Woolley v Vok (No.3)

[2011] FMCA 1054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOLLEY v VOK (No.3) [2011] FMCA 1054

BANKRUPTCY – Application for leave to issue a subpoena to give evidence.

Makhoul v Barnes (1995) 60 FCR 572
Wolff v Donovan (1991) 29 FCR 480; [1991] FCA 222
Woolley v Vok [2011] FMCA 1052
Woolley v Vok [2012] FMCA 228

Applicant: GREGORY WOOLLEY

Respondent: PETER VOK

File Number: SYG 658 of 2011

Judgment of: Barnes FM

Hearing date: 7 December 2011

Delivered at: Sydney

Delivered on: 7 December 2011

REPRESENTATION

Counsel for the Applicant: Mr J Hynes

Solicitors for the Applicant: Henry Davis York

Respondent: In person

ORDERS

1. The oral application for leave to issue a further subpoena is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 658 of 2011

GREGORY WOOLLEY

Applicant

And

PETER VOK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The hearing of a creditor’s petition is listed for today.  The debtor, Mr Vok, has made an oral application to issue a subpoena to Mr Jason Henry to give evidence at the hearing in relation to proof of the legitimacy of a letter that is said to have been sent from Mr Henry to Mr Woolley on 25 January 2010 in relation to the alleged debt on which the creditor’s petition was founded (see Woolley v Vok [2012] FMCA 228). The creditor relies on a judgment of the Local Court.

2. I am not minded to grant this application.  Mr Henry is not present.  Were his presence to be required that would necessarily delay the hearing.  The circumstances have not been distinguished from those addressed in relation to the application to set aside the subpoena requiring the production of documents by Mr Henry which has been set aside (see Woolley v Vok [2011] FMCA 1052). Similarly Mr Vok now seeks the presence of Mr Henry as a fishing expedition to discover whether he has a case to support the contention that Mr Woolley is not his creditor.

3. It may be that Mr Vok misunderstands the nature of these proceedings.  This is not a re-hearing of the proceedings that were before the Local Court.  It is however open to Mr Vok to endeavour to persuade me (for reasons that he did not raise in relation to the application to set aside the subpoena), that it is appropriate to go behind the judgment of the Local Court that formed the basis for the bankruptcy notice as he asserted in his notice of opposition to the creditor’s petition.  If I were to be persuaded that it was appropriate to go behind the judgment, at that stage there may be consideration of other evidence including the potential relevance of evidence from witnesses such as Mr Henry. 

4. In all the circumstances it is appropriate that (as discussed in Wolff v Donovan (1991) 29 FCR 480; [1991] FCA 222 and Makhoul v Barnes (1995) 60 FCR 572) the court should adopt a two stage process in relation to the issue of whether or not it should go behind a judgment. I propose to proceed on the basis that at the hearing of the creditor’s petition I should inquire into whether there is sufficient reason given for questioning the existence of a real debt behind the judgment. If I am not satisfied that there is sufficient reason to question the existence of a real debt behind the judgment, having heard all other matters relevant to the creditor’s petition, I shall go on to determine whether or not to make a sequestration order. If I am satisfied by Mr Vok that there is sufficient reason for questioning the existence of a real debt, then there would have to be a separate determination of whether there was a debt owed to Mr Woolley at a later date. In that context Mr Vok would have the opportunity to rely on further evidence and to raise the issue of any further subpoena addressed to Mr Henry.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  23 March 2012