Re Campbell, N.R. v Ex parte The Official Trustee

[1987] FCA 152

Re: NOEL RODNEY CAMPBELL A bankrupt
Ex Parte: THE OFFICIAL TRUSTEE
No. 234 of 1977
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Jenkinson J.

CATCHWORDS

Bankruptcy - Discharge - Trustee's application for deferment dismissed - Bankrupt's costs - Whether to ordr payment by trustee.

Bankruptcy Act, 1966 - s. 149 (12)

Hunter v. Official Trustee (1980) 33 ALR 457

Scott Fell v. Lloyd (1911) 13 CLR 230

Re Arthur Williams; Ex parte Official Receiver (1913) 2 KB 88

In re John Tweddle & Co. (1910) 2 KB 697

Bottomley v. Brougham (1908) 1 KB 584 at 587-588

HEARING

MELBOURNE

#DATE 6:4:1987

JUDGE1

On 30 May 1986 I dismissed an application, by the trustee of the bankrupt estate of Noel Rodney Campbell, for an order that the bankrupt should not be discharged from bankruptcy by virtue of s. 149 of the Bankruptcy Act 1966. Mr Campbell, who had appeared by counsel to resist the application, sought an order that his taxed costs of the application be paid by the applicant trustee. It was submitted by Mr McLean of counsel for Mr Campbell that the Official Trustee, like any trustee of the estate of a bankrupt, was liable to be ordered to pay the bankrupt's costs of an unsuccessful application under s. 149 (12) of the Bankruptcy Act 1966, by exercise of the discretionary power with respect to costs in accordance with the same general principles as guide the exercise of the discretion in civil litigation between parties who are acting in furtherance of their own interests. The applicability of those principles to a proceeding instituted by the trustee of a bankrupt under that sub-section was established, according to the submission, by Hunter v. Official Receiver (1980) 33 ALR 457; Scott Fell v. Lloyd (1911) 13 CLR 230; and Re Arthur Williams & Co.; Ex parte Official Receiver (1913) 2 KB 88.

1. The first two of those cases were concerned with the costs of appeals in which the bankrupt was appellant and the trustee respondent. The third case was concerned with the costs of an application to which the parties were the trustee and a person found in the deciding of the application to be a stranger to the bankruptcy.

2. The Full Court of this Court stated in Hunter v. Official Receiver 33 ALR at 463 the principle by which the decision of the High Court in Scott Fell v. Lloyd, supra bound this Court in the words of Griffith C.J. in the latter case (13 CLR at 244): "... when an official assignee becomes an active litigant he is exposed to the same risks as any other litigant." It may be thought that the principle was given by the Full Court a further exposition, and was shown to be not limited in its application to the litigious activities of a trustee in bankruptcy in appellate proceedings, by the reference made by the Full Court, with apparent approval, to the distinction dran in Re Arthur Williams & Co., supra "between cases where the Official Receiver is performing a quasi-judicial function under a statutory obligation and cases where he engages in litigation in exercise of a discretion to do so" (33 ALR at 462). In the former case the Official Receiver ought not to be ordered to pay costs, it was held, but in the latter case costs might be awarded againt him. Re Arthur Williams & Co. was not a case of appeal and the principle upon which the Full Court's decision of the question of costs in Hunter v. Official Receiver was based is not expressed to be confined - although it was propounded in relation - to a trustee in bankruptcy's participation in an appeal. I think I should regard the principle as applicable to an application by which the trustee has invoked the exercise of original jurisdiction.

3. This case is not one in which the Official Trustee lay under an express statutory obligation to bring the application. Section 149 (12) of the Bankruptcy Act 1966 confers a power on each of "the Registrar, the Inspector-General, the trustee or a creditor" to apply for an order directing that the bankrupt shall not be discharged from bankruptcy by virtue of that section, but on none of them does the Act expressely impoe an obligation to make such an application. It was in exercise of a discretion that the Official Trustee brought the application. But I think that a consideration of the judgments in Re Arthur Williams & Co., supra and in re John Tweddle & Co. (1910) 2 KB 697 shows that the statutory obligation which the members of the Court of Appeal had in contemplation included that which was implied as well as that which was express. The provisions of the Bankruptcy Act 1966 with respect to the powers and functions of the Registrar and the Inspector-Genral give no ground for doubting the sufficiency of those powers to enable them effectively to exercise, if the need arose, the function conferred on them by s. 149 (12): see ss. 12(1)(b)(i), 12(1)(ba)(i), 12(1B), 12(2), 14 and 19B. But in my opinion a consideration of the scheme of the Act and of the practical operation of its administration suggests that in the ordinary course of that administration it is upon the trustee of the bankrupt that the responsibility should fall of deciding whether an application should be made to the Court under s. 149(12). And the prescription made by Rule 51A of the Bankruptcy Rules of the matters to be taken into account by the Court, pursuant to s. 149(13), in deciding whether to accede to such an application strongly indicates the trustee of the bankrupt as the person who would usually be the most suitable applicant, and the best placed to decide whether application should be made, in my opinion. Read as a whole, the Act is in my opinion to be taken to impose an obligation on the trustee of a bankrupt to consider whether such an application ought to be made and, if the trustee considers that it ought, to make it. Each of the other persons named in s. 149(12) who are engaged in bankruptcy administration - the Registrar and the Inspector-General - may in certain circumstances have occasion to consider whether he ought to bring such an application, but in most cases each of them would undertake the responsibility of determining whether an application should be brought. It is difficult to suppose that the legislative intention disclosed by s. 149 - could be carried into effect unless trustees did undertake that responsibility. The resources available to the Registrar and the Inspector-General could hardly support adequate consideration by either of them of all the matters relevant to the discharge of that responsibility in relation to all, or to any very substantial proportion of, bankrupts, much less support the burden of instituting and conducting those applications under s. 149(12) which either of them should think himself under a duty to bring if he were to consider the case of every bankrupt.

4. My conclusion is that the trustee of the bankrupt lies under an obligation, the existence of which is to be inferred from the terms of the Bankruptcy Act, to decide whether an application under s. 149 (12) of that Act ought to be made and, if he decides that it ought, to bring the application unless it appears that one of the other persons qualified to apply intends to do so. I turn to consider the references in Hunter v. Official Receiver, supra, and in the two English cases cited, to the "judicial" or "quasi-judicial" or "semi-judicial" character of those litigious activities of the Official Receiver which, it is said, do not expose him to the risk of an order against him for costs. What is indicated by those references is, not the exercise by the Official Receiver of a decision-making function (although that may precede and determine what he is to do), but his participation in a judicial proceeding under statutory obligation, as by making a report upon the making of which, or upon the inclusion of specified matter in which, the institution of a curial proceeding is conditioned. (See, for example, the report required by s. 8(2) of the English Companies (Winding-up) Act 1890: (1910) 2 KB at 698.) The introduction of the adjective "judicial", and the significance accorded the word by Cozens-Hardy M.R. in the two English cases, may be traced in the judgment of Farwell L.J. in In re John Tweedle Company Ltd. (1910) 2 KB at 706 to the judgment of Channell J. in Bottomley v. Brougham (1908) 1 KB 584 at 587-588. Considering whether absolute privilege, under the law of defamation, attached to the contents of a report of an Official Receiver made in pursuance of s. 8(2) of the English Companies (Winding-up) Act 1890, Channell J. observed:
   
   "The real doctrine of what is called 'absolute privilege'
   

is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not ... it is desirable that persons who occupy certain positions as judges, as advocates, or as litigants should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious ...

Starting with that as being the doctrine, does not the case of the official receiver come clearly within it? In my opinion it comes within it on two grounds.

I think, in the first place, that the official receiver has a statutory duty to inquire in a judicial way into certain matters by the Act of 11890, and that in performing that duty he is acting in a judicial capacity. It is quite true that the report is made ex parte, but that makes no difference. A judge in hearing an ex parte application is still acting as a judge, and the absolute privilege applies quite as much as when he is hearing a case in which both parties appear. The fact that this was a preliminary inquiry equally does not prevent it being a judicial inquiry. An inquiry before a magistrate on a charge of murder, for instance, which he has certainly no power to deal with, and a sto which he is only inquiring in a preliminary way whether there is a case for committing the accused person for trial, is clearly a judicial proceeding although it is preliminary to the trial. ...

But, even if that is not sound, there is the further ground that the report of the official receiver may be treated, not so much as the judgement in a judicial proceeding, but as the initial stage of proceedings in the winding-up Court, which clearly is a Court. It is the information upon which the proceedings take place, and it is made by the official receiver under a statutory duty."

1. In my opinion the reasoning of the members of the Court of Appeal in In re Arthur Williams & Co. supra and In re John Tweddle & Company Ltd. intends no more by reference to the "judicial" character of the functions under discussion than that each function forms part of an administrative process of which the final stages are committed to a Court and in which the function so characterised is exercised under a statutory obligation to discharge what Cozens-Hardy M.R. described as "public duties for the public welfare". If that be so, the obligation under which, as I have held, the trustee of a bankrupt lies of considering whether he should make an application under s. 149(12), and of making the application if he considers that the decision of the Court should be sought under that sub-section, is an obligation of a quasi-judicial kind, in the sense in which in those cases and in Hunter v. Official Receiver that description is applied. In such a case the trustee does not in my opinion engage in litigation in exercise of a discretion to do so, in the sense intended by the reasoning of those cases. The trustee discharges an obligation to make the appliation under s. 149(12) when he makes it in the conviction that it ought to be made, and made by him. And the discharge of the obligation is in my opinion correctly conceived as the performances of a public duty for the public welfare. If the trustee's decision tomake an application under s. 149(12) were considered by the Court to have been unreasonable, or if the conduct of the application by the trustee were considered to have been unreasonable in some respect, that would be a consideration in favour of an exercise of the discretionary power to order the trustee to pay the bankrupt's costs of the application. But I do not consider that in this case there was anything unreasonable in the institution or the prosecution of the application. In those circumstances I do not consider that any order for payment of the bankrupt's costs by the applicant trustee ought to be made.

2. Both Hunter v. Official Receiver, supra and Scott Fell v. Lloyd, supra were cases in which the Official Receiver in the one case and the Official Assignee in the othr had in compliance with his statutory duty made a report to the Court to which the bankrupt applied in the first instance for discharge. In each case it was only the costs of proceedings by way of appeal from the original order for discharge that were in question. In each case the appellate Court characterised the position of the Official Receiver or Assignee as indistinguishable, in respect of costs, from that of other unsuccessful litigants. The characterisation thus adopted accords with the dominant principle to be discerned in the rules as to costs formulated in respect of proceedings, both at first instance and on appeal, to which bankruptcy trustees and liquidators are parties. (See McDonald Henry and Meek: Australian Bankruptcy Law and Practice (5th ed.) paras. 100, 101, 796; Williams and Muir Hunter on Bankruptcy (19th ed.) 423-424; Re Wilson Lovatt & Sons Ltd. (1977) 1 All ER 274.) Underlying the adoption of the principle that trustees in bankruptcy and liquidators should suffer the same consequences, in costs, of failure in litigation as other litigants seems to have been a concern to ensure fairness to the adverse parties. That concern, and the reasoning which proceeded from it, did not comprehend, as it seems to me, the bankrupt himself as a party to litigation against his trustee, except in appellate proceedings. But I do not ground my conclusion that in this case there should be no order to costs on that opinion.