Federal Court Upholds Bankruptcy Notice for Legal Costs

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [RESPONDENT] [2000] FCA 734 [APPELLANT] v [RESPONDENT] N 131 OF 2000 IN THE MATTER OF [APPELLANT] v [RESPONDENT] N 7106 OF 2000 [NAME], WHITLAM AND RD NICHOLSON JJ 30 MAY 2000 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 131 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: [APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

JUDGES: [RESPONDENT], WHITLAM AND RD NICHOLSON JJ

DATE OF ORDER: 30 MAY 2000

[APPELLANT]

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7106 OF 2000

[APPELLANT]

APPLICANT

[RESPONDENT]

RESPONDENT

JUDGES: [NAME], WHITLAM AND RD NICHOLSON JJ

DATE OF ORDER: 30 MAY 2000

[APPELLANT]

THE COURT ORDERS THAT:

1. Leave to appeal be refused.

2. The applicant pay the respondent's costs of and incidental to the application for leave to appeal.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 131 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

[APPELLANT]

APPELLANT

[RESPONDENT]

RESPONDENT

N 7106 OF 2000

[APPELLANT]

APPLICANT

[RESPONDENT]

RESPONDENT

JUDGES: [NAME], WHITLAM AND RD NICHOLSON JJ

DATE: 30 MAY 2000

PLACE: [APPELLANT] FOR JUDGMENT

1 [NAME]: The first matter before the Court is an appeal from an order of [NAME] made on 8 February 2000 dismissing with costs an application by Mr [APPELLANT] to set aside a bankruptcy notice. The appellant acts for himself and his appeal has been heard with the assistance of an interpreter of the Greek language. 2 The bankruptcy notice in question was served on 1 November 1999. It was issued in relation to a judgment obtained by the respondent against the appellant in proceedings No 7740 of 1999 in the District Court of New South Wales. The amount of the judgment debt was $73,251.84. 3 The application to set aside the bankruptcy notice was filed on 15 November 1999. The accompanying affidavit sworn by Mr [APPELLANT] on 11 November 1999 did not state any proper grounds in support of the application. He annexed a copy of an application filed in the High Court Registry on 2 November 1999 for special leave to appeal the judgment of the Supreme Court given on 11 October 1999. 4 On 7 December 1999 the application to set aside the bankruptcy notice was heard and determined by a Registrar of this Court. She dismissed the application with costs. On 14 December 1999 the appellant filed a notice of motion for review of that exercise of power. The application to set aside the bankruptcy notice was then heard and determined by [NAME[NAME] on 8 February 2000. 5 In addition to his affidavit of 11 November 1999, the appellant also read in support of his application two further affidavits sworn respectively on 19 November and 13 December 1999. Several statements in those affidavits were upon objection ruled to be inadmissible. The latter two affidavits also had a jumble of documents physically attached to them when they were filed. These documents were not identified either in the narrative in the affidavits or in any other way as annexures to the affidavits. The so-called affidavits should not have been accepted for filing in the registry. 6 At the hearing before [NAME] the [NAME] tendered only a copy of the judgment given by the [ADDRESS] of Appeal on 11 October 1999 whereby it dismissed as incompetent a purported appeal by the appellant against a judgment for the respondent in proceedings No 9445 of 1997 in the District Court of New South Wales and also refused leave to appeal from that judgment. The grounds set out in the document filed in the High Court Registry on 2 November 1999 leave no doubt that this judgment of the Court of Appeal is the subject of a special leave application. These proceedings in the District Court of New South Wales involved the claim for professional negligence brought by the appellant against the respondent arising out of her retainer as his solicitor in an earlier action for personal injuries brought by him heard in the Supreme Court of New South Wales. 7 The evidence before [NAME] did not disclose the precise nature of District Court proceedings No 7740 of 1999. However, [NAME] was able to glean that the judgment was for the amount of unpaid costs determined by costs assessors. Provision is made by the Legal Profession Act 1987 (NSW) for the assessment of party and party costs by costs assessors. Section 208J(1) of that Act provides:

"On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination."

8 And subsection (3) of that section provides:

"In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs."

9 The creditor's address for payments specified in the bankruptcy notice is C/- [COMPANY], a well known professional indemnity insurer of solicitors. It is clear enough the judgment in District Court proceedings No 7740 of 1999 relates to costs that the appellant is liable to pay as a result of an order made in favour of the respondent by the District Court in proceedings No 9445 of 1997. 10 There is no evidence that the appellant has ever sought leave under the Legal Profession Act 1987 (NSW) to appeal against the determination of costs in the amount of $73,251.84, the subject of the bankruptcy notice. Moreover, as [NAME[NAME] observed, while the Court of Appeal dismissed as incompetent Mr [APPELLANT]' appeal against the District Court judgment in which the costs order quantified in that amount was made, it did so only after considering the merits of Mr [APPELLANT]' proposed appeal and after coming to the conclusion that there was no prospect of the appeal succeeding. 11 In these circumstances I am of the opinion that [NAME[NAME] was correct in not attempting to go behind the judgment in respect of which the bankruptcy notice was issued.

I would dismiss the appeal. 12 The second matter before the Court is an application for leave to appeal an order made by Einfeld J on 2 May 2000 whereby his Honour dismissed a motion brought by Mr [APPELLANT]. The proceedings before [NAME] which terminated in early February of this year were followed promptly by the issue by the present respondent of a petition based upon Mr [APPELLANT]' non-compliance with the bankruptcy notice. 13 When that petition first came before the Court for hearing early in the year, Mr [APPELLANT] having filed a notice of intention to oppose the making of a sequestration order, he had already instituted the appeal the subject of today's proceedings. In consequence, the hearing of the petition was adjourned to 6 June 2000. 14 Notwithstanding the fact that the hearing of the petition was so adjourned, Mr [APPELLANT] brought the motion in question before Einfeld J in which, so far as I can gather from what was said in Court today, he sought to use that motion as a vehicle for ventilating the same complaints that he has raised in support of the appeal which I have just dealt with. 15 I agree with [NAME] comments about the impossibility of understanding just what relief was sought on the face of the notice of motion, though, as I say, comments by Mr [APPELLANT] in the proceedings today suggest what his reason was in filing it. It is apparent, however, that any appeal against [NAME] dismissal of the motion has no prospects of success and I would refuse leave. 16 WHITLAM J: I agree with the learned presiding judge and with the orders he proposes. 17 NICHOLSON J: I also agree. 18 [NAME]: So far as the appeal is concerned, the order of the Court will therefore be that the appeal is dismissed. So far as the application for leave to appeal is concerned, the order of the Court will be that leave to appeal is refused. [ADDRESS] orders that the appellant shall pay the respondent's taxed costs of and incidental to the appeal. [ADDRESS] further orders that Mr [APPELLANT] as applicant for leave to appeal shall pay the respondent's costs of and incidental to the application for leave to appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME], Justice Whitlam and Justice RD Nicholson.

Associate: Dated: 1 June 2000

Counsel for Mr [APPELLANT]: Mr [APPELLANT] appeared in person.

Counsel for the Respondent: [redacted]

[NAME]: [RESPONDENT] of Hearing: 30 May 2000

Date of Judgment: 30 May 2000