FEDERAL COURT OF AUSTRALIA

Restom v Battenberg, in the matter of Battenberg [2006] FCA 524

CORRIGENDUM

IN THE MATTER OF ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

CONWAY ANTHONY RESTOM & ORS v ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

NSD 2002 OF 2005

RARES J

4 APRIL 2006 (CORRIGENDUM 22 MAY 2006)

SYDNEY

CORRIGENDUM

On page 5 at the entry for Counsel for the Respondent, insert the words ‘with J Dupree’ immediately after the words ‘MR Aldridge SC’.

Associate:

Dated:  22 May 2006

FEDERAL COURT OF AUSTRALIA

Restom v Battenberg, in the matter of Battenberg [2006] FCA 524

BANKRUPTCY – interim application to dismiss creditors petition and alternatively set aside subpoenas – whether debtor ordinarily resident or had a dwelling house in Australia at the date of the act of bankruptcy – found to be arguable basis for allegation – application successful in part

Mathai v Kwee [2005] FCA 932 referred to

IN THE MATTER OF ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

CONWAY ANTHONY RESTOM & ORS v ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG

NSD 2002 OF 2005

RARES J

4 APRIL 2006

SYDNEY

THE COURT ORDERS THAT:

1.      The grounds in paragraph 3 of the creditors’ petition being that the debtor was carrying on business in Australia and was personally present in Australia be struck out.

2.      The subpoena issued to the Union Club dated 10 March 2006 be set aside.

3.      The subpoena issued to the Australia Club Incorporated dated 10 March 2006 be set aside.

4.      The debtor's costs of the interim application be his costs in the proceedings.

5.      The subpoena addressed to the respondent dated 12 December 2005 be made returnable on 12 April 2005.

THE COURT DIRECTS THAT:

1.      If the respondent debtor wishes to object to the inspection of any document required to be produced in answer to the subpoena or otherwise to object to the production of any document, any such objection should be filed and served on or before 6 April 2006 and that there be an affidavit verifying the grounds of such an objection filed and served at the same time.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an interim application by the debtor to dismiss the creditors petition that was filed on 21 October 2005 and alternatively to set aside subpoenas to the Union Club, the Australia Club Incorporated and the respondent.  The petition alleged in paragraph 3 that at the time at which the act of bankruptcy was committed, being 6 June 2005, the debtor was carrying on business in Australia, was personally present in Australia, was ordinarily resident in Australia and had a dwelling house in Australia. That was supported by an affidavit verifying the petition sworn by Brian Stewart Olliver on 20 October 2005 in which he asserted that those allegations were ‘within my own knowledge true’. 

2                     Mr Johnson of counsel who appears for the petitioning creditors today withdrew the allegation that the debtor was personally present in Australia on the date of the act of bankruptcy.

3                     During February and March this year, the debtor has been seeking and ultimately, the petitioning creditor has provided, particulars of the allegations to found jurisdiction under section 43 of the Bankruptcy Act 1966 (Cth).  The particulars to support the allegation that the debtor was carrying on business in Australia were as follows:

‘1.

a)      Investor.

b)      In Australia and in particular in Melbourne and in Sydney.

c)      The debtor travels to and from Australia to consider and oversee investments.

d)      The evidence is included in documents produced on subpoena by the Department of Immigration, Multicultural and Indigenous Affairs.’

4                     The material upon which paragraph 1(d) was based is said to be contained in exhibit 2, which consists of the Department of Immigration’s incoming and outgoing passenger card records.  There is nothing in exhibit 2 to indicate anything more than that the debtor described his occupation in passenger cards both outgoing and incoming as an investor.  There is no material in those documents to show where the place of the investments was and in particular that there was any connection whatsoever to his occupation as an investor and Australia.  The petitioning creditors were not able to advance any other basis upon which it was alleged that there was any business being carried on in Australia by the debtor at the time of the act of bankruptcy.

5                     In my opinion, having regard to the fact that her Honour, Stone J, ordered that these particulars be answered on 9 March 2006 and that the allegations were made and verified in the creditors petition, I am able to infer and I do infer that at the time this allegation was made there was no basis for the allegation.  In my opinion, the particulars are inadequate to support the allegation and it is therefore one that, as particularised, should not be allowed to stand.  Accordingly, I strike out the allegation that the debtor was carrying on business in Australia in paragraph 3 of the creditors petition.

6                     I also strike out, because of its abandonment in court today, the allegation that the debtor was personally present in Australia on that date.

7                     The claims as to the debtor's ordinary residence in having a dwelling house in Australia as at the date of the act of bankruptcy are, in my opinion, sufficiently particularised so as to permit them to remain in the creditors petition.  During the course of the hearing, exhibit 1 was tendered which was a document that appears to have been prepared by the debtor on 3 May 2005 and used in the Employment Appeal Tribunal of either Scotland or the United Kingdom in support of an appeal by him from the decision of the Employment Tribunal relating to his employment of a chauffeur.

8                     In that notice of appeal, the appellant describes his address as being at Ethersey House, Illawarra Highway, Sutton Forrest, New South Wales 2576, Australia.  He gave as a ground of his appeal the following:

‘The named Respondent (Lord Battenberg) although this has been disputed, is not domiciled in Scotland.’

9                     The grounds which were then elaborated included the following:

‘F) That the Tribunal erred in determining that it had jurisdiction to hear the matter, the Appellant having Australian domicile at the time. (The letter of 3 March 2005 from Messrs Russo, the Appellant’s Australian solicitors, to Russel & Aitkin refers).

…

K) That no (no) attempt was made to inform the respondent that the employment Tribunal was about to reconvene.  As a result he was again unrepresented at the hearing.  This was despite the fact that his London and Australian contact details had been supplied to the Tribunal and had been quoted in correspondence from the Tribunal’ (emphasis in original)

10                  The letter of 3 March 2005 from the appellant's solicitor which appears to have been used in the decision, the subject of the Employment Appeal Tribunal proceedings, was not tendered or produced.  I recognise that there is a distinction in law between a person having an Australian or other domicile at a particular time and that person's residence.  The notice of appeal, indeed, suggests that one place of residence at the time at which it was filed may have been an address in London, although it may also have been a place of work.

11                  In my opinion, the fact that the debtor always, on the outgoing and incoming passenger cards in evidence, gave his intended address in Australia as Ethersey House, which is his mother's residence, suggests that there is an available argument that he is able regularly to resort to that place as a residence within the meaning of the authorities. Of course, I can make no decision about the likelihood of the success of such an argument.  Simply, having regard to the way the matter has been particularised, it seems to me that there is at least an arguable basis, and I put it no higher than that, that depending on the evidence ultimately advanced at the trial in support of and in answer to the particulars, the trial judge could find that the debtor either was ordinarily resident in Australia or had a dwelling house in Australia within the meaning of the authorities discussed by Graham J in Mathai v Kwee [2005] FCA 932 at [111] to [126].

12                  For those reasons, I do not consider that there is any abuse of process or other basis upon which I should strike out the remaining allegations in paragraph 3 of the creditors petition.

13                  The next issue is whether the subpoenas to the two clubs should be set aside.  Each subpoena seeks in par 1 ‘application for membership with’ the respective club.  No name of any person is set out as to whose application it is, nor is there any relevant time period as to which such an application was to be made referrable.  In my opinion, there is no legitimate basis for requiring that paragraph to be answered.

14                  The second and third paragraphs of the respective subpoenas seek copies of personal details provided in writing or orally by the debtor to the respective club:         ‘at times he has stayed at the club during the period 1 March 2005 to 1 March 2006’.  And correspondence with the debtor, including accounts sent and paid by him during that period. 

15                  The act of bankruptcy was committed on 6 June 2005.  The period for which these details are sought extends for almost nine months after that.  These paragraphs seek a wide range of details as to any correspondence including accounts, which do not appear to be relevant for the current purpose and they do not appear to be supported as to relevance by the petitioning creditors.  The only relevance for which the argument that the petitioning creditors sought to make those paragraphs apposite was to prove the elements of par 3 of the creditor’s petition.  No allegation in par 3 in relation to ordinary residence or dwelling house was directed to the debtors use of or staying at either club.

16                  In my opinion, the paragraphs have no relevance to the proceedings and are therefore an abuse of process and should not be required to be answered.  Paragraph 4 of the subpoena to the Union Club seeks copies of court process and affidavits issued by the debtor to the club disclosing his address for service during the period 1 March 2005 to 1 March 2006.  There was no attempt to support why an address for service was relevant to the issues of the place of ordinary residence or the debtor's dwelling house as at the date of bankruptcy.  I regard the paragraph as an abuse of process and it ought to be struck out.  It follows that there is no part of the schedule to either subpoena to the clubs that survives.  Therefore the subpoenas should be set aside and to the extent that any documents may have been produced in answer to the subpoenas by the clubs, the documents should be returned without being inspected by any party.

17                  Lastly, the application seeks that the subpoena issued to the debtor on 13 December 2005 be set aside.  That subpoena seeks documents that relate to the Scottish Employment Tribunal proceedings and the appeal from it.  Inter alia, it specifically seeks in paragraph 4 the letter dated 3 March 2005 from the debtor's solicitors to Russel & Aitken referred to in the ground of appeal F in the Employment Appeals Tribunal proceedings.  For the reasons that I have already given, it seems to me that the material sought in this subpoena has relevance and, subject to any proper objections as to production, ought be answered as Stone J has already directed.  I refuse to set that subpoena aside.

18                  The debtor seeks the costs of this application.

Associate:

Dated:              9 May 2006