Federal Court of Australia

Comcare v Dunkerley [2021] FCA 495

ORDERS

THE COURT ORDERS THAT:

1.    The estate of Ulla-Maija Katriina Dunkerley be sequestrated under the Bankruptcy Act 1966 (Cth).

2.    The applicant creditor’s costs (including reserved costs) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

1.    The date of the act of bankruptcy is 27 June 2019.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    This proceeding concerns a Creditor's Petition dated 31 October 2019 presented by the applicant against the respondent (Creditor's Petition) pursuant to Division 2 of the Bankruptcy Act 1966 (Cth). The applicant seeks a sequestration order against the respondent's estate pursuant to s 52(1) of the Bankruptcy Act. The respondent opposes the Creditor's Petition.

2    The applicant read the following affidavits in support of its application:

(i)    the affidavit of Sarah Kate Jackson of 30 March 2021;

(ii)    the affidavit of Tian-Yi Silas Otto of 30 March 2021;

(iii)    the affidavit of Shelley Anne Mulherin of 4 August 2020, verifying the amended creditor’s application;

(iv)    the affidavit of Shelley Anne Mulherin of 22 July 2020;

(v)    the affidavit of Shelly Anne Mulherin of 26 May 2020; and

(vi)    the affidavit of Joseph Skuse of 22 October 2018.

3    The respondent was unrepresented in these proceedings. The respondent read the affidavits of Ulla-Maija Dunkerley of 5 May 2020, 27 May 2020 and 7 July 2020 in support of her opposition to the application. The respondent also relied on written submissions filed by her prior to the hearing, and made oral submissions in support of her opposition to the application.

4    Although the applicant had some objections to aspects of the respondent’s affidavits, they primarily related to a claim that some of the content is a submission, as opposed to evidence. On that basis, the affidavits were read subject to the Court treating any such matter as a submission by the respondent, and the parties agreed with that course.

5    In addition, during the course of the hearing the respondent sought to rely on an additional document, being a letter to her from Comcare dated 6 January 2021, which responded to correspondence from her in relation to questions she raised as to her claims. That letter was admitted, with the applicant consenting to that course.

6    Further, on 24 April 2021, after the conclusion of the hearing, the respondent sent an email to the Court attaching four documents which she sought permission to rely on, said to be relevant to demonstrate that there was no compensation claim for 15 July 2009. In so far as the email was a request by the respondent to rely on that evidence, on 11 May 2021 the applicant informed the Court that it did not oppose leave to rely on the documents, at least three of which were already in the material before the Court. As leave was not opposed those documents can be relied on. That said, as will be apparent from the reasons below, in particular at [47]-[49], the documents do not advance the respondent’s case.

7    The respondent owes the applicant the amount of $62,667.66 pursuant to the following Certificates of Taxation issued by the Federal Court of Australia in relation to those proceedings:

(1)    Certificate of Taxation issued on 15 September 2017, in relation to the Order of Perram J made on 27 April 2015 in proceeding ACD 45 of 2014 (Perram J Proceeding), for $24,335.90;

(2)    Certificate of Taxation issued on 15 September 2017, in relation to the Order of Flick J made on 8 October 2015 in proceeding ACD 44 of 2015 (Flick J Proceeding), for $24,031.76; and

(3)    Certificate of Taxation issued on 15 September 2017, in relation to the Order of Rares J made on 15 December 2015 in proceeding ACD 124 of 2015 (Rares J Proceeding), for $14,300.00.

8    There is a long history of proceedings in relation to the respondent which are summarised below at [39]. Suffice to say at this stage, as will be apparent from the preceding paragraph, the Bankruptcy Notice is based upon three costs orders which were made against the respondent in the following matters:

(1)    an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) in which she unsuccessfully sought review of a Comcare decision dated 28 June 2013 which denied liability for medical expenses and incapacity under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act): Dunkerley v Comcare [2015] FCA 392 (Perram J Proceeding);

(2)    the respondent appealed the decision of Perram J to the Full Court of this Court, which was dismissed by Flick J pursuant to s 25(2B)(bb)(i) of the Federal Court Act 1976 (Cth) and r 36.74(1)(a) of the Federal Court Rules 2011 (Cth), on application by Comcare: Dunkerley v Comcare [2015] FCA 1076 (Flick J Proceeding); and

(3)    the respondent then made an application for an extension of time and leave to appeal from the decision of Flick J, which was dismissed by Rares J: Dunkerley v Comcare [2015] FCA 1519 (Rares J Proceeding).

9    The respondent applied to set aside the Bankruptcy Notice, which was dismissed by Griffiths J: Dunkerley v Comcare [2019] FCA 1002. The respondent appealed that decision to the Full Court, with the appeal being dismissed: Dunkerley v Comcare [2020] FCAFC 8.

10    The respondent's notice stating the grounds of opposition to this application identifies three grounds on which she relies to oppose the Creditor's Petition, being; first, the respondent is solvent; second, the applicant has not responded to her request to allow her to pay the claimed debt by instalments or to postpone the enforcement of the debt; and third, pursuant to s 52 of the Bankruptcy Act, there is “other sufficient cause” for the Court to exercise its discretion not to make a sequestration order. As to the third basis, the respondent asserted that the Court should go behind the judgment of Flick J “to determine whether his judgment made at trial with no full investigation satisfies the level of proof of debt pursuant to 52(1)(c)” and the judgment of Perram J “given evidence shows that there is ‘substantial reason to believe’ that the debt is not owed pursuant to 52(1)(c)”. The respondent’s submissions in her opposition to making the order, which are summarised below, accorded with the bases identified in that notice.

11    For the reason below, the application for the sequestration order is granted.

Legislative framework

12    Section 43(1) of the Bankruptcy Act provides that the Court may, on a petition presented by a creditor, make a sequestration order against the estate of a debtor where the debtor has committed an act of bankruptcy and at the time of the act of bankruptcy the debtor was personally present or ordinarily resident in Australia, had a dwelling-house or place of business in Australia, was carrying on business in Australia, either personally or by means of an agent or manager, or was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager.

13    Section 44(1) sets out the preconditions to the presentation of a petition against a debtor as follows:

(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 the statutory minimum or 2 or more debts that amount in the aggregate to the statutory minimum, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to the statutory minimum;

(b)     that debt, or each of those debts, as the case may be:

(i)     is a liquidated sum due at law or in equity or partly at law and partly in equity; and

(ii)     is payable either immediately or at a certain future time; and

(c)     the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

14    Section 40 sets out when a debtor commits an act of bankruptcy, including relevantly:

(1)    A debtor commits an act of bankruptcy in each of the following cases:

…

(g)     if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i)     where the notice was served in Australia — within the time fixed for compliance with the notice; or

(ii)     where the notice was served elsewhere — within the time specified by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

…

(3) For the purposes of paragraph (1)(g):

…

(d)     a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

…

15    Section 52 relates to the proceedings of a creditor’s petition and relevantly provides:

(1) At the hearing of a creditor’s petition, the Court shall require proof of:

(a)     the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)     service of the petition; and

(c)    the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

…

(2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a)     that he or she is able to pay his or her debts; or

(b)     that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

The Bankruptcy Notice

16    The respondent committed an act of bankruptcy by failing to comply with the requirements of the Bankruptcy Notice served on her and failing to otherwise satisfy the Court that she had a relevant counter-claim, set-off or cross demand equal to or more than the sum claimed in the Bankruptcy Notice.

17    The Bankruptcy Notice was served on the respondent on 25 September 2018 which required compliance by 30 April 2019. That time for compliance was extended on a number of occasions, the last being by Griffiths J on 19 December 2018, when his Honour ordered the “time of compliance by the respondent with the requirements of the Bankruptcy Notice is extended until the hearing of the matter or until further order”. The hearing referred to was the respondent’s challenge to the validity of the Bankruptcy Notice. On 30 April 2019, after the commencement of the hearing, Griffiths J made orders for the filing of written submissions, with “the matter to be heard and determined on the papers without an oral hearing”. Judgment was delivered on 27 June 2019.

18    The applicant submitted that the “hearing” continued at least until immediately before the making of the final decision. This was contended to be consistent with the ordinary meaning of the word “hearing” that includes the giving of evidence, the making and consideration of written submissions, and may extend to everything done up to and including the pronouncement of a final decision, relying on the observations in JH v Director General, Community Services Directorate [2012] ACTSC 30; (2012) 260 FLR 21 at [37]-[42]. It was submitted that it was also consistent with the apparent intention of the order made on 19 December 2018, being to extend the time fixed for compliance with the Bankruptcy Notice up to the conclusion of the matter. It was submitted therefore that the respondent committed an act of bankruptcy by failing to comply with the Bankruptcy Notice by 27 June 2019, the date judgment was delivered. In the alternative, it was submitted that the hearing continued until the parties had made their final submissions, being on 24 May 2019, referring to New South Wales Aboriginal Land Council v Minister Administering the Crown Land Act (Moonbi) [2014] NSWLEC 144.

19    In the circumstances of this case, and in light of s 20A of the Federal Court of Australia Act 1976 (Cth) which permits a hearing on the papers, the better view is that the hearing continued until judgment was delivered on 27 June 2019. That was plainly the intention of Griffiths J, particularly given that the issue his Honour was determining was the respondent’s challenge to the validity of the Bankruptcy Notice. The extension for compliance was extended to enable that challenge to occur, and must necessarily encompass being resolved.

20    On the evidence I am satisfied that the applicant has fulfilled the requirements of s 52 of the Bankruptcy Act.

21    Turning to the objections to the orders sought.

Submissions

22    As noted above, the respondent relied on three bases, which were expanded upon in her written and oral submissions. As to the first basis, that the respondent is solvent, her evidence included inter alia, the production of a superannuation statement. The respondent submitted she is in a positon to pay and that she had chosen not to access her superannuation as she is currently working, and therefore there is no issue regarding insolvency. Rather, the respondent submitted, the issue is that the debts are not owing, and the Court can and should go behind the judgments on which the applicant relies on. She submitted, referring to Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 (Ramsay Health Care), that the Court requires proof of the fact that the debt(s) on which the petitioning creditor relies is still owing. She submitted the Court should not be so satisfied. In oral submissions, the respondent also referred to a consent order she submitted was made in the Tribunal in 2009, which she contends was not appealed and as such, resulted in Comcare owing her money for the last 12 years which, she submitted, must be more than she owes them.

23    As to the second basis, that the applicant has not responded to her request to pay the claimed debt by instalments or to postpone the enforcement of the debt, the respondent submitted that it was inappropriate for Comcare to suggest that an instalment arrangement should not be allowed to be considered because it refuses to discuss options with her, particularly given it is an available form of debt repayment accepted and allowed by Comcare.

24    As to the third basis, the respondent submitted that the Court should go behind the judgments as it would establish that the debt was not owing. It was this aspect which was the main focus of the respondent’s oral submission. The submission focused on the judgment of Perram J, with the respondent contending that his Honour made a finding that she suffered an injury on 15 July 2009. The respondent submitted that there is no diagnosis for an injury on 15 July 2009, there was no claim lodged, and there was no causal relationship between the alleged reasonable administrative action taken by Mr Schwager on 15 July 2009, as referred to in the judgment. The argument focused on [9]-[14] of that judgment. The respondent contended that the applicant had, to put it neutrally, misled the Court. The respondent submitted that Perram J’s decision “is materially affected by perjury” and therefore cannot stand. She submitted as a consequence the costs order also cannot stand. The respondent also contended that Comcare misrepresented matters in this Court.

25    The respondent further submitted that the Court should require Comcare to put on evidence in relation to a number of matters. The respondent submitted:

…lodging a malicious bankruptcy threat based on a lie – on false testimony and an unlawful refusal to comply with the AAT decision, Comcare owes a debt and if they pay their debt it will more than balance out what they say I might owe them. So, your Honour, the key point I want to make to the court is an unrepresented litigant has difficulty fighting a case, especially with legal argument, but the most basic element of a fight is the evidence. And for the court not to accept that the evidence is critical and to say, “Well, if you’re going to make a claim it must be supported by evidence”, then it makes it impossible to fight an argument.

Comcare is a model litigant and it’s supposed to be honest and trustworthy, but they have lied, and the lie can be established because, as I said, there is no 15 July 2009 claim and there’s no new injury in 2009. It will be so easy for the court to establish – and that’s what I ask you to do. Before you make me bankrupt, please, look at the lie.

26    The respondent’s written submissions were more extensive than that recited above, and addressed in greater detail her complaints with the judgments of Perram J, Griffiths J and Rares J. It is unnecessary to recite all those details here, but I have taken those submissions into account.

27    As to the first basis, the applicant submitted that the evidence is insufficient to discharge the respondent’s onus to establish that she has financial resources which she can realise within a relatively short time frame to satisfy her debts. The additional evidence consists of various estimates of the respondent’s superannuation benefits assuming she retires on 30 July 2020. It was submitted at best, the effect of the additional evidence is that, as a member of the Public Sector Superannuation Scheme, the respondent will, on retirement, be entitled to receive a benefit under the Scheme of an unknown value. The respondent has not adduced any further evidence as to her ability to realise proceeds from the sale of her property in Curtin within a relatively short time. The respondent has not otherwise adduced evidence of her financial resources. The respondent has not adduced any evidence of her liabilities, and it was submitted that there is evidence to suggest that she has liabilities beyond the debts the subject of the Creditor’s Petition. These include three or four additional costs orders which have not been taxed, and therefore are liabilities as opposed to debts. It was submitted that even if the evidence was sufficient, in the circumstances of this case, the Court should not exercise its discretion to dismiss the Creditor’s Petition.

28    As to the second basis, the suggestion of payment by instalments, the applicant submitted that a payment arrangement cannot be enforced upon it, noting that these are debts that have been outstanding for some significant period of time and the full amount continues to be outstanding. No payments have been made towards those debts.

29    As to the third basis, the applicant submitted that there is no basis to go behind the costs judgments, referring Ramsay Health Care, Wren v Mahoney [1972] HCA 5; (1972) 126 CLR 212 (Wren v Mahoney) and Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 (Kitay). As to the respondent’s submission that the underlying judgments are incorrect and therefore the costs orders that flowed should fall, the applicant submitted that was not so in this case. It submitted there was no connection between the substance of the matter and the making of the costs order in the Rares J Proceeding and Flick J Proceeding. It was also submitted that given the nature of the matters that were before Perram J, there is no sufficient connection between what is now criticised in the judgment and the matters actually before him for determination. The applicant also addressed the respondent’s assertions made in respect to each of the judgments.

30    It is appropriate to first consider whether to go behind the judgments, as that argument is directed to whether there is a debt owing.

Going behind a judgment - relevant principles

31    The existence of a judgment is prima facie evidence of a debt: Corney v Brien [1951] HCA 31; (1951) 84 CLR 343 (Corney v Brien) at 355. However, a judgment is never conclusive evidence of a debt in bankruptcy proceedings as the Court may “go behind” the judgment to investigate whether there was a good debt to support it: Corney v Brien at 347. For the purposes of s 52(1)(c), the Court must be satisfied that “in truth and reality” there is a debt owing. The Court has a discretion whether to accept a judgment as the required proof. As explained in Wren v Mahoney, Barwick CJ (with whom Windeyer and Owen JJ agreed) said (at 224):

The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor’s debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration.

32    The relevant principles were addressed more recently by the High Court in Ramsay Health Care where Kiefel CJ, Keane and Nettle JJ explained the correct approach at [54]-[55] as follows:

[54] In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as “res judicata” between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order. A Bankruptcy Court has a statutory duty to be “satisfied” as to the existence of the petitioning creditor’s debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.

[55] The scrutiny required by s 52 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. It is of critical importance to appreciate that such persons were not parties to the proceedings that resulted in the judgment debt. It has long been recognised that their interest in being paid their debts 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. In In re Fraser; Ex parte Central Bank of London, Lord Esher MR said:

“The decision is based upon the highest ground – viz, that in making a receiving order, the Court is not dealing simply between the petitioning creditor and the debtor, but it is interfering with the rights of his other creditors, who, if the order is made, will not be able to sue the debtor for their debts, and that the Court ought not to exercise this extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor. The existence of the judgment is no doubt prima facie evidence of a debt; but still the Court of Bankruptcy is entitled to inquire whether there really is a debt due to the petitioning creditor.”

33    And later at [68]-[70] the plurality observed:

[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 (footnotes omitted).

34    In Kitay, Colvin J noted at [26]-[30], that the authorities considered in Ramsay Health Care are cases where the debt that is claimed to be owing by the respondent to the creditor's petition, is a separate liability that has been adjudicated on by a court to be due and which has merged in the judgment: Wren v Mahoney - liability of the respondent for income tax; Corney v Brien - liability of the respondent under a hire purchase agreement; and in Ramsay Health Care - liability of the respondent under a guarantee. The court in those cases was not concerned with the position of a party who has unsuccessfully pursued a claim and so incurred a costs liability.

35    This case is concerned with a failure to pay the assessed amount pursuant to costs orders made in proceedings where the assessment takes effect as a judgment. An award of costs is discretionary: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4], with settled principle guiding the exercise of the discretion: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [38]. The making of an adverse costs order turns upon discretionary considerations that arise independently of the entry of judgment against the debtor: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 (Foots) at [37]. Although the discretion is generally exercised in favour of the successful party: Foots at [25], it need not do so.

36    As Banks-Smith J observed in Waterton v Lafferty [2019] FCA 1267 at [76]-[77], that the observations of Colvin J in Kitay preserves the potential in the face of an allegation of fraud, collusion or miscarriage of justice for a court to go behind a costs liability where there is not an antecedent debt, but where there is a link between the underlying determination of issues and costs by way of the exercise of discretion to order that costs follow the event after trial. Logically, that must be so.

Consideration

37    The applicant has not established there is a proper basis to go behind the judgments of Perram J, Flick J and Rares J.

38    To explain why that is so it is necessary to consider the history of these proceedings in more detail.

39    The background to these proceedings is accurately summarised by Griffiths J in his Honour’s reasons dismissing the respondent’s application to set aside the Bankruptcy Notice: Dunkerley v Comcare [2019] FCA 1002. It is convenient to recite that summary, relevantly from [7]-[15]:

[7] Ms Dunkerley is a teacher. On 24 October 2007, she suffered an injury described as an “adjustment disorder with anxious mood” which she claimed was contributed to, in significant measure, by her employment at the former Commonwealth Department of Education, Science and Training (DEST). Although initially attempts were made to return her to work in another area of DEST, these attempts were unsuccessful and she was transferred to the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISR) in May 2008.

[8] Comcare initially declined liability for the October 2007 injury. On 16 June 2009, the AAT made a consent decision in which Comcare accepted liability for Ms Dunkerley’s injury suffered on 24 October 2007.

[9] In March 2009, Dr George (a psychiatrist), concluded that Ms Dunkerley no longer presented with any psychiatric diagnosis and that she had full capacity to return to work.

[10] On 1 September 2009, Ms Dunkerley made a claim for compensation from Comcare for aggravation of her condition arising from her interactions with a more senior colleague at DIISR in July 2009 in the context of her participation in a promotion round. This claim for aggravation was rejected by Comcare on 8 December 2009 and its decision was upheld on an internal review by Comcare on 11 February 2010. Ms Dunkerley sought a review of Comcare’s decision in the AAT.

[11] Comcare’s decision was affirmed by the AAT in its decision dated 17 November 2010, which is reported as Re Dunkerley and Comcare [2010] AATA 915 (First AAT Decision). The AAT found that Ms Dunkerley’s aggravation had been suffered as a result of the feedback that she received from her more senior colleague (who was the Chair of the Selection Advisory Committee) on 17 July 2009. The feedback related to her unsuccessful attempt to obtain a promotion and the AAT found that it constituted reasonable administrative action taken in a reasonable manner in respect of her employment and that, accordingly, there was no “injury” for the purposes of s 5A of the SRC Act.

[12] Ms Dunkerley appealed the First AAT Decision to this Court. The appeal was dismissed by Perram J on 3 February 2012. His Honour’s reasons for judgment are reported as Dunkerley v Administrative Appeals Tribunal [2012] FCA 41. Comcare did not seek costs against Ms Dunkerley and none was ordered.

[13] Ms Dunkerley appealed to the Full Court from Perram J’s decision. On 13 September 2012, the appeal was dismissed by Lander, Logan and Barker JJ. Their Honours’ reasons for judgment are reported as Dunkerley v Comcare [2012] FCAFC 132; 131 ALD 1. An order for costs was made in favour of Comcare. Comcare did not pursue those costs and they do not form part of the basis of the bankruptcy notice which is the subject of the present proceeding.

[14] Before describing the background to the three costs orders which form the basis of the bankruptcy notice, it is apt to say something about other proceedings in the AAT involving Ms Dunkerley and Comcare which preceded the making of those three costs orders.

[15] In early May 2013, Ms Dunkerley reagitated her claim for compensation arising from her October 2007 injury. On 20 May 2013, Comcare denied liability to pay Ms Dunkerley compensation under ss 16 and 19 of the SRC Act from 2 March 2009 to the date of that determination in relation to Ms Dunkerley’s “adjustment disorder with anxious mood” suffered on 24 October 2007. The basis for the denial was Comcare’s determination that Ms Dunkerley had recovered from the injury suffered on 24 October 2007 by no later than 2 March 2009. Comcare’s determination that Ms Dunkerley had recovered from her injury was based on a medical report by a medical practitioner named Dr George. This decision was affirmed on internal review and Ms Dunkerley then sought review of that internal review decision in the AAT. On 18 June 2014, the AAT affirmed Comcare’s decision (the Second AAT Decision). It found that, as at 2 March 2009, Ms Dunkerley did not suffer from a “Axis 1 psychiatric disorder”, and did not at that time suffer incapacity for work nor require further medical treatment for the injury suffered on 24 October 2007. The Second AAT Decision is reported as Re Dunkerley and Comcare [2014] AATA 381.

40    Before returning to the judgment of Griffiths J it is appropriate to consider the judgments of Perram J, Flick J and Rares J in more detail.

41    The issues before Perram J were limited. It was an appeal to this Court from orders made by the Tribunal (Second AAT Decision). Ms Dunkerley represented herself. The Tribunal had dismissed her application for review of an earlier decision made by Comcare. The decision was that the respondent was not entitled to compensation for medical treatment expenses or incapacity for work under the SRC Act. The injury in question occurred in October 2007. Both Comcare and the Tribunal concluded that the injury had resolved by March 2009 and, in any event, had been completely supplanted by a non-compensable injury suffered in July 2009: at [1]. Perram J stated at [12] that the respondent’s claim was “one for aggravation of her pre-existing condition” and that it was treated as such by all concerned but that liability was declined on the basis that the conduct which underpinned the aggravation was “reasonable administrative action” within the meaning of s 5A(2) of the SRC Act. Perram J identified the respondent’s contentions at [21] as threefold. First, the medical certificates she had obtained at the time of the incident with Mr Schwager all referred to the condition as an exacerbation of her pre-existing 2007 adjustment disorder, and neither Comcare, nor subsequently the Tribunal, were permitted to approach the matter on the basis that the earlier 2007 injury was not relevant. Second, the Tribunal used the opinion of doctors other than those who had issued the medical certificates and, in particular, that of Dr George of 10 March 2009, to arrive at the view that the 2007 injury was not causing any ongoing disability, which they were not entitled to do. Third, the hearing before the Tribunal involved a miscarriage of justice, in that Comcare had failed to clarify for the Tribunal what her case was, which was a breach of Comcare’s obligations as a model litigant. Perram J concluded that the appeal was devoid of merit: at [22]. His Honour concluded that, neither the Tribunal nor Comcare were bound by the medical certificates which she had obtained in respect of the conduct which underpinned the aggravation of her pre-existing 2007 adjustment disorder; the Tribunal did not err in relying upon Dr George’s opinion in concluding that the 2007 injury was not causing the respondent any ongoing disability; and Comcare had not behaved inappropriately and, in any event, a breach of the Model Litigant Guidelines had no consequence in civil litigation: at [22]-[26]. Perram J also observed that in his view “the proceedings are beginning to border on the vexatious”: at [28]. The proceedings were dismissed with costs.

42    As previously mentioned, Ms Dunkerley appealed the orders made by Perram J. That proceeding was case managed by Flick J. On 10 June 2015, at a case management hearing, Flick J ordered that the respondent complete an appeal book by 26 June 2015 and file an outline of written submissions by 9 July 2015. A further case management hearing was scheduled. The respondent failed to appear at that case management hearing, held on 23 July 2019. The respondent also failed to comply with the directions made on 10 June 2015. Flick J dismissed the respondent’s application because of the combination of the failure to compile the appeal book and associated documents, the failure to file by the prescribed time an outline of submissions which clearly articulated the errors alleged to have been committed by the primary judge, and the failure to identify any ground of appeal which has merit: at [52]-[53]. In reaching that conclusion his Honour considered the grounds of appeal to determine they had no merit. Flick J noted that some of the grounds alleged matters not argued before the primary judge. I pause to note that some of the grounds, in so far as they are able to be identified, resemble arguments advanced by the respondent on this application.

43    Rares J then considered an application for an extension of time and leave to appeal against the orders made by Flick J. His Honour concluded that the Court had no power to grant the relief sought as Flick J was exercising appellate jurisdiction. Rares J also considered alternatives, namely, if it was an application to vary the orders made by Flick J, there was also no power to grant the relief. In any event, Rares J found the application was entirely without merit and an abuse of process: at [10].

44    On or about 12 August 2016, the respondent sought special leave to appeal to the High Court in respect to Rares J’s judgment. On 10 November 2016 that application was dismissed on the basis that none of the grounds relied on enjoyed a sufficient prospect of success to warrant the grant of special leave.

45    Against that background it is necessary to return to the judgment of Griffiths J, which addressed the respondent’s application challenging the Bankruptcy Notice. That application, at least in part, was also based on the respondent’s assertion that the Court should go behind the judgments of Perram J, Flick J and Rares J. Griffiths J concluded that the the respondent had failed to establish any sufficient basis to go behind those judgments which had resulted in the costs orders forming the basis of the Bankruptcy Notice and she had not made good her serious allegations of abuse of process, fraud, and other misconduct by the respondent. Griffiths J expressed that, in effect, the submissions were no more than an attempt to re-litigate the same issues of fact and law that had been considered and rejected in the previous proceedings. The respondent’s appeal from that decision to the Full Court was also dismissed: [2020] FCAFC 8.

46    Griffiths J’s reasons reflect that, in large part, the submissions relied on by Ms Dunkerley to go behind the earlier judgments in those proceedings are the same as advanced in this Court.

47    As will be apparent from the recitation of the the respondent’s submission above, most of her submissions were focused on the judgment of Perram J and, in particular, a purported finding at [11] that there was an injury on 15 July 2009. That paragraph is relevantly as follows: “[o]n 1 September 2009 she made a further claim for compensation based now on a conversation of 15 July 2009 with Mr Schwager”. The paragraph is found in the section of the reasons which recites the facts. Properly read, it is plain from the reasons that Perram J did not make any finding, as contended by the respondent. As is apparent from the limited issues before his Honour as identified at [41] above, there was no cause for him to make such a finding.

48    In the course of recounting the outcome of previous proceedings, Perram J stated at [14] that “[a]lthough Ms Dunkerley challenged the Tribunal’s conclusion that Mr Schwager’s actions were reasonable administrative action, first before me and then before the Full Court, this argument was on each occasion rejected. Ultimately, it was concluded that [Ms Dunkerley] was not entitled to compensation under the Act in respect of Mr Schwager’s actions on 15 July 2009”. For the purposes of the SRC Act, an employee is taken to have sustained an injury on the day when the employee first sought medical treatment, or was incapacitated for work, whichever was earlier. Consistent with the respondent’s claim for compensation, it was agreed by the parties before the Tribunal that the date of the injury for the purposes of the SRC Act was 20 July 2009. This injury was alleged to have occurred as a result of actions taken by Mr Schwager on or after 15 July 2009 (as is apparent from the Tribunal decision exhibited to the affidavit of Ms Mulherin of 26 May 2020, with the Tribunal finding Mr Schwager’s actions occurred on 17 July 2009).

49    A proper reading of the reasons reflect that it is plain that Perram J was referring to the events the subject of the claim for the injury which occurred in July 2009, the subject of the appeal: at [1]. In any event, the disposition of the appeal by Perram J did not turn on the precise date on which the actions of Mr Schwager occurred. It was irrelevant to the matters being determined.

50    It follows that the premises of much of the respondent’s submission are incorrect.

51    The submission reflects a consistent approach by the respondent in which she advances a submission based on a statement in a judgment taken out of context, and then attributes to it a meaning it does not have and claims that it results in an entitlement to compensation.

52    The balance of the respondent’s submissions are a repetition of arguments previously advanced and rejected.

53    For example, there was no finding of fact by Perram J at [12] that the respondent had suffered an exacerbation of her original injury in 2009, as she asserted. Rather, at [12] Perram J noted that was the way the previous proceedings had been conducted: and see Griffiths J at [71]. Contrary to the respondent’s submission, that also was not a finding, and does not entitle her to compensation. What the respondent fails to recognise is that, as described at [14], the claim was denied because Mr Schwager’s actions were considered reasonable administrative action. To take another example, the respondent’s complaint about reliance being placed on the report of Dr George and the failure to rely on the medical certificates she provided are matters which were expressly addressed and rejected by Perram J at [22]-[25]. Significantly, these very arguments were also rejected by Griffiths J at [73]-[74] as providing a proper basis to go behind Perram J’s judgment. As noted above, the Full Court dismissed the respondent’s appeal from the judgment of Griffiths J.

54    The respondent’s submissions in relation to the judgments of Flick J and Rares J simply repeat previous arguments.

55    In reality, the respondent seeks to relitigate these proceedings (and her underlying claim). I do not accept the submissions made by her that the applicant did not, during these proceedings, act as a model litigant. Such allegations have been repeatedly made by her and appear to be based on no more than that the applicant disagrees with her arguments or does not do what she contends it ought. That is not a proper basis to make such allegations.

56    It will be recalled that the issue to which this argument is directed is the satisfaction that there is in truth and reality a debt due. Applying the principles referred to above at [31]-[36] and considering each judgment separately (and in combination) the respondent has not established a basis to go behind the judgments of Perram J, Flick J and Rares J.

57    I find there is in truth and reality a debt owing.

58    It remains to consider the two other bases of objection relied on by the respondent.

59    First, as to the issue of solvency, the onus is on the respondent to adduce evidence that she is “able to pay her” her debts within the meaning of s 52(2)(a) of the Bankruptcy Act: Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 at [44].

60    The issue is whether they can pay their debts as they fall due either with immediate cash resources or by realising assets, sufficient to pay the debt, within a relatively short time: Shaw v Yarranova Pty Ltd [2017] FCAFC 88; (2017) 252 FCR 262 (Shaw) at [96], citing Sandell v Porter (1966) 115 CLR 666 (Sandell v Porter) at 670 (in the context of a bankruptcy annulment application).

61    The test was stated by Barwick CJ in Sandell v Porter at 670 as follows:

Insolvency is expressed in s 95 as an inability to pay debts as they fall due out of the debtor’s own money. But the debtor’s own moneys are not limited to his cash resources immediately available. They extend to moneys which he can procure by realization by sale or by mortgage or pledge of his assets within a relatively short time—relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor. The conclusion of insolvency ought to be clear from a consideration of the debtor’s financial position in its entirety and generally speaking ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor’s inability, utilizing such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency.

62    Recently, in Kessly v Beadle as Trustee of the Bankrupt Estate of Evangelina Francisca Kessly [2020] FCA 607, Burley J having referred to Sandell v Porter and the passage recited above, considered the case of Shaw at [56]-[57]:

[56] In Shaw the bankrupt sought to establish that he was able to pay his debts as they fell due at the relevant time and that his bankruptcy should be annulled on that basis. In the primary judgment of Shaw v Yarranova Pty Ltd [2016] FCA 88, Pagone J accepted that Mr Shaw had owned assets at the time of the sequestration proceedings in excess of the judgment debts owed by him to the respondents. His Honour went on to say at [10]:

...The availability of those assets are relevant to Mr Shaw’s solvency as at the date of making of the sequestration order but it is not sufficient to establish solvency for Mr Shaw to say that he had assets that could be realised without having taken any steps to do so or without showing that he could do so within a relatively short time: Stankiewicz v Plata [2000] FCA 1185, [30]-[32]; Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13, [11]. Mr Shaw has not demonstrated that in May 2014, or if relevant, at any time thereafter, he was in a position to ‘realise assets, sufficient to pay the debt, within a relatively short time’: Stankiewicz, [30]...

[57] Pagone J held that it would be necessary for the bankrupt to sell one or more of his properties in order to discharge his liabilities, which he was unable to do so in a “relatively short” or “reasonable” period of time and therefore he had failed to establish his solvency. The Full Court upheld this conclusion, accepting as an underlying premise of the primary judge’s findings that all of the judgment debts owed by the bankrupt were immediately due and payable (at [100]), and that the bankrupt had not discharged the onus on him to demonstrate an ability to sell the assets. A lack of demonstrated ability to pay in a reasonable or relatively short period of time meant that he was not able to establish solvency.

63    Initially, the respondent provided some evidence that she is one of two registered proprietors of a property in Curtin in the Australian Capital Territory (Curtin Property). She also advised the applicant that she has an asset in the form of superannuation. The applicant in its written submission contended that there was a lack of evidence provided by the respondent, including there being no evidence of the value of the Curtin Property, whether it is subject to any unregistered interests, whether the respondent holds the property on trust for a third party, or the respondent's ability to realise proceeds from the sale of the Curtin Property within a relatively short time. It was also submitted that there was no evidence before the Court whether the respondent has the ability to pay her debts within a relatively short period of time out of her superannuation. There was no evidence of liabilities. It was submitted that the Court cannot be satisfied that the respondent is able to pay her debts.

64    As a result the respondent adduced further evidence, but only in relation to her superannuation. The applicant submitted that at best, the effect of the additional evidence is that, as a member of the Public Sector Superannuation Scheme, the respondent will, on retirement, be entitled to receive a benefit under the Scheme of unknown value. It was put that despite being on notice of the applicant’s submissions and being given an opportunity to do so, the respondent has adduced no further evidence as to her ability to realise proceeds from the sale of the Curtin Property within a relatively short time. The respondent has not otherwise adduced evidence of her financial resources. The respondent has not adduced evidence of her liabilities. There is evidence to suggest that the respondent has liabilities beyond the debts the subject of the Creditor’s Petition.

65    Given the onus and her position to adduce evidence, the Court may more confidently draw an inference that such liabilities exist and that the uncalled evidence and any untendered documents would not have assisted the respondent’s case, referring to Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [78]-[79].

66    I note that the Court has a discretion to make a sequestration order even if satisfied that the debtor is able to pay his or her debts: Dunn, in the matter of Dunn v Vangsnes [2000] FCA 1051 at [17]. As Hely J observed at [18]:

Section 52(2)(a) envisages a situation which will probably bear fruit in payment. It is not easy to see any other reason why the legislature makes demonstration of ability to pay only a discretionary ground of dismissal of the petition, and not an absolute bar to its success. The decision of Finn J in Re Capel; Ex parte Caram Finance Australia Limited (unreported) 9 April 1998 is an illustration of a case in which, even if the Court had been satisfied that a particular asset was available to the debtor, it would have been appropriate nonetheless to exercise the discretion in favour of making a sequestration order, because the debtor had no assets or income that could be reached by execution or garnishment.

And see: Knudsen & Yates trading as The Hargreaves Practice, in the matter of Sanders v Sanders [2003] FCA 1079 at [51]; Kitay at [8], [120], [126].

67    The evidence relied on by the respondent is lacking. At best the respondent can access her superannuation fund at some time, but has not. She claims to have money to pay the debts, but she has not done so because she claims they are not properly owing. As apparent from the analysis above, there is no proper basis to challenge that proposition, yet she has chosen to do so based primarily on matters already repeatedly rejected by this Court.

68    Despite being on notice as to the adequacy of the evidence, the respondent has not put on any other evidence of her finances. The position in relation to the Curtin Property is unclear. There is no evidence as to liabilities, although at the very least there are other costs orders that have been made in this Court. Accepting that Ms Dunkerley is unrepresented, it would nonetheless be expected that such evidence would have been provided. The respondent has had ample opportunity to do so and is aware of the significance of the issue of solvency. This is particularly so given her ability to rely on evidence or put matters before the Court when she desires to do so. She has chosen not to.

69    There is no sufficient evidence that the respondent has the ability to realise any purported assets sufficient to pay her debts within a relatively short time, or that she has taken any steps to do so: see [59]-[62]. This is in a context where the debts have been outstanding for some considerable time.

70    Second, the order was opposed on the basis the applicant refused to discuss a pay by installment arrangement with the respondent. That does not provide a basis to decline to make the order. These debts have been owing for some considerable time with no amount paid off. The applicant was not bound to discuss whether the respondent is able to pay by way of installment payments. This is also in the context in which she is declining to pay because she claims the money is not owed.

71    I am satisfied as to the matters required by s 52 of the Bankruptcy Act. I see no sufficient reason not to make the sequestration order. I order that a sequestration order under the Bankruptcy Act be made against the estate of Ulla-Maija Katriina Dunkerley. I order that the applicant creditor’s costs (including reserved costs) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act.

Associate:

Dated:    13 May 2021