Barrister Stephen John Archer/ 3 times Bankrupt

What trustee did these Bankruptcies????????????????

[Home] [Databases] [WorldLII] [Search] [Feedback] Federal Magistrates Court of Australia

You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2012 >> [2012] FMCA 81

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

---

The Council Of The New South Wales Bar Association v Archer [2012] FMCA 81 (13 February 2012)

Last Updated: 15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v ARCHER

[2012] FMCA 81

BANKRUPTCY – Contested Creditor’s Petition – question of effectiveness of service of Bankruptcy Notice by email pursuant to regulation 16.01(1)(e).

Bankruptcy Act 1966 (Cth), s.44 Electronic Transmissions Act 1999 (Cth), s.14 Evidence Act 1995 (Cth), s.136 Legal Profession Act 1987 (NSW), ss.27, 51, 155, 171 E Legal Profession Act 2004

(NSW), ss.556(1), 696

Bankruptcy Regulations 1996 (Cth), regulations 16.01
Federal Court Rules, O.42, r.2
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.4.06
Legal Profession Regulations 2005 (NSW)

American Express Australia v Michaels [2010] FMCA 103; (2010) 237 FLR 268 Carantinos v Magafas [2009] FCA 627 Conrad v The Owners of Strata Plan 2795 [2011] FMCA 389 Deputy Commissioner of Taxation v Gadaleta [1999] FCA 923 Deputy Commissioner of Taxation v Voyka [2008] FMCA 67 Drake v Stanton [1999] FCA 1635 Satchithanantham v Multilink Investments Pty Ltd [2002] FCA 1277 Skalkos v T&S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 T & S Recoveries Pty Ltd v Skalkos [2004] FCA 816 The Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 The Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214 The Council of the New South Wales Bar Association v Archer (No 13) [2010] NSWADT 90 The Council of the New South Wales Bar Association v Edey [2006] FCA 254 Topalides v Edey [2011] FMCA 556 Troy & Co v Cameron [2002] FMCA 42 Van der Munnik v Stewart [2010] FMCA 116 Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 Australian Bankruptcy Law and Practice, McQuade, Gronow 6th edition

Applicant:

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION

Respondent:

STEPHEN JOHN ARCHER

File Number:

SYG 526 of 2011

Judgment of:

Lloyd-Jones FM

Hearing date:

4 August 2011

Delivered at:

Sydney

Delivered on:

13 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr C.D. Wood

Solicitors for the Applicant:

Hicksons, Lawyers

Counsel for the Respondent:

Mr M. Hall

Solicitors for the Respondent:

Colin Biggers & Paisley, Lawyers

ORDERS

(1) A sequestration order be made against the estate of Stephen John Archer.
(2) The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
(3) These orders are conditional upon the applicant filing updating affidavits under Federal Magistrates Court Bankruptcy Rules 2006 (Cth) r.4.06 to the satisfaction of a Registrar at the time of entry of these orders.
(4) The applicant must enter and give a copy of this order to the Official Receiver within two working days.

THE COURT NOTES that the date of the act of bankruptcy is 29 September 2010.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON

SYG 526 of 2011

THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION

Applicant


And

STEPHEN JOHN ARCHER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a sequestration order. The creditor’s petition was filed on 22 March 2011 with supporting affidavit material. On 29 April 2011 a notice of opposition was filed, again with supporting affidavit material. The first return date was 5th March 2011 and by consent the matter was adjourned to 14th June 2011 for the allocation of a hearing date. On that date Registrar Hedge transferred the matter to this Court. Orders were made in respect of the filing and serving of any subpoenas and the preparation of outlines of submissions. The matter was listed for final hearing on 4 August 2011 before this Court.

Background

2. In setting out the following background material I have either paraphrased or quoted directly from the written or oral submissions of Misters Wood and Hall. I have not made further direct attribution as this would make the summary unwieldy. The information was provided to assist in understanding the nature of the application and not to establish any evidentiary point.
3. The respondent to this application, Stephen John Archer has been bankrupt three times. The Council of the New South Wales Bar Association (the “Bar Council”) brought an action to remove Mr Archer’s right to practice law, alleging that he had improperly used bankruptcy to avoid paying taxes. A costs order in an appeal from those proceedings formed the basis of the alleged act of bankruptcy in this matter.
4. Mr Wood, in his opening, indicated that some of the issues raised in the notice of opposition filed on 29 April 2011 had fallen away. Mr Wood submits that the matter really falls to be determined on the one issue, the truth as to the date of the act of bankruptcy set out in the petition. Mr Archer accepts that he got the bankruptcy notice on a number of occasions within the 6 months prior to the issue of the creditor’s petition, but he has not yet paid the amount specified in the bankruptcy notice. Mr Wood advised the Court that an application to amend the creditor’s petition may be made if it is necessary and indicated that he had an interim application covering this issue which he sought to file in Court, however he indicated that it may be more appropriate to deal with that application in the course of submissions for two reasons. The first reason is the date of service depends on the evidence given by Mr Archer during cross-examination. The second reason is that the Bar Council has a appropriate standing under s.44 of the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”) to bring this application as a creditor.
5. Mr Wood indicated that Mr Archer had been bankrupt a number of times and it is in connection with those bankruptcies that the Bar Council brought the action. Mr Wood handed up a copy of the decision of the Administrative Decisions Tribunal in The Council of the New South Wales Bar Association v Archer (No.13) [2010] NSWADT 90. It was from within those proceedings which ultimately resulted in Mr Archer’s name being removed from the roll. In those proceedings there was an interlocutory fight about the production of documents and the Bar Council appealed a decision of the Administrative Decisions Tribunal (“ADT”) requiring it to produce documents, claiming a statutory prohibition on production and it was successful. The Court of Appeal made a costs order against Mr Archer. Those costs were assessed and it’s a judgment that followed from that assessment that is the judgment that underpins the bankruptcy notice in the present proceedings.

Evidence

6. Mr Wood read the following evidence:

a) The affidavit of Alan William Blanch sworn 17 June 2011;

2. The affidavit of Alan William Blanch sworn 22 March 2011 (affidavit of service). In paragraph 7 the following words were not read: “On 7 October 2010”;

c) The affidavit of Tamara Sherif sworn 26 March 2011;

4. The affidavit of Peter Miltenyi sworn 29 March 2011 (affidavit of service of creditor’s petition);

e) The affidavit of Tamara Sherif sworn 3 June 2011; and

6. Exhibit A1 – bundle of documents. A ruling under s.136 of the Evidence Act 1995 (Cth) was made that the documents were not used as proof of facts that they assert other than the dates and the email addresses of the various correspondence.

7. Mr Hall read the following evidence:

a) The affidavit of Stephen John Archer sworn 17 April 2011;
b) The affidavit of George Livanes sworn 11 May 2011;
c) The affidavit of Stephen John Archer sworn 18 May 2011; and
d) The affidavit of Stephen John Archer sworn 24 June 2011. Paragraphs 1, 2, 5, 6, 7 and 8 were read.

Examination of Stephen John Archer

8. In evidence in chief, Mr Archer gave the following evidence:
   • Mr Hall: Have you sworn three affidavits in these proceedings?
   • Mr Archer: I have.
   • Mr Hall: To the avoidance of doubt, I might say filed in Court on 29 April 2011, 19 May 2011 and 24 June 2011, respectively?
   • Mr Archer: I have.
9. In cross-examination the following evidence was given:
   • Mr Wood: Mr Archer, you accept, I think in your evidence, that from time to time you communicated with – the Administrative Appeals Tribunal and Mr Blanch?
   • Mr Archer: Yes I do accept that.
   • Mr Wood: I want to show you a series of documents...do you see reference to “Stephen Archer” towards the top of the document?
   • Mr Archer: I do.
   • ...
   • Mr Wood: And is this an email that was sent by you to Mr Blanch on 14 September 2009?
   • Mr Archer: It is.
   • Mr Wood: And was that sent in connection with the proceedings in the Administrative Decisions Tribunal?
   • Mr Archer: Yes it was.
   • Mr Wood: Could I show you another document which is an email dated 16 November 2009?
   • ...
   • Mr Wood: This 16 November email I’ve shown you, is that an email from you to the Deputy Registrar of the Administrative Decisions Tribunal?
   • Mr Archer: Yes.
   • ...
   • Mr Wood: Yes. And what’s the balance of the page?
   • Mr Archer: The balance of the page is an email from the Administrative Decisions Tribunal to Mr Blanch and to me.
   • Mr Wood: And does that record that you received that email at the address essayarcher@bigpond.com and that you responded to it?
   • Mr Archer: Yes it does.
   • Mr Wood: Can I show you an email dated 17 November 2011 – sorry – 2009. Is the top 30 percent or so of the page recording an email from you to someone at the New South Wales Government and Mr Alan Blanch on 17 November 2009?
   • Mr Archer: Yes it is. It’s to the Administrative Decisions Tribunal, copied to Mr Blanch.
   • Mr Wood: I see. And the portion below, that begins at about point 4 on the page, that starts with the heading Original Message, does that record an email that was sent by Christine Skinner of the Administrative Decisions Tribunal to you on 17 November 2009?
   • Mr Archer: It does.
   • Mr Wood: And you received that email and responded to it, I take it?
   • Mr Archer: I did.
   • Mr Wood: And, just to clarify, the portion at the – that falls below it, 16 November 2009, towards the bottom of the page, is that the email I was asking you about a few moments ago when you had an email exchange with the Administrative Decisions Tribunal?
   • Mr Archer: It is.
   • Mr Wood: Show you an email dated 17 December 2009. Is this an email – at the very top of the document, about the first 20 percent, does it record an email from you to Mr Blanch on 17 December 2009?
   • Mr Archer: It does.
   • Mr Wood: And that’s an email that was sent by you from the address essayarcher@bigpond.com?
   • Mr Archer: It is.
   • Mr Wood: And is the balance of the page a recording of an email sent by Mr Blanch to you on 17 December 2009?
   • Mr Archer: It is.
   • Mr Wood: And that was sent to you at the essayarcher@bigpond.com address and you respondent to it; is that right?
   • Mr Archer: That’s right.
   • Mr Wood: And a last document, if I may, does this document record an email sent by you to Mr Blanch on 1 February 2010?
   • Mr Archer: Yes, it is that document.
   • ...
   • Mr Wood: Can I show you a document Mr Archer, which is Annexure B to an affidavit of Alan Blanch dated 22 March 2011. And – do you see that document?
   • Mr Archer: Yes.
   • Mr Wood: And I think you’ve addressed this document in some of your affidavit evidence in reply; is that right?
   • Mr Archer: I haven’t addressed it specifically by reference to this document, but I’ve addressed the question of my first having seen this document.
   • Mr Wood: ... I think it’s a fair summary of your evidence, isn’t it, that at some point you did come to see that email in the email account essayarcher@bigpond.com; is that right?
   • Mr Archer: That’s so.
   • Mr Wood: And that happened because you went on to the email system and accessed it, if I can put it that way; is that correct?
   • Mr Archer: It happened when I accessed it ...
   • Mr Wood: Yes?
   • Mr Archer: ... and I saw it at that time.
   • Mr Wood: ... I show you another document, which is Annexure “H” to the affidavit of Tamara Sheriff, 3 June 2011. Could you please just take a moment to familiarise yourself with that page and the following page. You accept, don’t you, that those documents record amounts that you were ordered to pay in connection with the costs orders made in the Court of Appeal, don’t you?
   • Mr Archer: I do accept that.
   • Mr Wood: And you accept that you [are] indebted to the Council of the New South Wales Bar Association for those amounts, don’t you?
   • Mr Archer: That I’m now indebted for those amounts?
   • Mr Wood: Yes?
   • Mr Archer: No, I don’t.
   • Mr Wood: Because you – you say that because of the payments that you’ve made since?
   • Mr Archer: Yes.
   • Mr Wood: Taking into account the payment that you made on or about 10 January 2011 for $2500 and the payment you made on or about 4 February 2011 for $2500, do you accept that you’re indebted to the Council of the New South Wales Bar Association for those amounts?
   • Mr Archer: Yes.
   • Mr Wood: No further questions.

Submissions

10. In the Notice Stating Grounds of Opposition filed on 29 April 2011 Mr Archer indicated that he intended to oppose the petition on the following grounds:
    1. The bankruptcy notice relied upon by the applicant was not served on the respondent on 8 September 2010, as alleged in the petition, or at all.
    2. The respondent has not committed an act of bankruptcy alleged in the petition or any act of bankruptcy.
    3. The applicant does not have a separate legal personality and is not entitled to commence or maintain these proceedings in this Court.
11. Mr Wood indicated that he intended to make the following submissions:
    1. That the primary case is that service occurred upon the sending of the email, and;
    2. The question of standing.

Mr Wood indicated to the Court that other issues had been flagged in the written submissions in respect of the question of understatement but that was no longer pressed and that there was the issue of alternative service which involved the question of the last know address and the question of amendment but these issues depended on the outcome of the primary issue. Mr Wood and Mr Hall were in agreement that the above list essentially circumscribed the issues at stake between the parties.

Question of Standing

12. Mr Hall referred the Court to s.696 of the Legal Profession Act 2004

(NSW) (the “2004 Act”) which sets out the functions of the Bar Council. Mr Hall submits that based on this material the Bar Council does not exist as a legal entity as it is not a body corporate, nor a natural person, or otherwise a legal person that would have standing and unless standing is specifically conferred upon it by some means. The Bar Association is such a body, it is a body corporate, continuing to exist by reason of the 2004 Act. The Association has standing to take any act that a legal person can take unless there is some particular statutory prohibition upon it doing so.

Mt Hall submits that the 2004 Act, like its predecessor, distinguishes between those functions which are to be carried out by the Bar Association and those to be carried out by the Bar Council. Conferred on the Bar Council are certain limited, enunciated powers as to what it can and cannot do, and those are found, relevantly, entirely within s.696. Mr Hall acknowledges and draws to the Court’s attention that the wording of the section is very open. In respect to its other functions a careful review of the 2004 Act has not disclosed that there are other functions, however, if there are, they do not relate to the enforcement of debts against debtors as that is dealt with entirely within s.696. This section, like its predecessor, in the earlier Act specifically permits the Bar Council to institute proceedings in certain circumstances, and relevantly subsections (b), (c) and (d) all relate to the Bar Council having standing to appear in the Courts of the State. The subsections permit proceedings for specific and identified purposes such as (c):

• Proceedings for a breach of a provision of this act, the regulations, or the Legal Professional Rules

Then subsection (e) provides a specific power for the Bar Council to recover debts owed to the Bar Association where those debts are due and payable under the 2004 Act or the Legal Profession Regulations 2005 (NSW).

14. Mr Hall submits that apart from these limited powers the Bar Council does not have standing and any appropriate action would have to be taken by the Association which is the legal entity. The critical difference between the matter before this Court and the case relied on by Mr Wood of The Council of the NSW Bar Association v Edey [2006] FCA 254 is that in that case the costs order that was the subject of the dispute before the Federal Court was a costs order made in the ADT taken by the Council in the preceding section to s.696(1)(c). There was no question that the Bar Council had standing to appear in the proceedings in which the costs order had been made and his Honour Edmonds J was satisfied that they also had standing in respect of the matters which were properly incidental to that permitted purpose.
15. Mr Hall argues that the matter before this Court is not such a case. The debt that is relied upon here arises purely from a costs order made in proceedings in the NSW Court of Appeal (question arises whether those proceedings were properly constituted given the limitations provided by the section). The question before this Court is whether anything found within s.696 or elsewhere in the 2004 Act gives authority to the Bar Council, as distinct from the Bar Association, to initiate proceedings by creditor’s petition to recover a debt when there is no accusation that that is a debt that arises under the Act or its Regulations and therefore falls within s.696(1)(e).
16. Mr Hall contends that the other significant distinction between the matter before this Court and that in Edey (supra) is that the only dispute in that case was effectively as to the proper description of the Bar Council in the initiating process. A slight complication in Edey (supra) was that the respondent was not the debtor but was a person who had previously acted, but had ceased to act, as a trustee for the debtor under a Part X arrangement, and therefore submissions were received on behalf of the debtor. The argument mounted in Edey (supra) was that it was accepted that the Bar Council could proceed but the individual members of the Bar Council at that time ought to have been named as plaintiffs. Edmonds J found that this was not necessary. A partnership can sue in the partnership’s name even though it is not a legal person. His Honour referred to the regulations to make that proposition good.
17. Mr Hall submits that, in those circumstances, if a party wins a case against a partnership which sues in its own name, the judgment received for costs that are awarded to the successful party is enforceable against the individual partners because the regulations make clear that the partnership is not suing in its own name, but on behalf of the individuals. Mr Hall submits that the individual members of the Bar Council as at September 2010 should have been named as individual practitioners. However, Mr Hall indicated that he was making a very different submission to the one that appears not to have been raised in Edey (supra) which is that the Bar Council cannot do anything that requires legal personality unless it receives authority for that from the Act and it has received no authority to engage in these proceedings. The proceedings ought, if they were to be brought at all, to have been brought by the Bar Association which is the organisation which does have legal standing and which could have sough to initiate an action in this Court.
18. Mr Wood referred the Court to the affidavit of Tamara Sherif affirmed 3 June 2011 at paragraphs 21 – 31 as the background to the proceedings brought by the Bar Council:
    • 21. In paragraph 15 of Mr Archer’s First Affidavit, Mr Archer claims that the Bar Council has no separate legal personality.
    • 22. On 9 October 2003 the Bar Council commenced the ADT Proceedings against Mr Archer for professional misconduct relating to failure to pay income tax and sought to have Mr Archer’s name removed from the Roll. Those proceedings were commenced by the Bar Council pursuant to section 155(2) of the Legal Profession Act 1987 (NSW).
    • 23. On Mr Archer’s application, the ADT issued a summons to the Bar Council ordering production of certain documents. The Bar Council produced some of those documents but withheld other documents on the basis that it was not compellable to produce those documents by operation of section 171R of the Legal Profession Act 1987.
    • 24. On 5 April 2007 Mr Archer applied to the ADT for interlocutory orders that the Bar Council produce all of the documents specified in the summons. On 17 September 2007 the ADT ordered the Bar Council to produce some but not all of the documents withheld by it. That order was made in the ADT proceedings described in paragraph 22.
    • 25. The Bar Council appealed the interlocutory orders made by the ADT pursuant to section 119 of the Administrative Decisions Tribunal Act 1997 (NSW), which provides for appeals on questions of law. The appeal was commenced in and heard by the New South Wales Supreme Court, Court of Appeal. In pursuing that appeal, the Bar Council was exercising its functions under section 155(2) of the Legal Profession Act 1987 (NSW).
    • 26. On 18 July 2008 the Court of Appeal allowed the appeal and set aside the order of the ADT requiring the Bar Council to produce the balance of the documents specified in the summons. The Court of Appeal also ordered Mr Archer to pay the Bar Council’s costs of the appeal and application for leave to appeal: Council of the New South Wales Bar Association v Archer [2008] NSWCA 164.
    • 27. On 13 November 2009 the ADT found Mr Archer guilty of professional misconduct: Council of the New South Wales Bar Association v Archer (No 12) [2009] NSWADT 283.
    • 28. On 5 February 2009 the Bar Council filed an application for assessment of party/party costs in relation to the costs payable by Mr Archer pursuant to the costs order of the New South Wales court of Appeal on 18 July 2008.
    • 29. On 4 June 2009 the Costs Assessor issued:
      • (a) a Certificate of Determination of Costs in favour of the Bar Council in the amount of $44,304.40. Annexed hereto and marked “h” is a copy of the Certificate of Determination of Costs dated 4 June 2009; and
      • (b) a Certificate of Determination of Costs of Costs Assessment in favour of the Bar Council in the amount of $2,156.61. Annexed hereto and marked “I” is a copy of the Certificate of Determination of Costs of Costs Assessment dated 4 June 2009
    • (the “Certificates”)
    • 30. The Certificates were registered and entered as judgments in the District Court of New South Wales on 15 July 2009. The judgments and the Certificates record the Bar Council as the Applicant.
    • 31. The Bankruptcy Notice issued to Mr Archer arises from the Certificates registered as judgments in the District Court of New South Wales.
19. The Legal Profession Act 1987 (NSW) confers upon the Bar Council numerous statutory functions including:
    1. The power to institute proceedings in the ADT against a legal practitioner for unsatisfactory professional conduct or professional misconduct (s.155);
    2. The power to take disciplinary action in relation to the conduct of a barrister (s.51);
    100. The power to issue practice certificates to barristers (s 27).
20. The 2004 Act (NSW) confers upon the Bar Council similar functions, including the power to recover a debt due to the Bar Association any moneys payable to the Bar Association under the 2004 Act or the Legal Profession Regulations 2005 (NSW) (see s.696 of 2004 Act).
21. Mr Wood contends that Edey (supra) is on point and payable to the creditor. In that case a debtor barrister argued that the Bar Council was not the proper entity capable of maintaining a creditor’s petition in circumstances where the Bar Council pursued a barrister pursuant to a costs order that had been made. The application was one to set aside an authority given by the debtor barrister to a Mr Edey to act as his controlling trustee under Part X of the Bankruptcy Act. His Honour Edmonds J dealt with the issue of whether the Bar Council could bring a creditor’s petition and observed in his decision at [22] – [26] (see below at [26]).
22. Mr Wood argues that it’s clear from Edey (supra) and Wentworth v NSW Bar Association [1992] HCA 24; (1992) 176 CLR 239 that even if the Bar Council is not the proper entity, it may nevertheless bring a creditor’s petition against the debtor. Mr Woods submits that there is a tacit acceptance of the proposition that his Honour Edmonds J has determined that because of the way the 2004 Act has been set up and because of the way it specifically empowers the Bar Council to take certain actions to obtains costs orders in its favour and to enforce other costs orders, that the line of distinction that is sought to be drawn between proceedings in the ADT in the exercise of one of the functions given to the Bar Council under statute and an appeal from a decision of that Tribunal. Mr Wood submits that in the proceedings before the Court of Appeal the Bar Council was exercising its statutory function given to it for the discipline of barristers and the appeal arose from those disciplinary proceedings. The Court of Appeal proceeded on the basis that the Bar Council had standing to bring that appeal and granted an order that the Bar Council have the benefit of the costs order. The particular issue was addressed by his Honour Edmonds J at [26] where he says:
    • The fact that the Bar Council is not a separate legal entity does not deny its standing as a creditor for the purposes of the Act ... A partnership is not a legal entity separate from its partners and yet it may be a creditor for the purposes of the Act. ...
23. The point is whether someone has standing within the meaning of s.44 of the Bankruptcy Act as a creditor and that point does not turn on and is not connected to whether or not it is a separate legal entity. His Honour made specific reference to the powers under s.556(1) of the 2004 Act and s.171 E of the Legal Practitioners Act 1987 (NSW) which specifically gave the Tribunal powers to make costs orders in favour of the Council. His Honour Edmonds J was dealing with the situation where the ADT had a specific power to make that costs order and made it and it was found that that was sufficient.

Consideration Standing

24. The matter to be considered first is the question of whether the Bar Council has standing to be a petitioner before this Court. The issue in respect of the participation of the Bar Association and Bar Council together with the Bar Council’s right of appearance was comprehensively addressed in the High Court decision of Wentworth (supra). The relevant legislation under which that decision was made was the Legal Profession Act 1987

(NSW) s.51:

• 51 Functions of Bar Council
• (1) In addition to its other functions, the Bar Council may:
  • (a) take such steps as in the opinion of the Bar Council may be necessary or proper for or with respect to the conduct of a barrister or conduct that is, or may be, a contravention of a provision of Part 3A, and
  • (b) appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers.
• (2) The Bar Council may delegate to any of its committees or to an officer of the Bar Council the exercise of any of the Bar Council’s functions under this Act, other than this power of delegation.

Under the 2004 Act s.696 the function of the Bar Council has been expanded:

696 Functions of Bar Council
(1) In addition to its other functions, the Bar Council may:
...
(b) appear by barrister or solicitor before, and be heard by, the Supreme Court in the exercise of the functions of the Supreme Court under this Act or otherwise in relation to barristers or locally registered foreign lawyers registered by the Bar Council, and
(c) institute prosecutions and other proceedings for the breach of any of the provisions of this Act, the regulations or the legal profession rules, and
(d) appear by barrister or solicitor before, and be heard by, any court in any matter affecting the Bar Association or its members or in which the Bar Association is concerned or interested, and
(e) recover as a debt due to the Bar Association any money payable to the Bar Association under this Act or the regulations.

25. In Wentworth (supra) Brennan J stated:
    • ... I am in agreement with the reasons of Deane, Dawson, Toohey and Gaudron JJ for dismissing this appeal, subject to a qualification.
    • I entirely agree that, in admission and disciplinary proceedings, the procedure is entirely in the hands of the court subject only to statutory directions and the requirements of procedural fairness. That being so, the court is entitled to seek and to receive assistance from such persons as, in the opinion of the court, are capable of providing it. I do not find in s 51(b) of the Legal Profession Act 1987 (NSW) any express or implied inhibition against the Supreme Court’s practice of granting leave to the New South Wales Bar Association (the Association) to appear to assist the court in admission and disciplinary proceedings. Indeed, in some respects the Association, which is incorporated as a company limited by guarantee, is a more suitable party to such proceedings than the Bar Council. An order for costs made at any stage of a proceeding can be enforced directly against the Association; the changing membership of the Bar Council and the personal liability of Council members make an order for costs against the Bar Council a less satisfactory remedy. The Association, as the continuing entity representative of the practising Bar, prescribes and enforces the ethical standards of the profession. These factors do not diminish the importance of the Bar Council’s statutory right to appear in admission and disciplinary proceedings. Rather, they indicate that the Bar Council, which has the powers of a board of directors of the Association, is in a position to determine whether the more appropriate course in a particular case is to exercise its right to appear or to seek leave for the Bar Association to appear. To limit the court’s discretion to grant leave to the Bar Association to appear is, in my respectful opinion, neither required by the provisions of s 51(b) nor consistent with the notion that the court can determine its procedure according to its perception of the most appropriate course in the particular case.
    • I respectfully agree with their Honours that the Bar Council, if it were to appear in the proceedings, or the Bar Association is at liberty to adduce whatever relevant and admissible evidence is available to it, to cross-examine and to make such submissions to the court as are calculated to assist it ...
26. The authority advanced by Mr Wood is Edey (supra). His Honour Edmonds J said at [20] – [28]:
    • [20] At a directions hearing on 6 March 2006 before Bennett J, the issue of the standing of the Bar Council was raised for the first time on behalf of Mr Abdul-Karim. It was submitted at that hearing that the Bar Council was not an entity known to law capable, in relation to the relevant judgment debt relied upon by it in the creditors’ petition proceedings, to commence and maintain the proceedings in its name without description of the identity of the constituent members of the Bar Council.
    • [21] Proceedings on the creditors’ petition are currently stayed under s 189AAA of the Act, but the standing issue was raised again by counsel for Mr Abdul-Karim on the hearing of the Bar Council’s present application. In short, it is said that the Bar Council’s lack of standing as a party bringing this application should lead to its dismissal.
    • [22] The different status and standing of the New South Wales Bar Assn on the one hand and the Bar Council on the other was the subject of observation in the joint judgment of Deane, Dawson, Toohey and Gaudron JJ in Wentworth v NSW Bar Assn [1992] HCA 24; (1992) 176 CLR 239 at 248:
      • The Bar Association is a company limited by guarantee. Its articles of association provide for “a Council of the Association” [Article 45] and for its business to “be managed by the elected members of [that] Council” [Article 61]. It is that Council, constituted by its elected members, which functions as the governing body of the Bar Association and which has been referred to as “the Bar Council”. The Bar Council has no separate legal identity but, as will later appear, it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar.
    • [23] In his written submissions, counsel for Mr Abdul-Karim submitted that the New South Wales Bar Assn is not an entity having the benefit of the order for costs relied upon by the Bar Council to establish standing as a creditor nor is it or does it purport to be the applicant in the present proceedings. So much may be accepted even though the terms of the certificates certifying the orders made by the Administrative Decisions Tribunal on 17 June and 3 September 2003 which were produced by the Bar Council in response to a notice to produce might suggest that the costs orders were in favour of the Bar Assn and not the Bar Council. The first certificate reads:
      • 2. That Michael Saadey Abdul-Karim pay the costs of the Association of these proceedings in the sum of $33,300.
      • The second certificate reads:
      • 3. That Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792.
    • Both certificates show the applicant as being The Council of the New South Wales Bar Assn and, in my view, the reference to ‘the Association’ in O 2 of the first certificate and the reference to ‘the Bar Assn’ in O 3 of the second certificate should be read as being shorthand references to The Council of the New South Wales Bar Assn, in other words, the Bar Council, and not the Bar Assn itself. In any event, that is how I propose to read them. Such a reading is consistent with the terms of s 566(1) of the Legal Profession Act 2004 (‘the LPA’) (s 171E of the Legal Profession Act 1987 (NSW)) which provides:
      • (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
    • The term ‘Council’ is defined in s 4 of the LPA to mean ‘the Bar Council or the Law Society Council’.
    • [24] Indeed, counsel for Mr Abdul-Karim said there was no dispute that there is a debt owing to the Bar Council. What is disputed, he submitted, is the standing of the Bar Council to bring a proceeding in this Court as a creditor in the name of the Bar Council, rather than in the names of its identified constituent members.
    • [25] There is no doubt, indeed it seems to be common ground, that the Bar Council has standing under the LPA, notwithstanding it is not a legal entity separate from the Bar Assn, which enables it to be the beneficiary of a Tribunal costs order. Mr Abdul-Karim in his statement of affairs and, through his counsel, on the hearing of the present application, has conceded that he is indebted to the Bar Council for an amount in respect of such costs orders; clearly, the Bar Council is a creditor in the sum of those amounts, has obtained final judgments in respect thereof and Mr Abdul-Karim has committed acts of bankruptcy.
    • [26] That is enough to provide this Court with jurisdiction to make a sequestration order against the estate of Mr Abdul-Karim on a petition presented by the Bar Council: See s 43(1) of the Act. The fact that the Bar Council is not a separate legal entity does not deny its standing as a creditor for the purposes of the Act; cf, s 30(1) of the Administrative Appeals Tribunal Act 1975 (Cth): Arnold v Queensland [1987] FCA 148; (1987) 73 ALR 607 at 611 per Wilcox J. A partnership is not a legal entity separate from its partners and yet it may be a creditor for the purposes of the Act. So much is implicit in s 82(1) of the Act which provides:
      • Subject to the Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.
    • [27] Moreover, under O 42 r 2 of the Federal Court Rules, an action by two or more persons claiming as partners who carry on business in partnership within Australia may be brought in the partnership name. Applying the same facilitation, there seems no reason why an action by the constituent members of the Bar Council, claiming as such, may not be brought in the name of the Bar Council, particularly where the debt arises out of the performance by the Bar Council of the statutory functions and duties vested in it by the LPA.
    • [28] It follows that I decline to dismiss the application on the ground of the Bar Council’s standing.
27. In the Judgment/Order issued by the District Court of New South Wales, Sydney Registry Case No. 3085 of 2009 on 26 October 2009 the plaintiff is listed as “Council of the New South Wales Bar Association” (affidavit of service of Creditor’s Petition of Peter Miltenyi sworn 29 March 2011 Annexure C p. 8).
28. The learned authors of Australian Bankruptcy Law and Practice, McQuade, Gronow 6th edition in their commentary on the operation of s.44 “Conditions on which Creditor may petition” lists a numbers of categories of potential petitioners and the most appropriate category is “partners”:
    • “where a firm consists of several members as recovered, in the firm’s name, judgment against a debtor, the fact that a member has since retired does not prevent a petition being presented in the firm’s name: re Hill; ex parte Holt & Co [1921] 2KB 831”.

His Honour Edmonds in Edey (supra) at [27] characterised the Bar Council as a partnership falling within the operation of the Federal Court Rules O. 42 r. 2 (as it was at the relevant time).

29. In the proceedings The Council of the New South Wales Bar Association v Archer [2008] NSWCA 164 per Hodgson JA, Campbell JA and Handley AJA being an appeal from the Administrative Decisions Tribunal (The Council of the New South Wales Bar Association v Archer (No 9) [2007] NSWADT 214) the issue of standing of the Bar Council was not ventilated. As a consequence of those proceedings a costs order was awarded to the Bar Council which the Bar Council is entitled to recover. I am satisfied that the Bar Council has standing in these proceedings.

Email Service

30. Mr Wood submits that the rules now permit email service by electronic transmission; either by a facility maintained by the person for receipt of electronically transmitted documents or in such a manner that the documents should, in the ordinary course of events, be received by the person. Mr Wood indicated that he relied on both limbs of reg. 16.01(1)(e) of the Bankruptcy Regulations 1996 (Cth). Mr Archer in cross-examination accepted that he used the email address to which this bankruptcy notice was sent. There was a chain of correspondence (Exhibit A1) where he was dealing with his opponents in his disciplinary proceedings. However, Mr Archer in his affidavit of 27 April 2011 states that he stopped using the address essayarcher@bigpond.com as his primary email address at some point in about August 2010.
31. In his affidavit of 27 April 2011 at paragraph 5, Mr Archer states:
    • After late August 2010, although I still had access to my wife’s email address, I had no occasion to, and did not, access it regularly. Perhaps once a week I would access to ensure that I had not missed any email of any consequence. Most of the emails that continued to be sent to that address were “junk” such as daily posts from newspapers for which I had been trying unsuccessfully for some time to “unsubscribe” and advertising material from organisations such as Borders.

In oral evidence Mr Archer confirmed that he actually did go on and check the email system in order to obtain the email that contained the bankruptcy notice. Mr Wood argues that this evidence supports his contention that Mr Archer had received the bankruptcy notice in the ordinary course because all that is needed to make out service under reg. 16.01(1)(e) is that to be sent in the ordinary course and for it to be received. Mr Wood contends that it is irrelevant whether Mr Archer went in to a “junk email box”, or whether he did not check it very regularly, or that his wife was the primary user of the account. He did receive the bankruptcy notice in the ordinary course and that has been established.

32. On each of the emails Mr Archer’s name is recorded in the document as either sender or recipient:
    1. Exhibit A1:

(i) From: Stephen Archer [essayarcher@bigpond.com]
Sent: Monday, 14 September 2009 8:53 AM
To: Alan Blanch
Subject: nsw bar association v archer
(ii) From: Stephen Archer [essayarcher@bigpond.com]
Sent: Monday, 16 November 2009 6:23 PM
To: ag_adt@agd.nsw.gov.au; Alan Blanch
Subject: nsw bar association v archer
(iii) From: Stephen Archer [essayarcher@bigpond.com]
Sent: Tuesday, 17 November 2009 8:44 PM
To: ag_adt@agd.nsw.gov.au
Cc: Alan Blanch
Subject: Re: Council of the NSW Bar Association v Archer
(iv) From: Stephen Archer [essayarcher@bigpond.com]
Sent: Thursday, 17 December 2009 6:20 PM
To: Alan Blanch
Subject: Re: Council of the NSW Bar Association v S J Archer [H-DOCUMENTS.FID179087]

2. Affidavit of Tamara Sherif sworn 3 June 2011, page 9, Annexure “C”

(i) From: Stephen Archer [essayarcher@bigpond.com]
Sent: Monday, 11 May 2009 8:46 AM
To: Alan Blanch
Subject: Address
Mr Archer had used this email account in order to correspond on important business in connection with the dismissal proceedings before the ADT and regardless of whose name the email account was set up under or any other technical factor it was an account that was maintained by Mr Archer for the electronic communication of documents.

33. In Topalides v Edey [2011] FMCA 556 his Honour Coker FM referred to the relevant statutory test at [9]:
    • The contention on the part of the Applicant is that because of the non-payment of the Virgin broadband account, and the fact that his account was not operative because of that and/or a bug within the system, that service has not been effected. Quite simply, that is an incorrect proposition in relation to the matter, because it is clear that the service of documents is effective, if the document is sent by facsimile transmission or another mode of electronic transmission in such a manner, “that the document should in the ordinary course of events be received by the person” (my underlining).
    • (Emphasis added.)

The finding was that there is no need for any form of confirmation with regard to assurance that the document has actually been received by any person. A question of service turns on the sending of the document, not the actual receipt by the person to whom it is ultimately addressed. The argument being advanced on behalf of Mr Archer is to focus on when the document was actually extracted from the email system by him. Mr Wood acknowledges that there is an exception of what might be established to the contrary, but that complication relates to an email not arriving at all. For example, if there was evidence that the email had bounced, possibly for the reason that it had been wrongly addressed or other technical reasons, then that would be proof to the contrary within the meaning of reg. 16.01.

34. Mr Wood referred to the earlier decision in Van der Munnik v Stewart [2010] FMCA 116, where her Honour Barnes FM dealt with the leaving of documents in a letterbox and her Honour looked at the question of timing. In the last sentence of [63] her Honour states:
    • ... Similarly, I am satisfied that leaving documents in an envelope marked with Mr Stewart’s name in the letterbox for Mr Stewart’s unit, whether or not the letterbox was on the common property, met the requirements of reg 16.01(1)(c). That is so whether or not Mr Stewart chose to check that letterbox on a regular basis.

Mr Wood contends that this statement of the law demonstrates unequivocally the principle that one cannot be distracted by how often someone goes about checking a particular mailbox or alternatively, an email inbox.

35. In American Express Australia v Michaels [2010] FMCA 103; (2010) 237 FLR 268 Smith FM at [32] looked at the question of whether service takes place when a document is served or when it comes to the attention of the person upon whom it is to be served. His Honour observed, that according to the authorities cited, the place of service is a place where it is sent rather than the place where it comes to the notice or attention of the debtor. At [33] his Honour says that the presumption arises when the notice is transmitted, not when it is received. That was a case where there was an argument that the email system may be such that it was sent overseas, so the place of sending was important. At [34] his Honour put on one side s.14 of the Electronic Transmissions Act 1999 (Cth) and that with reg 16.01 specifically deals with not just the facilitation of the service but the deeming of when the service takes place.
36. In Conrad v The Owners of Strata Plan 2795 [2011] FMCA 389 at [20] I drew upon what the authors in the Australian Bankruptcy Law & Practice had said, namely that:
    • Service takes place upon the performance of one or more of the acts described.

At [25] I extracted a passage from the decision of the Full Court in Skalkos v T&S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107, namely:

... If, on the proper construction of reg 16.01(2), the words “proof to the contrary” permit proof that the document was not delivered, there is no such proof in the present case.
...

The proof of non-receipt and proof of non-delivery is the distinction the Full Court drew and that I relied upon.

37. Mr Hall, in his written and oral submissions acknowledged that the first question at issue between the parties was whether the Court can be satisfied with the necessary standard of the evidence presented that Mr Archer was served with a bankruptcy notice at all.
38. Mr Hall argues that the date of service of the bankruptcy notice is a matter of critical substance, because it determines the period during which matters must occur and provides to a debtor his fundamental rights to seek the assistance of the Court prior to the expiry of the notice, to comply with the bankruptcy notice or to enter in to some other arrangement with his creditor. The debtor is entitled to know the period during which that must be done otherwise there is a fundamental denial of the debtor’s right to use the time provided by the statute to make appropriate arrangements, either in the Court or with the creditor to avoid the commission of the act of bankruptcy.
39. Mr Hall indicated that he wished initially to go the facts as they are proved by affidavits that have been read because he submits that there is a great deal that is not factually in contest between the parties. It is readily accepted by Mr Archer in his three affidavits that the email address which is in dispute between the parties is essayarcher@bigpond.com which has been used by him in the past and that he sent documents or messages from it or received them there. That was frankly accepted by Mr Archer throughout his cross-examination. However, it is also fact that the last such communication using that address was during June 2010.
40. Mr Hall submits that it appears not to be in dispute between the parties that Mr Archer discontinued the regular use of the essayarcher@bigpond.com email address in about August 2010. No contrary position was put to him in the witness box and he swore an affidavit in August 2010 that he acquired a new email address and therefore discontinued the use of the email address which he identified as being primarily that of his wife.
41. Mr Hall submits that we then come to the events of September and October 2010 which is an unusual position as the respondent has provided the Court with much more detail and much more practical evidence of what occurred in these days than the applicant has, despite the fact that the onus of proving these matters rests squarely upon the applicant. Mr Archer acknowledges that on a date of either 15 or 16 September 2010 he obtained from a post office box at Mosman a copy of the letter dated 8 September 2010 enclosing the bankruptcy notice which is in issue in these proceedings.
42. Mr Hall contends that there is a degree of uncertainty in the next date which is that Mr Archer says that some days after the date of receipt of the physical letter, and he cannot precisely identify when he noticed that the letter bore a stamp that said “sent by email”. After noticing that he then went and accessed the email account with the address essayarcher@bigpond.com and saw the email version of the same document. Mr Hall contends that it is the case that the date cannot be fixed exactly but it can be inferred that it is something in the order of 18 September 2010 through simple arithmetic by counting a few days from the date on which Mr Archer received the postal copy of the bankruptcy notice, and adding the time that he said passed before he noticed the existence of the stamp which prompted him to look at the electronic copy.
43. Mr Hall submits that there is an important piece of evidence given by Mr Blanch in his affidavit of 22 March 2011 (Affidavit of Service), which is that Mr Archer immediately corresponded with Hicksons Lawyers to seek to determine with them the date they alleged service to have occurred so that he could know by what date he would have to take any steps that were required to be taken. In the affidavit of Mr Blanch of 22 March 2011, page 11, Annexure “C” is a letter written by Mr Archer on 27 September 2010 and it carries a stamp that says “received 30 September 2010, Hicksons Lawyers”. That letter contains the important third paragraph:
    • Given that the date of service is critical to the date of any act of bankruptcy, as well as the date of filing any application to extend the time for compliance with the notice, could you please tell me when you contend was the date of service of the notice.

In the same affidavit, at Annexure “D” a reply refers to the letter of 27 September 2010 in its first line. That is a letter sent by Hicksons Lawyers to Mr Archer this time using his actual residential address being an address on Valetta Street, in Moss Vale, NSW.

44. Mr Hall indicates that the next piece of evidence is conveniently found in the affidavit of Mr Lavansis sworn 11 May 2011 and the letter indicates that payments were made on a periodic basis at the end of 2010 and in to the first month of 2011. The letter reveals that the parties were dealing together with the question of the debt and how to respond to it. Mr Archer was dealing with the issue on the basis that he understood that if he had been served with the bankruptcy notice at all it had been after 7 October 2010 and not at an earlier date.
45. Mr Hall argues that against that actual background the Court needs to consider reg. 16.01 of the Bankruptcy Regulations 1996 (Cth). That regulation as it applies to the alleged act of service by email is that the applicant is required to demonstrate one of two alternative propositions. The first is that the email mailbox associated with the email address essayarcher@bigpond.com was a facility maintained by Mr Archer for the receipt of electronically transmitted documents at the date upon which the attempted service occurred. The second alternative is that the applicant must demonstrate that by sending a document to that mailbox at that time it should in the ordinary course of events have been received by Mr Archer.
46. Mr Hall contends that the approach to that proposition is assisted by the decision in Michaels (supra) which is authority for the proposition that the least that must be demonstrated in order to made good an allegation that a person maintained an email facility for the receipt of documents is that the person regularly accessed and used that email facility. At [17] it states:
    • AMEX submits that the evidence establishes that Mr Michaels had a “facility ... for receipt of electronically transmitted documents” within reg 16.01(1)(e)(i), consisting of an email mail box on a Yahoo server which was frequently accessed by him. There is abundant evidence of his using this facility over the relevant time and currently, and it appears to have been his favourite mode of written communication. In particular, he used it to communicate in writing with the representatives of AMEX and also with the agent of his landlord. I am satisfied that his use of his Yahoo mail box over the relevant period amounted to his “maintaining” that facility, so as to allow it to come within reg 16.01(1)(e)(i). I also consider that his demonstrated use of the email address provides sufficient grounds for being satisfied that electronic transmission of documents to the mail box should be received by him “in the ordinary course” within reg 16.01(1)(e)(ii).
47. Mr Hall argues that here the evidence does not permit a finding that at September 2010 Mr Archer maintained that email address either in the literal sense of those words or in the extended sense provided for in Michaels (supra) by regularly accessing it and using it. Mr Hall contends that the evidence does not show any mail originating from that email box in Mr Archer’s name later than June 2010.? The evidence made clear that Mr Archer did not, as a matter of fact, access that email box between about 8 September 2010 and 18 September 2010. In support of that when Mr Archer was ultimately directed there by the stamp on the letter he found this communication for the first time. Although the date of 18 September 2010 has been suggested Mr Hall acknowledged that was an estimate and that it could have been 17 or 19 September 2010, however, it was about that time. Mr Archer’s evidence is that prior to that date his access to that email mailbox to check for any missing communications had been approximately weekly. Mr Archer did not check the email mailbox until he was prompted to do so by the letter to him that stated “I have sent something to you in your email box. Please go and have a look”. Mr Hall submits that this is not in the ordinary course. When something reaches a recipient of an electronic communication in the ordinary course they receive it without the need for any unusual or additional steps to be taken.
48. In Topalides v Edey (supra) the email service had been discontinued by the provider because of non-payment of the bill, it did not mean that communications could not reach the recipient in the normal course because that was a good example of the type of event that constitutes a departure from the normal or a stepping outside of the normal course. In the matter before the Court the evidence demonstrates an abnormal or unusual operation for that person requiring them to be prompted by a letter from the solicitor’s firm that causes them to receive the document then service has not been affected in accordance with reg. 16.02.
49. Mr Hall indicated that the next issue was the events surrounding the sending of the email. Mr Blanch, in his affidavit of 26 March, does not give or purport to give any direct first hand evidence of the email having been sent. The deponent twice used the construction:
    • I caused documents to be served

Mr Hall contends that that is a deliberate alternative to saying that he served them and he simply does not specify the steps that he took in order to do that. A critical revision is paragraph 3(e) of his affidavit which read with the introductory parts of that paragraph says that on a particular day he caused the documents referred to in the paragraph above to be served by email to essayarcher@bigpond.com.

50. In Annexure B, which refers to the above statement the document is headed:
    • From Julie McGowan on behalf of Alan Blanch

It may be inferred from that that what Mr Blanch is seeking to tell the Court is that he gave an instruction to some person to do some act but no evidence of that instruction or evidence of that act has been provided. There is a marked contrast between the approach taken by Mr Blanch to the electronic service of the document in its totality compared with the care which the method of physical posting through Australia Post’s service which is described in paragraph 2 of the affidavit of Mr Blanch sworn 17 June 2011.

51. Mr Hall acknowledges that it was open to Mr Blanch in his second affidavit, knowing that there was an issue between the parties as to electronic service, to have given similar information about what arrangements in his office were for sending of emails and he could have corrected or filled a gap and given some evidence that the email had, in fact, been sent. He gave similar evidence in relation the posting of the letter, however, he chose to remain silent on the question of emailing which can lead to the inference that nothing he could have said on that subject would have assisted the applicant’s case.

Consideration – email service

52. Regulation 16.01(1)(e) permits a document to be “sent by facsimile transmission or another mode of electronic transmission” and it is accepted that a bankruptcy notice can be served by facsimile transmission under reg. 16.01(1)(e): Satchithanantham v Multilink Investments Pty Ltd [2002] FCA 1277 per Conti J at [14]. Based on that finding, a bankruptcy notice can also be served by email or other modes of transmission of electronic documents under reg.16.01(1)(e)(ii): Michaels (supra) per Smith FM at [15] – [37] his Honour found that a bankruptcy notice that had been emailed to the debtor had been validly served.
53. This immediately raises other issues in respect to the sending of the document that apply to other methods identified in reg. 16.01 and whether the same principles and authorities apply to “facsimile or another mode of electronic transmission” and in this matter specifically email. Although not specifically addressed in any authority referred to the Court, the reference to “the last known address of a person” in regs.16.01(1)(c) and 16.01(1)(a) is to that address which has been made known by the [person being served] as at the time closest to the date in question is one of these issues that is very significant in this matter: Drake v Stanton [1999] FCA 1635 per Tamberlin J at [5] and [8]; T & S Recoveries Pty Ltd v Skalkos [2004] FCA 816 per Wilcox J at [29] – [35] supported on appeal in Skalkos v T & S Recoveries Pty Ltd (supra) per Sundberg, Finkelstein and Healy JJ at [35] – [37].
54. A further aspect of hard copy delivery as opposed to electronic is the sender’s knowledge of whether the recipient is actually at the email address. The recipients of electronic transmissions are not strictly linked to a physical location and are capable of mobility. It has been established that it is subjective knowledge of the person serving the document that is relevant, not an objective knowledge, so service can be effected even if the person to be served does not actually reside at that address at the relevant time: Drake v Stanton (supra) at [5] and [8]; Deputy Commissioner of Taxation v Gadaleta [1999] FCA 923; T & S Recoveries Pty Ltd v Skalkos (supra) at [28] – [35]; Carantinos v Magafas [2009] FCA 627 per Perram J at [13]. This principle must equally apply to electronic transmission in the absence of a rejection or “bounce back” if the electronic address is not accepting incoming communications.
55. Similarly, in reg. 16.01(1)(c) the “last known address” of the person being served need not be the person’s residential address as it is sufficient if the person being served has “such a degree of connection with the premises” so that a business address could satisfy the regulation: Skalkos v T & S Recoveries Pty Ltd (supra) at [35] – [37]. An example of this is where a debtor’s solicitor has advised the creditor’s solicitor that they have instructions “to accept service of ... proceedings of any nature to be instituted by your client against [the debtor]”, where it was held that the debtor’s solicitor’s office therefore became a debtor’s last known address and a bankruptcy notice could relevantly be served there: Troy & Co v Cameron [2002] FMCA 42 per Bryant CFM at [46] – [48]. Also, a debtor who was a prisoner could be served with a bankruptcy notice at the correctional facility under provisions on the basis that the correctional facility was their “last known address”, and that proper service had been effected by handing a notice to the general manager of the correctional facility: Deputy Commissioner of Taxation v Voyka [2008] FMCA 67 per Wilson FM at [7] – [9].
56. In absence of authority to the contrary I believe it is a logical extension of these principles that they should equally apply to an email address that has been used by a person in the past and without notification of the adoption of a new email address that the principles of “last known address” of the person should equally apply to reg. 16.01(1)(e). Mr Hall argues that the situation with Mr Archer is different to that in Michaels (supra) because the evidence does not permit a finding that at September 2010 Mr Archer “maintained” the essayarcher@bigpond.com address either in a literal sense of that word or the extended sense provided for in Michaels (supra) by regularly accessing it and using it. However, to the contrary this evidence given by Mr Archer is not supported by any other material and becomes an issue of Mr Archer’s credit.
57. The other element that must be considered is the non-receipt of documents by the debtor. Since service pursuant to reg. 16.01 can take place upon performance of one or more of the methods prescribed, evidence on behalf of the debtor to the effect that he or she did not receive the document does not negate service, in the absence of the document being returned undelivered or other evidence of non-delivery: Skalkos v T & S Recoveries Pty Ltd (supra). In this matter there is no dispute that the email containing the bankruptcy notice was forwarded to and received at the email address essayarcher@bigpond.com. Mr Archer, in his evidence, claims that he ceased to use that account and it is now being used exclusively by his wife. No attempt has been made to have the account cancelled by the service provider and Mr Archer freely admits that he still receives various material at that address. He claims that he has unsuccessfully attempted to unsubscribe to various material being supplied by the press and advertisers, but this does not in any way stop the receipt of incoming correspondence addressed to Mr Archer.
58. Following the reasoning in Drake v Stanton (supra), the service of a bankruptcy notice by leaving it in an envelope at the address of a debtor last notified to the creditor was held to be effective. I note the observations of his Honour Smith FM in Michaels (supra) at [15] – [37] with respect to the operation of the transmission of electronic documents under reg. 16.01(1)(e) where his Honour found that a bankruptcy notice that had been emailed to the debtor had been validly served. Significantly, in Michaels (supra), it was found that Mr Michaels used his email facility over the relevant time and it appears to have been his favourite mode of written communication. The evidence supported the view that his mailbox was used over the relevant period and that amounted to his “maintaining” that facility so as to allow it to come within reg. 16.01(1)(e)(i). His Honour was satisfied that Mr Michaels’ demonstrated use of the email address provided sufficient grounds for being satisfied that electronic transmissions of documents to the mailbox should be received by him “in the ordinary course” within reg. 16.01(1)(e)(ii). That is a disputed issue in the matter currently before this Court.
59. The affidavit evidence of Stephen John Archer sworn 27 April 2011 is that:
    • 3. Until 8 August 2010, I had access to, and used from time to time, my wife’s email address “essayarcher@bigpond.com”. She also used it. The address was formulated by my wife from her initials and surname “S A Archer”. I used this address for some only of my email correspondence, including some correspondence from the applicant’s solicitors about proceedings in the Administrative Decisions Tribunal and, perhaps the, Court of Appeal.
    • 4. In late August 2010, I opened my own email account and used that thereafter. I informed those people with whom I communicate from time to time of my change of email address, but saw no need to advise the applicant’s solicitors with whom I hoped to have no further communication of any kind, at least not by email.
    • 5. After late August 2010, although I still had access to my wife’s email address, I had no occasion to, and did not, access it regularly. Perhaps once a week I would access it to ensure I had not missed any email of any consequence. Most of the emails that continued to be sent to that address were “junk”, such as daily posts from newspapers for which I had been trying unsuccessfully for some time to “unsubscribe”, and advertising material from organisations such as Borders.

There is no evidence before the Court as to Mr Archer’s new email address, the service provider, or the date on which it was initiated.

60. On Mr Archer’s own evidence there is a brief period not exceeding two months from when he claims that he ceased using his wife’s email address and he established his own. His evidence is also that he did not inform the law firm of Hicksons that he had a new email account. In the decision of Drake v Stanton (supra) per Tamberlin J, his Honour addressed the issue of “the last known address of the person” in reg. 16.01 and accepted that the service of a bankruptcy notice by leaving it in an envelope at the address of the debtor last notified to the creditor was effective. There is no dispute that the parties had previously corresponded with each other and that Mr Archer had both sent and received correspondence from the email address essayarcher@bigpond.com and nothing had been drawn to Hicksons attention that Mr Archer had ceased to use this electronic address as his primary address.
61. The stance being advanced on behalf of Mr Archer appears to be one of pure convenience to Mr Archer. The argument being advanced is that on some date in early August 2010 Mr Archer claims that he opened a new email account in his name, and consequently he ceased to use his wife’s email address for the purposes of sending and receiving emails. However, his own evidence clearly indicates that he still referred to his wife’s email account to “ensure I had not missed any email of any consequence”. This is not a situation where his wife’s email, which they had used jointly, was terminated by notifying the email service provider that the account was to be closed and was no longer required. It remained operative and was available to receive emails sent to that address.
62. The argument appeared to suggest that a very limited and restricted approach is to be applied to the use of the email facility, which is distinctly different in reality to any other form of correspondence to an individual. When somebody changes their residential address in reasonable and practical terms there is no immediate and universal method of notification to the world at large that as of a specific date their previous residential address no longer receives any form of correspondence and is strictly limited to the new residential address. Facilities, such as postal redirection or poste restante facility at a local post office exist to facilitate these changes in circumstances. Electoral rolls, telephone directory entries and other sources of an individual’s postal address take time to occur.
63. The more traditional circumstances of the service of documents has resulted in a line of authority which addresses these issues and it is unrealistic to suggest that an email facility is in anyway distinctly different. The only qualification to this contention would be the circumstances where the email account was closed and any attempt to forward documents to that terminated address would “bounce back” to the sender then being immediately notified of that circumstance. When a traditional form of service such as postal delivery to an individual’s letterbox, document exchange, or an envelope left at the last known address of a person is used there is no special provision in the circumstances where the recipient does not clear their postal facility, document exchange facility or collect and open correspondence left at their door. In the absence of any authority to the contrary I am guided by the decision of her Honour Barnes FM in Van der Munnik v Stewart (supra) which deals with the leaving of documents, in that instance a letterbox, and whether the recipient chose to check that facility on a regular basis. There is nothing to suggest that the approach to someone checking their email facility should be treated any differently.
64. In Conrad v The Owners of Strata Plan 2795 (supra) (see [36] above) I considered the distinction between proof of non-receipt and proof of non-delivery and I rely on that reasoning in that decision because the same principle must apply to electronic transmission of documents as to any other form of service covered by reg. 16.01. Mr Wood indicated that his primary case is that service occurred upon the sending of the email and therefore the email effects the service on 8 September 2010 and that the creditors petition is correct when it sets out the date of the act of bankruptcy in the following terms:
    • (a) The respondent debtor failed to comply on or before 29 September 2010 with the requirements of a bankruptcy notice served on him on 8 September 2010 ...

I believe that Mr Wood is correct in his approach and submissions, however, as very few cases in respect to the operation and interpretation of “another method of electronic transmission” have been decided in the context of the operation of reg. 16.01(1)(e) a substantial part of the reasoning in respect of this issue must rely on extrapolation from decisions relating to other methods of service. In the absence of any contrary authority I have adapted this approach and I am satisfied that the date of the act of bankruptcy is correctly identified in the creditor’s petition.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM


Date: 13 February 2012

---

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2012/81.html