Viavattene v Birch
[2015] FCCA 2676
•7 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VIAVATTENE v BIRCH | [2015] FCCA 2676 |
| Catchwords: BANKRUPTCY – Application to set aside bankruptcy notice – whether orders upon which bankruptcy notice based are stayed – whether “no true debt” – whether misspelling of debtor’s name on bankruptcy notice an incurable defect – whether debtor has a counter-claim, set-off or cross demand – no basis shown to set aside bankruptcy notice – application dismissed. |
| Legislation: Bankruptcy Act 1966, s.306(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s.99(3) |
| Attorney General in and for the State of New South Wales v Viavattene [2013] NSWSC 453 Swart v Carr (No.2) [2008] FMCA 1204 Re Hansen; Ex parte Hansen (1985) 4 FCR 590 Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324 Yang v Mead [2009] FCA 1202 Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P1611 of 1986, 24 November 1986) Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670 |
| Applicant: | BEVERLY VIAVATTENE |
| Respondent: | EVELYN BIRCH |
| File Number: | BRG 299 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 May 2015 |
| Date of Last Submission: | 11 May 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 7 October 2015 |
REPRESENTATION
| The Applicant appearing on her own behalf |
| Solicitor for the Respondent: | Mr Wardrobe |
| Solicitors for the Respondent: | Ellis & Baxter |
ORDERS
The application filed on 10 April, 2015 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be taxed and paid according to the Federal Circuit Court (Bankruptcy) Rules 2006.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 299 of 2015
| BEVERLY VIAVATTENE |
Applicant
And
| EVELYN BIRCH |
Respondent
REASONS FOR JUDGMENT
Bankruptcy notice BN 179886 was issued on 30 March, 2015 at the request of the respondent to this application. She has the benefit of two costs orders made by the Local Court of New South Wales sitting at Murwillumbah in case number 2011/00318455. The first order was made on 7 March, 2012 for $5307.20. The second was made on 1 November, 2011 and is for $5173.67. The two orders total $10,480.87. The bankruptcy notice seeks a total of $13,430.03. The balance of the debt claimed in the bankruptcy notice is for interest accrued on the unpaid costs orders.
Amongst other orders, Ms Viavattene seeks that the bankruptcy notice be set aside. In her application filed on 10 April, 2015 she seeks the following orders:
1. The Bankruptcy Notice BN 179886 issued 30 March 2015, which was served on me on 31March 2015, be set aside. A copy of that Bankruptcy Notice accompanies this application.
2. Costs in favour of the applicant.
3. An order that all costs orders made against Beverly Viavattene are set aside.
4. An order for compensatory damages to be paid in favour of the applicant.
Her application specifies that:
These proceedings are brought under:
1. Sections 30(1)(b), 31(2), 41(3)(b), 41(6A)(b) & 83 of the Bankruptcy Act 1966; and
2. Regulation 4.01 (1)(b) of the Bankruptcy Regulations 1996; and
3. Sections 84(2)(a1), 84(2)(b), 99(3), 4, 7, 8, 13, 14, 19(1) & 19(3) of the Crimes (Domestic and Personal Violence) Act 2007; and
4. Sections 42(1), 41(3) & 141(1)(c) of the Real Property Act 1900; and
5. Section 6 Law Reform (Law and Equity) Act 1972, and
6. Section 6 Roads Act 1993
7. Sections 3 & 4 of the Inclosed Lands Protection Act 1901; and
8. Section 2 of the Law Reform Commission Report 71 (1994) Right to Access to Neighbouring Land.
Ms Viavattene points out that according to s.18 of the Federal Circuit Court of Australia Act1999 the Court has jurisdiction in associated matters. To the extent that Ms Viavattene seeks relief that the Court cannot grant under the Bankruptcy Act, she seeks that the Court deal with her claims in its associated jurisdiction.
Ms Viavattene filed an affidavit with her application which, although not particularly lengthy in itself, contains a great many annexures which themselves are lengthy, garbled and in parts, almost impenetrable. She has also filed an outline of submissions that does not assist to garner a quick understanding of the basis upon which she says that the bankruptcy notice should be set aside. Nonetheless, it appears to me from her application, affidavit and written submissions that she argues that:
a)the bankruptcy notice is defective because her name is not spelt correctly on it;
b)the costs orders upon which the bankruptcy notice is based are stayed;
c)the orders for costs were wrongly made and this Court ought to go behind those judgments to determine that there is, in truth, no debt owed by her to Ms Birch; and
d)she has a set-off, counterclaim or cross-demand.
The application is opposed by Ms Birch. She just wants her costs orders paid.
“Good fences make good neighbors”. So said the “neighbor beyond the hill” in Robert Frost’s Mending Wall. I have no evidence of the state of the fences around Ms Viavattene’s property at Chillingham in northern New South Wales, but having regard to the background to this matter I think I can safely surmise that they are in an advanced state of disrepair.
Ms Viavattene’s affidavit and its annexures reveal that she and her husband have been engaged in a long-running, expensive and emotionally draining dispute with people who might loosely be described as her neighbours. The dispute concerns the use made by Ms Birch, her partner Bruce Morton and others of Ms Viavattene’s land as an access way to land either owned or occupied by Ms Birch and Mr Morton. There is evidence that the dispute has attracted the status of being a “current affair” because the optimistically named programs that appear on national television after the 6.00pm news bulletins have, at times, given the parties a forum for the exchange of pleasantries.
The dispute, which has now raged for many years, has resulted in a multiplicity of legal proceedings, mainly but not exclusively, concerning apprehended violence orders and allegations that such orders have been breached. Ms Viavattene has initiated many applications and appeals to the District Court of New South Wales, the New South Wales Court of Criminal Appeal and at least once she has sought special leave to appeal in the High Court of Australia. The proceedings initiated by her are catalogued in the judgment of Fullerton J in Attorney General in and for the State of New South Wales v Viavattene [2013] NSWSC 453. In those proceedings, on 3 May, 2013 the Supreme Court of New South Wales prohibited Ms Viavattene from instituting proceedings in New South Wales other than with leave of an appropriate court.
However, it has not been all one way traffic. Ms Viavattene has been the respondent in proceedings commenced by Ms Birch and Mr Morton from time to time.
It is out of this milieu that the two costs orders the subject of the bankruptcy notice have sprung. They were made in the same case in the Local Court at Murwillumbah in which Ms Viavattene, as applicant, sought an apprehended violence order against Ms Birch. I have set out the individual histories of each order more fully below.
For the reasons that follow, Ms Viavattene’s application for each of the orders that she seeks must fail.
Bankruptcy notice in the wrong name
As to the first ground raised by Ms Viavattene, there is no cavilling with the proposition that Ms Viavattene’s Christian name is misspelt in the bankruptcy notice. In the bankruptcy notice and in the order given on 7 March, 2012 her Christian name is spelt “Beverley”. However, in the order of the Local Court given on 1 November, 2011 her Christian name is spelt “Beverly”. According to the applicant’s evidence the correct spelling of her name is “Beverly”. Thus, she says the bankruptcy notice has been issued in the wrong name and it ought to be set aside for that reason.
It is necessary for the bankruptcy notice to follow the judgment upon which it relies. That includes the description of the parties to the judgment: Swart v Carr (No.2) [2008] FMCA 1204 at [14]. Here there are two judgments, only one of which has the correct spelling of the applicant’s surname. The name on the bankruptcy notice is also incorrect.
However, whilst the proper identification of the creditor to a bankruptcy notice might be said to be an essential requirement of a bankruptcy notice (see for example, Re Hansen; Ex parte Hansen (1985) 4 FCR 590), formal errors in a bankruptcy notice do not result in its invalidity unless they cause “substantial injustice”: Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324 at 336. “The touchstone of invalidity is thus whether any error is “capable of misleading” a debtor in a manner that results in “substantial injustice” ”: Yang v Mead [2009] FCA 1202 at [15].
In Re McSwiney; Ex parte Davies; (unreported, FCA, Beaumont J, P1611 of 1986, 24 November 1986) the Federal Court concluded that a bankruptcy notice was not defective by reason of the debtor being identified as “Trevor John McSwiney” rather than “Trevor Peter McSwiney”. The apparent defect was cured by s.306(1) of the Bankruptcy Act.
In Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670 Kiefel J, when her Honour was a judge of the Federal Court of Australia, said:
[10] Mr Matheson has referred me to the definition of ‘legal name’ in Black’s Law Dictionary, 8th edn, ed BA Garner, West Pub Co, USA (2004) pg 1048 as ‘a person’s full name as recognised in law’. That does not however mean that a court document such as a bankruptcy notice or petition is void if the full legal name of the person is not provided. There is no doubt that Mr Matheson is the person named in the District Court proceedings and in these proceedings and that he has understood that to be the case. He has represented himself and appeared. There was no ambiguity created by the bankruptcy notice or petition. In any event if there was an irregularity in the mode of description, it is of a formal nature and one that can be validated by s 306(1) of the Bankruptcy Act: Re Draper; Ex parte Australian Society of Accountants (1989) 154 FCR 41. A ‘formal defect or an irregularity’ within the meaning of that section is one that could not reasonably mislead the debtor: Re Wimbourne; Ex parte The Debtor (1979) 24 ALR 494. In my opinion, the petition notice does not cause any injustice as it was not likely to mislead the debtor.
So too here, there is no doubt that Ms Viavattene is the person named in the Local Court judgment of 7 March, 2012 and in the bankruptcy notice. She has always understood that to be the case. She has represented herself and appeared both in the Local Court and here. There is no ambiguity created by the Local Court order or the bankruptcy notice. The defect is formal and can be corrected pursuant to s.306(1) of the Bankruptcy Act. There is nothing to suggest that the error in the spelling of Ms Viavattene’s name in the bankruptcy notice has caused any injustice because it was likely to, or did, mislead her in any material way.
Are the costs orders stayed?
Ms Viavattene argues that the two orders are stayed. The basis for her argument is that she has appealed the making of the orders to the District Court of New South Wales “and my evidence has not been heard”.
The evidence reveals that the orders were made in an application commenced by Ms Viavattene against Ms Birch wherein she sought an apprehended violence order. On the first date the matter came before the court it was adjourned to l November, 2011. On the adjourned date, Ms Viavattene sought that her application be further adjourned. It was granted and the application was adjourned to 21 November, 2011 but she was ordered to pay Ms Birch’s costs. That is the first order the subject of the bankruptcy notice. On 21 November, 2011 the matter was listed for hearing on 7 March, 2012. Meanwhile, Ms Viavattene appealed the costs order of 1 November, 2011 to the District Court of New South Wales.
On 7 March, 2012 Mr O'Reilly appeared on the apprehended violence order application for Ms Viavattene with instructions to make an adjournment application. However, the adjournment was refused and the application for the apprehended violence order was dismissed. The second costs order, the subject of the bankruptcy notice, was made consequent upon the dismissal of the application.
The appeal in respect of the 1 November, 2011 costs order was listed for hearing on 9 February, 2012 in the District Court. On that day, there was no appearance by Ms Viavattene and the appeal was dismissed.
Ms Viavattene argues that she has a right to a rehearing of the appeal and that the orders of the District Court judge that dismissed her appeal expressly contemplate that. A copy of the advice of the making of the order is annexed to Ms Viavattene’s affidavit filed on 10 April, 2015. The advice contains the following notation:
Re-Hearing
The Appellant may have the right to have the matter re-heard by the District Court. Further information may be obtained from any District Court Criminal Registry.
Although Ms Viavattene may have had an entitlement to apply to have those orders set aside and seek a rehearing of the appeal, there is no evidence that she has ever made such an application.
I should record that on 1 November, 2011 there was before the Local Court another application by Ms Viavattene wherein she sought an apprehended violence order against Mr Bruce Morton. That application was also adjourned and a costs order was made in that application against her. She appealed that costs order to the District Court also and that appeal was also dismissed on 9 February, 2012.
In support of her proposition that the costs orders are stayed, Ms Viavattene points to a letter from a Mr Jason Abdallah, Manager District Court Listing at the Downing Centre Court dated 20 March, 2012 to the “Murwillumbah Local Court” (annexure “BV4” to her affidavit filed on 10 April, 2015) which she claims suggests that the relevant costs orders are stayed. In that letter, Mr Abdallah says:
I write to you again with regards the above-named appellants current applications for appeal on their District and Local Court matters top the CCA in Sydney.
Please be advised that Beverley Viavattene again attended the registry of the District Court in Sydney today and was advised that her request for Judge Murrell of this Court to state her case to the CCA is still under consideration my Her Honour.
Again until such time Her Honour makes a decision with regards stating the case to the CCA, the appeals of the above named appellant cannot be processed.
Further, Beverley Viavattene wanted it noted on record that all transcripts from hearings in the Murwillumbah Court House had yet to be provided to her as requested.
Therefore all matters and costs orders in the Local and District Court should be stayed until after the appeals.
It is not clear what power was being exercised when Mr Abdallah suggested that “all matters and costs orders in the Local and District Court should be stayed until after the appeals”. There was certainly no order bought to my attention to that effect. In any event, it is apparent from the affidavit of Elizabeth Ellis filed on 6 May, 2015 and its annexures that the appeals to the Court of Criminal Appeal have been finalised.
Further, Ms Viavattene points to an order made by Black DCJ in the District Court of New South Wales at Lismore on 12 June, 2012 whereby it was apparently ordered that: “All orders are stayed until the next mention date in August 2012.”
However, that order was made on a Notice of Motion that was brought by Ms Viavattene on 30 April, 2012 in a number of applications then pending in the Local Court, namely case numbers 2010/338082, 2011/317401, 2011/318445 and 2011/317487. The application in which the costs orders were made was not one of them. That case had been finalised by the dismissal on 7 March, 2012 and the appeal against the first costs order was finalised by dismissal on 9 February, 2012.
Even if I am wrong about that and the Notice of Motion related to the application in which the costs orders were made, and assuming that Black DCJ’s order might have operated to stay execution on the orders the subject of the bankruptcy notice, the stay was limited in time: “until the next mention date in August 2012”. That time has long since passed. If more was needed, on 23 August, 2012 Black DCJ ordered the removal of the stay that was ordered on 12 June, 2012.
This ground must fail.
Is there a real debt?
Ms Viavattene’s argument here rests upon the notion that the Local Court had no power to make an order for costs in the proceedings because those were proceedings pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and that Act specifically prohibits the making of costs orders against applicants. She directs my attention specifically to s.99(3) of that Act. At the relevant time, that section was in the following terms:
99 Costs
(1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.
(2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986.
(3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.
(4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.
(5) Subsections (3) and (4) have effect despite any other Act or law.
(6) (Repealed)
It is immediately apparent that the section does not prohibit the making of costs orders against an applicant for an apprehended violence order as Ms Viavattene suggests. She argues that a court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought, “especially, when the APVO was made against the respondent for the protection of our children. Especially when enforceable APVO’s were granted by the Local Court and Supreme Court of NSW”.
However, no apprehended violence orders were made in the proceedings in question in favour of Ms Viavattene or anyone else. The proceedings were dismissed. I do not have the reasons for which the costs orders were made, but the first order was the subject of an appeal that was ultimately dismissed because Ms Viavattene did not prosecute it. The second costs order was made upon the dismissal of her principal application, against because she did not prosecute it.
The orders remain in place. There is no reason to think that there is not truly a debt, constituted by the two costs orders, owed by Ms Viavattene to Ms Birch.
Ms Viavattene asks “the Court to “go behind” the judgement in case no: 2011/318455 because the judgement was made in my absence without hearing my evidence or viewing DVD footage of my assaults, affray, intimidation, stalking, trespass causing damage to property; and the decision was indeed or affected by fraud and collusion, and there has been a miscarriage of justice”.
The Court undoubtedly has jurisdiction to go behind a judgment, especially a default judgment, in an appropriate case. But this is not an appropriate case. The orders at issue here are costs orders made in circumstances where Ms Viavattene sought an indulgence from the Local Court (on 1 November, 2011) and ultimately did not appear to prosecute her application on 7 March, 2012. To go behind those orders would require an examination of the circumstances in which those orders were made, not, as Ms Viavattene would have me do, an examination of whether her claim for an apprehended violence order was a good claim and would have resulted in an order (and consequently no costs order) had she chosen to appear to prosecute the application.
This ground of her application fails.
Counter-claim, set-off or cross demand
Ms Viavattene claims that she has a counter-claim, set-off or cross demand which could not have been raised in the proceedings in which the costs orders were made. She specifically draws my attention to paragraphs 60, 64, 65, 108, 109, 110 and 111 of her affidavit dated 30 April, 2012 (which appears as part of annexure 'BV2' to her affidavit filed in these proceedings on 10 April, 2015. Those paragraphs are in the following terms:
60 On the 6/1/2012 the plaintiff filed Notices of Appeal in the Court of Criminal Appeal for Beverly and Peter Viavattene
…
64 The plaintiff has been severely disadvantaged by solicitors who have taken our money and not acted for us such as Leigh Johnson and we have been unable to find or instruct another solicitor who doesn't have a conflict of interest.
65 On the 6/3/2012 documents were faxed from the Downing Street Registrar to the Murwillumbah Local Court stating that all cost orders and matters listed 7/3/2012 and 28/3/2012 should be stayed until after the appeal (See exhibit V 22 and V23).
…
108 Exhibit V22: Letter from Manager District Court Criminal Listings at the Downing Centre Court dated 6 March 2012, stating all matters and cost orders should be stayed until after the appeals.
109 Exhibit V23: Letter from Manager District Court Criminal Listings at the Downing Centre Court dated 20 March 2012 again stating all matters and cost orders should be stayed until after the appeals.
110 Exhibit V24(a) and (b): Cover Sheet of Fax sent to the Registrar Murwillumbah Local Court from the Downing Centre Sydney and transmission log confirming 4 pages were sent.
111 Exhibit V25: E-mail sent to Ellis and Baxter Solicitors & Attorneys dated 7/3/2012.
Those matters do not give rise to an arguable counter-claim, set-off or cross demand. The purport of Ms Viavattene’s claim in this regard is unclear, but to the extent that she is suggesting that the costs orders have been stayed, I have dealt with that argument above. To the extent that she is suggesting that she has a cause of action against her solicitors, that is not a counter-claim, set-off or cross demand against Ms Birch for the purposes of the Bankruptcy Act.
In my view there is no proper basis for suggesting that Ms Viavattene has a counter-claim, set-off or cross demand sufficient to warrant the setting aside of the bankruptcy notice.
This ground of the application must also fail.
Other relief
Ms Viavattene seeks an order that all costs orders made against Beverly Viavattene are set aside. No basis for such an order is demonstrated by the material before me. Even if I had the power to make such an order (which I seriously doubt) the circumstances of this case do not warrant an exercise of this power. Ms Viavattene’s evidence demonstrates the lengths that she has been to so as to have the various orders about which she complains set aside. All of her attempts have been seemingly unsuccessful. She has properly invoked the jurisdiction of the various courts of New South Wales to assist her in that regard. There is no place, in the circumstances, for a bankruptcy court to interfere with those orders, assuming that the power to do so existed.
Finally, no basis is made out for any order for compensation as sought by Ms Viavattene.
Conclusion
No basis for setting aside the bankruptcy notice has been demonstrated. The application filed on 10 April, 2015 must be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 25 September, 2015.
Associate:
Date: 7 October 2015
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