Morally bankrupt Australian chief of Army

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
No. SAD of 2008

On appeal from Federal Magistrates Court

Ranjit Shamsher Jung Bahadur Rana

Appellant

- and -

Chief of Army

Respondent

SUMMARY OF ARGUMENT


GROUNDS OF APPEAL:

1. His Honour Simpson FM erred by not giving sufficient weight if any at all to the relevance of the appellant’s of his existent claims against the creditor in Administrative Appeals Trubunal and the Federal Court in SAD 111 of 2007, SAD 47 and 48 of 2008, as counter-claim, set off or cross demand and which put him in dispute with any liability to the creditor. Further, Simpson FM has not properly considered the errors that he has made in it per Rana v Chief of Army [2008] FMCA 518 related appeal now SAD 49 of 2008 before His Honour Finn J. The appellant had provided Simpson FM grounds of appeal and outline of submission to assess prospect of success about it as an exceptional ground in “other sufficient causes” per s. 52 (2) (b) of the Act. Simpson FM has not properly considered it as will be evident below at appeal ground number 6, which lacks proper analysis within the framework of s. 52 (2) (b) of the Act.

Simpson FM did not properly consider the appellant’s argument per the test of Dowling v Colonial Mutual life Assurance Society Ltd (1915) 509 at 521. The appellant has shown exceptional circumstances. The particulars are:

Simpson FM’s forecasting in his reasons of Rana v Chief of Army [2008] FMCA 518 at [23]-[24] was erroneous. Now the matter has been decided in the appellant’s favour. See the landmark case in Rana v Military rehabilitation and Compensation Commission [2008] AATA 558.
Simpson FM’s explanation at [24] was irrational and/or illogical and/or unreasonable as that matter Rana v Military rehabilitation and Compensation Commission [2008] AATA 558 was and could not be brought before Mansfield J. It appears Simpson FM was confused with the matter concerning Orme in Rana v Defence Force Retirement Benefits Authority [2005] AATA 291. Thus, Mansfield J lacked jurisdiction as unreasonably speculated by Simpson FM.
Simpson FM’s reasoning at [26]-[27] is again irrational and unreasonable. The matter is going to trial in December starting until the middle of the month, and his forecasting has been unreasonable and linking with Mansfield J’s decisions, as he did not have the jurisdiction to hear it. Simpson FM speculated without any reasonable evidence about estoppels and/or improper collateral attack on His Honour Mansfield J.
Simpson FM’s forecasting on SAD 111 of 2007 concerning Lander J is also unreasonable as Lander J was subsequently led into error by Simpson FM’s own decision in Rana v Chief of Army [2008] FMCA 518, and now subject of appeal to the Full Court in December 2008.
Simpson FM was correct about the High Court matter in [30]. However, fresh evidence obtained by the Repatriation Commission from Professor Goldney will show and before this court, that Orme had lied that adjustment disorder was not reactive depression. On that basis this Court ought to go behind Orme’s decision, which Simpson FM did not do so in bad faith.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice.

2. Simpson FM has also not properly considered the appellant’s success in the MRCC matter in Rana v Chief of Army [2008] FMCA 518, that he erroneously predicted that it had very remote chance of success. However, it has come the appellant’s way Rana v Military Rehabilitation and Compensation Commission [2008] AATA 558 as a landmark case. Simpson FM remains selectively silent about it. He does also in the Repatriation matter in the same case he decided. The High Court matter went contrary to the appellant’s expectation, now the Repatriation Commission has obtained a report from Dr. Goldney, which shows Chief of Army’s delegate misrepresented that the appellant had reactive depression which is also known as readjustment disorder. It was inappropriate for the High Court to adduce fresh evidence. However, via fresh evidence in this Court the appellant will do a collateral attack on Brigadier Craig Orme’s misrepresentation, and in the interest of justice, this Court may relax the admittance of fresh evidence to go behind the decision of Orme and other Courts per James v Medical Board of South Australia and Keogh [2006] SASC 267 at [43] about Lord Diplock’s statement in Hunter and general considerations of public policy. Thus, this Court ought to go behind all decision’s concerning Orme in light of Professor Goldney’s recent report obtained by Repatriation Commission.

This ground can be linked with ground 1 above. The appellant argues that he has genuine claim for “any other cause” against the creditor or others for an equal to or greater amount than the debtor owes to the creditor. The debtor had showed the claim to be genuine and serious one, which he could reasonably litigate, and for an improper purpose, Simpson rejected it not supported by reasonable evidence apart not believing the credibility of the appellant based on his ethnicity and disability. Simpson FM’s reasoning was that the appellant was a vexatious litigant who did not have real claim that was unlikely to succeed and did not have sufficient validity to justify a dismissal or adjournment of the creditor’s petition. See Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 at 116. Simpson FM did not properly consider all the materials of evidence like affidavits, judgments, outline of submissions, evidences and successes of the appellant in other cases, and subjectively and arbitrarily rejected all the submissions of the appellant in all matters before him, and when asked to disqualify him on a number of occasions he has failed to remove himself for an improper purpose.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

3. Alternatively, Simpson FM refused to properly accept that he ought to disqualify himself when asked by the appellant in another matter of disability discrimination against SA Housing and Libraries Board of Australia and Ors, and he still sat forcefully in this matter. Nevertheless, as of his reasons at [10] he did not accepted his error of law as an exceptional basis for “other sufficient causes” per s. 52 (2) (b) of the Act and failed to provide relevant analysis and assessment of the appeal success in SAD 49 of 2008 before His Honour Finn J. This is in terms of dismissing the sequestrian order application and/or stay of it improper manner.

The appellant argues that malicious presentation of petition has been accepted by Simpson FM. The particulars are:

Because the appellant challenged the power of Chief of Army and was exposing his delegate’s lies (eg. adjustment disorder is not reactive depression from the fresh evidence of Professor Goldney), the appellant was prosecuted to be made bankrupt and was initiated in a malicious spirit. See Cox v E S & A Bank [1905] AC 168 at 170.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

4. Alternatively, His Honour Simpson erred by not sufficiently investigating the merits of the appellant’s claims if the Federal Court against the creditor in the above cited action numbers. Further, His Honour did not sufficiently look at his own errors of law and fact in SAD 49 of 2008 related appeal’s prospect of success, now before His Honour Finn J. The appellant challenges the test used by Simpson FM in that appellant’s claim, and His Honour FM did not properly investigate what if the appellant was entitled and whether it had any probability of success based on those factors concerning the grounds of appeal before His Honour Finn J. The appellant had in number of occasions indicated that His Honour not sit in this matter as His Honour had already not believed the credibility of the appellant concerning the decision he made and now on appeal to His Honour Finn J.

The creditor not having complied with statutory precondition to commencing or maintaining proceedings in relation to his debt prior to commencing the proceedings in which the judgment was obtained can be any other cause for dismissing the petition. See Burrel v Connell 91998) 84 FCR 383.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

5. Alternatively, His Honour Simpson FM erred dismissing the appellant’s ground of appeal for an abuse of process. Because His Honour found no persuasive material that the appellant was in disability support pension, and had no assets in the bank or otherwise, the appellant has not worked since being discharged from the Australian Army. His Honour Simpson FM erred in determining its prospects of success he did not sufficiently investigate the appellant’s merits or the written arguments tendered about misrepresentation by Orme that adjustment disorder was not reactive depression. Further, the appellant will adduce fresh evidence in the interest of justice warranting annulment of the sequestrian order or bankruptcy based on the report of Australian Government Trustee in bankruptcy located at 80 King William Street concerning this appellant’s debtor’s petition that he has zero asset that Simpson did not believe in.

The appellant argues that violence has been applied by the creditor via the process server to go to the bankruptcy trustee. Fresh evidence shows from the trustee that the appellant has no asset. This Court can be clearly convinced that from all circumstances of the case, there cannot be any assets or any prospect of any coming into existence, and that, if a receiving order is made or remains in place, the only effect will be mere waste of money in costs. The sequestrian order has been made as an abuse of power. See Re Betts; Ex parte Betts [1897] 1 QB 50 at 52, 54, 54-55 (CA). Now, the bankruptcy trustee has done public examination and knows that the appellant has no asset, and no assets come to light per Radlich v Bank of New Zealand (1993) 45 FCR 101 at 112-113, 123 and contrary to 114.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

6. Alternatively, Simpson FM erred by implying that there could be no coercion by the respondent’s process server about the appellant being assaulted in obtaining deeds, and the materials he was relying the very deeds could not be excluded by s. 135 of the Evidence Act 1995 (Cth), as being relevant to the proceedings that the appellant was hiding assets. There was no logical relevance to the deeds obtained under coercion that may be described as having probative value in benefit to public policy, in matters that was subject of privilege by similar public policy of deed settlements. Simson did not make determination per s. 55 of the Evidence Act 1995 (Cth) as he was required to do so. The test was prescribed in R v Lockyer (1996) 89 A Crim R 457 at 459. His Honour failed in the statutory assessment of probability of relevance the material obtained under coercion against the appellant’s will, who has a known disability to the respondent per Papakosmas v The Queen (1999) 196 CLR 297 at [81].

It was unfair prejudice to the appellant and Simpson FM did not even consider excluding it per ss.135, 136 and 137 of the Evidence Act 1995 per R v Cook [2001] NSWCCA 52 at [43]. The alleged denial of coercion was accepted by the respondent’s counsel from the bar table, and this is reflected in Simpson FM’s decision. Lawyers Doyle and Parkyn were not available for cross-examination. Thus, this scurrilous hearsay should had not been relied by Simpson and should had excluded it from his decision related reasoning of the matter pursuant to s. 135 (a) of the Evidence Act per Gordon (Bankrupt), Official Trustee in bankruptcy v Pike (Unreported, Federal Court of Australia, Beaumont J, I September 1995). The appellant had provided sworn affidavit and police report. His Honour was not satisfied with this material either in terms of the appellant’s claim for the sequestrian order to be dismissed or stayed known as “other sufficient cause” per s. 52 (2) (b) of the Bankruptcy Act. His Honour only relied on assertions of the respondent that “it was not the case” from the bar table, and His Honour did not have supporting evidence to rely on to reject the appellant’s ground of appeal improperly and in bad faith. Further, the police has been notified about another incident that has caused fear in this appellant to go and get the debtor’s petition, this will be also another feature of fresh evidence. The fact remained before Simpson FM that he did not consider that Higgins for Nic Parkyn, who was seen in security camera of the Federal Court, and given to me by the security chief firm Chubb, the digital images of Parkyn and Higgins, and later Higgins, assaulted me took my deeds. I produced the copies to the Court not for any assessment about it and Simpson for an improper purpose used it against me. That was done in bad faith.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

7. Alternatively, Simpson FM did not properly consider the appellant’s claims per s. 52 (2) (b) of the Bankruptcy Act, which says, “that for other sufficient cause a sequestrian order ought not to be made; it may dismiss the petition”. Further, Simpson FM only applied narrow construction of law per s. 52 (1) of the Bankruptcy Act in his reasons of decision at [1]-[7] and avoided to address the appeal before Finn J and now the matter of appeal in SAD 111 of 2007 and SAD 47 and 48 of 2008 for prerogative writ in the High Court and appeal before Finn J, and the matter SAD 49 of 2008 concerning Simpson’s own decision on appeal before Finn J (here the appellant had asked Simpson FM to dismiss or stay the order in exceptional circumstances as the appellant considered the prospect of success in the appeal to be reasonable). Simpson FM was contrary to Totev v Sfar [2006] FCA 470 at [35]-[44] principles concerning s. 40 (1) (g) of the Bankruptcy Act in specific terms. Further, at [44]-[45], Simpson FM’s prediction of success of the appellant, when he made the appellant bankrupt and now in appeal before His Honour Finn J, many errors of law and fact Simpson FM had committed. All the cited precedents were not applied properly based at [44]-[45] in Totev v Sfar.

Simpson FM in ADG 20 of 2008 refused interim application for a stay and interim application was dismissed on 13/8/2008. He had the power and he knew about this appeal. His powers came from s. 29 of the Federal Court of Australia Act 1976, Federal Court Rules, O 52, r 17 which operates beyond 21 days and mentioned in s. 53 (2), notwithstanding s. 37 (2) (a), once the appeal was filed. Simpson FM knew all his errors and now that appeal as SAD 49 of 2008 before Finn J, he had summary of argument provided and refused to look at it. See Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 524.

Simpson FM did not determine the grounds for stay. He did not properly consider the relevant matter whether there was an arguable point on the proposed appeal and whether the balance of convenience favoured the granting of stay. See Freeman v National Bank Australia Bank Ltd [2002] FCA 427 at {4}. A stay of sequestrian order was not granted to the appellant for a short period to allow an unrepresented bankrupt the opportunity to formulate and file his ground of appeal in circumstances where the appellant has no property and thus no jeopardy occurred in shifting of assets by stealth. The appellant has filed under violence filed a statement of affairs as required by s. 54 to the bankruptcy trustee. See Re Gould; Day v Gould [2000] FCA 1377 at [22]-[23]. Even in a case where the court is “not persuaded…that there is any real prospect of the appeal succeeding”, a stay of the sequestrian order was not granted pending an appeal by the bankrupt in good faith. See Gould v Gould [2000] FCA 1427 at [7]-[11]. He did not at all considered the stay of the petition alone. That was further reflected in his decision in the application for the interim stay by improperly declaring that he had no power under the Act, he in bad faith did not evaluate according to law the prospect of reasonable success, with all the materials he had was provided.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice.

8. Alternatively, Simpson FM rejected the appellant’s claim improperly that the respondent and it’s agent committed assault on the appellant to the use of bankruptcy proceedings to put pressure on this unrepresented appellant, who has no assets to extract debt from him via the deeds that the appellant did not had to provide them “but for” the assault. Simpson FM’s approach was contrary to Brunninghausen v Glavanics [1998] FCA 230, and related to the appellant’s abuse of process claims. Simpson FM did not properly assess to conclude the appellant’s claim and preferred the respondent without any supportive evidence.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

9. Alternatively, Simpson FM’s reasoning at [8]-[10] of his decision, in citing relevant legislations are contrary to Rana v Chief of Army Staff [2006] FCAFC 63 at [3]-[7], which cited the proper legislations. With Simpson FM’s version of legislation, weighing of facts as he saw to his version or only reliance on s. 37 of the DFRDB Act was not supported by evidence, was unreasonable and brought the Full Court into disrepute in terms of inconsistency that arises. Simpson FM considered that it was only typographical error based on the slip rule probably for an improper exercise of his power.

The appellant argues that Simpson FM did not properly consider s. 155 of the Evidence Act 1995 that the appellant had provided to facilitate proof of Mansfield J’s two decisions in SAD 74 and 79 of 2007, The appellant had provided such materials to Simpson FM’s own decision on appeal now before Finn J in SAD 49 of 2008. This the appellant did to demonstrate Simpson FM’s error of law in just relying on the s. 37 of the DFRDB Act and not citing the true record of the Rana v Chief of Army Staff [2006] FCAFC 63 at [3]-[7]. This has brought bad reputation to the administration of justice and has misled the appellant. About s. 155 see Nezovic v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 203 ALR 33 at [48]. Simpson FM indicated his version to be the correct one and other court decisions are not admitted as evidence and should be excluded for an improper purpose.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice.


10. Alternatively, the appellant had provided adequate materials in sworn affidavits. On the other hand Simpson FM relied on affidavits of the respondent that was contrary to s. 75 of the Evidence Act 1995 (Cth). See also Rana v University of South Australia (2004) FCA 559 at [40]. Simpson found for an improper purpose that the appellant did not show “other sufficient cause” per s. 52 (2) (b) of the Act and preferred the respondent contrary to known law.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

11. Alternatively, Simpson FM fell into error to imply that the appellant’s all claims outlined above rather fell in s. 40 (1) (g) and was not relevant consideration in the assessment of “other sufficient causes” for s. 52 (2) (b) of the Act, whether he has erred and was subject of appeal or not in terms of prospect of its success and/or to dismiss the sequestrian order. Simpson FM did not approach the matter per the issue of the operation of s. 52 (2) (b) of the Act concerning his own decision to make the appellant bankrupt and now before His Honour Finn J. He drew a conclusion about the material provided to him by the appellant at [8]-[17] and without regard to SAD 49 of 2008 appeal grounds that was also provided to him. Alternatively, Simpson FM did not properly assess the appellant’s claims whether they satisfied s. 40 (1) (g) if it was to be seen being litigated to defeat costs orders, and whether it could likewise ameliorate the stringency of the approach to s. 52 (2) (b). S. 52 (2) (b) was not addressed by Simpson FM, the possible relevance of the appeal SAD 49 of 2008 was not broached in the context of s. 52 (2) (b) analysis and related prospect of success. Simpson FM did not properly consider all materials provided by the appellant. This was contrary to s. 65 (20 (b) and (c) of the Evidence Act 1995. See Williams v The Queen (2000) 119 A Crim R 490 at [55]-[58]; and R v Ambrosoli 92002) 55 NSWLR 603 at 616.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

12. Alternatively, Simpson FM did not approach the matter without directing himself to the correct framework of analysis under s. 52 (2) (b). Whether that error was operative is another question in the light of his conclusion at the appellant’s ground number 6 above for his reasons that there was no material of a persuasive nature before him that the claims had any prospect of success. Thus, miscarriage of justice in significant magnitude has occurred, Simpson FM did not address the issues in the correct framework of s. 52 (2) (b) of the Act. His decision should be disturbed.

13. There were sufficient materials before Simpson FM which amounted “other sufficient causes” and he did not deal with SAD 49 of 2008 appeal about his own decision before Finn J separately, It plainly raise material to warrant the refusal or adjournment of the petition. Simpson FM did not approach the issue of the operation of s. 52 (2) (b). He drew conclusion about material that was not open to him, which may have been affected by the failure to address the correct issue. There were ample materials in all federal court actions of this appellant before him being of persuasive nature that the appellant’s claims had any prospects of success. Further, fresh evidence in the interest of justice will show the clarity that matter the High Court issue was doomed to fail arising misrepresentation by Orme, and was hard to be cured by judicial review. Thus, s. 52 (2) (b) related exercise of the power miscarried.

Simpson FM preferred the respondent from the bar table that the deed of settlement indicated that the appellant had volunteered the deeds to prove he had assets and was probative to the trustee in bankruptcy. The appellant denies this by affidavit and presented the evidence of police report number. This was contrary to s. 131 of the Evidence Act 1995 per Lewis v Nortex Pty Ltd [2002] NSWSC 1245 that Simpson FM has used against the credibility to be made bankrupt against public policy. The lawyers of the respondent okayed as being significant probative evidence to indicate that the appellant had obtained income in regular basis as a noted progressive iterant litigant, who for many years ventured as his litigations based psychiatric career in many jurisdictions with many deeds. Simpson FM did not exclude it per s. 131 of the Evidence Act 1995 for an improper purpose.

Thus, significant injustice has occurred and Simpson FM’s decision ought to be disturbed in the interest of justice

14. His Honour Simpson manifestly erred per his reasons at [20] contrary to ANZ Banking Group Ltd v Menso [2006] FMCA 1522 at [62]-[64]. The appellant doubts the reasoning at [65]-[66] that may assist the case of the respondent. The appellant prefers the view at [62]-[64] to be the correct version in law. Without the judgment that had two orders in would mislead a reasonable person and this was what the appellant was trying to argue before Simpson FM concerning s. 306 (1) of the Act.

The learned magistrate in ANZ Banking Group Ltd v Menso [2006] FMCA 1522 at [65]-[66] is at odds with High Court Rules, O. 26 r. 18 (1), (2), O. 63 rr. 1, 2. Why? Because, at [66], the learned magistrate said, “Where, as in the present case, the whole bankruptcy process is founded on a judgment order, and failure to comply with that judgment (ss. 40 (1) (g), 40. (3) 41 (1) and Reg. 4.02) in my view it is an essential requirement of the Act that the judgment or order relied upon be attached to the bankruptcy notice….” However, no judgment was attached and this unrepresented litigant was misled. The learned magistrate had no proper authority to override a logical, rational and reasonable analysis of the learned authors as the learned magistrate cited in his paragraph 63 as saying. “It is not yet clear whether this strict view would still be the law following the High Court’s decision in Adams v Lambert (2006) 3 ABC (NS) 935; 80 ALJR 679; [2006] HCA 10, but it may well be, because the failure to annex the judgment may be regarded as an entire failure to meet a requirement made essential by the Act, and because it might be held to be a sufficiently substantial error not to be able to be cured under s. 306 (1). The High Court in Adams v Lambert restricted its comments overruling the line of authority concerning incorrectly stating the statutory provision pursuant to which interest was claimed…”

The appellant argues that with judgment and order being attached all reasons would be clear to unrepresented litigant and he would not be misled. High Court rule is strict in seeking special leave and filing appeal book therein all orders and judgment from lower courts should be included. It makes sense as to why the High Court rules are strict in the proper sense. These were the correct principles laid by the High Court in terms of the precedent Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd [1978] FCA 49 in terms of procedures of the Federal Court being governed by the High Court Rules. Order 26 r. 18. Thus, the learned magistrate without citing any authority has gone beyond the logic of the authors at [65]-[66] in ANZ Banking Group v Menso case. The magistrate erroneously selected the word “order or judgment” and this is misleading to the true analysis of the High Court’s decision in Adams v Lambert (2006) 3 ABC (NS) 935; 80 ALJR 679. According to ANZ Banking Group v Menso at [62]-[64] the judgment ought to be the proper document also with the order. The selection of the words in the construction either the judgment or order is contrary to the High Court procedures in the construction of the law. The reasonable foregone conclusion ought to be in public interest that both the rule and order should be included so that litigants would not be misled.

The appellant argues that Simpson did not properly consider his legal errors per appeal ground 9 above, as it was properly put to him being “exceptional circumstances” as being “other sufficient cause” for dismissing or staying the sequestrian order. This was based on some cognizable errors needs to be identified in the decision he made and was subject of appeal now before Finn J in SAD 49 of 2008. See Qun Xiong (Kenny) Yu v Todaytech Distribution Pty Ltd [2006] FCA at [30]. Thus, Simpson FM’s reliance that the order in SAD 74 of 2007 and minus the order in SAD 79 of 2007 not served together on the appellant was not “a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed a final judgment so obtained…” per s. 40 (1) (g) of the Act relied by the creditor per s. 40 (30 of the Act. Each files specified different order under different scheme of legislations and rules of the Commonwealth and concerned different agencies, by which costs were ordered.

It involved two assessments in the total amount claimed in the bankruptcy notice. The appellant argues that he was misled as by how much to pay by attachment of only the SAD 74 of 2007 portion, which identified its source which truly did not reflect the original decisions of Mansfiled J and then the Full Court. Simpson FM did not properly account for the proper source of his knowledge about it and was thus not supported by evidence, it was irrational, unfair and unreasonable to the mental reasoning to follow the law by this appellant. Thus, there was significant discrepancy in law and yet it was significantly oppressive on Simpson FM’s part to not dismiss or stay the sequestrian order. It was highly oppressive to the appellant and an abuse of proper power. Simpson FM did not even grant the appellant 21 days stay as he applied after the judgment for a stay. Simpson FM indicated improperly he had no power in bad faith.

The appellant had relied on s. 306 (1) of the Act as the basis of “exceptional circumstances” in the “other sufficient causes” criterion for dismissal and/or sty of the sequestrian order. The act say, “Proceedings under this Act are not invalidated by a formal defect or an irregularity; unless the court before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.” Simpson FM did not properly did not consider this section and opined that he did not had to change his mind as such defects were typographical error and did not cause the appellant any significant injustice, and this justification was a normative statement and not a positive statement, and was based on composition and post hoc fallacies. Thus, it is unfair and unreasonable to this appellant.

Simpson FM in his earlier decision confirming the review of the Registrar cited the judgments of two matter of Mansfield J and of the above cited Full Court’s decision to be rather under s. 37 of the DFRDB Act, whether to change the appellant’s army records and a “military position brief” for Brigadier Criag Orme the delegate of the Chief of Army. This was by analogy similar to Adams v Lambert (2006) 225 ALR 396 at [18]. They applied a purposive construction of the Bankruptcy Act, consistent with the approach of the court in Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; [1998] 194 CLR 355 at 390-1 was applied. Per Adams v Lambert law at [11] of their reasons, the justices described the requirement to attach a copy of the judgment or order relied upon a feature “of particular importance”. This was not complied by Simpson FM as the seven justices said at [11], “The questions whether the defect or irregularity is a formal defect or irregularity; and whether substantial injustice has been caused and cannot be remedied, are separate and distinct, the latter question arising only if the formal is answered in the affirmative.”

At paragraphs [24]-[28] of Adams v Lambert (2006) 225 ALR 396, their Honours reasoned that deciding whether there is a formal defect or irregularity must be decided as a process of statutory construction, in the context of the Act and particular purpose of the provision relating to bankruptcy notices. This is correct approach and indeed Simpson FM has brought ill repute by not correctly reflecting the decisions and judgments of Mansfield J and the Full Court. For example, Simpson FM’s illogical foregone conclusion is that to make the appellant bankrupt on two decisions of a judge to deport the appellant under lunacy act and declare him bankrupt under the same act. When in fact it should be under different headings of proper law and rules. Thus, the appellant concurs with paragraph 63 of ANZ Banking Group Ltd v Menso [2006] FMCA 1522. Why? Because, the failure to annex the judgments of SAD 74 and 79 of 2007 may be regarded as an entire failure to meet a sufficiently substantial error by the Act, and because it might be held to be a substantial error not to be cured under s. 306 (1).

Simpson FM did not properly consider the appellant’s argument’s reasonable prospect of success according to the “exceptional circumstances” for dismissal or stay of the sequestrian order, which gave a rise to an application per Deputy Commissioner of Taxation v Feldman (2006) 62 ATR 253 and to avoid hardship on him per Deputy Commissioner of Taxation v Gergis (1991) 91 ATC 4510 and Deputy Commissioner of Taxation v Ho (1996) 131 FLR 188. Without a stay the appellant was likely to suffer an aggravation of a psychiatric condition as Orme has, misrepresented “reactive depression” was not “adjustment disorder” at the time of the appellant’s discharge from the Army. There is and was plentiful evidence and Orme did not tell the truth and has oppressed this appellant by indicating reactive depression was not known psychiatric condition to him and the appellant was a known lazy person in the Army. Simpson FM did not:

Stayed to prevent procedural fairness and hardship and an abuse of the process of the Court.
Look behind the decisions as it stood.
Seeking His Honour to go behind the judgment debt was not like the case and coercive criminal tactics had been used on the appellant and it was not like the case of Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589.

Simpson FM did not construed, the Act, and regulations and has created a new regime of strict compliance one for himself and not for the debtor and letting the creditor as an honourable and excusable persona on a creditor issuing a bankruptcy notice. The tenor of the Act and Regulations is not consistent with that conclusion. It has retarded an attempt to recast the process of issue of a bankruptcy notice in terms of more understandable to a judgment debtor, but the essential requirements of a bankruptcy notice remains as they have been stated by the specific legislation over many years.

Proper construction of the Act and Regulations must take account of the substantial amelioration of the effects of bankruptcy under the legislation that has taken place since the days when bankruptcy was regarded as penal in nature. Once before the creditor’s pension was declared invalid and this time the respondent has come up again as an oppressor. Where it is contended that legislative provisions provide for consequences of invalidity, construction of those provisions must have regard to the overriding purpose of the legislation as a whole. That principle was stated as follows by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391.

In Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503, the High Court at [33]-[41] affirmed that it is the statutory purpose to be served by a statutory notice which determines whether a purported notice complies with the requirements of the legislation, or is a nullity.

Simpson FM did not have regard to the appellant’s argument that the respondent as to not providing the details of orders and/or judgments of His Honour Mansfield J in SAD 74 and 79 of 2007 that had different schemes and scope and purposes of two separate legislations and regulations misled him. This critical portion of the judgment in the landmark case of the High Court of Kleinwort Benson Australia Ltd v Crowl at 79 that said, “The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with notice: James V Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 C.L.R. 631, at p. 644, Pillai v Comptroller of Income Tax [1970] A.C. 1124 at p. 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re a Judgment Debtor, 530 of 1908 [1908] 2 K.B. 474, at p. 481.” (Emphasis added).

In my opinion, there is substantial non-compliance with the prescribed form as permitted by s. 25C of the Acts Interpretation Act (Cth) for the same reasons as of above facts that the appellant was misled whether real or otherwise. The particulars for for and content to be defective in the bankruptcy notice:

The requirement of the bankruptcy notice accord with judgment of SAD 74 and 79 of 2007 means that amount claimed in the notice should be same as in the judgment order. However, it is the amount due at the time of the issue of notice, which should be claimed, which may include taxed costs. See Re Jack; Ex parte CV Holland (Holdings) Ltd (1959) 19 ABC 268.
The judgment is itself evidence of the amount of the debt, however, the court has a discretion to go behind the judgment in order to determine the true amount owing, at least where the judgment was obtained by default and would reveal a significantly less amount. See Re Prossimo; Ex parte De Marco (1952) 16 ABC 86.
The amount claimed in the bankruptcy notice was less than the true debt per SAD 74 of 2007, and this portion of SAD 79 of 2007 was purported to be used for harassment through the Bailiff Higgins now under police investigation for assaulting the plaintiff. That inconsistency of two notices not being served under two different legislations did not reflect the true judgment of Mansfield J, and led in fact Simpson FM into error in his belief that the two notices were correctly issued under s. 37 of the DFRDB Act, which brought the judgment of Mansfield J into disrepute. The appellant argues it was a formal defect or in the alternative an irregularity, which amounted to cause the appellant significant injustice. See Re Athans; Ex parte Athans (1991) 29 FCR 302, Fed C of A, Full Court.
Not putting two bankruptcy notices that reflected two sets of legislation with the judgment was substantial injustice, which went to the notion of the characteristics as a formal defect or irregularity. See Re Athans; Ex parte Athans (1991) 29 FCR 302, Fed C of A, Full Court. It was one, which went to a requirement made essential by the Act. See Re Long; Ex parte Fraser Confirming Pty Ltd (1975) 12 SASR 130. A failure to include in the notice information (as this case) required by the Act or the regulations made under the Act, will be treated as a failure to meet a requirement made essential by the Act. See Bendigo Bank Ltd v Williams BC200001866 [2000] FCA 482, Full Court.
In determining whether substantial injustice has been caused by a defect or irregularity, the court asks whether the defect or irregularity is one, which could mislead the debtor as to what is necessary to comply with the notice, like in this case. See examples of defects which have rendered the bankruptcy notice invalid like this case in Re Schierholter; Ex parte Geis (1978) 32 FLR 22,Fed C of A (a claim for part only of judgment costs).
The question is whether the defect is ‘objectively capable of misleading the debtor’ was not properly assessed by Simpson FM. See Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 80.
Facts known to the debtor outside those contained in the bankruptcy notice will be taken into account for this purpose and Simpson did not do this for an improper purpose. See Clyne v DCT (1982) 42 ALR 703.

Because, Simpson FM was contrary to the High Court Rules and much more, significant miscarriage of justice has occurred to the appellant. Thus, his judgment should be disturbed.

Conclusion

The decision of Simpson FM should be disturbed, as it has been unreasonable and unfair on the appellant who never had any valuable asset, and the instrument of bankruptcy was used to show the performance might of the respondent’s power for an improper purpose.

Date: 8/16/2008 11:41:26 AM




………………………….(Appellant)