Federal Court of Australia

Burnett v Browne (No 3) [2021] FCA 703

ORDERS

THE COURT ORDERS THAT:

1.    The amended application dated 9 April 2021 be dismissed.

2.    The first, second and third respondents file and serve any submissions or evidence on the question of costs, including whether the legal representative for the applicant should bear any part of the costs of the proceeding personally, by 4:00 pm on 5 July 2021.

3.    The legal representative for the applicant file and serve any submissions or evidence upon which he may rely on the question of costs by 4:00 pm on 30 July 2021.

4.    The further hearing of the proceeding be adjourned to a date to be fixed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    This is an application by Ms Gail Burnett to annul her bankruptcy or set aside the sequestration order made against her. The orders that she seeks in her amended application dated 9 April 2021 are as follows:

1.    …

(a)    An order that … the sequestration order that issued following the decision of Judge [Riethmuller] in [2018] FCCA 2866 of the 4th October 2018 be set aside or annulled under section 153B of the Bankruptcy Act 1966 (Cth) on the grounds that:

(i)    At all material times from August 2017 and including the date when the Applicant was served with the Creditor[’]s Petition and at all times since the Applicant has been a person under a legal incapacity, or under a disability, and lacking capacity and under a mental disability, and consequently all proceedings in relation to the Bankruptcy have not been in accordance with the Court’s Rules as to service of a person with a disability or the conduct of proceedings against such a person and any Bankruptcy Act order or orders are void, and not binding on, or effective against, the Applicant.

2.    The First and Second Respondents, or alternatively, the Respondents pay the Applicant’s costs of this application, on an indemnity, or alternatively, a party party basis.

3.    Further, or in the alternative, the First and Second Respondents pay the Third Respondent’s costs and expenses of the administration of the bankruptcy.

4.    Further, or in the alternative, the Third Respondent be responsible for his own costs and expenses of the administration of the bankruptcy.

2    The first and second respondents, Messrs Browne and FitzGerald, were once Ms Burnett’s solicitors. They are now her creditors (the creditors). They oppose the application in its entirety. The third respondent, Mr Cook, is Ms Burnett’s trustee in bankruptcy (the trustee). He opposes the relief sought against him.

3    I have already described the events precipitating this application as a long and sorry history. See Burnett v Browne [2021] FCA 85; Burnett v Browne [2019] FCA 1233. It is, however, now necessary to set out part of that history in some more detail.

Background

4    In around May 2012, Ms Burnett was considering a personal injury claim against the owner of the former K&D brickworks situated in New Town, Hobart. She sought advice from the creditors.

5    The creditors later sued Ms Burnett for unpaid fees and disbursements in the Magistrates Court of Tasmania. On 20 November 2014, they obtained a judgment in the sum of $4,559.52 and lodged a caveat over Ms Burnett’s property. Ms Burnett eventually satisfied the judgment debt, and the caveat was withdrawn.

6    In early May 2016, the creditors filed a bill of costs for $10,799.53 in the Magistrates Court and served it on Ms Burnett. Ms Burnett’s objection to the bill was unsuccessful, and a certificate of assessment was issued.

7    On 1 July 2015, the Dragon Glenn Family Trust was established. Ms Burnett was to be the appointor, and her children, Ms Fiona Burnett and Mr Christopher Isherwood, were to be the trustees and beneficiaries.

8    On 7 July 2015, the creditors lodged a caveat over Ms Burnett’s property at 56 Coleman Street, Moonah.

9    Meanwhile, Ms Burnett had appealed the Magistrates Court judgment to the Supreme Court of Tasmania. Her appeal was listed for hearing on 30 July 2015. Around two weeks before the hearing she retained a lawyer, Mr Leonard Fernandez, to act on her behalf, and he filed an amended notice of appeal.

10    On 29 July 2015, Mr Fernandez sent the creditors an email stating that Ms Burnett was willing to discontinue her appeal with no order as to costs. He filed a notice of discontinuance on her behalf later that day.

11    Ms Burnett, no longer represented by Mr Fernandez, then applied to have the notice of discontinuance set aside. That application was listed for hearing before Pearce J in the Supreme Court of Tasmania on 19 October 2016. In the weeks leading up to the hearing, Ms Burnett applied for Pearce J to recuse himself, an application which his Honour refused on 5 October 2015.

12    The hearing of the application to set aside the notice of discontinuance took place on 19 and 20 October 2015. Ms Burnett appeared before Pearce J on her own behalf, gave evidence, was cross-examined and made submissions. The creditors, who were the respondents on the application, appeared by counsel.

13    Justice Pearce dismissed Ms Burnett’s application on 30 October 2015. See Burnett v FitzGerald (2015) 25 Tas R 42. His Honour’s reasons contain a detailed description of the conduct of the hearing and the controversy surrounding the notice of discontinuance.

14    On 4 December 2015, there was a further hearing before Pearce J on the question of costs. Once again, Ms Burnett appeared on her own behalf. She read affidavits, tendered documents and made submissions by reference to authorities. Justice Pearce ordered her to pay the creditors’ costs of the recusal application and the application to set aside the notice of discontinuance.

15    On 11 March 2016, Ms Burnett sent an email to Pearce J’s chambers seeking documents apparently relied upon at the hearing on 19 October.

16    On 18 March 2016, Ms Burnett’s conveyancer, Ms Kate Goodman, sent a letter to the creditors seeking to pay them the funds necessary for them to discharge the caveat over the property at 56 Coleman Street, Moonah. It would seem that no agreement was reached between Ms Goodman and the creditors in this regard.

17    On 31 March 2016, Ms Burnett executed a transfer of her property at 56 Coleman Street, Moonah in favour of her children as trustees for the Dragon Glenn Family Trust. The transfer was expressed to be for no consideration.

18    On 1 April 2016, the creditors sought and obtained a freezing order against Ms Burnett in the Supreme Court of Tasmania. The order was directed to preventing the transfer of the 56 Coleman Street property unless the sum of $80,000 was paid into court (being the creditors’ estimate of Ms Burnett’s liability to them).

19    On 11 April 2016, Ms Burnett paid $80,000 to the Supreme Court of Tasmania in discharge of the freezing order. She then wrote to the registry asking that the creditors be required to remove the caveat over her property.

20    On 27 May 2016, Ms Burnett lodged an objection to the taxation of costs that had been conducted in the Supreme Court of Tasmania following her unsuccessful applications. The document is difficult to follow. For example, the objections made on the first page are as follows:

I wish to object to taxation under 867. Objections to taxation.

I include detailed numbered objections, done under section headings.

Review of taxation items may 2016

237 attendance directions 9 Nov 15                                              262.50

Nothing after here was necessary as I said to Pearce I was ready, there was no reason he shouldn’t do it now.

238 email 9 Nov 15 he says Pearce said to send me when               70.00

I told Pearce to hear it 9 Nov 15.

There should be no costs past 237 9 Nov 15 as I said to hear it then.

239 – onwards not needed as I said hear it now on 9 Nov 15.

K&D stuff = not relevant = breach privacy

57                                                                                                       89.93

151 ROPS K&D                                                                                  32.50

Affidavits he wouldn’t let me cross examine him on = shouldn’t have been read into evidence as not used and as above he refused to let me question him on them under oath …

107 RB affidavits                                                                                411.67

109 RB 5 Aug 15 184.17

110 RB did in preparation for affirming and he refused to do so           32.50

= Friv and vexatious. Put in affidavits and refuse to give evidence on them in witness box.

111 affirm affidavit he refused to be questioned on                             108.3

(Ellipsis in original.)

21    On 9 August 2016, Ms Burnett appeared before Brett J in the Supreme Court of Tasmania and sought an extension of time in which to appeal Pearce J’s decision to refuse her application to set aside the notice of discontinuance. She made extensive submissions in support of her application, which was ultimately adjourned.

22    On 10 March 2017, Ms Burnett’s application for an extension of time was relisted for further submissions. Ms Burnett again addressed the court. Justice Brett dismissed the application the following day (and made orders as to costs on 30 May 2017).

23    On 12 May 2017, Ms Burnett wrote to the registry of the Supreme Court giving notice of her intention to appeal Brett J’s decision to refuse her an extension of time. She asked that the $80,000 that she had paid into court not be paid to the creditors.

24    Around two weeks later, on 25 May 2017, Ms Burnett filed a notice of appeal against Brett J’s decision. The creditors applied for security for their costs in respect of the appeal. Their application was listed for hearing on 6 July 2017.

25    On 2 July 2017, Ms Burnett notified Mr Browne that she intended to cross-examine him on the affidavit that he had filed in support of the security for costs application. She also filed “first draft” submissions opposing the application, which were based on the creditors’ written submissions, to which Ms Burnett had made additions in bold text. Ms Burnett’s submissions asserted, among other things, that the creditors’ initial claim for their costs in the Magistrates Court was “false”, that she never authorised Mr Fernandez to discontinue her appeal, and that she was denied procedural fairness at the hearings before Pearce J. She also referred to her unsuccessful attempts to seek assistance from the Law Society and the Attorney-General.

26    On 6 July 2017, the security for costs application came on for hearing before Estcourt J. Ms Burnett appeared and made submissions opposing the application, but was unsuccessful in having it dismissed. Estcourt J stayed her appeal pending the payment of $15,000 into court.

27    It was around this time that the creditors applied to the Supreme Court of Tasmania for an order dismissing Ms Burnett’s application (made in the latter part of the previous year) for review of the costs certificates that had been issued against her. The creditors’ dismissal application was heard by Holt AsJ on 11 July 2017, with Ms Burnett making submissions in opposition at the hearing.

28    On 14 July 2017, Mr Browne received a telephone call from Ms Jessica Bourke, a solicitor who had been retained by Ms Burnett in connection with an unrelated matter. Ms Bourke passed on an offer from Ms Burnett to discontinue her application to review the costs certificates and pay the creditors $13,000 to settle the dispute. The creditors did not accept this proposal.

29    As the hearing of the creditors’ application for dismissal of Ms Burnett’s costs review approached, on 1 September 2017, Ms Burnett wrote to them offering to settle the proceeding on the basis that each party was to bear his or her own costs. Evidently, the creditors did not accept this offer.

30    The dismissal application came on for hearing before Holt AsJ on 5 September 2017. Mr Browne appeared for the creditors. Ms Burnett appeared unrepresented to oppose the application. She read two affidavits, tendered various documents and made submissions. At around 3:10 pm the hearing was adjourned to the next day.

31    Five minutes later, the parties left the Supreme Court building and went out into Salamanca Place, where Ms Burnett was served with the creditor’s petition.

32    The hearing before Holt AsJ continued the next morning. Ms Burnett made further submissions and handed up cases. Mr Browne made submissions in reply. Ultimately, Ms Burnett prevailed and the creditors’ application was dismissed.

33    On 8 September 2017, in response to the creditor’s petition, Ms Burnett lodged a notice of appearance in the Federal Circuit Court, as well as an affidavit and a notice stating her grounds of opposition to the creditors’ application for a sequestration order. The last-mentioned document set out the following grounds:

1.    I make application to extend time if necessary. Or adjournment so I can try and prepare papers properly. I went into Registry and asked for help with what forms to fill in and was told they don’t help as they can be sued. I have written to some place in victoria and have not yet heard back from them and have no idea when they will be contacting me with free 1 hour consult.

 2.    I was personally served with papers on Tuesday 5 Sept 2017

3.    I have current applications before the supreme court being

(a)    an appeal from judgments.

(b)    a review of taxation

3.    The judgement was gained by the applicant making false claim in magistrates court, lying to magistrate and LPB and therefor gaining money by fraud. Both being malicious and vindictive against a former client.

4.    There has been procedural error of supreme court in they didn't keep appeal books safe and said one was ‘disintegrated’ so appeal was heard not on merit as the appeal books were contaminated.

5.    It was also not heard on its merits as the judge said he looked at my original appeal 14 Dec 14 which said more to come as I hadn’t received all materials from magistrates court to base appeal on.

The 3 week lawyer put in amended deficient appeal issues July 17, which I told them were deficient. So they shouldn’t have been taken into account re merit of appeal.

6.    My privilege was broken by lawyers before subpoenaed people gave evidence.

My privilege was broken by subpoenaed documents being entered without judge checking them as he said he would and instead blanket admitting documents produced outside the subpoena parameter by over 2 years.

Then court took the subpoenaed documents and use them to supplement court appeal books.

7.    I was not given full access to subpoenaed documents after production on 19 oct 2015 until 23 May 16. Thus my appeal was late.

At hearing 19/20 oct 15 I was given 2 x 10 minute looks at appeal books, I told judge they were outside subpoena and broke my privilege and should be redacted.

Then Mr Browne snatched a folder out of my hands and said that’s for me.

The judge said I could look at subpoena materials after and before court the next day.

Court said they were too busy to supervise.

Court took no notice of my telling them I couldn’t do more than ½ half day hearing lots as the air conditioning affected my ability to concentrate.

8.    The court let 3 lawyers and 2 barristers work against me (unrepresented) before giving of subpoenaed evidence in court. 1. Going through what questions were to be asked first. 2 actually at bar table physically going through subpoenaed document I hadn’t had time to see and providing Mr Browne with things to ask me questions on and hence get admitted through me and then ask subpoenaed witness on.

Hence I hadn’t seen subpoenaed documents to give evidence on or ask subpoenaed witnesses questions on. I did not see them in full an there was over 4 arch file folders of materials.

9.    I was denied procedural fairness and this cause a miscarriage of justice.

10.    At one stage I was given 48hours notice to put in submissions and I put in draft submissions, as I had a health appointment for tests.

The draft submissions were used to get Mr brownes’ application that my appeal be adjourned until I could pay 15,000.00 into court.

Later.

I was also not allowed to admit documents in evidence at hearing . And told to put them aside.

I was not allowed to give any evidence bar affidavit I had filed.

11.    At costs hearing the Judge didn’t read my submissions before giving judgement. Then Mr Browne wrote up the order himself without being at court on 4 Dec 15.

12.    I can prove that Mr Browne put in false claim to magistrates court and lied to them and didn’t keep notes of contract and lied to LPB.

As in court rules taxing officer didn’t take into account rules 60, 61, 68, 69.

I asked Mr McManus to take into account monies gained by fraud and he said he couldn’t do so yet I found legislation that sys he should have done so. The taxation was to go for one day it went for 6. Now Mr Browne on 11 July 17 said in court he had not got the evidence to support the taxation as he no longer had papers.

13.    A practitioner should be rewarded for lying and gaining money by fraud. There is law on this plus the court of equity in the court of justice say so too.

14.    Mr Browne is putting in all his effort to break me and take my house and he knows his applications and evidence were based on lies to court. And that I was telling the truth to court and LPB and was not believed, they gave preference to a lawyer telling the truth or a lay person.

To hold practicing certificate a lawyer should be expected to be honest and deal honestly with clients. Not lie and set up a former client to fail so they can gain monies to punish the former client.

15.    LPB said when I went back with audio of contract call 30 July 12. That no one had ever come back with 100% proof that what they were saying was true. Their rules meant they could only hear it once. So I had to get laws changed.

But put it in again and see what the board say. They said the same they could only hear it once. Now I am told I have to get law changed so they can hear it a third time.

I asked LPB to help with changing law as they say 100% proof of what saying is the truth but they said no. I ask Lawyer society to help get law changed as they know one of their members has lied to gain money and vindictively and maliciously try to ruin me because I put him into LPB, and they said no.

I asked to see attorney general and she said no.

16.    I believe Mr Browne has bad mouthed me to most lawyers in Tas so no one will represent me. I am trying to find lawyer who will sue both him and Leonard Fernandez for breach of contract and legal professional negligence.

17.    I can prove both via audio conversations.

18.    So money they are claiming is gained by fraud to magistrates court and LPB and him defending my appeal, in full knowledge of the truth of the fixed price contract for limited services (which he mucked up by not getting letter of request to Dr in time and lying about it and putting in documents I had not seen before to court and saying I got them, then I got criticized for not reading letters he presented to me in court that were made up and I had not seen before.

19.    Also minor civil claim was not heard as such Magistrate made it adversarial and it was him who told Browne to make application for special costs on first day, showing his bias.

Magistrate also confirmed I wasn’t allowed a lawyer or claim costs of consulting a lawyer.

Yet when Mr Browne asked for costs and compensation he was given them as he said I was frivolous and vexatious in defending the claim and putting a counter claim.

20.    Now I can prove via audio Mr Browne (who I sacked for lying to me re letter to Dr not getting there being his fault) knowingly against a former client committed fraud and has carried it on for over 5 years and permitted me to suffer stress and hardship and loss of money because he wanted revenge.

21.    I court on 11 July 17 Mr Browne when asked by Mr Holt AJ. If he had made any attempt to recover the money said no he was going to bankrupt me and take my house.

It was before Mr Holt AJ in 2015 that the court books were gotten out as I was asked to present something to Mr Browne from my appeal books, as I hadn't brought them, the ones from court custody had to be used.

21.    So Mr Holt AJ. got Mr Browne to read the relevant proof of my appeal. It was after this time going through court file that I remembered that I noticed the appeal books were not as I filed them and had a whole file missing and things added and some gone.

22.    This is when I asked court why and was told one book had disintegrated.

And Pearce J. had said to re make the appeal books. Before any hearing so any merit was based on corrupted books that I had originally certified in Mar or April 2015.

23.    I ask that Mr Browne ANORS application be dismissed as an abuse of process based on fraud and lies to court and LPB.

(Errors in original.)

34    On 24 October 2017, Ms Burnett wrote to Holt AsJ’s associate requesting a record of proceedings for the hearing on 6 September. She said that she needed it for her “bankruptcy affidavit”.

35    On 3 November 2017, Ms Burnett filed a further affidavit opposing the creditor’s petition, which was 527 pages long (including annexures).

36    On 4 November 2017, Ms Burnett sent a letter to the registry of the Federal Circuit Court, the body of which read as follows:

Re papers I filed on 3 Nov 17

I put some writing in the wrong place.

On page 1 of Attachment ‘C’. I have written some of my submissions to court that go with the submissions or applications on the court form.

I also wish to advise that I will be asking for an adjournment on 20 Nov 17 so I have more time to get documents in order and try to find a lawyer.

37    The creditor’s petition was heard by Registrar Browning in the Federal Circuit Court on 20 November 2017. At the hearing, Mr Browne appeared for the creditors and Ms Burnett appeared for herself. Ms Burnett applied for an adjournment, and sought to tender evidence in support of that application. Evidently no adjournment was granted, because the Registrar proceeded to hear the petition. Mr Browne made submissions. Ms Burnett read her affidavits in response (to which there were some objections). The hearing ended with the conclusion of Mr Browne’s reply at 5:05 pm.

38    On 1 December 2017, Registrar Browning made the sequestration order. Ms Burnett, who was present in court, rose immediately and applied for a stay. That application was refused.

39    On 27 February 2018, Ms Burnett filed a notice of her application to review the Registrar’s decision to make the sequestration order. The notice was dated 15 December 2017 and read as follows, omitting formal parts:

I, Gail Burnett, applicant, give notice that Gail Burnett will be applying for review of the decision by Registrar Browning on 1 Dec 17 to make a sequestration order against the estate of Gail Burnett.

Given court hasn’t yet provided me with orders or reason for orders as requested 1 dec 17 this is hard. I was told I didn’t get a copy on the day and still haven’t got a copy.

 1.    As in final orders form B3a

 2.    Any Orders void including bankruptcy and costs

3.    Trustee paul cook removed

4.    Costs and compensation for me as I don’t owe Browne ANORS any money

40    On 29 March 2018, Ms Burnett sent a letter to the registry of the Federal Circuit Court requesting that her proceeding be transferred to this court. The letter stated:

URGENT REMOVAL TO FEDERAL COURT

I have been given a hearing date of 10 August 2018 for my application 21 Dec 18 for a stay of bankruptcy and costs and review/dismissal of bankruptcy and application for compensation as my legal rights have been ignored.

The court says it lost this application for 2 months Then gave date of 19 march 18 for directions.

At directions hearing before Justice McGuire it was forgotten to hear the stay of bankruptcy.

(At a meeting with Trustee he told me I wouldn’t be getting 10 Aug 18 hearing but it would be left until Dec 18 if I didn’t provide him with income details.)

My bank account has been frozen since 21 Dec 18, my urgent application the same day has not been heard.

It appears Trustee has used the time delay of court to make 139ZQ. notice demand for 356,000 or my house.

Trustee Paul Cook took over my application 19 mar 18 and made it about me giving him income So my URGENT stay/review was not heard on 19 March 2018

Considering the above application further erodes my natural rights and will leave me homeless I now again request with renewed urgency a hearing for stay and review of bankruptcy.

Paul Cook wrote me and said as I had no stay of bankruptcy he had no choice but to continue to pursue me.

I don’t consider hearing on 10 august to be URGENT hearing.

I applied on 10 April 18 for Urgent application to transfer the matters to Federal court

This application has also been ignored as it is now 29 may 2018 and no response from court, except to issue a date for original interim application 21 Dec 18 as above.

This is a matter of great public importance as it is based on a lawyer’s breach of contract and his misrepresentation to court and LPB about said contract.

Public need to have confidence in lawyers and court systems. Public need to have faith that lawyers will act honestly and openly with them re contract issues. Mr Browne has not yet been questioned on the oral fixed price contract and courts have so far covered for him, with Justice Maguire being the latest one when he said he wouldn’t direct Mr Browne file an affidavit so I could question him on the oral fixed price contract at court hearing, instead said it could be decided at any hearing. It is too late to decide that at a hearing.

I also note it is In Public interest that a judge court of competent jurisdiction hear the matter as it is inappropriate for judges / Registrars to be asking Mr Browne for advice in court (or at any time re court rules).

It is in public interest that the court of equity be invoked within the court of justice and the lawyers are not rewarded with money gained by misrepresentation to courts and their governing legal body.

A superior Federal court needs to hear this, a Judge not a Registrar should have heard my opposition. to bankruptcy based on I don’t owe him money, he owes me money and he gained money by fraud collusion and miscarriage of justice.

Instead of Registrar letting Mr Browne ANORS write their own order (including giving themselves costs) and the same Registrar taxing the non applied for costs. And excluding me from taxation by charging me 2,000 admission to taxation of the said costs.

This is not impartiality but open abuse of process and procedure. As costs were not applied for and Registrar signed off on Browne ANORS own order after a 7 hour hearing (against medical advice). Which costs abt 10,000. For which Registrar on 1 Dec 17 didn’t give reasons nor would she give me a copy of the bankruptcy order or the reason or stay the bankruptcy order as she said ‘why would she stay the order she had just made’ excepting she didn’t just make the order Browne had made it on 17 Nov 18. I can only assume this is why I wasn’t given a copy of the order, but had to wait until 21 Dec 17 to get a copy of the bankruptcy order after I had been arrested for trespass at the bank when they wouldn’t let me get my money out or give me a written copy of why I wasn’t allowed my money.

Please see attached medical request for abbreviated hearing times.

I await an urgent reply

(Errors in original.)

41    On 6 August 2018, Ms Burnett wrote to the creditors informing them that she required Mr Browne to be present for cross-examination at the review of the creditor’s petition. The same day, she also wrote an email to the trustee attaching a writ and seeking the trustee’s approval to sue the creditors for damages. That email, which it would seem did not receive an affirmative response, read as follows, omitting formal parts:

I have recently filed in the supreme court to recover monies Browne ANORS have gained from me in Magistrates and supreme court and bankruptcy if any.

Please see attached writ for breach of contract (a copy of which I gave [the trustee] at meeting with Ella Haddad). Mr Browne does not yet have a copy of this.

The supreme court have accepted this filing but say I need your permission to try to recover the loss of money/reputation/health Browne ANOR have caused by breaching their contract with me and defending my appeal in SC, when they had proof of the 1,000 fixed price contract served on them on 23 March 2015. (new evidence)

I request you provide this permission to me in writing so as not to prejudice or harm my claim for money back from them.

Withholding permission would mean you are denying me the ability to recover monies and or compensation for 6 years of hell, caused by misinformation and misrepresentation.

I await your urgent prompt reply as I don’t want to be out of time.

(Errors in original.)

42    On 8 August 2018, Ms Burnett sent an email to the registry of this court seeking, among other things, to have it obtain certain documents from the Supreme Court of Tasmania. Later that month, she also sent emails to the Australian Financial Security Authority, in which she asked for confirmation that a notice pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) was not “being proceeded with”.

43    On 22 November 2018, Ms Burnett again emailed the registry of this court. She asked whether her appeal against Judge Riethmuller’s decision concerning the sequestration order had been allocated a listing date and asked “[a]m I meant to do anything else and if so what form number and where can I find information on process”. She was told that there was “nothing [she was] required to do at this point in time … other than serve the documents on the respondents” if she had not done so already.

44    On 5 December 2018, Ms Burnett emailed the Australian Financial Security Authority seeking, among other things, that it “rescind and remove the bankruptcy” on the basis that she was “solvent on 23 Aug 17”.

45    Some months later, on 24 July 2019, I heard an interlocutory application by the creditors to dismiss Ms Burnett’s appeal from Judge Riethmuller’s decision. Ms Burnett appeared for herself at the hearing and made submissions opposing the application. The application was granted and the appeal was dismissed on 8 August 2019. See Burnett v Browne [2019] FCA 1233.

46    On 9 September 2019, Ms Burnett appeared before Kerr J and made submissions in support of an application for a stay of the 8 August 2019 orders. Kerr J dismissed that application on 25 September 2019. See Burnett v Browne (No 2) [2019] FCA 1597. Later that month, Ms Burnett also prepared an application for special leave to appeal against the 8 August orders, but it seems that application was never filed.

The evidence of Dr Reid

47    In support of the present application, Ms Burnett sought to rely on an affidavit sworn on 10 May 2021 by Dr Philip Reid, a psychiatrist, which annexed his psychiatric assessment of Ms Burnett in the form of a report dated the same day. In the report, Dr Reid answered a series of questions put to him by Mr Williams, the solicitor for Ms Burnett.

48    Omitting formal parts, Dr Reid’s evidence was as follows:

Q1.    You have previously diagnosed Ms Burnett as being schizophrenic. Do you remain of this view?

I previously interviewed Ms Burnett in August 2020 and again in March 2021 and provided a formulation of schizophrenia. I remain of this view.

Q2.    Given the previously supplied materials in July 2020, February 2021 and with this letter, what matters do you consider are relevant to diagnosing symptoms of the condition[?]

A diagnosis of schizophrenia has come through mental state findings on examination, history given by Ms Burnett and the collateral history given by her son and daughter that you have documented.

Q3.    For example, what things have supported your diagnosis? What can you point to and how many factors alone can support such a diagnosis[?] For example, might it be one or more factors separately or together?

The diagnosis has primarily come through express beliefs that I consider delusional and her disorganised speech. I considered that she suffers formal thought disorder in the form of illogicality and derailment. I would suspect you would have witnessed this form of communication, where she frequently returns to the concepts of fraud and conspiracy.

History from her son and daughter is highly relevant, their statements about her paranoid beliefs assist with the diagnosis of schizophrenia. The document by Chris Isherwood from the 12 February 2021, states that ‘she thought Paul Cook was sitting over the road on numerous occasions, she thinks that he has tapped her phones and listening to what she is saying and she thinks that he is in her computer’. He stated that he considered that his mother had had these thoughts for many years, he agreed that she had thoughts about him in her computer around 2015 and that her condition was getting worse with time and not better.

Likewise her daughter, Fiona Burnett documented at interview on the 23rd March 2021, very worrying concerns. This includes ‘she mentioned many times that the trustee was bugging her phone and computer and even went to the length of using my VPN [virtual private network] thinking that it would stop him being able to access her computer, email and files. She changes her number frequently which to my understanding is fuelled by this paranoia. She often comes up with seemingly bizarre things similar to what I have mentioned which really would not happen outside of a movie setting’.

With regard to home care she reported ‘it is generally clean, but there are just stacks of paper everywhere, folders, there are suitcases full of papers. Spare rooms are taken up by papers and, yeah, but otherwise it is neat and clean. She is always very tidy’.

Both mental state signs and history over a period of time confirms a diagnosis of schizophrenia.

Using a DSM-V [Diagnostic and Statistical Manual of Mental Disorders, 5th ed] criteria, Ms Burnett satisfies the criteria A to F.

Criteria A is met as I believe she has persecutory delusions and disorganised speech.

Criteria B is met as there have been significant impact on her level of interpersonal functioning. For example, communication[s] with her children are strained and her daughter needs to keep their interactions brief to avoid conversations about the Court matter. I note that previously Ms Burnett had worked for the public service and now she finds herself living in a home where Court papers fill spare rooms, some placed in suitcases. This is decline in occupational functioning.

With regard to Criteria C, I do not think that her mental state had changed from August 2020 to March 2021. Her daughter considers there has been a decline of her mother’s mental health since living at the brickworks and her son documents persecutory delusions in 2015. She therefore meets the criteria for continuous signs of disturbance.

With regard to Criteria D, there is no history or mental state examination findings to suggest a mood disorder to explain her condition.

Likewise, Criteria E is not relevant as there is no evidence of drug abuse.

Criteria F is not relevant as Ms Burnett does not have a history of Autism Spectrum Disorder.

Q4.    The DSM-5 refers to the ‘course specifiers of schizophrenia[’]. It describes various levels of the condition with the ultimate expression being:

•    Continuous: Symptoms fulfilling the diagnostic symptoms criteria of the disorder are remaining for the majority of the illness course, with subthreshold symptom periods being very brief relative to the overall course.

Yes the DSM-V does offer specifiers for the course of the illness. These are descriptive in the longitudinal outcome of her condition after a duration of twelve months.

Q5.    This, continuous schizophrenia, appears to refer to a permanent state of being. Is this correct?

Schizophrenia with the specifier of continuous, simply means that the patient suffers symptoms sufficient for the diagnosis to remain prominent without a break.

Q6.    Do you consider that Ms Burnett falls into the category of Continuous Schizophrenia?

Yes.

Q7.    If yes, what symptoms or factors do you relay on to make this diagnosis?

The unchanged mental state between my two interviews would be consistent with schizophrenia with continuous on-going symptoms. More importantly, collateral history from her children suggest on­going symptoms that have worsened with time. Ms Burnett has not sought or received any psychiatric treatment that would have ameliorated her condition.

Q8.    If not, what course specifier for her condition do you identify? Why?

Not applicable.

Q9.    Assuming that you have reached a diagnosis of continuous schizophrenia, or what you do see as her course specifier, what would the impact of this be on Ms Burnett’s ability to understand that in her best interests as a party to litigation that she requires legal advice in respect of the relevant legal proceeding at any point in time?

My formulation is Paranoid Schizophrenia with a specifier of continuous. Ms Burnett has been unwell for many years without treatment. I suspect the time of the on-set of the illness was when she lived at the brickworks.

Her illness has played out through the Courts, with paranoid beliefs, thought disorder, illogicality and no resolution of the legal proceedings.

Ms Burnett’s serious mental disorder has impacted her ability to understand that in her best interests as a party to litigation that she requires legal advice. Ms Burnett’s understanding of procedures would have been highly influenced by her delusional beliefs about her health, the legal process and practitioners such as Mr Brown and Mr Cook. She has fixed views that are not amenable to reason. Her beliefs held with emotional conviction would undermine her understanding of procedures.

Q10.    Assuming that you have reached a diagnosis of continuous schizophrenia, or what you do see as her course specifier, what would the impact of this be on Ms Burnett’s ability to consider and act on legal advice actually given to her and thus take steps in a relevant legal proceeding along the lines of legal advice received, such as to pay the debt and not oppos[e] the application?

As part of Ms Burnett’s schizophrenia, I found her to be thought disordered and disorganised. She holds fixed false beliefs that are not amenable to reason. She has a paranoid view point which is rejecting of contrary advice. Her reasoning is overshadowed by paranoid beliefs such as being affected by the brickworks, being defrauded by Mr Brown and spied on by Mr Cook. With such strong convictions, she does not have the capacity to process other advice and concede to the system and individuals she disagrees with.

Q11.    As a person diagnosed with Schizophrenia, how likely or unlikely would Ms Burnett be able to modify her dominant belief(s) to the point where she would accept legal advice such as to pay the debt?

Patients who suffer schizophrenia experience delusions. Delusions are fixed, false beliefs and are not amenable to reason. Patients who suffer schizophrenia therefore are unable to modify their beliefs.

Ms Burnett may be able to take advice about simple tasks, but when asked to pay a debt that relates to delusions about her health and delusions involving legal practitioners, she quickly becomes paranoid and illogical.

Q12.    Another question is, given the diagnosis that you have reached, how do you describe the ability of Ms Burnett to make decisions and give instructions to lawyers based upon, or otherwise give effect to, such advice as might be received that do not meet her views about her case?

Ms Burnett’s illness of schizophrenia impairs her ability to take on advice that is contrary to her own. She is restricted in her ability to process new information. It is common for patients who suffer schizophrenia to have limited or no insight. I understand she rejects my formulation and is adamant not to receive treatment. She therefore does not have any understanding how her beliefs have impacted her decision making.

49    Dr Reid was cross-examined by counsel for the creditors, Mr A Walker, who sought to home in on two propositions: first, that Dr Reid had not been told about, and was thus ignorant of, many of the steps taken by Ms Burnett in the myriad legal proceedings in which she has been a party (which Dr Reid did not dispute); and, secondly, that Dr Reid could not express a reliable opinion about Ms Burnett’s condition or state of mind as at 5 September 2017, when she was served with creditor’s petition.

50    As to the second proposition, Dr Reid was cross-examined as follows:

Counsel:    Now, Doctor, I will ask you accept that – for the purposes of my questioning, you accept that the actions that have been undertaken that we’ve just gone through are precisely what a person who is responding to a creditor’s petition is required to do. I want you to accept that as a fact, please. I suggest, Doctor, that with this information, of which you were not aware, it is a fair proposition to put that Gail Burnett understood the nature of the proceedings she was involved with. Do you agree?

Witness:    I would have to be cautious on that point because there’s new information. So I’ve seen her more recently and been very concerned about her mental health … diagnosing a major psychotic illness.

Counsel:    … but the court is looking at this very point in time that I’ve taken you to. So again – and I accept what you say about her condition being concerning for you at the moment, but going back to this point in time, she clearly understood, I suggest, the nature of the proceeding against her?

Witness:    Again, I think my concern is she has got a major condition. I think it has been present for many years and likely to be present in that time … So unless I had seen her at that time, it’s hard to comment whether, you know, she – responding appropriately and how she formulated her – her responses.

Counsel:    But again, accepting that what she has done is exactly what a person who needs to oppose a creditor’s petition is required to do, I put it to you she must have understood the nature of the proceeding because she wouldn’t know what to do otherwise?

Witness:    I think my concern about her condition is that it has been overshadowed by the process and the personality. So when I’ve seen her recently and the history that I’ve been given is that her delusions involve Mr Brown and Mr Cook, the court, etcetera, and that part of her responses, no doubt, if they were occurring back then, would have been influenced negatively by her mental state. So whatever was put forward, she would be rejecting.

Counsel:    And I suggest to you given what she actually did, she understood the possible consequences of the bankruptcy?

Witness:    Again, I think – well, I would be reluctant to agree with that.

The relief sought

51    The relief sought by Ms Burnett was described in various ways.

52    In her amended application, Ms Burnett sought an order “that the sequestration order that issued following the decision of Judge [Riethmuller] in [2018] FCCA 2866 of the 4th October 2018 be set aside or annulled under section 153B of the Bankruptcy Act 1966 (Cth)” (the Act) (see [1] above).

53    In written submissions, counsel for Ms Burnett said that the application was “of the kind contemplated in s 153B” of the Act. At other points, however, he said that this was “not an application for annulment”, but rather “an application to set aside a sequestration order on the basis that the debtor was a person under a disability and should have a litigation guardian appointed”.

54    In closing address, counsel for Ms Burnett clarified that the “primary course” for which his client contended was an order setting aside the sequestration order, and an annulment under s 153B of the Act was sought as an alternative.

The relevant provisions

55    Section 153B(1) of the Act is headed “Annulment by Court” and relevantly provides: “If the Court is satisfied that a sequestration order ought not to have been made … the Court may make an order annulling the bankruptcy”.

56    Section 154 of the Act is headed “Effect of annulment”, and relevantly provides:

(1)    If the bankruptcy of a person (in this section called the former bankrupt) is annulled under this Division:

(a)    all sales and dispositions of property and payments duly made, and all acts done, by the trustee or any person acting under the authority of the trustee or the Court before the annulment are taken to have been validly made or done; and

(b)    the trustee may apply the property of the former bankrupt still vested in the trustee in payment of the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee; and

(c)    subject to subsections (3), (6) and (7), the remainder (if any) of the property of the former bankrupt still vested in the trustee reverts to the bankrupt.

(2)    If the property of the former bankrupt referred to in paragraph (1)(b) is insufficient to meet the costs, charges and expenses referred to in that paragraph, the amount of the deficiency is a debt due by the former bankrupt to the trustee and is recoverable by the trustee by action against the former bankrupt in a court of competent jurisdiction.

(3)    If an application is made to the Court by a person claiming an interest in property referred to in paragraph (1)(c), the Court, after hearing such persons as it thinks fit, may make an order, either unconditionally or on such conditions as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or to a trustee for that person.

(4)    Subject to subsection (5), if an order vesting property in a person is made under subsection (3), the property vests immediately in the person without any conveyance, transfer or assignment.

(5)    If:

(a)    the property to which such an order relates is property the transfer of which is required by a law of the Commonwealth, of a State or of a Territory to be registered; and

(b)    that law enables the registration of such an order;

the property, even though it vests in equity in the person named in the order, does not vest in that person at law until the requirements of that law have been complied with.

(6)    The Court may make an order directing the trustee not to pay or transfer the property, or a specified part of the property, referred to in paragraph (1)(c) to the former bankrupt if:

(a)    an application is made for an order under this subsection by a person mentioned in subsection (6A); and

(b)    the Court is satisfied that:

(i)    proceedings are pending under a proceeds of crime law; and

(ii)    property of the former bankrupt may:

(A)    become subject to a forfeiture order or interstate forfeiture order made in the proceedings; or

(B)    be required to satisfy a pecuniary penalty order or interstate pecuniary penalty order made in the proceedings.

(6A)    For the purposes of paragraph (6)(a), the application may be made by:

(a)    in the case of pending proceedings in relation to a forfeiture order or a pecuniary penalty order under the Proceeds of Crime Act 2002 – the Commonwealth proceeds of crime authority that is, or that is proposed to be, the responsible authority for the application for the order under that Act; or

(b)    in the case of pending proceedings under a corresponding law – a person who is entitled to apply for an interstate confiscation order under the corresponding law.

(7)    The Court, on application made to it, may vary or revoke an order made under subsection (6).

57    The relevant basis for annulling the bankruptcy under those provisions, or setting the sequestration order aside, was said to be non-compliance by the creditors with certain provisions of the Federal Court Rules 2011 (Cth) (the FCR) and the Federal Court (Bankruptcy) Rules 2016 (Cth) (the FCBR).

58    The effect of those provisions is as follows:

(a)    Rule 4.05 of the FCBR provides that the applicant creditor must serve on the respondent debtor, among other things, the creditor’s petition.

(b)    The creditor’s petition must be served personally. See r 8.06 of the FCR and the definition of “originating application” in Sch 1. Rule 10.01 of the FCR provides that a document that is to be served personally on an individual must be served by the leaving the document with the individual.

(c)    Rule 10.09 is headed “Service on person under a legal incapacity” and provides for a specific regime for the personal service of documents on persons who are, as the rule regrettably puts it, “mentally disabled person[s]”, as follows:

(1)     If a person under a legal incapacity has a litigation representative, a document that must be served personally on the person must be served on the litigation representative.

(2)    …

(3)    If the person under a legal incapacity is a mentally disabled person and does not have a litigation representative, the document must be served:

(a)    on the mentally disabled person’s guardian; or

(b)    if the mentally disabled person has no guardian:

(i)    on a person with whom the mentally disabled person lives; or

(ii)    on a person who is responsible for the care of the mentally disabled person.

(4)    If the person under a legal incapacity cannot be served in any of the ways mentioned in subrule (2) or (3), a party may apply to the Court for an order that the document be served in some other way or on some other person.

(5)    The application may be made before or after the document has been given to some other person.

(d)    Schedule 1 to the FCR defines “mentally disabled person” to mean “a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding”.

59    However, although the parties’ submissions were directed to those provisions, the creditor’s petition which brought about Ms Burnett’s bankruptcy was not filed in this court – it was filed in the Federal Circuit Court. That court has its own rules, to which no reference was made. Relevantly, those rules are the Federal Circuit Court Rules 2001 (Cth) (the FCCR) and the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (the FCCBR).

60    Rule 1.05 of the FCCR relevantly provides: “It is intended that the practice and procedure of the [Federal Circuit Court] be governed principally by [the FCCR] … However if in a particular case [the FCCR] are insufficient or inappropriate, the Court may apply … the [FCR] … in whole or in part and modified or dispensed with, as necessary”.

61    It is not ordinarily necessary for the Federal Circuit Court to apply r 10.09 of the FCR (set out at [58(c)] above), because the FCCR already contain provisions dealing with service upon a person who is under a mental incapacity. See, eg, Owners of Strata Plan 58041 v Temelkovski [2014] FCCA 2962 at [58]-[64] (Judge Manousaridis).

62    The relevant provisions of the FCCR in that regard are as follows:

(a)    Rule 6.06 provides: “Service by hand is required for an application starting a proceeding”.

(b)    Subrule 11.15(1) then provides:

A document required to be served by hand on a person who needs a litigation guardian must be served:

(a)    on the person’s litigation guardian for the proceeding; or

(b)    if there is no litigation guardian – on a person who is entitled under subrule 11.12(1) to be the person’s litigation guardian for the proceeding; or

(c)    if there is no-one under paragraph (a) or (b) – on an adult who has the care of the person.

(c)    Subrule 11.08(1) provides that “a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”.

63    Rule 10.09 of the FCR deals with service upon “a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding”, whereas r 11.15 of the FCCR deals with service upon a person who “does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”. Whether there is any material difference between the two provisions is doubtful, but in any event, it is the latter that applies here.

Consideration

64    In Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 at 411 [53] (Cross), Edmonds J explained that “the provisions of O 43, r 13 [the predecessor to r 10.09 of the FCR] are triggered if the person to be served is a ‘person under disability’. Where it is said that the person is a ‘mentally disabled person’ rather than an infant or minor the relevant question is: Is the person concerned a person who, owing to mental illness, is incapable of managing his or her affairs in respect of the proceedings? The words ‘in respect of the proceedings’ are important because they focus upon the person’s ability to bring or defend proceedings rather than whether the person is able to manage his or her affairs generally or in relation to some other transaction”. The three references to “the proceeding” in r 11.08(1) of the FCCR have a similar effect.

65    As Edmonds J explained, that approach is consonant with the common law approach to capacity, citing Gibbons v Wright (1954) 91 CLR 423 at 437 (Dixon CJ, Kitto and Taylor JJ) (“The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation”). See Cross at 411 [53].

66    Edmonds J also referred to Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at 187-8 [74] (Chadwick LJ), citing Re C (adult: refusal of medical treatment) [1994] 1 All ER 819, in support of the proposition that “the exigencies of bringing or defending the proceedings are the focal point of the test of capacity for the purposes of the Rules”. See Cross at 412 [55].

67    His Honour then posed the next question that arises: namely, “what are the considerations to which the Court should have regard in applying that test”? See Cross at 412 [55].

68    After referring to Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at 188 [75] (Chadwick LJ) and related cases, Edmonds J said at 413 [61]:

In light of what is said in these authorities and having regard to the use of the words ‘in respect of the proceedings’ in the [Federal Court Rules 1979 (Cth)], the following are relevant to determining capacity in the present case:

(a)    whether Ms Cross had the ability to understand that she required advice in respect of the Creditor’s petition which had been left with her;

(b)    whether she had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, that she could arrange such an appointment of her own accord;

(c)    whether she had the ability to instruct her advisor with sufficient clarity to enable him or her to understand the situation and to advise her appropriately; and

(d)    whether she had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as she might receive.

69    I have emphasised the words “the following [factors] are relevant to determining capacity in the present case” because they make tolerably clear that his Honour was not intending the factors to be a “checklist” intended to operate as a substitute for the application of the test under the rules, viz, in this case, whether Ms Burnett was, at the time she was given (to use a neutral term) the creditor’s petition on 5 September 2017, a person who did not understand the nature and possible consequences of the proceeding, or was not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

70    Cross was a most unfortunate case. At the time Ms Cross was personally served with the creditor’s petition she was, to the knowledge of the creditor’s solicitor, an involuntary patient in a psychiatric ward of a hospital. She was not present, nor was she represented, when the creditor’s petition came on for hearing – the Registrar duly made a sequestration order, without being told of Ms Cross’s circumstances or the circumstances in which she had been purportedly served. See Cross at 425 [111]-[112] (Edmonds J).

71    The mental capacity required by the law in respect of any proceeding is relative to the particular proceeding which is being pursued or defended. As Debelle J observed in Dalle-Molle v Manos (2004) 88 SASR 193 at 199 [23]:

Just as the general rule is that the understanding must be issue-specific to the particular transaction or documents, so in the case of litigation, the understanding must, I think, be in relation to the facts and the subject matter of the particular case. Legal proceedings have a spectrum of complexity. They can extend from the most simple issues through a range of complexity to quite involved and complex litigation. As a general rule, an action to recover a debt or to recover damages consequent upon a motor vehicle accident are examples of more simple forms of litigation, although even proceedings of that kind might involve a degree of complexity. However, an action such as this action where there are two defendants, where the issues against each defendant differ, and where there are real issues as to the nature of the duty of care, the standard of care, whether there was a breach of the duty of care and questions as to causation is an example of more complex litigation. It may be necessary to compromise against one defendant but not the other which only adds complexity to the decision whether or not to compromise the action. Thus, the question whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation.

72    It follows that a person can have the requisite capacity for one proceeding and lack it for another. See, eg, Slaveski v Victoria (2009) 25 VR 160 at 183 [28] (Kyrou J). To borrow words used by Chadwick LJ in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at 188 [74], “[t]he test is issue specific; and, when applied to different issues, it may yield different answers”.

73    It is important, in the circumstances of the case before me, also to bear in mind that “[i]t is not the task of the courts to prevent those who have the mental capacity to make rational decisions from making decisions which others may regard as rash or irresponsible”. See Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at 189 [78] (Chadwick LJ).

74    Counsel for Ms Burnett accepted that the burden of proving that Ms Burnett was under a relevant incapacity at the time she was given the creditor’s petition rested with his client, because there is a presumption of sanity which applies unless and until the contrary is proved.

75    He submitted that he had discharged the burden, and that I should find that, at the time she was given the creditor’s petition (5 September 2017), Ms Burnett was under a relevant incapacity in respect of the bankruptcy proceeding that the creditors had commenced against her because:

(1)    She has never accepted the outcome of the initial decision in the Magistrates Court.

(2)    She has commenced and run myriad and hopeless applications in court since then.

(3)    She holds fixed and unshakeable views about the bankruptcy notice and the proceeding, including that they are “false”.

(4)    Her diagnosis of schizophrenia, which is based on delusional beliefs, impairs her ability to take on advice that is contrary to her own.

(5)    Her diagnosis of “Paranoid Schizophrenia with a specifier of continuous” means that “Ms Burnett has been unwell for many years without treatment … [probably since] she lived at the brickworks”.

(6)    “Her illness has played out through the Courts, with paranoid beliefs, thought disorder, illogicality and no resolution of the legal proceedings”.

(7)    She “may be able to take advice about simple tasks, but when asked to pay a debt that relates to delusions about her health and delusions involving legal practitioners, she quickly becomes paranoid and illogical”.

(8)    She “is restricted in her ability to process new information. It is common for patients who suffer schizophrenia to have limited or no insight … she rejects [Dr Reid’s] formulation and is adamant not to receive treatment. She therefore does not have any understanding how her beliefs have impacted her decision making”.

(The quotations relied on are from Dr Reid’s report.)

76    Because Dr Reid had only first met and consulted with Ms Burnett in 2020, it was necessary for Mr Williams also to rely on what is sometimes referred to as the retrospective presumption of continuance for the proposition that later evidence of a person’s psychiatric condition may operate in particular circumstances retrospectively to aid in proving the probability of the existence of that condition at an earlier point in time. See, eg, Cross at 414-16 [66]-[72] (Edmonds J), citing Murphy v Doman (2003) 58 NSWLR 51 at 57 [30], 58 [36]-[37] (Handley JA).

77    In essence, Mr Williams submits that, in light of Dr Reid’s evidence and with the assistance of that presumption, I should find that Ms Burnett suffered from schizophrenia and had the various personality and character traits referred to above at the time she was given the creditor’s petition.

78    There are, in my view, two insuperable difficulties in accepting Mr Williams’ submissions.

79    The first is that Dr Reid agreed in cross-examination that it was “hard [for him] to comment” about whether Ms Burnett understood the nature of the proceeding against her around the time she was given the creditor’s petition. As appears above (at [50]), counsel for the creditors asked Dr Reid: “… the court is looking at this very point in time that I’ve taken you to [the giving of the creditor’s petition] … I accept what you say about her condition being concerning for you at the moment, but going back to this point in time, she clearly understood, I suggest, the nature of the proceeding against her”? Dr Reid replied: “Again, I think my concern is she has got a major condition. I think it has been present for many years and likely to be present in that time … So unless I had seen her at that time, it’s hard to comment …” (emphasis added). That, it seems to me, amounts to a concession by Dr Reid that he could not give reliable evidence about the critical question of Ms Burnett’s condition and symptoms in 2017 – which, on one view, is not surprising in circumstances where Dr Reid had only consulted with Ms Burnett twice, the first occasion being in 2020.

80    The second insuperable difficulty is that, by her actions in the relevant time after she was given the creditor’s petition, Ms Burnett demonstrated in a tolerably clear way that she understood the nature and possible consequences of the bankruptcy proceeding, and was capable of adequately conducting it, or giving adequate instruction for the conduct of it, including as follows:

(1)    On the day after she was given the creditor’s petition, Ms Burnett appeared for herself before Holt AsJ at the continuation of a hearing of an application made against her in the Supreme Court of Tasmania and succeeded in having the application dismissed.

(2)    Three days after she was given the creditor’s petition, Ms Burnett lodged and served a Form B4 (notice of appearance) and a Form B5 (notice stating grounds of opposition) comprising five pages in the bankruptcy proceeding. She also lodged an affidavit of ten pages.

(3)    On 24 October 2017, Ms Burnett contacted the Supreme Court of Tasmania (via email to the chambers of Holt AsJ) asking for a record of proceedings sheet because she needed it “for [her] bankruptcy affidavit”.

(4)    On 3 November 2017, Ms Burnett filed a further affidavit, which she had prepared, in support of her opposition to the creditor’s petition.

(5)    On 4 November 2017, Ms Burnett sent a letter to the registry of the Federal Court as follows:

Re papers I filed on 3 November 2017

I put some writing in the wrong place.

On page 1 of attachment ‘C’ I have written some of my submissions to court that go with the submissions or applications on the court form.

I also wish to advise that I will be asking for an adjournment on 20 Nov 17 so I have more time to get documents in order and try to find a lawyer.

(6)    On 1 December 2017, Ms Burnett appeared at the hearing of the creditor’s petition, and when Registrar Browning made the sequestration order against her, she immediately applied for a stay of that order.

(7)    On 27 February 2018, Ms Burnett filed a Form B12 (notice to creditors of application for review of registrar’s decision).

81    It seems to me that, in the circumstances of this case, the best evidence of whether Ms Burnett understood the nature and possible consequences of the proceeding and was capable of adequately conducting it, or giving adequate instruction for the conduct of it, at the time she was given the creditor’s petition is to look to her conduct in the immediate aftermath of receiving the petition. Whether what Ms Burnett did was prudent is not the relevant question. But the steps she took were the steps that a person served with a creditor’s petition is required under the FCCR and FCCBR to take in order to seek to resist it, including filing a notice of appearance, a statement of grounds of opposition and an affidavit in support. And when the sequestration order was made, Ms Burnett sought (unsuccessfully) a stay of the order, and later made an application for it to be reviewed. All of that, it seems to me, speaks volumes about Ms Burnett’s capacity adequately to understand and conduct the proceeding brought against her. The wisdom of doing so, and her motivations for doing so, are not to the point, for the reasons set out above.

82    For those reasons, in my view, Ms Burnett did not establish (the burden being on her) that she did not understand the nature and possible consequences of the proceeding or was not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding at the time she was given the creditor’s petition.

83    If I am wrong about that, and Ms Burnett was a person who needed a litigation guardian in relation to the proceeding at the time she was given the creditor’s petition, then the creditor’s petition was required to be served on a person who was entitled to be her litigation guardian or in whose care she was. In that event, there would be a breach of the FCCR in the way in which service was purported to be effected. That means that the sequestration order would be voidable. See Cross at 423 [105] (Edmonds J).

84    The issue that would next arise in considering the application under s 153B of the Act is whether, even though the sequestration order ought not to have been made, the court would (on that assumed basis) decline to annul the bankruptcy in the exercise of the discretion under s 153B(1). See Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 at [30] (Heerey, Emmett and Allsop JJ) (“In considering the application under s 153B of the Act, the primary judge had a discretion, even though he was satisfied that the order ought not to have been made, to decline to annul the bankruptcy”). See also Boles v Official Trustee in Bankruptcy [2001] FCA 639; 183 ALR 239 at 243 [16] (Emmett J, Katz and Conti JJ agreeing); Shaw v Yarranova Pty Ltd (2017) 252 FCR 267 at 289 [101] (North, Perry and Charlesworth JJ).

85    The creditors submit that I should exercise the discretion not to annul the bankruptcy because of the way that Ms Burnett has behaved during the years since the sequestration order was made.

86    In that regard, the creditors say that I should have regard to the sorry history of Ms Burnett’s refusal to cooperate with the trustee in the administration of the estate, including:

(a)    despite multiple requests, a continuing failure to lodge a statement of affairs (SOA);

(b)    on multiple occasions, failing to respond to correspondence from the trustee;

(c)    on multiple occasions, failing to meet with the trustee or his representatives;

(d)    failing to return phone calls made by the trustee or his representatives;

(e)    on occasions, hanging up on the trustee’s representatives when they would try and converse with her in order to progress the administration of the bankrupt estate;

(f)    generally refusing to recognise the trustee’s standing as the trustee of her bankrupt estate or the existence of the bankrupt estate at all; and

(g)    failing to cooperate with the Australian Financial Security Authority (AFSA).

87    The litany of events to which these matters relate is set out in the trustee’s affidavit sworn 14 January 2021.

88    The trustee says that as a result of that conduct: the administration of the estate has been delayed; additional time has had to be taken to administer the estate; and, therefore, the costs associated with the administration are significantly more than in an “ordinary” bankruptcy. He also swore that the fact that Ms Burnett has (to this day) failed to lodge an SOA has caused difficulties, because he has not been provided with: personal details and circumstance of the bankruptcy; employment and income details; information in relation to unsecured and secured creditors; details of the assets that the bankrupt owns including bank accounts, motor vehicles and real estate; details of assets to which she has contributed; information in relation to any transfers of her assets; details of businesses and companies in which she has been involved; and details of any relevant trusts.

89    The trustee gave a (non-exhaustive) summary of his interactions with Ms Burnett, as follows:

On 4 December 2017, Adam Johnston, of my office, telephoned the Bankrupt … Mr Johnston confirmed that he was speaking with her and identified himself. The Bankrupt confirmed her identity. The Bankrupt claimed that she had written to the AFSA regarding the matter of her bankruptcy. Mr Johnston pointed out to the Bankrupt that I had consented to act as trustee to which the bankrupt replied that she did not want to deal with me and then hung up on Mr Johnston.

On 4 December 2017, I caused an envelope containing a package of documents to be sent to the Bankrupt at 56 Coleman Street, Moonah in Tasmania (the Coleman Street property) by registered post …

On 4 December 2017 Mr Johnston sent an email to the Bankrupt … confirming the Bankruptcy and my appointment to the estate. Attached to the email was a copy of the certificate of appointment, a copy of the Sequestration Order, a copy of a notice of a bankrupt’s responsibilities and a copy of the initial package of documents including a blank SOA.

In the email referred to … above, Mr Johnston advised the Bankrupt that she was required to attend on me at my office on 7 December 2017. The Bankrupt failed to comply with my request or contact my office to arrange an alternative time to do so.

On 8 December 2017, the envelope containing the initial package of documents issued to the Bankrupt at the Coleman Street property by registered post on 4 December 2017 was returned to my office. The envelope had not been opened and was marked ‘RTS refused’.

On 8 December 2017, I caused an envelope of documents to be sent to the Bankrupt at the Coleman Street property. The envelope was sent by ordinary post and contained a letter addressed to the bankrupt dated 8 December 2017 and further copies of a SOA, Instructions for completing the SOA and notice of bankrupt’s responsibilities.

On 8 December 2017, Mr Johnston telephoned the Bankrupt … He identified the person who answered the call as being the Bankrupt from his call to her on 4 December 2017. The Bankrupt claimed she could not hear Mr Johnston and hung up on him.

On 19 December 2017, the envelope of documents issued to the Bankrupt at the Coleman Street property on 8 December 2017 was returned to my office unopened and marked ‘Return to Sender’.

On 19 December 2017, Mr Johnston and I attended the Coleman Street property. I knocked on the front door and rang the doorbell several times. However, no person came to the door. Mr Johnston slid an envelope containing a letter addressed to the Bankrupt dated 18 December 2017 and a further copy of the initial package of documents.

On 19 December 2017 Mr Johnston sent an email to the Bankrupt … Attached to the email was a copy of the letter referred to … above and a further copy of the initial package of documents. In his email, Mr Johnston invited the Bankrupt to telephone him at my office to discuss a way forward in order to keep the costs of the administration to a minimum.

Mr Johnston made two attempts to telephone the Bankrupt on 20 December 2017 … Each of his calls went to answer phone. The answer phone message did not identify the owner of the phone. A message was left for the Bankrupt to call him back at my office.

On 18 January 2018, I caused a letter to be sent to the Bankrupt at the Coleman Street property. The letter noted that one of the possible outcomes was that the Coleman Street property be sold; that it was my least preferred option and that if it came to that, I would be seeking vacant possession. A copy of the letter was sent to the Bankrupt [by email] on the same day. The envelope containing the abovementioned letter was returned unopened to my office on 1 February 2018 marked ‘Return to Sender’.

On 5 February 2018, I caused a letter to be sent to the Bankrupt at the Coleman Street property. In the letter I noted that investigations had confirmed that the Coleman Street property had been transferred to Christopher Isherwood and Fiona Burnett as trustees for the Dragon Glenn Family trust in April 2016. Further, I requested that the Bankrupt provide me with contact details for the trustees and strongly encouraged the Bankrupt to engage with my office to avoid unnecessary costs being incurred in the bankruptcy administration. A copy of the letter was sent to the Bankrupt by Mr Johnston [by email] on the same day.

In April 2018, I received a telephone call from the Bankrupt’s local MP, Ella Haddad. Ms Haddad told me that the Bankrupt had sought assistance from her. She asked to meet with me to discuss the matter.

On 9 May 2018, I met with Ms Haddad, the Bankrupt and a support person. At the meeting it was raised with me that the Bankrupt had purchased the Coleman Street Property with money that she had received for compensation. Given that the Act provides that compensation money received by a bankrupt does not form a part of the bankrupt estate, this is a relevant point. I asked for evidence from the Bankrupt so that I could consider the claim. I understood from the meeting that the bankrupt would provide me with the evidence.

On 15 May 2018, Ms Haddad sent an email to the Bankrupt and myself regarding actions that she and the Bankrupt would undertake, including providing information to me to support the claim that the Coleman Street property was purchased with compensation monies …

On 31 May 2018, in response to a follow up email I sent on 30 May 2018 for information, I received an email from the Bankrupt … In the email the Bankrupt advised that she was still trying to get the relevant documents.

On 12 June 2018, I received a letter from Miller Sockhill Lawyers that advised they acted for the Bankrupt and that they had been instructed that the whole or substantially the whole of the money paid for the purchase or used in the acquisition, of the Bankrupt’s real property is protected money, and therefore section 116(1) of the Act does not extend to that real property. The Bankrupt’s lawyers further advised that they were taking further instructions in relation to providing evidence of same.

On 4 July 2018, having not heard from Miller Sockhill Lawyers I emailed them and requested advice as to their progress on the matter …

On 4 July 2018, in response to my follow up email of the same day, Miller Sockhill Lawyers advised it had suspended its retainer with the Bankrupt and did not hold any instructions.

On 18 August 2018, I sent an email to the Bankrupt … The email addressed the fact that she had stated during the course of a court hearing, between 10 August 2018 and 4 October 2018, that she had in her possession the sum of $58,000.00 in cash. I advised that … if she maintained that she had $58,000.00 in cash in her possession then she was instructed to deliver it to me forthwith; and … [i]f she asserted that the money was exempt, that is money she had received for compensation, then she would need to provide me with evidence supporting this assertion.

I received no response to this email.

On 13 October 2018 I received an email from the Bankrupt in relation to the matter …

On 16 October 2018, I sent an email to the Bankrupt … Attached to the email was a letter and a further copy of the initial package of documents including a blank SOA. In the letter I noted … that the application relating to the review of the Registrar’s decision to make the Sequestration Order had been dismissed … reiterated my direction that the Bankrupt deliver up $58,000.00 in cash that she had stated on oath and in a subsequent affidavit she possessed … acknowledged receiving an extract from Court documents which disclosed information in relation to final judgments; and … requested further information to support the claim that the Coleman Street property was exempt property …

On 7 November 2018, I became aware that the Bankrupt had filed an appeal in relation to the orders made by [Riethmuller] J is respect of the Registrar’s decision to make the Sequestration Order.

On 8 August 2019, I sent an email to the Bankrupt. In the email I noted that the Court had dismissed her appeal referred to … above and stressed the importance of communication in order to avoid unnecessary costs. I reminded the Bankrupt of her obligation to complete a SOA.

On 16 August 2019, I sent an email to the Bankrupt requesting she complete a SOA and provide me with contact details of trustees of the Dragon Glenn Family trust. She failed to respond.

On 6 September 2019, I caused a letter to be sent to the Bankrupt. In the letter, I requested that the Bankrupt provide contact details of the trustees of the Dragon Glenn Family Trust and return a completed SOA and deliver up the Certificate of Title for the Coleman Street property or advise of its whereabouts. A copy of the letter was sent to the Bankrupt [by email] by Mr Johnston. She failed to respond.

On or about 20 September 2019 I received correspondence from the Bankrupt. Annexed … is a copy of the correspondence. Its content is an illustration [of] the Bankrupt’s general attitude to this matter throughout the period I have been the trustee.

On 27 September 2019, I sent an email to the Bankrupt. In the email I noted that the Court had dismissed her application for a stay of proceedings and urged her to make contact with me in order to reduce the costs that continue to accrue in the administration. I again requested that the Bankrupt provide me with the contact details of the trustees of the Dragon Glenn Family Trust. A blank copy of a SOA form was attached to the email. I received no response.

On 7 October 2019, I caused a letter to be sent to the Bankrupt. In the letter I acknowledged receipt of the Bankrupt’s letter of 20 September 2019 and denied her allegations that I had provided false information to the AFSA and lied to the Tasmanian Lands Title Office. I again requested that the Bankrupt provide contact details of the trustees of the Dragon Glenn Family Trust and return a completed SOA and deliver up the Certificate of Title for the Coleman Street property or advise of its whereabouts. A copy of the letter was sent to the Bankrupt [by email] that day by Mr Johnston. I received no response to this correspondence.

On 4 November 2019, after exhausting my attempts to deal directly with the Bankrupt and the trustees of the Dragon Glenn Family trust, in relation to the transfer of the Coleman Street property, I instructed Butler McIntyre & Butler to act for me in relation to this issue. Thereafter Butler McIntyre & Butler acted for me in relation to the recovery of the Coleman Street Property.

On 12 June 2020, I sent an email to the Bankrupt … In the email I made reference to the Bankrupt being Gail Louise Munnings and a property at 4 Moira Street, Montello in Tasmania. I again reminded the Bankrupt of her obligation to complete a SOA and the fact that her failure to do so had added significant further costs to the administration. A blank copy of a SOA form was attached to the email. I received no response from the Bankrupt.

On 25 June 2020, I sent an email to the Bankrupt … In the email I made reference to the withdrawal of funds from a Bendigo & Adelaide Bank account held by Gail Louise Munnings post-bankruptcy. In addition, I reiterated the Bankrupt’s obligation in relation to a SOA and again offered, with or without a support person, the opportunity to discuss the bankruptcy [and] endeavour to finalise the administration in a cost efficient manner. Again I received no response from the Bankrupt.

With regard to my retention of Butler McIntyre & Butler to act for me in relation to recovery of the Coleman Street property into the bankrupt estate … legal proceedings were issued to have the transaction declared void … the proceedings were vigorously defended until the day of the final hearing … on multiple occasions I offered, via Butler McIntyre & Butler, to meet with the Bankrupt and/or the Respondents and/or their respective legal representatives. All such offers were declined … and … ultimately orders were consented to by the Respondents to that application on the day of the hearing …

90    Mr Cook further deposed that the administration of the bankrupt estate has been difficult and considerable time charges have been incurred, as a result of the following:

Conduct: despite many attempts, the unwillingness of the Bankrupt to engage with me and my office as outlined in the previous section.

Offence Referrals: significant interaction with the personal insolvency regulator in relation to offence referrals (five offence referrals), the issue and service of a section 77CA notice on the Bankrupt and, attendance to AFSA’s requests for information in relation to prosecution.

Antecedent Recovery Action: I have spent considerable time investigating the transfer of the Bankrupt’s interest in the Coleman Street property to the trustees of the Dragon Glenn Family Trust and pursuing an antecedent recovery action under section 120 of the Act. As a result of the inability to engage with the trustees I made application to the Official Receiver Notices Team for a notice and a certificate in accordance to sections 139ZQ and 139ZR of the Act. The Official Receiver was satisfied on the available evidence that the transfer of the Bankrupt’s interest in the Coleman Street property to the trustees of the Dragon Glenn Family Trust was void against me pursuant to section 120 of the Act and issued a notice and a certificate in accordance to sections 139ZQ and 139ZR of the Act. Including in the abovementioned time is the time my office spent liaising with the AFSA in relation to the issue and service of the s139ZQ notice on the trustees. I, along with AFSA, experienced much difficulty in serving documents on the trustees, however, with the assistance of process servers the trustees were eventually located and served with documents.

I subsequently initiated legal proceedings seeking an order pursuant to section 120 of the Act that the transfer of the Coleman Street property was void against me as trustee of the bankrupt estate. Ultimately judgment was consented to on the day of the hearing of the application.

Subject to the current undertakings contained within the order, in the absence of the Bankrupt and the trustees of the Dragon Glenn Family Trust co-operation to bring about an orderly sale of the Coleman Street property, further significant costs may be incurred in administering the bankrupt estate including the forced sale of the Coleman Street Property and the possibility of selling the 4 Moira Street property.

Investigations: investigations into the examinable affairs have been frustrated by the lack of co-operation by the Bankrupt and parties assisting her. In this administration, it has often been the case that as new information come to hand, further investigations would be required to be undertaken. Examples of this was learning of the Bankrupt’s aliases and purchase of the 4 Moira Street property.

Legal proceedings: the requirement of the trustee to participate in and monitor the outcome of legal proceedings has caused significant time charges to be incurred. Annexed … is a table detailing the events relevant to Court proceedings of which I have at least had to have a basic understanding.

Trustee’s remuneration and costs: to 6 January 2021, I have not drawn any remuneration and my unbilled and accrued fees total approximately $136,282.00 (excluding GST and disbursements).

A Remuneration Report that details the work performed to date by professional category and task area is enclosed …

I note that I have charged a discounted rate at Manager 2 Level, for a Senior Manager who has been working on the file since 1 November 2018.

My unpaid out of pocket expenses currently total approximately $7,003.00 (excluding GST).

As at the date of this affidavit, unpaid legal expenses as at the date of this affidavit and which continue to accrue total approximately $70,000.00 (ex GST).

In addition to the above, there is a requirement to pay 7% of all sums received (excluding payments to secured creditors) to the Commonwealth Government pursuant to the Estate Charges Act.

91    None of this was contested.

92    In my view, Ms Burnett’s behaviour, described in detail by the trustee above, is sufficient to invoke the court’s discretion to decline to annul the bankruptcy, were I to have arrived at the point of addressing that question.

93    If I would be wrong about that, the next issue that would arise is whether Ms Burnett should have an order that the sequestration order be set aside.

94    The creditors submitted that, in the event that I were to find that the bankruptcy should come to an end, I should do no more than adopt the “normal” course and make an order pursuant to s 153B(1) of the Act annulling it – not an order setting the sequestration order aside.

95    The distinction matters, of course, because in the case of annulment, the trustee gets the benefit of s 154(1)(b) of the Act, namely, he may apply the property of Ms Burnett still vested in him in payment of the costs, charges and expenses of the administration of the bankruptcy, including his remuneration and expenses. On the other hand, if the sequestration order were set aside, the creditor’s petition dismissed and no order made annulling the bankruptcy, the trustee would have no statutory basis for any remuneration and his action (and the consequences thereof) would be left to the general law. See Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 at 384 [49] (Allsop CJ, Katzmann and Perry JJ). See also Bechara v Bates [2021] FCAFC 34; 388 ALR 414 at 423 [30] (Allsop CJ, Markovic and Colvin JJ).

96    When a choice is to be made between setting aside a sequestration order and annulling the bankruptcy, “the courts have consistently stressed that a balance must be struck between the rights of the applicant, who should never have been made bankrupt in the first place, and the Trustee who has simply done what the Act requires him to do … The rights of the petitioning creditor have never been referred to as a relevant factor, and understandably so”. See Cross at 425-6 [115] (Edmonds J), citing Kyriackou v Shield Mercantile Pty Ltd (No 2) [2004] FCA 1338 at [43] (Weinberg J); Capsalis v Ozdemir [2005] FMCA 1163 at [17] (Connolly FM); Hadjimouratis v Casanova [2005] FMCA 1468 at [13], [16] (Connolly FM); Vaucluse Hospital Pty Ltd v Phillips [2006] FMCA 44 at [70]-[71] (Riethmuller FM).

97    In my view, there is nothing in this case that can sensibly be said in support of the proposition that the appropriate order would be to set aside the sequestration order, were one to get to the point of considering the submission.

Costs

98    Ms Burnett also seeks an order that the creditors pay the trustee’s costs and expenses of the administration of the bankruptcy, or that the trustee be responsible for his own costs and expenses.

99    There is no basis for the making of such an order. No evidence was adduced in support of it. And in closing, the highest that it was put was that the trustee should have realised that Ms Burnett was suffering from some mental infirmity and should have approached the court to seek directions in order to reduce the expense of the administration. I reject that submission. In my view, the trustee is entirely blameless. He has endeavoured as best he can to bring about a sensible resolution of the matter, and to explore the claims that Ms Burnett has made, including by meeting with her local MP in relation to the claim that her home was purchased with exempt monies (see [89] above).

100    The trustee deposed that at no material time did he consider Ms Burnett to be suffering from a mental disability or legal incapacity such that she could not attend to what was required of her to assist him with the administration of her bankrupt estate, and that at all times he administered the bankrupt estate in the ordinary course and pursuant to the Act, the relevant regulations and the practice rules. I accept that evidence.

Disposition

101    For those reasons, the application will be dismissed.

Associate:    

Dated:    28 June 2021