Sherman v La Trobe University [2007] FCA 1911

FEDERAL COURT OF AUSTRALIA

Sherman v La Trobe University [2007] FCA 1911

PETER SHERMAN v LA TROBE UNIVERSITY VID 989 OF 2007

RYAN J

4 DECEMBER 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 989 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PETER SHERMAN

Appellant

AND: LA TROBE UNIVERSITY

Respondent

JUDGE: RYAN J

DATE OF ORDER: 4 DECEMBER 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 989 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: PETER SHERMAN

Appellant

AND: LA TROBE UNIVERSITY

Respondent

JUDGE: RYAN J

DATE: 4 DECEMBER 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court a notice of appeal from orders of the Federal Magistrates Court made in Brisbane on 24 October 2007 dismissing an application by the appellant to set aside a bankruptcy notice which had been served on him at the instance of the respondent, La Trobe University. The notice of appeal invokes the following grounds: 'The learned Magistrate erred in:

1. making findings of fact unsupported by evidence;

2. failing to take into account material considerations;

3. failing to apply the law correctly;

4. any further or other ground the appellant may be advised to take prior to the hearing of the appeal.'

2 The respondent has filed a notice of objection to the competency of the appeal and has contended in support of that notice, first, that the orders of the Federal Magistrates Court were interlocutory so that the appellant would require leave to appeal from them, and in the events which have happened, would require an extension of time within which to seek that leave. Secondly, Mr Bornstein of Counsel for the respondent, has contended that the notice of appeal is defective because none of the grounds which I have just recited amounts to a proper indication or contention of error by the learned Federal Magistrate. 3 Before the Federal Magistrates Court two grounds were relied on by the appellant. The first was that the bankruptcy notice wrongly ascribed the address of the debtor as 8/11 Selwyn Avenue, Elwood, Victoria, 3184. As I understand it, the appellant contended before the Federal Magistrates Court that, although he had been served with the bankruptcy notice and was the person against whom La Trobe University had obtained orders for costs in the Supreme Court of Victoria and the High Court of Australia, amounting to a total of $14,643.89, which was the amount shown in the schedule to the bankruptcy notice as the total debt owing, he was not the Peter Sherman who resided at the address, 8/11 Selwyn Avenue, Elwood, shown in the bankruptcy notice. 4 The learned Federal Magistrate dealt with that contention by observing in his reasons, under the heading "Wrong Address"; '8. The Applicant admitted he is the Debtor referred to in the founding judgments, but says he does not live at "8/11 Selwyn Avenue, Elwood, Victoria". He says such an error is a serious defect. He relies upon a decision of the High Court in James v Federal Commissioner of Taxation (1955) 93 CLR 631. That decision does not assist him. The issue in that case, and one dealt with many times subsequently, is that a debtor must know what he needs to do to avoid committing an act of bankruptcy. The address of the Creditor at which the debt could be paid was an issue in that case.