Vaccaro v Florio [1987] FCA 826

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

BANKRUPTCY DISTRICT OF

NEW SOUTH WALES AND

AUSTRALIAN CAPITAL TERRITORY

Re:

Ex parte:

And:

CORAM: Einfeld J. DATE: 20 December 1987 PLACE: Sydney

EX-TEMPORE JUDGMENT

JUDGMENT No. .2ZSeuul LZR

No. W468 of 1986 Part X

Constance VACCARO

Debtor

Josephine Angelina FLORIO

Applicant

i

John Howard MANN

Respondent

FEDERAL COURT OF AUSTRALIA

28 JAN 2003 LIBRARY

The first of many complex and perplexing matters in this litigation that

falls for judicial determination is whether at this

applicant in pxoceedings which he has brought and the

proceedings brought by Mrs.

trustee pursuant to a purported authority under section 188 (1)

Florio,

time Mr. Mann, the respondent in is Mrs. Vaccaro's controlling

of the

Bankruptcy Act 1966 (the Act) dated 24 November 1986.

It is not disputed by the solicitor for Mrs.

her controlling trustee

status is taken by the solicitor for Mrs. Florio, who was

under that authority.

Vaccaro that Mr. Mann is

The objection to his

the initiator

of all these proceedings in the first instance in an application which

is still before the court.

There is a dispute as to the precise circumstances in which this authority was witnessed. There appears to be no dispute that Mrs.

Vaccaro signed the document whilst in Mr. Mann's office.

Annexed to the affidavit of Mr. Mann dated 8 October 1987, is a document filed on 26 November 1986 as a section 188 authority. Although he has not given evidence of this precise matter, the inference that I draw from his affidavit which annexes the authority is that ; he annexes it as a valid section 188 authority signed and witnessed as alleged on its

face.

The dispute that arises is between Mrs. Vaccaro, the signatory of the document, and Mrs. Nicholson, the purported witness. The evidence on this matter emerges in a _ somewhat strange way, but in view of the unusual nature of these proceedings, I do not think that a_ sensible inference can be drawn adverse to anyone from the way in which the

matter has been brought to attention.

Mrs. Nicholson was called by counsel for Mr. Mann on 26 October 1987. She swore that she was personally present when Mrs. Vaccaro signed the original document and was personally present when Mr. Mann did so. Mr. Mann, knowing that his actions are under examination in these proceedings, has of course, as I have said, not given evidence directly on this subject, nor has be sought to be cross-examined on the affidavit

which annexes the document as a valid testament to his authority.

Mrs. Nicholson was asked questions rather than cross-examined about witnessing Mrs. Vaccaro's signature. The cross-examination did not come

via the solicitor for Mrs. Vaccaro, as might normally be expected, but

from counsel for Mrs. Florio. Having at the request of counsel for Mr. Mann been warned that she did not need to answer any questions the answers to which she felt might incriminate her, Mrs. Nicholson was asked at page 56A and B of the transcript how she came to witness the document. 'The circumstances which she related were that she was asked by Mr. Mann to accompany him to the boardroom where the document was on the table. Mrs. Vaccaro and Mr. Mann were present, and she saw and personally witnessed Mrs. Vaccaro's signature on the document. At the time, she had not seen Mrs. Vaccaro before, but she has seen her subsequentiy, including a meeting of her creditors and around the court

during the course of these proceedings.

I described this questioning as something really short of cross-— examination because, although there were a few questions which sought additional information, it was never put directly to Mrs. Nicholson that the events that she related were in fact a figment of her imagination or at least that she was entirely and grossly mistaken in that sworn evidence which was virtually the whole of her evidence on matters still

in contention.

Mrs. Vaccaro was asked some questions about this matter, again rather strangely by counsel for Mrs. Florio, and the comments that I made about the failure to cross-examine Mrs. Nicholson by the party or parties one might expect to engage in cross-examination applies equally here, for Mr. Esler, whose instructions were no doubt to support Mrs. Nicholson's assertion of the signing of the document, did not ask a single question

about it. The questions were asked by Mrs. Florio's counsel.

I am advised that this was deliberate cross-examination, and it does

appear to be so from my recollection of the matter, but the evidence of

Mrs. Vaccaro was somewhat less than heavily persuasive. At first, it appeared that she believed she was being asked questions about the deed of arrangement whereas, in fact, she was being asked about the section 188 authority. When she realised or her attention was drawn to the fact that the questioner was directing her attention to the section 188 authority, Mrs. Vaccaro appeared to go on to give precisely the same evidence as she would have given if it had been the deed of arrangement which was being shown.

On the other hand, it must be understood that the deed of arrangement originally was supported by evidence that it was signed in the ordinary

way and in the way provided by the statute, but it was only after some

revelations had taken place that that appeared not to be the case.

Mrs. Vaccaro's evidence was that she had never seen Mrs. Nicholson at Mr. Mann's office, that Mrs. Nicholson had never been present when Mrs. Vaccaro was signing any documents, and it appears as if she had signed documents on a number of occaions, or at least a number of documents at Mr. Mann's office. It seems unlikely that Mr. Mann's "secretary would not have been present at least in the office on some occasions when Mrs. Vaccaro was present in the office to sign documents or for any other purpose, but Mrs. Vaccaro appears to have been prepared to swear that she had never seen Mrs. Nicholson at Mr. Mann's office on any occasion and certainly that she had never been present in the boardroom when Mrs. Nicholson signed any document. It is not easy to resolve an issue of fact of this kind. No doubt Mrs. Vaccaro firmly believes that Mrs. Nicholson did not witness her section 188 authority by being present at the time, but she is considerably more emotionally involved in these proceedings and their outcome than is Mrs. Nicholson, and I believe that

Mrs. Vaccro has, as a result, gained a somewhat coloured view of the

documentation involved in this case and in particular, the section 188 authority. Mrs. Nicholson was no doubt a loyal secretary to Mr. Mann, does not have a personal involvement, although she would have if she purported to sign documents in the presence of people when she was not

present. She has in that sense an interest, but it having previously

iy

been revealed that she was not present when a deed of arrangement was signed and therefore witnessed it in the way provided by the statute, it would be a relatively small matter indeed for Mrs. Nicholson to agree

that she was not present when the section 188 authority was signed.

I am inclined therefore to accept the contention, not without' some doubts, that Mrs. Nicholson did in fact attest the section 188 authority as provided for by section 188(2)(b) of the Act, .assuming for this purpose that attestation means being present and witnessing the signature of the debtor thereafter signing as a witness, a matter which I do not decide because it is not necessary. to do so in this particular case. I therefore find that on 28 November 1986, Mrs. Vaccaro

constituted Mr. Mann as trustee under section 188(1) of the Act.