FEDERAL COURT OF AUSTRALIA Fleet v Royal Society for the Prevention of Cruelty to Animals (NSW) [2004] FCA 1747 ROBERT FLEET v Royal Society for the Prevention of Cruelty to Animals (NSW) N 1865 of 2004 JACOBSON J 23 DECEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1865 of 2004 BETWEEN: ROBERT FLEET APPLICANT AND: Royal Society for the Preventionof Cruelty to Animals (NSW) RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 23 DECEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 1 made by Registrar Morgan on 14 December 2004 is set aside; 2. The application filed on 14 December 2004 is dismissed; and 3. The applicant pay the respondent's costs of the application to review the decision of Registrar Morgan including the costs of the hearing on 21 December 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1865 of 2004 BETWEEN: ROBERT FLEET APPLICANT AND: Royal Society for the Preventionof Cruelty to Animals (NSW) RESPONDENT JUDGE: JACOBSON J DATE: 23 DECEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under section 35A(6) of the Federal Court of Australia Act 1976 (Cth) and O 77, r 8 of the Federal Court Rules 1979 (Cth), to review an order of a Registrar of the Court made on 14 December 2004 extending time for compliance with Bankruptcy Notice number NN2878 of 2004 ("the bankruptcy notice") to 18 January 2005. The authorities establish that a review of this kind is a hearing de novo, see Biritz v National Australia Bank Limited 2001 115 FCR 117 ("Biritz") at [4]. 2 The bankruptcy notice was issued by the Official Receiver on 5 November 2004. It was based upon a certificate of judgment issued by the Local Court at Parramatta. The amount of the judgment recovered by the respondent in these proceedings, the Royal Society for the Prevention of Cruelty to Animals (NSW) ("the RSPCA") was $25,298.55. The certificate which is annexed to the bankruptcy notice states the RSPCA recovered judgment against the applicant in these proceedings, Dr Fleet, for this amount on 5 May 2004. 3 On 14 December 2004 Dr Fleet filed an application to set aside the bankruptcy notice. He stated in the application that the bankruptcy notice was served on him on 26 November 2004. Thus, the date for compliance with the bankruptcy notice was 17 December 2004 and the application to set it aside was filed before the expiration of the time fixed for compliance. I should add that Ms Nash, who appears for the RSPCA, told me today that the bankruptcy notice was in fact served on 24 November 2004. Even if that is correct the application made by Dr Fleet was, as Ms Nash conceded, filed before the expiration of the time fixed for compliance with the requirements of the bankruptcy notice. 4 The application to set aside the bankruptcy notice was supported by an affidavit filed by Dr Fleet. The affidavit stated that Dr Fleet's application was made under ss 30, 41(6A) and 41(7) of the Bankruptcy Act 1966 (Cth). Only two grounds were stated in the affidavit and they were set out as submissions. 5 In [4] four of the affidavit Dr Fleet submitted as follows: "I submit that, this Bankruptcy Notice is in relation to a matter that was ALREADY included in my amended Statement of Claim and/or Notice of Motion before/to the Supreme Court of New South Wales, and a final judgment or order has NOT been given. I am seeking relief including damages and costs against the RSPCA NSW exceeding the amount in this Bankruptcy Notice.. 6 In [5] of the affidavit Dr Fleet submitted: "I submit that, the Orders by the Supreme Court of New South Wales Court of Appeal given on the 8th October 1999 in the case FLEET V DISTRICT COURT OF NSW & ORS [1999] NSW CA 363 includes 'Order the second and third opponents to pay the costs of the claimant and the first opponent in this Court, the first opponent's costs being payable as to a submitting party.' For this case, the claimant was the current applicant, and the second opponent was the current respondent. Except for one initial part-payment, my costs have NOT been paid in full.". 7 Dr Fleet annexed to the affidavit a copy of the orders of the Court of Appeal of New South Wales made on 8 October 1999 which included an order that the RSPCA and another party pay Dr Fleet's costs of the proceedings in the Court of Appeal. The Registrar's order of 14 December 2004 extending time for compliance with the bankruptcy notice was expressed to be made under s 41(6A) of the Act and O 77, r 14 of the rules. The order reserved liberty to any party to apply to vary or discharge the order on 24 hours notice. 8 The matter came before another Registrar of the Court on 21 December 2004 and it was referred to me on that day as the duty judge. On that occasion Ms Nash sought to proceed with her application to review the Registrar's order. Dr Fleet indicated he was not ready to proceed and I adjourned the matter for hearing today. Dr Fleet told me today that he was not ready to fully argue the matter. He said that he wanted more time to obtain legal representation and to pursue further inquiries including inquiries in the Local Court at Parramatta. 9 Ms Nash opposed any adjournment and it seemed to me that I should hear the matter today. I have borne in mind the observations of Lehane J in Byron v Southern Star Group Pty Limited (1997) 73 FCR 264 at 269-270 ("Byron") and the earlier remarks of Sheppard J in Re Geard, Ex parte Reid (unreported, Federal Court, 11 February 1994) to which Lehane J referred, as to the importance to any petitioning creditor, as well as the general body of creditors of the date on which any act of bankruptcy was committed. The matter is an important one and an order having been obtained ex parte, a creditor should be given an opportunity at the earliest possible time to test the making of the order extending time for compliance. 10 Moreover, it seems to me that Dr Fleet has had a sufficient time to obtain legal representation and to pursue the inquiries which he told me he wants to make. Dr Fleet proceeded to argue the matter before me this morning. In addition to the affidavit of 14 December he relied upon an affidavit sworn by him on 23 December 2004. I gave Dr Fleet leave to file that affidavit in court and to rely upon it, although, it does not appear to me that the affidavit raises any matter which would ground an extension of time for compliance with the bankruptcy notice. 11 This is not a case in which proceedings have been brought to set aside the judgment in respect of which the bankruptcy notice was issued, thus s 41(6A)(a) is not applicable. The question is whether the court should exercise its discretion under s 41(6A)(b). The exercise of the discretion is guided by considerations which are not necessarily the same as those that apply to an adjournment of the petition. See Byron at 270. 12 The authorities establish that some good reason must be shown and considerable weight must be given to the circumstance that no stay of the certificate of judgment in the Local Court has been granted or sought. The submission set out in [4] of Dr Fleet's affidavit of 14 December 2004 does not contain evidence which could be relied upon to support an extension of time. 13 He told me this morning that in the proceedings which are referred to in that paragraph, he seeks to set aside judgments obtained against him which he asserts to have been obtained by fraud in a legal sense. However, as Kenny J said in Biritz at [27], this does little more than propound an allegation which is an insufficient basis to set aside a bankruptcy notice or to extend the time for compliance with it. Dr Fleet also told me today that he wants to appeal against the certificate of judgment in the Local Court but bearing in mind what Lehane J said in Byron this does not persuade me that there are grounds for extending time for compliance with the bankruptcy notice. 14 As to the submission in [5] of Dr Fleet's affidavit of 14 December 2004, this does not satisfy the requirements of s 41(7) of the Act or s 40(1)(g) of the Act because it would be necessary for me to be satisfied that Dr Fleet has a counter-claim, set-off or cross-demand equal to or exceeding the amount of the judgment debt. No question arises here as to whether it is a claim which could not have been set up in the action or proceeding in which the judgment was obtained in the Local Court. 15 The orders of the Court of Appeal say nothing of the amount awarded and there is simply no evidence of the amount of any outstanding costs which Dr Fleet asserts to be due under the order. Dr Fleet told me that he believes the RSPCA is using the court process to injure him or cause detriment to him. However, there is nothing to support such an allegation. It follows in my view that there is no basis for an order extending time for compliance with the bankruptcy notice. 16 I should add that Dr Fleet said to me this morning that the hearing of the matter is unfair. He called it an unfair trial. I asked Dr Fleet for the reasons why he said that the hearing was unfair. He told me that he had tried to get legal advice and that he needed to do legal research and that he has not had time to do so. He also, as I have said earlier, said that he was not in a position to argue the case fully today. Those were the only matters put before me in support of the submission that the hearing is unfair. 17 For reasons which I have set out above in relation to the request for further time, I do not consider the hearing to be unfair. Accordingly, the orders which I will make are as follows: I set aside Order (1) made by Registrar Morgan on 14 December 2004. 18 As to the question of costs, Ms Nash has succeeded in her application and accordingly I order Dr Fleet to pay the costs of the application. 19 I propose in addition to the two orders that I have made to make an order dismissing the application filed on 14 December 2004. 20 It seems to me that Dr Fleet must have been given 24 hours notice of the application which was heard on 21 December 2004 . Accordingly, the costs orders which I make are to include the costs of the hearing before the Court on that day. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 23 December 2004 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms S Nash Solicitor for the Respondent: Sally Nash & Co Date of Hearing: 23 December 2004 Date of Judgment: 23 December 2004