THE KING Bankruptcy-Offer.ces-Debtor assigning estate- Whether subject to penal provisions
of Act as a bankrupt or " *person against whom a sequestration order is made
Bankruptcy Act 1924-1930 (No. 37 of 1924-No. 17 of 1930), secs. 4, 166, 168, 210, 212.
A was arraigned on an information containing two counts charging offences under the Bankruptcy Act 1924-1930. The first count charged an offence under sec. 210 and the second count an offence under sec. 212. The information and did not allege that A was a bankrupt or that an order of sequestration had been made against him, but did allege that he had executed a deed of assign- ment pursuant to Part XI. of the Act and so was deemed to be a bankrupt and a person against whom a sequestration order had been made.
Held that the liability to the penal sanctions imposed by secs. 210 and 212 depended on the status of bankruptcy, that the Act (in particular, sec. 168) did not give A that status, and that the information therefore disclosed no offence.
QUESTIONS OF LAW RESERVED.
The Attorney-General for the Commonwealth filed an information against George Adams in the Supreme Court of South Australia. Before the defendant pleaded to the information his counsel moved to quash it on the ground that it disclosed no offence. After hearing argument Murray C.J., the presiding Judge, intimated that he would reserve questions of law for the decision of the Full Court of the High Court. The questions were reserved substantially as follows :-
1. On 7th December 1934 George Adams was committed for trial at the Criminal Sittings of the Supreme Court of South Australia.
2. Subsequently the following information was filed in the Supreme Court of South Australia :-Information of the Attorney- General for the Commonwealth of Australia-George Adams is charged with the following offences -1st Count-Statement of Offence-Making material omissions in a statement under the Bankruptcy Act (Bankruptcy Act 1924-1930 (Commonwealth), sec. 210 (1) (d) ). Particulars of Offence-George Adams being a person who on the 1st day of April 1931 executed a deed of assignment pursuant to Part XI. of the Bankruptcy Act 1924-1930 to Leslie William Ferres as trustee for his creditors and being deemed to be a bankrupt within the meaning of sec. 210 (1) of the said Act at Adelaide on the said 1st day of April 1931 made material omissions in a statement relating to his affairs to wit the first schedule required by sec. 163 (1) (b) of the said Act in that the said George Adams omitted from such statement any reference to certain of his property namely :-[here followed particulars]. 2nd Count-Statement of Offence-Transferring property with intent to defraud creditors (Bankruptcy Act 1924-1930 (Commonwealth), sec. 212 (1) (b) ). Particulars of Offence-George Adams being a person who at Adelaide on the 1st day of April 1931 executed a deed of assignment pursuant to Part XI. of the Bankruptcy Act 1924-1930 to…
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.
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Details
AGLC
R v Adams [1935] HCA 62
Case
[1935] HCA 62
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered questions of law reserved by the Supreme Court of South Australia concerning an information filed by the Attorney-General for the Commonwealth against George Adams. The information contained two counts, alleging offences under sections 210 and 212 of the *Bankruptcy Act 1924-1930*. The charges stemmed from Adams' execution of a deed of assignment under Part XI of the Act, with the prosecution contending that this status deemed him a bankrupt and a person against whom a sequestration order had been made, thereby subjecting him to the penal provisions of the Act.
The central legal issue before the High Court was whether the execution of a deed of assignment under Part XI of the *Bankruptcy Act 1924-1930* rendered a debtor liable to the penal sanctions imposed by sections 210 and 212 of the Act, which specifically apply to "bankrupts" and "persons against whom a sequestration order is made." The court was required to determine if section 168 of the Act, which states that the execution of such a deed is deemed for all purposes equivalent to a sequestration order, operated to confer the status of bankruptcy for the purposes of these penal provisions.
The High Court held that the liability to the penal sanctions under sections 210 and 212 was expressly dependent on the status of bankruptcy, as defined by section 4 of the Act. The Court reasoned that while section 168 provided that the execution of a deed of assignment was equivalent to a sequestration order for certain purposes, it did not confer the actual status of bankruptcy required to attract the penalties under sections 210 and 212. The Court emphasised that penal provisions are to be construed strictly and that any extension of their ambit must be clearly expressed by the legislature. Given that Part XI of the Act provides for assignments without sequestration, and other sections within the penal provisions of Part XIV distinguish between bankrupts and debtors executing deeds under Part XI, the Court concluded that section 168 did not operate to make Adams a bankrupt for the purposes of the charged offences.
Consequently, the High Court answered the first two questions reserved in the negative, finding that neither count of the information disclosed an offence against the *Bankruptcy Act 1924-1930*. As a result, it was unnecessary to consider the third question regarding the jurisdiction of the Supreme Court of South Australia to try the second count. No order was made as to costs.