Ex parte

[1987] FCA 194

CATCHWORDS

Bankruptcy - Registrar in Bankruptcy - issue of bankruptcy

notice - application to Court seeking order that Registrar

issue bankruptcy notice forthwith - whether an "application" -

is before the Court - nature of function of Registrar in

issuing bankruptcy notice.

Bankruptcy Act 1966 ss.14(5),41(1),41

Bankruptcy Rules rr.5(1),5(2),7,8,102

RE: EX PARTE APPLICATION BY STATE TRANSPORT AUTHORITY

(FORMERLY KNOWN AS VICTORIAN RAILWAYS BOARD

AND THE VICTORIAN RAILMAYS COMMISSIONERS)

NORTHROP J.

18 MARCH 1987

MELBOURNE

,

IN THE FEDERAL COURT OF AUSTRALIA )

)

EXERCISING FEDmAL JURISDICTION	)
1

BANKRUPTCY IN )

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

RE: EX PARTE APPLICATION BY STATE TRANSPORT AUTHORITY

(FORMERLY KNOWN AS VICTORIAN RAILWAYS BOARD

! AND THE VICTORIAN RAILKAYS COMMISSIONERS)

m: NORTHROP S.

W: 18 MARCH 1987

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

There is before the Court what is said to be an

I

application to the Court seeking orders that the time for the

making of the application be extended and a substantive order

that the Registrar's decision to refuse to issue a bankruptcy

notice, which decision is contained in the letter from the

Registrar dated 13 January 1987 to the applicant's

solicitors, be reviewed and the Registrar be ordered to issue

the said bankruptcy notice forthwith. The document which is

said to be the application to the Court is headed:-

I

- 2 -

"IN THE FEDERAL COURT

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE

STATE OF VICTORIA No. of 1986

RE : TERENCE RONALD XRUGER Judgment Debtor

EX PARTE:

STATE TRANSPORT AUTHORITY (formerly

known as Victorian Railways Board and

The Victorian Railways Commissioners)

Judgment Creditor. 'I

l

i I

The application states that the application has been set down

i

for hearing by the Court at 10.00 a.m. on 24 February 1987

and that the applicant intended to use an affidavit sworn by

!

Robin John Broberg on 6 February 1987, that it was not

I	intended to adduce oral evidence and it	was not intended to
I	serve the application on any person.

The State Transport Authority, although not called

an applicant in the application, is to be treated as an applicant making an ex parte application to the Court. Its solicitor seeks to rely upon sub-section 14(5) of the Bankruptcy Act 1966 as conferring jurisdiction on this Court. I read that sub-section:-

"14(5) An order or direction made or given, or an

act done, by a Registrar or a Deputy Registrar under

this Act is subject to review on summary application

to the Court."

- 3 -

The matter came on for hearing before me on 24

February 1987 and during the course of submissions a number

of matters were raised. At the end of the submissions I

reserved my decision on what I should do. Following further

-

consideration I gave notice to the applicant's solicitors

that I Intended to relist the application for further hearing

and that the Registrar in Bankruptcy should be given notice

I

I

I	of the further hearing to enable him to appear and make
I
submissions on a number of matters raised at the earlier
I
I
I	hearing. Today, the Registrar appeared by counsel and I am
I	indebted to counsel for so appearing and making submissions.
I
i
l

A preliminary issue immediately arises as to

l

whether there is any application before the Court. This is

i

based upon the absence of any serial number being given to the application itself. The application is said to be a Court document but there is nothing to show in what capacity

it has been used and just what it is. It is a piece of paper

which has got no identifying serial number on it at all. The

Bankruptcy Act and Rules do make provision for applications

and the relevant rule is rule	102.	That rule, by sub-rule
(1) provides:-

I

"102(1) Subject to the Act and to this rule, an

application to the Court that is not required to be

i	made by petition shall be instituted by filing an
i
I
application, in accordance with Form 45."
I
i
j
l
I
I

C l

1-

- 4 -

The form of the application presently before the Court

complies with that, but Form 45 does not set out what should

be in the title to the application. In order to ascertain

that, one must turn to rule 5, sub-rule (1) which provides:-

-

"5(1) A document filed with, or issued by the office

of a Registrar in Bankruptcy in relation to a

proceeding instltuted in the Court shall be

intituled in accordance with Form 1."

Form 1 to the Rules prescribes the title to be used.	It
includes a provision for a serial number or identification

number to be inserted. By way of interest, a similar

provision is prescribed in relation to documents before the

Registrar himself, see rule 5 ( 2 ) and Form 2 . In all cases it

is necessary that there be on the document the serial or

identifying number by which the matter can be recognised and

acted upon.

In the present case, there is nothing to show that

the documents were in fact filed with the Registrar and

although I refused leave to the applicant to call oral

evidence as to what occurred, I am prepared to accept, for

the purposes of these reasons, that the documents were in

fact given to the Registrar and somehow came before the

Court. But in my opinion, a consideration of them discloses

that they do not comply with the requirements of the Act and application on that ground.

the Rules and therefore, in law, there is nothing before the

- 5 -

In so doing, I want to make it clear that the

procedures proposed by the appllcant, here called the

judgment creditor, do raise very difficult and important

questlons. They have been discussed during the course of

submissions, both on 24 February and today. One of the more

important ones is the question of what is the nature of the

duty or powers of the Registrar when a person applies to the

Registrar for the issue of a bankruptcy notice. This

question involves a consideration of the nature of the office

of the Registrar in Bankruptcy which has been discussed in a

number of authorities; the nature of the powers or duties

conferred by rule 7 and rule 8 of the Bankruptcy Rules and

the forms to those rules, as well as section 41 and in

particular sub-section (1) and sub-section ( 3 ) of the

Bankruptcy Act, and in particular paragraph (b) of

subsection ( 3 ) . Prima facie it appears that provided an

application for the issue of a bankruptcy notice is in the

required form and, as in this case, is based upon a

certificate of the judgment or order under the seal of the

Court or under the hand of an officer of the Court, being the

judgment debt upon which the bankruptcy notice is founded,

see rule 7, sub-rule ( 2 ) , paragraph (iii), and, looking at

the form of the application for the bankruptcy notice, "the

application states that execution of the final judgment or

i	order had-not been stayed at the time of the making of this
application," the question is raised whether the Registrar
has any power to refuse to issue the bankruptcy notice.

S I

- 6 -

Generally see Re Moss; Ex parte Tour Finance Ltd. (1969) 13

F.L.R. 101 and Re Maddox; Ex parte The Debtor (1979) 24

A.L.R. 279. Compare Re The Bankruptcy Act 1966; Ex parte

Commercial Bankins Co. of Svdnev Ltd. (1979) 23 A.L.R. 522

and Re Application bv Coast Securities No. 9 Ptv. Ltd.;

parte Prapnell (1985) 7 F.C.R. 293 where the question under

consideration, although relevant, was, apparently, not

i	considered.	It is quite clear that	a bankruptcy notice of
1

i itself has no effect. It is to be served upon the judgment

i	debtor; it may never be served upon the judgment debtor; if
i
I
~	it is served, the judgment debtor is able to apply to the
i
i	Court to have the bankruptcy notice set aside. As against
1
this, it should be remembered that under paragraph (b) of
sub-section (3) of section 41, a bankruptcy notice shall not
be issued in relation to a debtor if at the time of the
application for its issue, execution of the judgment or order
to which it relates has been stayed.

If the Court is able to express an opinion on

proceedings such as those which were attempted in the present

case at which no other party has been added, either the

Registrar or the debtor, it could lead to difficulties if

subsequently the debtor seeks to challenge the bankruptcy

notice on the very point on which the Court has expressed an

-

opinion.

l

- 7 -

Further, what is being sought in the present

application is an order directing the Registrar to do

something, namely to issue a bankruptcy notice. Pet the

person to whom the order is sought to be directed had not

I I been joined as a party to those proceedings, and the question -

of whether, in those circumstances, a Court should hear and

determine the application does, of itself, give rise to

l difficulties.

i In addition to that, the question has been raised

as to whether, where the Registrar has refused to issue a

bankruptcy notice, that constitutes an order or direction or

I	an act done	by a Registrar within the meaning	of sub-section
I

14(5) of the Act.

There seems no doubt that in a case like this, if the Registrar refuses to issue a bankruptcy notice, he may

well be liable to a writ of mandamus issued by this Court, or

the decision upon which that refusal is based could be made

the subject of review under the Administrative Decisions

(Judicial Review) Act 1977, but these matters need not be

considered further.

All these matters which I have mentioned so far go

to the very foundation of the operation of the Bankruptcv

m, the position of the Registrar in Bankruptcy, the

I	relationship between the Registrar and the Court and what
i
should be done in a case like this. These are all matters
i
I	I	which would need to be considered if the matter comes on for
I
l
I
I

I

l

C

- 8 -

hearing before the Court. This leaves aside altogether what might be said to be the merits of the case, whether in this case or not the judgment debt relied upon has been stayed or

not. I have not heard submissions on that point on behalf of

the Registrar. It may well be that the Registrar is placed - in a difficult position in making submissions on the merits

I

I

!	raised by that matter. He could be seen as either supporting
l
l
the creditor or the debtor, depending on what submissions he
I	makes. In any event, whatever view the Court expresses, or
1	the Registrar expresses for that matter, those views cannot bind the debtor who has not been heard. As I said earlier,
I	I
the mere fact of the Court expressing an opinion on those
i
I	matters could be embarrassing in subsequent proceedings in
I
I	which the debtor is a party.
I

Although I propose to refuse the application at the

present time, I indicated during the course of argument that

there was nothing to prevent the State Transport Authority

from either renewing or making a fresh application to the

Registrar for the issue of a bankruptcy notice, or taking out

an application under sub-section 14(5) seeking orders of

review against the Registrar. The State Transport Authority

would need to determine whether it would take the risk of

proceeding ex parte or not, or upon notice, or upon making

the Registrar a party to that application. If it does join

the Registrar as a party, the Court will then be in a

l i

position of expecting submissions to be made both by the

i

: applicant and by the Registrar on all these questions. To

!	expedite time, that could possibly be done if the matter came
I
i

i I

before the Court as presently constituted, in that the

submissions already made, which will be transcribed, could be

repeated, but giving the parties leave to add any further

l submissions or lead any further evidence desired to be made

-

or led at the hearing of that application.

1 What I have said in this case so far goes to some

!

i fundamental matters of practice in the office of the

Registrar in Bankruptcy. It affects also the practice of

I

I

this

Court

and

it

is

important

that

this

is

an

area

that

i

should be clarified sometime or other. I see grave

!	difficulties in deciding or expressing	a view on any of those
J

matters on the proceedings instituted by what	I have held to
be an invalid document.

There being nothing before the Court, I refuse the

application.

I certify that this and the eight (8)

preceding pages are a true copy of

the reasons for judgment herein of

the Honourable Mr. Justlce	R.M.
Northrop.

I

Associate . . .%m-~ .-e. db.. .

I 18 March 1987

L

!

i ' I'

: M!?. T. IRLICHT

i