FEDERAL COURT OF AUSTRALIA

Rafidi v Commonwealth Bank of Australia [2019] FCA 620

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Respondent to file and serve any application for a special costs order, accompanied by any affidavit evidence and written submissions of no more than 5 pages in length, by 17 May 2019.

3.    The Applicant to file and serve any affidavit evidence in response, and written submissions of no more than 5 pages in length, by 31 May 2019.

4.    The Respondent to file and serve any affidavit evidence in reply, and written submissions of no more than 3 pages in length, by 7 June 2019.

5.    The parties are to indicate in their written submissions whether or not they desire to attend a hearing, failing which the application will be determined on the papers.

6.    If no application for a special costs order is made by 17 May 2019, the Applicant is to pay the Respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1     By originating application filed on 16 March 2017, the Applicant Iyad Rafidi seeks declarations and orders setting aside Bankruptcy Notice 212149, issued to him pursuant to s 41 of the Bankruptcy Act 1966 (Cth) by the Respondent, Commonwealth Bank of Australia (CBA). The Bankruptcy Notice identified a total debt of $9,331,605.09. This arises from a judgment order entered by the consent of the parties on 4 November 2016, in proceedings conducted in the Supreme Court of New South Wales involving Mr Rafidi, Brick and Block Company Pty Ltd (BBC), and the CBA (Supreme Court Proceedings). Mr Rafidi was a director and shareholder of BBC.

2    The application, when understood in the context of the affidavit evidence filed accompanying it, raises two grounds upon which it is said that the Bankruptcy Notice should be set aside. I reviewed each in the course of giving judgment in relation to several interlocutory applications filed by the parties in Rafidi v Commonwealth Bank of Australia [2018] FCA 1005 (interlocutory judgment). These reasons should be read in conjunction with the interlocutory judgment, and adopt the definitions used in it. The first ground was defined in the interlocutory judgment at [50] as the “vitiated consent allegations”. The second is a technical argument going to the validity of the Bankruptcy Notice, as set out in paragraph 1 of the application. The ultimate order sought is that the Bankruptcy Notice be set aside pursuant to s 30 of the Act.

3    In the interlocutory judgment, I said at [103] that Mr Rafidi may rely on the parts of the affidavits sworn by him on 16 March 2017, and 17 July 2017, that address the vitiated consent allegations, and that he may also rely on the technical argument. There is no dispute between the parties as to the identity of the particular paragraphs now relied upon by Mr Rafidi, and it is not necessary to identify them here. In answer, the CBA relies on the whole of each of the affidavits sworn by Mr Bates, a solicitor acting for the CBA, on 7 April 2017 and 11 July 2017. There was no cross-examination of either witness and the parties filed written submissions. The parties agreed that the application would be determined on the papers.

4    In his final submissions, Mr Rafidi seeks leave to rely on an additional affidavit, sworn by Mr Norrie, a solicitor employed by the firm acting for Mr Rafidi, on 27 September 2018. The affidavit attaches 4 documents, which are identified at [54] to [55] below. The CBA opposes the grant of leave, arguing that on a number of occasions prior to the filing of Mr Norrie’s affidavit, Mr Rafidi has made clear that he had filed the totality of his evidence. It also submits that Mr Norrie’s affidavit and accompanying annexures are irrelevant.

5    For the reasons set out below, I have concluded that the application must be dismissed and Mr Rafidi must pay the costs of the proceedings. The CBA contends that it is entitled to a special costs orders, so I have made directions for the service of evidence and submissions relevant to any such application the CBA seeks to make in that regard.

2.    THE RELEVANT LAW

6    Section 30(1) of the Act provides:

30  General powers of Courts in bankruptcy

(1)     The Court:

(a)     has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b)     may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

7    The following propositions of law, which are extracted from the interlocutory judgment, are immediately relevant to the consideration of the present application.

8    The Court may, in an appropriate case, go behind a judgment to see whether in truth and reality a debt is due from the judgment debtor to the judgment creditor: Corney v Brien [1951] HCA 31; 84 CLR 343 at 347; Wren v Mahoney [1972] HCA 5; 126 CLR 212 at 224 – 225.

9    The power to go behind a judgment may be exercised on an application to set aside a bankruptcy notice. In such a case the Court is invested with jurisdiction pursuant to s 30(1) of the Act, where such an order is necessary for the purpose of carrying out or giving effect to the Act in the particular case; Olivieri v Stafford [1989] FCA 731; 24 FCR 413 at 430 (Gummow J); Re Halstead; Ex parte Westpac Banking Corporation [1991] FCA 788; 31 FCR 337 at 347 (Heerey J).

10    Whilst the commission of an act of bankruptcy is undoubtedly a serious matter, which may have consequences upon the ability of an individual to obtain credit and render debt covenants susceptible to creditors’ petitions, it is of a different order of gravity from the change of status brought about by the making of a sequestration order; Re Gerard; Ex parte Reid [1994] FCA 45; 217 ALR 191 (Sheppard J), cited with approval by Lehane J in Re Halstead; Ex parte Westpac Banking Corporation [1991] FCA 788; 31 FCR 337 at 270. Cases where a debtor seeks to set aside a bankruptcy notice pursuant to ss 30 or 40(1) of the Act are to be distinguished from proceedings involving a creditor’s petition and the making of a sequestration order under s 52. The broad underlying principle in the latter is that before a person can be made bankrupt the Court must be satisfied that the debt on which the petitioning creditor relies is due by the debtor and that if any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he or she is made bankrupt: Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 504; 76 ALR 137 at [39] – [40] (Davies, Lockhart and Neaves JJ). That is not the position where the nature of the proceeding is a bare attack on the bankruptcy notice; Xu v Wan Ze Property Development (Aust) Pty Ltd (in liquidation) [2014] FCA 461 at [120] (Robertson J). Put another way, the examination of the bankruptcy notice at the stage of presentation represents a relatively coarse filter. Such an application is not the hearing of the bankruptcy petition. The refusal of the application will not affect the status of the debtor but it will mean that he or she, in all probability, will commit an act of bankruptcy. That act of bankruptcy will be available to the petitioning creditors or to any other creditor upon which to base a bankruptcy petition at any time in the period of 6 months after the act of bankruptcy has been committed.

11    In Xu, Robertson J at [118] cited the approach taken by Toohey J in Re Briggs; Ex Parte Briggs v Deputy Commission of Taxation (WA) [1986] FCA 512; 12 FCR 310 where at 312, his Honour said:

A court hearing an application to set aside a bankruptcy notice is not hearing a petition for sequestration and the provisions of s 52(2), whereby a court may dismiss a petition if satisfied that the debtor is able to pay his debts or that for other sufficient cause a sequestration order ought not be made, cannot be imported into such an application. In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.

12    In Xu, Robertson J said (at [131]):

… Except in a clear case, questions of fraud, collusion, lack of good faith and miscarriage of justice, or whether substantial reasons have been shown for questioning whether behind the judgment there was in truth and reality a debt due to the judgment creditor, are more apt to be dealt with after the exhaustion of those remedies and where the Court is dealing with an application to make a sequestration order against the estate of the debtor. …

13    It is with these matters in mind that one considers the authorities applicable to cases where an applicant seeks to set aside a sequestration order.

14    The scrutiny required by s 52 of the Act, as to whether there is, in truth and reality, a debt owing to the petitioning creditor, serves to protect the interests of third parties, particularly other creditors of the debtor. As the plurality observed in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 345 ALR 534, it is of critical importance to appreciate that such persons were not parties to the proceedings that resulted in the judgment debt. Their interest in being paid in full should not be prejudiced by the making of a sequestration order in reliance on a judgment debt which does not reflect the true indebtedness of the debtor to the petitioning creditor; Ramsay at [55].

15    In Ramsay the issue was whether the discretion of the Court to go behind the judgment is enlivened only in circumstances where a judgment debt upon which the petitioner relies has been obtained where there is evidence of fraud, collusion or a miscarriage of justice (at [111] - [112]). The exercise of the discretion to go behind the judgment was for the purpose of determining whether, pursuant to s 52(1)(c) of the Act, the debt on which the petitioning creditor relied was, in fact, still owing. The majority held (Kiefel CJ, Keane, Nettle JJ, citations omitted):

67.     … As has been seen, the notion that a party is bound by the conduct of his or her case has never been a sufficient reason not to look behind a consent judgment or a default judgment. That is because a Bankruptcy Court is concerned, not to discipline litigants or to protect finality in the administration of justice as between parties to litigation, but to protect the interests of third parties who were not participants in the litigation which led to the judgment in question.

68.     For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.

69.     In Petrie v Redmond, Latham CJ, with whom Rich and McTiernan JJ agreed, said that the Bankruptcy Court:

"is entitled to go behind the judgment and inquire into the validity of the debt where there has been fraud, collusion or miscarriage of justice. … Also the court looks with suspicion on consent judgments and default judgments. … The Bankruptcy Court does not examine every judgment debt. Special circumstances must be established before it will do so. It is impossible to lay down any general rule."

70.     The first two sentences of that passage were cited with evident approval by Dixon, Williams, Webb and Kitto JJ in Corney v Brien. The passage was explicitly concerned with consent judgments and default judgments. As a matter of practical experience, these are the sorts of cases in which third parties can be expected to be disadvantaged by the making of a sequestration order based on a judgment which was not the outcome of the rigorous processes of adversarial litigation. The same concern may also arise in a case where the judgment was obtained in circumstances which suggest a failure on the part of the judgment debtor to present his or her case on its merits in the litigation that led to the judgment.

16    As noted above, where proceedings are resolved by consent orders, different considerations apply; Ramsay at [70]. The following propositions were helpfully set out by Wigney J in Katter v Melhem (No 2) [2014] FCA 1176; 319 ALR 646 at [73] – [76] in the context of an application to set aside a sequestration order.

17    Where judgment has been entered in pursuance of a compromise, grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened: Corney at 357 (Fullagar J). That is because it is the compromise and not the claim that was compromised which is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 at [9] (Finkelstein J).

18    Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened: Corney at 357. The presumption in such circumstances is that it is difficult, although not impossible, to impugn the compromise: Harrison at [9]. One instance where the Court may go behind a judgment in these circumstances is where both parties knew the original claim was not a bona fide claim and the judgment or compromise was obtained by dishonesty known to both parties: Ex parte Banner; In re Blythe (1881) 17 Ch D 480. If, however, counsel had full knowledge of all relevant facts, and no suspicion of unfairness or impropriety in the compromise arises, a Court may decline to go behind a judgment submitted to on the advice of counsel: see Re A Debtor [1929] 1 Ch. 125; Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708 at [100] (Lee J); Smith v Abbott, Stillman & Wilson [2007] FCA 1256 at [33] (Ryan J).

19    The fact that the debtor may have been pressured by his legal advisers to compromise the claim, despite the merits of his defence, will not generally be sufficient to warrant going behind the judgment entered pursuant to that compromise. That will particularly be the case where the judgment creditor was unaware of, or was not implicated in, the alleged undue pressure: Harrison at [11]. In that case, Finkelstein J said (at [12]):

To my mind, what has occurred in this case is not a sufficient basis to go behind the judgment based on the compromise. Although the debtor may have been placed under undue pressure to enter into the compromise, I cannot discern any unfairness or impropriety of such a kind as would justify me in looking behind the judgment. The reality is that the debtor, perhaps through no fault of his own, was placed in a position where his commercial interests necessitated a compromise and he agreed to it in accordance with those interests. In one sense the position the debtor found himself in is not very different to the circumstances which other litigants have often had to confront. I do not doubt that litigants regularly compromise actions otherwise than in accordance with the true merits of the claims made, but that is not a sufficient reason to deny efficacy to the agreements to compromise that these litigants reach. It is certainly not a sufficient reason in this case.

20    It is implicit in this statement that the mere fact that the compromise may not have been “in accordance with the true merits of the claims made” will not be sufficient to impugn the compromise. Such a circumstance alone will therefore not warrant the Court going behind the judgment.

21    The particular circumstances of any given case may no doubt throw up other considerations relevant to whether the Court should exercise its discretion to go behind a judgment. Where the judgment debtor seeks to go behind the judgment on particular grounds, it is difficult to see why it would not be a relevant consideration that those grounds could have been, but were not, raised in opposition to the judgment, or in an application to set aside the judgment. Parties are ordinarily bound by the way they have chosen to conduct litigation. The fact that, for whatever reason, a party did not put particular arguments before the Court that made (or refused to set aside) the judgment does not mean that there was no relevant hearing on the merits: Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; 204 ALR 327 at [18]-[21] (Hill, Madgwick and Conti JJ); Olivieri at 424 (Beaumont J).

3.    THE ARGUMENTS

3.1    The vitiated consent allegations

22    In his submissions, Mr Rafidi advances four grounds in support of the vitiated consent allegations:

(1)    that the judgment order was obtained irregularly or was improperly obtained;

(2)    that Mr Rafidi’s consent to the judgment order was obtained by a misrepresentation such that he was entitled to “rescission” of the agreement;

(3)    that the judgment order was obtained by duress, undue influence, and/or unconscionable conduct; and

(4)    that, either separately or as a part of (1) – (3) above, the consent provided by Mr Rafidi to the judgment order was vitiated because he did not agree with it as a true debt, but because he had “no choice”.

23    Mr Rafidi relies on 5 specific factual contentions that are set out in his affidavit evidence. I refer to these in more detail in section 4 below.

24    The CBA contends that the vitiated consent allegations are not supported by the affidavit evidence relied upon by Mr Rafidi, and in any event do not supply a proper basis for the Court to go behind the judgment order. To the extent that the allegations include assertions of fraud on the part of the CBA, it contends that they are improperly made.

3.2    The technical argument

25    The technical argument advanced by Mr Rafidi is that the Bankruptcy Notice was deficient because the CBA failed to serve the final judgment or order (being the judgment order) together with the Bankruptcy Notice. As a consequence, the requirements of s 41 of the Act and reg 4.02 of the Regulations were not met. Mr Rafidi accepts that the decision of the Full Court in Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; 225 FCR 458 at [51] – [53], [57] (Mansfield, Gleeson and Beach JJ) stands in the way of a single judge of this Court finding in favour of this submission, but submits nevertheless that the decision in Curtis was incorrect. The CBA submits that this submission is hopeless, having regard to the binding authority of Curtis.

4.    CONSIDERATION

26    Before addressing the evidence of Mr Rafidi, it is convenient to repeat some of the findings set out in the interlocutory judgment, which apply equally here.

4.1    The Supreme Court Proceedings

27    The Supreme Court Proceedings were listed for trial for 6 weeks commencing in October 2016. On 4 November 2016, the judgment order was entered and a cross-claim advanced by the defendants was dismissed.

28    The plaintiff in the Supreme Court Proceedings was initially the Bank of Western Australia Ltd (that is, BankWest), which later became part of the CBA. The defendant was Mr Rafidi. The Commercial List Statement alleged: that BankWest had provided certain facilities to BBC; that to secure the obligations of BBC certain securities were provided to BankWest including a guarantee and indemnity by Mr Rafidi; that BBC defaulted under the facilities and securities; that BankWest had made demands for an outstanding sum of $5,437,995.83; and that BBC and Mr Rafidi had failed to comply and that BankWest was entitled to relief against Mr Rafidi pursuant to the guarantee and indemnity that he had provided.

29    Mr Rafidi defended the claim, and he and BBC also filed a cross-claim which, in its final form before the trial of the proceedings, advanced numerous contentions in support of the broad proposition that no debt was owed to the CBA. In summary they included, first, that BBC and BankWest had in the 14 January 2009 letter entered into an agreement that the bank would lend BBC an additional $5.4 million to acquire the business, plant and equipment of Wesco Concrete and Kemp Australia Trading, but that the CBA had failed to perform that agreement. Secondly, that such conduct amounted to misleading or deceptive conduct in contravention of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth). Thirdly, that on 6 April 2009 BankWest had agreed to release certain securities then held by BBC, but failed to do so. Fourthly, that BankWest had on 6 April 2009 engaged in misleading or deceptive conduct by making representations that it would release certain securities that it held when it did not do so. Other aspects of the cross-claim were summarised by a decision given by Stevenson J following an application brought by Mr Rafidi and BBC to amend the cross-claim (see Commonwealth Bank of Australia v Rafidi [2016] NSWSC 381 (amendment judgment) at [4]), but it is not necessary for present purposes to address them in detail. The cross-claim alleged that by reason of the pleaded conduct, the CBA was liable to pay BBC damages for breach of contract or in respect of its misleading or deceptive conduct and/or the CBA should be perpetually restrained from enforcing or making any claims against BBC or Mr Rafidi arising out of the facility agreements.

30    On numerous occasions BBC and Mr Rafidi attempted to amend their cross-claim to introduce further allegations to the effect that the appointment on 4 November 2009 of receivers to BBC was motivated, on the part of the CBA, by improper motives. In the amendment judgment, Stevenson J observed that since November 2015 BBC and Mr Rafidi had made 5 applications to amend his cross-claim and circulated a total of 7 proposed forms of cross-claim. Each of those applications was rejected, most recently by Hammerschlag J on 1 April 2016. The judgment of Stevenson J represented the sixth failed attempt. In it, his Honour observed that the proposed amendment included within it the allegation that BankWest’s decision to appoint receivers was taken in bad faith and for extraneous or improper purposes of “enabling” the CBA to make a warranty claim “in respect of the BBC loans” or to “evidence and support” the existing warranty claim said to have been made on 21 January 2009. A seventh attempt was made to introduce the same sort of allegations in the reply to the defence to cross-claim, however, that was withdrawn.

31    On 17 November 2016 Mr Rafidi filed a notice of motion to have the judgment order set aside. That application was rejected by Ball J (Commonwealth Bank of Australia v Rafidi [2016] NSWSC 1931 – Consent Orders judgment), who found that as a result of developments in the case, Mr Hall, solicitor, who was by then acting for Mr Rafidi, indicated to the Court on 2 November 2016 that he had instructions to consent to entry of judgment on the CBA’s claim and Mr Rafidi’s cross-claim in favour of the CBA. The Court did not enter judgment at that time because Mr Rafidi was in the process of seeking the consent of insurers to that course of action. The matter was stood over until 4 November 2016. On 4 November 2016, judgment was entered in favour of the CBA. Before it was entered, senior counsel for the CBA, Mr Leopold, produced lengthy submissions in support of an order that Mr Rafidi pay the CBA’s costs on an indemnity basis and in support of an application that the papers in the matter be referred to the appropriate authorities for investigation into the question of whether criminal charges should be laid against Mr Rafidi, amongst others, in connection with the matters that were the subject of the proceedings. One aspect of the referral concerned the contention advanced by the CBA that the 14 January 2009 letter was a fabrication.

32    The application for referral was stood over until 14 December 2016. On that day his Honour dealt with the Notice of Motion seeking to set aside judgment. In the Consent Orders judgment, Ball J records that the only reason advanced by Mr Rafidi for why the judgment should have been set aside was to give him an opportunity to clear his name in light of the application for the Court to refer the papers to the authorities. His Honour concluded that that was not a sufficient basis on which to set aside the judgment, first, because there was no evidence from Mr Rafidi that he had not appreciated that the papers could be referred, or that that would have made a difference to his decision to consent to judgment. At the time, Mr Rafidi was legally represented and was on notice through his legal representative that an application would be made for the referral of the papers following entry of the judgment. Secondly, the application to set aside the judgment was misconceived in any event, because the decision to refer the papers involved an independent administrative decision by the Court. Thirdly, because it was far from clear to his Honour that Mr Rafidi could have taken further steps to clear his name. Most of the witnesses he intended to call had given evidence, and it was apparent that their evidence had gone badly for his case and that his prospects of success were poor. Mr Rafidi had given his evidence in chief through affidavits and, although his cross-examination was not completed, he had been cross-examined extensively.

33    His Honour found at [11]:

… It may be inferred that Mr Rafidi consented to judgment against him because, having regard to developments in the case, it was apparent that his prospects of success were poor. In my opinion, it was not in the interests of justice to permit Mr Rafidi to resile from the position he took previously, presumably on legal advice, to achieve a collateral benefit that he thought would arise from pursuing the court proceedings.

34    An application for leave to appeal from this decision was subsequently dismissed: Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96.

4.2    Consideration of the factual contentions Mr Rafidi advances in support of the vitiated consent allegations

35    Mr Rafidi advances five broad factual contentions in support of his argument that the consent he provided to the judgment order was vitiated. Each can be addressed in fairly short order.

36    The first is that senior counsel for the CBA unfairly made a submission during the Supreme Court Proceedings that the 14 January 2009 letter was not an authentic document and asked the court ought to make a finding to that effect. There is no dispute that this allegation was made. The trial commenced on 11 October 2016. On 16 October 2016 senior counsel for the CBA supplied a 4 page written submission addressing the alleged inauthenticity of the 14 January 2009 letter. At that point, Mr Rafidi and BBC were represented by senior counsel and solicitors. The trial was to continue for 6 weeks. Notably, particulars of the allegations were provided and the learned primary judge conducting the proceedings permitted the allegations so made to proceed.

37    The second contention is that senior counsel for the CBA incorrectly informed the Court about his method for settling affidavits for the purposes of the trial. This contention is elucidated by reference to the affidavits sworn by Mr Rafidi in support of the present application. He refers to one page of transcript of the trial. The allegedly false statement arose during the course of the cross examination of Mr Rafidi by senior counsel for the CBA, during which senior counsel asked the question “you are saying you had your affidavit settled by legal advisors?”. Objection was taken to the question and in the debate that followed, senior counsel said, arguendo, words to the effect that witnesses who he calls to give evidence do not have affidavits “settled”, although this depends on what one means by “settled”. He then withdrew the question the subject of the objection.

38    The third contention is that there were deficiencies in the production of documents by the CBA during the Supreme Court Proceedings. In a related submission, Mr Rafidi also alleges that the CBA systematically destroyed documents relevant to his file. Mr Rafidi relies on his first affidavit where he refers to orders made in the Supreme Court requiring the production of documents on 8 July 2016 and to documents subsequently produced by the CBA. He refers to the production of documents by the CBA in August 2016 and his concern, upon receiving those files, that production was inadequate. He gives evidence that he instructed his then solicitors to address the deficiencies. A dispute as to the question of any outstanding discovery appears to have continued for two months up to trial. He also states that a number of documents that were not produced in discovery nevertheless appeared in the court book prepared by the CBA for the purpose of the Supreme Court Proceedings. Included in his evidence is reference to affidavits of two former BankWest employees, Youssef Chahine and Frank Hageali dated 5 October and 20 October 2016 respectively, who depose to the absence of documents from the produced files. On the first day of the trial, according to Mr Rafidi, senior counsel for Mr Rafidi and BBC raised these matters with the court and questioned the authenticity and completeness of the discovery. Mr Rafidi gives evidence that these matters were ventilated before the trial judge and that Mr Rafidi’s counsel and solicitors were aware of them.

39    In his second affidavit, Mr Rafidi seeks further to support his allegation of a systematic destruction of documents by asserting that discovery given by the CBA in other proceedings, unrelated to the Supreme Court Proceedings and involving different parties, was inadequate. In this regard he refers to evidence given by a bank officer in a case he describes as “David James Bone v The Commonwealth Bank of Australia”, and also to statements that he asserts were made by individuals at what he describes as the Senate Economics Committee Estimates Hearing in May 2017.

40    The fourth contention advanced is that a document introduced by the CBA into the court book prior to the commencement of the trial was a forgery. In his second affidavit, Mr Rafidi refers to documents that he contends were forged. One may infer that his allegation is that they were forged by or on behalf of the CBA. Mr Rafidi exhibits two documents entitled “Pre-Settlement Survey” dated 11 July 2008 that he contends express different views as to the single debt limits for BBC – one with 25% and another with 40%. There are other differences. Mr Rafidi asserts in his affidavit evidence that because of these differences, the document that is less favourable to BBC must be a forgery and that the entirety of the discovery given by the CBA must be compromised.

41    The fifth contention advanced by Mr Rafidi is that by resisting his multiple attempts to amend his and BBC’s cross-claim in the Supreme Court Proceedings, the CBA somehow was involved in visiting an unfairness upon Mr Rafidi that vitiates his consent to the judgment order. I have summarised in some detail the process of the amendments undertaken at [30].

4.3    Conclusions in relation to the vitiated consent allegations

42    The judgment order was entered into after about three weeks of trial, and at a point in time when the cross-examination of Mr Rafidi was well advanced but not complete. The transcript of the trial (tendered in the current application) reveals that during the course of his cross-examination Mr Rafidi fell ill, and he was temporarily excused from attendance.

43    During the course of the trial, and at the time of the matters to which I have referred in section 4.2, Mr Rafidi and BBC were represented by solicitors and senior counsel. Although those solicitors and counsel were replaced by their present solicitor (Mr Hall, who represented Mr Rafidi and BBC by the time the judgment order was entered), the former legal team remained at the time Mr Rafidi was cross-examined. I am not satisfied that Mr Rafidi was the subject of any duress or coercion in entering into the judgment order. To the contrary, an application to set aside the judgment order was made shortly after its entry, but not on the basis that there was no debt due and owing, or on the basis that he was the subject of duress, undue influence, unconscionable conduct, or misrepresentation. Rather, the application was made purely on the basis that Mr Rafidi was not aware that the CBA would seek to refer matters concerning his conduct during the trial to the relevant authorities (see [31] to [32] above).

44    In this regard it is appropriate to repeat the observations made by the learned trial judge, Ball J, when he gave the Consent Orders judgment (at [11]):

… It may be inferred that Mr Rafidi consented to judgment against him because, having regard to developments in the case, it was apparent that his prospects of success were poor. In my opinion, it was not in the interests of justice to permit Mr Rafidi to resile from the position he took previously, presumably on legal advice, to achieve a collateral benefit that he thought would arise from pursuing the court proceedings.

45    None of the matters to which Mr Rafidi has referred in his affidavit evidence cause me to doubt the correctness of those observations. As I have noted, except in a clear case where substantial reasons have been shown for questioning whether the judgment order was made as a result of a miscarriage of justice, the Bankruptcy Notice should not be set aside. In my view the evidence advanced by Mr Rafidi falls well short of that threshold.

46    Having regard to the content of the affidavit evidence of Mr Rafidi and the five factual contentions upon which he relies (see [36] to [41] above), I am not satisfied that the circumstances warrant the setting aside of the Bankruptcy Notice. The evidence does not indicate that the conduct of the Supreme Court Proceedings impugned the ability of Mr Rafidi to make a rational decision to enter into the judgment order. As to the first contention, the CBA’s allegation that the 14 January 2009 letter was a false document was particularised at an early stage in the trial and the Court permitted it to be advanced as part of the CBA’s case. In the circumstances, I see no basis upon which the decision-making of Mr Rafidi was inappropriately impaired by that process. In this regard, the evidence of Mr Rafidi in the present application that he “did not consent” to the case being run outside the pleaded case, or being “carried on as a fraud proceedings”, is beside the point. He was involved in adversarial proceedings in which the Court permitted the fraud argument to be advanced. Contrary to the submission advanced on behalf of Mr Rafidi in reply, any absence of cross-examination of Mr Rafidi on this subject does not alter the position. The notion that the conduct of the trial, and subsequent entry into the judgment order by Mr Rafidi was “unfair” on the basis of such an allegation is not, in my view, supported by the objective facts.

47    As to the second contention, the suggestion that the comment made by senior counsel arguendo concerning the settling of affidavits relevantly mislead the Court does not advance the position. To contend that such a statement misled the court is, in my view, risible. It must be set to one side.

48    The third contention concerns the provision of discovery by the CBA. Insofar as this contention concerns complaints about the conduct of the Supreme Court Proceedings, they relate to matters that were, on the basis of his own evidence, well known to his legal advisors, and were the subject of submissions made to the learned trial judge. They were certainly known to Mr Rafidi in advance of his entry into the judgment order. These matters provide little support for his vitiated consent allegations. Insofar as this contention concerns statements made by people in proceedings unrelated to the Supreme Court Proceedings, or in the Senate Estimates Hearing of May 2017, those statements constitute inadmissible hearsay and, given that they are unrelated to the present proceeding, have no probative value.

49    Mr Rafidi relies on his own assertions in his affidavit evidence, and on the affidavits given in the Supreme Court Proceedings by Mr Hageali and Mr Chahine, as to the deficiencies of discovery provided. The affidavit evidence of Mr Bates, which includes the relevant transcript of the trial, discloses that on 27 October 2016, the twelfth day of the trial, senior counsel for Mr Rafidi, Mr Sexton SC, sought an adjournment on a basis that was said to follow from the cross-examination of Mr Hagaeli. Senior counsel sought to take instructions from Mr Rafidi. At that point the cross-examination of Mr Rafidi was incomplete, but deferred because he was unwell. Mr Hagaeli had been cross-examined over the three preceding days. Mr Sexton said: “I’ve sought some instructions, but that process is not complete”. He then referred to the role of insurers in relation to the provision of undertakings. He said:

...But I’m not in a position to finalise giving advice and taking instructions and dealing with these obligations of my instructing solicitor through the undertakings to the Court and the moment, and I don’t want to, for a number of reasons, call any more evidence until I’ve had the opportunity to pursue that process.

50    This sequence of events makes plain that Mr Rafidi had the benefit of the advice of senior counsel in relation to the outcome of the evidence of Mr Hageali who, as I have noted in [38] above, gave evidence concerning the CBA discovery. The events that follow are telling. On 31 October 2016 senior counsel for BBC and Mr Rafidi withdrew from the proceedings, having been asked to return his brief. The solicitors then acting for them also withdrew. On the same day, the present solicitor representing Mr Rafidi became the solicitor on the record. On 2 November 2016, Mr Hall informed the Court that he held instructions from Mr Rafidi to consent to judgment, and on 4 November 2016 judgment order was entered by consent.

51    It is in the light of these circumstances that the complaints as to the inadequacy of the discovery by CBA must be considered. Senior counsel for Mr Rafidi was plainly aware of the complaints, having raised them on the first day of the trial and having read affidavit evidence from Mr Hageali, including his affidavit of 20 October 2016. Mr Rafidi was plainly aware of the consequences flowing from the cross-examination of Mr Hagaeli, an event that appears to have led to: an adjournment request; the provision of advice to Mr Rafidi as to its ramifications; the cessation of the retainer of his legal advisors; and the settlement of the Supreme Court Proceedings. These matters provide support for the view expressed by Ball J in the Consent Orders judgment and set out above at [32] to [33]. In my view, the materials advanced by Mr Rafidi, when considered in context, do not support the contention that there was somehow a miscarriage in the conduct of the trial, or misconduct on the part of the CBA during that trial Mr Rafidi’s ability to provide his consent to the judgment order.

52    The same observations are apposite for the fourth contention raised, which concerns allegations that the CBA forged documents. The time to test the veracity of the documents was at trial. The materials presented by Mr Rafidi in his evidence do not permit the conclusion that either of the two documents was, as he labels it, a forgery. Mr Rafidi’s own evidence confirms that senior counsel was apprised of the concerns that he expressed in relation to the “pre-settlement survey” on the first day of the trial. Further, in my view, the affidavit evidence of Mr Rafidi does not rise above mere assertion. If one accepts that two documents bearing the same title and the same date exist, and that each has different content, these facts alone do not establish that either is a forgery. Nor do they indicate, without more, that the one that Mr Rafidi contends was less favourable to BBC was a forgery. According to the evidence of Mr Rafidi, the less favourable document was annexed to an affidavit of Mr Owen McDonald, who was apparently an officer of the CBA during the relevant period. Mr McDonald’s affidavit is not in evidence, but one may infer that he deposed to the authenticity of that document. The evidence advanced by Mr Rafidi in the present application falls well short of permitting a conclusion to the standard required in an application such as the present that the CBA (or BankWest) was responsible for falsifying such a document.

53    In relation to the fifth contention raised, over the course of numerous interlocutory applications, Mr Rafidi’s counsel sought but failed to supply an amended cross-claim that the Supreme Court considered acceptable. Leave to file the amendments was refused. The successful resistance to repeated attempts to amend a cross-claim that was found, for various reasons, to be in improper in form does not provide a basis upon which the consent given by Mr Rafidi to the judgment order may be vitiated.

54    It is in the context of this contention that Mr Rafidi seeks leave to rely on the affidavit of Mr Norrie. As recorded in the interlocutory judgment at [105], Mr Rafidi had assured the court as early as 18 July 2017 that he had filed all of his evidence. The CBA relied on that assurance in filing its evidence. Moreover, the probative value of the additional evidence sought to be adduced is minimal. The first two annexures to the affidavit are submissions advanced by the CBA on 29 November 2015 and 25 February 2016 in opposition to proposed amendments of the cross-claim. The third is an affidavit sworn by Senthamangalam Ganesan Venkatramani, and filed on 19 February 2016 in the Supreme Court Proceedings (Venkatramani affidavit). Mr Rafidi submits that it does not matter whether the proposed amendments to the cross-claim were rejected because they had defects in them, but whether the CBA acted dishonestly during the trial. He submits that the Venkatramani affidavit demonstrates that the CBA acted dishonestly and that this dishonesty “changed his view or perception of the outcome and the reasons why he consented to the judgment”. There are several reasons for rejecting these submissions. I do not accept that the affidavit demonstrates the dishonesty alleged. Nor do I accept the premise of the submission, which is that it does not matter whether the draft amended pleadings were defective or not. Plainly enough, several Supreme Court judges saw fit to reject the amendments as untenable attempts to rely on the cross-claim. Having rejected those amendments, the accuracy or otherwise tangential factual aspects of submissions made in relation to those amendments cannot legitimately have a bearing on the consent given by Mr Rafidi to the judgment order in the Supreme Court Proceedings.

55    The fourth and final annexure to the affidavit of Mr Norrie is a selection of documents that is described in the index as “documents produced to the Royal Commission into Misconduct in the Banking Superannuation and Financial Services Industry, and summary thereof”. In fact the annexure is not a bundle of documents, but a selection of typed summaries of unproved provenance together with cut and pasted selections from documents of unproved provenance. They cannot sensibly be regarded as relevant or of probative value to the consideration of the present application.

56    I consider that the documents attached to Mr Norrie’s affidavit to be substantially irrelevant to the present application. Were I to admit them into evidence, I would conclude that they did not assist Mr Rafidi. However, the better course is to decline leave to Mr Rafidi to rely on them because of their lateness, because Mr Rafidi had assured the court that his evidence was complete (and the CBA had relied on that fact), and because of their lack of relevance.

57    In the result, I conclude that the vitiated consent allegations do not have sufficient merit to warrant setting aside the Bankruptcy Notice.

58    More specifically, by reference to the grounds identified by Mr Rafidi in his submissions (see [22] above), I am not satisfied that the judgment order was obtained irregularly or improperly (ground 1). Nor is there a basis upon which I would find that the judgment order was obtained by misrepresentation (ground 2). Indeed, Mr Rafidi’s written submissions are opaque as to what misrepresentation is said to have been made, and by whom, and to what effect. Ground 3 is that the judgment order was obtained by duress, undue influence, and/or unconscionable conduct; again, the basis for this allegation is opaque. In the present case, Mr Rafidi was advised by his solicitor and, prior to that, by a solicitor and senior counsel and entered into the consent orders in the circumstances described. I am not satisfied that the judgment order was effected by any of these factors. In ground 4 Mr Rafidi contends that his consent was vitiated because he did not agree with the judgment order as being a true debt but because he had “no choice”. However, as I have noted, Mr Rafidi was legally represented at all times prior to the entry of the judgment order. For the reasons elaborated upon above, it is difficult to resist the conclusion that while Mr Rafidi now wishes to revisit the question of the judgment order, at the time he gave his consent he accepted that it was in his interests to do so.

4.4    Consideration of the technical argument

59    The submission advanced by Mr Rafidi appears to suggest that the Bankruptcy Notice was not valid because at the time it was issued by the Official Receiver, the email sent by the Official Receiver attached the judgment order, and Bankruptcy Notice, as separate pdf documents.

60    The reason, no doubt, why Mr Rafidi accepts that this Court is bound by the decision in Curtis is the passage in that judgment at [51]:

The question is whether the pdf of the copy judgment could be treated as “attached” to the pdf of the bankruptcy notice, both being attached (together with the letter) to the email. Now clearly they were both attached to the email. The question is whether they were attached to each other. In our view, they were so attached. They were attached to the same email and electronically proximate to each other. Both were sent together rather than separately. Moreover, the one electronic communication (the email and attachments) was not divisible electronically at the time of issue or immediate receipt. Later, of course, one could choose to separately open each pdf and print hard copies separately. But at the time of electronic issue, the bankruptcy notice and the copy judgment or order were together and not separated. In one sense they were electronically “glued” together. They were electronically “fastened” to each other. Short of the two documents being constituted in the one pdf, they were as close electronically as they could be. Further, if they had been constituted in the one pdf, then it might have been argued that they were one and the same document, rather than being a notice with an attachment. Moreover, the fact that each pdf was itself attached to the email does not entail that each pdf could not also be attached to each other.

61    The decision in Curtis is binding on this Court. Accordingly, the technical argument must be dismissed.

5.    DISPOSITION

62    For the reasons set out, in my view the application must be dismissed. Mr Rafidi must pay the costs of the proceedings. There is no longer any basis upon which the time for compliance with the Bankruptcy Notice should be extended. In closing submissions the CBA indicated that it wished to make an application for special orders as to costs. Any application should be made within 14 days by the service of any evidence upon which the CBA wishes to rely, accompanied by written submissions of no more than 5 pages in length. Mr Rafidi may respond within 14 days thereafter with any affidavit evidence in response, together with any submissions (also of no more than 5 pages), and the CBA may reply in a submission of no more than 3 pages together with any affidavit evidence in reply within 7 days thereafter. The parties should indicate in their written submissions whether or not they desire to attend a hearing, failing which I will determine the application on the papers.

Associate:

Dated:    3 May 2019