Case: St George Bank Ltd v Helfenbaum [1999] FCA 1337
Outcome: cited
The learned Magistrate identified the appellant's principal contention on the review application as being that he was able to pay his debts as and when they became due, although his Honour recognised that solvency did not of itself entitle the appellant to have the petition dismissed: see St George Bank Ltd v Helfenbaum [1999] FCA 1337. On the issue of solvency, the evidence was then discussed in detail. His Honour was, ultimately, not satisfied that the appellant was able to pay his debts as and when they fell due. Included in the appellant's assets were 212 shares held in Manna Hill, which were found to be held on trust for the Moore Family Trust. It was accepted that the appellant was the trustee of the Moore Family Trust and a beneficiary, so that the shares in Manna Hill were treated as an asset of the appellant. However, his Honour was unable, on the evidence, to assign any value to that shareholding. 14 Nor was his Honour satisfied that other sufficient cause had been shown as to why the sequestration order should not be made. The two principal matters raised by the appellant as showing other sufficient cause for the petition being dismissed were his shareholding in Manna Hill, and the fact that the appellant (by his trustee) might not prosecute the appeal from the decision in the earlier proceedings. As to the latter point, his Honour proceeded on 'the basis that the appeal will ultimately be determined on its merits'. 15 Consequently, the review application was dismissed on 1 July 2005. 16 Those reasons for judgment also addressed the further evidence motion, dismissed on 17 June 2005. The learned Magistrate said that the appellant had been unable to identify any circumstances which had arisen since he reserved judgment on 13 May 2005 which warranted him being given leave to make further submissions (his Honour categorised the further evidence motion as one seeking to make further submissions rather than to adduce further evidence), and in particular submissions criticising the way the hearing of the review application had been conducted. Such criticisms, his Honour said, could be pursued upon any appeal. In reasons for decision given on 17 June 2005, the affidavit of the appellant in support of the further evidence motion was described as 'a reagitation of submissions' and suggestions of 'inadequacies relating to the conduct of the review application'. His Honour said then: '... there are no matters ... that relate to events that occurred since the reservation of my judgment which the justice of the case might require me to hear submissions about.' 17 On 1 July 2004, reasons were given for refusing the disqualification motion. The learned Magistrate pointed out that it was filed without a supporting affidavit. It was given a return date as the same date as the judgment on the review application, but called on only after that judgment. Hence, his Honour observed 'there would not appear to be any utility' in further hearing of that motion, and that any appeal from the decision on the review application would be the appropriate forum for agitating the appellant's concerns. 18 The appellant has been unrepresented at all times. His written documentation, whether in affidavit form or as submissions, and his oral submissions are argumentative, assertive, and often apparently repetitive. They are often extravagantly expressed, and he makes apparently unfounded but serious allegations. 19 The notice of appeal from the review application decision contains 29 grounds, but they are not clearly expressed and are repetitive. So far as I can determine, and omitting merely assertive claims (those where there is no particularity of the claim or of the error alleged such as unsupported claims of fraud or perversion of the course of justice), the notice of appeal claims that the learned Magistrate erred because: (1) there was no act of bankruptcy because the appellant was not served with the bankruptcy notice, because the bankruptcy notice was in a 'closed envelope'; (2) there was no service of the petition itself upon him, because the petition was also in a sealed envelope; (3) he found the appellant was not solvent (elsewhere in the notice of appeal the appellant refers to disputing his indebtedness to the second respondent and refers to the first respondent owing him $3106, the second respondent owing him $14,350 and $6333, and Manna Hill owing him $68,4000, and also claims that his shareholding in Manna Hill is worth $600,000; he apparently thereby identifies particular factual errors asserted, and complains that the learned Magistrate did not accept his evidence about why his statement of affairs was not accurate); (4) there were other sufficient causes for the petition to be dismissed, including (i) that he offered to repay the debt of $4600 but was not permitted by the respondents to do so; (ii) that the appellant had 'set-offs' against the respondents (referred to in (3) above); (iii) that he had an illness; and (iv) that the appeal against the earlier decision had not been resolved; (5) the appellant was not accorded procedural fairness because (i) he was not given sufficient time to present evidence and submissions, including by reason of the dismissal of the further evidence motion to adduce submissions and 'new' evidence regarding his 'real' statement of affairs, and because he received a very lengthy affidavit of the respondents on the afternoon of 5 April 2005 for the hearing on 8 April 2005; (ii) no weight was given to his state of health, namely his mental condition and its effect upon his capacity to conduct the hearing of the review application in a timely manner (the appellant did not claim that he was incompetent to conduct the hearing but that he should have been given more time to adduce evidence and to make submissions); (iii) he was not permitted to cross-examine the respondents' witnesses (whose evidence-in-chief was given by affidavit); (iv) he was not given an adjournment of the hearing of the review application to obtain legal representation (which he claims was available to him); (v) the hearing on 13 May 2005 was 'completed' whilst he was still in the course of making submissions; (vi) the learned Magistrate was ostensibly biased against him as indicated by (a) the general hostility he experienced during the hearing; (b) failing or declining to hear and determine the disqualification motion before delivering judgment; (c) commencing the hearing on 13 May 2005 before the listed commencement time in the presence of counsel for the respondents but in the absence of the appellant; (d) dismissing the further evidence affidavit (which the appellant claims, contrary to the assessment of the learned Magistrate, included evidence he wished to adduce and not simply submissions he wished to make); (e) selective use of evidence and failure to have regard to evidence favourable to the appellant in making the findings of fact. 20 The grounds of appeal in the draft notices of appeal attached to the two motions seeking leave to appeal from the dismissal of the further evidence motion and of the disqualification motion broadly speaking are included in the grounds of appeal from the dismissal of the review application. The only additional matter raised (which is itself comprehensible) is that the learned Magistrate should have treated the affidavit of the appellant of 14 June 2005 (filed in support of the further evidence motion) as also in support of the disqualification motion, so that his Honour erred in treating the disqualification motion as not complying with the Federal Magistrates Court Rules. 21 I have incorporated into the description of the grounds of appeal certain particularity which emerged from questioning the appellant during the course of the hearing of this appeal. I have not included certain matters which he raised in argument but which could not have led to the appeal (or other application) being successful (for example that certain evidence was apparently misplaced but then located in the course of the hearing at first instance, or that the result of the proceedings simply reflected the decision of 21 January 2005 under review without independent consideration, or that for a period during the hearing at first instance there was some misunderstanding about the foundation of the debt giving rise to the costs judgment).