Zero Population Growth v Official Receiver in Bankruptcy

[1990] FCA 643

Re: ZERO POPULATION GROWTH
And: OFFICIAL RECEIVER IN BANKRUPTCY
No. N G341 of 1990
FED No. 643
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Wilcox(1) and Gummow(1) JJ.

CATCHWORDS

Bankruptcy - Motion to strike out appeal against a judgment dismissing an application for an annulment of bankruptcy - Whether any arguable ground of appeal could be established - Whether notice of appeal embarrassing and vexatious.

Bankruptcy Act 1966: s. 154(1)(a)

HEARING

SYDNEY

#DATE 30:7:1990

Appellant appeared in person.

Counsel for the Respondent: B.J. Skinner

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The notice of appeal filed on 19 June 1990 be struck out.

Mr. Zero-Population-Growth pay the costs of the Official Trustee of the notice of motion filed on 19 July 1990.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 30 May 1990, a single judge of this Court, Burchett J., dismissed an application by Mr Zero-Population-Growth, a bankrupt, for an annulment of his bankruptcy pursuant to s. 154(1)(a) of the Bankruptcy Act.

1. By notice of appeal filed on 19 June 1990, Mr Zero-Population-Growth sought to appeal from the whole of his Honour's judgment. The grounds of appeal are fifteen in number and the orders sought in the notice of appeal are that the bankruptcy be annulled and that the Official Receiver pay the costs of Mr Zero-Population-Growth.

2. By notice of motion filed on 19 July and served on 25 July 1990, the Official Trustee in bankruptcy moved the Court for orders striking out the notice of appeal on three stated grounds:
   (1) that the notice of grounds of appeal did not comply with order 52 rule 13(2) of this Court's rules;
   (2) that the judgment of Burchett J was interlocutory and leave to appeal had not been sought or granted; and
   (3) that the notice of appeal has a tendency to cause embarrassment and is an abuse of process and is scandalous.

3. The motion of the Official Trustee came before this Full Court this morning. The Official Trustee was represented by counsel. Mr Zero-Population Growth, the respondent to the motion, appears in person and has argued his case before us. After discussion between Mr Zero-Population-Growth and the bench, Mr Zero-Population-Growth sought leave from the Court orally to appeal from the judgment of Burchett J in so far as the same may be necessary. No objection was taken to this course by counsel for the Official Trustee and the Court then proceeded to hear both the Official Trustee's motion to strike out the notice of appeal and Mr Zero-Population-Growth's motion for leave to appeal in so far as the same may be necessary.

4. It is common ground that the matters upon which reliance is placed in support of the motion for leave to appeal are the matters relied on by Mr Zero-Population-Growth in opposition to the Official Trustee's motion to strike out the notice of appeal, namely, the various grounds of appeal encapsulated by Mr Zero-Population-Growth in the notice of appeal.

5. I should say that Mr Zero-Population-Growth initially made a comment about the service upon him as recently as last Wednesday of the Official Trustee's notice of motion but he did not assert any prejudice was sustained by him. Indeed, he agreed that no prejudice was sustained and was content that the matters proceeded before us this morning. In any event, we do not perceive any prejudice has been sustained.

6. Burchett J.'s reasons for judgment have been reduced to writing and there is no point in the Court recounting them except to mention certain of his Honour's findings. His Honour said that Mr Zero-Population-Growth himself asserted as a ground for annulment that he had deliberately overstated his debts and understated his assets in his statement of affairs which was the document that was filed together with his own petition for bankruptcy.

7. His Honour records that Mr Zero-Population-Growth:
   

"claims to have presented the petition for tactical reasons of some kind although the plan of campaign in which the tactics were to be employed was not fully explained."

His Honour found that the proper inference was that if what Mr Zero-Population Growth then said to his Honour was correct, he was probably motivated at least in part by a desire, however illogical, to make it impossible for a particular creditor, a Mrs Denison, to enforce her judgment immediately against him.

1. His Honour said at page 5 of his reasons:
   

"The Courts discretion must be exercised in a case where the applicant relies on the alleged deliberate falsity of his own statement of affairs. What he has done has secured the result that Mrs Denison was prevented from enforcing her judgment for a substantial period. The applicant now asks the court to annul the bankruptcy just when it appears a sale of property may possibly open the way to some payment becoming available.

If he had otherwise made out his case, I do not think in these circumstances it would be right to exercise a discretion to annul this bankruptcy before the payment of the bankrupt's debts. After they have been paid, if that in fact proves possible, an application can be made to the court under section 154(1)(b)."

1. We should interpolate here that we do not read that sentence as inviting Mr Zero-Population-Growth to apply again for annulment of his bankruptcy. It is rather a reminder that the refusal of one application for annulment is no bar to the making of a later application.

2. His Honour proceeded to say:
   

"But in any case I am not satisfied that Mr Zero was not insolvent when he presented his petition, I simply do not know. He then solemnly affirmed that he was. He now denies it. Mr Zero's case largely rests on unproved assertions and I am not satisfied that I should accept his present assertions against his verified statement of affairs made in 1987."

1. His Honour then dismissed the application for annulment.

2. The notice of appeal which contains the grounds of appeal itself and the matters upon which Mr Zero-Population-Growth relies in support of his motion for leave to appeal need not be set out in full. It is sufficient to refer to several of them.

3. Ground (2) asserts: " The bankrupt's petition was grossly untrue." It is to be remembered here that the bankrupt is Mr Zero-Population-Growth himself.

4. Grounds (3), (4) and (14) are in the following terms:
   

"(3) The purpose of the bankruptcy in presenting the petition was to publicize perjury with perjury, that was the ulterior motive for submitting false information.

(4) The bankrupt's major unsecured creditor, Elizabeth Denison, obtained her judgment against him by perjury, amounts $5000 and $2980. No attempt made to go behind judgment. There is no natural justice in courts arguing about angels on pins while a millionaire perjurer destroys another human being.

(14) The Official Trustee chose to be represented by an illegal immigrant and feebly represented at that. It is stretching things a bit to order an Australian citizen to pay even half costs of such a person."

1. The reference to half costs was to Burchett J.'s order that half the costs of the Official Trustee of the annulment application be paid by Mr Zero-Population-Growth.

2. If leave to appeal from Burchett J.'s judgment be necessary, then in the Court's opinion it is plainly a case where leave would not be granted. Nothing has been said and there is no material before us to suggest that his Honour fell into error. There is nothing to suggest that there is any ground of arguable appeal that has even a remote prospect of success.

3. There are, of course, no public interest considerations in the matter as we glean them from the documents before us. We do not find it necessary to decide in this case whether or not leave to appeal from an order of refusing an annulment of bankruptcy is an interlocutory or final order. It does not appear to us to be the appropriate case in which to determine that point, but in so far as leave to appeal may be necessary we would not be disposed to grant it.

4. So far as the motion to strike out the notice of appeal is concerned, it is a motion which should succeed. The notice of appeal is on the Court's record and for the reasons already given, in the opinion of the Court the notice of appeal is embarrassing and vexatious and must be struck out.

5. The order of the Court is that the notice of appeal filed on 19 June 1990 be struck out.

6. In the opinion of the Court, the costs of the Official Trustee of the notice of motion filed on 19 July 1990 should be paid by Mr Zero-Population-Growth and the Court so orders.