IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND ) ) ) ) ) ) ) AUSTRALIAN CAPITAL TERRITORY No. W448 of 1983 BETWEEN JOSEPH HEDRLIN Applicant AND "THE PROPRIETORS - STRATA PLAN NO. 3670" First Respondent MAX CHRISTOPHER DONNELLY Second Respondent ORDERS Judge making order: Beaumont, J. Date order made: 29 August, 1983 Where made: Sydney. THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the first respondent including reserved costs. 3. The applicant pay the costs of the second respondent on a submitting basis. 4. Direct that the application to remove the trustee be fixed for hearing on Tuesday, 4 October, 1983 at 2.15 p.m. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND ) ) ) ) ) No. W448 of 1983 AUSTRALIAN CAPITAL TERRITORY BETWEEN JOSEPH HEDRLIN Applicant AND "THE PROPRIETORS - STRATA PLAN NO. 3670" First Respondent MAX CHRISTOPHER DONNELLY Second Respondent CORAM: Beaumont, J. DATED: 29 August, 1983 (ex tempore) REASONS FOR JUDGMENT In this matter, by application dated 15 July, 1983 the applicant seeks orders in these terms: "l. That the bankruptcy be annulled that the sequestration order ought not to have been made providing Sec.154 Bankruptcy Act 1966 as amended (sic). 2. The operation of the sequestration order be suspended. 3. Declare no jurisdiction of the Court in Bankruptcy, 1n relation to the matters of defence of the bankrupt, being jurisdiction of the State New South Wales. 4. Thé~court resolve the orders of costs, already made in this matter and thus occurring now Sec. 300 Bankruptcy Act." It would appear that the application is brought pur- suant to s.154(1) of the Bankruptcy Act, 1966. The applic- ation is supported by an affidavit sworn by the applicant on 15 July, 1983. In view of the difficulties which I have had in perceiving the real basis of the application now made, I think it 1s proper that I should set this affidavit out in full and I now do this as follows: mh, I'm the Applicant for the application to the court dated 15 July, 1983. I rely to the McDonald, Australian Bankruptcy Cases and Practice Release lo, Up to date lst January 1983, Published February 1983 Page 48 & 47 (119) Powers of the court, Re Lloyd; Ex p.Lloyd (1889) 6 Mor.297; Re Parker & Bulteel; Ex p.Deare (1917) H.B.R.230, at p.235 (delay) Re Lloyd; Ex p.Lloyd, supra. To Re Prowse; Ex p.Debtor (1981) 39 A.L.R. 639. Since this bankruptcy proceedings has taken place, by Bankruptcy Notice, the Court in Bankruptcy has proceeded pursuant Bankruptcy Act 1966 as amended. The question of jurisdiction was not risen by the parties. The Court itself did not undertaken any decision in relation to matters of other jurisdiction the New South Wales State. The question of the matters as risen at all times related to this action of bankruptcy, are to be decided by the jurisdiction of the Supreme Court of New South Wales and the Attorney General, providing, that even this Action as undertaken by the solicitor, G. Bush in first degree 1S subject to obtain leave to undertake against solicitor and Official Trustee. I have undertaken an Action au pres the Attorney General New South Wales on the 30 June 1983, vexatious litigeant Sec.84 Supreme Court Act 1970 as amended against the Solicitors Hones & Ledingham, N.D. Ledingham and G.M. Bush. In the allegations I have also informed the Attorney General about the as I believe Unlawfull Action in this bankruptcy by them. I mention Crimes Act 1900 as amended Sec.i81 False Pretence of title Fraudulent personation and breaches of the Legal Practicioneers Act. The Strata Titles Act 1973 as the Real Property Act 1900 inclusive. The Action as I believe will be successful, this proceedings in Bankruptcy is the prove, where thir action, how far has gone. In any case, $1.7000 can be recovered in State Jurisdiction, beyond doubt. 7. Under the same application as mentioned in above Par.6 I have applied also against the Official Trustee, his solicitor and barrister, all being also under Duties Providing the Bankruptcy Act 1966 Sec.19{1)(12) to know the cause of the Bankruptcy. He know it, he has joined as second respondent. All this above persons Actions against them, even in Bankruptcy Act are subject to Leave from the Attorney General N.S.W. Application made on the 12th July 1983 and handled at the office of Attorney General the same date. I believe that the Attorney General himself will undertake or order to be undertaken the Action, by the Crown, because the offences are as alledged against the Crown and Crown Land. (Under perpetual lease) 8. I believe that all above points as risen, Inter-alia provide, that injustice will be done, if I will remain Bankrupt providing the Jurisdiction of the Bankruptcy Act 1966 and in other side providing the Jurisdiction of the state that I claim to be applied, I'm an innocent victim of wrong, ranging to several Criminal offences as I believe done by this solicitors, barrister and finally by the Official Trustee. After all, ignorance 1s no excuse aply twice to suposed to be Lawyers." It is apparent from the terms of the affidavit that the applicant is confused in his understanding of the legal issues involved. To be fair to him, he may have language difficulties and, of course, he does not, so far as I am aware, hold any legal qualification. One immediate example of the confusion in the affidavit may be seen in paragraph 2 which contains a reference to a bankruptcy text and to some notes in the text. Those notes, however, appear to be made with reference to s.37 of the Act which can have no application in the present case. The matter does have some background to which reference should be made. It 1s apparent from a perusal of the affidavit and from the submissions made to me in the application that the matters that the applicant now seeks to advance have al- \ ready been agitated at some length and in some detail before two single Judges and two Full Courts of this Court. It is sufficrent 1f I merely refer to the decision of Lockhart, J. in the application made by the applicant under s.41({7) of the Act (given on 14 April, 1982) and the unsuccessful appeal from that decision to the Full Court of this Court (given on 27 October, 1982) and to the decision of Evatt, J. (given on 24 May, 1983) in making the sequestration order herein and the unsuccessful appeal from that order to another Full Court (given on 29 June, 1983). As has been said, 1t is by no means easy to perceive the grounds, 1f£ any, upon which the applicant then sought and now seeks to rely in support of the contention that he is under no liability to the first respondent. In my opinion, no reason has been demonstrated to me to justify a finding of even a prima facie case that the power conferred by s.154 should be invoked here. Under that provision, the court may make an order annulling the bankruptcy where the court 1s satisfied either (a) that a sequestration order ought not to have been made or (b) that the unsecured debts of the bankrupt being debts that had been proved in the bankruptcy have been paid in full or that the bankrupt has obtained a legal acquittance of them. It may be that there 1s an 1ssueestoppel on the points now sought to be raised by the applicant but even if this were not so, it seems to me that the reasoning of Lockhart, J. and of Evatt, J. and of the two Full Courts of this Court to which I have referred more than amply demonstrate the absence of any case whatever to challenge the making of the sequestration order. As a necessary consequence, these reasons demonstrate why any application under s.154 should also fail. It is true that, before me, the applicant referred also to the provisions of s.234(1) of the Crown Lands Consolidation Act (N.S.W.). But in my opinion the provisions of that Act, in- cluding the provisions of s.234(1) can have no bearing upon the point now sought to be made by the applicant. In my opinion, the application under s.154 should be dismissed and I therefore refuse to make the order numbered 1 sought in the application. In paragraph 3 of the application now before me the applicant also seeks a declaration that there is no Jurisdiction in the Court of Bankruptcy in relation to matters of defence of the bankrupt, being the jurisdiction of the State of New South Wales. Although framed as a separate claim for relief, this claim is really part of the principal claim for relief under s.154(1). In other words, I do not understand that the applic- ant relies upon this claim to justify any independent relief, but rather seeks to use it as a reason why an order should be made under s.154(1). I have great difficulty in understanding the basis upon which the claim is advanced. It 1s apparently a refer- ence to the circumstance that the defence sought to be raised by the applicant in the proceedings upon which the claim founding the bankruptcy notice was based was in some way related to the provisions of a New South Wales statute, namely, the Strata Titles Act. But, given this circumstance, it 1s by no means apparent to me how this of itself could afford any reason for exercising my discretion under s.154 in favour of the applicant. Of course, the court in the exercise of its jurisdiction under the Bankruptcy Act takes notice of, and, where appropriate, gives effect to the laws of the states: see The Constitution, s.118. But it does not follow that any State law operates to deprive this court of its jurisdiction in bankruptcy: see the Bankruptcy Act, s.27. Indeed, the applicant can point to no State law which purports to do so. I therefore refuse to make the declaration sought in paragraph 3 of the application. In paragraph 2 of the application, a suspension of the sequestration order was sought. It would appear that this application was made in aid of the claim for principal relief in this application under s.154. In view of my decision in refusing the principal claim for relief, 1t is not of course appropriate that I grant any suspension of the sequestration order. I make the following orders: 1. That the application be dismissed. 2. That the applicant pay the costs of the first respondent including reserved costs. 3. That the applicant pay the costs of the second respondent on a submitting basis. 4. Direct that the application to remove the trustee be fixed for hearing on Tuesday, 4 October, 1983 at 2.15 p.m. - any -' ie reasons for pages are atrue copys - reas ~s of Tag sonourenie