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Federal Court of Australia |
Last Updated: 3 March 2003
Kellow v Dudzinski [2003] FCA 103
BANKRUPTCY - application for sequestration order - whether creditors' petition can be signed by a solicitor on behalf of the creditors - whether bankruptcy notice founded on more than one judgment - whether court should go behind judgment where challenge to validity of bankruptcy notice dismissed and appeal from the decision unsuccessful - whether grounds of opposition relevant to question of "other sufficient cause" - whether made out
Bankruptcy Act 1966 (Cth) ss 40, 41, 43, 44, 52, 308
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Federal Court Rules O 62 r 40, O 62 r 46, O 77 Subrule 16(1)
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 followed
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 mentioned
James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631 mentioned
Cain v Whyte [1933] HCA 6; (1933) 48 CLR 639 referred to
Ling v Enrobook Pty Ltd 74 FCR 19 referred to
Re Schmidt ex parte Anglewood Pty Ltd (1968) 13 FLR 111 cited
Re James ex parte Carter Holt Harvey Roofing (Aust) Pty Ltd(No 2) (1994) 51 FCR 14 cited
Australia and New Zealand Banking Group Limited v Hubner (1999) FCA 1346 referred to
AYNSLEY KELLOW and OTHERS v WALDEMAR DUDZINSKI
No Q 7022 of 2002
SPENDER J
BRISBANE
20 FEBRUARY 2003
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
THE COURT ORDERS THAT:
1. A sequestration order be made against the estate of Waldemar Dudzinski.
2. The costs of and incidental to the petition be paid in accordance with the Bankruptcy Act 1966 Cth).
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
|
JUDGE: |
SPENDER J |
DATE: |
20 FEBRUARY 2003 |
PLACE: |
BRISBANE |
1 This is a contested creditors petition. Section 43 of the Bankruptcy Act 1966 (Cth) ("the Act") provides:
"(1) Subject to this Act, where:(a) a debtor has committed an act of bankruptcy; and
(b) at the time when the act of bankruptcy was committed, the debtor:
(i) was personally present, or ordinarily resident in Australia;
(ii) had a dwelling-house or place of business in Australia;
(iii) was carrying on business in Australia, either personally or by means of an agent or manager; or
(iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;
the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor."
2 Section 44 (1) specifies the conditions on which a creditor may petition:
"(1) A creditor's petition shall not be presented against a debtor unless:(a) there is owing by the debtor to the petitioning creditor a debt that amounts to $2,000 or 2 or more debts that amount in the aggregate to $2,000, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $2,000;
(b) that debt, or each of those debts, as the case may be:
(i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and
(ii) is payable either immediately or at a certain future time; and
(c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition."
3 Section 52 provides:
"(1) At the hearing of a creditor's petition, the Court shall require proof of:(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor."
4 Section 52(2) provides:
If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:(a) that he or she is able to pay his or her debts; or
(b) that for other sufficient cause a sequestration order ought not be made;
it may dismiss the petition."
5 The case for the joint petitioning creditors is straightforward. On 27 August 1999, in Dudzinski v Kellow and Others [1999] FCA 1264, the Full Court of the Federal Court, (French, Whitlam, Lindgren JJ) ordered that Mr Dudzinski's application for leave to appeal a decision of Drummond J of 8 April 1999 be dismissed, and that he pay the respondents' costs of the application for leave to appeal.
6 On 3 November 1999, in the appeal proceeding Q110/99, the joint judgment creditors filed a bill of costs pursuant to the order for costs which the Full Court had made on 27 August 1999. On 7 January 2000, Deputy Registrar Baldwin made an estimate of the costs in that proceeding in the amount of $17,700 pursuant to O 62 r 46 of the Federal Court Rules.
7 On 19 December 2001 the Official Receiver issued the bankruptcy notice which founds the present petition, being Bankruptcy Notice Q/N 1306/2001, on the application of the joint judgment creditors. That bankruptcy notice was served personally on Mr Dudzinski on 20 January 2002. On 22 November 2002 the judgment creditors filed petition Q7022/02 in the Federal Court, which was served personally on Mr Dudzinski on 9 December 2002.
8 Subsequent to the filing of that petition, Mr Dudzinski filed a summons in the High Court, being proceeding B108/02, seeking a stay of the petition against him, pending the hearing of his application for special leave to appeal a decision of the Full Court of the Federal Court made on 21 November 2002. The application for special leave had been filed on 19 December 2002.
9 On 29 January 2003, Callinan J in the High Court ordered that Mr Dudzinski's summons for a stay of the petition in the Federal Court be dismissed, and that he pay the respondents' costs of the summons. Subsequent to that, on 4 February 2003, I adjourned the hearing of the creditors' petition which had been listed for hearing on that day to 18 February 2003, and on that day I heard the parties in relation to the petition.
10 I turn first to the bankruptcy notice in these proceedings. Bankruptcy Notice Q/N 1306/2001 of 19 December 2001 is addressed to Mr Dudzinski at an address in Australia, and commences:
"1. Aynsley Kellow, Roy Rickson, Errol Stock, Bill Hogarth, Cordia Chu, Kees Hulsman, Lyn Holman, Colin McAndrew, John Scott & Griffith University (`the creditor')of: Office of the Pro-vice Chancellor (Administration), Bray Centre, Nathan Campus, Griffith University, Brisbane, Queensland, 4111
claims you owe the creditor a debt of $17,700 as shown in the Schedule.
2. The creditor claims that a debt is due and payable by you. A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order had not been stayed."
The bankruptcy notice indicated it was a 21 day notice, and paragraph (4) of the notice said:
"4. Payment of the debt can be made to:Minter Ellison, Lawyers
(Attention: Ed Goodwin or David O'Brien)
of: Level 22, Waterfront Place, 1 Eagle Street, Brisbane, Queensland, 4000."
11 In the schedule, in the second item of column 1 appears:
"Legal costs if ordered to be paid and a specific amount was not included in the judgment or order"
and in column 2, the amount of $17,700 appears. Nothing was claimed in respect of interest.
12 Attached to the bankruptcy notice are two documents: the first is the order of the Full Court of the Federal Court (French, Whitlam, and Lindgren JJ) of 27 August 1999. The orders read:
"(1) The application for leave to appeal is dismissed.
(2) The Applicant is to pay the Respondents' costs of the application for leave."
The second document is headed "CERTIFICATE OF TAXATION", the body of which reads:
"I CERTIFY that I have taxed and allowed the bill of costs of the Respondents at seventeen thousand, seven hundred dollars ($17,700)."
and is dated 29 February 2000. It is signed H. Baldwin, Taxing Officer, and bears a stamp of the Federal Court.
13 The creditors' petition filed 22 November 2002 alleges in paragraph 4 that:
"The following act of bankruptcy was committed by the respondent debtor within 6 months before the presentation of the petition:That the respondent debtor failed either to comply on or before 22 May 2002 (as deemed by section 41(7) of the Bankruptcy Act (Cth) 1966) with the requirements of the bankruptcy notice duly served on the respondent debtor on 20 January 2002 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph 1 of the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained."
In respect of the bankruptcy notice, I also expressly note the following:
"The person who applied for this notice to be issued is: David O'Brienwho confirms by the following signature that he or she is the creditor's authorised agent."
A handwritten signature, "David O'Brien", appears above the words, "Partner of Minter Ellison," and the endorsement continues:
"and whose address for service is:MINTER ELLISON
Lawyers
Level 22
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000"
with telephone and fax numbers and so on.
14 It is common ground between the parties that Mr Dudzinski is ordinarily resident in Australia. Further, he does not contend in the extensive material which he has put before the Court that he is solvent.
15 The creditors' petition is in compliance with form 150 and O 77, Subrule 16(1) of the Federal Court Rules. The matters in paragraphs 1, 2 and 3 of the creditors' petition have been verified by the affidavit of Colin McAndrew, the Pro-Vice-Chancellor of Griffith University sworn 18 February 2003. Griffith University is one of the joint creditors. All of the other joint creditors are, or were, in the employ of Griffith University.
16 It is convenient if I deal now with one of Mr Dudzinski's contentions, namely, that Minter Ellison did not have authority of all the creditors petitioning for his sequestration. Mr Edward James Goodwin, a solicitor with the firm of Minter Ellison, has given sworn evidence that he had written instructions from each of the joint petitioning creditors to pursue these bankruptcy proceedings, and I accept that that is so. I note s 308 of the Act, which provides for the usual rule concerning agency as follows:
"Subject to this Act, for the purposes of this Act:...
(d) any person may act by his or her agent duly authorised in that behalf."
17 The bald outline which I have set out above fails to reflect the plethora of litigation that lies behind this petition. It is necessary, at least in summary form, to refer to that extensive litigation. It commences on 27 October 1997, when Mr Dudzinski bought proceedings numbered QG 168/97 against Griffith University and nine of its academic and administrative staff. The third and final of Mr Dudzinski's amended statement of claim in those proceedings was filed on 17 March 1998 and was divided into eleven parts setting out various classes of causes of action. Mr Dudzinski, in his written submissions on the petition, indicates that the first respondent in that amended statement of claim was Griffith University and the 10th respondent was Aynsley Kellow. He says this was also the case in the second amended statement of claim. I note as an aside that this is incorrect and, in fact, his second amended statement of claim filed on 28 November 1997 on file QG 168/97 sets out the respondents exactly as they appear on this present petition.
18 However, he asserts that the respondents' lawyers, on or about 24 February 1998, changed this sequence so that Griffith University appears as the last of the respondents and the last respondent, Aynsley Kellow, became the first. Mr Dudzinski says that Drummond J acceded to that change of sequence, or went along with it, and he refers to the reported judgment of Drummond J which is to be found as Dudzinski v Kellow and Others (2000) 59 ALD 625. Notwithstanding Mr Dudzinski's complaints as to the claimed re-ordering of the number of respondents, in my opinion, nothing at all turns on that circumstance in relation to whether a sequestration order ought be made.
19 Some detail should be given of the nature of Mr Dudzinski's claims in proceedings numbered QG 168/97. The following extract from the respondent's submissions in this matter sets out his description of those proceedings and summarises his third amended statement of claim filed in QG 168/97:
"7. On 27 October 1997 the applicant brought a proceedings numbered QG 168/97 against Griffith University and a number of its academics and administrative staff. The 3rd time ie last applicant's amended statement of claim on or about 17/3/1998 and application was divided into 11 parts setting out various classes of cause of action, see affidavit `A' of Waldemar Dudzinski, annexure `WAD1' pp 1-52). First respondent was Griffith University and the 10th Aynsley Kellow (it was also the case in the 2nd amended claim of 19/12/1997). The respondents' lawyers on about 24/2/1998 changed that sequence and Drummond J, see affidavit `A' of Waldemar Dudzinski annexure `WAD1' pp 352-368 and 366-67 (being affidavit of Margaret Brown, Minter Ellison Lawyers), see also affidavit `A' of Waldemar Dudzinski annexure `WAD1a' pp 527-553. see affidavit `D' of Waldemar Dudzinski annexure `WAD9' being a copy of Dudzinski v Kellow and Ors 59 ALD 625 decision published after DDR Baldwin and Kiefel J refused respondent's right to seek review HREOC'S decisions (originally PART IX of QG168/97 claim).7.1 The proceeding was brought as a result of attacking of the respondent education and it was a major issue much broader than exemption from introductory first year subjects worth 10 credits points for previous tertiary studies.
The parts were headed as (block letters):
Part 1. PROFESSIONAL NEGLIGENCE, NEGLIGENT MISSTATEMENT IN ACADEMIA - YEAR 1997 and against academics Stock, Hogarth, Holman (Academic Registrar) and Griffith University vicariously;
Part II. DEFAMATION AND TRADE PRACTICES ACT 1974 (CTH) and against academics Errol Stock, Bill Hogarth, Lyn Holman (Academic Registrar) and Griffith University vicariously;
Part III. INJURIOUS FALSEHOOD and against academics Stock, Hogarth, Holman (Academic Registrar);
Part IV. DEFAMATION AND INJURIOUS FALSEHOOD, PROFESSIONAL NEGLIGENCE, CONSPIRACY, TRADE PRACTICES ACT 1974 (CTH), SECTION 52(1) and against academics Cordia Chu, Kees Hulsman, Bill Hogarth, and Griffith University vicariously;
Part V. NEGLIGENT MISSTATEMENT IN RELATION TO PROVISION OF SERVICES, DECEIT and against administrative officer John Scott (responsible at that time for provision of student loans) and Griffith University vicariously;
Part VI. DEFAMATION AND INJURIOUS FALSEHOOD IN RELATION TO PROVISION OF SERVICES, DECEIT and against administrative officer John Scott (responsible at that time for provision of student loans) and Griffith University vicariously;
Part VII. TRADE PRACTICES ACT [1974 (CTH)] PARTS: IVA, SECTION 51AA, [PART] V SECTIONS 51, 52, 53, 79, 80, 82, 87(2)(d) and against academics Aynslie Kellow, Roy Rickson, Bill Hogarth, Lyn Holman (Academic Registrar) and Griffith University vicariously;
Part VIII. ASSAULT and against academics Errol Stock, and Griffith University vicariously;
Part IX. RACIAL AND SEX DISCRIMINATION and against academics Errol Stock, Bill Hogarth, Kees Hulsman, Lyn Holman (Academic Registrar) and Griffith University vicariously;
Part X. CONTRACT; TRADE PRACTICES ACT SECTION PART IV 51AA and against academic Bill Hogarth, Lyn Holman (Academic Registrar) and Griffith University vicariously;
Part XI. DEFAMATION AND INTIMIDATION AGAINST Pro-vice-Chancellor [Lyn Holman] - Academic Registrar and Griffith University vicariously."
20 After the filing of the third amended statement of claim in QG 168/97, Mr Dudzinski sent a letter to the Human Rights and Equal Opportunity Commission ("HREOC") on 24 July 1998. That letter formed the basis for complaints under both the Racial Discrimination Act 1975 (Cth) (File Number 207271FC) and the Sex Discrimination Act 1984 (Cth) (File Number 207272FC).
21 I have already referred to the judgment of Drummond J of 8 April 1999 whereby his Honour ordered that Parts I to VII inclusive and IX to XI inclusive of Mr Dudzinski's amended statement of claim in proceedings QG 168/97 be struck out. His Honour did not strike out the negligence claim against two of the academics at Griffith University, Mr Errol Stock and Mr Bill Hogarth, nor the assault claim against Mr Errol Stock. Instead, his Honour permanently stayed both of those claims in the Federal Court.
22 On 26 August 1999, the Race Discrimination Commission of HREOC declined to take further action in relation to Mr Dudzinski's complaint. As already referred to, on 27 August 1999, the Full Court of the Federal Court dismissed Mr Dudzinski's application for leave to appeal the decision of Drummond J with costs, and it is that costs order which founds the bankruptcy notice and the present petition.
23 On 24 September 1999, Mr Dudzinski filed an application in the High Court, being proceedings B56/99, for special leave to appeal the decision of the Federal Court of 27 August 1999. On 16 September 1999, he sought a review by the President of HREOC of the decision by the Race Discrimination Commissioner to discontinue investigations into his racial discrimination complaint (File Number 207271FC). On 23 November 1999, in Dudzinski v Kellow and Others [1999] FCA 1665, I ordered that Mr Dudzinski's application for a stay of the orders of the Full Court of the Federal Court made on 27 August 1999 be refused, and that he pay the costs of the motion seeking that order, to be taxed if not agreed. On 7 January 2000, Deputy Registrar Baldwin made an estimate of costs in the amount of $17,700 in the appeal proceedings Q110/99.
24 The President of HREOC on 20 January 2000 confirmed the decision of the Race Discrimination Commissioner not to further investigate Mr Dudzinski's complaint. On 27 January 2000 on file Q110/99, Mr Dudzinski filed a statement of objections and a notice of motion in respect of the estimate of costs. Further, he did not pay the $750 by way of security for costs pursuant to O 62, r 46(3)(d). Then on 23 February 2000, Deputy Registrar Baldwin ordered that the notice of motion in relation to the bill of costs be dismissed and that he pay the costs of and incidental to the notice of motion, to be taxed if not agreed.
25 On 23 February 2000, in Dudzinski v Griffith University (2000) EOC 93/079, Mr William Carter QC made a preliminary decision that HREOC had jurisdiction to hear Mr Dudzinski's sex discrimination complaint (File Number 207272FC). On 3 March 2000, Mr Dudzinski filed proceedings in the Supreme Court of Queensland with a statement of claim, being proceedings S1955/00 against Griffith University, Bill Hogarth and Errol Stock.
26 On 27 April 2000, the Deputy Registrar of the High Court issued a certificate of deemed abandonment of Mr Dudzinski's special leave application, B56/99. On 24 May 2000 in Dudzinski v Kellow and Others [2000] FCA 740, I ordered that Mr Dudzinski's notice of motion to review the certificate of taxation issued by Taxing Officer H. Baldwin on 27 February 2000 in relation to the costs order of the Full Court of the Federal Court be dismissed, and that he pay the respondents' costs of the motion to be taxed if not agreed.
27 On 3 June 2000, Mr Carter QC made a final determination on File Number 207272FC that Mr Dudzinski was not directly or indirectly discriminated against. Next, on 30 November 2001, Mr Dudzinski presented an ex parte application seeking leave to issue a proceeding in which he sought writs of mandamus, prohibition and certiorari against the judges of the Full Court of the Federal Court associated with proceedings Q110/99, namely, Drummond J and French, Whitlam and Lindgren JJ.
28 On 19 December 2001, the Official Receiver issued the bankruptcy notice presently relevant, as I have earlier indicated. On 11 February 2002, Mr Dudzinski applied to the Federal Court in proceedings Q7003/02 to set aside that bankruptcy notice. On 15 March 2002, in Dudzinski v Kellow and Others [2002] FCA 266, I made a number of interlocutory orders in relation to those proceedings, and on 22 May 2002 in Dudzinski v Kellow and Others [2002] FCA 665, I ordered that his application to set aside the bankruptcy notice and extend time for compliance with the bankruptcy notice be dismissed. I also ordered that he pay the respondents' costs of and incidental to the application, including reserved costs, to be taxed if not agreed.
29 That application to set aside the bankruptcy notice included, as one of its grounds, the fact that Mr Dudzinski had in the Supreme Court of Queensland a counter-claim, set-off or cross-demand which he could not have set up in the proceedings in which the bankruptcy notice was dismissed. That ground was rejected on the basis that any claim that Mr Dudzinski may have was not against the joint judgment creditors but against Griffith University, Bill Hogarth and Errol Stock. It is a necessary requirement that any counter-claim, set-off or cross-demand be against the same creditor and in the same right as the claim which founds the bankruptcy notice.
30 On 3 October 2002 in the High Court, Chief Justice Gleeson dismissed Mr Dudzinski's application in B97/01 for leave to issue a proceeding. On 31 October 2002, Griffith University, Bill Hogarth and Errol Stock filed a notice of intention to defend and a defence in the Supreme Court proceedings S1955/00. On the same day, 31 October 2002, in Dudzinski v Kellow and Others (2002) FCA 1364, Kiefel J ordered that Mr Dudzinski's application for an adjournment of his appeal to the Full Court of the Federal Court in relation to my decision of 22 May 2002 be dismissed and that Mr Dudzinski pay the respondents' costs of the application.
31 On 21 November 2002, in Dudzinski v Kellow and Others (2002) FCAFC 402, the Full Court of the Federal Court (Kiefel, Marshall and Dowsett JJ) ordered that Mr Dudzinski's appeal from my decision of 22 May 2002 concerning the validity of the present bankruptcy notice be dismissed, and that Mr Dudzinski pay the respondents' costs of the appeal. The present petition, as I have indicated, was filed on 22 November 2002. On 13 December 2002, Mr Dudzinski filed a notice of intention to oppose the creditors' petition, and I will come to that document in some detail shortly.
32 On 19 December 2002, Mr Dudzinski applied to the High Court in proceedings B 108/02 for special leave to appeal the decision of the Full Court of the Federal Court made on 21 November 2002.
33 I have earlier referred to Mr Dudzinski's summons filed in the High Court of 22 January 2003. That summons sought a stay of the hearing of the creditors' petition, pending the hearing of his application for special leave B90/02 from the decision of the Chief Justice Gleeson, his application B108/02 for special leave from the decision of the Full Court of the Federal Court of 21 November 2002, and his proceedings S1955/00 in the Supreme Court of Queensland, as well as his matters before HREOC. As I earlier indicated, Callinan J dismissed that summons for a stay and ordered that Mr Dudzinski pay the respondents' costs. In the course of his Honour's reasons, Callinan J said:
The applicant [Mr Dudzinski] has instituted in relation to this matter a great deal of expensive, prolonged, collateral litigation in none of which has he been successful. Each of the applications involves a degree of inconvenience and expense to the respondents. It seems to me also, on a preliminary and by no means exhaustive review of the prospects, that the proceedings instituted in the High Court by Mr Dudzinski do not enjoy any substantial prospects of success.Accordingly, the application fails for two reasons: the unlikelihood of any prospects of success in the applications pending in the High Court and because anything that would serve to prolong these proceedings would be to the inconvenience and very considerable expense of the respondents. I, accordingly, refuse the application.
The order of the court was that the application be dismissed with costs.
34 Mr Dudzinski is representing himself on this petition, as he has in all the other litigation to which reference has been made. In that context I have, at all times, sought to heed the warning of the High Court in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, where the High Court, Brennan, Deane, Toohey, Gaudron, and McHugh JJ noted at 150:
... Mr Neil's advocacy has often been directed to irrelevant issues, as the reasons of Tadgell J reveal, and as his argument in this court confirms. A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties, which are obfuscated by their own advocacy. It has been so in this case. It is necessary to focus on the material placed before Tadgell J and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time."
35 On 16 January 2003 in the present matter, Mr Dudzinski filed an amended notice of intention to oppose. It is necessary to set out that document at length. The document indicates that Mr Dudzinski intends to oppose the applicants' petition on the following grounds:
"1. The respondent/opponent did not commit act of bankruptcy set out in the applicants' petition.2. The respondent/opponent does not owe money claimed by the applicants/judgment creditors or at all.
2a. The petition of the applicants/creditors is not signed by the creditors but by the solicitor.
2b. One only joint creditor ie eighth applicant caused issuing of the petition as he says on behalf of other judgement creditors.
2c. The petition is not signed by all judgement creditors or by the authority of all judgment creditors.
2d. Fraud ie submitting of documents containing false information before Federal Court by or on behalf of the judgment creditor(s).
3. Default of Commonwealth's instrumentalities in handling of QG168/97 and Q110/99 (FCA) case and including HREOC'S handling of respondents complaints (re part VIII of respondent claim in QG168/97 regarding SDA and RDA claims.
4. Violation of international conventions concerning human rights and elimination of unlawful forms of discrimination in relation to the respondent and his family by Commonwealth and its officers and applicants regarding the respondent itself.
5. DDR Baldwin abused her power by not to accepting respondent's HREOC'S decisions on 3/7/2000 for judicial review and Kiefel J on about 20/2/2000 by directing registry not to accept respondent's HREOC'S decision for judicial review under RDA.
6. DDR Baldwin abused her powers by refusing to hear respondent's objections as to bill of costs Q110/99 and applicants' lawyers failed to provided attachments to bill of costs as required by order 62, r 40(2) of FCA Rules.
7. The judgment Q110/99 of 27/8/1999 upon which the cost order was made was result of miscarriage of justice:
(a) The judgment was not obtained on merits following the judgments where both parties appeared before Drummond J on 22/6/1998 in QG168/97 (not trial, applicants' motion QG168/97 only) and on 27/8/1999 before Full - Court in Q110/99 (leave to appeal) but essentially on arguments and on 27/8/1999 applicants' lawyers blunt argument prevailed and leave was refused and the leave to appeal pre - judged, adjournment requested by the respondent (applicant in Q110/99) self - represented refused to;
8. Miscarriage of justice:
(a) bias
(i) Application for disqualification addressed by the applicant on 21/11/2002 at the beginning of the appeal and before judgment was delivered to the Hon Justice Kiefel [(2nd time), 1st such application was addressed to the Hon Justice Kiefel on or about 31/11/2002 in an interlocutory application (Q91/02)] and Dowsett and Marshall JJ was wrongly rejected and requested that no judge of Brisbane FCA will sit on this appeal. Her Honour and Dowsett J did choose to sit on Appeal despite of the appellant's express request not to do so. Intention not to go behind judgment demonstrated by Kiefel J.
(b) denial of natural justice
(i) Refusing by Kiefel J of adjournment of Appeal Q91/2002 to Autumn-Session of Full-Federal Court having knowledge of the situation of the applicant by reasons bad in law. Announcement by DDR Reynolds with approval of Kiefel J to the effect that the Leave to Appeal Books/Appeal Books Q110/99 collected by the appellant on or about 13/8/1999 will not be allowed to be referred to Full Court in Q91/02 appeal (proceedings Q110 is that upon which order as to costs was based).
(c) Collusion/fraud/bad faith
(i) Directing DDR Reynolds to prepare appeal book with the line of ARI as prepared by DDR Reynolds who removed material documents from the index prepared by the appellant (respondent in Q7022) on Q91/2002. The appellant(respondent) refused to sign the appeal book Q91/02 on the grounds that the appeal book did not inter alia contain correct documents.
(ii) This grounds in brief cover conspiracy to defeat justice ie stay order by Drummond J on or about 8/4/1999 when there were no grounds to do so, refusal to accept HREOC'S decisions of 20.1.2000 by Kiefel J (concerning Part VIII of QG168/97 claim entertained by Drummond J) and of 3.5.2000 and that of 3.6.2000 for judicial review by DDR Baldwin (those matters were part of QG 168/97 suit in FCA, PART IX of the claim) when lodged on time and prepare by those acts supra grounds for bankruptcy proceedings against the appellant, aiding Centrelink's criminal activities by refusing relief on material times in order to engage the appellant time, prevent him by this from continuation of studies, harming appellant and his family, making of changes in appeal book Q110/99 by DDR Reynolds (FCA) the appellant did signed without his consent.
(iii) conspiracy (collusion) to defame the appellant BAppSc degree from Australian university and him not only nationally but internationally by letting the findings of HREOC'S to stand and be published on internet worldwide, accepting most of material from the respondents' solicitor with bias as genuine when in fact it was reverse situation.
(iv) The decision of primary judge of FCA Drummond J of 8/4/1999 in QG168/1997 striking out most of the actions and ordering permanent stay after 9 months of deliberations from the hearing of the respondents' notice of motion to strike out the appellant claim and application and refusing simultaneously the appellant summary judgment application was made in bad faith and in order to pervert course of justice and open the way to respondents in QG168/1997 to bankruptcy proceeding against the appellant. Also a number of other actions were struck out not in good faith especially defamation actions, there is not material to support His Honour conclusions in most of actions in QG168/1997. The leave to appeal from that decision on 27/8/1999 was in effect the repetition of that decision hence also biased decision of Full-Federal Court of 27.8.1999 in Q110/99 leave to appeal application.
(v) Suggestions to go to lower court ie District Court was also not made in good faith (ultra vires) for the reasons that: the Chancellor of Griffith University was at that time judge of Supreme Court of Queensland and/or at certain times Chief Justice of Supreme Court of Queensland, and by now the Chancellor is Ex - Governor of Queensland Mrs Forde. As District Court is part of Queensland Court Systems and Griffith University has resources to pay it was unlikely that the appellant in such conflicting interests will succeed in those courts. In addition it was also jurisdictional error to do so.
(vi) Spender J, Kiefel J, Drummond J (on 2 Occasions) refused relief totalling on 4 occasions in period December 1999 - February 2000 against Centrelink and by this exposing appellant and his wife for Centrelink's harassment since 1999 till 24 June 2001 (relief received from Drummond J on ca 22.6.2001 when the appellant faced eviction in next 24 hours).
(vii) The FCA is a court of equity also not only of law. In reference to Q110/99 and Q7003/2002 Spender J could give stay pending determination by HCA special leave to appeal application and could also if not set aside the notice of bankruptcy could extend time for compliance. Due to his animosity towards the appellant he did not do so. Also he supplied incorrect information in his last decision of 22.5.2002 in Q7002.2002 matter.
(viii) In his decision of 24.5.2000 Spender J ruled that the court has discretion to exempt the appellant from paying $750 of security cost under Order 62, r 46, but despite acknowledging of this fact of having jurisdiction to do so he did support the position of DDR Baldwin she was correct to the effect when acting without jurisdiction and denying appellant hearing of his notice(s) of objection because he was not able to afford to pay $750 fees.
(ix) Errol Stock, 3rd respondent lied before HREOC on oath, Spender J was informed and the matter before HREOC was part of QG168/97 and based essentially on the same facts. The material in support was filed in court on 22.5.2002.
d) bias concerning Spender J
(i) Spender J refused to disqualified himself on request for bias when the appellant requested the trial judge Spender J to disqualify himself in or about November 1999 in Q110/99 when His Honour sat as a single judge in relation to costs ordered by Full-Federal Court in Q110/1999 leave to appeal application and on 22 May 2002 in Q7003/2002 matter and he refused to do so without given reasons as requested.
(ii) Spender J shows continuous animosity (hostility) towards appellant. He acted in constant ignorance of facts provided by the appellant and misapplied the law. Also it is arguable of whether Spender J as a single judge of FCA had jurisdiction to decide about stay order as to costs pending determination of the appellant HCA applications.
(iii) Also decisions QG168/97 of 8.4.1999 and Q110/99 of 27.8.1999 are biased. Full-Federal Court did to the effect repeat the decision of Drummond J without examining of evidence. Apparently the decision was made with more then sufficient doubt by Drummond J and the judgement was in effect final or having degree of finality.
(e) error of law on the face of record.
(i) The decision of Spender Justice is no supported by evidence. The appellant informed that claim in Supreme Court of Queensland is substantially same as in QG168/1997 and the judicial opinion of another judge of FCA Drummond J was annexed to appellant's affidavit filed in court ca 24.4.2002 Q7003/2002 upon he did rely inter alia.
(ii) The case law upon which his Honour did rely in Q7003/2002 on 22.5.2002 is not published in authorised reports of FCA. The HCA case His Honour cited is distinguishable form present case of the appellant on facts and law. The creditors are several not joint. The court ordered that appellant pay Respondents' costs not one join respondent. The case law of FCA Stec v Orfaons which Spender J applied is not supported by James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631 what Full-Federal Court acknowledged in Stec case. This court is bound to follow precedent of High Court of Australia. Costs order was not quantified as according to FCR (breach of Rule 40(2) and denial of hearing (want of jurisdiction and natural justice principle) without jurisdiction to object those calculations by DDR Baldwin in February of 2000 year.
(iii) Spender J failed to go behind judgement.
(iv) Another fact is that Bill Hogarth 4th respondent failed to provide his address as he ceased to be employee of Griffith University on about 11.1.2002 ie before Notice of Bankruptcy was served on the appellant on 20.1.2002 contrary to James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631. Bill Hogarth 4th respondent is required to provide his address in addition of providing his solicitors' address as required by James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631. Bill Hogarth, 4th respondent is now working in Newcastle (NSW). Also the information that 1st respondent left QLD on 1/1/1999 was provided by Minter Ellison on or about 20/11/2002 but without his address.
(v) Also decisions QG168/97 of 8.4.1999 and Q110/99 of 27.8.1999 and Q110/99 of Full-Federal Court are not supported by evidence.
f) jurisdictional error.(i) Refusal to hear the matter in QG168/97 having jurisdiction in the context of refusing summary judgement application, and trial, suggesting to go to lower court to litigate matter being within jurisdiction of FCA.
(ii) Refusing to follow FCA Rules when calculating cost orders, breach of Order 62 Rule 40(2) and Order 1, Rule 8 exempting the appellant to pay $750 in order to be heard (the appellant was on Centrelink's payment at that time). Ignorance of objection notices of the appellant however filed properly. Exempting by conduct respondents' lawyers from FCA Rules not to produce material documents but refusing same treatment to the appellant by DDR Baldwin and Spender J who refused discovery of the material documents under Rule 40(2) of FCA Rules.
(g) breach of the rules of natural justice,
(h) Refusing of hearing of summary judgment application and of trial in G168/97 and in Q110/99 before DRR Baldwin.
(i) The opponent could not have set up the counterclaim, set-off or cross demand in the proceedings in which the judgement or proceedings in which that order was obtained because Drummond J stayed permanently in Federal Court QG168/97 proceedings ie 3 months after 1st respondent safely left Griffith University and went to Tasmania and Full-Federal Court upheld that decision. The opponent was diligent and took all steps as a prudent and diligent man can in the opponent's circumstances. The Court prevented the opponent from prosecution of the applicants and a number of action became statute - buried by 8/4/1999 when Drummond J haded his decision.
(j) Minter Ellison and applicants adopted culture of supplying false and misleading information to this Court upon which judgements and orders were made and going to be made.
(k) The judgment creditors did not provide as required by Order 62, sub-rule 40(2) of Federal Court Rules all adding machine, or computer slips or working papers together with originals or legible copies of receipts for disbursements, or if a disbursement has not been paid copies of all relevant accounts concerning items 161, 162, 225 for $7,500.00 totalling in Bill of Costs Q110/99 filed on 3/11/1999 on behalf of judgment creditor by Minter Ellison Lawyers. Upon inter alia and after default judgement Q110/99 of DDR Baldwin (FCA) of 23.2.2000 she issued in 29/2/200 a certificate of taxation Q110/1999 upon which bankruptcy notice Q/N/306/2001 and petition Q7022/2002 for $17,700.00 were based and court did refuse opponent's application to order discovery of those documents (Spender J) and did not go behind the judgment of DDR Baldwin and QG168/97 and Q110/99."
36 I will deal with many of those grounds in turn shortly, but, before doing so, I should refer to submissions which Mr Dudzinski made at the hearing before me. The written submissions advance essentially three arguments: the first argument deals with his submission that the petition should be dismissed with costs, and is based on the proposition that he:
"... did not commit the act of bankruptcy in the period 22/5/2002 - 22/11/2002 as alleged because the notice of bankruptcy upon which the creditors' petition is/was founded is defective for the following reasons:..."
The first of those was that it was based on more than one judgment, the contention being that the matter was based on the judgment at first instance of Drummond J, as well as on the judgment of the Full Court of 27 August 1999. Also, in this context, it was submitted that:
"... judgment is and Order for Costs Q110/99 of 29/2/2000 which was made upon default judgment of Deputy District Registrar Baldwin Q110/99, of 23/2/2000 who refused to hear objection of the applicant concerning bill of costs Q110/99 as the applicant could not [afford] to pay $750.00 in order to be heard despite of that he filed notice of motion and notices of objection and the Federal Court had powers to exempt the applicant from payment of $750.00 and carried out as directed by DR Ramsey initially ie nearly full taxation without practically any discretion in regard to exaggerated amount of bill of costs which was not without slips, disbursement and other evidence of costs [served] on the respondent contrary to Order 62, rule 40(2) of FCA Rules."
and that:
"The judgment Q110/99 is not final as the rights of the respondent were not determined, action stayed permanently despite of not striking out claims for $104,000 ...."
37 The second argument is that:
"The judgment upon which bill of costs was firstly presented to the Court ie Q110/99 of 27/8/1999 is not a final judgment because:(a) some question as to the previous existing liability of the respondents in QG168/97 and Q110/99 [applicants in Q7022/02] to the applicant in QG168/97 and Q110/99 [respondent in Q7022/02] has not been determined especially the claim in PART IX supra RDA [Racial Discrimination Act 1975 Cth)] and SDA [Sex Discrimination Act 1984 Cth)] (lack of jurisdiction at that stage by FCA) and vicarious liability of Griffith University, and
(b) The applicant in QG168/97 and Q110/99 [respondent in Q7022/02] had no opportunity of setting up counterclaim, set - off or cross demand because the action Q168/97 supra was permanently stayed and upheld by Full Federal Court on 27/8/1999 despite of not striking to federal claims of $104,000."
38 It was also submitted in this context that:
"Drummond J falsely represented in his ... decision of 8/4/1999 that respondent pleading QG168/97 was not good enough to attract Griffith University vicarious liability when in fact and law it was already attracted. His Honour struck out negligence against Griffith University for ca $30,000 in Part II contrary to law ..."
and:
"There is characteristic in Drummond J decision that in all actions in QG168/97 His Honour struck out to the effect Griffith University as respondent and left only 2 academics in negligence and this was actual bias in respondent's submissions and also of Full Court."
39 Under the heading "Miscarriage of justice (fraud and collusion)" in this argument, Mr Dudzinski says:
"DDR Baldwin abused her power (jurisdictional error) refusing to hear applicant's filed notices of motion and objections on or about 23/2/2000 despite of having jurisdiction in default of no payments of $750.00 fees applicants not able to [afford]. Centrelink attacked income of Dudzinski's family and FCA refused relief in January-February 2000 year (4 times). After that procedure she corruptly, negligently, oppressively calculated and allowed overbilled costs and irrelevant items of applicants and issued subsequently certificate of taxation on or about 29/2/2000 such as: ..."
He then makes detailed reference to some items in the bill, the subject of taxation, in particular, items 82, 83, 84, 169, 172, 225, 161, 162, and what is said to be "$1,500 (over billing) as counsel's fee".
40 In his oral submissions, these criticisms were amplified by reference to what occurred concerning another bill of costs, which was the subject of assessment in the High Court, where various adjustments and disallowances were made. The attack essentially is as to the quantum and to his inability to make submissions concerning that claimed excess of amounts for costs. Mr Dudzinski submits that according to him: "... the taxing was excessive for about $7000.00 at least if not more".
41 This attack on the quantum of the claim, even if it is open to Mr Dudzinski, which in my judgment it is not, would not avail him, without more, in resisting the making of a sequestration order. Section 44(1)(a) of the Act, it will be recalled, requires as a condition on which a creditor may petition that:
"there is owing by the debtor to the petitioning creditor a debt that amounts to $2000 or 2 or more debts that amount in the aggregate to $2000 ..."
and in s 44(1)(b)(i) and (ii):
"that debt ... is a liquidated sum due at law or in equity ... and is payable either immediately or at a certain future time ...."
If, in fact, the amount due under the order for costs was approximately $10,000 and not the $17,700 claimed in the bankruptcy notice, there would still be a requirement for compliance with the condition of the bankruptcy notice set out in s 44.
42 Further, in this second argument, Mr Dudzinski says:
"The decisions of QG168/1997 of 8/4/1999 and Q110/99 of 27/8/99 are result of fraud (fabrication in many parts) and collusion aimed to pervert (obstruct, delay) course of justice hence permanent stay order, refusal to accept HREOC's decisions for judicial review in 2000 year by Kiefel J on or about 20/2/2000 and by DDR Baldwin on or about 3/7/2000 ie presented for filing on time ie claims originally in part IX claim supra of QG168/1997 and by that depriving the respondent of exercising his right of action from recovery of damages by interfering in his right of action in bad faith.
They are constructed in substantial parts on deliberately made false premises and inter alia of distortion of evidence.
The Full Court refused to disqualify itself and the applicant clearly objected to the composition of the bench (judges from Brisbane FCA) long time before Full-Court sat as composed of Kiefel Dowsett Marshall JJ ..."
In honest respondent's belief the applicants and their solicitors together with FCA want in speedy way to make the respondent bankrupt and by this to prevent him from prosecution of genuine based actions in Supreme Court of Queensland number 1955/00 ie these not struck out in QG 168/97 (FCA) and also in HREOC concerning 10th respondent and its employees, and appeals by leave or special leave to HCA."
43 The third argument in the written submission picks up essentially what I have just outlined. Mr Dudzinski submits:
"There is no ground for sequestration Order and such should not be made for the [reasons] below:... the Court in [bankruptcy] has wide jurisdiction to make stay order (s) to preserve the subject matter of litigation and what the respondent seeks ...
The respondent submits his case is an extraordinary one and attracting Court's jurisdiction of granting a stay within the Jennings rule." [Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 at 683 to 685.]
Mr Dudzinski says:
"The premise and conclusion the applicant expects to be made by the respondents' solicitors to the effect during the hearing of the summons will be that: `the special leave is unlikely to be granted in applicant's case.' However such an argument has no [weight] and especially in this case. The High Court in [Jennings] at 685 said, `It is undesirable to canvass the arguments in advance.'
The real danger is that if stay will not be granted ... the respondent's further effort to prosecute claims in the Supreme Court of Queensland 1955/00 ie those actions not struck out in QG168/97 (FCA) as at $104,000 became nugatory together with his appeal rights. It will be great injustice to the respondent if such scenario will prevail."
And he further submits:
"Mr Justice Spender (FCA) is well aware of this danger what he stressed in his decision Dudzinski v Kellow [1999] FCA 1665 (23 November 1999, not reported), page 2, para 3. Recent decision of Mr Justice Spender in Q7003/02 (bankruptcy notice matter), Q7022/02 (petition) and Kiefel, Marshall, Dowsett JJ (FCA) in Q91/02 (appeal from Spender J decision Q7003/02 of 22/5/2002) is unavoidably leading the respondent to conclusion that a probability of sequestration is high."
In that argument, Mr Dudzinski says:
"The respondents and their lawyers mainly only mislead so far the Court and caused a lot of damage to the respondent.
The respondent have no financial means to pay bill of $17,700 and his assets are ca $500 and the situation was caused by Commonwealth, the respondents and their lawyers."
That argument concludes by Mr Dudzinski submitting:
"The respondent also has certain obligations to parents and he did not see them for 20 years. Also concerning employment prospect in Australia the respondents, their lawyers and Commonwealth including HREOC already damage such, so the respondent wish to look around the [world] for meaningful employment. Sequestration order if made will prevent those opportunities and the respondent will be prevented to leave Australia."
44 Much of those arguments pick up matters in the very extensive amended notice of intention to oppose filed on 16 January 2003. I will now turn to those grounds in some detail, but before doing so I should state the principles involved. Upon the Court being satisfied as to the matters set out in s 52(1) of the Act, the Court ordinarily will proceed to make a sequestration order. It is for the debtor to show some cause overriding the interests of the public in stopping unremunerative trading, and the rights of the individual creditors who are unable to get their debts paid to them as they become due. Something has to be put before the Court to outweigh those considerations before it can be said that "sufficient cause" is shown against the making of the sequestration order: see Cain v Whyte [1933] HCA 6; (1933) 48 CLR 639 at 645 where his Honour Rich J said:
"... I do not agree with the argument put forward ... that the words `other sufficient cause' should be limited to the one case where the Court is satisfied that the petition is put forward solely for some collateral illegitimate end, and not for the purpose of securing the equal distribution of the available assets amongst the creditors. To my mind, the High Court of Australia did not intend to put a limit on the meaning of the words `other sufficient cause' in Dowling v Colonial Mutual Life Assurance Society [1915] HCA 56; (1915) 20 CLR 509, and I do not propose to be the first to say that such wide words as `other sufficient cause' are necessarily limited to meaning a cause in the nature of fraud or abuse of the provisions of the bankruptcy law. I can well conceive that `other sufficient cause' might arise in connection with any particular case. To my mind, it is the duty of the Bankruptcy Judge to examine in each case, if the question is raised, whether there is other sufficient cause than the fact that the debtor is able to pay his debts in full, for refusing to make an order."
45 In this context, I also refer to a judgment of the Full Court of the Federal Court in Ling v Enrobook Pty Ltd (Davies, Wilcox and Branson JJ) 74 FCR 19 where the Court held that:
"The courts do not recognise a public interest in allowing litigation already commenced by, to be prosecuted by an insolvent debtor. But there may be an exception where such litigation is so well advanced as to disclose a possibility of success that could constitute a `sufficient cause' within s 52(2)(b). While there is scope for the counterbalancing of set-offs claimed against the petitioning creditor, no such consideration extends to a debtor's claim against a third party."
46 The Full Court in its judgment refers to observations by Gibbs J in Re Schmidt ex parte Anglewood Pty Ltd (1968) 13 FLR 111 at 115-116 and to the judgment of Olney J in Re James ex parte Carter Holt Harvey Roofing (Aust) Pty Ltd(No 2) (1994) 51 FCR 14 and cited by the Full Court of this Court in Ling v Commonwealth 1996) 68 FCR 180. In Ling v Enrobook (supra), their Honours (Davies, Wilcox and Branson JJ) said at 26:
"The above authorities do not, in our view, support the appellant's contention that the courts recognise a public interest in allowing a debtor to prosecute litigation commenced by the debtor. The public interest recognised by such authorities is that which, in broad terms, is reflected also in s 40(1)(g) of the Act; that is, that a sequestration order ought only to be made on the basis of an indebtedness which is not counterbalanced by a claim by the debtor against the petitioning creditor. Such authorities provide no comfort to a debtor who asserts a claim, not against his or her creditor, but against a third party.The authorities also show that satisfaction that the debtor is well advanced with litigation likely to result in the debtor being in a position to pay his or her debts may well provide a basis for a finding that there is a `sufficient cause' for a sequestration order not to be made (see, for example, Maddestra v Penfolds Wines Pty Ltd) [(1993) 44 FCR 303]. But the authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally. They only recognise that it is not in the public interest for a debtor to be forced into bankruptcy by reason of a state of insolvency likely to be of only short duration."
47 I turn now to the detailed view of the extensive grounds of intention of opposition concerning the claim that Mr Dudzinski did not commit the act of bankruptcy set out in the petition. His attempts to set aside the bankruptcy notice and extend for compliance with it were not successful at first instance, a decision upheld by the Full Court of the Federal Court. In my judgment, Mr Dudzinski committed an act of bankruptcy by not complying with the bankruptcy notice. That act of bankruptcy was committed on 22 May 2002, being the end of the period for compliance with the notice, as that was extended by operation of s 41(7) of the Act.
48 In the second ground, Mr Dudzinski claims he does not owe the applicants the money the subject of the petition and the bankruptcy notice. The affidavit of debt sworn by the Pro-Vice-Chancellor of Griffith University on 18 February 2003 verifies that the moneys payable pursuant to the costs order of the Full Court of the Federal Court as quantified by the certificate of taxation have not been satisfied. The judgment of the Full Court of the Federal Court has not been set aside. In my opinion, it is a final judgment and the moneys owing pursuant to that judgment have not been paid.
49 I have already dealt with Mr Dudzinski's contention in grounds 2(a) to (c) that the petition was signed by solicitors and has not been issued by the authority of all of the joint petitioning creditors (pars 14 and 15). The signing of the bankruptcy notice by a solicitor acting on behalf of all of the applicants is permissible. See form 150 and O 77, r 16 of the Federal Court Rules, and Australia and New Zealand Banking Group Limited v Hubner (1999) FCA 1346 at par 38. The petition was issued by the solicitor for all of the joint petitioning creditors. It has been verified by s 47 of the Act by the affidavit evidence of Mr McAndrew, the Pro-Vice-Chancellor, and the affidavit of debt sworn by him also evidences that all of the joint petitioning creditors have authorised the petition, and there is the sworn evidence of Mr Goodwin that he, as a solicitor with Minter Ellison, had written authority of each of the joint petitioning creditors in respect of these bankruptcy proceedings.
50 Concerning the allegation of fraud in ground 2(d), there has been no evidence to support this serious allegation.
51 The matters referred to in grounds 3 to 6 inclusive to me have no foundation in the evidence, but in particular have no connection with the subject matter of the creditors' petition or the bankruptcy notice or the costs order of the Full Court of the Federal Court of 27 August 1999 which founds both of those. Those circumstances make it plain that they cannot constitute other sufficient cause against the making of a sequestration order.
52 Ground 7, which seeks to go behind the costs order, was raised by him in his challenge to the bankruptcy notice and rejected at first instance by me and on appeal. The Bankruptcy Court is not estopped from going behind a judgment, but in this particular case, there is a decision of the Federal Court at first instance, and the Full Court of the Federal Court, in relation to the validity of the bankruptcy notice, and in those circumstances I will not investigate the judgment again in considering the creditors' petition.
53 No further or additional matter has been raised by Mr Dudzinski which would, in my view, cause the Court to seek to go behind the judgment to see whether, in reality, a debt was owed. In any event, it is plain in my view that Mr Dudzinski is indebted in respect of the costs order made by the Full Court of the Federal Court of 27 August 1999. The costs order of the Full Court of the Federal Court arose out of an appeal from a decision to strike out and permanently stay causes of action in Mr Dudzinski's statement of claim. That costs order did not arise from any determination of the facts.
54 The allegations of bias which are contained in ground 8(a) and 8(c)(iv), even if they constitute "other sufficient cause" within s 52 of the Act, do not find any support in any evidence. Insofar as that allegation is based upon the refusal by various members of the Federal Court, and perhaps the High Court, to accede to Mr Dudzinski's arguments, that circumstance misconceives what is necessary to establish bias.
55 In relation to ground 8(b), the claim that the refusal of an adjournment by Kiefel J involved a denial of natural justice has no basis in the material. Further, it is not a matter which raises a basis for the Court not making the sequestration order on the present petition.
56 In relation to questions of collusion, fraud, and bad faith, which are touched upon in ground 8(c), again there is no evidential foundation in respect of those serious allegations, and again they do not raise a basis which would constitute "other sufficient cause" not to grant the sequestration order. They have already been considered in the challenge to the bankruptcy notice.
57 Similarly, in respect of ground 8(e), my decision at first instance as to the validity of the bankruptcy notice was considered by the Full Court of the Federal Court and upheld unanimously. Mr Dudzinski is again seeking to challenge those matters, which have been the subject of a determination by the Full Court of the Federal Court on appeal. I know that he has sought special leave to appeal from those orders, which has yet to be determined.
58 Grounds 8(f), (g), and (h) do not provide any basis for other sufficient cause, and have already been the subject of determination in the proceedings to set aside the bankruptcy notice and the appeal therefrom.
59 The matter in ground 8(i) is not a matter which has been found against Mr Dudzinski. What has been found against him is that there was not a counter claim, set-off, or cross demand within the meaning of s 40(1)(g), or s 41 of the Act. Whether Mr Dudzinski has a claim against some persons who were academics at the Griffith University, or against the university itself, provides no basis for concluding that he has a counter claim, set-off or cross demand within the meaning of s 41(1)(g) of the Act in respect of a claim by the joint petitioning creditors in this matter.
60 In respect of ground 8(j), the proceedings before Drummond J and the appeal to the Full Court was concerned, not with the determination of any question of fact or determination of evidence, but with whether causes of action pleaded in the statement of claim should be struck out. The decision was one based on the pleadings and, in such a situation, the Court is required to have considered the pleadings in the view most favourable to the debtor.
61 Similarly, in relation to ground 8(k), those matters were matters raised by the debtor in the bankruptcy proceedings.
62 Concerning the claim, repeatedly made, that a sequestration order should not be made so as to preserve the subject matter of his Supreme Court proceedings, a sequestration does not put those proceedings at an end. What it does do is require the consideration by the Trustee of the prosecution of those proceedings. If, in fact, in the assessment by the Trustee there is worth in those proceedings, then of course, they can be adopted by him. The decision that has to be made by the Trustee if a sequestration order is made, is what is in the interest of the creditors of the debtor. A provision exists - although, as a matter of practicality, it may not have much realistic application in the present circumstances - of the Trustee assigning causes of action to a bankrupt on terms as to costs.
63 On the whole of the material, I am satisfied of the act of the bankruptcy alleged in the petition. I am satisfied of the other matters of which the Act requires proof. I make a sequestration order against the estate of Waldemar Dudzinski. I order that the costs of and incidental to the petition be paid in accordance with the Act.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. |
Associate:
Dated: 20 February 2003
Counsel for the Applicant: |
Ms S. Brown |
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Solicitor for the Applicant: |
Minter Ellison |
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The Respondent appeared on his own behalf | |
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Date of Hearing: |
18 February 2003 |
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Date of Judgment: |
20 February 2003 |
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