Jensen v Queensland Law Society Inc [2004] FCA 661

FEDERAL COURT OF AUSTRALIA

Jensen v Queensland Law Society Incorporated [2004] FCA 661 PETER JENSEN v QUEENSLAND LAW SOCIETY INCORPORATED Q 189 OF 2003 DOWSETT J 27 APRIL 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 189 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PETER JENSEN

APPELLANT

AND: QUEENSLAND LAW SOCIETY INCORPORATED

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 27 APRIL 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The notice of motion filed 2 April 2004 be dismissed. 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 Q 189 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PETER JENSEN

APPELLANT

AND: QUEENSLAND LAW SOCIETY INCORPORATED

RESPONDENT

JUDGE: DOWSETT J

DATE: 27 APRIL 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate making a sequestration order against the estate of the appellant. The appellant has sought leave to adduce further evidence. He accepts that he must demonstrate that the evidence was not available to him at the relevant time, that is, at the time of the hearing. It is, of course, also necessary that he demonstrate that it is relevant to these proceedings. 2 At the hearing the appellant challenged the assertion that he had been validly served with the bankruptcy notice upon which the proceedings were based. In particular he claimed that the envelope delivered to his solicitors pursuant to an order for substituted service contained a photocopy of the bankruptcy notice rather than a sealed original. He also claimed that no copy of the relevant judgment was attached to the notice. These matters were considered by the Magistrate, evidence was taken, witnesses were cross-examined. In the end the Magistrate found that there had been compliance with the Act. The appellant now submits that there is fresh evidence going to that issue. This "evidence" is to be found in certain documents which appear to be photocopies provided to the appellant in December 2003. Each document bears, close to its foot, a horizontal mark of a kind which is not uncommonly produced by photocopying. He claims that the bankruptcy notice which was served bore a similar horizontal mark, halfway down the page. Although that mark is in a different position from the marks on the "fresh" evidence, the appellant says that this supports his argument that he received a photocopy and not the original bankruptcy notice. 3 He also draws attention to the fact that a photocopy of a letter dated 2 May 2003 bore a similar mark in the same position as that on the notice. The document bearing the mark is exhibited to an affidavit of Ms Lawson, filed on 2 October 2003. The original of the letter was exhibit 2 before the Magistrate. The mark on the copy is certainly similar to that on the bankruptcy notice, exhibit 4. Whilst I accept that this may have some probative effect if it is sought to establish that the bankruptcy notice was produced in the same way as was the copy of exhibit 2, I cannot see where that takes us now or where it would have taken the Magistrate. In any event, the copy of the letter of 2 May 2003 was available to the appellant at the time of the hearing before the Magistrate. It is not fresh evidence, whatever its relevance may have been. 4 The evidence which the appellant seeks to lead emerged from documents supplied to the appellant in December of last year. They bear marks in different positions from that on the bankruptcy notice and that on the copy of the letter of 2 May 2003. I cannot see that they could have had any probative effect before the Magistrate. The question for the Magistrate was whether the photocopy produced by the appellant was the document which was enclosed in the envelope for service. None of this material would assist in answering that question. 5 In the circumstances, I cannot see that any point would be served by receiving the further evidence. I decline to do so. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.