Satchithanantham v Multilink Investments Pty Ltd [2003] HCATrans 402 (3 October 2003)

--

Satchithanantham v Multilink Investments Pty Ltd [2003] HCATrans 402 (3 October 2003)

Last Updated: 17 October 2003

[2003] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S405 of 2002

B e t w e e n -

THAMBIAPPAH SATCHITHANANTHAM

Applicant

and

MULTILINK INVESTMENTS PTY LTD

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 12.14 PM

Copyright in the High Court of Australia

MR S.T. KRISHNAR: May it please your Honours, I appear for the applicant in this matter. (instructed by the applicant)

MR J.A. BUSH: If the Court pleases, I appear for the respondent. (instructed by John A. Bush (Solicitors))

McHUGH J: Yes, Mr Krishnar.

MR KRISHNAR: Your Honours, I have been approached in the last minute by the applicant, who was whizzing away two days ago and sought my help to conduct this matter before your Honours. I would proceed today if your Honours were to grant me permission to do so.

McHUGH J: To present the case?

MR KRISHNAR: Yes.

McHUGH J: You are a solicitor?

MR KRISHNAR: Yes, I am a solicitor, in fact, of the High Court.

McHUGH J: Yes, certainly.

MR KRISHNAR: Your Honours, the application book and supplementary application book were prepared by the applicant himself without any legal assistance from any solicitors. I certainly did not have any part to do with that. Having perused the grounds of appeal in the notice of appeal, I would say that they are legally not proper. For the sake of - what shall I say - easy reference, I have sort of broken them down into the following paragraphs.

(1) Whether the bankruptcy notice was properly served and whether it came to the attention of the debtor; (2) whether the creditor’s petition was properly served – service is alleged to have taken place in the presence of court 11B within the court in the Supreme Court building; (3) the debt was primarily as a result of judgment of the District Court, which I would not go into at this stage, because that matter has been.....in the Court of Appeal. Further, the matter went on special leave and that was again refused. I believe, with some of my involvement there, the applicant had further requested special leave for the substantive hearing from which this bankruptcy or sequestration order arose, your Honours.

Then I will be addressing on passport evidence; the cogency and the weight of evidence to be attached to the evidence in the passport. Then there is some evidence as to whereabouts in a particular period of time, which again combines with the evidence from the passport. Then I will proceed on to the overstatement in the creditor’s petition; then I will also address your Honours on receipts, which were provided by the applicant before Justice Conti in the Federal Court. I will also address the issues on court charges referred to by the applicant in his grounds of appeal, which I would refer to as discrepancies.

Your Honours, I refer you to the judgment of Justice Conti on pages 49 onwards in the application book, which I believe the applicant has filed in Court. I will take your Honours to page 61 of the application book, where adverse inferences have been made against the credibility of the applicant. What that matter leads to is substantially what is contained in pages 42, 43, 44 and 46 of the supplementary application book.

Page 44 is a receipt from Opal Travel. This was a document which came out during the hearing before the Federal Magistrates Court. What the applicant had done was, in an affidavit on 21 January 2002, actually incorporated page 43, which is the full copy of a receipt showing his whereabouts at a particular time. It is this matter which was brought by the applicant to the attention of Justice Conti in the Federal Court. Adverse inference had been made.

I further draw your Honours’ attention to page 45, where the applicant has been cross-examined. It goes on page 45 of the supplementary book, the portion of the cross-examination where my client was asked by counsel for the respondent, at line 14:

“When the date of my hearing was extended to 22 February I did not remember that I had to travel on 21 February as I had attended urgent matters on Friday in Singapore and then to Brunei to attend my business matters. I booked my tickets on 14 February 2002 in anticipation that I could finish here the matter on 19 February.”

That was the original date for the hearing of the sequestration order. Then on line 20, it goes:

Mr Satchi, you attach a number of documents to this, the first being apparently an airline ticket?---Yes.

I will just ask you to look at those words there and the date underneath. Do you agree that that says the date of issue, 20 February 2002?---Yes.

This is the receipt from Opal Travel?---Yes.

This is your copy of a document that you sent to the court?---No, that was a letter dated 14^th of - - -

No, but the date is not on that document, is it?---Well, the one I send it was there 14^th of - - -

I understand this is the letter handed down by the court, your Honour.

So my submission is that on page 43 of the supplementary book, somehow or other, it is not the copy which was sent to the court, whereas the copy which was sent by the applicant to the court is on page 44.

McHUGH J: Yes, but, Mr Krishnar, these are factual matters that do not raise any special leave points. The problem that your client faced was that the issue in the case was not whether or not he was overseas at the relevant time. That was not the issue. The issue was whether he had shown that the notice had not come to his attention. The magistrate found that it had been served on 10 January and that, in all probability, it was brought to his attention at or around that time. He failed to satisfy the magistrate, as he was bound to, that it did not come to his attention until the time when the bankruptcy period would not have expired before the filing of the creditor’s petition. These are factual matters. They do not raise any question of special leave.

MR KRISHNAR: What the applicant is trying to establish is that - - -

McHUGH J: I understand. It is a factual argument and - - -

MR KRISHNAR: And that was a ground of appeal, because of this discrepancy before the Federal Magistrates Court. These and several other discrepancies had undermined the credibility of the applicant, and therefore the whole hearing and the subsequent judgment went against the applicant. Be that as it may, I will now move on to see the circumstances in relation to the service of the bankruptcy notice.

Your Honours, there is ample evidence to suggest that the applicant was overseas from 2 January. Mr Satchi returned to Australia on 20 February 2001 and remained in Australia until 3 or 4 March 2001 when he departed Australia again. He returned to Australia again on 16 March 2001. The applicant – a bit of a history, your Honours. The applicant is an engineer who works in Brunei, having his own company there, and his wife and only one kid, only child to the family, is in Australia. So he makes several trips a year up and down. Sometimes he comes up to Singapore and goes back again to Brunei, without coming to Australia.

So there have been some mistakes in relation to the time when he was in or out of Australia, but from the passport evidence it is abundantly clear that he was away from 2 January 2001 until 20 February 2001. The respondent had, on 10 January, faxed a bankruptcy notice to the applicant, followed by a postal service of the bankruptcy notice. The issue here is that the applicant states that he had no knowledge of the bankruptcy notice which was sent by facsimile or which was sent by post. At the time, the applicant and his spouse were in loggerheads as a result of what was going on in the family. He has lost his case, the wife was being sued and there were numerous actions going on. The parties were not in communication, and what the wife’s knowledge - - -

McHUGH J: That is what your client asserts, but the magistrate obviously did not believe him, and the magistrate placed a lot of emphasis on the fact that your client did not call Mrs Satchi. It would have been simple for her to say, “Well, I got the fax but I did nothing with it; never showed it to him”.

MR KRISHNAR: That is precisely right, your Honours, but, on the other hand, this is an affidavit from the solicitors for the respondent who says that a set of circumstances occurred, or a set of conversations took place, between the solicitor and his wife, but the wife’s knowledge cannot be imputed to that of the husband. He has given reasonable explanation to the court that there were others who were living in the family home. The state of a man’s mind is just the same as his digestion, in the sense that what the relationship was within the parties. There was no communication. He was overseas for most of the time and he had no knowledge.

If the applicant’s credibility is impugned as a result of that, but we must also look at the circumstances in which he then communicates with the respondent’s solicitors. He comes back on 5 August or thereabouts, he finds a letter by chance from Bush Burke, he reads it and looks at it and instructs his counsel, “What is this all about? Can you ring up Bush Burke? There is a hearing in that letter which states that there is a court case on 30 November”. I mean, if the applicant is a person who cannot be believed, then he would not resort to this course of action by instructing his counsel, “There’s a hearing on 30 November. Rush down to the court and see what is going on”.

In the circumstances, it cannot be said, and at the same time there is no evidence to suggest, and at the same time no inference can be made, that he knew about the bankruptcy notice and did not take any steps.

McHUGH J: Mr Krishnar, you are doing your best to argue this factual question, but we do not deal with questions of fact, except in very special
circumstances. You have to show there is some special leave point in this case.

MR KRISHNAR: In the circumstances, your Honours, what I wish to establish here is, the bankruptcy notice has not been served properly in accordance with law; the bankruptcy petition has not been served properly in accordance with law. The creditor’s petition is an originating process, it must be served personally, and there is abundant evidence. To depart from that is gross injustice to the applicant. The creditor’s petition was filed on 20 February 2001. During that time, the evidence of the passport established – the passport was brought then as a result of a notice to produce - - -

McHUGH J: Yes, I know, but that is not the issue. There is a rebuttable presumption, created by sub-regulation 16.01, that proper service by fax or post was effected. The fax was sent on 10 January. That is prima facie evidence of service. Your client carried the onus then of showing that it was not. The magistrate rejected it and that is it. It is a question of fact; there is no special leave point in it.

MR KRISHNAR: Yes, your Honours, but on 16.02 there is a rebuttable presumption. Although it poses a problem for interpretation, as foreshadowed by Magistrate Driver himself, that presumption has been rebutted by the applicant and he has said very clearly, “Yes, you have sent a fax. You may have talked to my wife, but I have not got the knowledge. I got the knowledge some time around 5 August. I may have had some knowledge that you were trying to get in touch with me and here you are. I have discharged what a reasonable man would do by telling his counsel, ‘Go to the hearing on 30 November and find out what’s going on’.”

On that day, counsel appointed by the applicant did make notes in his application that there will be a dispute as to service of the bankruptcy notice and the creditor’s petition. That was put to Registrar Hedge. So there has been no effective service of both the bankruptcy notice as well as the petition. That is a crucial issue here and it is a question of law.

McHUGH J: Your time is up, Mr Krishnar. Thank you for your assistance. We need not hear you, Mr Bush.

This case turned on questions of fact which were decided adversely to the applicant. The case raises no special leave point. Accordingly, special leave must be refused with costs. The Court will now adjourn to reconstitute.

AT 12.35 PM THE MATTER WAS CONCLUDED