FEDERAL COURT OF AUSTRALIA

Hahnheuser v WorkCover Corporation of South Australia [2001] FCA 1730

AXEL HAHNHEUSER v WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Q 174 OF 2001

DOWSETT J

12 NOVEMBER 2001

BRISBANE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     In this appeal the appellant seeks to ventilate questions arising out of the validity or otherwise of the bankruptcy notice relied upon in the making of a sequestration order against him.  He complains that it does not claim the amount of an order for costs as part of the judgment notwithstanding the fact that the costs had been fixed and the allocatus issued as at the time of the bankruptcy notice.  He also complains that the notice does not set out the basis for calculation of the interest as discussed in cases such as Kirk v Ashdown [1999] FCA 1664 and Bendigo Bank Ltd v Scerri [1999] FCA 1215 and more recently by a specially constituted Full Court in Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915.

2                     As to the first point, some support for the appellant’s case is to be found in the decision of re Schierholter ex parte Geis (1978) 32 FLR 22.  However, as has been pointed out by counsel for the respondent, the form of bankruptcy notice now in use makes provision for a distinction between any order for costs and the amount of the substantive judgment.  This may mean that Schierholter is no longer good law, particularly considering the observations made at pp 28-30.

3                     As to the second point, different attitudes have been taken by various members of the Court.  For present purposes, were I to consider the matter, I would consider myself bound by the decision of the specially constituted Full Court in Australian Steel.  Special leave has, as I understand it, been granted by the High Court in Kirk v Ashdown, and so a final resolution of the issue must await the outcome in that case.  It seems to me, however, that these points should not be raised now.  The present appellant delivered a notice of intention to oppose the petition on 29 September 2000, setting out the various grounds upon which he proposed to rely.  None of those included any challenge to the validity of the bankruptcy notice.  In the Federal Magistrate’s reasons at par 8 his Honour noted only that the bankruptcy notice complied with the requirements of s 41 of the Bankruptcy Act 1966 (Cth) (the “Act”).  It therefore seems that its validity was not a live issue.  The petition was heard early this year and the judgment was delivered in July.  Had the present respondent been aware that the point was to be taken either at the time of judgment or when the point was argued, it could have served another bankruptcy notice.  It will therefore suffer prejudice if the point is now raised successfully. 

4                     Both Schierholter and the Bendigo Bank line of cases concern the possibility that the judgment debtor will be misled.  Had the present appellant been misled in any way, it is reasonable to infer that he would have raised the point at the time.  The fact that he did not do so suggests that he was not misled.  In those circumstances it would seem to me to be grossly unjust to the respondent to enable the point to be raised at this stage.  I decline to permit that to occur.

Associate:

Dated:              12 November 2001