Re Basile, T. v Ex parte Ancich, E.J
[1985] FCA 474
•18 SEPTEMBER 1985
Re: TONY BASILE
Ex Parte: ERIC JOHN ANCICH
No. QLD PET 123 of 1985
Bankruptcy - Judgements and Orders
8 FCR 287
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.(1)
CATCHWORDS
BANKRUPTCY - order for costs - whether execution may issue.
FEDERAL COURT - power to issue writs - implied limitation of such power.
STATUTES - power given "subject to the rules" - effect of such subjection - resolution of apparent conflict between two statutory provisions.
Federal Court of Australia Act, ss.23, 53, 59(2)(j)
Federal Court Rules, o.1 r.11, o.37 r.7, o.41
Bankruptcy Rules, r.119
Bankruptcy - Enforcement of order for costs - Whether writ of execution could issue - Federal Court of Australia Act 1976 (Cth), ss 23, 53 - Federal Court Rules (Cth), O 1, r 11, O 37, r 7, O 41 - Bankruptcy Rules (Cth), r 119.
Judgments and Orders - Enforcement of orders by execution in bankruptcy cases - Order for costs of petitioner - Bankruptcy Rules, r 119 - Federal Court of Australia Act 1976 (Cth), ss 23, 53, 59(2)(j) - Federal Court Rules O 1, r 11, O 37, r 7, O 41.
HEADNOTE
The court cannot direct the issue of a writ of execution to enforce an order for costs made by it in bankruptcy proceedings as neither the Federal Court Rules (which entirely supplant the operation of s 53 of the Federal Court of Australia Act 1976 (Cth) (the Act) in relation to execution) nor the Bankruptcy Act 1966 (Cth) empower the court to issue execution in such proceedings. Further, the power to issue writs of execution in bankruptcy proceedings cannot be found in s 23 of the Act as the expression "writs of such kinds as the Court thinks appropriate" contained in that section excludes writs of execution by virtue of the operation of s 53.
Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184; Re Pearson (1930) 2 ABC 264; Re Sutherland; Ex parte The Up-To-Date Printing Co Ltd (1933) 5 ABC 175; Thomson Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 148 CLR 150; Victorian Stevedoring and General Contracting Co Pty Ltd v. Dignan (1931) 46 CLR 73; Cooper Brookes (Wollongong) Pty Ltd v. Federal Commissioner of Taxation (1981) 147 CLR 297, referred to.
HEARING
Brisbane, 1985, September 9, 18. #DATE 18:9:1985
QUESTIONS REFERRED
Questions referred to the court by the Registrar in Bankruptcy pursuant to r 119 of the Bankruptcy Rules.
P W Sayer, for the applicant.
R. F French, for the respondent.
Cur adv vult
Solicitors for the applicants: Gilshenan and Luton.
Solicitors for the respondents: Skinner and Smith.
CMH
ORDER
No writ of execution may be issued in respect of the costs order made by Spender J.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is a matter referred to the Court by the Registrar pursuant to r.119 of the Bankruptcy Rules.
On 7 May 1985 Mr Justice Spender dismissed a petition brought by Eric John Ancich, a judgment creditor, against Tony Basile, the judgment debtor, ordered that the sum of $1,340 paid into Court by or on behalf of the judgement debtor be paid out to the petitioning creditor's solicitors, and ordered that "the debtor pay the costs of and incidental to the petition, to be taxed if not agreed". On 25 July 1985 the taxing officer signed a certificate of taxation in respect of the dismissed petition in the sum of $1,671.79. Subsequently, the solicitors for the judgment creditor applied to the Registrar in Bankruptcy to issue a writ of execution against Mr Basile in respect of his Honour's judgment for the costs. The Registrar seeks to have decided two questions:-
1. Whether he may issue a writ of execution, and
2. If a writ of execution may be issued, in what form should it issue.
It does not appear that any very confident answer may be given to the first question; the point is rather obscure. I have found it necessary to trace rather a tortuous path towards my conclusion.
Riley J. in Re Pannowitz (1975) 6 ALR 287 at pp 297-300, held that the Registrar could not, under the Bankruptcy Act 1966, issue a writ of execution to enforce any judgment or order made under that Act, although such writs were able to be issued under the 1924 Act (see Re Pearson (1930) 2 ABC 264 and Re Sutherland (1933) 5 ABC 175). However, the enactment of the Federal Court of Australia Act 1976 brought into existence two sections which bear upon Riley J's. conclusion. They are ss.23 and 53; it is convenient to deal with the latter first.
Section 53 provides:-
"(1) Subject to the Rules of Court, a person in whose favour a judgment of the Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enforcement of judgments of the Court."
It will be noted that the section applies "subject to the rules of court". The phrase is, perhaps, capable of meaning no more than that rules may vary or regulate the process of execution for which the section provides. However, that does not appear to be the true intention; by s.59(2)(j) the rules may make provision for execution and I note that it is the entitlement which, by the terms of s.53, is subjected to the rules. It appears to me to follow that such provision as is made by the rules for execution may supplement or replace entirely the provision in s.53.
The principal rule relating to execution, o.37 r.7, is similar in its effect to s.53. That is, it gives the Court power, subject to the rules, to:-
"... in order to enforce a judgment or order of the court, make any order, issue any writ or take any other step that could be made, issued or taken by the Supreme Court of the State or Territory in which the judgment or order is to be enforced if the judgment or order had been made by that Supreme Court."
The making of this rule has resulted in the supersession of the provision for execution in s.53. It is now to the rules, and not to s.53, that one looks for the source of power to issue execution.
The argument to the contrary is that, while it may be generally true that the rules now govern execution, the rules simply do not apply, subject to o.41, to proceedings under the Bankruptcy Act 1966: see o.1 r.11. The point may be made by posing the question: how can it be, if the rules made under the Federal Court Act do not apply to bankruptcy cases, that they nevertheless operate to take away the entitlement to execution given by the Federal Court Act? The answer, I think, is that examination of the rules relating to execution shows clearly enough that they were intended to be exhaustive of the subject and not to leave any residual operation in s.53. The fact that the provision for execution made by the rules is to the same effect as that in s.53 supports that notion.
Looking at the matter more broadly, the conclusion that the intention of the rules was to preserve the operation of s.53 only in bankruptcy cases is so improbable that only clear language would justify one in adopting it.
The conclusion, then, to this point is that the rules under the Federal Court Act have, as s.53 says they may, supplanted the operation of the section in all matters in the Federal Court, including bankruptcy cases; however, the provision in the rules for execution does not apply to bankruptcy cases.
It should be added that it does not appear that there is any question about the validity of s.53, on the basis that by it the legislature has delegated too much; Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 CLR 73.
SECTION 23
I pass now to the next question, which is whether an independent power to issue writs of execution is given by s.23. It reads as follows:-
"The court has power, in relation to matters in which it has the jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the court thinks appropriate."
The provision has been considered a number of times in respect of grants of interlocutory injunctions and similar relief, for example by the High Court in Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission 37 ALR 66. However, there appears to be no authority on the effect of the latter part of the provision, empowering the issue of writs.
Since s.23 is not made "subject to the rules" the power it gives cannot be taken away by the rules, which cannot, of course, be inconsistent with the Act. The question simply is, then, whether reading the Act as a whole s.23 was intended to, and did, give the Court power to issue writs of execution.
Reading s.23 in isolation, no ground appears for limiting the expression "writs of such kinds, as the court thinks appropriate", in such a way as to exclude writs of execution. Further, it is clear that such a reading would involve a quite substantial limitation of the important power given by s.23.
Nevertheless, I have come to the conclusion that the limitation should be read into the section. Reflection on the matter has convinced me that it cannot possibly have been intended that ss.23 and 53 should cover the same ground. The latter gives a right to execution "subject to the rules', which, for the reasons explained above, must mean that the rules may take the entitlement away and replace it by one, of the same or a different kind, conferred by the rules. It would make no sense to have that scheme co-existing with a simple grant of power to issue writs of execution, irrespective of the content of the rules. I am somewhat encouraged towards this conclusion by the example of the decision of the High Court in Cooper Brookes (Woollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 35 ALR 151. It would be capricious and irrational of the legislature to have, on the one hand, made specific provision by s.53 for execution, subject to the rules, while, on the other hand, making general provision by s.23 for the issue of writs including writs of execution, not subject to the rules. The appearance of caprice and irrationality may be removed by making the necessary implication in s.23, and that I do.
The ultimate conclusion, then, is that no writ of execution may be issued in respect of the order for costs made by Spender J.
0
5
0