Stanley Myer Rosenberg Ex Parte: Westpac Banking Corporation [1993] FCA 339 (21 July 1993)

FEDERAL COURT OF AUSTRALIA

STANLEY MYER ROSENBERG
Ex parte: WESTPAC BANKING CORPORATION
No. VP851 of 1992
FED No. 483
Number of pages - 13
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
GENERAL DIVISION
Sweeney J(1)

CATCHWORDS

Bankruptcy - hearing of creditor's petition - adjournment applications - bankruptcy notice - service - whether personal service effected - creditor's petition - service - whether improper detention.

Bankruptcy Rules - Rule 15 (a) - sub-rules 122(1), 122(3)

Re Ditford ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347

Re Roberts ex parte Evans (unreported 25 August 1988)

Re Hudson ex parte G.E. Crane and Sons Limited (1990) 25 FCR 318

Re McDonald ex parte Allen (unreported 23 September 1992)

HEARING

MELBOURNE, 2, 5-6 July 1993
21:7:1993

Counsel for the Debtor: Mr R. Cook (2 July 1993)

Mr P Ginnane (5-6 July 1993)

Solicitors for the Debtor: Mr G. Kyprios (2 July 1993)

Counsel for the Petitioning

Creditor: Mr G. Bigmore

Solicitors for the Petitioning

Creditor: Messrs J.M. Smith and Emmerton

ORDER

The Court orders:

1. an order of sequestration against the estate of the debtor, the
act of bankruptcy being the failure of the debtor to comply with
the requirements of the bankruptcy notice on or before 29 May
1992.
2. costs, including reserved costs, will be in accordance with the
statute.

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

DECISION

SWEENY J A creditor's petition was presented by Westpac Banking Corporation ("the petitioning creditor") on 29 July 1992 following a judgment in default of defence obtained by it in the Supreme Court of Victoria on 14 November 1989 against Stanley Myer Rosenberg, ("the debtor") and Jillianne Evelyn Rosenberg in the sum of $7,784,683.61 together with costs and interest. On 5 March 1992 a bankruptcy notice was issued against both those parties alleging a debt of $10,873,623.47.

2. The hearing of the petition commenced on Friday 2 July 1993 the date which had been fixed by notice from the Registry to the parties given on 20 May 1993.

3. The court was informed that an order of sequestration had been made against the estate of Jillianne Evelyn Rosenberg upon another petition.

4. In the debtor's Amended Notice of Intention to Appear he set out the following grounds of opposition:

"1. The bankruptcy notice was not personally served on the
firstnamed debtor.
2. The firstnamed debtor disputes that service was effected in
the manner deposed to by Keith Anthony Levy in his affidavit
sworn 10 July 1992.
3. Service of the creditor's petition should be declared void,
alternatively be set aside on the ground that the firstnamed
debtor was illegally detained for the purpose of service.
4. The firstnamed debtor has good and substantial defences on
the merits to the cause of action on which the judgment
debt, on which the bankruptcy notice is founded, was
obtained in default of defence.
5. The firstnamed debtor has cross-claims against the
Petitioning Creditor which exceed the amount of the judgment
debt and interest."

5. It will be seen that there was no contention that the petition had not been served on the debtor. At the hearing the first three grounds were the only ones relied upon.

6. On 2 July 1993 Mr Cook, of counsel, appeared on behalf of Mr Rosenberg seeking an adjournment of the petition because, as he said:

"... Mr Rosenberg flew down yesterday night from Sydney, but has
developed back problems and is unable to leave his house which I
think is in Heidelberg or Rosanna or somewhere in the suburbs to
come to court today, and wanted to be here because he wanted to
oppose the order".

7. The matter was then adjourned until 12 noon, when Mr Cook read to the court a draft affidavit of his instructing solicitor, Mr Kyprios, in support of an adjournment.

8. That draft contained statements that the deponent had been informed by his client that he was unable to leave his home because his condition of osteoarthritis of the hip had become "seriously exacerbated overnight", but that he should be in a position to appear before the Court "on the next available date the Court has". An affidavit sworn by the solicitor was later filed.

9. After the draft affidavit was read Mr Cook said that his client was only asking for an adjournment to the next available date which could be Monday 5 July. It was ordered that the debtor pay costs, fixed at $500, to cover the expenses of the process server's trip from Sydney to Melbourne.

10. The hearing was then adjourned until that day, when Mr P Ginnane, of counsel, appeared for the debtor and applied for a further adjournment of the hearing of the petition for one week, relying upon a draft affidavit of the debtor exhibiting a medical report of Dr James Bertouch, dated 1 June 1993, some five weeks before the hearing. Paragraph 3 of the draft, read:

"I wish to be in a position to be able to (a) give evidence as to
the alleged service on me of a bankruptcy notice by Keith Anthony
Levy (b) provide instructions to my counsel as to the
circumstances pertaining to the alleged service on me by Levy (c)
swear and file additional affidavit material in opposition to
Levy's further affidavit sworn 2 July 1993 (d) arrange for the
attendance at court to give evidence in opposition to the
allegations by Levy of three police officers stationed at Kings
Cross Police Station who were in attendance at the time of the
alleged events relating to the service upon me deposed to be Levy."

11. In support of the adjournment application, Mr Ginnane submitted that further answering evidence would be required as a consequence of the filing by the petitioning creditor of an affidavit of Mr K. Levy, the process server, on 2 July 1993. Mr Ginnane said that answering evidence, to be given by three police who were in the police station at Kings Cross where the alleged incident took place, would be directly relevant to the issue of Mr Levy's credit.

12. As I observed to Mr Ginnane, Mr Levy had deposed in his first affidavit to events inside the police station, including his attempt to hand the bankruptcy notice to the debtor, and if the latter had any information that police officers were able to give evidence about those events, it would have earlier been a sensible precaution to get affidavits from them. When Mr Levy was asked in cross-examination whether there were some three police officers in and around the counter of the police station, he replied:

"Three and many more, yes, Kings Cross being a very busy police
station."

13. It seemed likely that considerable delay would result from any attempt now to ascertain whether particular police officers could give any useful information in relation to Mr Levy's statement in his affidavit of 2 July 1993:

"I showed him the Bankruptcy Notice by holding it upright in
front of him so that he could read it. The person looked at
the Bankruptcy Notice but refused to accept service and then
left the police station."

14. Mr Ginnane also relied upon Dr Bertouch's report, the final paragraph of which read:

"As a final point, I felt it would be extremely detrimental for
him to be involved in prolonged sitting or standing, example (sic)
in a court room giving evidence, as this is only likely to make
symptoms worse and to interfere with his concentration".

15. Mr Bigmore, for the petitioning creditor, opposed the adjournment application which was refused.

16. Mr Bigmore then advised the court that he had not issued a notice for the debtor to attend for cross-examination upon an affidavit sworn by him on 20 November 1992 as his instructing solicitor had only become aware of the existence of the affidavit on Friday 2 July 1993. The affidavit of the debtor had been filed but not served. Mr Bigmore then indicated that he wished, through Mr Ginnane, to give notice to the debtor that he was required to attend for cross-examination at 2.15 pm that day and the matter was adjourned until then.

17. At 2.15 pm Mr Ginnane made a further application for an adjournment by tendering without objection a doctor's certificate signed by Dr Simon Fisher that day. The certificate read:

"I examined Stanley Rosenberg today and find he is suffering from
advanced osteoarthritis of the left hip.
Due to the severity of his pain, I feel that travel to and from
court and a time in the witness box is at present medically
inappropriate and would not advise him to do so.
I feel that another week's management of his condition should be
sufficient to allow him to travel and testify."

18. Mr Ginnane said that he had discussed the certificate with Dr Fisher over lunch, and then said:

"I can understand if your Honour reads it that it might throw up
more questions in a sense than it answers. I do not know, for
instance, whether or not Dr Fisher is in any way a treating
physician for Mr Rosenberg and I do not know in terms of whether
or not that diagnosis that he has made in relation to the
arthritic condition was based upon any reports he may have had to
hand or simply on the basis of what Mr Rosenberg may have told
him.
HIS HONOUR: Yes.
MR GINNANE: And I appreciate it is full of those deficiencies in
that sense. Consequent upon receipt of it and to endeavour to
buffer it somewhat, I tried to get in contact again with Dr Fisher
shortly before coming to court this afternoon. He has left the
surgery for the day. His secretary or the secretarial staff at
the office could not tell me where I could locate him but if your
Honour required his attendance at court I would do all that I
could to endeavour to contact him and bring him along. But I do
reinvigorate the application for the adjournment."

19. Mr Bigmore again opposed the application. The shifting grounds of the applications for adjournment and the unsatisfactory nature of the material relating to the debtor's health led me to the view that they sprung from a desire by the debtor to stave off the hearing of the petition by any means possible. Mr Ginnane then asked for a short adjournment after which he announced that he appeared generally for the debtor.

20. In Mr Levy's first affidavit of service of the bankruptcy notice, sworn on 15 May 1992, which was read without objection, he deposed:

"1. On Friday the 15th day of May, 1992 at 10:30 o'clock in the
forenoon I served STANLEY MYER ROSENBERG with the Bankruptcy
Notice herein by delivering a sealed copy thereof, signed and
stamped by the Deputy Registrar in Bankruptcy, to STANLEY MYER
ROSENBERG personally at ELIZABETH BAY ROAD, KINGS CROSS.
2. I identified the person I served as the said STANLEY MYER
ROSENBERG by by reason of the fact that at 07:00 o'clock in the
forenoon on Friday the 15th day of May, 1992 I attended Kings
Cross Police Station where the debtor is required to present
himself three times a week, and spoke with a constable in charge
and we had a conversation in words to the effect:-
I said, 'I have to catch up with Stanley Myer Rosenberg. I
believe he is due here today to check in with you. Would
you know him?'
He said, 'Yes, he's a short, elderly bloke a little overweight.'
3. I then waited outside the station for the debtor to arrive.
4. At approximately 10:20 o'clock in the forenoon a male fitting
the description of the debtor entered the Kings Cross Police
Station and waited at the counter to be attended to. I then
entered the Police Station and as I did so the male turned to me.
I then said to him, 'Are you Stanley Myer Rosenberg?'
I did also at this time compare this male to a photocopy of a
photograph of the debtor which I had in my possession and note
that he looked exactly like the male therein.
I said, 'I believe that you are Stanley Myer Rosenberg the male in
this photograph.' I then attempted to hand to him the Bankruptcy
Notice. The male did not reply but immediately left the Police
Station.
5. I proceeded to follow the male out of the Station and he
turned to me and said, 'I don't' know who you are mate. I don't
know who you work for and that's not me.'
I said, 'Look Mr Rosenberg, I'm only doing my job. It has nothing
to do with me. Are you Stanley Myer Rosenberg?'
He said, 'Stop harrassing me mate or I will report you to the
police.'
He then turned to walk back into the Kings Cross Police Station
repeating, 'I'm going to report you.'
He proceeded to the entrance then appeared to change his mind and
turned and quickly ran towards his car, then past it across the
lane to the Gazebo Hotel.
6. I then returned to Kings Cross Police Station and asked the
male behind the desk, if the person who just reported in, was
Stanley Myer Rosenberg, to which he replied, 'Yes that it was'.
So I again waited outside. The debtor then shortly after, ran out
of the Hotel towards his car, which was a late model, white
Japanese Pulsar Sedan, registration number, PWB-185. As I also
approached his car he quickly turned and ran back inside the
Hotel.
7. I again returned to my position just outside the Kings Cross
Police Station when I noticed the debtor once again running from
the Gazebo Hotel in a crouched position towards his car. I again
approached the debtor's car. As he entered the car through the
passenger's side sliding across to the driver's seat I noticed
that the rear driver's side window was down. I then said to him,
'Mr Rosenberg this document is for you,' and passed the document
through the window onto the front seat beside him. I then turned
to leave. He then said, 'There they are mate, I haven't got
them.' As I turned around I saw the debtor drive off and noticed
that the document was lying on the street where he had thrown it
from the car.
8. Annexed hereto and marked with the letter 'A' is a true copy
of said Bankruptcy Notice signed and stamped by the Deputy
Registrar in Bankruptcy.
9. I have attained the age of sixteen (16) years."

21. Mr Levy's second affidavit read:

"1. I seek leave to refer to my Affidavit sworn 10 July 1992 and
filed herein ('my earlier Affidavit').
2. Annexed hereto marked 'KAL1' is the photocopy of an article
from the Age Newspaper containing the photograph of the
debtor, Stanley Myer Rosenberg, to which I refer in
paragraph 4 of my earlier Affidavit.
3. I confirm the contents of my earlier Affidavit and say
further that the person identified as 'Mr. Rosenberg' in the
newspaper article annexed hereto is identical in appearance
to the person upon whom I served the signed and stamped
Bankruptcy Notice herein on the 15 May 1992."

22. I have derived no assistance from Mr Levy's affidavit of 2 July 1993 in finding the facts in this case.

23. The petitioning creditor relied on the affidavit of service of the creditor's petition sworn by Jennifer Anne Miller solicitor with J.M. Smith and Emmerton, on 22 October 1992 which, excluding formal parts, reads:

"2. That I did at or about 4.58 pm on Friday, the 9th October
1992 serve the firstnamed Judgment Debtor, Stanley Myer
Rosenberg, with a signed and stamped copy of the Creditor's
Petition herein by delivering to him personally a true copy
of the Affidavit of Arthur Stewart Ley sworn 29th July 1992
verifying paragraphs 1, 2 and 3 of the Creditor's Petition
which annexed a signed and stamped copy of the Creditor's
Petition herein together with the Affidavit of Kelly Ann
Green sworn 29th July 1992 verifying paragraph 4 of the
Creditor's Petition herein. I served the Creditor's
Petition and verifying Affidavits on the firstnamed Judgment
Debtor at St. Kilda Road Police Complex, 412 St. Kilda Road,
Melbourne in the State of Victoria.
3. I identified the person I served by reason of the fact that:
(i) Prior to serving the Creditor's Petition and verifying
Affidavits on the firstnamed Judgment Debtor, I had a
picture of the firstnamed Judgment Debtor taken from
the Age newspaper in January 1991 together with a
description of him from Miss. Mary Burney, a partner
in the firm J.M. Smith and Emmerton, and a description
from Detective Sergeant Whelan of the Victoria Police
who also confirmed to me that the said picture was of
the firstnamed Judgment Debtor.
(ii) After service of the Creditor's Petition and verifying
Affidavits on the firstnamed Judgment Debtor,
Detective Sergeant Whelan and Detective Senior
Constable Taylor told me and I verily believe that the
person whom I had served was the firstnamed Judgment
Debtor, Stanley Myer Rosenberg.
4. I was informed by Miss Burney and verily believe that she
was able to provide me with a description of the firstnamed
Judgment Debtor because she had met him at an auction
conducted last year of his former home at 10 Findon Avenue,
North Caulfield.
5. I was informed by Detective Sergeant Whelan and Detective
Senior Constable Laurel Taylor and verily believe that they
could identify the firstnamed judgment Debtor because they
are presently involved in criminal proceedings brought by
the Director of Public Prosecutions against the firstnamed
Judgment Debtor. I am informed by the said Officers and
verily believe that they have both spoken with and attended
upon the firstnamed Judgment Debtor on a number of occasions
as a result of the firstnamed Judgment Debtor being required
to report to one or other of them every Monday, Wednesday
and Friday when the firstnamed Judgment Debtor is in
Melbourne in accordance with his bail conditions.
6. Further, I identified the firstnamed Judgment Debtor by
reason of the following events:
(i) At approximately 3 p.m. on the 9th October 1992, I
attended the St. Kilda Road Police Complex at 412 St.
Kilda Road, Melbourne ('the Complex'). I parked my
car in a parking space at the front of the Complex and
to the left of the entrance.
(ii) At approximately 4.30 p.m. a man fitting the
description and the picture I have of the firstnamed
Judgment Debtor walked up the steps of the Complex and
into the public reception area. I followed the man
into the public reception area and stood behind him to
his left at the reception desk where two officers sat.
The man, whom I believed to be the firstnamed
Judgement Debtor, told one of the officers that he
wanted to speak with Laurel Taylor. The officer
behind the reception desk to whom the man had spoken
asked the man his name. The man said 'Rosenberg'.
The man then walked away from the reception desk and
into the centre of the public reception area. I then
approached the officer to whom the man had spoken and
asked 'did that man say his name is Rosenberg?' The
officer said 'yes'.
(iii) I then walked over to the man and asked 'are you
Stanley Rosenberg?' The man whom I believed to be the
firstnamed Judgment Debtor did not answer but turned
and ran into a room to the right of the public
reception area which was named 'Media Liaison Bureau
Office'. I went to follow him but he slammed the
double glass doors which led into the room and would
not allow me to enter. The man then turned away from
the glass doors and ran into a connected office and
closed the door. I decided not to follow him at this
stage pending my speaking further with Detective
Sergeant Whelan.
(iv) I returned to the reception area where I waited for
the Detective Sergeant Whelan and Detective Senior
Constable Laurel Taylor. When they arrived I
explained what had happened and they went into the
office to speak with the man.
(v) At approximately 4.50 p.m. a man, whom I later
discovered was an Inspector with the Victoria Police,
('the Inspector') walked through the public reception
area and into the office where the man whom I believed
to be the firstnamed Judgment Debtor, Detective
Sergeant Whelan and Detective Senior Constable Taylor
were. At approximately 4.53 p.m. the Inspector came
out of the office and gave me permission to enter his
office and serve 'Mr. Rosenberg with the documents'.
(vi) At approximately 4.55 p.m. I entered the area behind
the glass doors and spoke with Detective Sergeant
Whelan. I told him of my conversation with the
Inspector and Detective Sergeant Whelan allowed me to
enter the office.
(vii) I stood in the door way of the office with Detective
Sergeant Whelan in the office to my left and Detective
Senior Constable Taylor in the room behind me to my
right where she could see into the office. The
firstnamed Judgment Debtor was in the office in front
of me to my right.
(viii) At approximately 4.57 p.m. I said to the man:
'Stanley Myer Rosenberg, my name is Jenny Miller and I
am a solicitor with J.M. Smith and Emmerton.' He then
went to push me to the side to get through the door
way but as I did not move, the firstnamed Judgment
Debtor stood close to his original position being in
front of me to my right. I then said to him: 'I have
here a Creditor's Petition with supporting Affidavits
issued on behalf of Westpac returnable in the Federal
Court on the 23rd November this year and I intend to
serve these documents on you now.' The firstnamed
judgment Debtor then placed his hands behind his back
and took a step backwards. I handed a true copy
Affidavit of Arthur Stewart Ley sworn 29th July 1992
annexing the signed and stamped Creditor's Petition
together with a true copy Affidavit of Kelly Ann Green
sworn 29th July 1992 to the firstnamed Judgment Debtor
but he refused to accept them. I then said: 'Mr
Rosenberg I am going to effect service of this
petition and Affidavits by placing them at your feet.'
I then bent down and placed the Affidavits including
the signed and stamped Creditor's Petition at the feet
of the firstnamed judgment Debtor then kicked the
documents to the side, took a step past me through the
door way and ran out of the Police Complex.
7. Annexed to this affidavit and marked with the letter 'JAM1',
is a true copy of the said Affidavit of Arthur Steward Ley
annexing a signed and stamped Creditor's Petition herein and
a true copy of the Affidavit of Kelly Ann Green.
8. I have attained the age of 16 years."

24. Ms Miller swore a further affidavit on 26 November 1992, paragraph 2 of which reads:

"2. I seek leave to refer to my Affidavit sworn 22 October 1992
and filed herein. I confirm that the contents of thereof
are true and correct save and except that paragraph 4 of my
Affidavit was incorrect insofar as it referred to Miss
Burney informing me that the auction of 10 Findon Avenue,
North Caulfield, took place last year. In fact, I was
informed by Miss Burney and I verily believe that the said
auction took place on 27 August 1989."

25. The petitioning creditor also relied upon the affidavit of Mary Sandra Burney, a member of J.M. Smith and Emmerton, sworn on 26 November 1992. The affidavit, excluding formal parts, reads:

"2. On the 27 August 1989 I attended a mortgagee's auction of
the Judgment Debtor's property at 10 Findon Avenue, North
Caulfield in the State of Victoria conducted by Robert
Morley of Birner Morley Pty. Ltd. on behalf of the
Petitioning Creditor. Prior to the commencement of the
auction I was involved in discussions with Anthony
McCafferty and Murray Sinderberry, representatives of the
Petitioning Creditor, and the said Mr. Morley. During those
discussions a person, who later identified himself to me as
Graham De Clifford, approached myself, Mr. McCafferty, Mr.
Sinderberry and Mr. Morley complaining that Mr. Morely would
not permit him to bid at the auction. Mr. Morley again
informed Mr. De Clifford that only those persons registered
to bid would be permitted to bid at the auction. Mr. De
Clifford then went to speak with a person whom both Mr.
Morley and Mr. Sinderberry had earlier informed me and I
verily believe was the Judgment Debtor. Subsequently, Mr.
De Clifford and the person whom I believed to be the
Judgment Debtor approached myself, Mr. McCafferty, Mr.
Sinderberry and Mr. Morley. I addressed the person whom I
believed to be the judgment Debtor as Mr. Rosenberg and he
responded by objecting vigorously about Mr. De Clifford not
being permitted to bid at the auction of his ('the judgment
Debtor's) property.
3. During the auction both the Judgment Debtor and Mr. De
Clifford attempted to bid for the property but their bids
were not accepted by Mr. Morley as auctioneer.
4. Annexed hereto marked 'MSB1' is an article taken from the
Age Newspaper on the 10th January 1991 containing a
photograph of a person identified in the article as 'Mr.
Rosenberg'. I confirm that the person in the photograph is
identical in appearance to the person whom I addressed at
the auction on the 27 August 1989 as Mr. Rosenberg and whom
I believe to be the Judgment Debtor, Stanley Myer Rosenberg."

26. The exhibit marked "MSB1" to Ms Burney's affidavit is an original cutting from the Age Newspaper with "The Age 10/1/91" written in pen on it. This cutting contains the same photograph and accompanying article as appears in the copy cutting exhibited to Mr Levy's second affidavit and marked "KAL1". The affidavits read on behalf of the petitioning creditor were read without objection.

27. No evidence was led on behalf of the debtor. In the course of his final submissions, Mr Ginnane conceded that the person Miss Miller saw at the St Kilda Road Police Station on 9 October 1992 was the debtor. It follows from the evidence relating to the identical photograph annexed to the relevant affidavits that the debtor was the man at and about the Kings Cross Police Station on 15 May 1992 of whom Mr Levy spoke in his affidavits and in the course of his cross-examination by Mr Ginnane.

28. In answer to Mr Ginnane, Mr Levy said that he was 6 feet 2 inches in height, and that he passed the bankruptcy notice through the open rear window on the driver's side of Mr Rosenberg's car and it landed on the front passenger seat. "I didn't", he said, "actually force it into his lap". He rejected Mr Ginnane's suggestion that he was not able to see the horizontal part of that seat. He said that the debtor obviously was not going to take the document because he had previously refused to do so and walked past him. He rejected Mr Ginnane's suggestion that he could not have passed any document through the window because the debtor's dog was in the back seat and was barking furiously. He agreed that the dog was there but denied that it was barking. He described as totally incorrect Mr Ginnane's suggestion that the window was wound up and he endeavoured to effect service by throwing the bankruptcy notice at the window of the debtor's car and that the document fell to the ground. He denied that, after the debtor had "proceeded away from where he was parked", the witness bent down and retrieved the document.

29. Mr Levy did not in any of his affidavits say that he told the debtor that the document he wished to serve upon him was a bankruptcy notice and in cross-examination he was asked:

"Mr Levy, you never identified the document that you served Mr
Rosenberg with as being a bankruptcy notice, did you?"

and he replied:

"That's right".

30. On 6 July I extended the time at the expiration of which the creditor's petition will lapse to 22 July 1994 and reserved judgment.

31. In affidavits of service of bankruptcy notices it is common to find words appropriate to meet the requirements of sub-rule 122(3) of the Bankruptcy Rules which reads as follows:

"122(3) Where:
(a) a document relating to a proceeding is, or is about to be,
delivered to a person for the purpose of effecting service
of the document on the person; and
(b) the person admits to the person who delivered, or is about
to deliver, the document to the first-mentioned person that
the first-mentioned person is:
(i) a specified person referred to in the document; or
(ii) a specified person to whom the proceeding relates,
the admission is evidence that the first-mentioned person is that
specified person."

32. In the case of service of a bankruptcy notice, such words commonly are expressed as a statement that in answer to the question:

"Are you the person (name stated) named as the debtor in this
bankruptcy notice?"
the person served said "Yes".

33. The object of the sub-rule is to provide a means whereby process servers who cannot otherwise identify the person served with a bankruptcy notice may overcome the difficulty by obtaining the appropriate admission. Courts of bankruptcy have become very familiar with this formula.

34. Sub-rule 122(1) recognises other modes of proof of identity. It reads:

"122(1) Where service of a document is effected on a person by
delivering the document or a copy of the document to the person
personally, the due service of the document shall be deemed not to
have been proved by affidavit unless the person who delivered the
document to the person to be served states in an affidavit:
(a) the date on which and the place at which the document was
delivered; and
(b) the means by which he established that the person to whom
the document was delivered was the person required to be
served with the document."

35. A process server who is called upon to serve a bankruptcy notice would be wise in every case to tell the person served that the document is a bankruptcy notice addressed to him, lest he treat it, for example, as one of the many pieces of paper which are pressed upon people by advertisers.

36. In the absence of a statement to the person served of the nature of the document, a court needs to look at the facts proved and the circumstances prevailing in any given case.

37. I approach the finding of facts bearing in mind the authorities which emphasise the seriousness of the consequences which may flow from service of a bankruptcy notice, not only to the status of the person served but also to the rights of his creditors generally. Those authorities were cited by Hill, J in the unreported case Re Roberts ex parte Evans (25 August 1989) at pp 8-9 and by Gummow J in Re Ditford ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 358.

38. In the latter case, his Honour said (at p 360):

"I accept the submission by the respondent to the present
application that there may be delivery personally to the debtor of
process within the meaning of r 15 of the Bankruptcy Rules, even
though the process has not been left in what Patteson J described
as the 'actual corporal possession of the defendant'. If the
debtor were refusing to take such actual corporal possession of
the process, but the process server informed the debtor of the
nature of the process and left it before or near the debtor so
that the debtor had unimpeded and immediate access to the
documents, that, in my view, should, in general, be sufficient to
comply with r 15."

39. This passage has been cited with approval by Pincus J in Re Hudson (1990) 25 FCR 319 at 320 and by Gray J in Re McDonald ex parte Allen (unreported, 23 September 1992 at p 2).

40. In Re Roberts Hill J said (at pp 11-12):

"Even if there had been no statement as to the general
consequences of the document but merely a statement that the
document was important and was for the recipient I would have been
inclined to the view that a bankruptcy notice left on the table in
front of the person to be served at his house was delivered to the
person to be served."

41. I regard Mr Levy as an honest and reliable witness and am satisfied that he placed the bankruptcy notice on the front passenger's seat of the debtor's car, alongside the debtor seated in the driver's seat and that the debtor picked it up.

42. On its front page, the bankruptcy notice bore the heading, in capital letters "Bankruptcy Notice" and the title Re Stanley Myer Rosenberg Jillianne Evelyn Rosenberg Judgment Debtors ex Parte Westpac Banking Corporation, Judgment Creditor and recited the judgment which it had obtained against the judgment debtors in the Supreme Court of Victoria.

43. The debtor, a former solicitor, must have appreciated that the document which the process server was so diligently attempting to serve upon him was of importance. He knew that a large judgment obtained against him in November 1989 remained unsatisfied.

44. I am satisfied that the evidence of Mr Levy shows that service of the bankruptcy notice was duly effected by his delivering it on 15 May 1992 to the debtor personally, within the meaning of Rule 15(a) of the Bankruptcy Rules.

45. The only other challenge to the petitioning creditor's case was based upon the proposition that the debtor was improperly detained at the St Kilda Road Police Station for the purpose of service of the petition and that the service proved should be declared void or set aside on that ground. No authority was cited for that proposition. I can see no basis for it and reject it.

46. I am satisfied with the proof of the matters stated in the petition, of the service of the petition and of the fact that the debt on which the petitioning creditor relies is still owing. No attempt has been made by the debtor to show that he is able to pay his debts or that for other sufficient cause a sequestration order ought not to be made except in respect of the stated grounds of opposition which I have rejected.

47. Accordingly, there will be an order of sequestration against the estate of the debtor, the act of bankruptcy being the failure of the debtor to comply with the requirements of the bankruptcy notice on or before 29 May 1992.

48. Costs, including reserved costs, will be in accordance with the statute.