FEDERAL COURT OF AUSTRALIA

Hall v Bank of Australia Limited, in the matter of Hall [2019] FCA 514

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s interlocutory application for review of a Registrar’s decision be dismissed.

2.    The Respondent pay the Applicant’s costs of the interlocutory application, if any, that he is entitled to recover as a self-represented litigant, as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an interlocutory application to reinstate a bankruptcy notice issued at the request of Bank Australia Limited ACN 087 651 607 (the Bank) that had been set aside by a Registrar of this Court on 13 December 2018.

Background

2    Mr Hall was served with a bankruptcy notice in September 2018.

3    On 18 October 2018 Mr Hall filed an application for orders (a) dismissing the bankruptcy notice; and (b) for an extension of time to comply with the notice. As is relevant to this proceeding, it is unnecessary in these reasons to refer to the grounds then advanced in support of the orders sought or to consider their adequacy.

4    Mr Hall’s application having been filed, later on the same day Registrar Ryan made orders, inter alia:

1.    The time for compliance with bankruptcy notice BN 229193 of 2018 be extended until 4:30 p.m. on 29 November 2018.

2.    The applicant serve the application, a copy of the affidavits in support and a sealed copy of this order on the respondent forthwith.

5    The hearing of Mr Hall’s application was set down for 29 November 2018.

6    It is not in dispute that Mr Hall complied with Order 2 of the 18 October 2018 orders. He took steps to serve the Bank’s lawyers, Velos Lawyers.

7    Service was effected on the Bank’s solicitors by an email sent by Mr Hall on 19 October 2018.

8    That email was not the sole method employed by Mr Hall to serve notice on Velos Lawyers. He also sent copies to them by registered mail. Mr Bragianis, the solicitor acting for the Bank within Velos Lawyers, exhibits to his affidavit of 14 March 2019 a copy of Mr Hall’s letter as received by Velos Lawyers dated 18 October 2018.

9    The Bank advances no case that Mr Hall was not entitled to serve it by its solicitors.

10    When the matter came before Registrar Burns on 29 November 2018 there was no appearance on behalf of the Bank. Mr Hall had earlier filed an affidavit (on 27 November 2018) deposing to his having effected service.

11    The Registrar thereupon ordered:

1.    The further hearing of the application be adjourned to 13 December 2018 at 11:00 am.

2.    The time for compliance with bankruptcy notice number BN 229193 of 2018 be extended to 4:30 pm on 13 December 2018.

3.    The applicant notify the respondent in writing of this order as soon as is practicable.

4.    There be no order as to costs.

12    On 13 December 2018 Mr Hall’s adjourned application came before the Registrar for hearing as had been foreshadowed in those orders, but again there was no appearance on behalf of the Bank.

13    There is no transcript of what occurred before the Registrar on 13 December 2018 before me, but the Bank makes no suggestion that the Registrar erred by making orders in the absence of evidence from Mr Hall that he had notified the Bank of the orders earlier made on 29 November 2018.

14    Unsurprisingly in the circumstances, the Registrar made orders on 13 December 2018 as follows:

1.    Bankruptcy notice number 229193 of 2018 be set aside.

2.    There be no order as to costs.

The Bank’s interlocutory application

15    On 14 January 2019 the Bank filed an application in which it applied for interlocutory orders that bankruptcy notice number 229193 of 2018 be reinstated. Its application was supported by an affidavit of Ms Nicole Tsotras affirmed the same day.

16    In that affidavit Ms Tsotras deposes relevantly as follows:

5.    On 19 October 2018, the applicant served the respondent with the Federal Court order dated 18 October 2018, his application for extension of time and affidavit in support of this application. Upon receipt of this email, our office inadvertently overlooked the notice of hearing contained in these documents. …

7.    On 29 November 2018, the applicant’s application for extension of time proceeded in the Federal Court. The respondent did not attend, for having overlooked the application hearing date. At this hearing, an order was made by Registrar Burns including that the application be adjourned to 13 December 2018, and that the applicant notify the respondent in writing of this order as soon as practicable. …

8.    The respondent did not receive notification, in writing or otherwise, of the order made on 29 November 2018 by Registrar Burns.

9.    The hearing of the application proceeded on 13 December 2018, unbeknown to the respondent, and an order setting aside the bankruptcy notice was made. …

10.    I only became aware of the order dated 13 December 2018 on 10 January 2019, when I conducted a search [of] the Court records for the purpose of proceeding with the creditor's petition. Upon becoming aware of the order I immediately made an application to this Court to have the bankruptcy notice reinstated.

17    In her affidavit Ms Tsotras advised that the Bank’s application was advanced pursuant to r 3.11 of the Federal Court Rules 2011 (Cth).

18    However, the substantive power to be exercised where a review of a Registrar’s decision is sought is that conferred by s 35A(6) of the Federal Court of Australia Act 1976 (Cth). It is uncontentious that such a review extends to both findings of fact and law and is in the nature of a hearing de novo.

19    On 21 February 2019, Mr Hall filed an affidavit responding to the Bank’s application in which, inter alia, he deposed that he had not only sent notice of the orders made on 29 November 2018 by prepaid post to Velos Lawyers, but had also had emailed copies to Mr Bragianis as a courtesy.

20    I will return to the evidence relevant to the determination of this review in due course, but it is appropriate first to mention a question dealt with during a directions hearing I conducted on 21 February 2019.

21    At the case management hearing, Mr Velos of Velos Lawyers appeared for the Bank. There were discussions between the bench and the parties as to the scope of what would be in issue in the hearing of the Bank’s application for review. It is not necessary to canvass that discussion in detail. It is sufficient to note that Mr Velos accepted that the sole dispositive question that the Court would need to determine was not whether Velos Lawyers had been unaware of the adjourned 13 December 2018 hearing date, but whether Mr Hall had sent the documents as he asserted he had done in his affidavit. I dealt with the matters required for the preparation of the hearing as follows:

HIS HONOUR: Thank you. Well, Mr Velos and Mr Hall, I think the matter is very narrow in its compass, but essentially, Mr Hall, the orders of the registrar were that you were to advise the bank. You say you did so. The affidavit material before me, I assume, intends to put that matter in issue, but you are entitled to provide further affidavit material. In my view, you should be entitled to produce further affidavit material. You haven’t exhibited a copy of the email you sent. You should have the opportunity to do that – you say you sent – and any material or circumstances that might be evidence to show that you actually did send materials by prepaid post, as you assert, the date and circumstances, and you must, of course, be ready to be cross- examined when this matter is relisted. You understand those things, Mr Hall?

MR HALL: Yes, yes, I do.

HIS HONOUR: All right. How long do the parties think is an adequate time for both sides to file and serve any further affidavit materials upon which they would seek to rely?

MR HALL: Four weeks.

HIS HONOUR: Four weeks. That’s an awfully long time, Mr - - -

MR HALL: Is it? Sorry.

HIS HONOUR: Well, look, I would suggest - - -

MR VELOS: Once Mr Hall – yes.

HIS HONOUR: Sorry, Mr Velos.

MR VELOS: Once Mr Hall’s affidavit is served upon my office, I can do – I can respond in seven days, and likewise, and we can have it set down. Mr Hall can respond in seven days and we can have a hearing quite quickly.

HIS HONOUR: Yes.

MR VELOS: Because the affidavit material will be very simple.

MR HALL: I’ve actually – I don’t know if I can talk at the moment, but I’m actually happy to go to, like, a mediation or something like that if that sounds - - -

HIS HONOUR: Well, look, there’s no point in mediation, Mr Hall. If in truth the court is satisfied you didn’t send the material at the end of the day, and makes a finding to that effect, the bank – sorry – the court would in – save if I was persuaded for some reason that I don’t apprehend at the moment – would allow the reinstatement application.

MR HALL: Okay.

HIS HONOUR: Mr Velos has accepted that if the court is ultimately persuaded that the material was sent, I should deny the reinstatement application. It’s a very short point.

MR HALL: Okay.

22    However, when the matter came before me for hearing Mr Colman, not Mr Velos, appeared for the Bank. Mr Colman in opening submitted that there seemed to be two questions before the Court: first, whether Mr Hall had failed to comply with the orders made on 29 November 2018; and, second, whether Mr Hall had actually succeeded in bringing his communications to the Bank’s attention.

23    Having regard to the conduct of the earlier interlocutory proceeding and the position as had been accepted by Mr Velos during those proceedings, I indicated to Mr Colman that the Court was not minded to entertain the second question.

24    I interpolate that in the circumstances that potentially might have arisen, procedural fairness would have required me, at least, to grant Mr Hall an adjournment so that he could give consideration to and make submissions about a question that, until that time, he had had every reason to think was not in issue. However, such potential considerations became moot.

25    Mr Colman indicated he was satisfied not to press the second question and the hearing of the Bank’s application proceeded on that basis. It will be determined it on that basis.

Evidence of witnesses called on behalf of the Bank

26    Mr Colman called two witnesses to give evidence. They were Ms Tsotras and Mr Bragianis.

Ms Tsotras

27    Ms Tsotras gave affidavit evidence consistent with her affidavit, as set out at [16] above.

28    In cross-examination, Mr Hall asked Ms Tsotras about the system Velos Lawyers had in place for the receipt of mail. Her evidence was that all incoming mail was opened by reception staff, stamped with the date of its receipt, and then placed in folders to be reviewed by Mr Velos, prior to being distributed to the appropriate file operator (that is, the person responsible within the firm for a particular file). Ms Tsotras gave evidence that she herself had opened, stamped and distributed mail, and that is how she knew the process. She gave the following evidence:

MR HALL: Also is there a – so when you open the mail, is there a register of each – like a recording taken down in a register – of what has been received?---No, there isn’t, Mr Hall.

So how do you know that the documents weren’t received and they’ve just been misplaced or – that was around holiday time and Christmas – around the Christmas period. How do you know that you haven’t received the documents?---I can’t know that.

29    Ms Tsotras testified that after having become aware of the orders of 13 December 2018 Velos Lawyers had checked all of its “documents received” and “our files”. That had led her to find both the written and email correspondence Mr Hall had sent giving notice of the hearing of 29 November 2018 which had been overlooked. That was “an error of my office”.

30    She acknowledged that Velos Lawyers had access to the Federal Law portal but, “from memory, [does] not believe [Velos Lawyers] receive notification when another party files a document, only confirmation when we file our own documents”.

31    In re-examination, Ms Tsotras clarified that the search she conducted had found nothing from Mr Hall notifying Velos Lawyers of the adjourned hearing that had been listed for 13 December 2018.

Mr Bragianis

32    Mr Bragianis’ evidence in chief was as contained in his affidavit filed 15 March 2009.

33    Mr Bragianis deposes that he is the solicitor for the Bank. He deposes that he had not received an email containing the Orders of Registrar Burns made on 29 November 2018 from Mr Hall.

34    He further deposes that he had not received any such documents sent by Mr Hall by pre-paid post. He had undertaken enquires of all personnel in his office and had been informed that no other person at Velos Lawyers had received such a letter.

35    Mr Bragianis deposes that he had only ever received two emails from Mr Hall, being those dated 5 October 2018 and 18 October 2018 respectively. His affidavit annexes at SB2 a screenshot showing those two emails as had been identified in a search of Mr Hall’s name and email address within his Outlook mail box. It appears from that screenshot that up to the time of that search both of Mr Hall’s emails remained unread.

36    Cross-examined by Mr Hall, Mr Bragianis explained that Nicole (Ms Tsotras) was the file operator for Mr Hall’s matter.

37    He was asked about the process of mail tracking within Velos Lawyers:

Okay. So if Bill Velos is reviewing all the mail that you receive every day, what’s not to – where’s the record to say that he has reviewed it? How do you know he has reviewed it?---You will have to ask Bill. I don’t – I don’t - - -

And what – what record do you have that he then actually then does pass on the mail to the – the parties? If he has received - - -?---Other than me receiving – other than me receiving my mail, I don’t have any record.

Okay. So why would documents that are to be served on you directly go to Bill Velos first?---Because he reviews all of the mail. He’s the principal of our firm, and then he distributes it to the file operator.

38    Mr Bragianis was then questioned about how he claimed to know Mr Hall’s correspondence had not been received by Velos Lawyers. He responded:

Well, like Nicole said, we searched the entire file. I went through my junk mail. I went through my deleted mail. I went through my inbox. I checked through Infinity to see whether or not it was saved on Infinity, which is the standard process. We checked through the hard copy of the file, and there was no document. There was no email, and there was also no post-consignment number, which we usually received as well. Everything else previously had been sent by registered post. In this case we didn’t have a post consignment number. So we did a thorough search through all systems. So we searched through Infinity, which everything is saved onto. We searched the hard copy. I searched through my emails, every single folder there. I even did a search of my emails, and, yes, there was no evidence of the emails that you alleged to have sent….

: Well, I’m wanting to know what you’re saying – if the email evidence I’ve provided in my affidavit confirms that the email address is correct, what is the issue then? Like, if it’s correct, how do we not know that you didn’t receive it and : Well, I’m wanting to know what you’re saying – if the email evidence I’ve provided in my affidavit confirms that the email address is correct, what is the issue then? Like, if it’s correct, how do we not know that you didn’t receive it and it’s just - - -?---I can’t answer that. All I can tell you is that I didn’t receive the email.

Evidence of Mr Hall

39    Mr Hall’s evidence in chief was by way of two affidavits read in the proceeding. In the first (dated 21 February 2019) Mr Hall relevantly deposes that he sent written notice of the order made by Registrar Burns adjourning his application to set aside the Bank’s bankruptcy notice until 13 December 2018 to Velos Lawyers by prepaid post, and that he had emailed copies to Mr Bragianis as a courtesy.

40    In a supplementary affidavit filed on 6 March 2019, Mr Hall relevantly deposed that he had sent an email to Mr Bragianis on 3 December 2018 advising him that stamped documents had been sent to him that day by post.

41    Mr Hall annexes a copy of that email to his supplementary affidavit as DHS-2. The email is addressed to Mr Bragianis. It is dated 3 December 2018. The time of sending is recorded as 3:19 pm. The text is brief:

Please see attached correspondence.

Original documents have been served on you today via post.

(salutations omitted.)

42    I interpolate that Mr Bragianis accepts that if Mr Hall sent that email, the address he sent it to was his.

43    Mr Hall was cross-examined as to statements he made from the bar table during the proceedings that he had done nothing different with respect to that correspondence with Velos Lawyers than he had done with other correspondence and emails he had sent to them. Mr Hall confirmed that had been what he had done.

44    He was then asked why, in that case, he had not exhibited (as he had in other instances) confirmation from Australia Post of the sending or receipt of his letter. Mr Hall’s explanation was twofold.

45    First, he had not thought that he would be in “this position where [Velos Lawyers] lost the documents”.

46    Second, when he had later become aware of the need to prove that he had sent the documents, he had not been able to find them. He believed they must have been packed in the course of him moving house. He was cross-examined as to that assertion:

MR COLMAN: A few moments ago, Mr Hall, you said when you were first aware that the question of the Express Post correspondence was an issue, you weren’t at that point packing up your boxes; you just did not have time?---I didn’t say that. I said that over the last two weeks I’ve been moving. However, I’ve been packing boxes – I was packing boxes when I was in the last hearing, the original court hearing we had in relation to Nicole’s application. I was packing documents then which is when I went trying to locate the documents. However, I was unable to do it. So the only documentation I have at the moment is reprints from the – well, I had the ones that were sent to me. However, I had to reprint all my documents off the ones I’ve lodged through the court system.

Were you packing your boxes on 21 January 2019?---Yes. I had a whole townhouse – a three-storey townhouse to pack up when – that’s my old home - - -

How far through? How far through the packing of your boxes were you on 21 February?---I would say – what are we now? We’re March. I would say that most of them were packed because I had a 14 metre garage full of stuff pretty much from floor to ceiling and so that’s where most of the stuff has been - - -

You received notification of - - -?---I don’t see why I’m talking about my removalist and packing. Why are we basing everything around that?

You received notification of the application on 21 February. What steps do you say you took to locating your boxes, the evidence of the Express Post letters?---Well, the boxes I believe that documentation were in I had gone through because I was trying to locate all my other affidavits I had lodged. It wasn’t meant to have been packed. However, I had other people assisting me and they accidentally packed those documents when they weren’t meant to be packed because obviously it’s a working file.

47    Mr Hall said he had contacted Australia Post to enquire if they could provide confirmation of his having sent the letter to Velos Lawyers, and its receipt by them, but that had been told that unless he had a reference number Australia Post could not assist him.

48     Mr Hall was then cross-examined as to the providence of his email dated 3 December 2018.

Yes. In your affidavit sworn in March, you exhibit what you say is an email that you sent to Mr Bragianis on 3 December 2018; yes? DHS2 – DSH2? Yes. Okay, yes.

Okay. What you do not exhibit, apart from the Express Post letter, is a copy of your Outlook Sent items file for the period to show the context in which that email was sent. You don’t do that, do you? What, sorry? No, I just printed off the email.

Okay. But you did not print off a copy of the Outlook Sent items ? That’s because my sent items get cleared every week and so do my Deleted. They automatically get removed.

You remove your own Sent items after a single week? Sorry.

You remove your Sent items after a single question; is that correct? Yes. Well, I’m not a law firm that requires retaining that sort of thing, so

Well then, how is it we’ve got a copy of an email purportedly sent by you on 3 December in an affidavit sworn in March? Because I actually save these documents under a Velos subfile.

Okay. And have you photocopied the Velos subfile to show the context in which this and other documents have been emailed? Well, no, I didn’t do that because I believed that the individual emails were enough.

You know an email of this form, I submit to you, I put to you, is not evidence of the email having been sent; that is, DSH2, and, for that matter, DSH1, is not evidence, is not the best evidence, of the email having been sent. The best evidence - - -?---I’m sorry, I’m not up to knowing what the best evidence is. I did my best.

But why wouldn’t you - - -?---Because - - -

Hang on. Let me just ask the question. Why wouldn’t you copy your Bill Velos subfile or archived file so that his Honour can see the affidavits or documents you’ve sent in the context of each other? Why wouldn’t you do that? Why wouldn’t I?

Yes. Why didn’t you as evidence ? Because I believed that the individual files were enough.

You know, an email in this form is capable – that is in the form of DSH – is capable of being manipulated. You understand that, don’t you? Well, so is ..... Bragianis’ affidavit. He has got a screen shot of his Inbox. Now, he could have deleted those emails I sent out of that Inbox.

And a perfectly valid proposition? Yes.

Did you put that in cross-examination? No, because I wasn’t asked.

No, no, no. Did you put it in cross-examination to Mr Bragianis? Well, no, because I don’t know what I’m doing. I’m self-acting and have got whoever you are doing – assisting them.

49    Having questioned Mr Hall as above, Mr Colman put to Mr Hall that he had made up his account:

No. What I’m suggesting to you, sir, to summarise, is you have not sent the letters that you allege you sent, and if you had you would have exhibited them, and you have not sent the emails you allege to have sent, because if you had, you would have exhibited more; what do you say about that?---No, you’re incorrect.

You do admit though, don’t you, that there was better evidence available to you with respect to both the letter and the email that you provided?---No, I don’t. No, I don’t, because I haven’t done anything wrong and I sent these emails and I believe that all I was doing was confirming the email that I had sent on what particular day and that’s what I’ve done. I’ve sent you the – given you the email and it has got the attachment on there as well.

And finally, my submission to you or I’m putting to you that your explanation with respect to you not having exhibited the Express Post letters is farfetched; what do you say about - - -?---It’s farfetched. Well, I can – well, unless – I can – I can prove to you that I’ve just had a property settlement and that usually when you lead up to a property settlement you’re – you’re packing boxes, so - - -

It’s a bit convenient though, isn’t it, really, isn’t it, when - - -?---Why am I – why am I being made out to be dishonest here?

It’s a bit convenient, isn’t it, when Mr Bragianis says he didn’t get this material. You’re aware he says it and you say you sent it, but you don’t have the evidence of that; it’s a bit convenient, isn’t it?---No, it’s not convenient.

50    I provided Mr Hall with an opportunity to respond, limited as re-examination. He did so as follows:

Well, I don’t agree with being made to look like I’m being dishonest in terms of what evidence I provided to confirm that I did at least email the documents to the party, the other side. However, if you look at it, if I have emailed the document and sent the documents, why would I think that I would have to go overboard with providing as much, you know, evidence as possible to confirm it when I believe that the email I’ve provided in my affidavit is sufficient to confirm that I at least emailed the documentation. ….

They’re the ones that didn’t attend two hearings and I’m being made to feel dishonest and haven’t done something. What am I going to achieve by that? What would I achieve by not sending these documents when I believed, because it happens when I lodge documents and when they lodge documents, I get notified [on the Commonwealth Courts Portal]. Now, I believe that they would get notified when I lodge documents too.

Mr Hall’s submissions

51    Mr Hall made short submissions asking the Court to reflect on why he would have not sent the documents to Velos Lawyers when it had been his belief that they would have been notified in any event through the Commonwealth Courts Portal when he had lodged his documents. He submitted that it made no sense for him not to have sent the documents.

The Bank’s submissions

52    In respect of the letter Mr Hall had asserted that he had sent to Velos Lawyers, Mr Colman submitted the Court ought find his account unbelievable:

…that is, that it is too convenient to say, “I sent the letter, but I have no record of it.” It’s just, in the face of his assertion that it was important enough to send by registered mail, he hasn’t then taken appropriate steps to isolate the box or search for it, in my submission, casts such monumental doubt on the sending of the letter that your Honour, in my respectful submission, should simply disbelieve it.

53    The implausibility of Mr Hall’s evidence on that point, Mr Colman submitted, cast doubt on everything Mr Hall had stated in evidence.

54    In respect of the email Mr Hall exhibited, Mr Colman submitted the Court should not accept that as evidence of notification because of (a) the fanciful evidence Mr Hall had given about the postal item; (b) the ease whereby a document in that form could be tampered with; (c) Mr Hall’s incentive not to advise of the adjourned return date; and (d) that no record of such an email had been found in Velos Lawyers’ electronic system despite every conceivable search a law firm could conduct to find it.

55    In response to Mr Hall’s submission that he had no motive to lie because he expected the hearing date to come to the notice of Velos Lawyers through the Commonwealth Courts Portal in any event, Mr Colman submitted:

The highest, I think, what Mr Hall is saying is why would he lie when he is assuming that we’re looking at the Com portal every day to see whether some sort of notification actually does come up. That’s, I think, what he’s saying. So we don’t get notified per se. It gets put on a file that you can search. Now, my only response to that, your Honour, is he is assuming that we’re searching it every day. In my submission, that doesn’t actually answer the assertion of dishonesty that I’m putting to him directly, because he still has tried to get away with it, hoping we won’t have been searching it every day.

Consideration

56    I am satisfied that both Ms Tsotras and Mr Bragianis were each honest and truthful witnesses. Mr Hall did not submit otherwise.

57    On the basis of their evidence, I find that up until 10 January 2019 Velos Lawyers remained unaware of (a) the hearing before Registrar Burns; (b) the orders Registrar Burns made on 29 November 2018; (c) the adjourned hearing held on 13 December 2018; and (d) the orders made that day by Registrar Burns setting aside Mr Hall’s bankruptcy notice.

58    I find that Velos Lawyers did not attend the first of those hearings because both Mr Hall’s letter and his email, each of which had been received by Velos Lawyers, had been misplaced or overlooked.

59    I find that the hard copy of Mr Hall’s letter was only located after these proceedings had been commenced. Further, Mr Hall’s two emails addressed to Mr Bragianis which he accepts had been received but not responded to, appear to never have been read by him, although I do not discount that they may have been forwarded by him to Ms Tsotras or another member of the firm without their having been opened.

60    I find that Velos Lawyers searched for any letter or email that Mr Hall might have sent to Mr Bragianis on or about 3 December 2018. I find that that search did not produce anything to suggest that he or Velos Lawyers had received a letter or email from Mr Hall at or around those dates.

61    I am, however, not satisfied that those findings of themselves require the Court to conclude that Mr Hall did not sent the letter and confirmatory email to Mr Bragianis he has given evidence on oath that he did. Proof of non-receipt of a postal item or email may, but will not necessarily, entitle a court to infer it was not sent. Whether that inference should be drawn will depend on the Court’s assessment of that evidence in its overall context.

62    Moreover, in the present case, the evidence adduced on behalf of the Bank does not exclude the possibility of their having been received.

63    Having regard to Ms Tsotras’ evidence, I am entitled to find that Velos Lawyers did not maintain a register of incoming mail. Letters were merely date stamped and then transferred in folders to Mr Velos who, after sighting the letters, then redirected them to a “file operator”. Asked by Mr Hall how, having regard to those circumstances, she could be certain Velos Lawyers had not received his letter, Ms Tsotras conceded that she could not know that. In light of that evidence, it is not open to the Court to conclude that that Velos Lawyers’ system was so robust as to exclude the possibility that Mr Hall’s letter might have been received by that firm but been later lost without any record of its receipt ever coming into existence.

64    As to the search for a record of any emails Velos Lawyers might have received from Mr Hall at or around the relevant dates, I accept that such a search was undertaken by Mr Bragianis and that it had produced no results to suggest it had been. However Mr Bragianis expressly disclaimed having any technical capacity as would permit him to opine as to the legitimacy of the email Mr Hall exhibited to his affidavit. There is thus nothing before the Court to suggest that the search Velos Lawyers conducted was undertaken by a person capable of giving evidence that would exclude the possibility that the email had reached Velos Lawyers but had been rejected by their system or not displayed by it.

65    Nor did the bank adduce any expert evidence as would address the probability or improbability of a correctly addressed email having been sent but not later delivered reason of a failure in transmission. Ordinary experience suggests that a correctly addressed email usually gets to its intended recipient and I proceed on that basis but, absent expert evidence, I cannot conclude that that will always be the case.

66    For those reasons, the Bank cannot succeed unless the Court finds Mr Hall’s evidence of posting a letter and sending the email he exhibited to his supplementary affidavit to be lies. It is not available in this instance to find that Mr Hall might be simply mistaken in his recollection. The Bank makes no such submission and in the face of Mr Hall’s positive assertions and the text of the email he exhibits in support, no such finding is open.

67    In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53, the Full Court (Murphy, Mortimer and O’Callaghan JJ) noted (at [165]):

To find that a person is not “a witness of truth” is, in substance, to find the person to be a liar. In the circumstances of a court hearing, with evidence given on oath or affirmation, it is also in substance a finding of perjury. It is not a trifle. Of course, it is important that judges are free to make such findings where they are required and where they are justifiable. However, the finding must not only be justifiable, it must be justified. And the place it must be justified is in the court’s reasons.

68    Mr Colman submits that the Court would be justified in reaching the conclusion that Mr Hall was a liar with respect his evidence of having sent a registered mail letter to Velos Lawyers having regard to the implausibility and convenience of his account.

69    I am, however, unpersuaded that the account Mr Hall gave, that he had done as he had on the earlier occasion when Velos had overlooked his communications, was inherently implausible. It does not appear to be contentious that Mr Hall obtained the documents he was required to notify the Bank of in writing and that they had been “stamped” in the Federal Court of Australia on 3 December 2018 (DSH-2). Mr Hall was not cross-examined to the contrary.

70    Mr Colman made much of Mr Hall’s having failed to exhibit a copy of the record he would have received from Australia Post of its sending. However Mr Hall’s explanation of that record having been mislaid and packed by mistake during preparations for his moving house was, in my opinion, both plausible and consistently given in evidence under cross-examination. In that regard, Mr Hall was not on notice until served with the Bank’s interlocutory application sometime after 14 January 2019 that its retention might be of moment. Nor do I find his evidence that he had never expected Velos Lawyers to dispute its sending to be inherently implausible. I do not find it implausible that in the absence of a reference number, Australia Post could not assist Mr Hall. Mr Colman did not submit that that aspect of Mr Hall’s evidence should be rejected.

71    The reasons Mr Colman submits entitle the Court to reject Mr Hall’s evidence that he sent the email he exhibits to his supplementary affidavit were:

(a)    the fanciful evidence Mr Hall had given about the postal item;

(b)    the ease whereby a document in that form could be tampered with;

(c)    Mr Hall’s incentive not to advise of the adjourned return date; and

(d)    that no record of such an email had been found in Velos Lawyers’ electronic system despite every conceivable search a law firm could conduct to find it.

72    As to (a), I reject that I should find Mr Hall’s evidence of having sent notice of the Registrar’s Orders to the Bank to have been fanciful and implausible.

73    As to (b), the Bank adduced no evidence that would entitle the Court to reach such a finding. The basis for the proposition was Mr Colman’s assertion. On its face the email Mr Hall exhibits shows the date and time of its sending. Its text is consistent with the evidence he gave. I accept any document may hypothetically be forged or tampered with but I am not persuaded that the document he exhibited was especially of that character. There are no objective signs I can discern to suggest it was tampered with.

74    As to (c), Mr Hall gave evidence that his belief had been that Velos Lawyers would, in any event, have been notified of the orders through the Commonwealth Courts Portal and that he had had no reason not to comply with the orders made by the Registrar. I accept Mr Hall’s evidence that he had been notified through that portal when Velos Lawyers had filed matters in his dealings with them.

75    As to (d), while the results of the search conducted by Velos Lawyers suggests Mr Hall’s email was not received by that firm, for the reasons I have stated above, the evidence in this case falls short of excluding that possibility.

76    In Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, Dixon J observed (at 361):

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

77    I do not suggest that the Bank had no reason to be suspicious that Mr Hall did not comply with the Registrar’s orders. However, given the nature of the Bank’s case, I am not reasonably satisfied that the Court can be justified in concluding that Mr Hall is a liar and has given perjured evidence as to his compliance with the orders made by the Registrar.

78    Mr Hall’s explanations were plausible, and consistently given, during his evidence. Nothing in his demeanor suggested evasiveness. Mr Hall’s changed demeanor when it became clear Mr Colman was challenging his honesty (for example when he responded to the suggestion that it would have been easy for him to alter his email by stating that Velos Lawyers could equally have manipulated its records) did not appear to me to have been the product of merely feigned indignation. I perceived his responses, including those that appeared driven by flashes of anger, to be simply those of an honest person genuinely affronted by what was being suggested. In any event I did not take Mr Hall by that response to have accepted the proposition put to him by Mr Colman.

79    This is the Bank’s application. Accordingly the Bank bears the burden of proof. For the above reasons, I am unprepared to find Mr Hall was not a witness of the truth. I am not satisfied on the balance of probabilities that Mr Hall gave untruthful evidence that he had sent notification in writing to the Bank in compliance with the orders of Registrar Burns made on 29 November 2018. The Bank having failed to persuade the Court that Mr Hall was not a witness of the truth, there is no intermediate position open.

80    Accordingly, the Bank having failed to make good its case, I dismiss its interlocutory application.

81    Costs should follow the event, but a self-represented litigant awarded costs is entitled to recover only those amounts he or she can establish were directly incurred by him or her in the conduct of a proceeding such as for photocopying and postage and any filing fees. I will order the Bank to pay such of Mr Hall’s costs, if any, as he may be entitled to recover as an unrepresented litigant, as agreed or taxed.

Associate:

Dated:    15 April 2019