Topez v Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC - [2017] FCCA 91

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOPEZ v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORPORATION) RNTBC

[2017] FCCA 91

Catchwords:
BANKRUPTCY – Application for review of sequestration order – nature of review hearing – act of bankruptcy – debtor relying on counterclaim and other matters – application for stay of order pending proceedings in District Court of South Australia – does applicant have a real claim – prospects of success.

Legislation:
Bankruptcy Act 1966 (Cth), ss.40(1)(g), 47(1), 52(1), 116
Bankruptcy Regulations 1996, rr.4.02A, 16.01(e)(ii)
Federal Circuit Court (Bankruptcy) Rules 2006, r.4.06
Bills of Exchange Act 1909 (Cth), ss.50(1), 56
Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth), ss.104
Federal Circuit Court of AustraliaAct (Cth) 1999, ss.40(1)(g), 52(1), 52(2), 103, 104, 116(b), 116(2)(g)
Federal Circuit Court of Australia Rules (Cth) 2000, r.20.03
Federal Court of Australia Act (Cth) 1976, s.52(3)
Limitation of Actions Act 1936 (SA), s.37

Cases cited:
Trustees of the Franciscan Missionaries of Mary v Weir (2000) 176 ALR 501
Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494
Cassegrain v Cassegrain [2015] NSWCA 387
Topez v Coulthard [2017] SAMC 1
ATLA & Ors v Topez (formerly Nanschild) [2016] SADC 69
Rigg v Baker (2006) 155 FCR 531
Totev v Sfar [2006] FCA 470
Macquarie Bank Limited v Ponnampalam [2014] FCCA 1685

Applicant:

MULARA TOPEZ

Respondent:

ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORPORATION) RNTBC

File Number:

ADG 378 of 2016

Judgment of:

Judge Brown

Hearing date:

2 March 2017

Date of Last Submission:

2 March 2017

Delivered at:

Adelaide

Delivered on:

5 May 2017

REPRESENTATION

Counsel for the Applicant:

Ms Wells

Solicitors for the Applicant:

Campbell Law

Counsel for the Respondent:

Mr Quinn

Solicitors for the Respondent:

Johnston Withers Lawyers

ORDERS

The Application for Review filed on 25 May 2012 is dismissed.
The sequestration order of Registrar Colbran of 19 December 2016 is confirmed.
The respondent’s costs are to be taxed pursuant to Part 40 of the Federal Court Rules 2011 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 378 of 2016

MULARA TOPEZ

Applicant

And

ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORPORATION) RNTBC

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings is Mulara Topez. The respondent is the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC “the ATLA”. The proceedings arise under the provisions of the Bankruptcy Act 1966 (Cth) “the Act”.
The parties have been involved, in a complex web of litigation, in several courts, across at least two States, for a lengthy period of time. The ATLA is a registered native title body corporate in respect of all Adnyamathanha Land. This land is in the north of South Australia and includes the Flinders Ranges.
The genesis of the controversy, between the parties, is that the applicant claims to be an Adnyamathanha woman; a state of affairs which the chair of the ATLA, several of its office holders and some of its members do not accept.
As a consequence, there have been a variety of proceedings, between the parties, regarding statements and actions of both Ms Topez (formerly known as Deborah Nanschild and Sri Devi) and members of the ATLA, particularly its chair, Mr Vincent Coulthard, regarding this controversial issue and matters which have flowed from it.
In May of 2013, the respondent and a number of its office holders sued the applicant, in the District Court of South Australia, for defamation. Ultimately, these proceedings were compromised by way of a complex Deed of Settlement and Release, which was made on 19 September 2014.[1]
[1] See annexure MT-03 to the applicant’s affidavit filed 11 January 2017
Pursuant to the Deed of Settlement, Ms Topez agreed to pay the ATLA the sum of $15,000.00, by way of instalments, which were to be paid in full within two years of the date of the deed. The deed was subject to other conditions, which included that Ms Topez would apologise for statements made by her and published in the Transcontinental Newspaper, which the ATLA considered defamatory.
Ms Topez also undertook that she would not repeat any of the defamatory allegations to which exception had been taken by the ATLA and its members. The parties to the deed also agreed as follows:
“The Parties agree that they will not disparage, adversely comment on or call into disrepute by words, or conduct, any Party to the Deed or any person associated with any Party to the Deed.”[2]
Ms Topez has alleged, in other proceedings, that members of the ATLA have breached this condition of the deed by disparaging her in a variety of media and forums.
[2] See clause 8 to the Deed of Settlement of Release dated 19 September 2014 annexed to Ms Topez’ affidavit filed 11January 2017
Significantly, as a condition of the deed, Ms Topez consented to the entry of judgement, in favour of the ATLA, in respect of the action brought against her by it, in the sum of $200,000.00. However, the ATLA undertook not to enforce the judgment, against Ms Topez, unless she failed to comply with the term requiring her to pay $15,000.00 by 19 September 2016 or otherwise breached the various undertakings made by her, in the Deed of Settlement.
In mid-2015 solicitors for the ATLA applied in the District Court of South Australia to enforce the judgement entered against Ms Topez, on 19 June 2014, in the sum of $200,000.00. It was alleged that Ms Topez had made no payment towards the settlement sum of $15,000.00 and had not abided by other conditions contained in the Deed of Release.
In response, Ms Topez made very many criticisms of the ATLA; its office holders; and the solicitors representing it. She asserted, in essence, that she had withdrawn her consent to the Deed of Settlement and wished to institute a counter-claim against the ATLA and defend the allegations made against her by it in the statement of claim initially filed against her.
The competing applications came before a Master of the District Court. The Master ordered that judgement be entered in favour of the ATLA, in the sum of $200,000.00, pursuant to the District Court’s judgment of 19 September 2014 and the related Deed of Settlement. In addition, costs were fixed in a lump sum of $5,000.00.
Ms Topez appealed the determination of the Master. This appeal was dealt with by Auxiliary Judge Clayton on 1 July 2016. His Honour dismissed Ms Topez’ appeal. On 8 November 2016, the ATLA filed a creditor’s petition seeking a sequestration order, in respect of Ms Topez’ estate, pursuant to section 43 of the Bankruptcy Act.
The petition asserted that Ms Topez owed the petitioning creditor, the ATLA, the sum of $205,000.00, arising from the proceedings in the District Court. The ATLA alleged that it had served a bankruptcy notice, seeking the payment of the sum from Ms Topez, on 17 October 2016. The bankruptcy notice had been issued by the Australian Financial Security Authority on 17 October 2016.
It was the position of the ATLA that Ms Topez had not complied with this bankruptcy notice, within the time specified, and therefore she has committed an act of bankruptcy, pursuant to section 40(1)(g) of the Act. Accordingly, pursuant to section 52(1) of the Act, it sought that a sequestration order be made against her estate.
The creditors’ petition came before Registrar Colbran on 19 December 2016. On this occasion, Registrar Colbran made the following orders:
“The estate of Mulara Topez be sequestrated under the Bankruptcy Act 1966.
The applicant’s creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.”

The current proceedings

On 10 January 2017 Ms Topez applied to review the decision of Registrar Colbran, made on 19 December 2016. She prepared her own grounds of review. In her application, Ms Topez sought the following orders:
“The creditor’s petition was not authorised by a resolution of Directors of the Aboriginal Corporation required under the CATSI ACT 2006 and the affidavit required under s.47(1) of the Bankruptcy Act 1966 provided by Mr Vincent Coulthard was deficient in evidence.
The Applicant offered to compromise the liability with a securitised Promissory Note under the rules of the Bills of Exchange Act 1909 meeting 1(a) of the Bankruptcy Notice.
It was not reasonable for the respondent to not do any investigation and to rely instead on opinions and assumptions made by Mr Richard Bradshaw in his Affidavit about the validity of the Promissory Note. This Affidavit is deficient in facts.
It was not reasonable for the respondent to not return the Promissory Note if it was not accepted. This prejudiced the Applicant.
Under s56 of the Bills of Exchange Act 1909 the Promissory Note not being returned was accepted and the liability was therefore discharged.
The cross demand underfoot are two liens against the liability:
The claim in the SA District Court is for breach of contract and breach of Court Order. This action is related to the same proceeding that gave rise to the Bankruptcy Notice. The claim of disparagement, adverse commentary and calling into disrepute by words or conduct of the Applicant and her associates is in the sum of $324,000.
The claim in the Qld Supreme Court is for defamation mostly on Facebook in the seven plus Facebook accounts the respondent owns. The evidence was found by the Applicant in mid-March 2016 and has been republished on two new Facebook accounts owned by the respondent in June 2016 and again in October 2016. New alleged defamatory material about the Applicant was also published during 2016.
The litigation damages against Mr Vincent Coulthard who provided the Affidavit to raise the Creditor's Petition and who has day-to-day management responsibility for the Facebook pages is for more than the sum of $3.5M. He has a material personal interest in stopping the Applicant from pursuing legal action.
The litigation damages against the Applicant as the owner of the Facebook pages is for more than the sum of $3.5M.
The alleged defamatory material has been published within the one year limitation rule. Nevertheless the Applicant will seek to extend the limitation period to 3 years under the Limitations of Actions Act 1974 (Qld). This is a common application .
The Statements of Claim were provided to the court at MT05 and MT06 of the Applicant's Affidavit.
The gravity of the facts in each matter stands on its own evidence, provided via Affidavits to the Review. This material has not been previously trialled.”[3]
[3] See Application for Review filed 10 January 2017
More recently, Ms Topez has been represented, by counsel, Ms Wells. As a consequence, the emphasis of her application has changed. She now seeks a stay of the sequestration order, prior to the substantive hearing of her review application. Ms Wells informed me that her client was not pursuing any remedies in respect of the prospective offer of a bill of exchange or promissory note.
Pursuant to section 103 of the Federal Circuit Court of Australia Act 1999 (Cth) “the FCC Act” the court, through its rules, is authorised to delegate its powers to a registrar of the court. One such power is the power to make a sequestration order pursuant to the Act.
Section 104 of the FCC Act authorises the court to review any delegated exercise of power to a registrar. In particular, section 104(3) provides as follows:
(3) The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
It is Ms Wells’ submission that this section authorises the court to stay the operation of a sequestration order, in appropriate circumstances. In Ms Wells’ submission there are proceedings pending before the District Court of South Australia, involving Ms Topez and the ATLA, which justify such a stay.
In Trustees of the Franciscan Missionaries of Mary v Weir[4] the Full Court of the Federal Court, when considering an equivalent provision under the Federal Court of Australia Act 1976 (Cth), determined that the provision authorised the court, if it thought it fit, to grant a stay order. This power was considered to be independent of that granted by section 52(3) of the Act, which authorises a stay of a sequestration order, but only for a period not exceeding 21 days.
[4] See Trustees of the Franciscan Missionaries of Mary v Weir (2000) 176 ALR 501 at 513 (23)
Mr Quinn, counsel for the ATLA opposes the granting of such a stay and seeks that the review of the sequestration order proceed forthwith. It is his position that Ms Topez is not in a position to put forward any valid reason why her bankruptcy should not be confirmed and the stay application is a delaying tactic.
Ms Wells has clearly indicated to the court that she is instructed, by Ms Topez, only in respect of the stay application. As such, she is not in a position to agitate her client’s application for review, which as previously indicated, Ms Topez has prepared herself.
This is also the position in respect of Ms Topez’ action in the South Australian District Court. Ms Topez has provided me with a copy of her proposed amended claim, which she seeks to rely upon in the District Court.[5]
[5] See annexure MT-42 to Ms Topez’ affidavit filed on 28 February 2017
In this document, Ms Topez asserts that the ATLA and various of its officeholders and members have breached the condition of the Deed of Settlement entered into on 19 September 2014, referred to above, which, for the sake of convenience, can be characterised as a mutual non denigration clause.
In addition, it appears to be Ms Topez’ position that various members of the ATLA have defamed her by, amongst other things, comments made by them about her, at the Annual General Meeting of the ATLA held in February of 2017, and on other occasions. She also claims to have been defamed by postings made about her, on Facebook.
Ms Topez has also commenced proceedings, again, against the ATLA and its officeholders, in the Supreme Court of Queensland on 22 November 2016. These proceedings sought damages for breach of contract, (the Deed of Settlement) and a claim for damages for defamation.
These proceedings came on before Daubney J, in the Supreme Court of Queensland, sitting at Brisbane, on 18 January 2017. On this occasion, the proceedings were stayed and she was ordered to pay the defendant’s costs.
Daubney J was satisfied that the proceedings instituted in the Supreme Court of Queensland were cognate with the claim brought by Ms Topez in the District Court of South Australia and accordingly, it would be an abuse of process for the defendants concerned to be subject to proceedings, in two separate jurisdictions, relating to the same alleged cause of action.
Ms Topez’ proceedings in the District Court have also been stayed by order of Master Keith made on 14 February 2014. On this occasion, the Master made the following orders:
“The plaintiff s action in contract and for breach of Court order is stayed by operation of the Bankruptcy Act 1966 (Commonwealth).
The plaintiff s statement of claim, which is (FDN 2) is struck out.
The plaintiff has liberty to provide to the solicitors for the defendants and to any proposed new defendant a draft of a proposed amended statement of claim by 16 March 2017.
The draft pleading should be exhibited to an affidavit and filed by 27 March 2017, in support of an application for permission to amend and to join a new defendant, if so advised.
The balance of the defendant's interlocutory application FDN5 be adjourned for further consideration on the next date.
The plaintiff s application (FDN 6), if any part of it remains to be considered, will also be considered on the adjourned date.
I will hear the parties as to costs.
Adjourned to Thursday 30 March 2017 at 2.15pm for directions.”[6]
[6] See Annexure 17 of Patrick Michael McCabe dated 1 March 2017 at paragraph 10
In support of these orders, Master Keith stated as follows:
“The plaintiff became bankrupt on 19 December 2016. I have been informed that an application is before the Court to review the bankruptcy, and that is apparently to be heard on 2 March 2017, but for so long as the order of the Court stands, the Bankruptcy Act has the effect that any such action as made in the statement of claim other than in defamation is stayed, and in particular section 60 and section 116 of the Bankruptcy Act must have that effect.”[7]
[7] Ibid at paragraph 6
One of the consequences of section 116(b) of the Act is that a bankrupt’s capacity to take proceedings, on his or her behalf, vests in his or her trustee in bankruptcy. However, pursuant to section 116(2)(g) a bankrupt retains the right to institute proceedings to recover damages for a personal injury or wrong done to him or her.
As is clear, Master Keith has given Ms Topez the opportunity to submit an amended statement of claim in respect of defamation only. It seems to be the case that he was aware, if Ms Topez’ application for a review of the sequestration order was successful, she would theoretically be in a position to pursue an application for damages relating to a breach of contract, arising from the Deed of Settlement.
However, in this context, it should also be noted that it is the position of the ATLA that Auxiliary Judge Clayton has disposed of this purported application in a considered judgment, which is not subject to appeal, delivered on 1 July 2016.
It is in the context of this proposed application that Ms Wells seeks the stay of the sequestration order, which will remove the bar, identified by Master Keith, preventing her from pursuing her proposed application to its full extent.
If the stay is granted, it will put into effect the provisions contained in section 40(1)(g) of the Bankruptcy Act and potentially provide a basis for Ms Topez to oppose the making of a sequestration order against her. It being the case that a sequestration review is a hearing de novo.
In due course, I apprehend that Ms Topez will contend, at the subsequent review hearing, when it is appointed, that she has a cross-demand equal to or exceeding the amount of the judgement debt against her, on which the bankruptcy petition was posited.[8] In these circumstances, it will be argued that Ms Topez has not committed an act of bankruptcy.
[8] See Bankruptcy Act at section 40(1)(g)
Accordingly, the nicety of Ms Wells’ position is that she requires the stay to be able to advance her client’s case for a review of the sequestration order. Without the stay, Ms Topez is barred from bringing any proceedings arising from a breach of contract. Rather, she would be limited to actions for wrongs against her personally.
In this context, it is necessary to outline the nature of review proceedings arising from a registrar’s determination. On an application for review of a registrar’s decision, the court:
·is engaged in a fresh proceedings;
·does not scrutinise the original reasons to ascertain error;
·makes its own decision on the merits of the case; and
·in an application for review of a sequestration order, where a sequestration order is still sought, the petitioning creditor is required to prove all necessary matters, including those specified in section 52(1) of the Act.
The review hearing arising is a hearing de novo. This is specified by rule 20.03 of the Federal Circuit Rules 2001, which also authorises the court to receive additional evidence.
It is Mr Quinn’s position that the application for a stay is a delaying tactic, which should not be entertained by the court. He further contends that Ms Topez will not be in a position to advance any meritorious counter-claim against the ATLA, particularly given the determination of Auxiliary Judge Clayton.

In these circumstances, he contends that the interests of justice dictate that the application for review be determined forthwith, as this was Ms Topez’ original application.

The applicant’s submission

It is Ms Wells’ submission that the stay sought by her client is required to maintain the status quo in respect of the review hearing by enabling her to pursue the full range of her various claims against the ATLA.
In this context, Ms Wells relies on what was said by Kenny J in Nolten v Groeneveld Australia Pty Ltd,[9] in which Her Honour indicated that a discretion to order such a stay in respect of appeal proceedings relating to a sequestration order was broad in nature.
[9] See Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 at [24]
Kenny J characterised the appropriate test for a stay as being:
“… whether the applicant for a stay showed a reason or an appropriate case to warrant the exercise of discretion in his favour. More specifically, with respect to an application for a stay of a sequestration order, the question is whether there is an arguable point on the proposed appeal and whether the balance of convenience favours the granting of a stay. …”
Accordingly, it would seem to be the case that Ms Topez must establish that she has an arguable point, in respect of her proposed statement of claim, including its aspects negated by her bankruptcy; and further that the balance of convenience favours the granting of the stay.
Ms Wells characterises the standard fixed by the concept of an arguable point as being relatively low.[10] In this context, Ms Wells submits that an examination of Ms Topez’ proposed statement of claim, currently stayed by operation of the order of Master Keith, satisfies this low threshold.
[10] See Cassegrain v Cassegrain [2015] NSWCA 387 at [11]
In particular, she refutes the submission that the various allegations, disclosed within it, have been adjudicated by Auxiliary Judge Clayton. As a consequence, she rejects the submission that either issue estoppel or res judicata has been established. In these circumstances, it is necessary to examine the judgement of Auxiliary Judge Clayton with some care. It is also relevant to examine other litigation between the parties.

Previous litigation between the parties

a)South Australian Magistrates’ Court

As is apparent, Ms Topez and the ATLA have been engaged in passionate and bitter litigation, with one another, in a variety of jurisdictions, since at least 2013. At the heart of the litigation is a powerful and emotional issue regarding Ms Topez’ assertion that she has certain prerogatives as an Adnyamathanha woman.
The ATLA has consistently taken exception to Ms Topez’ description of herself, in these terms, and any implication that she is an Indigenous person generally or an Adnyamathanha Elder specifically. As indicated above, these various controversies led to the District Court proceedings, which were compromised on 19 September 2014.
In her affidavit, in support of her application for a review of the sequestration order, Ms Topez referred to the fact that she was engaged in defamation proceedings, against Mr Vince Coulthard, the CEO of the ATLA, in the South Australian Magistrates Court.[11] It is now apparent that these proceedings have been dismissed by the South Australian Magistrates Court. I have been provided with a copy of the relevant judgment.[12]
[11] See affidavit of Ms Topez filed 14 December 2016
[12] See annexure PMM9 to the affidavit of Patrick Michael McCabe filed 27 January 2017
Under the heading Background Magistrate Adair described Ms Topez in the following terms:
“The plaintiff is a former teacher having taught in suburban and rural schools for approximately 20 years. In her work she regularly took students on trips including to the Flinders Ranges as part of an outdoor education program. Approximately 10 years ago she commenced an ecotourism consultancy business, including an enterprise called Women of the Wilderness, and regularly took participants to experience and explore the outback of South Australia including the Flinders Ranges. In 2012 she agreed to be the manager and facilitator of the Australian tour of the Grandmother Drum which was described as an indigenous or 'healing' drum built by Alaskan natives. The plaintiff managed the tour of the drum in the Flinders Ranges area including Nukunu country in the southern Flinders area where she worked with Aboriginal elders making a community drum. Thereafter the tour moved into Adnyamathanha country, and in particular Nepabunna which is in northern Flinders Ranges, where she met a number of Adnyamathanha elders at an event to display the drum. The plaintiff claimed that it was at that event that an Adnyamathanha elder, Uncle Kelvin Johnson, took her aside and told her that she was Adnyamathanha and that her spirit was welcomed 'back home' . The plaintiff, who had always identified as non-indigenous, said that this declaration was completely unexpected and that something changed for her that day. She described it as a powerful moment.
The plaintiff produced to the Court an extract from her personal website which described her as:
... a senior Adnyamathanha woman from the northern Flinders Ranges and works with indigenous elders and leaders throughout Australia ... an indigenous consultant to governments and communities on governance and leadership, and conducts sacred ceremonies and indigenous teachings nationally and internationally.”[13]
[13] See Topez v Coulthard [2017] SAMC 1
In March of 2013, Ms Topez was involved in organising an event entitled Hands Around the World, which took place on Adnyamathanha land. She planned to hold the same festival again in March of 2014. Members of the ATLA took exception to the 2014 ceremony going ahead and wrote to an Adnyamathanha person, Mr Charlie Jackson, who was apparently involved in organising the festival in question.
Ms Topez claimed that she had been defamed, in this letter, which was under the hand of Mr Coulthard. The letter was found to have been published no later than 14 March 2014. As a consequence of this letter, Ms Topez commenced defamation proceedings, against Mr Coulthard on 18 March 2015 in the South Australian Magistrates Court.
In this context, section 37 of the Limitation of Actions Act 1936 (SA) was relevant. It provides as follows:
“An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.
However, a Court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in subsection (1) to a period of up to 3 years running from the date of publication (but no further extension is to be allowed under any other provision of this Act).”
Ultimately, Magistrate Adair found that Ms Topez’ action was out of time. However, he considered each of the defences asserted by Mr Coulthard, in respect of the contents of his letter to Mr Jackson, to have been established.
In the letter in question, Mr Coulthard chastised any Adnyamathanha people for being involved with Ms Topez or in any way tacitly accepting that she was a “a senior Adnyamathanha woman” and “a wisdom keeper of our song lines”.
In this context, Magistrate Adair found as follows:
“The plaintiff claimed that at all times she had been culturally appropriate and respectful of Adnyamathanha culture and maintained her claim of aboriginal ancestry.
The defendant gave detailed evidence of his efforts, and those of other Senior Adnyamathanha persons, to investigate the plaintiff’s claims concerning her Adnyamathanha ancestry. During cross-examination, the defendant gave evidence that, based on the information the plaintiff provided, along with his research about her claims to Adnyamathanha ancestry, it was not possible that the plaintiff was Adnyamathanha. A number of witnesses called by the defendant, who claimed to have special knowledge of Adnyamathanha lineage, supported this.
After the ATLA board meeting on 18 February 2013, and having found no proof of the plaintiff having any Adnyamathanha ancestry, on 22 February 2013 the defendant says he requested in an email to the plaintiff that she refrain from claiming such heritage and remove any public statements indicating such. Contrary to that request the plaintiff continued to claim not only Adnyamathanha ancestry but that she was a 'Senior Adnyamathanha woman' and had ancestral 'lineage' from Uncle Ken McKenzie and Aunty Margaret McKenzie, both Adnyamathanha elders. The plaintiff maintained her assertions during her evidence in chief. However, during cross-examination she conceded that 'there's no way that I could prove that' and that the only proof she has is what she was told by Ken McKenzie and Kelvin Johnson.”[14]
[14] Ibid at paragraphs 93-95

b) District Court – the judgment of Auxiliary Judge Clayton

The proceedings before Auxiliary Judge Clayton arose from Ms Topez’s appeal from the order of the Master that judgment be entered in the ATLA’s favour in respect of the Deed of Settlement of 19 September 2014.
In an introduction to his judgment, Auxiliary Judge Clayton summarised the factual dispute between the parties in the following terms:
“The appellant claims that she is an Adnyamathanha woman. She told the court that her spirit was welcomed back to Adnyamathanha in March 2012 by an esteemed elder. She said that she was well and truly represented and in deep relationship with many many Adnyamathanha people. The respondents dispute her claim. The resolution of that dispute is not relevant to the appeal.” [15]
[15] See ATLA & Ors v Topez (formerly Nanschild) [2016] SADC 69 at [3]
In addition to issues related to the entry of judgment, each party also alleged that the other had breached the non-denigration provisions of the Deed. The ATLA alleged defamation against Ms Topez and another person arising from a letter sent by Ms Topez to the Office of the Registrar of Indigenous Incorporations.
For her part, Ms Topez took exception to a newsletter, published by the ATLA in September of 2014, which purported to comment upon the settlement reached between it and Ms Topez a few days beforehand. Ms Topez asserted that the press release made scurrilous claims, which defamed her reputation. As Auxiliary Judge Clayton commented:
“…hostilities between the parties commenced almost immediately after the Deed had been executed”.[16]
[16] Ibid at [36]
As a consequence, Ms Topez wrote to the solicitors for the ATLA requiring them to make corrections to the press release, the publication of which Ms Topez regarded as a fundamental breach of the Deed of Settlement, in that it constituted a disparagement of Ms Topez. Auxiliary Judge Clayton rejected this submission finding there was no basis for the deed to be terminated.
Auxiliary Judge Clayton also rejected Ms Topez’ submissions that the deed in question was unconscionable or otherwise unreasonable or that members of the ATLA or its solicitors had exerted undue influence or pressure on her.
In respect of the press release, to which Ms Topez took exception, His Honour found as follows:
“Clause 6 of the Deed acknowledged that the plaintiffs could publish Ms Topez apology ‘in any way they see fit’. I accept that the press release was within the bounds of what was permitted. I accept the submission that there is no evidence of language intended or calculated to injure or damage the reputation of Ms Topez.
It is not necessary for me to consider whether the defamation defences of absolute privilege and qualified privilege would apply to the publication of the press release.
I accept the plaintiff’s submission that even if the first plaintiff had breached the non-disparagement clause such breach would have had no effect on Ms Topez obligation to consent to judgment as required by clause 4.1.2. If there was a breach by the plaintiffs the appropriate remedy would be damages or an injunction. I do not accept that the non-disparagement clause was a ‘fundamental’ term of the Deed. Additionally the alleged breach of the clause was trivial not so serious as to give rise to a right to terminate.
Ms Topez argued that the Deed was unfair in that it ‘did not provide for the consequences of the plaintiffs default in dealing with the first defendant’s apology’. If the plaintiffs were in breach of the Deed the plaintiffs would have remedies which Ms Topez could pursue in a separate action. I accept the plaintiffs submission that the circumstances for that to occur have not been established.”[17]
[17] See Topez v Coulthard [2017] SAMC 1 at pages 14-15
In these circumstances, His Honour found there was no basis to set the deed aside and Ms Topez’ application to file a defence and counter-claim to the ATLA’s original statement of claim was without merit, particularly given that she had consented to the judgement against her.
It is the position of the ATLA that Auxiliary Judge Clayton determined that breaches of the non-denigration clause contained in the Deed could not amount to any fundamental breach of the contract contained within the Deed and therefore found any entitlement, on either party’s behalf to terminate the agreement.
In addition, as Ms Topez had been legally represented, at the time she both consented to judgment and executed the Deed, Auxiliary Judge Clayton rejected any submission that the Deed had been executed in unconscionable circumstances.

c) Ms Topez’ statement of claim

The statement of claim, presently stayed by order of Master Keith, is a prolix document, which Ms Wells has valiantly tried to summarise in her submissions. Paragraphs 14 to 15 allege the press release of September defamed Ms Topez and have “breached the contract and breached the court order and are in contempt of court”. In my view, Judge Clayton has clearly dealt with this issue and found it to be without merit.
In paragraphs 16 to 17, Ms Topez claims to have been defamed on Facebook, by defendants in the original District Court proceedings. These comments said to have defamed her are as follows:
“Responses to the Press Release on the Adnyamathanha owned Facebook pages (first seen in June 2016) by the defendants:
a)     30 September 2014 by Glenise Jackson Coulthard, sixth defendant:
“Again, if your going to listen and spread the gossip yarns words and talk about others (meanwhile shining the spotlight away from yourself) get the whole story and more to the point get the facts and evidence to back your mouth up ... As I have previously stated let this be a lesson and most importantly don be manipulated by people that have been in your life for 5 mins ... now hopefully we can move on”
b)     2 October 2014 by Regina McKenzie, member of the first defendant:
“Well said Glenise and very true ... rather them being negative see the positive stuff ... And yes don't listen to gossip and don't try to hurt people with lies
because in the end they would be looking stupid or paying court cases and compensation to the ones they hurt ... "
c)      25 September 2014 by Michael Anderson, fifth defendant:
“Let this be a lesson to all those that throw around unfounded accusations! Get some proof first before you run your mouth or write shit on Facebook, I am speaking to those that fed Nanschild unsubstantiated information. Your day will come.” [18]
[18] See annexure MT42 to affidavit of Mulara Topez filed 28 February 2017
Ms Topez asserts that, in these postings, she is accused of spreading gossip and of being manipulative and deceitful. Again, these comments are alleged to constitute a breach of the non-denigration clause of the Deed of Release.
In paragraph 18 to 19, Ms Topez makes reference to a motion, which was moved at a directors meeting of the ATLA, in which directors were asked to declare any association with Ms Topez. In this context, Ms Topez claims that the minutes of the directors’ meeting dishonour her and again, constitute a breach of the Deed of Release.
Paragraphs 20 to 21 refer to the report of the CEO of the ATLA, which is allegedly defamatory of Ms Topez, by suggesting that she was working against the interests of the ATLA by taking up its time and resources.
Ms Topez makes other claims that both on Facebook and at meetings of the ATLA she has been disparaged and discredited in various ways in respect of her motives and conduct towards Adnyamathanha people. In addition, she claims that any individual of Adnyamathanha background, who has associated with her, in any way, is disparaged.
On this basis, Ms Topez seeks an order setting aside the Deed of Release dated 19 September 2014 and liquidated damages in the sum of $323,000.00 together with aggravated and exemplary damages.
It is on the basis of this statement of claim, together presumably with any further statement of claim produced as a consequence of the orders of Master Keith, that Ms Wells submits that Ms Topez has an arguable case and therefore the stay should be granted to enable her to proceed to litigate the statement of claim in the District Court.

The ATLA’s submissions

It is Mr Quinn’s submission that the balance of convenience is against the stay order being made. In support of this submission, he contends that it is a central principle of bankruptcy proceedings that they be dealt with expeditiously.
In contrast, in the current matter, he points to the fact that Ms Topez has commenced numerous proceedings, which arise within the context of the controversy regarding her assertion of Adnyamathanha heritage, which have been dealt with in four separate courts, across two States and in which she has attempted to raise many allegations of defamatory behaviour in various meetings and on social media sites.
However, notwithstanding the minutiae of these complaints, it is Mr Quinn’s submission that the issue, which Ms Topez wishes to agitate, is essentially the same – namely, the ATLA has repudiated the Deed of Release in the period since it was entered into. In this context, Mr Quinn submits that the judgement of Auxiliary Judge Clayton has effectively disposed of this issue.
I agree with this submission. The various alleged breaches of the Deed are liable to fall within the same characterisation adopted by Auxiliary Judge Clayton of being trivial. As such, it is difficult to see that they would be capable of repudiating the Deed and so of allowing Ms Topez to contest the allegations raised against her in the original District Court proceedings and mount her own prior criticisms of the ATLA, which she abandoned when the action was compromised.
It is on this basis that Mr Quinn asserts that Ms Topez has no reasonable prospects of setting aside or otherwise defeating the judgement entered against her in the sum of $200,000.00. It is the judgement debt, which founded the unsatisfied bankruptcy notice, which in turn led to the sequestration of Ms Topez’s estate.
He points to the fact that Auxiliary Judge Clayton found there were no grounds to set the judgement aside and permit Ms Topez to withdraw her notice of discontinuance of defence and file a counterclaim. In these circumstances, he contends that, at best, Ms Topez is left with trivial complaints of a similar nature to those found by Auxiliary Judge Clayton to be wanting.
In this context, Mr Quinn relies on what was said by French J (as His Honour then was) in Rigg v Baker[19]as follows:
“A distinction has been drawn between a claim against the petitioning creditor which is likely to succeed and which would warrant refusal of a sequestration order and a ‘real claim’ which may has sufficient prospect to warrant the debtor being granted an opportunity to have it litigated. In the latter case an adjournment of the petition may be appropriate … The existence of a cross-claim against the petitioning creditor which is likely to succeed may support the proposition that the sequestration order ought not to have been made and should be annulled. On the other hand the existence of a real claim which might have warranted the adjournment would not necessarily support that conclusion. That is not to exclude the possibility that in appropriate circumstances the registrar or judge hearing the petition ought to grant an adjournment on the basis of a ‘real cross-claim’”. (references and citations removed)
[19] see Rigg v Baker (2006) 155 FCR 531 at 545 [66]

Mr Quinn submits that Ms Topez’s situation cannot fall within the first category of distinction set out in Rigg – that of having a claim against the ATLA, which is likely to succeed and therefore is justifiable of the sequestration order not having being made in the first place [see Bankruptcy Act at section 52].
At best, Mr Quinn contends Ms Topez, by dint of her potential statement of claim, currently stayed in the District Court, has a form of claim, which might conceivably justify an adjournment of the petition but not its dismissal.
However, in this context, Mr Quinn submits that Ms Topez is very far from establishing that her claim is one likely to succeed or more particularly to come within any possibility of exceeding the amount of the $205,000.00 judgment, from which the petition stems and which remain unsatisfied.
In these circumstances, Mr Quinn submits that the application for a stay should be dismissed and the application for review of the sequestration order dealt with forthwith. It is his further submission that given the extent of litigation, in other courts and jurisdictions, embarked upon by Ms Topez, which has hitherto been entirely unsuccessful, it would be unfair to his client to grant the stay sought, particularly given the fact that costs orders have or are likely to be made against Ms Topez.

Conclusions

Pursuant to section 52(1) of the Act, on the hearing of a creditor’s petition, the court requires proof of the following:
·the matters stated in the petition;
·service of the petition;
·the fact that the debt, on which the petitioning creditor relies, is still owing.
Pursuant to section 52(2), if the court is not satisfied of any of these matters or is satisfied that the debtor is able to pay his or her debts; or there is sufficient cause that a sequestration order ought not be made, it may dismiss the petition.
In addition, pursuant to section 52(3) the court has a discretion to stay a bankruptcy petition, for a period of up to 21 days. As previously indicated, pursuant to the power residing in section 104 of the FCC Act, the court has a general discretion to stay a bankruptcy petition.
In this case the petition of the ATLA asserts that Ms Topez owes the sum of $205,000.00 as a consequence of two judgment debts entered by the District Court against her on 11 and 21 March 2016 respectively. These judgments led to the issue of a bankruptcy notice, which was issued on 17 October 2016.
The bankruptcy notice required the payment, by Ms Topez, of the judgement debts, within 21 days of the notice being served upon her. The Bankruptcy Regulations 1996 prescribe when a bankruptcy notice must be served and the mode of service. A bankruptcy notice must be served within six months of issue [Regulation 4.02A] and may be served in a manner which in the ordinary course of events will be received by the debtor. This mode can include electronic mail [Regulation 16.01(e)(ii)].
I am satisfied that the bankruptcy notice was served on Ms Topez, at her personal email address, on or about 17 October 2016.[20] In addition, the provisions of the Federal Circuit Court (Bankruptcy) Rules 2006 prescribe a number of additional matters, which must be established by affidavit, prior to the hearing of any bankruptcy petition.[21]
[20] See affidavit of Patrick McCabe filed 8 November 2016.
[21] See Federal Circuit Court (Bankruptcy) Rules 2006 at Rule 4.06
These include evidence that the National Personal Insolvency Index has been searched in respect of the debtor and it does not include any relevant reference to the debtor in question. The solicitor for the ATLA has provided the affidavit material required in respect of the Index.[22]
[22] See affidavit of Patrick McCabe filed 1 March 2017
In addition, there is no controversy between the parties that the judgments debts have not been paid since the service of the bankruptcy notice on Ms Topez. In these circumstances, the ATLA asserts that Ms Topez has committed an act of bankruptcy as envisaged by section 40(1)(g) of the Act, which reads as follows:
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia--within the time specified in the notice; or

(ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

It is Ms Topez’s position that she has a counter-claim, set off or cross-demand, against the ATLA, in the form of her action in the District Court in which she is attempting to either have the basis for the judgments debts set aside or to establish that the ATLA is liable to her in a sum at least the equal of the judgments debts.
The major component of this action is currently stayed, as a consequence of the sequestration order made by Registrar Colbran on 19 December 2016, which is the subject of the rehearing application before me. At this stage, Ms Topez seeks not the dismissal of the petition, pursuant to section 52(2), but rather the stay of the sequestration order, which will enable her to proceed with some species of breach of contract action, against the ATLA.
I am satisfied that Ms Topez has committed an act of bankruptcy for the purposes of section 40(1)(g). The debt payable to the ATLA remains outstanding. In these circumstances, the court must determine whether there is sufficient cause to stay the sequestration order pursuant to the jurisdiction conferred by section 104 of the FCC Act.
This necessitates an examination of the likelihood of success of Ms Topez’s proposed action in the District Court. The major component of this action centres on the Deed of Release entered into between her and the ATLA, particularly the non-denigration provision. I am not dealing with this specific action but necessarily I must examine its merits on the basis of the material available to me.
In Totev v Sfar[23] Allsop J (as His Honour then was) said as follows:
“…what is clear is that the fact that there has been an act of bankruptcy does not make the claim by the debtor against the petitioning creditor irrelevant. It should be examined to assess whether it can be said that there is sufficient evidence to show that it is a real claim which is likely to succeed. Also relevant is the stage of the litigation, the length of time for its vindication and any other relevant matters. It goes without saying that solvency is a relevant consideration. In some circumstances, it may be difficult to assess the likelihood of success of the debtor’s claim. All the authorities show that central to the showing of "other sufficient cause" for the purposes of s 52(2)(b) is the question of the prospects of success. The case is not tried in the bankruptcy court, but [if] the material is examined … and a likelihood of success can be demonstrated, that may justify a refusal of a sequestration order. Alternatively, the circumstances may reveal a claim of a character and nature in which likelihood of success cannot be predicted with accuracy but in the circumstances the petition should be dismissed or an adjournment of the petition should granted … What should be proved, or what is sufficient to be proved, in any given case will depend upon the circumstances. The context in which the issue arises is also important. The discretion involved in s 52(2)(b) is a broad one, and, importantly, it is informed by public interest considerations concerned with the dealing with insolvents. It is to be distinguished from the task involved in deciding whether a claim exists that satisfied s 40(1)(g) of the Act.”
[23] Totev v Sfar [2006] FCA 470 at [44]
I accept that, as with the discretion arising under section 52(2)(b), the discretion arising under section 104 of the FCC Act is a broad one, which must be exercised judicially. The issue of Ms Topez’s solvency is a significant consideration, as is the public interest consideration that bankruptcy matters should be determined expeditiously.
In this case, Ms Topez and the ATLA have been engaged in litigation in various jurisdictions. Ms Topez’s action in the Supreme Court of Queensland, alleging defamation, has been stayed. Her appeal against the entry of judgment against her, as a consequence of the compromised defamation proceedings in the District Court, and her attempt to establish a breach of the Deed which was a corollary of that judgment has been wholly unsuccessful.
In my view, the currently stayed statement of claim is an attempt to re-litigate the matters earlier determined by Auxiliary Judge Clayton and, as such, must be categorised as having extremely limited prospects of success. In addition, in my view, the prospects of Ms Topez securing any verdict, in respect of the defamation matters alleged by her, in a sum exceeding $205,000.00, is close to negligible.
In these circumstances, in my view, Ms Topez has not established that she has a real claim, in the sense identified by French J in Rigg v Baker, which would justify the stay of the petition in question. In my assessment, she has not been able to demonstrate sufficient prospects of success, in the District Court, either on the basis of her stayed statement of claim or on the basis of her personal action for defamation that would warrant the stay of the sequestration order made by Registrar Colbran.
Essentially, when all the circumstances of the proposed litigation are considered, particularly given the judgment on appeal of Auxiliary Judge Clayton, which disposed of Ms Topez’s attempt to set aside the judgement debt of $200,000.00 entered on 19 September 2014 and characterised as trivial allegations that Ms Topez had been defamed by the ATLA, it is not, in my view, justified to stay the sequestration in order to give Ms Topez the opportunity to litigate the allegations raised by her in the currently stayed statement of claim. In my assessment, the majority of matters pleaded in this statement of claim are in analogous terms to those finalised by Auxiliary Judge Clayton.
In these circumstances, if the stay sought by Ms Topez is not granted, in my view, it must follow that the review application should also be determined. In this context, I appreciate Ms Wells has made it clear that she is not instructed to pursue any other application other than that related to the stay and no arguments were advanced in respect of the ground delineated in the review application.
However, by adopting this stance, in my view, Ms Topez has elected to put all her eggs in one basket. As such, in my view, it would be unfair to the ATLA that the proceedings should be adjourned to enable Ms Topez to muster still more arguments as to why the sequestration order should not be made.
Essentially, if the proceedings are adjourned because of the limits to the instructions provided to Ms Wells, Ms Topez would be able to secure her objective of delaying the proceedings by means of this devise, notwithstanding the failure of the position adopted by her.
I am satisfied of proof of the matters specified in the relevant creditor’s petition. In the Application for Review, Ms Topez has raised a number of other grounds, which she asserts demonstrate sufficient cause that the sequestration order ought not to have been made. These grounds can be summarised as follows:
·The action in the SA District Court;
·The action in the Supreme Court of Queensland;
·The alleged tender of a promissory note, to the ATLA’s solicitors, in the sum of $205,000.00, said to be redeemable at 10.25 am on 8 November 2016, at an address in Murrwillumbah, New South Wales;
·Mr Vincent Coulthard was not authorised to verify the creditor’s petition and there is no evidence to indicate that he has the authorisation of the ATLA to bring the proceedings against Ms Topez.
I have dealt with the issue of the proceedings in the District Court of South Australia. The proceedings in the Supreme Court of Queensland have been stayed. In my assessment the alleged tender of a promissory note is nonsense.
A bill of exchange is a form of negotiable instrument by which a party (the drawer) can direct another person (the drawee) to pay money to the holder of the bill of exchange (the payee). The giving of a bill of exchange, by one party to another, may be valid consideration, where the parties concerned have agreed as much.
Ms Topez claim that as a consequence of the ATLA’s solicitor not attending at the specified address at Murrwillumbah and accepting her promissory note, her liability to the ATLA is discharged as a consequence of the operation of the Bills of Exchange Act 1909 (Cth). In this context, I rely on what was said by Judge Driver in Macquarie Bank Limited v Ponnampalam as follows:
“Section 50(1) of the Bills of Exchange Act states:
(1) Subject to the provisions of this Act, a bill must be duly presented for payment. If it be not so presented, the drawer and indorsers shall be discharged.
The “discharge” referred to in s.50 is a discharge of the various parties’ liability under the bill of exchange if the bill of exchange is not presented for payment.
The Bills of Exchange Act governs the operation of bills of exchange (as defined in s.8). It does not purport to govern the rights and obligations of parties other than in respect of their rights and liabilities arising under any bill of exchange. Section 5 of the Act specifically preserves the rules of common law and bankruptcy in relation to bills of exchange (other than in the case of direct inconsistency with common law rules). It cannot seriously be suggested that the Bills of Exchange Act affects anything other than the operation of bills of exchange.”[24]
[24] Macquarie Bank Limited v Ponnampalam [2014] FCCA 1685 at [32] – [34]
Mr Coulthard was the second named plaintiff in the proceedings against Ms Topez which led to the judgment debts on which the petition is based and therefore was also a signatory to the Deed of Settlement of 19 September 2014.
In his affidavit verifying the petition herein, sworn on 8 November 2016, Mr Coulthard describes himself as the chief executive officer of the ATLA and a person authorised by it to make any necessary affidavit in respect of the affairs of the ATLA. As such, he deposes to having access to the books and records of the ATLA and of having personal knowledge that Ms Topez had not paid the judgement debts in question. He further deposes that, from the ATLA’s perspective, Ms Topez had not made a satisfactory arrangement to discharge the debt.
Ms Topez asserts that the ATLA has not passed a formal resolution to issue the petition in question and Mr Coulthard’s affidavit is deficient. She also asserts that he has a personal interest in stopping her proceeding with defamation proceedings against him personally and as such, by necessary implication Ms Topez asserts that the petition is some form of abuse of process or is tainted by mala fides.
As previously indicated, Ms Topez is able to proceed with defamation proceedings, notwithstanding her bankruptcy. Accordingly, she is able to continue proceedings against Mr Coulthard in her personal capacity.
Section 47(1) of the Bankruptcy Act reads as follows:
“A creditor’s petition must be verified by an affidavit of a person who knows the relevant facts.”
Given Mr Coulthard’s designated position as the CEO of the ATLA and his involvement in the multifarious litigation involving Ms Topez, I accept that he has a significant level of knowledge of the history of the proceedings to date, particularly the circumstances leading to the issue of the creditor’s petition and, as such, is a person with an appropriate level of knowledge of the relevant facts of the case from the ATLA’s perspective.
The ATLA was a party to the proceedings which led to the judgement debt and the Deed of Settlement. The creditor’s petition was executed by a solicitor employed by the firm of solicitors which has represented the ATLA through the many proceedings in which it has been involved with Ms Topez.
Apart from Ms Topez’s assertion that there is some form of impropriety in this relationship, there is no evidence available to me to indicate anything other than Mr McCabe of Johnson Withers was properly instructed by the ATLA to institute the sequestration proceedings, which in my view, were the logical next step following the entry of the judgment debts against Ms Topez and the resolution of the proceedings, in the ATLA’s favour, by Auxiliary Judge Clayton.
Pursuant to the provisions of section 104 of Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth) a presumption is created that all individuals dealing with an Aboriginal corporation are entitled to assume that the constitution of that corporation has been compiled with and any person held out to be an agent or officer of that corporation has been duly appointed. Ms Topez has not filed any evidence to rebut any of these presumptions in respect of any dealings of the ATLA or of Mr Coulthard.
In these circumstances, I have reached the conclusion that Ms Topez’s application for review should be dismissed and the sequestration order of Registrar Colbran confirmed. The ATLA is entitled to its costs incurred in the review application.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 5 May 2017