FEDERAL COURT OF AUSTRALIA

Anne v Ask Funding Ltd [2015] FCA 1111

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 3 November 2014 in proceedings BRG736 of 2014 are set aside.

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

REASONS FOR JUDGMENT

1    On 3 November 2014, the Federal Circuit Court of Australia made a sequestration order against the appellant’s estate. The appellant appeals against that judgment.

2    The appellant is not legally represented. However, she has been assisted in the preparation of her material, both in this Court and the Federal Circuit Court, by Dr Richard Gill, a dentist. I granted Dr Gill leave to represent the appellant at the hearing of the appeal.

3    The appellant’s initial notice of appeal contained some 66 grounds. Most of those grounds were untenable, and some were nonsensical. Eventually, the appellant filed an amended notice of appeal which removed some grounds, amended some grounds and added others. There remains some repetition, overlapping and obscurity, but, as I understand them, the grounds may be summarised as follows:

(a)    The bankruptcy notice is a nullity because the Official Receiver attached only one of the two orders that the bankruptcy notice relied on when it was issued.

(b)    The bankruptcy notice served was not the one issued by the Official Receiver.

(c)    The service of the bankruptcy notice was an abuse of process in circumstances where an earlier bankruptcy notice relying on one of the two orders had been proceeded with and no election between the two was made.

(d)    The bankruptcy notice is a nullity because it failed to attach an order of the Queensland Court of Appeal that the appellant pay costs on the standard basis.

(e)    The primary judge erred in failing to find that bankruptcy notice is invalid on the basis that it does not correctly identify the debtor.

(f)    The primary judge erred in failing to exercise the Court’s discretion to go behind the orders.

(g)    The primary judge failed to accord the appellant procedural fairness.

4    The first respondent is the petitioning creditor. The second respondent is the trustee of the appellant’s bankrupt estate. The second respondent has not taken an active role in this proceeding, but has indicated that it wishes to be heard on the question of costs.

The first ground: Bankruptcy notice is a nullity because Official Receiver failed to attach one of the orders

5    Much of the hearing was concerned with the question of whether the appellant should be permitted to raise the first and second grounds and call evidence in the appeal concerning those grounds. It is necessary to explain the issues involved in these grounds and the procedural history of the litigation.

The issues

6    The creditor’s petition relied upon the appellant’s failure to comply with a bankruptcy notice. The bankruptcy notice was founded on two orders of the District Court of Queensland, the first giving judgment for the first respondent against the appellant in respect of a debt, and the second ordering that the appellant pay the first respondent a specified amount for its costs. However, when the bankruptcy notice was electronically issued by the Official Receiver, only the first order was electronically attached to the bankruptcy notice. It appears that the first respondent’s solicitors then physically attached the second order before serving the bankruptcy notice, or at least served the second order with the bankruptcy notice. The appellant argues that the bankruptcy notice issued by the Official Receiver is a nullity.

7    The appellant has applied pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) for leave to adduce evidence on the appeal. That evidence would establish that only one of the orders was attached to the bankruptcy notice when it was issued.

8    The first respondent opposes the appellant’s application. The appellant failed to raise the first ground before the Federal Circuit Court and the first respondent argues that she is bound by the way she conducted her case and cannot be permitted to raise that ground now. The first respondent also argues that leave to lead the further evidence should be refused because the evidence would not have made a difference to the outcome, below, and because no adequate explanation has been provided as to why the evidence was not led before the primary judge.

9    The appellant argues that she did not raise the ground before the Federal Circuit Court because she was unaware that only one order had been attached to the bankruptcy notice when issued by the Official Receiver – she was served with a bankruptcy notice which attached, or came with, two orders. She says that none of the first respondent’s affidavits placed before the Federal Circuit Court made any mention of the solicitors attaching or adding the second order before service of the bankruptcy notice, and this fact was effectively hidden from her. She says that it was not until after the appeal to this Court was commenced that she became aware that there was a discrepancy between the bankruptcy notice issued and that which was served.

Procedural history of the litigation

10    In order to evaluate these arguments it is necessary to discuss something of the lengthy procedural history of the litigation between the appellant and the first respondent.

11    The appellant was involved in a property dispute with her former de facto partner in the Supreme Court of Queensland. In September 2005, Impact Funding Limited, a litigation lender, lent the appellant $20,000 under a written loan agreement. The first respondent acquired the shares in Impact Funding Limited, in 2005. The first respondent also conducted its own litigation funding business in its own name.

12    In February 2006, the first respondent (under its former name Impact Capital Ltd) and the appellant entered into a second loan agreement under which the first respondent lent the appellant the sum of $51,283.78. Of that amount, $21,283.78 was to be used to repay the loan to Impact Funding Limited.

13    In the loan agreements, the borrower was variously described as Patricia McBride, Patricia Ann McBride and Patricia Anne McBride. In July 2009, Patricia Ann (or Anne) McBride changed her name to Patricia Anne. The appellant places considerable emphasis upon that change of name, which forms the basis of her fifth ground of appeal.

14    The second loan agreement required the appellant to repay the principal and to pay interest to the first respondent by 3 February 2007. That date was later extended to 17 October 2008. The debt has not been paid by the appellant.

15    The first respondent commenced proceedings against the appellant under the name “Patricia Ann McBride” in the District Court of Queensland. On 7 November 2012, Judge Everson awarded summary judgment against the appellant in the sum of $150,522.49, consisting of the original loan amount of $51,283.78 plus interest. His Honour also awarded costs against the appellant on an indemnity basis. A transcript of the hearing shows that the appellant appeared on her own behalf and described herself as being “formerly known as Patricia McBride”. The appellant admitted that she had received money under the loan agreement and had not repaid that money. She indicated that her reason for resisting the first respondent’s claim was that she wanted to make sure that she would be paying the right amount of money.

16    The appellant appealed to the Queensland Court of Appeal. On 28 May 2013, the Court of Appeal set aside the indemnity costs order and substituted an order that the appellant pay costs on the standard basis, but otherwise dismissed the appeal.

17    The first respondent then served a bankruptcy notice on the appellant in respect of the judgment sum of $150,522.49 ordered by the District Court. The appellant applied to the Federal Circuit Court for orders setting aside that bankruptcy notice, but that application was dismissed on 6 September 2013.

18    The first respondent proceeded to obtain an assessment of the costs that had been awarded by the District Court and varied by the order of the Court of Appeal. On 13 September 2013, an order was made by a Deputy Registrar of the District Court that the appellant pay the first respondent’s costs assessed at $73,962.08.

19    The first respondent then applied to the Official Receiver for a second bankruptcy notice on 15 October 2013. When issued by the Official Receiver on 16 October 2013, the second bankruptcy notice was given the number BN166251. This bankruptcy notice relied on both Everson DCJ’s order giving judgment in the amount of $150,552.49 and the Deputy Registrar’s order requiring the appellant to pay the first respondent’s costs assessed at $73,962.08, as well as claiming post-judgment interest. The total amount of the debt claimed was $237,726.16. I will refer to bankruptcy notice BN166251 as “the bankruptcy notice”, except where the context requires otherwise.

20    I will later discuss the process by which the first respondent’s solicitors applied for the issuing of the bankruptcy notice and the process by which it was issued. For the moment, it is enough to note that if the evidence of the employees of the Official Receiver is admitted, that evidence would establish that the bankruptcy notice in its form as issued by the Official Receiver attached only Everson DCJ’s order, and not the order of the Deputy Registrar. I infer that the first respondent’s solicitors either attached or added the Deputy Registrar’s order before serving the bankruptcy notice.

21    The bankruptcy notice, accompanied by both orders, was served on the appellant. The appellant applied to the Federal Circuit Court for orders setting aside the bankruptcy notice. On 15 August 2014, Ms Anne's application was dismissed. The appellant then filed an application in this Court for leave to appeal against that order.

22    On 3 November 2014, the Federal Circuit Court made a sequestration order against the appellant’s estate. The appellant then filed a notice of appeal.

23    On 9 December 2014, I dismissed the appellant’s application for leave to appeal against the Federal Circuit Court’s dismissal of her application to set aside the bankruptcy notice. I also made directions in respect of the appeal against the sequestration order.

24    At this stage, it is necessary to say something about the evidence placed by the first respondent before the Federal Circuit Court in support of the creditor’s petition.

Evidence before the Federal Circuit Court

25    On 24 September 2014, the first respondent obtained an order of the Federal Circuit Court for substituted service of the creditor’s petition.

26    In an affidavit of service, Stephanie Williamson, a solicitor employed by DibbsBarker, the solicitors for the first respondent, deposed that she posted the bankruptcy notice and other documents to the appellant at her last known address. Ms Williamson said:

On 3 February 2014, I placed the following documents into an envelope (Envelope):

(a)    Covering correspondence from DibbsBarker dated 3 February 2014;

(b)    Bankruptcy Notice 166251 issued 16 October 2013;

(c)    final order dated 7 November 2012;

(d)    final costs order dated 13 September 2013.

27    DibbsBarker’s “covering correspondence” dated 3 February 2014 said:

We enclose by way of service:

1.    Bankruptcy Notice No 166251 issued 16 October 2013; and

2.    Order of Judge Everson dated 7 November 2012; and

3.    Order of Deputy Registrar dated 13 September 2013.

28    Ms Williamson annexed copies of the documents to her affidavit. In the annexures, the bankruptcy notice was immediately followed by both orders of the District Court. It is unclear whether the orders, or either of them, were physically attached to the bankruptcy notice when it was served.

29    Ms Williamson also deposed to having sent the same documents by email to the appellant at her last known email address. The email attached a single PDF which contained all the documents. Therefore, it can be said that both orders were electronically attached to the bankruptcy notice.

30    The first respondent also relied on an affidavit of service of Paul Hampford, a commercial agent. Mr Hampford deposed to having served the “Bankruptcy Notice No: BN166251/2013 dated 16/10/13 and Orders dated 07/11/12 and 13/09/13” by delivering the bankruptcy notice to the appellant’s address in Victoria.

Evidence sought to be adduced before this Court

31    On 24 November 2014, the appellant filed her notice of appeal against the sequestration order.

32    On 9 December 2014, on the appellant’s application, I directed that the first respondent serve on the appellant a copy of each document filed in the Federal Circuit Court proceedings and a copy of any correspondence with the Official Receiver. The appellant deposes that the first respondent then gave her a copy of a letter that had been emailed by the Australian Financial Security Authority (“AFSA”) to Ms Williamson on 16 October 2013.

33    AFSA is responsible for the administration of the office of the Official Receiver. Various powers of Official Receivers are delegated to officers of AFSA, including the power to issue bankruptcy notices.

34    The AFSA’s letter of 16 October 2013 stated:

Your application for the issue of a bankruptcy notice in respect of the debtor/s specified above has been accepted.

The bankruptcy notice 166251 was issued on 16 October 2013.

Please find enclosed the bankruptcy notice that you will need to serve on the debtor/s in addition to any judgments, orders and other documents supporting its issue.

35    The copy of AFSA’s letter of 16 October 2013 as provided by the first respondent to the appellant enclosed the body of the bankruptcy notice and the order of Everson DCJ, but not the order of the Deputy Registrar.

36    The appellant deposes that she then became aware that she had a right to seek a copy of the bankruptcy notice issued by the Official Receiver. She requested a copy of the bankruptcy notice and AFSA sent her an email on 23 December 2014 which stated:

Please find attached the bankruptcy notice for BN166251, which was issued on the 16 October 2013 and a copy of the final judgement order.

37    AFSA’s email had two attachments. The first was the body of the bankruptcy notice. The second was the order of Everson DCJ. The order of the Deputy Registrar was not attached.

38    It may be observed that AFSA’s letter of 16 October 2013 and its email of 23 December 2014 raised an inference that the bankruptcy notice, when issued, attached only one of the two District Court orders.

39    The appellant then applied to this Court for leave to issue a subpoena directed to AFSA requiring production of all documents in its custody in relation to the bankruptcy notice. On 24 February 2015, I granted that leave. There were some problems in the production of all the documents required by the subpoena. AFSA produced a tranche of documents to the Court. Later, it indicated that not all the documents required to be produced under the subpoena had been produced and it produced a second, and then a third, tranche of documents.

40    At that stage, there was uncertainty as to whether AFSA had fully complied with the subpoena, uncertainty as to whether the first respondent’s solicitors had provided a copy of the Deputy Registrar’s order to AFSA when applying for the issue of the bankruptcy notice and uncertainty as to the precise form of the bankruptcy notice issued by the Official Receiver. On 2 April 2015, I ordered that AFSA file an affidavit annexing all documents in the control of AFSA relating to the bankruptcy notice, describing the process by which the bankruptcy notice was applied for, processed and issued and indicating the form in which the bankruptcy notice was issued.

41    AFSA then filed affidavits affirmed by its officers, Simon Williams, Leanne Mallett and Christopher Mosele. Those officers gave evidence at the hearing of the appeal, subject to determination of the question of whether the appellant should be permitted to rely on that evidence. I will describe the effect of the evidence.

42    In February 2013, AFSA introduced a system for applying for and issuing bankruptcy notices on-line at the website https://www.afsa.gov.au/online-services. Bankruptcy notices can also be applied for by posting a paper application form to AFSA.

43    In order to apply for the issue of a bankruptcy notice on-line, the creditor, or the creditor’s agent, must become registered as an on-line user. DibbsBarker was a registered on-line user. Mr Williams was able to give evidence as to the procedure that DibbsBarker must have gone through on 15 October 2013 in order to apply for the issuing of a bankruptcy notice.

44    DibbsBarker was required to enter information into a number of “on-screen fields”. The information required to be entered into each of these on-screen fields corresponded with the information required to be included in a bankruptcy notice in Form 1 of the Bankruptcy Regulations 1996 (Cth). Mr Williams deposes that a necessary step for the completion of the first on-screen field “is for the creditor to upload a copy of the sealed or certified judgment/s or order/s of a Court evidencing the debt owed to the creditor by the debtor”. DibbsBarker uploaded Everson DCJ’s order of 7 November 2012 to the first on-screen field.

45    The second on-screen field contains the following statement:

Where legal costs are being claimed (and a specific amount was not included in the judgment/s or order/s), a certificate of taxed or assessed costs in support of the amount claimed must be uploaded as additional supporting documents.

46    DibbsBarker uploaded the Deputy Registrar’s order of 13 September 2013 to the second on-screen field.

47    Once DibbsBarker had completed all of the on-screen fields and paid the required fee, the application was assigned to Mr Williams for assessment. Mr Williams was satisfied that the application had been correctly completed and clicked a field marked “Accept” on the screen. That action caused the bankruptcy notice to be issued. An automatically generated email was sent to DibbsBarker with three electronic attachments, namely, the covering letter dated 16 October 2013, the bankruptcy notice and the order of Everson DCJ of 7 November 2012.

48    It is clear from Mr Williams’ evidence that the automatically generated email from AFSA did not attach the order of the Deputy Registrar of 13 September 2013.

49    There is one issue left uncertain in the affidavits of the AFSA officers. It is not clear whether more than one judgment or order was able to be uploaded in the first on-screen field. The instructions on the second on-screen field require that any “costs certificate” be uploaded in that field, and DibbsBarker uploaded the Deputy Registrar’s costs order in that field. However, an order uploaded in the second on-screen field is not attached to the automatically generated email from AFSA to the creditor or the creditor’s agent.

50    ASFA appeared at the hearing on 30 April 2015 for the limited purpose of informing the Court that its orders of 2 April 2015 had been complied with. The Official Receiver made no application for leave to intervene in the proceeding.

Further evidence and submissions concerning the first ground

51    Before the Federal Circuit Court, the appellant relied on an amended notice of opposition to the creditor’s petition. Ground 13 of the amended notice was that, “The correct final judgment is not attached to the Bankruptcy Notice BN166251”.

52    Initially, the first respondent submitted that Ground 13 had raised the first and second grounds now sought to be raised in this appeal, namely that the bankruptcy notice is a nullity because the Deputy Registrar’s order was not attached when it was issued. The first respondent’s principal submission was that the appellant should not be given leave to lead evidence concerning that issue because she had the opportunity to lead the evidence before the Federal Circuit Court, but had failed to do so. However, the appellant explained that Ground 13 related to a different issue, namely whether the Court of Appeal’s order varying Everson DCJ’s costs order should have been attached to the bankruptcy notice. The first respondent now seems to accept the appellant’s explanation, but submits that the appellant not only requires leave to lead the further evidence, but also requires leave to raise the first and second grounds of appeal.

53    Dr Gill gave oral evidence at the hearing of the appeal explaining why the appellant, whom he had assisted in her preparation and presentation of her case, had not called any evidence concerning the first ground before the Federal Circuit Court. His explanation was that neither he nor the appellant knew that the bankruptcy notice had been issued without the costs order being attached. Dr Gill said that the affidavits provided by the first respondent were taken at face value and they indicated that the bankruptcy notice as issued had both orders attached.

54    Dr Gill explained that what triggered his suspicion that the Deputy Registrar’s order had not been attached was the provision of the email from AFSA to Ms Williamson of 16 October 2013 in the course of this appeal, which appeared not to have the Deputy Registrar’s order attached. That was confirmed when the appellant obtained a copy of the bankruptcy notice from AFSA. Dr Gill explained that the reason why he had initially sought the provision of correspondence between the first respondent’s solicitors and the Official Receiver in this Court on 9 December 2014 was that he wanted to establish a lack of candour on the part of the solicitors in failing to disclose that the appellant had changed her name. Dr Gill had found a case, Wasilenia v Deputy Commissioner of Taxation [2003] FMCA 8, which indicated that a creditor has a duty of frankness when applying for the issuing of a bankruptcy notice. He stated that he had found that authority during the currency of the Federal Circuit Court proceedings.

Consideration of whether the appellant should be permitted to raise the first ground

55    The High Court has made it clear that circumstances in which an appellate court will allow a point not taken at first instance to be raised in the appeal are very limited.

56    In Park v Brothers (2005) 80 ALJR 371, the High Court said at [34]:

In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal.

57    In O’Brien v Komesaroff (1982) 150 CLR 310, Mason J (with whom the other members of the Court concurred) said at 319:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided. However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.

(Citations omitted.)

58    In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, the High Court said at 483:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

59    In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said at [51]:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

60    In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, Hayne and Callinan JJ said at [151]:

In deciding whether a party may take a point for the first time on appeal, the principles to be applied are well known. Those principles have been discussed, in this Court, in several cases. As was said in Coulton v Holcombe, “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”. But the rule against raising a new point for the first time on appeal is not absolute. As Mason J said in O'Brien v Komesaroff, “[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal . . . it is expedient in the interests of justice that the question should be argued and decided”.

(Citations omitted.)

61    Their Honours continued at [153]:

To decide whether making the concession barred Dovuro from making the submissions which it wished to make (that it owed no duty to take reasonable care to avoid inflicting economic loss on the Wilkins or others) it would be necessary to examine more closely the content of the argument which Dovuro sought to advance about duty of care on appeal to the Full Court and in this Court. It would be necessary to do that giving particular attention to whether the factual substratum for the competing arguments of the parties was sufficiently established by the findings that were made or could satisfactorily be established in the appellate court. If, for example, the argument advanced on appeal depended upon the appellate court making new or additional findings of fact, there may be difficulties in doing so which would bar the appellant making the new argument.

(Underlining added.)

62    In Lansen v Minister for Environment and Heritage (2008) 174 FCR 14, Moore and Lander JJ said at [6]:

If the fresh point is a good one and might alter the way in which the proceedings are resolved, there is a risk that at least the second respondent might suffer material injustice. It may suffer injustice by having been denied the opportunity of considering the point when it should have been first raised (before the hearing by the primary judge), taking legal advice and, if appropriate, approaching the litigation on the basis that the point was a good one. Consent orders might have been negotiated and the proceedings resolved many months ago, perhaps on the basis that the second respondent would then pursue a course of action designed to repair, in whole or in part, the effect of a defect in the decision-making process.

63    As to the question of whether the Court should exercise its discretion to allow the appellant to rely on further evidence pursuant to s 27 of the Federal Court of Australia Act, in August v Commissioner of Taxation [2013] FCAFC 85, the Full Court indicated at [116]–[119] that the relevant factors include:

(a)    that the due administration of justice requires that the substantial issues between the parties are ordinarily settled at the trial;

(b)    whether the evidence could have been called at trial and, if it could have been, the reasons it was not;

(c)    whether the evidence is evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings reheard;

(d)    whether the evidence would have produced a different result had it been available at the trial, or, is likely to have produced a different result.

64    The first respondent submits that the appellant cannot be permitted to take the new point because her explanation of why the point was not taken at first instance is unsatisfactory, and because the point could possibly have been met by calling evidence.

65    As to the first of these matters, the first respondent submits that the appellant’s assertion that she did not raise the point because she was under a misconception that the bankruptcy notice had both orders attached when issued by the Official Receiver should not be accepted. The first respondent submits that it did not make any representation to the appellant that the bankruptcy notice was issued with both judgments attached and, to the contrary, correspondence sent by the first respondent’s solicitors dated 3 February 2014 should have alerted the appellant to the fact that at least one order was not attached. It submits that the first respondent’s letter of 3 February 2014 to the appellant referred to the bankruptcy notice and the orders as three separate documents.

66    In my opinion, nothing in the letter of 3 February 2014 was capable of alerting the appellant to the fact that when the bankruptcy notice was issued it had one order attached, while the second order was not attached, and that the first respondent’s solicitors had attached or added the second order. I cannot see that any reasonable reader of the letter would think that it was intended to convey that the order of Everson DCJ had been attached to the bankruptcy notice but the order of the Deputy Registrar was not.

67    Similarly, nothing in the affidavits of service of Ms Williamson or Mr Hampford could have alerted the appellant to the fact that the bankruptcy notice issued by the Official Receiver did not attach the order of the Deputy Registrar and that the first respondent’s solicitors had attached or added it.

68    The fact that the bankruptcy notice had been issued with only one of the two orders electronically attached was known only to the first respondent’s solicitors. The fact that the solicitors altered the bankruptcy notice that was issued by attaching or adding the second order was known only to those solicitors. In my opinion, the failure of the solicitors to inform the appellant and the Federal Circuit Court that they had altered the bankruptcy notice amounted to a misrepresentation by omission.

69    In Forster v Legal Services Board (2013) 40 VR 587, Kyrou AJA (with whom Weinberg and Harper JJA agreed) said at [161]:

A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the court and thereby breach his or her duty to the court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given.

(Citations omitted.)

70    In the absence of some express indication to the contrary, it is readily understandable that the appellant, or any reader, would understand the letter to enclose the bankruptcy notice in the form in which it had been issued by the Official Receiver, and would not have any suspicion that the Deputy Registrar’s order had been attached or added by the first respondent’s solicitors. I do not suggest that the first respondent’s solicitors deliberately sought to mislead the appellant, but that was the effect of the letter.

71    In my opinion, the affidavits of service before the Federal Circuit Court created the misleading impression that the bankruptcy notice was served in the same form as it had been issued. That impression was not corrected. I accept the appellant’s explanation as to why the point now sought to be taken was not taken at first instance.

72    The appellant alleged fraud on the part of the first respondent’s solicitors. If fraud were established, that would provide a strong basis for permitting the appellant to raise the first ground: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. Even though the conduct of the first respondent’s solicitors in attaching or adding the order of the Deputy Registrar to the bankruptcy notice before it was served on the appellant and failing to draw that matter to the appellant’s or the Court’s attention was misleading, there is no evidence that the solicitors deliberately concealed that matter. The solicitors had uploaded the order of the Deputy Registrar when applying for the bankruptcy notice in accordance with the instruction given on AFSA’s website. The solicitor’s conduct is consistent with a belief (although a wrong belief) that they were entitled to attach or add the order of the Deputy Registrar to the bankruptcy notice without affecting the validity of the bankruptcy notice. Section 138 of the Evidence Act 1995 (Cth) requires a high standard of proof of an allegation of fraud. I am not satisfied that the allegation is established.

73    The first respondent next submits that the appellant ought to have made an application for discovery of correspondence between the first respondent and AFSA to the Federal Circuit Court, rather than waiting until after this appeal was commenced. Dr Gill’s evidence was that he was suspicious that the first respondent had failed to comply with its duty of candour to the Official Receiver by failing to disclose that Ms Anne had changed her name. That was the reason why he sought the provision of correspondence between the first respondent’s solicitors and the Official Receiver in the course of this appeal. As it happened, the material obtained revealed, or at least suggested, that only one of the orders had been attached to the bankruptcy notice issued by the Official Receiver.

74    What the appellant and Dr Gill have not explained is why the appellant made no application to the Federal Circuit Court for discovery of correspondence between the first respondent’s solicitors and the Official Receiver. If that correspondence had been obtained at that stage, then the point now sought to be taken could have been taken below. The explanation seems likely to be that neither the appellant nor Dr Gill thought of seeking discovery of the documents when the matter was before the Federal Circuit Court. If the appellant was represented by a lawyer in the proceedings below, that would not be a satisfactory explanation. Neither Dr Gill nor the appellant are legally qualified. However, Dr Gill had undertaken the role of advising and assisting the appellant. He has shown himself to be well capable of undertaking legal research and utilising the Court’s processes and procedures. During the currency of the Federal Circuit Court proceeding, Dr Gill’s research had uncovered a case which indicated that a creditor has a duty of candour to the Official Receiver, and he was suspicious that the first respondent’s solicitors had not complied with that duty. Yet the appellant did not seek any order from the Federal Circuit Court that the first respondent provide copies of its correspondence with the Official Receiver. I do not think that the explanation for why discovery was not sought below is satisfactory.

75    The appellant seeks to do two things in the appeal. She seeks to take a point not taken at first instance. She also seeks to lead evidence to establish the basis for that argument. The authorities emphasise that a new point cannot be raised on appeal where the point could possibly have been met by calling evidence at first instance.

76    I understand Hayne and Callinan JJ in Dovouro at [153] to have accepted that in some limited circumstances, uncontroversial evidence might be allowed to be led in the appellate court to support a new point. In the course of an interlocutory hearing in the appeal, the first respondent’s then representative, Mr Templeton, accepted that the first respondent’s solicitors had uploaded an application for the bankruptcy notice together with two judgments, but that the order of the Deputy Registrar was not returned in the email from AFSA. The evidence that the bankruptcy notice issued by the Official Receiver did not electronically attach the order of the Deputy Registrar seems incontrovertible. The inference that the solicitors attached or added the Deputy Registrar’s order seems irresistible. The first respondent did not suggest that it wished to lead evidence from its solicitors. The incontrovertibility of the evidence is a factor that favours the appellant being permitted to raise the new point and lead evidence to support it.

77    The first respondent next submits that even if the Official Receiver’s failure to electronically attach the Deputy Registrar’s order did create a defect in the bankruptcy notice, that defect was merely a formal defect or irregularity. The first respondent submits that the question of “substantial injustice” and whether that injustice can be remedied under s 306(1) of the Bankruptcy Act 1966 (Cth) is an issue upon which evidence might have been led by the first respondent below, so that the appellant cannot now be permitted to take the point. In order to address this submission it is necessary to consider:

(a)    whether any failure by the Official Receiver to electronically attach the Deputy Registrar’s order created a defect in the bankruptcy notice;

(b)    whether there was “substantial compliance” with the required form of the bankruptcy notice within s 25C of the Acts Interpretation Act 1901 (Cth);

(c)    whether that defect was a “formal defect or irregularity” within s 306(1) of the Bankruptcy Act;

(d)    whether the defect made the bankruptcy notice a nullity.

78    Section 41 of the Bankruptcy Act provides, relevantly:

(1)    An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a)    a final judgment or final order that:

(i)    is of the kind described in paragraph 40(1)(g); and

(ii)    is for an amount of at least $5,000; or

(b)    2 or more final judgments or final orders that:

(i)    are of the kind described in paragraph 40(1)(g); and

(ii)    taken together are for an amount of at least $5,000.

(2)    The notice must be in accordance with the form prescribed by the regulations.

…

(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.

…

(7)    Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.

79    Regulations 4.01 and 4.02 of the Bankruptcy Regulations provide:

4.01    Application for bankruptcy notice

(1)    Subject to subregulation (2), to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver:

(a)    an application in the approved form; and

(b)    1 of the following documents in relation to the final judgment or final order specified by the person on the approved form:

(i)    a copy of the sealed or certified judgment or order;

…

4.02    Form of bankruptcy notices

(1)    For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed.

(2)    A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).

(3)    Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901.

80    Section 306(1) of the Bankruptcy Act provides:

306    Formal defect not to invalidate proceedings

(1)    Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.

81    The judgment of the Full Court in Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458 is highly relevant to the present case. Curtis also concerned a bankruptcy notice that was issued electronically. AFSA’s automatically generated email to the creditor’s solicitors electronically attached the endorsed bankruptcy notice and a copy of the final judgment with which the creditor had uploaded with its application. The debtor argued that a copy of the final judgment was required to be physically attached to the bankruptcy notice at the time of its issue, and that an electronic attachment was not sufficient.

82    The Full Court held, firstly, that attaching a copy of the final judgment or order to the bankruptcy notice at the time of issue is a requirement of s 41(2) of the Bankruptcy Act and reg 4.02(2) of the Bankruptcy Regulations. Secondly, the Full Court held that ss 3(b), 5, 8, 9 and 11 of the Electronic Transactions Act 1999 (Cth) and, arguably, reg 16.01 of the Bankruptcy Act permit the issuing of a bankruptcy notice by electronic means. Thirdly, the Full Court held that where a PDF of the bankruptcy notice and a PDF of the judgment or order are electronic attachments to the same email, the judgment or order is attached to the bankruptcy notice. Fourthly, the Full Court said, in obiter, that even if the judgment was not strictly attached to the bankruptcy notice at the time of issue, there had nevertheless been substantial compliance for the purpose of s 25C of the Acts Interpretation Act 1901 (Cth). Fifthly, in obiter, the Full Court concluded that if the judgment was not attached to the bankruptcy notice at the time of issue and if there had not been substantial compliance, then the bankruptcy notice would be a nullity and the defect or irregularity would not be cured by s 306(1) of the Bankruptcy Act. This fifth point is particularly relevant to the present case.

83    In the present case, the bankruptcy notice was founded on two separate orders of the District Court, namely the order made by Everson DCJ and the order made by the Deputy Registrar, and only one of the two orders was attached. The situation postulated in the fifth point made in Curtis was one where only one judgment or order was relied upon, and that order was not attached. The first respondent argues that this is a crucial distinguishing factor.

84    In Curtis, the Full Court described the significance of the attachment of the judgment or order to the bankruptcy notice as follows:

31    First, the final judgment or order on which the bankruptcy notice is based is a foundational element. So much is made plain by s 41(1) and 41(3) which stipulate it as a necessary condition to the issue of the bankruptcy notice by the Official Receiver. Section 40(1)(g) also reinforces the point in describing the relevant act of bankruptcy. The statutory language requires identification of the judgment as a condition of issue. The act of bankruptcy has the judgment as its fundamental substratum. Moreover, the steps that a debtor might take to extend the time for compliance with the bankruptcy notice or to set it aside first requires identification of the final judgment or order.

32    Second, and relatedly, the Official Receiver’s administrative act in issuing a notice requires an identified final judgment or order. In the absence of attaching the final judgment or order, the identification of the foundation of the administrative act by the Official Receiver in issuing the bankruptcy notice would not be able to be adequately ascertained.

33    Third, Form 1 is not comprehensible without a copy of the final judgment or order being attached. On its face, and without the final judgment or order being attached, it would not provide to the reader, including the debtor, details of the principal debt. A reader of the notice at the time of issue, including the debtor, could not make sense of the notice without such an attachment to work out the debt relied upon. One purpose that a bankruptcy notice must serve is to convey to the debtor how the debt that is alleged to be owing is said to have arisen (see Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324 at [38] per Weinberg J). Further, the bankruptcy notice would not enable the reader, including the debtor, to take the steps referred to in paras 4 and 5 on the second page of Form 1, if the information set out in the notice was the only available information.

85    The Full Court’s reasoning as to why the bankruptcy notice which does not attach the judgment or order is a nullity was as follows:

63    Generally, it seems to us that the attaching of a copy of the judgment or order to the bankruptcy notice at the time of issue is essential. We have set out the significance of the judgment as a foundation for the issue of the notice and the significance of the judgment debt being properly identified (see [31]-[34]). Further, the authorities referred to at [35] demonstrate such a requirement to be essential at the time of service. Equally, we would consider that the requirement is essential at the time of issue, for that is when validity needs to be assessed. Not to have the copy judgment so attached at the time of issue entails that the foundation for the notice and the basis for the administrative act of issue has not been properly identified. Moreover, the notice on its face would be incomplete and uncertain in an essential respect.

64    There is another reason why s 306(1) does not apply.

65    A defect is substantive and not formal if the defect is reasonably capable of misleading the debtor. In our view, not to attach a copy of the final judgment or order at the time of issue is reasonably capable of misleading the debtor. Validity in this respect is to be determined at the time of issue, not just at the time of service. The fact that the debtor may not have been actually misled, because it was in fact attached at the time of service, but not at the time of issue, is not to the point.

66    At the time of issue, without the attachment, a reader, let alone the debtor, could not know from the face of the notice what the basis of the debt was, the basis of the administrative act of issue by the Official Receiver or the steps that the debtor could take as identified in paras 4 and 5 on the second page of the notice. By having the identity of the debt and, as a consequence, the subject matter of the notice open, uncertainty is created about the basis of the notice and the steps that might be taken in terms of necessary steps to set aside the judgment or to set up a counterclaim that could not have been set up in the action leading to the judgment; something which is uncertain is capable of misleading.

67    For the above reasons, if there was a defect in not attaching a copy of the judgment to the bankruptcy notice and there was not substantial compliance as envisaged by reg 4.02(3), then such a defect would not be cured by s 306(1).

(Citations omitted.)

86    In my opinion, application of the Full Court’s reasoning in Curtis must result in a conclusion that the bankruptcy notice in this case is a nullity. Even though the order of Everson DCJ was attached to the bankruptcy notice, the bankruptcy notice was also founded upon the order of the Deputy Registrar, which was not attached. The order of the Deputy Registrar formed part of the “fundamental substratum” of the act of bankruptcy. Without attaching a copy of the order of the Deputy Registrar, the reader was not provided with details of a significant part of the principal debt. The bankruptcy notice would not adequately inform the reader of his or her ability to apply to extend the time for compliance or apply to set aside the bankruptcy notice. The uncertainty created by the failure to attach the Deputy Registrar’s order was capable of misleading a person reading the bankruptcy notice.

87    In addition, there was a particular importance of the order of the Deputy Registrar. Section 44 of the Bankruptcy Act provides, relevantly:

(1)    A creditor’s petition shall not be presented against a debtor unless:

(a)    there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000 or 2 or more debts that amount in the aggregate to $5,000…;

…

(2)    Subject to subsection (3), a secured creditor shall, for the purposes of paragraph (1)(a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security.

(3)    A secured creditor may present, or join in presenting, a creditor’s petition as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of a sequestration order being made against the debtor.

(4)    Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security.

…

88    It will be recalled that the first respondent issued a first bankruptcy notice based only upon the order of Everson DCJ, but then applied for the issue of the second bankruptcy notice. The primary judge observed that the reason why the second bankruptcy notice relied upon both the order of Everson DCJ and the order of the Deputy Registrar was that the first respondent held security for part of the amount owed to it. Unless the first respondent was prepared to give up its security, the amount owed may not have exceeded the $5,000 threshold required to allow the first respondent to present a creditor’s petition pursuant to ss 44(1), (2) and (3). However, once the amount of the costs under the Deputy Registrar’s order and interest were added, there would be an excess of debt over the value of security of some $21,000, and that was sufficient to support the creditor’s petition.

89    It is necessary to evaluate the significance or importance of the defect in the circumstances of the case: Adams v Lambert (2006) 228 CLR 409 at [26]–[29]. Without the Deputy Registrar’s order, the first respondent would not be entitled to present a creditor’s petition unless it indicated that it was willing to surrender its security. The Deputy Registrar’s order was, therefore, an important and significant part of the bankruptcy notice. The failure of the Official Receiver to attach that order when the bankruptcy notice was issued was not merely a formal defect or irregularity.

90    If the appellant is permitted to rely on the first ground and the evidence of the AFSA officers, I would find that the bankruptcy notice is a nullity. I would find that no issue arises under s 306(1) of the Bankruptcy Act, so that the evidence the first respondent claims it could lead for the purposes of s 306(1) would be irrelevant.

91    In all but the most exceptional circumstances, a party is bound by the conduct of its own case. There is a strong public interest in the finality of litigation. It is true that no adequate explanation has been provided for why the appellant did not seek discovery of correspondence between the first respondent and the Official Receiver before the Federal Circuit Court, or seek a copy of the bankruptcy notice from the Official Receiver. If that had been done, the fact that the bankruptcy notice was issued with only one judgment attached would have been discovered and argued before the Federal Circuit Court.

92    However, I consider that the factor which was most important to the failure of the appellant to take the point in the Federal Circuit Court was the misleading conduct of the first respondent’s solicitors. They in effect disguised from the appellant and the Federal Circuit Court the fact that the bankruptcy notice had been issued with only one order attached and that they had attached the second order.

93    It is also relevant that the making of a sequestration order has serious consequences that have been described as quasi-penal: Hamilton v Warne (1907) 4 CLR 1293 at 1297 per Griffith CJ, 1300 per Issacs J and 1302 per Higgins J, Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 148 per Davies, Lockhart and Neaves JJ.

94    In these exceptional circumstances, the interests of justice dictate that the appellant should be permitted to raise her first ground in the appeal and to rely on the evidence of the officers of the Official Receiver.

95    For the reasons I have given, the bankruptcy notice is a nullity. The first ground must succeed.

The second ground: Failure to serve the bankruptcy notice as issued by the Official Receiver

96    The appellant’s second ground is related to the first ground. Section 41(1) of the Bankruptcy Act allows an Official Receiver to issue a bankruptcy notice. Section 40(1)(g) requires the creditor to serve “a bankruptcy notice under this Act” on the debtor. The appellant’s argument is that by attaching or adding the Deputy Registrar’s order to the bankruptcy notice issued by the Official Receiver, the first respondent altered the bankruptcy notice. The argument is also that the bankruptcy notice that was served was not “a bankruptcy notice under this Act” required by s 40(1)(g) to be served.

97    In Circle Credit Co-op Ltd v Lilikakis (2000) 99 FCR 592, Heerey J said at 595–596.

One essential feature of a bankruptcy notice has always been that it is not merely a demand by a creditor, even a judgment creditor, but is a document which comes from an official source – either the Court (before the Bankruptcy Legislation Amendment Act 1996 (Cth)) or an Official Receiver. A notice which is altered without the Official Receiver's authority does not answer that description – regardless of whether the notice in its altered form might or might not mislead or confuse the debtor.

98    By attaching or adding the Deputy Registrar’s order to the bankruptcy notice, the first respondent’s solicitors altered the bankruptcy notice. In my opinion, the bankruptcy notice served on the appellant was not one issued by the Official Receiver. The second ground must succeed.

99    The course taken by the first respondent’s solicitors, although wrong, was understandable. However, the correct course would have been to point out to AFSA the defect in the system and seek to have a fresh bankruptcy notice issued.

The third ground: Issue and service of the second bankruptcy notice was an abuse of process

100    The appellant’s third ground of appeal is that the primary judge erred in failing to find that the issue and service of the second bankruptcy notice was an abuse of process in the circumstances of the case.

101    It will be recalled that a first bankruptcy notice was issued on 10 May 2013 for a judgment debt of $150,552.49 based upon the order of Everson DCJ. On 6 September 2013, the primary judge dismissed the appellant’s application to set aside that bankruptcy notice.

102    Then on 16 October 2013, the second bankruptcy notice was issued, relying on both the order of Everson DCJ and the order of the Deputy Registrar as to costs. The appellant applied for orders setting aside the second bankruptcy notice, but that application was dismissed with costs on 15 August 2014.

103    The appellant argues that the first respondent was required to make an election as to which bankruptcy notice to proceed with, and that its failure to do so while proceeding on the second bankruptcy notice was an abuse of process.

104    In Abignano v Wenkart [1998] FCA 1468, the Full Court said at 4:

We also consider that, where the same creditor issues two bankruptcy notices, one after the other, the creditor is required to make an election as to which bankruptcy notice it is with which the debtor is required to comply.

105    The Full Court then cited a passage from Re Fredericke and Whitworth Ex parte Hibbard [1927] 1 Ch 253 and continued:

In our view, his Lordship in that passage recognised that it is open to a creditor to issue a fresh bankruptcy notice for the purpose of circumventing or overcoming a challenge or possible challenge to an earlier notice. We consider that to have happened here.

106    In Genovese v BGC Construction Pty Ltd (2005) 215 ALR 440, Lander J said:

99    A creditor is entitled to issue a second bankruptcy notice to cure a defect in a previous bankruptcy notice: Abignano v Wenkart [1998] FCA 1468; Re Fredericke and Whitworth; Ex parte Hibbard [1927] 1 Ch 253. The authority to which the appellant referred Re a Debtor; Ex parte Debtor v National Westminster Bank Plc is not to the contrary.

100    If a creditor adopts such a course the creditor must elect as to which bankruptcy notice the creditor intends to proceed so that the debtor knows with which bankruptcy notice he or she must comply: Abignano v Wenkart.

…

105    The purpose of a bankruptcy notice is to put the debtor clearly on notice of the identity of the judgment creditor and the amount of the judgment so that the debtor can meet that judgment and avoid committing an act of bankruptcy. In other words, its purpose is to inform the debtor who and what he/she must pay to avoid an act of bankruptcy.

106    In those circumstances, the judgment creditor must avoid creating confusion in the debtor’s mind which might lead the debtor to either pay an incorrect amount or a correct amount to an incorrect party.

107    The appellant argues that the first respondent failed to make an election as to which of the two bankruptcy notices it pursued, and that it had proceeded with the first bankruptcy notice by obtaining an order for costs when the appellant’s application to set aside that notice was dismissed.

108    It appears that the first respondent did not make any direct statement to the Federal Circuit Court or the appellant at any stage that it elected to pursue the second bankruptcy notice only.

109    When the appellant applied to set aside the first bankruptcy notice, the time for compliance with that notice was extended pursuant to s 41(7) until the day on which the Court determined that application. The application was dismissed on 15 August 2014. The appellant committed an act of bankruptcy on that day when she failed to comply with the notice.

110    When the first respondent served the second bankruptcy notice, there was no question of the appellant being able to comply with the first bankruptcy notice. The time for compliance had already passed. There was only one bankruptcy notice, the second one, with which she could comply. There was no possibility of confusion on the part of the appellant that she was required to comply with the second bankruptcy notice. The situation in the present case is quite different to Genovese, where the first bankruptcy notice was capable of being complied with at the time when the second was served. In my opinion, there was no need to make an election in these circumstances.

111    In Genovese, the abuse of process was complete when the first respondent allowed the Federal Magistrate to give his decision and make an order for costs in respect of a bankruptcy notice that the first respondent did not intend to rely on. It was an abuse of process to allow the Court to think that the first respondent was still relying on the bankruptcy notice and obtain the Court’s opinion on the validity of that notice when the creditor intended to rely on another bankruptcy notice instead. That is not the situation in the present case, where the decision of the primary judge concerning the first bankruptcy notice and costs had been given well before the second bankruptcy notice was issued and served.

112    In these circumstances, neither the service of the second bankruptcy notice or its prosecution was an abuse of process. The third ground of appeal must fail.

The fourth ground: Invalidity of bankruptcy notice because it did not attach the order of the Court of Appeal

113    There was a third order which dealt with costs, namely the order of the Court of Appeal which set aside Everson DCJ’s order that the appellant pay costs on an indemnity basis and substituted an order that the appellant pay costs on the standard basis. The appellant’s argument is that the primary judge ought to have found that the bankruptcy notice was a nullity because the order of the Court of Appeal was not attached.

114    The appellant relied upon Stec v Orfanos [1999] FCA 457, where the Full Court held at [15], that it is the “operative order which imposed the liability to pay costs” which must be attached and that it is necessary to identify “the source of the obligation to pay those costs”.

115    In Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441, Finkelstein J held at [7]:

Where, as here, a taxing master undertakes a taxation in consequence of an order made by a judge of the court, the taxing master’s order is not capable of enforcement. It is not, therefore, a final judgment or order of the Supreme Court and cannot be relied upon to found a petition. Accordingly, the bankruptcy notice is defective in that there was not attached to it copies of the final orders which were the foundation for the debt described in the notice.

116    In the present case, the bankruptcy notice relied upon the order of the Deputy Registrar. That order stated:

THE COURT ORDERS THAT:

1.    The defendant pay the plaintiff’s costs pursuant to:

(a)    the order of Judge Everson dated 7 November 2012 as varied by the Court of Appeal on 28 May 2013; and

(b)    the certificate of the costs assessor filed on 11 September 2013, assessed at $73,962.08.

117    The procedure for the assessment of costs is set out in Pt 3 of Ch 17A of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). That procedure includes the appointment of a costs assessor, certification by the costs assessor of the amount of costs payable and the filing of a certificate of assessment. Rule 740 provides, relevantly:

(1)    After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.

(2)    The order takes effect as a judgment of the court.

118    Rule 794 of the UCPR provides:

A money order may be enforced under this chapter.

119    The expression “money order” is defined in Sch 5 of the Supreme Court of Queensland Act 1991 (Qld) to mean:

[A]n order of the court, or part of an order of the court, for the payment of…an amount…whether or not the amount is or includes an amount for interest or costs.

120    The order made by the Deputy Registrar is a “money order” of the District Court and is capable of enforcement. In my opinion, the Deputy Registrar’s order can be described, in its own right, as the source of the appellant’s obligation to pay the costs and the foundation of the debt described in the bankruptcy notice. It is a “final order” within s 41(1) of the Bankruptcy Act. It was unnecessary for the bankruptcy notice to attach the order of the Court of Appeal. Therefore, the appellant’s fourth ground cannot succeed.

The fifth ground: The bankruptcy notice is invalid on the basis that it did not correctly identify the debtor

121    The loan documents identify the debtor as Patricia McBride, Patricia Ann McBride and Patricia Anne McBride. The appellant admitted in the District Court that she did borrow the money pursuant to the loan agreement. She changed her name to Patricia Anne in July 2009. This was after she had entered the loan agreement, but before proceedings were commenced against her in the District Court.

122    The appellant’s argument as to the invalidity of the bankruptcy notice because it uses her former name is not clearly articulated. It appears to have two aspects. The first is that the first respondent was not entitled to commence proceedings against the appellant under her former name and that the District Court proceedings are invalid for that reason. The second aspect is that the bankruptcy notice misdescribes the debtor.

123    As to the first of those arguments, the appellant has pointed to no statutory provision or authority which indicates that a person cannot be sued in his or her former name. There is no substance in this argument.

124    As to the appellant’s argument that she was misdescribed in the bankruptcy notice, she referred to Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324, where Weinberg J said:

38    One of the purposes that a bankruptcy notice must serve is to identify with clarity both who the creditor is, and who the debtor [is]. It must also convey to the debtor how the debt that is alleged to be owing is said to have arisen. These are matters of substance, and not matters of form.

39    In the present case, I am quite satisfied that the appellant was at all material times well aware of who the creditor was, and the basis upon which the debt was said to be owing. However, Australian Steel makes it clear that whether or not the debtor is actually aware of these matters is not the test. The bankruptcy notice must spell them out. The debtor is not required to put two and two together, and come to the obvious conclusion. It is not sufficient to say that the debtor must have known who the creditor was, and why the money was owing. The surrounding circumstances cannot substitute for what the bankruptcy notice must itself contain.

125    In McWilliam v Jackson (2000) 96 FCR 561, Wilcox J was concerned with a case where the creditor was identified in the bankruptcy notice as “Anthony Jackson & Ors”. His Honour held that it was essential that the bankruptcy notice properly identify the persons who constituted the creditor, but the notice did not do that and it was a nullity.

126    The present case is somewhat different from those in which the creditor was misdescribed. In Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494 at 500, Lockhart J held that it is the capacity of the bankruptcy notice to mislead the debtor to whom the notice is directed that matters, not its capacity to mislead some hypothetical debtor. The appellant knew that she had changed her name from Patricia Ann (or Anne) McBride to Patricia Anne. A person in her position could not have been misled into thinking that the bankruptcy notice was directed to a different person.

127    In Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670, Kiefel J said at [10]:

10    Mr Matheson has referred me to the definition of ‘legal name’ in Black’s Law Dictionary, 8th edn, ed BA Garner, West Pub Co, USA (2004) pg 1048 as ‘a person’s full name as recognised in law’. That does not however mean that a court document such as a bankruptcy notice or petition is void if the full legal name of the person is not provided. There is no doubt that Mr Matheson is the person named in the District Court proceedings and in these proceedings and that he has understood that to be the case. He has represented himself and appeared. There was no ambiguity created by the bankruptcy notice or petition. In any event if there was an irregularity in the mode of description, it is of a formal nature and one that can be validated by s 306(1) of the Bankruptcy Act: Re Draper; Ex parte Australian Society of Accountants (1989) 154 FCR 41. A ‘formal defect or an irregularity’ within the meaning of that section is one that could not reasonably mislead the debtor: Re Wimbourne; Ex parte The Debtor (1979) 24 ALR 494. In my opinion, the petition notice does not cause any injustice as it was not likely to mislead the debtor.

128    In my opinion, that passage has direct application to the present case. Any misdescription of the appellant in the bankruptcy notice did not cause any injustice, as it was not likely to mislead the appellant. The fifth ground of appeal must be dismissed.

The sixth ground: The primary judge erred in failing to exercise the Court’s discretion to go behind the orders

129    The appellant’s argument is that the funds had in fact been paid by Impact Funding Ltd, not the first respondent, Ask Funding Ltd under its former name Impact Capital Ltd. She argues that any debt is owed to Impact Funding Ltd, not the first respondent.

130    As I have indicated, the appellant conceded in the hearing before Everson DCJ that she had received money under the loan agreement. The transcript shows that in cross-examination, the appellant was asked:

You appear to have received the moneys. You appear to have admitted in Court that you’ve received the moneys and you haven’t repaid them.

131    The appellant replied:

I never denied that fact, your Honour.

132    Later, Everson DCJ asked the appellant:

Why shouldn’t you pay the money back?

133    The appellant answered:

I want to pay the money back.

134    Later the appellant said:

I just wanted to make sure I was paying the right amount of money and what I actually owed.

135    In his Honour’s reasons, Everson DCJ said:

The plaintiff has disclosed in this material that the defendant entered into loan agreements and that significant payments were made to her and on her behalf. The defendant does not dispute that she is the beneficiary of significant sums of money but alleges that procedural irregularities have occurred and that she does not know exactly what she owes.

136    In McBride v Ask Funding Ltd [2013] QCA 130, the Court of Appeal held that the loan amount under the agreement of 3 February 2006 had been disbursed in accordance with the appellant’s instructions. It concluded that there was no real prospect of the appellant successfully defending any part of the claim.

137    The only reasonable inference available from the evidence before the Court is that Impact Funding Limited disbursed the money under the first respondent’s instructions and that the first respondent was acting in accordance with the loan agreement in giving those instructions. There is no other explanation for why Impact Funding Limited would have otherwise paid the amount that the appellant was to be lent under the loan agreement. There is no evidence to the contrary. The appellant failed to establish any basis for the primary judge to exercise the Court’s discretion to go behind the judgment of the District Court.

138    The appellant sought to adduce new evidence, namely an affidavit of an actuary, Lisa Chadwick. The evidence is said to support an allegation that at least one of the payments could not have taken place in the manner pleaded and deposed to by the first respondent. It is said that at the date the funds were said to be advanced under the second loan agreement, the true balance of the first loan was $21,343.14; and this figure is inconsistent with the amount of $21,283.78 alleged to be owed at that date under the first loan agreement. It is submitted that this demonstrates that the first respondent had not repaid the first loan to Impact Funding Ltd.

139    The appellant indicates that she had been trying to obtain an affidavit from Ms Chadwick but it “could not be procured by the time of the hearing of the creditor’s petition”. The primary judge refused an adjournment to allow the affidavit to be obtained. There is no satisfactory explanation as to why the affidavit of Ms Chadwick was not obtained for the purposes of the hearing below. In any event, the minor discrepancy pointed to by the appellant is readily explicable by mathematical error and does not demonstrate that the loan under the first loan agreement was not repaid. I decline to allow Ms Chadwick’s affidavit to be admitted in the appeal.

140    The sixth ground of appeal cannot succeed.

The seventh ground: Denial of procedural fairness

141    The appellant submits that she was denied procedural fairness by the primary judge’s failure to direct that she be provided with:

(a)    all of the material relied on by the first respondent in its ex parte application for substituted service before a Deputy Registrar on 24 September 2014;

(b)    other material filed by the first respondent up to 29 October 2014;

(c)    at least one of the affidavits required under r 4.06 of the Bankruptcy Rules.

142    It is not easy to understand precisely what the appellant’s complaints are. It is unclear why it is said that the primary judge ought to have directed that she be provided with the various items of material.

143    The Federal Circuit Court Rules 2001 (Cth) do not make provision for the parties to inspect filed documents in proceedings other than Family Law proceedings. Where the Federal Circuit Court Rules do not make provision for a matter, the Federal Court Rules apply: r 1.05(2) of the Federal Circuit Court Rules. Rule 2.32(1) of the Federal Court Rules allows a party to inspect any document in the proceeding except certain documents where a claim for privilege has been made or where a confidentiality order has been made. The appellant did not require any order of the primary judge in order to be able to inspect all the documents on the Federal Circuit Court’s file. She has not explained why she did not do so. In addition, it is not apparent from the material before me that any request was made to the primary judge for an order that she be provided with any of the documents.

144    The appellant appears to complain that she was not served with a number of documents relied on by the first respondent. The first respondent’s written submissions before the Federal Circuit Court are in evidence. They identify the documents that the first respondent relied upon in support of the creditor’s petition. The appellant made no objection to that material being read. The appellant is bound by her conduct of the case below. As she did not object to the petitioning creditor’s reliance on any of the material referred to in the written submissions, it is not now open to her to complain that she was not served with copies of those documents.

145    The seventh ground of appeal cannot succeed.

Summary

146    In summary, the appellant has succeeded on what I have described as the first and second grounds of the appeal. The orders of the Federal Circuit Court must be set aside.

147    My present inclination is that I should make no order as to the costs of the appeal, but I will give the parties the opportunity to make submissions as to costs.

148    The appeal has exposed significant deficiencies with AFSA’s system for electronically issuing bankruptcy notices in circumstances where the creditor relies on two orders and one of those orders is an order for costs. The outcome of this appeal has resulted from those deficiencies. While this may be small comfort for the first respondent, it may be appropriate for consideration to be given to refunding the fee for the bankruptcy notice paid by the first respondent pursuant to s 65 of the Public Governance, Performance and Accountability Act 2013 (Cth) or waiving the fee for any fresh bankruptcy notice. I will direct that the Registrar provide a copy of these reasons to AFSA.

Associate:

Dated:    23 October 2015