FEDERAL COURT OF AUSTRALIA

Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant (Mr Rafidi) appeals from the decision of a single judge of this Court, dismissing his application to set aside bankruptcy notice 212149 (bankruptcy notice): Rafidi v Commonwealth Bank of Australia [2019] FCA 620.

2    The bankruptcy notice was issued on 21 February 2017 at the request of the respondent (Bank) and claims a total debt of $9,331,605.09. The bankruptcy notice expired on 3 May 2019 and the respondent (Bank) filed a creditor’s petition on 29 October 2019. However, both parties agreed that the Full Court may make orders upon an appeal against a refusal to set aside a bankruptcy notice and thereby undo the effects of an act of bankruptcy that occurred upon the expiry of the notice: Guss v Johnstone [2000] HCA 26; (2000) 171 ALR 598 at [62]-[63].

3    The amount claimed in the notice is based on a consent judgment made by the Supreme Court of New South Wales on 4 November 2016 (consent judgment). The consent judgment was given after about three weeks of a trial on the Bank’s claim to recover the amount from Mr Rafidi as guarantor of borrowings from the Bank. At the time of the consent judgment, Mr Rafidi’s cross-examination was well advanced but not complete.

4    Shortly after the consent judgment was given, Mr Rafidi applied unsuccessfully to have it set aside: Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931. The primary judge made the following findings concerning this application, which are not contested on the appeal:

[32]    … In the Consent Orders judgment, Ball J records that the only reason advanced by Mr Rafidi for why the judgment should have been set aside was to give him an opportunity to clear his name in light of the application for the Court to refer the papers to the authorities. His Honour concluded that that was not a sufficient basis on which to set aside the judgment, first, because there was no evidence from Mr Rafidi that he had not appreciated that the papers could be referred, or that that would have made a difference to his decision to consent to judgment. At the time, Mr Rafidi was legally represented and was on notice through his legal representative that an application would be made for the referral of the papers following entry of the judgment. Secondly, the application to set aside the judgment was misconceived in any event, because the decision to refer the papers involved an independent administrative decision by the Court. Thirdly, because it was far from clear to his Honour that Mr Rafidi could have taken further steps to clear his name. Most of the witnesses he intended to call had given evidence, and it was apparent that their evidence had gone badly for his case and that his prospects of success were poor. Mr Rafidi had given his evidence in chief through affidavits and, although his cross-examination was not completed, he had been cross-examined extensively.

[Ball J] found at [11]:

... It may be inferred that Mr Rafidi consented to judgment against him because, having regard to developments in the case, it was apparent that his prospects of success were poor. In my opinion, it was not in the interests of justice to permit Mr Rafidi to resile from the position he took previously, presumably on legal advice, to achieve a collateral benefit that he thought would arise from pursuing the court proceedings.

5    At [34], the primary judge noted that an application for leave to appeal from Ball J’s decision was subsequently dismissed: Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96.

6    Mr Rafidi applied to set aside the bankruptcy notice on the basis of circumstances leading to the consent judgment. In short, Mr Rafidi’s contention was that the consent judgment is not a proper foundation for the bankruptcy notice.

7    For the reasons that follow, the appeal should be dismissed.

Issues on the appeal

Notice of appeal

8    In his notice of appeal, Mr Rafidi contends that the primary judge erred because his Honour was “bound to have found” that the consent judgment:

(1)    was not a “proper judgement for the purpose of bankruptcy”;

(2)    was a “judgement of a kind that a court in the proper exercise of its jurisdiction in bankruptcy was required to go behind”;

(3)    was not “a judgement in respect of which there was in substance and in truth, a just and true debt”; and

(4)    was “entered into by consequence of a vitiated consent”.

9    The notice of appeal elaborates upon the alleged error by the following detailed particulars:

(1)    the evidence led by Mr Rafidi concerning the judgment and the circumstances in which it was entered into in the trial proceedings (vitiated consent allegations) was unchallenged;

(2)    on a proper consideration of Mr Rafidi’s unchallenged evidence, the primary judge was obliged to have made the following five findings, as a consequence of which Mr Rafidi’s consent to the judgment must be found to have been vitiated:

(a)    the Bank unfairly made a submission in the Supreme Court proceeding that a letter of 14 January 2009 (in which the Bank gave Mr Rafidi a “loan approval”) was not an authentic document of the Bank;

(b)    senior counsel for the Bank cross-examined Mr Rafidi unfairly (and untruthfully) at the trial, by suggesting to him to the effect that his affidavits were untruthful (because they had been drafted by his solicitors) and that in no cases in which senior counsel for the Bank was involved did the solicitors that instructed him draft affidavits for witnesses called by their clients to give evidence in court proceedings;

(c)    the Bank did not provide proper and adequate disclosure of Mr Rafidi’s customer file in the Supreme Court proceeding (which had an adverse effect on the capacity of Mr Rafidi to prosecute his case);

(d)    a document employed by the Bank at the trial and in which it was stated to the effect that Mr Rafidi ought to be declined a facility was a forgery (introduced into the trial proceeding by the Bank to suggest that Mr Rafidi was not a credit worthy customer, or that he was not a customer in good standing); and

(e)    a letter settled by the Bank’s senior counsel part way through the Supreme Court proceeding (and purporting to articulate a fraud case against Mr Rafidi concerning the loan approval) was not a proper fraud pleading of which notice was given at an appropriate time.

(3)    In the circumstances of Mr Rafidi’s unchallenged evidence, the primary judge was obligated to have found and to have determined that the consent judgment that supported the bankruptcy notice was not a proper judgment for the purposes of bankruptcy, in that it did not evidence a just and true debt (for the purposes of bankruptcy) where the evidence established the following six matters:

(a)    contrary to what the Bank contended in the Supreme Court proceeding, the loan approval was an authentic document and that it was not a forgery;

(b)    senior counsel for the Bank had cross-examined Mr Rafidi unfairly and by putting questions to him at the trial that were untruthful, concerning the practice and custom of solicitors in drafting affidavits for witnesses;

(c)    the Bank (although the subject of orders that it do so in the trial proceedings) had not provided proper and adequate disclosure of Mr Rafidi’s banking/customer file;

(d)    the document employed by the Bank at the trial (and in which it was stated to the effect that Mr Rafidi ought to be declined a facility) was a forgery;

(e)    the letter settled by the Bank’s senior counsel part way through the trial and purporting to articulate a fraud case (against Mr Rafidi) was not a proper fraud pleading; and

(f)    for reasons connected to a litigation insurance policy, together with other considerations of Mr Rafidi to the effect that he would not receive a fair trial, Mr Rafidi had consented to judgment in the Supreme Court proceeding as a part of the court record in that action, but in circumstances in which the judgment:

(i)    did not (most particularly for the purposes of bankruptcy) evidence a just and a true debt;

(ii)    is not and was not a proper judgment for the purposes of bankruptcy;

(iii)    was one which a court in bankruptcy was required to have gone behind; and

(iv)    to the extent that it was a consent judgment, the relevant consent was vitiated.

10    These particulars confirm that Mr Rafidi’s appeal is based on complaints about the primary judge’s fact finding concerning various aspects of the conduct of the Supreme Court proceeding in which the consent judgment was ultimately given.

Legal Framework

11    The primary judge’s decision was a decision to refuse to exercise the discretionary power to set aside a bankruptcy notice. That power is conferred by s 30(1)(b) of the Bankruptcy Act 1966 (Cth) (Act) which provides, relevantly, that the Court: “(b) may make such orders … as the Court considers necessary for the purposes of carrying out or giving effect to this Act …”.

Power to set aside a bankruptcy notice

12    The primary judge set out relevant principles concerning the exercise of the power contained in s 30(1) of the Act at [6]-[21] of his Honour’s reasons. Mr Rafidi does not suggest that the primary judge incorrectly identified the relevant principles.

13    In Re Briggs; Ex Parte Briggs v Deputy Commission of Taxation (WA) [1986] FCA 512; (1986) 12 FCR 310 at 312, Toohey J explained relevantly:

… It seems to me that, however formulated, the grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice itself, service of the notice or the existence of the debt upon which the judgment and in turn the notice is founded. Having regard to the language of s 40(1)(g), reference to the existence of a debt must include the existence of a counter-claim, set-off or cross demand equal to or exceeding the amount of the debt.

A court hearing an application to set aside a bankruptcy notice is not hearing a petition for sequestration and the provisions of s 52(2), whereby a court may dismiss a petition if satisfied that the debtor is able to pay his debts or that for other sufficient cause a sequestration order ought not be made, cannot be imported into such an application. In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.

14    In particular, the appellant did not take issue with the primary judge’s reliance upon the following passage from Xu v Wan Ze Property Development (Aust) Pty Ltd (in Liquidation) [2014] FCA 461 (2014) 315 ALR 523 (“Xu”) at [131]:

Except in a clear case, questions of fraud, collusion, lack of good faith and miscarriage of justice, or whether substantial reasons have been shown for questioning whether behind the judgment there was in truth and reality a debt due to the judgment creditor, are more apt to be dealt with after the exhaustion of those remedies and where the Court is dealing with an application to make a sequestration order against the estate of the debtor. No doubt the circumstances in which the Court will go behind a judgment cannot be formulated precisely.

Appeal from decision affecting exercise of discretionary power

15    The principles as to when an appellate court might interfere with the exercise of discretion by a first instance court were stated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 as follows:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

16    Mr Rafidi’s contention on the appeal is that the primary judge mistook the relevant facts.

Fact finding

17    Contrary to what might be suggested by Mr Rafidi’s emphasis on his unchallenged evidence, there is no requirement that a court must accept evidence that is not the subject of cross-examination: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561, 586-588, 607. “The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection”: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [77] (“Ashby”). However, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (Gibbs CJ); Ashby at [77].

18    As the Bank observed, the demonstration of error affecting findings or conclusions involving elements of fact, degree, opinion or judgment will ordinarily be more difficult to demonstrate than errors affecting conclusions about matters in respect of which there can be only one correct answer: Shaw v Yarranova Pty Ltd [2017] FCAFC 88; (2017) 252 FCR 267 at [12], citing Branir Pty Ltd v Owston Nominees (No 2) [2001] FCA 1833; (2001) 117 FCR 424 at [24]-[25] (Allsop J).

Primary judge’s reasons

19    At [43] of his Honour’s reasons, the primary judge concluded, contrary to Mr Rafidi’s contention, that he was not satisfied that Mr Rafidi was the subject of any duress or coercion in entering into the consent judgment. In reaching this conclusion, the primary judge relied upon the fact that the application to set aside the consent judgment was made purely on the basis that Mr Rafidi was not aware that the Bank would seek to refer matters concerning his conduct during the trial to the relevant authorities. His Honour also noted that Mr Rafidi was represented by solicitors and senior counsel at the time of the conduct which Mr Rafidi contended had affected his consent.

20    At [45], the primary judge found that Mr Rafidi’s affidavit evidence did not cause his Honour to doubt the correctness of Ball J’s observations at [11], referred to above. That is, his Honour accepted that Mr Rafidi consented to judgment against him because it was apparent that his prospects of success were poor and that he presumably acted on legal advice in giving his consent.

21    His Honour also concluded that the evidence advanced by Mr Rafidi fell well short of the threshold (identified in Xu at [131]) of a “clear case where substantial reasons have been shown for questioning whether the judgment order was made as a result of a miscarriage of justice”.

22    At [46], his Honour was not satisfied that the circumstances warranted the setting aside of the bankruptcy notice because the evidence did not indicate that the conduct of the Supreme Court proceeding “impugned the ability of Mr Rafidi to make a rational decision to enter into the judgment order”.

23    At [46]-[56], the primary judge addressed five factual contentions made by Mr Rafidi in support of the contention that his consent to the consent judgment was “vitiated”. This aspect of his Honour’s reasons is addressed in detail below. At [57], the primary judge concluded that the vitiated consent allegations did not have sufficient merit to warrant setting aside the bankruptcy notice. On this basis, the primary judge declined to set aside the bankruptcy notice.

24    At [58], the primary judge rejected the following four contentions advanced by Mr Rafidi:

(1)    that the consent judgment was obtained irregularly or improperly;

(2)    that Mr Rafidi’s consent was obtained by a misrepresentation;

(3)    that the consent judgment was obtained by duress, undue influence and or unconscionable conduct; and

(4)    Mr Rafidi’s consent was given because he had “no choice”, and was vitiated because, at the time it was given, Mr Rafidi did not agree that the judgment debt was a true debt.

25    The primary judge also rejected an argument concerning the form of the bankruptcy notice, which is not pressed on the appeal.

Facts said to demonstrate that Mr Rafidi’s consent to judgment was vitiated

26    Mr Rafidi’s contention is that the primary judge was required to make five factual findings (being the five findings set out at [8(2)] above) which, in turn, required his Honour to make the further finding that Mr Rafidi’s consent to the consent judgment was “vitiated”.

27    This contention involves two elements, namely, that:

(1)    the primary judge was required to make the five relevant findings; and

(2)    the five relevant findings required, in turn, the conclusion that Mr Rafidi’s consent was “vitiated”.

28    Mr Hall, who appeared on Mr Rafidi’s behalf on the appeal, submitted that Mr Rafidi had relied upon a substantial body of evidence before the primary judge, raising everything that he would have raised at the creditor’s petition stage. On this basis, Mr Hall contended that the primary judge should have gone behind the consent judgment as a matter of good case management. We do not accept that submission. The principles regarding applications to set aside bankruptcy notices and applications for a sequestration order are different, reflecting, among other things, the effects of a debtor’s position under different provisions of the Act on third parties. The task of the primary judge was to consider whether to set aside the bankruptcy notice by reference to the principles identified by his Honour.

29    Mr Hall also stated that Mr Rafidi would not contend that the Court should go behind the consent judgment at the creditor’s petition stage because he would have nothing to add. Mr Hall did not suggest that this contention had been made before the primary judge or explain how it should have affected the exercise of the primary judge’s discretion. In those circumstances, it does not advance Mr Rafidi’s case on the appeal.

First and fifth proposed findings: 14 January 2009 letter and inadequate fraud pleading

30    The first proposed finding is that the Bank “unfairly” made a submission in the Supreme Court proceeding that the relevant letter was not an authentic document of the Bank.

31    The fifth proposed finding was that the Bank’s submission concerning the alleged inauthenticity of the 14 January 2009 letter dated 16 October 2016, entitled “Cross-defendant’s reasons in support of non-admission as to authenticity of 14 January 2009 letter (ordered T130 L 21-29)” (inauthenticity submission), was not a proper fraud pleading of which notice was given at an appropriate time.

32    The primary judge addressed the letter and the submission as follows (at [36] and [46] of his Honour’s reasons):

[36]    The first [factual contention in support of Mr Rafidi’s argument that his consent to the consent judgment was vitiated] is that senior counsel for the CBA unfairly made a submission during the Supreme Court Proceedings that the 14 January 2009 letter was not an authentic document and asked the court ought to make a finding to that effect. There is no dispute that this allegation was made. The trial commenced on 11 October 2016. On 16 October 2016 senior counsel for the CBA supplied a 4 page written submission addressing the alleged inauthenticity of the 14 January 2009 letter. At that point, Mr Rafidi and BBC [Brick and Block Company Pty Ltd] were represented by senior counsel and solicitors. The trial was to continue for 6 weeks. Notably, particulars of the allegations were provided and the learned primary judge conducting the proceedings permitted the allegations so made to proceed.

…

[46]    [T]he CBA’s allegation that the 14 January 2009 letter was a false document was particularised at an early stage in the trial and the Court permitted it to be advanced as part of the CBA’s case. In the circumstances, I see no basis upon which the decision-making of Mr Rafidi was inappropriately impaired by that process. In this regard, the evidence of Mr Rafidi in the present application that he “did not consent” to the case being run outside the pleaded case, or being “carried on as a fraud proceedings”, is beside the point. He was involved in adversarial proceedings in which the Court permitted the fraud argument to be advanced. Contrary to the submission advanced on behalf of Mr Rafidi in reply, any absence of cross-examination of Mr Rafidi on this subject does not alter the position. The notion that the conduct of the trial, and subsequent entry into the judgment order by Mr Rafidi was “unfair” on the basis of such an allegation is not, in my view, supported by the objective facts.

33    On the appeal, the asserted unfairness was that the Bank’s challenge to the authenticity of the 14 January 2009 letter was made late, while Mr Rafidi was under cross-examination, and was not adequately (or at all) pleaded. In particular, Mr Hall made complaints about the alleged insufficiency of elements of the Bank’s inauthenticity submission. However, those complaints had no obvious substance. For example, Mr Hall complained that the Bank purported to rely upon letters post-dating the 14 January 2009 letter which, according to the Bank, could have been expected to refer to the earlier letter had it been authentic, without identifying them or their relevant content. However, the letters were stated to be included in the Court Book and were said to have been dated between 15 January 2009 and 10 February 2009. Further, Mr Hall did not point to any evidentiary basis for the finding that Mr Rafidi says was required to have been made, let alone evidence that compelled such a finding, including any complaint at the trial on Mr Rafidi’s behalf about the insufficiency of the particulars, or any failure on the part of the Bank to provide further particulars when requested.

34    The matters identified by Mr Rafidi do not demonstrate any error in the primary judge’s fact finding on this issue, or any basis upon which the primary judge erred in failing to find any relevant unfairness in the Bank’s submission to the Supreme Court proceeding that the 14 January 2009 letter was not an authentic document of the Bank. His Honour’s finding as to when the Bank’s challenge was first made was not disputed and it is not self-evident that the challenge was unfair because it was made at that time, or because it was made while Mr Rafidi was under cross-examination. There is no apparent error in the primary judge’s conclusion that Mr Rafidi was not “inappropriately impaired” by the process pursuant to which the Bank made its submission as to the letter’s inauthenticity.

35    Nor did the evidence require the primary judge to find that the inauthenticity submission “was not a proper fraud pleading of which notice was given at an appropriate time”.

Second proposed finding: unfair and untruthful cross-examination

36    The second proposed finding is that senior counsel for the Bank had cross-examined Mr Rafidi unfairly (and untruthfully) at the trial, by suggesting to him to the effect that:

(1)    Mr Rafidi’s affidavits were untruthful (because they had been drafted by his solicitors); and

(2)    in no cases in which senior counsel for the Bank was involved did the solicitors that instructed him to draft affidavits for witnesses called by their clients to give evidence in court proceedings.

37    The primary judge addressed the issue as follows (at [37] and [47] of his Honour’s reasons):

[37]    The second contention is that senior counsel for the CBA incorrectly informed the Court about his method for settling affidavits for the purposes of the trial. This contention is elucidated by reference to the affidavits sworn by Mr Rafidi in support of the present application. He refers to one page of transcript of the trial. The allegedly false statement arose during the course of the cross examination of Mr Rafidi by senior counsel for the CBA, during which senior counsel asked the question “you are saying you had your affidavit settled by legal advisors?”. Objection was taken to the question and in the debate that followed, senior counsel said, arguendo, words to the effect that witnesses who he calls to give evidence do not have affidavits “settled”, although this depends on what one means by “settled”. He then withdrew the question the subject of the objection.…

[47]    As to the second contention, the suggestion that the comment made by senior counsel arguendo concerning the settling of affidavits relevantly mislead the Court does not advance the position. To contend that such a statement misled the court is, in my view, risible. It must be set to one side.

38    Mr Rafidi’s written submissions do not identify the asserted unfairness or untruthfulness in the cross-examination. The evidence did not require or even permit the primary judge to make a finding that the cross-examination was unfair or untruthful.

Third proposed finding: inadequate disclosure of Mr Rafidi’s customer file

39    The third proposed finding involves two aspects, namely:

(1)    the Bank did not provide proper and adequate disclosure of Mr Rafidi’s customer file in the Supreme Court proceeding; and

(2)    this failure had an adverse effect on Mr Rafidi’s capacity to prosecute his case.

40    The primary judge gave the following reasons concerning this proposed finding (at [38]-[39] and [51]):

[38]    The third contention is that there were deficiencies in the production of documents by the CBA during the Supreme Court Proceedings. In a related submission, Mr Rafidi also alleges that the CBA systematically destroyed documents relevant to his file. Mr Rafidi relies on his first affidavit where he refers to orders made in the Supreme Court requiring the production of documents on 8 July 2016 and to documents subsequently produced by the CBA. He refers to the production of documents by the CBA in August 2016 and his concern, upon receiving those files, that production was inadequate. He gives evidence that he instructed his then solicitors to address the deficiencies. A dispute as to the question of any outstanding discovery appears to have continued for two months up to trial. He also states that a number of documents that were not produced in discovery nevertheless appeared in the court book prepared by the CBA for the purpose of the Supreme Court Proceedings. Included in his evidence is reference to affidavits of two former BankWest employees, Youssef Chahine and Frank Hageali dated 5 October and 20 October 2016 respectively, who depose to the absence of documents from the produced files. On the first day of the trial, according to Mr Rafidi, senior counsel for Mr Rafidi and BBC raised these matters with the court and questioned the authenticity and completeness of the discovery. Mr Rafidi gives evidence that these matters were ventilated before the trial judge and that Mr Rafidi’s counsel and solicitors were aware of them.

[39]    In his second affidavit, Mr Rafidi seeks further to support his allegation of a systematic destruction of documents by asserting that discovery given by the CBA in other proceedings, unrelated to the Supreme Court Proceedings and involving different parties, was inadequate. In this regard he refers to evidence given by a bank officer in a case he describes as “David James Bone v The Commonwealth Bank of Australia”, and also to statements that he asserts were made by individuals at what he describes as the Senate Economics Committee Estimates Hearing in May 2017.

…

[51]    … Senior counsel for Mr Rafidi was plainly aware of the complaints, having raised them on the first day of the trial and having read affidavit evidence from Mr Hageali, including his affidavit of 20 October 2016. Mr Rafidi was plainly aware of the consequences flowing from the cross-examination of Mr Hagaeli, an event that appears to have led to: an adjournment request; the provision of advice to Mr Rafidi as to its ramifications; the cessation of the retainer of his legal advisors; and the settlement of the Supreme Court Proceedings. These matters provide support for the view expressed by Ball J in the Consent Orders judgment and set out above at [32] to [33]. In my view, the materials advanced by Mr Rafidi, when considered in context, do not support the contention that there was somehow a miscarriage in the conduct of the trial, or misconduct on the part of the CBA during that trial Mr Rafidi’s ability to provide his consent to the judgment order [sic].

41    His Honour did not make a specific finding as to whether there was a deficiency in the Bank’s production of documents in the Supreme Court trial. Rather, the primary judge proceeded on the basis that there was a dispute about the adequacy of the Bank’s document production prior to the trial and a complaint about the Bank’s document production at the trial on Mr Rafidi’s behalf.

42    His Honour also did not make a finding about the impact of any failure in the production of documents on Mr Rafidi’s capacity to prosecute his case.

43    Mr Rafidi’s affidavit evidence included a section entitled “Loss of the BBC files from the Bank’s possession and control and the placement of fraudulent documents in the Court Book”. The evidence includes an allegation by Mr Rafidi that “because of the production of an incomplete file in the trial proceedings by the CBA, that the trial proceeded on a basis that was not fair to me and in which I was left to prosecute my action on the basis of the best evidence that I could otherwise muster, where the whole of the Bank file was not put forward”.

44    Without more, Mr Rafidi has not demonstrated that the primary judge was required to make the findings contended for in order to address his ultimate factual contention that his consent to the judgment was vitiated. In particular, the evidence relied upon by Mr Rafidi did not include evidence of documents that existed but that were withheld from him prior to the consent judgment. In those circumstances, the primary judge was not required to find that the Bank failed to provide proper and adequate disclosure of his customer file in the Supreme Court proceeding. Further, there was no basis upon which the primary judge could have found that any such failure had an adverse effect on Mr Rafidi’s capacity to prosecute his case.

Fourth proposed finding: Bank employed a forged document at trial

45    The fourth proposed finding was that a document employed by the Bank at the trial was a forgery. The relevant document was said to have stated, in effect, that Mr Rafidi ought to be declined a facility.

46    The primary judge gave the following reasons concerning this proposed finding (at [40] and [52]):

[40]    The fourth contention advanced is that a document introduced by the CBA into the court book prior to the commencement of the trial was a forgery. In his second affidavit, Mr Rafidi refers to documents that he contends were forged. One may infer that his allegation is that they were forged by or on behalf of the CBA. Mr Rafidi exhibits two documents entitled “Pre-Settlement Survey” dated 11 July 2008 that he contends express different views as to the single debt limits for BBC – one with 25% and another with 40%. There are other differences. Mr Rafidi asserts in his affidavit evidence that because of these differences, the document that is less favourable to BBC must be a forgery and that the entirety of the discovery given by the CBA must be compromised.

…

[52]    … The time to test the veracity of the documents was at trial. The materials presented by Mr Rafidi in his evidence do not permit the conclusion that either of the two documents was, as he labels it, a forgery. Mr Rafidi’s own evidence confirms that senior counsel was apprised of the concerns that he expressed in relation to the “pre-settlement survey” on the first day of the trial. Further, in my view, the affidavit evidence of Mr Rafidi does not rise above mere assertion. If one accepts that two documents bearing the same title and the same date exist, and that each has different content, these facts alone do not establish that either is a forgery. Nor do they indicate, without more, that the one that Mr Rafidi contends was less favourable to BBC was a forgery. According to the evidence of Mr Rafidi, the less favourable document was annexed to an affidavit of Mr Owen McDonald, who was apparently an officer of the CBA during the relevant period. Mr McDonald’s affidavit is not in evidence, but one may infer that he deposed to the authenticity of that document. The evidence advanced by Mr Rafidi in the present application falls well short of permitting a conclusion to the standard required in an application such as the present that the CBA (or BankWest) was responsible for falsifying such a document.

47    The primary judge was correct to conclude that the evidence did not permit him to make the finding contended for by Mr Rafidi, for the reasons given by his Honour. On the appeal, Mr Rafidi did not point to any evidence to the contrary.

Conclusion

48    The primary judge did not err in failing to make any of the factual findings contended for by Mr Rafidi.

49    It follows that the primary judge also did not err in failing to find that Mr Rafidi’s consent to the judgment was vitiated by reason of the facts upon which he seeks to rely.

50    For completeness, we note that, even had the primary judge been required to make the five findings contended for, those findings did not require the primary judge to conclude that Mr Rafidi’s consent to the Supreme Court judgment was defective in any way. In particular, none of them is inconsistent with the primary judge’s finding that Mr Rafidi consented effectively to the judgment because he recognised that his prospects of defending the Supreme Court proceeding were poor.

Facts said to demonstrate that consent judgment does not evidence a just and true debt

51    Mr Rafidi’s contention is that the primary judge was required to find that the consent judgment was not a “proper judgment for the purposes of bankruptcy, in that it did not evidence a just and true debt (for the purposes of bankruptcy)” where the evidence established the six matters identified below.

52    At the outset, we note that, in considering the application to set aside the bankruptcy notice, the primary judge was not required to satisfy himself that the judgment evidenced a “just and true debt”. His Honour was only required to consider whether the circumstances of the consent judgment warranted a conclusion that the bankruptcy notice should be set aside in order to give effect to the Act in this case.

First matter: 14 January 2009 letter was not a forgery

53    Mr Rafidi’s evidence included the assertion that Bankwest agreed to advance money to a company of which he was a director as evidenced by the 14 January 2009 letter.

54    However, the evidence before the primary judge also included the fact that the Bank had alleged that the document was a forgery, and the written particulars of that allegation. Contrary to Mr Hall’s submission, the Bank’s failure to lead positive evidence concerning the authenticity of the 14 January 2009 letter did not require a conclusion by the primary judge that the letter was authentic, because there was no onus on the Bank to prove that fact.

55    In any event, in oral submissions, Mr Hall conceded that the primary judge did not have to decide whether the 14 January 2009 letter was genuine or not.

Second, third, fourth and fifth matters

56    These matters are addressed above. In short, they are the contentions that the Bank’s senior counsel cross-examined Mr Rafidi unfairly; that the Bank had not provided proper and adequate disclosure of Mr Rafidi’s banking/customer file; that the Bank had employed a forged document in evidence in the Supreme Court proceeding and that the Bank had propounded an inadequate fraud pleading.

57    As explained above, the evidence did not permit findings to the effect contended for in relation to the second, third and fourth matters. As to the fifth, it is self-evident that the inauthenticity submission is not a “fraud pleading”, however, the primary judge was not required to make a finding to that effect in order to decide whether to set aside the bankruptcy notice.

Sixth matter: Mr Rafidi consented to judgment in the Supreme Court proceeding “as a part of the court record in that action” for reasons connected to a litigation insurance policy, together with other considerations of Mr Rafidi to the effect that he would not receive a fair trial

58    As noted above, the primary judge found, in effect, that Mr Rafidi consented to judgment against him because it was apparent that his prospects of success were poor, notwithstanding Mr Rafidi’s affidavit evidence as to his different reasons for that consent.

59    This is not the kind of evidence which the primary judge was required to accept. It was evidence about Mr Rafidi’s motivations, which was open to be evaluated by reference to the circumstances in which Mr Rafidi’s consent was given and the different reason (to give him an opportunity to clear his name in light of the application for the Court to refer the papers to the authorities) given by Mr Rafidi on his application to set aside the consent judgment.

60    Mr Hall submitted that, as a matter of fairness, Mr Rafidi was entitled to an opportunity to address any basis upon which his affidavit evidence might be disbelieved. However, Mr Rafidi’s evidence on this point was not disbelieved. Rather, the primary judge found that the evidence did not detract from the finding of Ball J to the effect that Mr Rafidi consented having concluded that his prospects of success were poor.

Conclusion

61    The primary judge did not err in failing to find that the consent judgment did not evidence a “just and true” debt. Nor did his Honour err in failing to make findings about any of the matters said to support such a finding.

Conclusion

62    For the reasons set out above, the appeal must be dismissed.

63    It is unnecessary to address the Bank’s notice of contention.

64    Costs should follow the event.

Associate:

Dated:    2 March 2020