Maslen v The Official Receiver - [1947] HCA 30

RESPONDENT,

THE OFFICIAL RECEIVER

RESPONDENT. APPLICANT,

ON APPEAL FROM THE SUPREME COURT OF Bankruptoy-Contempt-Application for discharge-Stranger to proceedings-Pro-

curing false receipts from creditors-Attempt to deceive the Court-State Supreme Court exercising Federal jurisdiction in bankruptcy--Summary proceedings- PERTH,

Bankruptcy matter "-Jurisdiction--Right of appeal-Evidence-Transcript Sept. 3, 4, 5,

of proceedings on application for discharge-Bankrupicy Act 1924-1946, 88. 4, 18 (1) (b), 20 (1), 26 (2), 76 (2).

An appeal lies as of right under S. 26 (2) of the Bankrupicy Act 1924-1946 from an order of a Court of Bankruptcy committing for contempt a person not a party to the proceedings.

At the hearing of an application for a certificate of discharge it was stated by the legal representative of the bankrupt that creditors had been paid 5s. in the pound, but on an intimation by the judge that 20s. in the pound should be paid in the estate, the application was adjourned. On the hearing of the adjourned application receipts were produced purporting to show that creditors had been paid 5s. in the pound prior to the original hearing of the application and that a further 15s. in the pound had been paid to creditors following on the judge's intimation. It was shown that these receipts were false in certain particulars and had been procured by an accountant acting in the interests of the bankrupt.

On motion by the Official Receiver the Supreme Court of Western Australia sitting in bankruptcy committed the accountant for contempt of court on the ground that he had interfered with the course of justice by attempting to deceive the Court by means of the false receipts.

74 CLR 603

In the application for committal an affidavit was sworn to which was exhibited a transcript of the proceedings on the adjourned application for discharge. The affidavit and the exhibit were used without any objection being taken.

Held (1) That in making the order for committal the Supreme Court was exercising Federal jurisdiction conferred by S. 20 (1) of the Bankruptcy Act

(2) That the Supreme Court acted on a correct principle in entertaining the motion to commit for contempt under that section.

(3) That in summary proceedings of this character it is open for the parties to waive the strict rules of evidence and allow depositions to be used and in the circumstances of this case it was not open for the appellant to complain that the transcript was before the Court.

(4) That the charge of contempt of court had been established. Decision of the Supreme Court of Western Australia (Wolff J.) in part varied and in part affirmed.

APPEAL from the Supreme Court of Western Australia.

Samuel Mackomel, whose estate was sequestrated in 1930, on 25th June 1946 made an application for a certificate of discharge to the Supreme Court of Western Australia (Wolff J.) sitting in bankruptcy. At the hearing of the application Mackomel was represented by a solicitor who stated that the sum of 5s. in the pound had been paid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maslen v The Official Receiver

Details

AGLC: Maslen v Official Receiver [1947] HCA 30
Case: [1947] HCA 30
Decision Date: 11 September 1947

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from an order of the Supreme Court of Western Australia, sitting in its bankruptcy jurisdiction. The appeal was brought by Edward Robert Maslen, a public accountant, who had been committed for contempt of court by the Supreme Court. The contempt arose from Maslen's actions in procuring false receipts from creditors of a bankrupt, Samuel Mackomel, in an attempt to deceive the court during Mackomel's application for a discharge.

The High Court was required to determine several legal issues. Firstly, it had to consider whether an appeal lay as of right to the High Court from an order committing a person, who was not a party to the bankruptcy proceedings, for contempt of court. Secondly, the Court needed to assess whether the Supreme Court had acted on a correct principle in entertaining the motion to commit for contempt under the relevant provisions of the *Bankruptcy Act 1924-1946*. Finally, the Court had to decide whether the charge of contempt had been established and, if so, whether the punishment imposed was appropriate, particularly in light of objections raised regarding the admissibility of evidence.

The High Court held that an appeal lay as of right under section 26(2) of the *Bankruptcy Act 1924-1946* because the order for committal, made under the federal jurisdiction conferred by section 20(1) of the Act, constituted an order made in a bankruptcy matter. The Court found that the Supreme Court had acted on a correct principle in entertaining the motion to commit, as the summary jurisdiction for contempt is designed to repress interferences with the course of justice. Furthermore, the Court determined that in summary proceedings, parties could waive strict rules of evidence, and therefore Maslen could not complain about the use of a transcript of prior proceedings, especially as no objection was raised at the time. While the contempt was established, the Court varied the sentence, reducing the term of imprisonment to fourteen days (which had already been served) while upholding the fine, concluding that this punishment was adequate given the circumstances.

Orders