Lancaster v Downes - [2002] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANCASTER & ANOR v DOWNES

[2002] FMCA 40

BANKRUPTCY – Presentation of petition – Federal Magistrates Court – registries – petition may be presented at a registry where it may not be filed.

Bankruptcy Act 1966 s.40(1)(d)(ii) and 44(1)(c)

Perdin v Registrar in Bankruptcy (1982) 43 ALR 512

Applicants:

RICHARD JACKSON LANCASTER AND ELEANOR LANCASTER

Respondent:

PETER JOHN DOWNES

File No:

SZ 780 of 2001

Delivered on:

6 March 2002

Delivered at:

Sydney

Hearing Date:

6 March 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicants:

Mr J Johnson

For the Respondent:

No appearance

ORDERS

Declares that the Creditors Petition in these proceedings was “presented” for the purposes of section 44 of the Bankruptcy Act 1966 on 19 November 2001.
Grants leave to the Applicants to amend the Creditors Petition in the form of document entitled “Amended Creditors Petition” attached to these orders and marked “A”.
Directs that the Applicants serve the Amended Creditors Petition, verified in accordance with the Bankruptcy Act and the Bankruptcy Rules, together with a copy of these orders and of the judgment delivered on 6 March 2002.
Adjourn the proceedings to a date to be fixed by the Registrar at the time of the filing of the Amended Creditors Petition.
Makes no order as to costs of 6 March 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 780 of 2001

RICHARD JACKSON LANCASTER & ELEANOR LANCASTER

Applicants

And

PETER JOHN DOWNES

Respondent

REASONS FOR JUDGMENT

This is an application by the petitioning creditors for leave to file an amended creditor's petition. But in order to get to the stage where that leave can be sought, the creditors have rightly pointed out that I must first make a finding as to the date upon which the current creditor's petition was presented to the court. This is because the act of bankruptcy upon which the creditors now intend to rely in their amended petition is the return, unsatisfied, of a writ of execution which return was made on 21 May 2001. The return of the writ unsatisfied is an act of bankruptcy as defined in section 40(1)(d)(ii) Bankruptcy Act 1966 and pursuant to section 44(1)(c) the act of bankruptcy on which the petition is founded must have been committed within 6 months before the presentation of the petition.
Mr Johnson who appears on behalf of the applicants supports this application by reference to an affidavit of Martin Cameron English of 25 February 2002. In that affidavit Mr English deposes to sending to the registry of the Federal Magistrates Court at Newcastle the creditor's petition and a number of other documents required by the rules, including a cheque in the sum of $250 being the requisite filing fee.
The documents that were sent by Mr English were returned to him by the court; but the letter which he sent bears two stamps. The first is a “received” stamp dated 19 November 2001 from the Family Court of Australia Newcastle registry, and the second is a square stamp with just the word "Received Courthouse Newcastle" and the date 20 November 2001 imprinted. Mr Johnson submits that this copy letter with the stamps endorsed indicates that the petition was "effectively presented" to the court on 19 November 2001 which is a date within 6 months of the act of bankruptcy.
The Federal Magistrates Court of Australia is a court created by s 8 Federal Magistrates Act 1999. The court is described in the Explanatory Memorandum to the act as having been “created in accordance with the Parliament’s power to create federal courts as set out in Chapter III of the Constitution of Australia.” However, the court is empowered under the Act to share facilities with those provided by other courts (ss 90-92 FMA). The way in which the court has chosen to operate, is to share its registries with, and to accept for filing in the Federal Court or the Family Court of Australia, matters which pertain to those that would normally be filed in the registry of those courts. In other words, Family Law matters are expected to be filed in registries associated with the Family Court of Australia and non Family Law matters are expected to be filed in registries associated with the Federal Court of Australia.
In each of those registries there are registrars who are registrars of the Federal Magistrates Court of Australia. The Federal Magistrates Court of Australia in its Act does not distinguish between its two diverse jurisdictions. And therefore, theoretically, a registrar of the Federal Magistrates Court of Australia could act in Family Law matters and in general Federal Law matters. With this background one must now consider the effect of sending a document, namely, a creditor's petition, to the court in a building which it shares with the Family Court of Australia and in which the Federal Magistrates Court conducts solely matters under the Family Court Act and associated Acts.
Mr Johnson has drawn my attention to the case of Perdin v Registrar in Bankruptcy (1982) 43 ALR 512. This is a decision of the Full Court of the Federal Court of Australia. It was held that when the words "presented" or "presentation" were used in the Bankruptcy Act they are different to “filing” and thus a bankruptcy petition can be presented on a date which is different to the date upon which it is filed. In that case a petition had been taken to the court on 9 February 1982 with the appropriate cheque but the petition itself was not dealt with by the Deputy Registrar in Bankruptcy until 10 February 1982 which would have meant that the petition was out of time for the purposes of section 44(1)(c).
The court held that the act of presentation was the introducing of the petition to the court. The court says at 515:
“ There is a distinction of long standing between the presentation and the filing of a petition. The act of presentation has been said to be the act of a party and the act of filing to be the act of the court: see for example Re Daunt (1905) 5 SR(NSW) 533 per Walker J at 536 and 537.”
The court drew a distinction between the filing, which is a matter that comes out of the rules of the court and presentation, which is a matter that comes out of the Bankruptcy Act. In these circumstances Mr Johnson argues that the petition was presented to the Federal Magistrates Court on 19 November even though it was not filed until 27 November which is the date that appears on the creditor's petition that is in the file.
It is a matter of public record that the Federal Magistrates Court of Australia is at the address at 61 Bolton Street to which the papers were sent. It is also a matter of record that the Federal Magistrates Court shares those premises with the Family Court of Australia. It is a further matter of record that the staff at the premises at 61 Bolton Street work for both the Federal Magistrates Court of Australia and the Family Court of Australia. The fact that the stamp which was placed upon the letter is a stamp of the Family Court of Australia does not to my mind negate an argument that the petition was presented to the Federal Magistrates Court.
The return of the documents by the court to the solicitor for the petitioning creditor was an internal decision of the court based, presumably, on the fact that the registry in Newcastle does not normally accept bankruptcy matters for filing. However, an act of presentation once committed cannot be undone. The rules of the Federal Magistrates Court provide that a document can be sent to the court by post (r 2.05) and that was what was done. I am therefore prepared to accept that by sending the document by post to a registry of the Federal Magistrates Court the petition was effectively presented on the date upon which it was received.
What should have happened is that the documents should have been sent to the Registry of the Federal Magistrates Court in Sydney where they would have been filed and returned to the petitioning creditors’ solicitors. But that is an internal matter within the court and does not effect the reading of the Bankruptcy Act. If the Federal Magistrates Court is one in which there is jurisdiction in matters as diverse as family law and bankruptcy then unless there is some reference in the Federal Magistrates Act to a division between those jurisdictions, a court is bound to accept in its Registries the presentation of documents even though those documents may not be filed in the particular Registry to which they are presented. I note here the only provision in the Federal Magistrates Act that might have created separate family law and general federal law registries, s 98, has not been activated by the Minister.
It should not be thought by making this finding that I am encouraging parties to attempt to present documents to Registries of the court which do not normally deal with them. But in this case it has happened and it seems to me that Perdin is sufficient authority to allow me to find that presentation has taken place. That being the case I now have to consider whether or not I should grant leave to amend the petition. Mr Johnson has confirmed that if the petition is amended so that the act of bankruptcy is clearly described as the unsatisfied return of the writ of execution on 21 May, 2001 the petition, as amended, can then be served upon the debtor together with a copy of this judgment. In those circumstances I believe that it is in the interest of justice and the interests served by the Bankruptcy Act to allow the amendment.
I note that the respondent to this application, the debtor, Peter John Downes, has not appeared on any day when this matter has been heard. Namely, 8 February, 15 February and 26 February, 2002.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: