THE QUEEN Bankruptcy-Constitutional law (Cth.)-Powers of Federal Parliament-Powers
conferred upon registrar-Deputy registrar-Direction by Attorney-General- Debtor's petition-Sequestration order-Power of registrar or deputy registrar to make-Judicial power of Commonwealth-Order-Statutory provisions- Validity-Offences-" Bankrupt"--The Constitution (63 &64 Vict. C. 12), S8. 71, 72, 76, 77 (iii)-Bankruptcy Act 1924-1950, SS. 4, 12 (2) (5) (6), 18, 20 (3), 24 (1) (a), 52 (i), 54, 57, 119, 209 (g), 214 (1), 217 (1).
Section 24 (1) (a) of the Bankruptcy Act 1924-1950, considered with the definition of the Court " in S. 4 and with SS. 54 and 57, amounts to an attempt to confer upon a registrar the power of making a judicial order operating as an order of the Bankruptcy Court and is void as purporting to authorize a person not constituting a court under SS. 71 and 72 of the Consti- tution to exercise part of the judicial power of the Commonwealth.
So held by Dixon C.J., McTiernan, Fullagar, Kitto and Taylor JJ. (Webb J. dissenting).
A deputy registrar purported to make a sequestration order upon a debtor's petition and, later, upon a compulsory application for discharge, the debtor was charged with certain offences under SS. 209 (g) and 214 (1) of the Bankruptcy
Held, by Dixon C.J., McTiernan, Fullagar, Kitto and Taylor JJ. (Webb J. dissenting), that as the deputy registrar was not authorized and empowered to make the sequestration order, the order was void and the debtor was not a "bankrupt' within the meaning of SS. 209 (g) and 214 (1).
Per Dixon C.J., McTiernan, Fullagar and Kitto JJ. Registrars and deputy registrars are not officers " of the Bankruptcy Court.
CASE STATED.
This was a special case stated by Clyne J., Judge of the Federal Court of Bankruptcy, for the opinion of the High Court under S. 20 (3) of the Bankruptcy Act 1924-1950.
The special case was substantially as follows 1. On 12th March 1952, Zedekiah Hartstein, an officer of the
THE QUEEN
bankruptcy administration, was appointed to be Deputy Registrar in Bankruptcy in the Bankruptcy District of New South Wales and the Australian Capital Territory, such appointment to be on and from that date and to be during the pleasure of the Governor- General. The said appointment was notified in the Commonwealth Gazette No. 25 of 27th March 1952. A copy of such notification was annexed.
2. On 14th March 1952, the Attorney-General for the Common- wealth of Australia directed that the said Zedekiah Hartstein, a Deputy Registrar in Bankruptcy, in the Bankruptcy District of New South Wales and the Australian Capital Territory, should have, and might exercise and perform, any or all of the powers of the Registrar in Bankruptcy in that Bankruptcy District as on and from 12th March 1952, pursuant to S. 12 (6) of the Bankruptcy Act 1924-1950. That direction was notified in the Commonwealth Gazette No. 25 of 27th March 1952. A copy of the notification was annexed.
3. On 2nd May 1952, Bruce William…
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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AGLC
R v Davison [1954] HCA 46
Case
[1954] HCA 46
Decision Date
CaseChat Overview and Summary
The case of *R v Davison* concerned a special case stated for the opinion of the High Court of Australia by the Judge of the Federal Court of Bankruptcy. The dispute arose when Bruce William Davison was charged with offences under the *Bankruptcy Act 1924-1950* (Cth). A preliminary objection was raised that Davison was not a bankrupt because the sequestration order made against his estate was void. This voidness was alleged to stem from the fact that the order was made by a Deputy Registrar in Bankruptcy, who it was contended, could not constitutionally exercise the judicial power of the Commonwealth.
The central legal issue before the High Court was whether the provisions of the *Bankruptcy Act* that purported to empower a registrar or deputy registrar to make a sequestration order on a debtor's petition were constitutionally valid. Specifically, the Court was required to determine if the making of such a sequestration order constituted an exercise of the judicial power of the Commonwealth, and if so, whether the registrar or deputy registrar, not being a court constituted under Chapter III of the Constitution, could validly exercise such power.
A majority of the High Court, comprising Dixon C.J., McTiernan, Fullagar, Kitto, and Taylor JJ., held that the making of a sequestration order, whether on a creditor's or debtor's petition, involved the exercise of judicial power. The Court reasoned that such an order significantly affects a person's status and property rights, and that the legislative intent, particularly as reflected in sections like s. 24(1)(a) of the *Bankruptcy Act*, was to confer a judicial function upon the registrar. As registrars and deputy registrars were not officers of the Bankruptcy Court but were considered strangers to it, and as they did not constitute a court under sections 71 and 72 of the Constitution, they could not constitutionally exercise this judicial power. Therefore, section 24(1)(a) of the *Bankruptcy Act*, in so far as it purported to authorise a registrar to make a sequestration order, was void. Webb J. dissented, taking the view that the sequestration process was primarily administrative and executive in nature, and that the early English bankruptcy statutes did not necessarily involve judicial power.
Consequently, the High Court answered the questions posed in the special case in the negative. It was held that the Deputy Registrar was not authorised to make the sequestration order, and therefore, Bruce William Davison was not a bankrupt within the meaning of the relevant sections of the *Bankruptcy Act*. This meant that the charges against him could not stand.