FEDERAL COURT OF AUSTRALIA

Rasevi Pty Limited v Udowenko, in the matter of Udowenko [2003] FCA 400

PRACTICE & PROCEDURE –whether reasonable apprehension of bias by reason of prejudgment – application for introduction of fresh evidence on appeal – whether an acceptable explanation given for the failure to raise the further evidence at first instance.

Federal Court of Australia Act 1976 (Cth) s 35A(6)

Federal Court Rules O 10 r 3, O 35 r 7(2)(a), O 52 r 10, O 52 r 36

Re Udowenko; ex parte Mitchell (1995) 69 FCR 299 discussed

Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 applied

Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721 applied

R v Watson; Ex parte Armstrong (1976) 136 CLR 248 cited

Udovenko v Mitchell (1997) 79 FCR 418 referred to

Jones v Dunkel (1959) 101 CLR 298 applied

Payne v Parker [1976] 1 NSWLR 191 at 201 cited

Re Kwiatek and Kwiatek; ex parte Big J Ltd v Pattison (1989) 21 FCR 374 referred to

Livesey v NSW Bar Association (1983) 151 CLR 288 followed

Bienstein v Bienstein (2003) 195 ALR 225 cited

Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 followed

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 followed

Dudzinski v Centrelink [2003] FCA 308 referred to

A1 and Anor v Betty King QC and Ors [1996] FCA 436 referred to

IN THE MATTER OF WOLODYMYR UDOWENKO, MICHAEL UDOWENKO & HELEN UDOWENKO

RASEVI PTY LIMITED (ACN 002 579 286) V MICHAEL UDOWENKO & HELEN UDOWENKO

N 7060 OF 2002

JACOBSON J

2 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  the application for leave to appeal from the judgment of Lindgren J given on 7 February 2003 is refused.

2.                  Helen Udowenko and Michael Udowenko to pay Rasevi Pty Limited’s costs of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an application for leave to appeal from a judgment of Lindgren J given on 7 February 2003 dismissing a motion to set aside an order made by Moore J on 12 November 2002 dismissing a motion on the non-appearance of Mr and Mrs Udowenko.  The motion before Moore J was for the review of a sequestration order made by Registrar Hedge on 23 July 2002 against the estate of Michael Udowenko (“Mr Udowenko”) and Helen Udowenko (“Mrs Udowenko”).  I will refer to Mr Udowenko and Mrs Udowenko collectively as “Mr and Mrs Udowenko”. 

2                     There were two grounds of review before his Honour.  The first was that the judgment on which the bankruptcy notice had been founded was fraudulently obtained.  The second was that the bankruptcy notice had not been served on Mr and Mrs Udowenko.  His Honour found against Mr and Mrs Udowenko on both points.

3                     Until the morning of the hearing of this application, the only ground on which leave to appeal was sought was that fresh evidence had been obtained that the bankruptcy notice had not been served on Mr and Mrs Udowenko.

4                     However, on the morning of 7 April 2003, counsel for Mr and Mrs Udowenko added a further ground.  This was that, although no personal criticism was made of Lindgren J, his Honour had forgotten the existence of earlier proceedings entitled Re Udowenko; ex parte Mitchell (1995) 69 FCR 299 (“Ex parte Mitchell”), in which his Honour had decided what was said to be a similar issue adversely to Mr and Mrs Udowenko.  Thus, it was said that his Honour ought to have disclosed his decision in the earlier proceedings.  Moreover, it was said that, on the test of the impartial observer, there was a reasonable apprehension of bias and his Honour ought to have disqualified himself.

5                     The issues which arise on the application for leave to appeal are three-fold.  The first issue is whether the further evidence satisfies the test stated by Dixon CJ in Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 at 444.  That is to say, if the evidence had been adduced before Lindgren J, would an opposite result have been produced?

6                     The second issue is whether the provisions of O 52 r 36 of the Federal Court Rules have been complied with.  This rule requires that an acceptable explanation must be given for the failure to raise the further evidence at first instance; see Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721 (“Fodare”) at [6] – [7] per Lehane, Hely and Conti JJ.

7                     The third issue is whether the questions which arose in the earlier proceedings of Ex parte Mitchell were such as to require his Honour to disqualify himself within the test stated in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 (“Ex parte Armstrong”) and more recent authorities. 

8                     The further evidence is an affidavit of Senior Constable Craig Sutton sworn 24 March 2003.  The effect of his evidence is that the bankruptcy notice was served on a middle-aged male person who, by inference is said to be Mr and Mrs Udowenko’s son, Wolodymyr (“Wolodymyr”).

9                     I will refer below to the question of whether this evidence, if accepted, would establish that the bankruptcy notice was not served on Mr and Mrs Udowenko.

10                  However, before dealing with that question, a real issue arises as to whether any explanation has been given for the failure of Mr and Mrs Udowenko to raise the evidence before Lindgren J.

11                  Counsel for Mr and Mrs Udowenko submitted that the evidence was unknown to Mr and Mrs Udowenko at the time of the hearing.   Counsel relied upon the fact that Mr and Mrs Udowenko are elderly, being in their 80s, and that until 28 February 2003, on which date the notice of motion seeking leave to appeal was filed by the solicitors now acting for Mr and Mrs Udowenko, they were entirely reliant upon Wolodymyr for assistance in the preparation and conduct of these proceedings.

12                  Mrs Udowenko did not appear before his Honour due to ill health but Mr Udowenko appeared in person. He was assisted by an interpreter.  With his Honour’s leave, Wolodymyr sat at the bar table with his father.

13                  It was plain on the evidence before me that the affidavits of Mr and Mrs Udowenko in support of the application before Lindgren J were prepared by Wolodymyr.  Those affidavits put in issue not only the judgment on which the bankruptcy notice was founded but also the question of service.

14                  The bankruptcy notice was founded upon a judgment given by Bryson J in the Equity Division of the Supreme Court for $2,758 in 1992.  With interest and costs, including costs of unsuccessful applications and appeals, the debt the subject of the bankruptcy notice issued in 2001 had grown to more than $40,000.

15                  Counsel for Mr and Mrs Udowenko put to me that from 1992 to 28 February 2003, Wolodymyr had embarked upon a “crusade” to set aside the judgment of Bryson J.  He submitted that Wolodymyr acted in his own interests and without considering the effect of his actions upon his parents.  He said it was not until the solicitors for Mr and Mrs Udowenko were appointed in February 2003 that there was, for the first time, a separation of the interests of Wolodymyr and Mr and Mrs Udowenko.

16                  In substance, counsel’s submission was that the explanation for the failure to adduce the evidence of Senior Constable Sutton was that Mr Udowenko was not aware that the bankruptcy notice had been served on Wolodymyr, that it was unreasonable for
Mr Udowenko as an elderly litigant in person with limited English to have to raise the matter with his son at the bar table and, in any event, Wolodymyr was concerned not so much with the service issue but with his deep-seated desire to set aside the judgment of Bryson J.

17                  The case which counsel for Mr and Mrs Udowenko put to me was, in effect, that Wolodymyr’s “crusade” against the judgment of Bryson J infected the way in which the proceedings were conducted before Lindgren J.  To make good this proposition, Mr and Mrs Udowenko’s counsel took me in great detail through the background of the various proceedings and applications from 1992 to demonstrate Wolodymyr’s involvement and his purpose.

18                  Some of this background is referred to in the judgment of Lindgren J.  However, it is necessary for me to trace the history of the various proceedings and of this notice of motion. 

The history of the proceedings

19                  On 12 March 1992, Bryson J gave judgment for Rasevi Pty Limited (“Rasevi”) for $2758.  Orders for costs were made on 8 April 1992 under which Rasevi was awarded costs on a reduced scale.  The costs order was of some significance because the hearing occupied two days.

20                  The defendants in the proceedings before Bryson J were Mr and Mrs Udowenko, Wolodymyr and another son of Mr and Mrs Udowenko, Valentyn Udowenko (“Valentyn”).

21                  On 10 December 1992, Mr and Mrs Udowenko and Valentyn applied for an order setting aside the judgments for the money sum and costs which had been entered against them.  No such application was made by Wolodymyr.  The application was heard by Waddell CJ in Eq on 23 February, 16 and 17 March 1993.

22                  The case which Mr and Mrs Udowenko and Valentyn sought to make before Waddell CJ in Eq was that the summons had not been served on any of them personally and that they were not represented at the trial by Mr Mitchell who was the solicitor who had appeared for Wolodymyr.

23                  Waddell CJ noted at page 4 of his Honour’s judgment which was delivered on 15 April 1993, that both Mr and Mrs Udowenko were cross-examined on their affidavits, their evidence being given through an interpreter.  His Honour observed that it was clear that they each understood a number of questions before interpretation.  He noted that in some cases questions were answered before interpretation.  His Honour also said that when each of them sat at the back of the Court and only English was being spoken, their facial gestures also indicated an understanding of what was being said.  His Honour said (at 4):-

“It is to be concluded that each had some knowledge of and capacity to respond in English, although I do not doubt that it was reasonable for them to give their evidence through an interpreter.”

24                  Waddell CJ in Eq found that evidence which was given before him by Wolodymyr to the effect that Wolodymyr alone was represented by Mr Mitchell could not be accepted and he said that this assertion by Wolodymyr had to be regarded as severely damaging his credibility.

25                  Evidence was given by a process server of the service of the originating process.  Although his Honour found that there were some unsatisfactory aspects of the process server’s evidence, his account of what happened when he went to the property known as “Windarra” to serve the summons was substantially correct.  Accordingly, his Honour found (at 10) that Mr and Mrs Udowenko were personally served with the summons.

26                  The application which was made before Waddell CJ was an application under Part 40 rule 9(2)(a) of the Rules of the Supreme Court of New South Wales which provides that the Court may set aside a judgment “in the absence of a party”.  This issue turned on whether Mr and Mrs Udowenko were represented at the trial by Mr Mitchell.  His Honour found (at 12) that it was to be inferred that instructions were given by Wolodymyr to Mr Mitchell on behalf of himself and Mr and Mrs Udowenko.  He said that it should be inferred that they authorised Wolodymyr to defend the proceedings on their behalf as he saw fit.  Thus, his Honour found (at 13) that it could not be said that the trial before Bryson J was held in the absence of Mr and Mrs Udowenko.

27                  His Honour therefore ordered (at 14) that the application by Mr and Mrs Udowenko to set aside the judgment should be dismissed.  However, his Honour found (at 13-14) that Valentyn had not been served personally and that the judgment against him should be set aside.

28                  An appeal from the decision of Bryson J was heard by the New South Wales Court of Appeal.  Judgment of the Court of Appeal was delivered by Abadee AJA on 3 September 1996.  The appeal was dismissed.

29                  In October 1996, Lindgren J heard the application in Ex parte Mitchell.  In those proceedings, Mr and Mrs Udowenko and Wolodymyr sought an extension of time to comply with a bankruptcy notice issued in favour of Mr Mitchell in December 1995.  The bankruptcy notice was founded on a judgment debt of approx $25,000 obtained by Mr Mitchell in the Dungog Local Court (“the Dungog proceedings”) for his fees for acting in the proceedings before Bryson J.

30                  Lindgren J (at 300-303) set out in some detail the history of the proceedings commencing with the judgment of Bryson J and the decision of Waddell CJ in Eq as well as the details of Mr Mitchell’s efforts to obtain payment of his legal fees for the defence of the proceedings in the Equity Division.

31                  On 19 December 1995, Mr Mitchell had procured the issue of a bankruptcy notice
No NN4014/95.  A number of applications were made to the Court.  In May 1996, a Registrar ordered that time for compliance with the bankruptcy notice be extended to 4 June 1996.  However, on that date a Registrar of the Court dismissed the application to set aside the bankruptcy notice.

32                  On 12 July 1996, Mr Mitchell filed a creditor’s petition.  The hearing of the petition was adjourned on a number of occasions.  On 12 September 1996, approximately nine days after the New South Wales Court of Appeal dismissed the appeal against the judgment of Bryson J, Mr and Mrs Udowenko and Wolodymyr filed a motion at Dungog Local Court to set aside the judgment which had been obtained in the Dungog proceedings.  The supporting affidavit asserted that Mr and Mrs Udowenko were not aware of Mr Mitchell’s claim against them in the Dungog proceedings as Wolodymyr had not advised them of it because he considered the debt was not related to them and he did not wish to worry them.

33                  Lindgren J’s reasons for judgment were set out at 303-304.  His Honour held that it is a condition of the existence of the power to extend time for compliance with a bankruptcy notice that, prior to the expiration of the time for compliance, a proceeding to set aside the judgment on which the bankruptcy notice is founded has been instituted.

34                  Thus, his Honour held (at 304) that there was no power to extend time for compliance because the application to set aside the judgment in the Dungog Local Court was not instituted until approximately three months after the date for compliance with the bankruptcy notice.

35                  His Honour went on to state that, if he had power to extend time, as an exercise of discretion he would not have done so.  He said (at 304):-

“The substantive grounds relied on appear to be that Michael and Helen had nothing to do with the defence before Bryson J of the proceeding brought by Rasevi against them and their two sons.  But Michael and Helen failed in their application to Waddell CJ in Eq to set aside the judgment given by Bryson J.  As well, the Debtors' application to set aside the judgment in the Dungog proceeding was dismissed on 2 October 1996.  Any challenge to the validity of the bankruptcy notice can be explored on the hearing of the creditor's petition.  I will, however, hear the Debtors on this matter (see below).”

36                  The hearing of the petition came on before Lindgren J on 19 February 1997.  On that date, his Honour made a sequestration order against the estates of Mr and Mrs Udowenko and Wolodymyr.  However, on 28 November 1997, a Full Court (Davies, Foster and Carr JJ) allowed an appeal from his Honour’s judgment and set aside the sequestration order.  The ground upon which the sequestration order was set aside was that Mr Mitchell had not given to his client a bill of costs in accordance with s 192 of the Legal Profession Act 1987 (NSW) and, accordingly, there was no debt payable either immediately or at a certain future time in accordance with s 44(1)(b) of the Bankruptcy Act 1966 (Cth); see Udovenko (sic) v Mitchell (1997) 79 FCR 418.

37                  On 9 October 2001, the Official Receiver issued a bankruptcy notice No NN 2448/01 against Mr and Mrs Udowenko and Wolodymyr.  According to affidavits filed by a process server, Mr Adrian Hogan, the bankruptcy notice was served on Mr and Mrs Udowenko on 17 November 2001.  The Court file also includes an affidavit of service sworn 12 November 2001 by Mr Wayne Peter Telley in which he deposes to service of the bankruptcy notice on Wolodymyr on 7 November 2001. 

38                  On 20 November 2001, Wolodymyr filed an application on behalf of his parents and himself to set aside bankruptcy notice No NN 2448 of 2001.  The application states that the bankruptcy notice was served on Wolodymyr on 7 November 2001.

39                  The application was supported by an affidavit filed by Wolodymyr.  The affidavit was sworn on 19 November 2001 and filed on 20 November 2001.  The affidavit states that Wolodymyr was served with bankruptcy notice No NN 2448/01 on 7 and 17 November 2001.  The ground specified in the affidavit was that the judgment of Bryson J was procured by perjured evidence given by Mr Jones, a director of Rasevi.

40                  The application came on for hearing before Wilcox J on 11 December 2001.  Wolodymyr appeared for his parents on the application.  In the course of argument, his Honour referred to the judgment of Bryson J.  His Honour also referred to the fact that the matter had gone to the Court of Appeal of New South Wales which had affirmed Bryson J’s judgment.  Wilcox J made the following statement to Wolodymyr:-

“You have got two choices.  You can either say, well I don’t think it is right but I will pay the money and avoid going bankrupt.  Or you can say, no I won’t pay it and you can go bankrupt and you can give yourself a lot of trouble and perhaps more importantly give your parents a lot of trouble simply because you won’t accept it.  Sometimes people make that choice.  Frankly, it is not a very sensible choice.”

41                  Wilcox J refused the application to set aside the bankruptcy notice but he extended time for compliance with it until 24 December 2001. 

The sequestration order and the motion to “strike it out”

42                  The sequestration orders made by Registrar Hedge on 23 July 2002 were against the estates of Mr and Mrs Udowenko only.  No order was made against Wolodymyr even though the bankruptcy notice was apparently served on him.

43                  Wolodymyr seems to have been unaware that a sequestration order was not made against him personally because, on 15 August 2002, he filed a notice of motion seeking orders that the sequestration orders made by Registrar Hedge be “struck out”.  The notice of motion was signed by Wolodymyr personally and under a Power of Attorney for his parents.

44                  The notice of motion was supported by an affidavit filed by Wolodymyr and affirmed by him.  The affidavit states that no petition documents were served on Mr and Mrs Udowenko or Wolodymyr.  The affidavit also states that all “three respondents” reside at the same address at “Windarra”, Gresford Road, Vacy.  The affidavit assumes incorrectly that a sequestration order was made against Wolodymyr.

45                  The notice of motion was returnable on 27 August 2002.  On that date, a further affidavit of Wolodymyr was filed.  The affidavit stated that the judgment relied upon by the petitioning creditor was derived by fraud, collusion and miscarriage of justice.  The matter came on before the Registrar on 27 August 2002 but it was stood over to 10 September 2002, again before the Registrar.

46                  On 27 August 2002, Wolodymyr filed a further notice of motion which sought an order that Registrar Hedge’s orders “be reviewed and struck out”.

47                  The motion came on me before me as Duty Judge on 10 September 2002.  I stood it over before the Duty Judge on 26 September 2002. 

48                  On 12 September 2002, Rasevi filed a notice of motion seeking an order that the application for review of Registrar Hedge’s orders be dismissed upon the ground that Wolodymyr had no standing to bring any application on behalf of Mr and Mrs Udowenko.

49                  On 26 September 2002, the motions came on before Moore J.  His Honour stood the motions over to 12 November 2002 before himself for directions. 

50                  Mr and Mrs Udowenko did not appear before Moore J on 12 November 2002.  Nor did Wolodymyr seek to appear on their behalves.  Moore J dismissed the motions under O 10 r 3.

51                  On 10 December 2002, Wolodymyr filed a further notice of motion seeking an order that the orders made by Moore J on 12 November 2002 be set aside.  The motion also sought an order that the proceedings be adjourned until the outcome of an application for legal aid.

52                  The motion was supported by an affidavit sworn by Wolodymyr on 10 December 2002.  The affidavit states, inter alia, that Wolodymyr arrived at Court on 12 November 2002 at 9:40 am after the matter had already been dealt with. 

53                  The affidavit annexed statements apparently signed by Mr and Mrs Udowenko.  The statements were in almost identical terms. They stated that Mr and Mrs Udowenko were not present at or represented in the proceedings before Bryson J.  They state that they were never given the opportunity to rebut “the false evidence” submitted by Rasevi in those proceedings.

54                  In addition, each of the statements of Mr and Mrs Udowenko said in identical terms that they had never been served with any bankruptcy notice or creditor’s petition in these proceedings.

55                  A supplementary affidavit was affirmed by Mr and Mrs Udowenko on 22 January 2003.  It was filed on 23 January 2003.  The affidavit includes the following statement:-

“[O]n 17 November 2001, we did not receive a Bankruptcy Notice as ‘alleged’ and deny ever meeting with or speaking to the Commercial Sub-agent, Adrian Hogan, at 11 am or thereabouts as ‘alleged’ by the Commercial Sub-agent in documents filed in this Court.  We also never received the Creditor’s Petition as ‘alleged’.”

56                  This statement was apparently made in response to two affidavits of service sworn on 20 November 2001 by Mr Hogan who deposes to the service of the bankruptcy notice on Mr and Mrs Udowenko.

57                  In the affidavits of service, Mr Hogan deposed to service of the bankruptcy notice on Mr and Mrs Udowenko at 11:15 am on 17 November 2001. 

The Judgment of Lindgren J

58                  The notice of motion filed on 10 December 2002 came on for hearing before
Lindgren J on 5 February 2003.  In paras [1] – [5] of the judgment, his Honour referred to the sequestration order made by Registrar Hedge and the various notices of motion seeking to have the orders “struck out”.  His Honour also referred to the order made by Moore J on 12 November 2002 dismissing the notices of motion for want of appearance pursuant to O 10 r 3.  His Honour recorded at para [5] that legal aid had been refused and that an appeal to the Legal Aid Commission was determined adversely to Mr and Mr Udowenko.

59                  His Honour noted at [6] that Mr Udowenko was unrepresented on the hearing of the motion but that his Honour gave leave to Wolodymyr to sit at the bar table with
Mr Udowenko.  His Honour also noted at [6] that Mrs Udowenko had notified the Court that she did not intend to appear at the hearing because of ill health.  However, his Honour pointed out that Mr Udowenko was anxious for the hearing to proceed and that Mrs Udowenko did not seek an adjournment.

60                  His Honour observed at [7] that Mr Udowenko relied on four affidavits which I have referred to above, namely the affidavits of Wolodymyr sworn 15 August 2002, 27 August 2002 and 10 December 2002, together with the supplementary affidavit of Mr and Mrs Udowenko sworn 22 January 2003.

61                  His Honour stated at [9] that he had read six judgments concerning the dispute.  They included the judgments of Bryson J, Waddell CJ in Eq and the Court of Appeal to which I have referred above.  The other three judgments comprised a later judgment of Bryson J and two other judgments of the New South Wales Court of Appeal.

62                  His Honour stated at [11] and [12] that, having considered carefully the judgments of the Supreme Court, no sufficient cause was shown to go behind the judgment of Bryson J.

63                  In relation to the issue of service of the bankruptcy notice, his Honour referred at [13] to Mr Udowenko’s unsworn statement that the notice had not been served on him.  His Honour then recorded that he had permitted Mr Udowenko to go into the witness box to affirm the statement annexed to Wolodymyr’s affidavit of 10 December 2002 and that Mr Udowenko denied having been served with “anydocuments related to Rasevi.”  This evidence prompted counsel for Rasevi to read the affidavit of service of Mr Hogan.

64                  Mr Hogan was made available for cross-examination by telephone.  Mr Udowenko attempted to cross-examine him.  The transcript records that Mr Udowenko made a number of statements to Mr Hogan that he had never seen him.  However, his Honour then asked a number of questions of Mr Hogan.  As his Honour observed at [14], Mr Hogan described the property “Windarra” or at least the gate and the sign leading on to it.  Mr Hogan said that when he attended the property on 17 November 2001, he first had a discussion with Wolodymyr and that the two of them went to the house where he served Mr and Mrs Udowenko with the bankruptcy notice.

65                  His Honour asked Mr Hogan to describe Mr and Mrs Udowenko and Wolodymyr.  His Honour was satisfied that the descriptions were reasonably accurate.

66                  His Honour noted that, following the hearing, Wolodymyr forwarded to his Honour’s chambers several documents seeking to supplement the evidence.  His Honour stated at [16] that he did not propose to admit the documents into evidence because they were generally irrelevant or, to the extent to which they were relevant, they were not persuasive. 

67                  His Honour’s reasons concluded with the following paragraphs:-

“It is not irrelevant to mention that, in the Supreme Court proceedings, Mr and Mrs Udowenko denied that they had been served with the summons which was before Bryson J.  In that proceeding also, the process server’s affidavit was called into question and the process server was cross-examined.  
Bryson J accepted the process server’s testimony.

Of course, it is not for that reason that I also accept the process server’s testimony in the present case, but it does seem appropriate to record that Mr Udowenko seems to have a propensity for making sweeping denials of having received documents without, as I find, a careful regard to the facts relating to any particular document.”

Evidence in Support of Application for Leave to Appeal

68                  The application was supported by affidavits sworn on 31 March 2003 by Mr and Mrs Udowenko.  The affidavits were in similar terms.

69                  Each of Mr and Mrs Udowenko’s affidavits stated that the first time that anyone said anything to him or to her about a bankruptcy notice was on or about 10 December 2002 when Wolodymyr showed them a document and explained it to them.  The document was the unsworn statement to which I referred at [53] above in which each Mr and Mrs Udowenko stated that they had not received the bankruptcy notice. 

70                  Each of the affidavits deposes in identical terms as follows:-

“The first time I became aware that Senior Constable Sutton attended the property with Mr Hogan was on or about 18 February 2003 when my son said to my husband words to the following effect:

            ‘In court Mr Hogan said he gave you a document and the judge believed him, even though you said that you had not received that document.  A policeman also came onto the property with Mr Hogan and I have contacted him so that he can tell the judge that Mr Hogan did not give any documents to you.’”

71                  An affidavit sworn on 24 March 2003 by Senior Constable Craig Sutton of the Dungog Police Station was tendered.  The affidavit was not read because it is the further evidence which Mr and Mrs Udowenko wished to adduce.

72                  Senior Constable Sutton swears in his affidavit that, on 17 November 2002, he received a telephone call from a male person who asked Constable Sutton to accompany him to a property at Gresford Road, Vacy, to keep the peace while he served a bankruptcy notice.  Senior Constable Sutton swears that he met the person at the property.

“I then accompanied the Server onto the Gresford Property and walked a couple of hundred metres down the driveway alongside the Server towards the front door of the house on the property.  As we were walking down the driveway, a middle-aged male met us.  I stood back and did not hear the conversation which ensued between those two persons, however, I saw that the male person I had accompanied handed over a document to the other person.  I then accompanied the Server off the property and drove off at about the same time as the Server.” (at para [4])

73                  The penultimum paragraph of the affidavit states that on 14 March 2003 “Wolodyr” (sic) attended the Dungog Police Station and presented himself and identification papers to Senior Constable Sutton, who recognised him as the male person described above in para [4] of his affidavit.  The final paragraph describes that on the 19 March 2003 Mr & Mrs Udowenko likewise presented themselves and identification papers to Senior Constable Sutton who swears that he had never seen the couple before that date, nor had he ever seen a bankruptcy notice served on them.

Decision on Further Evidence

74                  Having considered the extensive history of the proceedings and having seen and heard Mr and Mrs Udowenko in the witness box, I am satisfied that to admit the evidence of Senior Constable Sutton would contravene the provisions of O 52 r 36 of the Federal Court Rules.

75                  The decision of the Full Court in Fodare makes it plain that there are two essential prerequisites for the admission of such evidence.  First, there must be an explanation of why the evidence was not led at the hearing.  Second, the explanation must be “acceptable” to the Court.

76                  Here, there is simply no evidence before me as to how Mr and Mrs Udowenko or Wolodymyr or their advisers came to find out that Senior Constable Sutton had accompanied the process server to the property.  Nor is there any evidence of the steps taken by or on behalf of Mr and Mrs Udowenko to obtain Senior Constable Sutton’s evidence.  All that is before me is hearsay evidence that Wolodymyr told Mr and Mrs Udowenko on 18 February 2003 that a policeman had accompanied Mr Hogan onto the property.

77                  Without evidence of how Mr and Mrs Udowenko or Wolodymyr found out about Senior Constable Sutton, the first prerequisite referred to in Fodare is not satisified because I would need to be apprised of those facts to know why the evidence was not available on 5 February 2003.  It follows that I have no evidence to enable me to determine the second prerequisite, namely whether there is any acceptable explanation. 

78                  Put another way, the evidence before me does not enable me to find that the evidence of Senior Constable Sutton could not have been available on 5 February 2003 with reasonable diligence; see Wollongong Council v Cowan at 444, per Dixon CJ.

79                  I have taken into account the submissions put to me by counsel for Mr and Mrs Udowenko.  I accept that it was not until 28 February 2003 that there was any separation of the interests of Mr and Mrs Udowenko and Wolodymyr.  I also accept that the history of the proceedings shows that Wolodymyr was, at least until 5 February 2003, on a “crusade” to set aside the judgment of Bryson J.

80                  However, it is plain that Wolodymyr prepared the statements of Mr and Mrs Udowenko annexed to the affidavit of 10 December 2002 and the supplementary affidavit of 22 January 2003 which put in issue the question of service of the bankruptcy notice.

81                  If, as is now sought to be contended, the bankruptcy notice was served on Wolodymyr and not on his parents, that was a matter which it was open to him to have sworn to in an affidavit prior to 5 February 2003 or, at the very least, to have sworn to in evidence before his Honour at the hearing.

82                  It is true that there seems to be some confusion in the evidence as to when Wolodymyr was served.  Was he served twice, ie on 7 November 2002 by Mr Telley and on 17 November 2002 by Mr Hogan, or only once as appears from the affidavits of the process servers on the Court file?

83                  It is true also that Wolodymyr was present at the bar table only to assist his father.   At most, he had the status of a McKenzie friend and was not in a position to address his Honour. 

84                  Even if Wolodymyr was not able to tell his father on 5 February 2003 that a police officer was present when the bankruptcy notice was served and that it was served on Wolodymyr alone, it was incumbent upon Mr and Mrs Udowenko to explain to me why they were unable to put this matter to the Court on 5 February 2003.

85                  An essential part of the explanation would have been for Wolodymyr to explain by affirmative testimony why he did not put evidence before Lindgren J as to the fact, if it be true, that a police officer accompanied Mr Hogan when the bankruptcy notice was served.

86                  As I have already said, no such explanation has been given and, without it, the application for leave to adduce fresh evidence must fail.

87                  In view of the failure of Mr and Mrs Udowenko to satisfy the provisions of O 52 r 36, it is unnecessary for me to make any finding as to whether the proposed evidence of Senior Constable Sutton satisfies the test stated in Wollongong Council v Cowan, namely that if the evidence had been adduced, his Honour would have granted the application rather than refusing it.

88                  However, I do have reservations as to whether the affidavit of Senior Constable Sutton establishes with sufficient clarity that the Bankruptcy notice in question was served on Wolodymyr alone and not on Mr and Mrs Udowenko on 17 November 2001 by Mr Hogan.  The affidavit does not identify Mr Hogan by name and it does not identify the document which was served.

89                  Moreover, the absence of evidence from Wolodymyr that Mr Hogan served him with the bankruptcy notice on 17 November 2001 gives rise to an inference that Wolodymyr’s evidence would not have assisted; see Jones v Dunkel (1959) 101 CLR 298; see also Payne v Parker [1976] 1 NSWLR 191 at 201. 

90                  Counsel for Mr and Mrs Udowenko submitted that it was sufficient for me to find that the evidence of Senior Constable Sutton raises sufficient doubt as to whether the bankruptcy notice was served on his clients in order to admit the evidence.  He said that it was then a question for a Full Court as to whether to determine on the fresh evidence whether the sequestration order ought to be set aside or, alternatively, whether to remit it to the Registrar to determine the question of service.

91                  Counsel relied for this submission on s 35A(6) of the Federal Court of Australia Act 1976 (Cth).  That subsection provides that, on a review of the exercise of the powers of the Registrar, the Court may make such orders as it thinks fit with respect to the matter. 

92                  The submission which was put to me turns upon the proposition that Lindgren J heard a motion to review the sequestration order made by Registrar Hedge.  In fact, his Honour did not do so.  His Honour heard a motion to set aside an order made by Moore J under O 10 r 3 dismissing the motion for a review of the Registrar’s order for want of appearance.

93                  But even if Lindgren J had dealt with a motion for review, in my opinion this submission must be rejected.  The question before his Honour would have been whether the bankruptcy notice was served.  Indeed, his Honour proceeded upon that basis rather than to consider whether the order made under O 10 r 3 should have been set aside under O 35 r 7(2)(a).

94                  A review of a registrar’s order is a hearing de novo; see Re Kwiatek and Kwiatek; ex parte Big J Ltd v Pattison (1989) 21 FCR 374.

95                  Unless I am satisfied that the proposed fresh evidence would have produced the opposite result in the application before Lindgren J in accordance with the test stated in Wollongong Council v Cowan (about which I have doubts), I do not see that it would be appropriate for the matter to be remitted to the Registrar.  Nor would it be appropriate for a Full Court to determine the issue.  To do so would be to ignore the fundamental principle of finality of litigation.

96                  I leave open the question whether in any event I would have the power under O 52 r 10 to admit the fresh evidence and then leave it to a Full Court to determine the issue of whether the bankruptcy notice had been served.  It may well be that the appellants have exercised an election for this issue to be determined by me.  In any event, for the reasons which I have stated, it is unnecessary for me to determine that issue.

Decision on Reasonable Apprehension of Bias

97                  Counsel for Mr and Mrs Udowenko accepted that Lindgren J did not make any adverse findings as to the credit of his clients in the judgment in Ex parte Mitchell, which he delivered in 1996.

98                  The reason which his Honour gave in that case for dismissing the application made by Mr and Mrs Udowenko and Wolodymyr was that there was no power to extend time for compliance with the bankruptcy notice.

99                  His Honour went on to say, by way of obiter, that even if he did have power to extend time, he would not exercise his discretion in favour of Mr and Mrs Udowenko.  This was because the ground relied upon by them, namely that they had nothing to do with the defence of the proceedings before Bryson J, had been determined adversely to them by Waddell CJ. 

100               The obiter remark did not express a view on the issue of the representation of Mr and Mrs Udowenko.  It merely stated that the issue had previously been determined in an application that was within time and would not be revisited, were there a discretion available to do so, now that time had expired.

101               Counsel for Mr and Mrs Udowenko referred to the decision of the High Court in Ex parte Armstrong.  There, Barwick CJ, Gibbs, Stephen and Mason JJ said at 262 that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he or she was not unprejudiced and impartial.

102               The test was stated in similar terms by the High Court (per Mason, Murphy, Brennan, Deane and Dawson JJ) in Livesey v NSW Bar Association (1983) 151 CLR 288 (“Livesey”) at 293-294 as follows:-

“That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the question involved in it.”

103               The principle has recently been reaffirmed by the High Court; see Bienstein v Bienstein (2003) 195 ALR 225 at [30]. 

104               In Livesey, their Honours said at 299-300 that it is impossible to lay down an inflexible rule and each case must be determined by reference to its own circumstances.  Their Honours continued at 300 as follows:-

“It is, however, apparent that, in a case such as the present … a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness…”.

105               In Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352, Mason J said:-

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554;  Watson (1976) 136 CLR, at p 262; Re Lusink;  Ex parte Shaw (1980) 55 ALJR 12, at p 14;  32 ALR 47, at pp 50-51).  Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

106               See also similar remarks in the later High Court authority of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, recently followed by Spender J in Dudzinski v Centrelink [2003] FCA 308 at [5].

107               The decision in Ex parte Angliss Group to which Mason J referred in Re J.R.L. was referred to by Merkel J in A1 and Anor v Betty King QC and Ors [1996] FCA 436 at 10-11.  His Honour continued at 11 as follows:-

“Apprehended bias by prejudgment is not based upon an apprehension, whether reasonable or otherwise, as to how a judge might decide the case or whether it is better for another judge to decide the matter.  The test relates solely to the issue of whether there is a reasonable apprehension that a judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him or her.  Something more is required than the mere giving of a previous decision or an advice on the same question of law.”

108               I do not think that in the 1996 proceedings Lindgren J expressed any view about a question of fact which constituted a live issue in the proceedings which his Honour heard on 5 February 2003.

109               All that his Honour said in his obiter remarks in 1996 was that he would not, in the exercise of his discretion, extend time for compliance with the then existing bankruptcy notice because the matter on which Mr and Mrs Udowenko relied had already been decided adversely to them by Waddell CJ in Eq.

110               It is plain that Lindgren J expressed no view in 1996 about the issue of service of bankruptcy notice NN 2448/01.  Nor did he express a view in 1996 about any other live issue in the 2003 application.

111               Thus, the most that can be said of Lindgren J’s 1996 judgment is that he had decided a previous application adversely to Mr and Mrs Udowenko.  However, this was not a case where his Honour’s earlier decision on an issue of fact or law could have generated any expectation that he would have reached a view on the issues in the 2003 application adversely to Mr and Mrs Udowenko prior to hearing the matter.

Orders

112               It follows that the orders which I propose to make are that the application for leave to appeal is refused with costs.

Associate:

Date:                2 May 2003