Joseph Richard Bryant v Commonwealth Bank of Australia

Unreported 11 NOVEMBER 1994 FCA

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(Judgment by: DAVIES J) Court:

Judges:
DAVIES JFOSTER J
O'LOUGHLIN J

Judgment date: 11 NOVEMBER 1994

SYDNEY

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Judgment by:
DAVIES J

This is an appeal from a judgment of a judge of the Court (Hill J). The learned trial Judge had before him an application to set aside a bankruptcy notice or, alternatively, to extend the time for compliance therewith. Mr Bryant also sought a declaration that the bankruptcy notice had not been served personally on him. The trial judge dismissed both the application to set aside the bankruptcy notice and the application to extend time. He held that the bankruptcy notice had been duly served on Mr Bryant.

Both in the proceedings below and in this appeal, Mr Bryant appeared for himself. Mr W H Nicholas QC and Mr D R Fredericks of counsel appeared for the respondent.

The bankruptcy notice, which was dated 10 January 1994 and which was received by Mr Bryant on 16 January 1994 read, inter alia:

"WHEREAS COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) of 1st floor, 48 Martin Place, Sydney in the said State (hereinafter referred to as 'the Judgment Creditor') has claimed that the sum of $2,427,329.34 (hereinafter refer-red to as 'the Judgment Debt') is due by you to it under a final Judgment obtained by it against you in the Supreme Court of New South Wales on the 27 October 1993 in proceedings commenced by Plaint No. 111346 of 1992, being a Judgment the execution of which has not been stayed.

THEREFORE TAKE NOTICE that within TWENTY EIGHT (28) days after service of this Notice upon you, excluding the day on which this Notice is served on you, you are required -

(A)

to pay the sum of $2,427,329.34 so claimed by the Judgment Creditor to the Judgment Creditor; or

(B)

to secure the payment of the sum referred to in paragraph (A) to the satisfaction of the Federal Court of Australia or the Judgment Creditor or compound the sum so specified to the satisfaction of the Judgment Creditor.

AND FURTHER TAKE NOTICE that if, within the period set out above, you fail either to comply with either of the above-mentioned requirements of this Notice or to satisfy the Federal Court of Australia that you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (A) of this Notice; being a counter-claim, set-off or cross demand that you could not have set up in the action in which the Judgment was obtained, you will have committed an act of bankruptcy on which bankruptcy proceedings may be taken against you."

Judgment for the sum claimed, $2,427,329.34, had been entered by Levine J in the Supreme Court of New South Wales. Subsequently, Mr Bryant filed a notice of appeal against that judgment. The appeal has not been heard. Indeed, this Court was informed that the appeal index had not yet been settled.

Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) provides:-

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

...

(g)

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

(i)

(i) where the notice was served in Australia - within the time fixed by the Registrar by whom the notice was issued; or

(ii)

where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service;

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

..."

Sub-sections (6A), (6C) and (7) of s.41 of the Bankruptcy Act provide inter alia:-

"(6A)

Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a bankruptcy notice:

(a)

proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b)

an application to set aside the bankruptcy notice has been filed with the Registrar,

the Court may, subject to sub-section (6C), extend the time for compliance with the bankruptcy notice.

...

(6C)

Where:

(a)

a debtor applies to the Court or the Registrar for an extension of time for complying with a bankruptcy notice on the ground that proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

(b)

the Court or the Registrar, as the case may be, is of the opinion that the proceedings to set aside the judgment or order -

(i)

have not been instituted bona fide; or

(ii)

are not being prosecuted with due diligence,

the Court or the Registrar, as the case may be, shall not extend the time for compliance with the bankruptcy notice.

(7)

Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has filed with the Registrar an affidavit to the effect that he has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied."

The Act does not expressly empower the Court to set aside a bankruptcy notice, but such a power is necessarily to be inferred and is within the general powers of the Court conferred by s.30(1) of the Act: Re Sterling: Ex parte Esanda Ltd (1980) 44 FLR 125 at 129-131; Re Lentini; Ex parte Lentini v CSR Ltd (1991) 29 FCR 363 at 367-72.

Mr Bryant lodged his application with the Court on 3 February 1994. He supported it by an affidavit filed on the same date which included the following paragraphs dealing with the issue of cross-claim or set-off.-

"4. On 11 October 1993 I filed an Application and a Statement of Claim dated the same day, in the Federal Court of Australia in Sydney, being Matter No. G785 of 1993, claiming inter alia damages of $20,000,000 against the respondent. The matter was ordered to mediation by His Honour Mr Justice Beaumont on 2 December 1993, a second mediation hearing took place on 7 December 1993, and a further mediation hearing has been set down for 25 February 1993.

5. On 2 December 1993, I filed an Amended Application dated the same day, in matter G785 of 1993 in the Federal Court of Australia in Sydney. Annexed hereto and marked with the letter 'A' is a true copy of my Amended Application dated 2 December 1993.

6. On 23 December 1993, I filed an Amended Statement of Claim by leave of His Honour Mr Justice Beaumont granted on 2 December 1993 in matter G785 of 1993 in the Federal Court of Australia in Sydney. Annexed hereto and marked with the letter 'B' is a true copy of my Amended Statement of Claim dated 23 December 1993."

We turn now to the particular grounds of appeal relied upon by Mr Bryant.

There was no ground of appeal numbered 1 and that which was numbered 14 was abandoned.

Ground 3

"His Honour erred at law in refusing to admit into evidence on the grounds of relevancy affidavit evidence of the appellant attesting to his solvency."

It is not clear that his Honour refused to admit into evidence an affidavit by Mr Bryant attesting to his solvency. The trial Judge indicated, however, that solvency was not relevant. In that respect his Honour was correct. A solvent debtor may commit an act of bankruptcy by failing to comply with a bankruptcy notice served upon him. Solvency becomes relevant when a petition based upon the act of bankruptcy is presented.

Ground 4

"His Honour erred at law by finding that the bankruptcy notice was valid. His Honour should have found that by not stating the amount of interest due the bankruptcy notice was misleading and confusing to the appellant"

This ground was based on the fact that no claim was made in the bankruptcy notice for the interest which was payable on the judgment debt in accordance with s.95 of the Supreme Court Act 1970 (NSW) and the Rules of the Supreme Court.

It has, however, been long established that, in a bankruptcy notice, a creditor may include the interest payable on the judgment or may omit to do so as the creditor prefers. In Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 77, Mason CJ, Wilson, Brennan and Gaudron JJ said at 77:-

"Interest due on a judgment debt may, but need not, be included in a bankruptcy notice: In re Lehmann; Ex parte Hasluck (1890) 7 Morr. 181; Re OKeefe; Ex parte Australian Factors Ltd (1963) 19 A.B.C. 101; Re Mullavey, Ex parte Australia and New Zealand Banking Group Ltd (1977) 32 F.L.R., at pp.8-9;,20 A.L.R. 276, at p.283."

Ground 5

"His Honour erred at law in finding that sum claimed by the respondent was claimed under a final judgment. His Honour should have found that the judgments of Levine J in the Supreme Court of New South Wales in proceedings CL No. 11346 of 1992 and CD No. 50177 of 1992 and upon which the bankruptcy notice was founded do not finally dispose of the rights of the parties in the matter."

Under this ground, Mr Bryant relied on two points. The first was that the judgment of Levine J was not "final" because it was subject to the appeal in the Supreme Court of New South Wales. This submission, however, misunderstands the meaning of the word "final". In Clyne v Deputy Commissioner of Taxation (1983) 48 ALR 545 , Gibbs CJ, with whom Murphy, Wilson, Brennan and Deane JJ agreed, said at 547-8:-

"A final judgment within the provisions of the Bankruptcy Act has been held to mean a judgment obtained in an action by which the question whether there was a pre- existing right of the plaintiff against the defendant is ascertained or established: Opie v Opie (1951) 84 CLR 362 at 372."

His Honour went on to add at 548:-

"The fact that a judgment is subject to appeal or that it may later be set aside or become inoperative does not mean that it is not final; Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378 .

The second point was that, on 25 November 1993, one month after he had given judgment, Levine J was asked to amend one of the orders he had made as there had been a clerical error in the title description of one of the properties referred to therein. That amendment was made by substituting "6/261188" for "6/26118." The amendment was said by Mr Bryant to be the substitution of a new judgment which superseded the judgment given on 27 October 1993. However, it constituted a mere amendment of a clerical error which in no way affected the operation of the judgment for the monetary sum on which the bankruptcy notice was based.

Ground 6

"His Honour erred at law in finding that the appellant did not have a counter-claim, set-off or cross-demand equal to or exceeding the sum payable under the judgement or order. His Honour should have found that proceedings NG785 of 1993 in the Federal Court constitutes a prima facie case which has been put forward in good faith by the appellant"

Ground 7

"His Honour erred at law in finding that proceedings NG785 of 1993 commenced by the appellant in the Federal Court could have been set up in Supreme Court proceedings CL No. 11346 of 1992 and CD No. 50177 of 1992. His Honour should have found that the appellant from point of time, from the nature of the proceedings and from the positive inhibition by three judges of the Supreme Court of New South Wales from conducting those proceedings in the Supreme Court of New South Wales could not have set up a counter-claim, set-off or cross- demand in those Supreme Court proceedings."

Ground 8

"His Honour erred at law in finding that the appellant did not have a substantial and bona fide claim which the appellant should fairly be permitted to litigate. As a matter of law it is not open to His Honour to make such a finding. On the evidence before His Honour it was not open to him to find that the appellant did not have a prima facie case put forward in good faith."

Ground 9

"His Honour erred at law in finding that appellant did not have a counter-claim, set- off or cross-demand equal to or exceeding the sum payable under the judgment upon which the bankruptcy notice was founded."

Ground 10

"As a matter of law it was not open to His Honour to adjudicate on the maximum amount of damages claimed in such counter-claim, set-off or cross-demand. His Honour as a matter of law is only to be satisfied on the balance of probabilities that the amount claimed under such counter-claim, set-off or cross demand is equal to or exceeds the sum payable under the judgment."

In his submissions based on these grounds, Mr Bryant failed to understand the operation of s.40(1)(g) and s.41(7) of the Act. Under s.40(1)(g), an act of bankruptcy occurs if, "within the time fixed by the Registrar by whom the notice was issued", that is to say within the period stated in the bankruptcy notice, the debtor fails to comply with the notice or to satisfy the Court that he has an appropriate cross claim or set- off. The mere filing of an affidavit in the Court within the period stated in the bankruptcy notice will not "satisfy the Court" as to the existence of and the amount of the cross-claim or set-off, The satisfaction of the Court must be expressed in a finding by the Court and in an order giving effect to that finding.

Section 41(7) provides for an extension of time for compliance with the bankruptcy notice so as to allow the Court time to hear the parties and to consider the debtor's claim that he has a counterclaim or set-off as described in s.40(1)(g). The mere filing of an affidavit which satisfies the terms of the subsection will bring the extension of time, for which the section provides, into operation. As an affidavit is required, it must verify the cross-claim or set-off, it must verify that the cross claim or set-off equals or exceeds the amount of the judgment debt, and it must verify the fact that the cross claim is one which could not have been set up in the action which the judgment order was obtained. In Re Brink; Ex parte The Commercial Banking Co of Sydney Limited (1980) 44 FLR 135 Lockhart J said at 142:-

"In my opinion the affidavit cannot merely contain an assertion that the debtor has a counterclaim, set-off or cross demand which he could not have set up in the action in which the judgment or order was obtained. The affidavit must show a counterclaim, set-off or cross demand which equals or exceeds the amount of the judgment debt and which the debtor could not have set up in the action in which the judgment or order was obtained: see Vogwell v. Vogwell (1939) 11 A.B.C., at p.85; Ebert's case (1960) 104 C.L.R., at p.350; Re A Debtor per Slesser U. [1935] 1 Ch. 347, at p.352."

His Honour went on to comment, however, that, because of the time constraints imposed by s.41(7), and because the affidavit would be a mere initial affidavit, the Court should adopt a benevolent construction to the initial affidavit.

Mr Bryant's affidavit lodged on 3 February 1994, did not satisfy the requirements of s.41(7). The affidavit merely referred to proceedings commenced by Mr Bryant in this Court. It failed to verify either that the claim was a good one or that it could not have been set up in the proceedings in the Supreme Court. The latter point was thought by Lockhart J in Re Brink to be fatal. His Honour said at 144:-

"In my opinion there is an inherent defect in the affidavit, namely, that it does not indicate that any counterclaim, set-off or cross demand which may be available to the applicant could not have been set up in the District Court proceedings. There is nothing to suggest from the affidavit of the applicant that all his demands against the respondent could not have been set up in the District Court action."

It follows that, as Mr Bryant's affidavit did not satisfy the requirements of s.41(7), time was not extended. In this circumstance, s.40(1)(g) applied according to its terms. The Court has no implied power to extend time so as to allow Mr Bryant to establish, for the purposes of the bankruptcy notice, that he had a relevant cross- claim or set-off. Such a power would conflict with the express terms of s.40(1)(g) and s.41(7).

We should add, as the matter has been debated, that the trial Judge could not have been satisfied to the requisite standard that Mr Bryant had a cross-claim or set off equal to or exceeding the judgment debt. The standard required for such proof was discussed by Dixon CJ, McTiernan & Windeyer JJ in Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 . Their Honours, said at 350:-

"Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand."

Mr Bryant's affidavit merely showed that an application claiming damages of $20,000,000 against the respondent had been lodged in this Court. That was not sufficient verification of the existence of a cross-claim or set off or of the amount thereof.

We should also mention that it appears that the claim made in this Court, upon which Mr Bryant relies, could and should have been raised in and litigated in the Supreme Court proceedings. In Re Brink, Lockhart J stated the principle in these terms at 139:-

"The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A-B.C, at p.85; Re A Debtor per Avory J. [1914] 3 K.B., at p.730 and Re Stockvis (1934) 7 A-B.C. 53 especially per Lukin J. where his Honour said: 'I take a counter claim, set-off, or cross demand which could not be set up as one which, from the point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... Mere failure to take advantage of the opportunity can hardly be said to be inability."

See also Re Willats; Ex parte Nissan Finance Corporation Ltd (1991) 31 FCR 206 .

Indeed, because of Mr Bryant's misunderstanding that he could litigate some issues in the Supreme Court and other issues in the Federal Court, he took a step in the Supreme Court, namely the amendment of his defence and cross- claim, which had the result that he may now be shut out from litigating the issues which were central to his case against the respondent. At the commencement of the hearing in the Supreme Court, Mr Bryant announced to Levine J that he had commenced proceedings in the Federal Court. He sought leave to amend his defence and counterclaim in the Supreme Court so as to restrict the issues in that Court to one narrow point. Mr Nicholas, who was appearing for the respondent, but who had not seen Mr Bryant's new claim which had not been served, made the following enigmatic statement:-

"We wish to make it clear to the Court that we until this moment have had no forewarning of that and as far as we are aware no process has been instituted which deals with the matters indicated by Mr Bryant. It has this importance, that if the matters which are abandoned by these amendments are raised in some other proceedings then that course will be objected to and defences opened to the plaintiff in these proceedings with regard to certain authorities would obviously be taken."

Mr Bryant would not have understood the point Mr Nicholas was making. Moreover, Levine J, not having the Federal Court proceedings before him, may have been misled. Levine J said to Mr Bryant:-

"... if I allow you to make the amendment the effect is that in these cases you have abandoned them as issues in these cases. It is open to you to institute proceedings in the Federal Court and Mr Nicholas has made clear that in so far as the bank is concerned, all those issues are still and will, even in that court, be vigorously alive and defended."

That was not the point which Mr Nicholas made. On the contrary, Mr Nicholas indicated that issues of res judicata and estoppel would be relied upon. That is in fact what has happened. The statement of claim and application in the Federal Court have been struck out on the motion of the respondent reliance having been placed on the principle discussed in cases such as Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 and Chamberlain v Commissioner of Taxation (1991) 28 FCR 21 . That order is under appeal and we say nothing about it. However the result would appear to be that the substantial issues which Mr Bryant wished to litigate against the respondent had to be litigated in the Supreme Court, if litigated at all.

Ground 11

"His Honour erred at law in the exercise of his discretion pursuant to section 41(6A) of the Bankruptcy Act. In the exercise of his discretion his Honour took into account irrelevant considerations and failed to take into account relevant considerations."

Ground 12

"His Honour erred at law in finding that the prospects of success of the applicant's appeal against the decision of Levine J in the Supreme Court proceedings are very slight. As a matter of law it is not open to His Honour to make such a finding in the exercise of discretion pursuant to section 41(6A) of the Bankruptcy Act."

The trial Judge treated the appeal in the Supreme Court as a proceeding to set aside the judgment in respect of which the bankruptcy notice was issued, a course with which we agree. In determining whether or not to extend the time for compliance, his Honour was obliged to form some view of the prospects of success. We would not disagree with his Honour's finding that the prospects of success were slight, in the light of the very limited issue which Mr Bryant put to Levine J for his determination and the grounds of appeal.

We see no error in the manner in which the trial Judge exercised his discretion. His Honour was bound to take account of the prospects of success and of the period of time likely to pass before the appeal is heard and determined. An appellate court could not review his Honour's exercise of the statutory discretion unless it was satisfied that his Honour erred as a matter of principle or had made an order that was plainly unreasonable. In House v The King (1936) 55 CLR 499 , Dixon, Evatt & McTiernan JJ said at 504-5:-

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

No such error in his Honour's judgment has been demonstrated.

Ground 13

"His Honour erred at law in finding that the bankruptcy notice was properly served. On the evidence available to him His Honour should have found that the evidence of the process server was flawed and that on the balance of probabilities the bankruptcy notice was not delivered personally to the appellant and therefore an act of bankruptcy has not been committed."

Evidence was given by Mr Bryant to the trial Judge that, on 16 January 1994, at 9:00 pm, he arrived at his home and saw a man standing outside the front door. Mr Bryant deposed in his affidavit:-

"Man: 'We did not expect you, I have a paper here to serve on you, I was just explaining to your wife'

Bryant: 'You can't serve me today, it's Sunday, sorry'.

Man: 'That's not right, the rules have been changed'.

Bryant: 'Sorry'.

I then turned and walked back to the side entrance to continue what I was doing before the voices distracted me. I sensed the man following behind as I turned into the side entrance, he continued past me to his car. No further words were uttered, and short time later I heard a car being started and driven away. Later that night at about 10.30 PM I went out to my car via the front door, and found a sheet of paper laying on the ground of the Patio area outside the front door, I picked it up and found it to be a Bankruptcy Notice No. NN 28 of 1994 addressed to me and dated 10 January 1994, the subject of the present application before this Court."

The process server, Mr Colin Girdler, gave evidence, however, that he served Mr Bryant at 5:14 pm. Mr Girdler deposed to the following events, inter alia, after Mr Bryant had arrived home:-

"I then had a conversation with Mr Bryant to the following effect:

JB: 'They're Federal Court papers. You can't serve them on a Sunday.

CG: With respect Mr Bryant, they've changed the law, the Sunday Service of Process Act, 1984.

JB: Anyway, this has to be between the hours of 9.00 and 5.00.

CG: No sir, I have to serve this Bankruptcy Notice now that I've seen you.

JB: Look, you didn't see me.

CG: Sir, I have to serve this now. I'm leaving them.'

I then placed the Bankruptcy Notice at the feet of Mr Bryant. At that time we were about two feet from the front door. Mr Bryant turned and walked along the front of the house and went through an entrance at the side."

Both Mr Bryant and Mr Girdler were cross-examined. The trial Judge preferred the evidence of Mr Girdler. He considered that Mr Girdler's evidence was given confidently and that there was no reason to disbelieve him. The trial Judge considered that Mr Girdler had no personal interest in the outcome of the case while Mr Bryant had such an interest. The trial Judge thought that, having heard both in the witness box, Mr Girdler's version was the more probable.

A finding such as this is based on the demeanour of the witnesses at the trial may not be overturned by an appellate court. In Devries v Australian National Railways Commission (1993), 177 CLR 472, Brennan, Gaudron & McHugh JJ said at 479:-

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact Brunskill (1985), 59 A.L.J.R. 842, 62 A.L.R. 53; Jones v. Hyde (1989) 63 A.L.J.R. 349; 85 A.L.R. 23; Abalos v. Australian Postal Commission (1990), 171 C.L.R. 167. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' S.S. Honestroom v. S.S. Sagaporack, [1927] A.C. 37 , at p.47 or has acted on evidence which was 'inconsistent with facts, incontrovertibly established by the evidence' or which was 'glaringly improbable.' Brunskill (1985), 59 A.L.R.J., at p.844; 62 A.L.R., at p.57."

The general circumstances described by Mr Bryant and Mr Girdler were similar. The issue was whether Mr Bryant said "You can't serve that today" and turned away immediately or whether Mr Girdler's oral evidence should be accepted that Mr Bryant turned away after the notice had been served at his feet. There was no inherent probability as to the one version or the other. But Mr Girdler expressed a clear recollection of the events and his affidavit was a detailed affidavit sworn just over a month after the event. An appellate court could not interfere with the view which the trial Judge had formed in such a case.

Mr Bryant criticised some elements of Mr Girdler's evidence, eg. that he heard "footsteps on stones", whereas the path was not a stone path. But these matters were all minor and peripheral to main issue.

The challenge to the trial Judge's finding that the document was served must fail.

Ground 2 addressed issues of natural justice, procedural fairness and also bias as did Grounds 15, 16 and 17; it will be convenient to deal with them as a group.

Ground 2

"His Honour erred at law in denying natural justice and procedural fairness to the appellant by refusing permission for the appellant to have an assistant sit with him at the bar table during the course of the hearing."

There is no substance in this ground of appeal, as is evident from an examination of the transcript of the proceedings before the trial Judge: See Appeal Book pp52-53. His Honour permitted Mr Bryant's friend or assistant, a Mr Abrams, to take notes; he also explained to Mr Bryant that he could, if he had a need, talk to Mr Abrams about the case during the course of its conduct. But his Honour was entitled, in controlling procedures in his court, to stipulate, as many judges have done, that an unqualified person should not sit at the bar table.

Ground 15

"His Honour erred at law in that during the conduct of the hearing in its entirety His Honour conducted himself in such a manner to raise in the appellant an apprehension that His Honour was biased against the appellant to such an extent that the appellant was denied natural justice."

Ground 16

"His Honour erred at law in (that) during the conduct of the hearing in its entirety His Honour conducted himself in such a manner so as to be procedurally unfair to the appellant who conducted the carriage of his case in person without legal representation. In these circumstances His Honour has a duty at law to afford to the appellant all reasonable opportunity to fully and fairly present his case. His Honour by his conduct during the course of the hearing took positive steps to deny this opportunity to the appellant."

In written memoranda which he handed up during his submissions in support of these grounds of appeal, Mr Bryant identified 73 references in the transcript which, so he claimed, exhibited procedural unfairness on the part of the trial Judge, 20 references to alleged bias and, finally, 8 references which, so he submitted were indicative of pressure being unfairly placed upon him to limit the time of the hearing of the proceedings.

Although it will not be necessary to traverse every one of these allegations, it is desirable to refer to several of them so that the true climate of the proceedings before the trial Judge may be understood.

One of Mr Bryant's first complaints under his headings of "Procedural unfairness" and "Pressure to limit time of hearing" was the statement made, not by his Honour, but by counsel for the judgment creditor at p2 of the transcript line 15:-

"I must say I would not have thought it would be a two hour matter but I think we are very much in the hands of Mr Bryant as to the sort of issues that are going to be ... ".

In fact 6 of the 8 references to "Pressure to limit time of hearing" are references to remarks of counsel for the judgment creditor; a 7th reference (to the whole of p3 of the transcript) encompassed remarks by his Honour, counsel and Mr Bryant during the callover of the list, leaving only one specific extract from the transcript that is fairly attributable to the Judge on this subject. At p52 of the transcript, at the end of the first day of the hearing, his Honour said:-

"I was not hoping that we were going to spend a lot of time tomorrow morning."

Not only was that an uncritical observation, it was an appropriate comment for a busy judge to make, concerned, as he would be, with the needs of other litigants.

There is no justification in Mr Bryant's complaints that his Honour limited the time required for the hearing. Mr Bryant was given an adequate opportunity to present his case.

An example of claimed "Procedural unfairness" was said to be his Honour's comments with respect to Mr Bryant's claim that he had a counterclaim, set-off or cross-demand against the judgment creditor. In an exchange between Mr Bryant and his Honour, Mr Bryant said:-

"... I have filed an action in the Federal Court in relation to that claim."

His Honour replied:-

"You have got to do more than that. At this stage of the proceedings you have got to satisfy me that you do have a set-off of a particular value in a cross-claim or whatever. In other words, it is not enough for you just to assert it."

The remarks of his Honour were a correct statement of the law; there was no question of unfairness to Mr Bryant. His Honour was merely explaining to Mr Bryant the legal principles which had to be applied.

Another example related to his Honour's reaction to an interjection by Mr Bryant. Counsel for the judgment creditor was addressing the court when Mr Bryant said:-

"I object your Honour. This is irrelevant."

His Honour said:-

"Could you ask Mr Abrams not to make suggestions like that. There is nothing you can object to. I am just being told some facts."

The objection was correctly rejected. The facts being explained to his Honour were material.

Mr Bryant claimed that another example of "Procedural unfairness" appeared at page 10 of the transcript, at lines 5 and 9. It is not apparent from a reading of the transcript how any issue of unfairness could be teased out of the remarks of his Honour. Quoting lines 5 and 9 alone would be meaningless but the following extract, which commences at line 2 and concludes at line 13, at least contains sufficient information to identify the subject that was being addressed by the trial Judge:-

"His Honour: Can I say this: what is difficult for me is, without the documents, I really do not know what you are talking about. I mean, you tell me a judgment was entered on a particular day but the documents are apparently in that file. If I had the documents - and I want you to look at them first and see if there is anything in there I should not see.

Mr Bryant: Right

His Honour: But if I have those documents it will all become a lot clearer to me. Do you follow?

Mr Bryant: Thank you, your Honour.

His Honour: Now, let us go on and let Mr Abrams look at the documents for a moment. Is there anything else you want to say?"

It is impossible to construe from these remarks any statement or attitude that might be classified as unfair. His Honour understood, as Mr Bryant did not, that unless the documents were admitted into evidence and unless they disclosed material in Mr Bryant's favour, Mr Bryant's application must fail.

Other examples of alleged "Procedural unfairness" were said to be observations made by his Honour, during the course of argument, first, to the effect that he saw no reason why he should not accept the evidence of the process server and, then, that he was not assisted by the presentation by Mr Bryant of an affidavit of solvency. Again, such observations by a judge during the course of a trial are quite proper and quite routine. Because they express views that are, or might be, adverse to the interests of one of the parties, that is no cause to make a claim of unfairness.

The above summary is not intended to be exhaustive of the allegations that have been made with respect to this issue of natural justice or procedural fairness but they are reasonably representative of the approach that Mr Bryant has taken. It is clear that Mr Bryant regards any observation by the Judge which contradicted the view which he put as some form of unfair authoritarian conduct that he chooses to call "Procedural unfairness". Nothing could be further from the truth. During the course of the hearing, in the court below, his Honour was at pains to explain to Mr Bryant the weaknesses in his case and the reasons why his Honour could not accept his submissions. His Honour adjourned the hearing overnight so that documents could be tendered which might throw light upon the underlying facts, as Mr Bryant's affidavit had failed to do. That cannot constitute procedural unfairness.

Similarly, the allegations of bias have no merit. It is the obligation of a judge in the conduct of any proceedings that are before him to act in such a manner as to "ensure both the appearance and the substance of fairness and impartiality" (Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 299). Earlier in Re Judge Leckie, Ex parte Felman (1978) 52 ALJR 155 at 158, Gibbs J (as he then was) said that any suspicion that a Judge will act unfairly must "... be a suspicion that a right-minded person would form. An irrational and groundless suspicion is not enough".

In the present case, there is no material before the Court that is or might be suggestive of unfairness or partiality on the part of the trial Judge.

Ground 17

"His Honour erred at law in refusing permission for the appellant to record the proceedings and in so refusing permission His Honour denied the appellant procedural fairness."

There is no substance in this ground of appeal; his Honour advised Mr Bryant that a transcript of the proceedings would be available and that, if his circumstances were appropriate, an order for remission of relevant fees would be made.

All the grounds of appeal therefore fail. The appeal must be dismissed with costs.