FEDERAL COURT OF AUSTRALIA

Shaw v Yarranova Pty Ltd [2014] FCA 557

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the respondents.

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

REASONS FOR JUDGMENT

1    The appellant (Mr Shaw) has appealed a judgment of the Federal Circuit Court of Australia published as Shaw v Yarranova Pty Ltd [2013] FCCA 1627. Before the primary judge was an application made by Mr Shaw for an order setting aside a bankruptcy notice (Bankruptcy Notice) issued at the behest of the respondents. Orders were also sought by Mr Shaw that the time for compliance with the Bankruptcy Notice be extended.

2    The only ground relied upon by Mr Shaw to support the application (when it was first made) was to the effect that he had issued a proceeding in the Supreme Court of Victoria (Supreme Court) to set aside the “primary judgments” upon which the costs orders in respect of which the Bankruptcy Notice was issued (costs orders) were based. Mr Shaw asserted in his affidavit in support of the application that if his application to set aside the “primary judgments” was successful, the costs orders would be set aside.

3    Although Mr Shaw’s application did not expressly rely upon s 41(6A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), Mr Shaw’s application was dealt with as though it had been brought pursuant to that provision and as though the relief claimed by Mr Shaw was an extension of time for compliance with the Bankruptcy Notice to a date subsequent to the determination of Mr Shaw’s proceeding in the Supreme Court.

4    Sections 41(6A) and (6C) of the Bankruptcy Act are in the following terms:

(6A)    Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:

(a)     proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b)    an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

(6C)     Where:

(a)     a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

(b)     the Court is of the opinion that the proceedings to set aside the judgment or order:

(i) have not been instituted bona fide; or

(ii) are not being prosecuted with due diligence;

the Court shall not extend the time for compliance with the bankruptcy notice

5    No issue was taken by the respondents before the primary judge that the application made by Mr Shaw could be brought pursuant to s 41(6A) and in particular, that the pre-condition required by paragraph (a) thereof was satisfied on the facts.

6    Mr Shaw appeals against the primary judge’s dismissal of his application. For the reasons that follow, I have determined that the appeal should be dismissed.

factual and procedural background

7    Before turning to explain why each of Mr Shaw’s grounds of appeal must be rejected, it is necessary to briefly refer to the uncontroversial factual and procedural background.

8    A proceeding was commenced in the Supreme Court by Mr Shaw against the respondents in 2003 (the 2003 proceeding). In that proceeding, Mr Shaw challenged a notice of default and notice of rescission served on him by the respondents in relation to a contract of sale in which Mr Shaw had agreed to purchase the respondents’ land. Mr Shaw also sought a declaration that a caveat lodged by him over the respondents’ land was valid. Mr Shaw was unsuccessful in the 2003 proceeding and Bell J made orders in March 2006, including an order that Mr Shaw’s caveat over the respondents’ land be removed. Mr Shaw appealed and sought a stay of the orders of Bell J pending the determination of the appeal. In May 2006, the stay sought by Mr Shaw was granted but as a condition of the stay, Mr Shaw gave an undertaking to pay any damages sustained by the respondents by reason of the stay. In December 2006, Mr Shaw’s appeal from the orders of Bell J was dismissed.

9    In March 2008, Daly AsJ assessed the damages incurred by the respondents as a consequence of the stay granted to Mr Shaw. Daly AsJ assessed the respondents’ damages at $54,706 and made orders requiring damages, interest and costs to be paid by Mr Shaw. No application for a stay of the orders made by Daly AsJ was made. Mr Shaw’s appeal of the judgment of Daly AsJ was dismissed.

10    Since March 2008, when the orders of Daly AsJ were made, a number of applications, appeals and orders were made in the 2003 proceeding and other related proceedings in the Supreme Court. The costs orders made against Mr Shaw comprise seven orders, in each case made by Wood AsJ. Each order made provides that the costs of the respondents be paid by Mr Shaw.

11    On 4 September 2012, Mr Shaw filed a summons in the Supreme Court (the Summons) seeking to set aside the 7 March 2008 orders of Daly AsJ “on the grounds that there is fresh evidence & that they were procured on the basis of false & misleading affidavits and fraud”. On 18 October 2012, Mukhtar AsJ dismissed that Summons without adjudication as to the merits, on the basis that it was not appropriate for Mr Shaw to proceed by way of a summons and that if he was to proceed at all he should proceed by way of writ on a separately pleaded case.

12    On 7 December 2012, the Bankruptcy Notice was issued and shortly thereafter served on Mr Shaw.

13    On 24 December 2012, Mr Shaw issued his application in the Federal Circuit Court to set aside the Bankruptcy Notice.

14    Mr Shaw also appealed the judgment of Mukhtar AsJ. That de novo appeal was heard by Dixon J on 11 April 2013. Prior to that appeal being dealt with and on 21 February 2013, Luxton R of the Federal Circuit Court extended the time for compliance with the Bankruptcy Notice. It is apparent from the terms of the orders made by Luxton R that the order made dealing with the date of hearing of Mr Shaw’s application was designed to accommodate the hearing taking place after the hearing of the appeal before Dixon J. In that respect, an order was made that Mr Shaw file and serve any affidavit exhibiting a copy of the transcript of the hearing before Dixon J and any reasons for judgment given by Dixon J.

15    On 11 April 2013, Dixon J heard and determined Mr Shaw’s appeal. In his reasons for judgment, Dixon J considered that it was perfectly open for Mukhtar AsJ to have exercised his discretion to determine that the appropriate process for raising the allegations of fraud which Mr Shaw sought to agitate was by way of writ, with pleadings and discovery, rather than by summons. Dixon J dismissed Mr Shaw’s appeal but went on to consider whether it was futile to permit Mr Shaw a further opportunity to seek relief by commencing a new proceeding. His Honour said:

…I am satisfied that Mr Shaw’s claims that the assessment by Daly AsJ could be set aside for fraud is fanciful, with no real prospect of success.

Dixon J concluded that any application to set aside the assessment of Daly AsJ had no real prospect of success and summarily dismissed the Summons.

16    On 22 April 2013, Mr Shaw appealed Dixon J’s orders. It was that application that was pending in the Supreme Court when, on 7 August 2013, the proceeding was heard by the primary judge.

17    At the commencement of the hearing before the primary judge, Mr Shaw applied for an adjournment. That application was based upon the late service of two affidavits (the King affidavits) deposed to by Mr King, a solicitor at Arnold Bloch Leibler (ABL), who acted for the respondents. Mr Shaw complained that the late service of the King affidavits denied him an opportunity to respond to their content. He also contended that the hearing should be adjourned until after his appeal from Dixon J’s orders had been heard and determined.

18    The primary judge rejected the adjournment application on 7 August 2013 on the basis that he would give his reasons with his reasons for judgment on the substantive application. The primary judge then heard the application, reserved his judgment and extended the time for compliance with the Bankruptcy Notice to the date of the delivery of judgment. The primary judge delivered his judgment on 25 October 2013.

19    Although of no relevance to the disposition of the appeal, on 24 March 2014 the Court of Appeal of the Supreme Court overturned the orders of Dixon J summarily dismissing the Summons. The initial orders of Mukhtar AsJ (dismissing the Summons without adjudication on the merits) were upheld. The Court of Appeal considered that Mr Shaw was given insufficient notice that the Summons might be summarily dismissed.

consideration

20    Mr Shaw was not legally represented on his application before the primary judge or on the appeal. His grounds of appeal are largely unparticularised. In his oral submissions on the appeal, Mr Shaw identified the particular basis upon which each of his grounds of appeal were being pressed. The respondents did not take issue with that late provision of particulars and I will consider each of Mr Shaw’s grounds of appeal as particularised through his oral submissions.

21    Two aspects of Mr Shaw’s grounds of appeal must be rejected at the outset because they deal with issues that were not raised before the primary judge and therefore could not have been the subject of any error made by the primary judge. Ground five asserts that the primary judge “failed to recognise that Yarranova Pty Ltd was not a bona fide creditor”. In part, ground six asserts that the primary judge failed to recognise that the Bankruptcy Notice was an abuse of process. Neither of those claims were agitated before the primary judge and therefore I need not further address them.

22    Three of the grounds of appeal assert a denial of procedural fairness. Ground one is a general unparticularised ground to that effect, which Mr Shaw acknowledged was intended to encompass the matters raised by grounds two and four of the Notice of Appeal.

23    Ground two asserted that the primary judge erred by not allowing an adjournment to give Mr Shaw time to respond to the King affidavits.

24    The first of the King affidavits was dated 2 August 2013 and was served at 7.28 pm on 4 August 2013, being the Sunday which proceeded the commencement of the hearing on Wednesday 7 August 2013. At the hearing, the respondents indicated that they sought only to rely upon specified parts of that affidavit. Broadly speaking, the parts of that affidavit which were relied upon referred to the appeal heard by Dixon J, set out the orders made by Dixon J and exhibited a copy of the transcript of that hearing and the reasons for judgment published by Dixon J. Additionally, the first King affidavit referred to and exhibited three email exchanges between Mr Shaw and ABL. Those emails dealt with whether or not Mr Shaw intended to file material of the kind contemplated by the orders made by Luxton R on 21 February 2013 designed to allow the Federal Circuit Court to be updated as to the progress of the proceeding in the Supreme Court. Additionally, the affidavit exhibited Mr Shaw’s Notice of Appeal from the orders made by Dixon J.

25    The second King affidavit was dated 6 August 2013 and I presume was not provided to Mr Shaw until the morning of the hearing. Only some of the contents of that affidavit were relied upon by the respondents. Broadly speaking, the content relied upon dealt with the time of service on Mr Shaw of the first King affidavit and correspondence between Mr Shaw and ABL. In that correspondence, Mr Shaw indicated that he would ask for an adjournment to give him an opportunity to respond and ABL indicated that any adjournment would be opposed. Additionally, a copy of an order made by a Judicial Registrar of the Supreme Court on 31 July 2013 was annexed. That order included an observation to the effect that it was unlikely that the appeal of the orders of Dixon J would be listed for hearing in 2013.

26    As is apparent from the description I have given, the material in the King affidavits sought to be relied upon by the respondents was largely of the kind that the orders made by Luxton R contemplated that Mr Shaw would, but did not, file. The primary judge determined that all of the material sought to be relied upon in the King affidavits was material recording matters that Mr Shaw had participated in and was well aware of. The primary judge rejected the application for an adjournment based on Mr Shaw’s complaint that he had been given no opportunity to respond to the King affidavits.

27    In order to understand whether Mr Shaw was denied a fair opportunity to respond to those parts of the King affidavits upon which the respondents relied, it is necessary to understand what it is Mr Shaw claims he was denied the opportunity to be heard about. As the respondents correctly submitted, the rules of procedural fairness do not operate in the abstract but rather have an essentially practical quality: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 at [156]-[157] (Hayne, Crennan, Kiefel and Bell JJ). In order to attract relief, a denial of procedural fairness must be shown to give rise to a practical injustice.

28    Mr Shaw’s submissions as to what response he would have made if he had been given a longer opportunity to consider and respond to the King affidavits made it apparent that Mr Shaw was not deprived of any fair opportunity to respond at all. The opportunity to respond that Mr Shaw said he would have taken up amounted to no more than the opportunity which had already been afforded to Mr Shaw (but not taken up by him) to file evidence in support of his application.

29    Mr Shaw had been afforded an opportunity to file affidavit material in support of his claim for relief. The affidavit filed in support of his application was brief and included no substantive evidence in support. The opportunity provided by the orders of Luxton R of 21 February 2013 for Mr Shaw to file further affidavits by 15 March 2013 and any affidavit providing an update as to the Supreme Court proceeding by 18 April 2013 were not taken up. Essentially, Mr Shaw failed to put before the primary judge any evidence in support of his application, including particulars of his allegations of fraud or evidence which demonstrated that he had some prospect of succeeding in setting aside the costs orders.

30    It was the opportunity to put before the primary judge those particulars and that evidence which Mr Shaw now contends he was denied by reason of the late service of the King affidavits. That was also the nature of the opportunity Mr Shaw contended he was effectively denied by being prevented from cross-examining Mr King, a matter taken up by ground four of Mr Shaw’s Notice of Appeal.

31    Mr Shaw’s submission, including as to the cross-examination said to have been denied to him, amounted to no more than an unmeritorious contention that he was deprived of a fair opportunity to put his case in chief because he was deprived of an opportunity to do so in response. Not only is there no rational connection between the late filing of the King affidavits and Mr Shaw’s opportunity to put forward evidence in support of his case, any lost opportunity was of Mr Shaw’s own making and arose by reason of Mr Shaw’s failure to take up the opportunity afforded to him to file evidence in support of his application.

32    Although, in the circumstances, the primary judge would have been justified in preventing Mr Shaw from cross-examining Mr King as to the merits of Mr Shaw’s allegations of fraud, I do not accept that Mr Shaw was in fact prevented from conducting cross-examination on that topic. The primary judge did prevent Mr Shaw from further questioning Mr King as to the truthfulness of his evidence that he was the solicitor with the care and conduct of the proceeding on behalf of the respondents. The primary judge explained why he did that at [27] of his Honour’s reasons for judgment. Whilst Mr Shaw contended that this was the catalyst for his understanding that he was then prevented from further cross-examining Mr King, no ruling preventing further cross-examination was in fact made.

33    There is one further aspect of ground four of Mr Shaw’s Notice of Appeal that I need to deal with. Mr Shaw alleged that he was denied the opportunity of adducing evidence in support of his application. The “evidence” which Mr Shaw claims he was denied an opportunity to tender was an application filed by him in this Court some two days prior to the commencement of the hearing before the primary judge. Mr Shaw contended that by tendering that application, by which he brought a claim for damages against the respondents arising from their alleged fraud, Mr Shaw would have sought, but was denied, the opportunity to contend before the primary judge that he had a set-off or counterclaim against the respondents.

34    Mr Shaw’s application did not rely upon the ground that a counterclaim, set-off or cross-demand of the kind referred to by s 40(1)(g) of the Bankruptcy Act was available to him. Nor did he raise with the primary judge that by reference to the terms of s 40(1)(g), he sought to satisfy the primary judge that he had such a counterclaim, set-off or cross-demand. Mr Shaw did not rely on s 41(7) of the Bankruptcy Act as a basis for seeking relief.

35    It follows that Mr Shaw was not denied an opportunity to tender any evidence relevant to his application because his application did not rely upon the existence of any set-off or counterclaim. Nor, given that “a statement of claim is not evidence of anything”, could the mere tender of the Federal Court application have been sufficient to satisfy the primary judge that Mr Shaw had a set-off or counterclaim against the respondents: Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [53] (O’Loughlin, Whitlam and Marshall  JJ).

36    For those reasons, I reject Mr Shaw’s contention that he was denied procedural fairness by reason of the matters relied on in grounds two and four. Accordingly, grounds one, two and four of Mr Shaw’s Notice of Appeal must be rejected.

37    Although not raised by Mr Shaw’s grounds of appeal, Mr Shaw also contended that his application for an adjournment of the hearing should have been granted on the basis that it was appropriate that the hearing of his application await the determination of the appeal of the orders made by Dixon J. When it is recognised that the grant of an adjournment for that purpose would have been of no utility to Mr Shaw without an order that the time for compliance with the Bankruptcy Notice be extended until the adjourned date, it becomes apparent that what was being sought by Mr Shaw under this aspect of his adjournment application was analogous to the substantive relief sought by Mr Shaw that the time for compliance with the Bankruptcy Notice be extended in the exercise of the discretion conferred by s 41(6A) of the Bankruptcy Act.

38    It is thus necessary to consider Mr Shaw’s contention about error in relation to this aspect of the refusal of his adjournment application with the challenge made by Mr Shaw to the effect that the exercise of the primary judge’s discretion under s 41(6A) miscarried.

39    It is necessary first to set out the well established principles that govern an appeal against the exercise of discretion. In House v R (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ stated at 504-505:

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.

40    Mr Shaw based his challenge to the exercise of the primary judge’s discretion on the contention that in addressing Mr Shaw’s prospects of success in having the costs orders set aside, the primary judge wrongly took into account the observations of Dixon J at [15] above and a further observation made by Nettle JA in the Court of Appeal. That further observation is set out in the primary judge’s reasons at [55] and is to the effect that Nettle JA had considerable doubt about the utility of Mr Shaw’s appeal of the orders of Dixon J. That observation was made on an application made by Mr Shaw to reinstate his appeal of the orders of Dixon J after the appeal had been struck out for want of prosecution.

41    Although Mr Shaw did not refer to or rely upon any particular House v R principle, for reasons that will become apparent, I will proceed on the basis that by that part of ground three of Mr Shaw’s Notice of Appeal, which contends that the primary judge “erred in referring to inadmissible evidence”, in essence Mr Shaw was contending that the primary judge allowed “extraneous or irrelevant matters to guide or affect him”.

42    The primary judge exercised his discretion against Mr Shaw for a number of reasons. One consideration which the primary judge was correct to take into account was Mr Shaw’s prospects of success in having the costs orders set aside. In considering the relevance of that consideration, the primary judge relied upon the observations of Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 at [270]-[271]. The primary judge concluded (at [57]) that:

Here, on the materials as they stand, it must be said that I would regard Mr Shaw’s chances of success as slight.

43    In reaching this conclusion, the primary judge noted (at [58]) that Mr Shaw had himself acknowledged that he did not have proof to establish fraud and (at [59]) that he had seen “no clear cogent evidence of fraud at this stage even on Mr Shaw’s own position…”.

44    Given Mr Shaw’s failure to tender any evidence to substantiate his allegations of fraud, and also his failure to substantiate how those allegations (if made out) would serve to overturn each of the costs orders, on the evidence before the primary judge, his Honour could have come to no other conclusion than the conclusion that Mr Shaw had failed to establish any real prospect that he would succeed in having the costs orders set aside. As the respondents submitted, the primary judge was generous by his observation that he regarded “Mr Shaw’s chances of success as slight”.

45    In those circumstances, it is unnecessary to determine to what extent the primary judge took into account the observations of Dixon J or Nettle JA and whether it was inappropriate for the primary judge to have done so, as was contended by Mr Shaw by reference to s 91 of the Evidence Act 1995 (Cth) and that part of ground three which claimed that the primary judge erred by “referring to inadmissible evidence”. It is clear that even if the primary judge did take those observations into account, doing so could not have materially affected the outcome. Irrespective of the judicial opinions of other judicial officers, the only available conclusion that the primary judge could have arrived at was that Mr Shaw had no, or at best a slight, prospect of successfully setting aside the costs orders.

46    For those reasons, ground three must also be rejected. In doing so, I should add that a contention also contained in ground three that the primary judge “made findings regarding the creditor status of the respondents without sufficient evidence” was not pressed on the appeal. In any event, the contention seems to raise the same issue raised by ground five which was not an issue raised before the primary judge and which for that reason alone ought to be rejected on the appeal.

47    Finally, I turn to the only remaining challenge and specifically to the allegation in ground six of the Notice of Appeal that the primary judge “erred in failing to recognise that the bankruptcy notice was invalid”.

48    The challenge made by Mr Shaw before the primary judge to the validity of the Bankruptcy Notice was that the Bankruptcy Notice was not in a proper form because it did not properly identify how Mr Shaw could pay the respondents. On the appeal, Mr Shaw did not directly take issue with the reasoning of the primary judge rejecting his contention. Mr Shaw nevertheless maintained that the Bankruptcy Notice was invalid because it did not tell him how much he should pay to each of the creditors, how he should pay and when he should pay the debt claimed.

49    Although not expressed as such, Mr Shaw’s complaint may be characterised as an allegation that the Bankruptcy Notice is invalid because it is misleading. A bankruptcy notice is a nullity if it could reasonably mislead a debtor as to what is necessary to comply with the notice: Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 79 (Mason  CJ, Wilson, Brennan and Gaudron JJ). The court does not inquire as to whether the debtor has in fact been misled: James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 644 (Williams, Kitto and Taylor JJ).

50    Section 41(2) of the Bankruptcy Act requires that a bankruptcy notice be in the form prescribed by the Regulations. No issue was taken that the Bankruptcy Notice was other than in the prescribed form.

51    The Bankruptcy Notice identified that it was directed to Mr Shaw. It then notified Mr Shaw that the named creditors (named as each of the respondents) of a single specified address claimed that he owed the debt later described. It described the amount claimed as based on “the attached final judgment/s or final order/s” and attached a copy of each of the costs orders. It identified the payments made or credit allowed “since judgment/s or order/s” which was then subtracted from the amount claimed in respect of the final judgment/s or order/s to specify the “total debt amount” claimed.

52    The Bankruptcy Notice clearly identified the amount claimed to be owed to the named creditors. It is also clear that the debt claimed was claimed as a debt owed to both creditors jointly. So much is apparent from the specification that both creditors claimed the one and the same total debt amount and from the costs orders annexed to the Bankruptcy Notice each of which is readily understandable as requiring Mr Shaw to pay a single specified sum to both respondents in relation to legal costs incurred by them jointly.

53    In my view, consistently with the command made by the costs orders, the terms of the Bankruptcy Notice directed Mr Shaw to pay a single amount to the two named creditors who claimed an amount owed to them jointly. The Bankruptcy Notice specified that “payment of the debt can be made” to ABL at the address there specified. It also required payment within 21 days of service of the Bankruptcy Notice.

54    In that manner, the Bankruptcy Notice made it clear that a debt claimed to be owed by Mr Shaw to both respondents could be discharged by a payment made to their agent, ABL. The Bankruptcy Notice was not capable of reasonably misleading Mr Shaw as to whom it was claimed he owed the debt to, how he could discharge that debt, and by when that should be done.

55    In arriving at that view, I have taken into account that the Bankruptcy Notice states that payment to “the creditor” is required. The Bankruptcy Notice utilises a standard form which would obviously be recognised as such. Where the standard form requires that the name of the creditor be specified, it includes a direction that “if more than one creditor, include all creditors”. Read in that context, it is apparent that the later use of the word “creditor” on the form is intended as a reference to the one or more creditors earlier listed in that section of the form which required the names of the creditor or creditors to be specified.

56    The primary judge did not err in rejecting the challenge to the validity of the Bankruptcy Notice raised by Mr Shaw. Ground six of the Notice of Appeal should also be rejected.

conclusion

57    As Mr Shaw has failed in relation to each of his grounds of appeal, it follows that his appeal should be dismissed. Mr Shaw did not resist the proposition that he should pay the respondents’ costs should his appeal not succeed. Accordingly, I will make orders dismissing the appeal and requiring Mr Shaw to pay the costs of the respondents.

Associate:

Dated:    28 May 2014