Chief Collector of Taxes of the Territory of Papua and New Guinea v . Bayliss

[1974] HCA 37

HIGH COURT OF AUSTRALIA

Gibbs, Stephen and Mason JJ.

THE CHIEF COLLECTOR OF TAXES OF THE TERRITORY OF PAPUA AND NEW GUINEA v . BAYLISS

(1974) 131 CLR 329

3 October 1974

High Court

High Court—Appeal—Competency—Judgment involving directly or indirectly a claim demand or question to or respecting any property or civil right to or of the value of $3,000—Appeal from Federal Court of Bankruptcy—Petition for sequestration order alleging indebtedness of $10,000 owing under judgment—Act of bankruptcy—Failure to comply with bankruptcy notice—Dismissal of petition on ground of invalidity of bankruptcy notice—Whether appeal to High Court as of right—Bankruptcy Act 1966-1970 (Cth), s. 39 (2) (b)*. * Section 39 (2) of the Bankruptcy Act 1966-1970 (Cth) provides that "An appeal lies to the High Court—(a) from a sequestration order made by the Court; (b) from a judgment or order of the Court involving directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of Three thousand dollars."

Decisions

Oct. 3.
GIBBS J. This is an appeal from a judgment of the Federal Court of Bankruptcy dismissing a petition brought by the appellant against the respondent for a sequestration order. (at p331)

2. There is an objection to the competency of the appeal, but the appellant submits that the appeal lies under s. 39 (2) of the Bankruptcy Act (Cth). (at p331)

3. By the petition the appellant alleged in par. 2 that the respondent is justly and truly indebted to the appellant in the sum of $10,382.42, being the balance due and owing under a final judgment obtained in the Supreme Court of Victoria by registration under the provisions of the Service and Execution of Process Act 1901-1968 (Cth) on 20th October 1971 by the Chief Collector of Taxes of the Territory of Papua and New Guinea, being for income tax. In par. 4 it was alleged that the respondent within six months before the presentation of the petition had committed an act of bankruptcy. The Federal Court of Bankruptcy found that no act of bankruptcy had been committed and accordingly dismissed the petition. No finding was made as to the existence or otherwise of the debt alleged in par. 2. (at p332)

4. It may be accepted that by par. 2 of his petition the appellant asserted against the respondent a claim to a civil right amounting in value to more than $3,000. However, that claim was not involved directly or indirectly in the judgment from which the appeal was brought. The judgment says nothing as to the appellant's claim to be a creditor of the respondent and does not indirectly reflect on that claim in any way. It did deny to the appellant one remedy for the enforcement of his claim, but that does not mean that the judgment involved the claim itself. (See Tooth &Co. Ltd. v. Parramatta City Council (1955) 97 CLR, at pp 496-497 ). The appellant was not prejudiced to an extent of $3,000 or more by the dismissal of the petition. (at p332)

5. Moreover, it cannot be said that the refusal of a sequestration order in itself involved directly or indirectly a claim to or respecting property amounting to $3,000, because there is no material showing the value of the estate of the respondent. It is unnecessary to express any opinion as to what the position would have been had there been evidence showing that the estate of the respondent amounted to more than $3,000. (at p332)

6. For these reasons, it seems to me that the present appeal is not one from a judgment or order of the court involving directly or indirectly a claim, demand or question, to or respecting any property or any civil right amounting to or of the value of $3,000 and that the appeal is incompetent. (at p332)

7. The objection to competency, in my opinion, ought to be upheld. (at p332)

STEPHEN J. I agree. (at p332)

MASON J. I also agree. (at p332)

Orders

Objection to competency upheld with costs. Leave to appeal refused with costs.