O'Meara v Registrar General of NSW [2000] FCA 164 (18 February 2000)

Last Updated: 6 March 2000

FEDERAL COURT OF AUSTRALIA

O'Meara v Registrar General of NSW [2000] FCA 164

KENNETH IAN O'MEARA v

REGISTRAR GENERAL OF NEW SOUTH WALES

STATE OF NEW SOUTH WALES

COMMONWEALTH OF AUSTRALIA

N 8296 of 1999

HILL J

18 FEBRUARY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8296 OF 1999

BETWEEN:	KENNETH IAN O'MEARA APPLICANT
AND:	REGISTRAR GENERAL OF NEW SOUTH WALES FIRST RESPONDENT STATE OF NEW SOUTH WALES SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT

JUDGE:	HILL J
DATE:	18 FEBRUARY 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 Before the Court are three motions filed by each of the respondents to an application made to the Court by Mr Kenneth O'Meara. Each of the respondents to that application seeks orders that the application be dismissed or struck out under Order 20 rule 2. The application which Mr O'Meara has brought expresses itself to be:

"... an application to void and/or expunge a sequestration order, and seek compensation ..."

2 The sequestration order in question is one made against Mr O'Meara's late father in the Federal Court of Bankruptcy in 1959.

3 Mr O'Meara claims that the sequestration order was made in breach of the Constitution and also that there was fraud and deceit in the making of it. He says that evidence would be led that the sequestration:

" ... was politically motivated and executed, in breach of the rule of natural justice."

4 The application is stated to have been made pursuant to the provisions of the Bankruptcy Act of 1966, the Real Property Act 1900 and the Commonwealth of Australia Constitution Act 1900.

5 Mr O'Meara seeks orders not only that the bankruptcy be declared void and expunged but also that the resultant distribution of assets of the bankrupt estate made thereafter was unlawful. He claims to be entitled against each of the respondents to substantial damages. In support of his application Mr O'Meara has filed an affidavit. That affidavit contains, so Mr O'Meara said this morning, the entirety of the evidence that he proposes to adduce so far as that evidence concerns liability. It does not contain any evidence concerning damages and the matter has proceeded on the basis that, if Mr O'Meara establishes a cause of action, the matter would proceed to trial by reference to any damages he is able to demonstrate.

6 Mr O'Meara has obtained a copy of the sequestration order made in the Federal Court of Bankruptcy. The sequestration order is dated 16 December 1959 and is signed by the Registrar of that Court. During the course of this morning's proceedings it emerged that Mr O'Meara believed that the order was made by the Supreme Court of New South Wales. However, it is clear from the document that it was made by the Federal Court of Bankruptcy not the Supreme Court.

7 Mr O'Meara says that he has been unable to locate any transcript of proceedings relating to the making of the sequestration order by the Federal Court of Bankruptcy. He concludes in his affidavit from his inability to locate a transcript that there were no court proceedings, so that the sequestration order was made in denial of natural justice. The evidence upon which Mr O'Meara relies in alleging fraud and deceit may be shortly stated. First, he says that his father had told him on many occasions that the bankruptcy was politically motivated and executed without the full and complete knowledge of his father. Second, Mr O'Meara recalls a conversation in which the then Minister for Lands, a Mr Enticknapp, had said to Mr O'Meara's father: "Herb, if you don't stop asking my nephew to pay his debt to you, I will get you off your farm by hook or by crook!"

8 There are other matters referred to in Mr O'Meara's affidavit which are subsequent to the bankruptcy, for example, that a second soldier settlement block had been granted to Mr O'Meara's father by the Lands Department while the father was an undischarged bankrupt which had resulted in a second bankruptcy. These additional matters do not seem to go to the issue of fraud and deceit since they post date the actual bankruptcy.

9 There are enormous difficulties in Mr O'Meara's path. First it is submitted that he has no standing in bringing an application for annulment of his father's bankruptcy. I should say that at the outset Mr O'Meara agreed that his application so far as it referred to expunging the sequestration order, was an application for annulment. There is no need here to consider whether the application should be an application made under s 154B of the Bankruptcy Act 1966 or under the previous section in the Bankruptcy Act 1924. The sequestration order was made under the 1924 Act. For present purposes the issue is the same. Under the 1966 Act, Mr O'Meara would need to show he was a person aggrieved; see s 303 of the 1966 Act. Under the 1924 Act, Mr O'Meara would need to show he was a "a person interested"; see s 124 of that Act.

10 Although Mr O'Meara has not filed any evidence on this point he said from the bar table that he was the sole beneficiary of his father's will. He concedes that he was not the legal personal representative appointed under that will. The legal personal or representative could no doubt make an application for annulment. However I think there is some difficulty in the proposition that a beneficiary under a will of a bankrupt person would have the same entitlement. It is unnecessary for present purposes for me to decide ultimately the issue of standing and I do not do so.

11 The first matter which Mr O'Meara relies upon is in essence that the sequestration order has been proved by him to have been made by a Registrar of the Federal Court in Bankruptcy. It is clear law, and for that matter was clear law in 1959, that the Registrar had no power to make a sequestration order; the power to make a sequestration order being an exercise of the judicial power of the Commonwealth: see R v Davison [1954] HCA 46; (1954) 90 CLR 353. However, the evidence adduced by Mr O'Meara does not establish that a sequestration order was made by the Registrar. Nor for that matter does it establish that it was made in the absence of Mr O'Meara's father.

12 The copy of the sequestration order which presumably comes from the file of the Federal Court of Bankruptcy is clearly enough signed by the Registrar of that Court. It would seem, looking at the document, that it was prepared by the solicitors for the petitioning creditor, a firm of solicitors in Griffith, through their Sydney agents. The mere fact that the order of a court is signed on behalf of the Court by a registrar does not mean that the sequestration order was made by that registrar. It is certainly not a conclusion that would likely be reached in circumstances where Mr Berringer, who was a well known figure and author in the bankruptcy area at that time, would have made an order contrary to a decision of the High Court given some five years before.

13 The order does not say one way or the other whether Mr O'Meara was present at a hearing. The evidence does not enable me to conclude one way or the other whether he was. Another matter to which Mr O'Meara points is that the copy of the sequestration order appears to have been filed on 17 February 1960. Mr O'Meara asked me to conclude from this that the sequestration order could not have been served upon Mr O'Meara's father until at least a date after 17 February. Certainly it obviously could not have been served upon him on the day the sequestration order was reported to have been made. It certainly may be conceded that the document filed in the Court on 17 February could not have been served upon Mr O'Meara at any date earlier than 17 February, but it does not follow that it was never served on Mr O'Meara's father, nor does it follow there was any need for the document to have been served on Mr O'Meara's father on the day the sequestration order was made. The document merely records that an order was made. The order was taken out subsequently and then filed in the Court. No inference can be drawn from the date the order was filed.

14 There is no evidence before me that would lead me to the conclusion that orders of the Federal Court of Bankruptcy were drawn up and signed on the day the sequestration orders were made. I very much doubt if that would have been the case.

15 The affidavit upon which Mr O'Meara relies suggests no connection existing between Mr Enticknapp on the one hand and the petitioning creditors in the bankruptcy of his father, namely a Mr Lesley Harris and a Mr Clarence Harris, on the other. Indeed Mr O'Meara accepts that he is unaware of any such connection.

16 A complaint of fraud is a serious one. Mr O'Meara must do more than merely assert it. He must prove it. There is, on the affidavit Mr O'Meara has filed, just no evidence at all of fraud or deceit. This would be sufficient to bring the proceedings to an end.

17 From the submissions that Mr O'Meara made, it seems that he had joined the State of New South Wales as a party only because he believed the sequestration order had been made by the Supreme Court of New South Wales. That not being the case, it is clear that the proceedings would necessarily have to be dismissed against the State of New South Wales.

18 There is no way that Mr O'Meara could succeed in a case in damages against the Commonwealth, even if he had shown, which he has not, that the sequestration order was made by the Registrar of the Federal Court in Bankruptcy. The Commonwealth is not liable for actions of courts merely because it vests in those courts federal jurisdiction under the power to do so in the Commonwealth Constitution. Likewise the Commonwealth cannot be liable in damages for any breach of the Constitution that it itself might bring about: see Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 46. As Brennan J said in the passage to which I have referred, any liability of the Commonwealth is to be found not in the Constitution but in the common law.

19 His Honour did not mean thereby that a common law right was brought into existence by the Constitution. What his Honour meant was that some exigible claim under the common law had to be found before the Commonwealth would become liable in damages. In the present case there is no common law claim available against the Commonwealth. For this reason too, the proceedings would need to be dismissed against the Commonwealth.

20 The case against the Registrar General is said to arise under s 126 of the Real Property Act 1900. There is no evidence before me at the moment whether the title to any property owned by Mr O'Meara's father was under the Real Property Act. Obviously, any claim for compensation made against the Registrar General as nominal defendant fails in limine because no fraud or deceit is in fact made out. If Mr O'Meara had made out a case in fraud or deceit and assuming the land in question were under the provisions of the Real Property Act, there is a real problem which would then arise under s 126. It is clear from either s 154(1)(a) of the 1966 Bankruptcy Act or s 124(1) of the 1924 Act, that even if an annulment of bankruptcy were made, any disposition of property prior to the annulment could not be avoided but would be valid. As a matter of construction I do not think the s 126 of the Real Property Act can operate to give a remedy against the Registrar General in circumstances where the official Trustee or Receiver in Bankruptcy properly disposes of land the subject of, or being part of the estate of a bankrupt, merely because the sequestration order itself was brought about by fraud. The contemplation in s 126 of the Real Property Act is that there has been a fraudulent disposition, itself capable of being set aside, not a valid disposition brought about by a sequestration order itself occasioned by fraud. In other words, I do not think that even if fraud or deceit were established by Mr O'Meara that he could succeed in a proceeding under s 126 of the Real Property Act.

21 I do not propose here to determine whether this Court would have jurisdiction in the circumstances of this case to make orders under s 126. No doubt the application for annulment is properly within the jurisdiction of the Court and a question would then arise as to whether the proceedings under s 126 could be brought within the jurisdiction of the Court pursuant to the Court's accrued jurisdiction. The matter is not one which is easy to resolve and in the circumstances it is not necessary to resolve it. I would accordingly dismiss the application against each of the respondents.

22 I am of the view that costs should follow the event and I direct the respondent on the motion, the applicant in proceedings, to pay the costs of the respondents to the proceedings, the applicants to the motion.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 18 February 2000

The Applicant appeared in person
Counsel for the First Respondent:	A King
Solicitor for the First Respondent:	Solicitor for the Registrar General
Solicitor for the Second Respondent	Crown Solicitor's Office
Solicitor for the Third Respondent:	Australian Government Solicitor
Date of Hearing:	18 February 2000
Date of Judgment:	18 February 2000