiarities in this case. On 7 May 1990,

a person purporting to be Mrs Tolmie made an application to the Registrar of the Local Court at Burwood for time to pay the present debt. At that time an address was given as "fonuerly of

4/4 Station Street, Wentworthville". An affidavit as to property

and means was said to have been completed giving the Wentworthville address as the address of Mrs Tolmie and signed before a justice of the peace.

Mrs Tolmie said that she has never lived at or been to Wentworthville and challenges some of the other contents of this affidavit as inapplicable to her. It will suffice to say that the signature on that affidavit is virtually certainly not Mrs Tolmie's, nor is Mrs Tolmie's signature to be found on the application for leave to pay the judgment debt by instalments. Nonetheless, the Registrar of the Burwood Local Court on 9 May granted leave to pay the judgment by instalments stating Mrs Tolmie as the judgment debtor and giving an address as 19 Mellor Street, West Ryde. Again this address is not known to Mrs

Tolmie .

There had been an earlier application to pay this debt by instalments to the Local Court at Burwood. Once again the

signatures on the statement of confession and the application to pay by instalments are certainly not those of Mrs Tolmie and the address given for the service of notices on Mrs Tolmie was given on this occasion as 5 Lackey Street, Summer Hill, a place where again she said she has never lived. The affidavit as to property and means is not even signed by the person who made it even though, at least in the photocopy that I have been given, a justice of the peace purports to have witnessed its signing. There is a reference in that document to a company called Brenma Finance to which the deponent is said to have owed $2000 but Mrs Tolmie says she has never heard of that company and has never owed it any money. Nevertheless, the registrar seems to have permitted the payment by instalments to Mrs Tolmie as living at the Wentworthville address.

The credit union keeps records, now on computer, of contacts made by members or clients, and part of that record for Mrs Tolmie's account has been produced. Between 1 February and 4 October 1991

a number of contacts was made with the credit union in relation to this debt. Some involved payments of amounts of $200 sometimes by cash, sometimes by cheque drawn on the National Australia Bank, paid to the credit union's Burwood office. Mrs Tolmie said that she has never had an account at the National Australia Bank. She has never been, she says, to the office of the credit union at Burwood to make any payments even though there is a reference in the computer record, at least once, to

unidentified man is said to have come to the credit union office. a visit by the debtor to the office. On other occasions an

Although the credit union had Mrs Tolmie's Stockton address from the original loan application form, it seems at some stage to have been informed that the debtor lived at 8 Edwards Street, Northmead. Yet on 8 July 1991 the company is said to have been told that she had been living at that Northmead address for the previous eight months.

There are many other references in the course of the entries on this record which are inconsistent with the facts as apply to Mrs Tolmie. For example, there is reference to her being the ex wife of another customer of the Communication Credit Union. Not only did both Mr and Mrs Tolmie say they have not been separated and have been living together for many, many years, but they say that Mr Tolmie has never been a member or account holder with the Communication Credit Union. In fact, he was a member of the credit union that operated out of his place of work. There is reference to the member having a sister who also had an account with the credit union. As I have said already, Mrs Tolmie said that she does not and has never had a sister, still less one who had an account with this credit union.

On 24 September 1991 there is a strange reference in the record to the fact that someone in the credit union rang the telephone number of the Stockton property, that the member, who for this purpose should be assumed to have been Mrs Tolmie, answered the telephone, but that was the end of it. There are many other

to do with Mrs Tolmie personally, such as for example that she references in the record to facts which seemingly have nothing

no longer has an interest in the Stockton home, when she seems to have been the undisputed joint owner of the home for more than 30 years up to today. Various other conversations are said to have been held with her or with a male person supposedly acting for her 02: in her name, none of which on the evidence appears to have much to do with Mrs Tolmie. There is even a reference to Mrs Tolmie's supposed sister, Mary Williams, which Mrs Tolmie told me is one of the names or assumed names of Mrs McMillan. There is certainly no reference to the supposed sister of Mrs Tolmie, Mrs McDonald of Tanilba Bay, referred to in one of the earlier applications for loan.

Taken overall, it is perfectly clear that the truth has not been told to the Court. I am quite satisfied that Mrs Tolmie's and her husband's accounts of the facts have not been truthful. I think the truth was close to being obtained at the end of the hearing when Mrs Tolmie was on the verge of conceding that it is at least possible that she signed these applications to obtain money at Mrs Feeney's request for Mrs McMillan. That is certainly one possibility. I do not have to make a finding on it, and in any case there is not quite enough evidence on which to do so. The question is whether Mrs Tolmie's credit has been so destroyed that I should not accept her evidence that she was not at 8 Edwards Street, Northmead on 16 September to receive the bankruptcy notice from M r Jorgensen.

This matter could be determined purely on the question of onus

of proof. Mr Jorgensenls evidence is prima facie evidence that a person answering to the name of Dawn Margaret Tolmie received the notice, but it is not a great deal more than that. His description of Mrs Tolmie is not accurate, but the question is whether his description was a simple innocent error, and whether she was in fact there when she says she was not. The issue raised in the present proceedings is whether it was the debtor. For my part, I do not see why a court should be placed in this invidious position. The case was listed yesterday for an hour or so in the afternoon; it has taken almost all day today as well as all afternoon yesterday. Yet there is a lot of evidence that has not been called which would elucidate the facts in this matter. It would undoubtedly be possible to ascertain whether Mrs Tolmie was ever not living at Stockton and was living at Northmead. It would undoubtedlybe possible to ascertain whether her denials that her signatures appear on the relevant document for this matter and the other documents in evidence are correct. It would undoubtedly be possible to establish whether the signatures on the respective documents are the same or different so as not to leave me in the position where I have to make some sort of intuitive assessment of the matter.

It would also be possible to establish whether the signatures have been forged by Mrs Feeney or Mrs McMillan. In evidence, Mrs Tolmie gave the address for Mrs Feeney as Tighes Crescent, Tighes Hill, a suburb of Newcastle, a house which she says she visited
only a couple of months ago on the day she went to Mr Baker's
office. I am not an expert in handwriting. I can make

observations like anyone else and have given my views on my observations, but to be asked to make a finding which would be tantamount to a finding of perjury based upon intuition is quite unsatisfactory.

I decline to accept the invitation to decide this matter based upon the onus of proof when all the evidence that could be brought has not been brought. The ultimate essence of court proceedings is to try to ascertain the truth. As at present advised that is not possible. There is certainly reason to doubt much of Mrs Tolmiels evidence but it is quite a different matter to make a conclusion that her credit is so destroyed that I should reject her assertion that she was not at Northmead on the day in question.
I have gone into the detail of the matter because I have wanted
it to be clear what is at stake in these proceedings. This is
not a simple straightforward case nor is the question presently
before the Court a simple straightforward question. Whichever
way the decision goes has potentially serious criminal
consequences for a number of people involved. Some people who
are on the periphery of the issue as to whether Mrs Tolmie ever
undertook a debt of the kind alleged here with the Communication
Credit Union have a great deal to lose from this matter reaching
the investigating authorities. Having heard the evidence, it
would be impossible for me to do nothing about the matter if I
am forced to resolve the issue as it is presently being put

before the Court. I have an obligation to the community and have

given an oath that I will uphold the law of the country. If I find that the law has not just been broken but deliberately flouted by people whose obligation it is to ensure that the law is not flouted, it is not possible that, consistent with my own duty, I can remain silent in the matter.

I therefore propose to accept the alternative which has been put forward by the petitioning creditor and adjourn the hearing to a later date to enable the parties to consider the position and, if necessary, to subject the matter to further investigation and further evidence. I make no decision now that if further evidence is submitted it will be received, merely that there should be an opportunity for consideration of the consequences of what has taken place in the Court up to the present time. As the party seeking the adjournment is the petitioning creditor, there is no prejudice to the debtor by an adjournment.

Ultimately, of course, if the matter is resolved contrary to the debtor's submissions, she may be subject to a sequestration order. But that is not the position at the present time and the 12 month life of the petition does not run out until February, I think, of next year. I therefore propose to adjourn the matter until late in the last week in December before the Christmas break to have a report as to what the parties propose for the future hearing of the matter. The hearing will continue, if

there is to be one, next year. Is there any particular date in
the week commencing 21 December. that is more satisfactory or
less?

RECORDED NOT TRANSCRIBED

The matter will stand part heard and be listed for mention at - - - - -X . -U IYr - .n . .Y - - r .~~ .,.-

9.30am on Thursday 24 December 1992. l certify tha: this &r! thc ,-+,teen

i p r e c e d ~ ~ g prises are a true copy of the

1 Reasons fcr Judgment hereln of h ~ s Honour j
Justice Elnfeld

f Dated: 3.2.93 I

bankruptcy no t ice was	no t served upon	t h e debtor and t h a t
t he r e fo re no a c t of	bankruptcy has been committed,	t h e debtor

t h i r d unre la ted ground,	is t h a t t h e r e is no debt.	Although t h i s
case has turned on t h e i s s u e of	service of	t h e bankruptcy not ice ,

credit, which addresses the issue of whether there was a debt	1 '
l-
, r
owing.
As to the question whether the bankruptcy notice was served.upon	i
the debtor, the petitioning creditor led evidence first by way

Jorgensen, a licensed commercial sub-agent .working from an '	i	i '
l
!
address in Parramatta.	Mr Jorgensen deposed in his	' affidavit

that on Monday 16 December 1991 he served a person claiming to	L
be the debtor at 8.10 pm by delivering a copy of the petition to her personally at an address that he gave as "8 Edwards street, Northmead 2152". Mr Jorgensen said in his affidavit that he identified the debtor by asking a female who came to the door upon his knocking, "Are you MS Dawn Margaret Tolmie, the person named in this bankruptcy notice?" Mr Jorgensen deposed that the female replied, "Yes, that's me".
M r Jorgensen asserted in oral evidence that the person whom he
saw only opened the door of the premises about 6 inches, accepted
the bankruptcy notice and then closed the door. He said that it
appeared that the house was in a bit of a mess and that some work
was happening there. He described the person at the door as between 5 feet and 5 feet 6 inches tall, of medium build, medium complexion, brown short hair and as an Australian-born person. His evidence in these regards was supported by a document headed "Agent's Service Report" which he said he filled out shortly after serving the document.
From my observations it would appear that Mrs Tohie is between 5 feet and 5 feet 6 inches tall, that she has hair which might be described as short brown although it is to my way of thinking somewhat closer to short blond or red hair, and that she might be described as someone who had medium complexion. But she is significantly larger than what is usually understood by the term medium build. The form of report which is in evidence provides a series of choices for the build of the person served. They are medium, slim, fat, stocky, plump, tall, short or other. Mr Jorgensen agreed in the witness box that the woman in court, who is Mrs Tolmie, is probably closer to one of the other descriptions in the choices, as I can see for myself.
This error can be explained in a number of alternative ways. Firstly, it might simply be that, an error. Second, it might be that the process server could not see well in the 6 inches that the door was opened for the short period it was open. A third possibility of course is that he did not serve Mrs Tolmie at all and that there was another woman there claiming to be Mrs Tolmie.
or see anyone but has made up the story altogether.	I suppose a fourth possibility is that he did not serve anyone
Mrs Tolmie denies being at 8 Edwards Street, Northmead on the day in question. She says that she has lived all of her married life, certainly the last 35 years, at 13 William Street, Stockton, a suburb of Newcastle, in a house which she and her husband have jointly owned for all that period. Mrs Tolmie says that for a number of years she worked as a laundress at Tattersall's Club in Newcastle, that her husband worked as a painter at the Hunter District Water Board in the Newcastle district for more than 20 years, and that neither of them has ever lived at any other place besides the Stockton address. Mrs Tolmie has given evidence that she does not drive a motor car, that she does not know where Northmead is, that she does not know anyone who lives in Northmead, and that she has never been to Edwards Street, Northmead. Mr Tolmie has coxroborated that account to some extent.
Mrs Tolmie's evidence to this effect appeared in the first instance in four affidavits or documents affecting to be affidavits, which she has signed in this matter. Two are dated 1 October 1992 and are said to have been signed at Newcastle, and two are dated 19 November 1992 and are said to have been signed at Stockton. They are all alleged to have been prepared by a solicitor whose name Mrs Tolmie did not know and whom she has never met or even spoken to on the telephone. She was not even sure whether her solicitor was a male or a female and at one
by which I took her to mean that she had two solicitors. In fact	stage actually had the one solicitor being both male and female,
documents in the file show that Mrs Tolmie has been represented in these proceedings by a solicitor named Duncan McLean of Tamworth whose Sydney agent has been Sally Nash and Company. This would perhaps explain Mrs Tolmie's belief that she had two solicitors, one a male and one a female.
The disturbing thing about her evidence, however, is that she did not herself give any instructions either to Mr McLean or MS Nash about the contents of the "affidavits". She said that the documents were presented to her for signature and that she signed them, apparently at the request of one of her sons who is a police officer. Even perhaps more importantly, Mrs Tolmie said that she was not in the presence of a justice of the peace when any of the affidavits were supposedly sworn. Her account was that the affidavits were taken away, apparently by her son, after she had signed them. She presumed they were taken to the justices of the peace for signature. There is thus immediately raised the question as to whether these are in truth affidavits at all, on which I should place any weight at all.
Mr Tolmie swore an affidavit today. He was not asked anything about the justice of the peace but his affidavit was apparently signed in counsel's chambers today. In his affidavit he said that he and his wife do not have a solicitor because they have never needed one; that their son Paul arranged for Mr McLean of
mailed to them and that he read them to his wife and she read	Tamworth to act for them; that the affidavits were prepared and
them also in his presence. He said that his wife signed the affidavits on 19 November, which would explain perhaps the two with that date but not those dated 1 October.
It is, to say the least, surprising that Mrs Tolmie, when questionedyesterday about the signing of the affidavits, did not recall her husband reading them to her and barely recalled reading them herself. The facts I have so far outlined them are disturbing enough. They represent a significant departure from the law and from appropriate and proper practice and may in fact be quite serious offences in which more than Mrs Tolmie herself is involved.
Mrs Tolmie's oral evidence on the service of the bankruptcy notice was consistent with what appeared in the so-called "affidavits", viz. that she had never been to 8 Edwards Street, Northmead. But a great deal of evidence was elucidated in the course of the proceedings about the connection if any between Mrs Tolmie and the Communication Credit Union, the petitioning creditor. She said that she has never been a member of that credit union, has never borrowed any money from it, has never paid it any money, and has never been in contact with it or had anything to do with it. Mrs Tolmie said that the loan application which led to these proceedings was not in fact signed, completed or authorised by her. She said that none of the writing is hers, including the signature. Her affidavit said
recollection of ever signing such an agreement. She said that	that the signature looks like hers but that she has no
she did not sign any documents of the credit union and that she did not provide the credit union with any of the information contained in the application.
The credit union alleged in its evidence that on or about 4 April 1985, that is about 10 days after the loan application was completed, Mrs Tolmie gave a bill of sale to the credit union over a 1978 Ford six cylinder manual drive panel van, registered number HGC571. Reference to this vehicle is contained in the application on which the credit union is proceeding, but this entry is clearly in a different handwriting to most of the rest of the document.
Mrs Tolmie said in her affidavit of 1 October 1991 that she has never owned a Ford panel van and her husband's evidence was that neither of them has ever owned such a vehicle. Another vehicle is referred to in the loan application, viz. a 1981 Toyota Corona. This entry is also in different handwriting to the majority of the document, but it appears that although the Tolmies have owned a Toyota Corona for a number of years, or did so at the time, it was not a 1981 model. There is considerable doubt as to what its year of manufacture was, but Mr Tolmie said in evidence that it was about a 1978 or 1979 model.
Most of the evidence relating to the loan application really went to credit in this proceeding, although the loan application will
have to be closely examined in the upcoming application to set	aside the judgment in the Parramatta Local Court, which I am told
is due for hearing shortly. It will be for that Court to decide whether the signature on the document is in fact that of Mrs Tolmie. I do not now go into all the evidence on the subject, although the evidence is considerable. It will suffice to say that there is a very close resemblance indeed between the signature on the loan application and Mrs Tolmie's acknowledged signatures on the four affidavits or purported affidavits which are in evidence in these proceedings.
Mrs Tolmie and her husband were cross-examined about two other applications for loans made in Mrs Tolmie's name on the same membership number of the credit union as applies to the one involved in this case. These are respectively dated 9 June 1983 and 31 January 1984. Associated with the first of those loan applications were a loan agreement, which apparently the credit union gives after an application for loan has been approved, and a document which purports to be an acknowledgment that the loan agreement was explained to the persons taking it out. In this case the document asserts that those persons were Mr and Mrs Tolmie. It says that they were given the opportunity to take the loan agreement away to read or to receive legal advice, that they declined to do so and that they acknowledged that they understood their obligations under the loan agreement.
The application of 9 June 1983, and the associated loan agreement
and acknowledgment document, all bear a signature of D. Tolmie,	again very similar in appearance to the signature of the debtor
on the affidavits in evidence in these proceedings. Mrs Tolmie denied that the signatures are hers and M r Tolmie said also that his wife's signature does not appear on any of the three documents. Once again it is not for me precisely to determine this issue, but Mrs Tolmie's evidence concerning the signatures and the giving of the details contained in the documents was quite unsatisfactory. Two of the documents, the loan agreement and the acknowledgment document, purport also to be signed by Mr Tolmie, but he denied that the three signatures appearing on those two documents are his and I must say that they bear no resemblance at all to the signatures which appear on the affidavit which he has filed in these proceedings. It is not strictly an issue here but in my opinion the signatures on those documents purporting to be that of Mr Tolmie are not his at all.
The second of the two earlier loan applications of 31 January 1984 also purports to be in the name of Mrs Tolmie, and again bears the same membership number. Once again both she and her husband denied that the document contains her signature or any other examples of her writing. Once again this evidence is unsatisfactory and is, as it seems to me, unlikely to be correct. At the conclusion of her evidence today, Mrs Tolmie, when confronted with these documents, conceded that she may have signed anything and did not quite know what she had signed. Her account up to that moment was that the subject document of this action, and later the other documents, were signed or probably
hers, named Joyce Feeney, or her sister, Mary McMillan sometimes	signed in and with her name by a former friend and workmate of
known as Mary Williams.
Mrs Tolmie's evidence in this regard was that Mrs Feeney was always seeking money for her sister to operate businesses or for private affairs, and that the relationship with the Communication Credit Union was Mrs Feeney's. Mrs Tolmie's initial account was that her signature must have been forged by either Mrs McMillan

i p r e c e d ~ ~ g	prises are a true copy of the
1 Reasons fcr Judgment hereln of h ~ s	Honour j

[1992] FCA 1026

1 Dec 1992