Re Boxshall, M.G. v Deputy Commissioner of Taxation of the Commonwealth of Australia

[1988] FCA 58

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JUDGMENT No. 5 8 1 83

E:  MAXWELL GARRETT BOXSHALL

Judgment Debtor

M PARTE:	DEPUTY COMMISSIONER OF
TAXATION  OF THE
COMMONWEALTH OF AUSTRALIA

Petitioning Creditor

W:  Jenklnson J.

PLACE	:	Melbourne
m:	11 February, 1388

Hearlng of a bankruptcy petition.

On the hearing of the petition yesterday, there vas no

appearance for the debtor. Mr. Moshinsky of counsel for the

petitioner, Deputy Commissioner of Taxation of the Commonwealth of

Australia, pointed out that in this case the petltion had been

signed, not by the petltioner, but in the name of the petitioner

by one of his offlcers, so that at the foot of the petltion,

beneath the date, appears the wrltten name "R. Conwell" (the Deputy Commlssioner concerned being Raymond Leslie Conwell), and beneath the signature is typed his official name "Deputy

Commissioner of Taxatlon for the State of Victoria." Mr.

Moshinsky explained that thls course had been taken advisedly and

in reliance on the provisions of regulations known as the Income Tax Requlations made under power conferred by the Income Tax

Assessment Act 1936. The regulation upon which the petitioner

relies in justification of the course taken	is Regulation 62.
Regulatlon 62 reads:

"(1) Judicial notice shall be taken of the

names and slgnatures of the persons who are,

or were at any time, the Cornmissloner, a Second Commissloner, a Deputy Commissioner or a prescrlbed delegate uf the Commlssloner.

( 2 ) A certificate, notice	or other document
bearing the wrltten,	prlnted or stamped name
(including a facslmlle of the signature) of	a

person who is, or was at any time, the

Commlssioner, a Second Commlssioner, a Deputy Cornmissloner or a prescrlbed delegate of the Commissioner in lieu of that person S signature shall, unless it is proved that the

document was lssued without authorlty, be

deemed to have been duly signed by that

person. 'I

It was submltted on behalf of the petitloner that sub-regulatlon

( 2 ) operated on	the hearing as a command addressed to the court
hearing the petltion to treat	the writmg at the foot of the
petltlon as establlshing that the petltion was, for the purposes
of the proceedlng,	that is to say the hearlng of the bankruptcy
petition, duly signed by the petitioner, there being In thls	case

no evidence to suggest that the petltion was issued without the

authority of Raymond Leslle Conwell.

The Bankruptcv Act 1966 provides by sub-section 47(1):

"A creditor's petition shall be in accordance

with the prescribed form."

.

3 .

The form prescribed is that which is prescribed by Rule 12 of the

BankruDtcv Rules, and is set out in the form numbered 5 in the

First Schedule to those rules. The form concludes with these

words :

uf	day	this	"Dated
Signed by the petitioner

prese ce:(a) my in )

(a)	If the petltioner 1s a corporation, the petltion may be
under the seal of the corporatlon and the seallng need
not be I n the presence of a person other than a person
required tu witness the sealing of a document by the

corporatlon.

(Signature, address and

occupatlon of wltness)

This petitlon is filed by on behalf of whose

address for service is

In my opinion, the provisions of the Bankruptcv Act and

the Rules to whlch I have referred amount to a statutory command

that a natural person who deslres to procure the issue of a petition shall, himself, make whatever marks at the foot of the

petition may satisfy the requirement expressed by the word

"signed", In the presence of a person who thereafter himself signs

beneath the words "Signed by the petitioner in my presence." It is therefore, in my opinlon, a requirement of the Bankruptcv Act that, whatever acts causlng markings on the petitlon may satlsfy

the requirement of signing, they must be acts done by the person

who 1s the petitioner, and they must be done in the presence of
another person who thereafter signs as witness to the commisslon
of those acts by the petitioner. If that be so, then it becomes

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4.

unnecessary to consider the proper construction and operatlon of Regulation 6 2 . Regulation 62 is concerned to address commands to courts and other bodies as to what circumstances may suffice to

require the conclusion that there has been a due signlng. It may

be assumed that thls particular petltion has been duly slgned, but

it is plaln - and the petitioner and his advisers and his counsel

have made it perfectly plain wlth complete frankness - that there

has not been compliance with the requirements of the	BankruPtcv
&	A
that the marks made in thls particular case, the letter and word "R. Conwell", be placed on the document by the petitloner, In
the presence of the person who in fact signed in testlmony that it
had been so, a C. McIlwain, an offlcer of the petitioner's
Department. I make it, of course, perfectly plain that there 1 s
not the slightest suggestion of any improprlety on the part of Mr.
McIlwain OK of anybody else concerned in the preparatlon and Issue
of the petition. The view has no doubt been taken that Mr.
McIlwain was able to testlfy to what he dld testify m rellance
upon provlslons of the law, including no doubt Regulation 6 2 . But
it is my concluslon that in that view he and they were quite
mistaken. It could not, m my opinion, be supposed that in some
way a regulation made under one Act of the Commonwealth Parliament
was to modify implledly a different requirement of another Act.
It will be noticed that the requirement of attesting the signature
by the petitioner is a requirement of the Bankruptcy Act, because
the Act provldes that the petition shall be in accordance with the
form prescribed. This petition was not regularly presented
because the attesting by Mr. McIlwain was not the attesting
required and, the irregularity having been dlsclosed, I would have
thought that the proper course 1s for the petition to be
dismissed. But the consequences were not the subject of a
submission. I would he prepared to hear Mr. Moshinsky about that.
MR. MOSHINSKY: Your Honour, we accept your Honour's ruling that
the petition ought to be dlsrnlssed.
HIS HONOUR:  Yes, very well. Order that the petltion be
dismissed.

I certify that this and the 4

preceding pages are a true copy of

the Reasons for Judgment herein	of
the Honourable Mr.	Justice
Jenkinson.

Assoclate -

Dated: 11 February, 1988 fl