Re Estate of Nashat Gamali Ex Parte Gamali, Walid

[1997] FCA 636

CATCHWORDS

BANKRUPTCY - bankruptcy notice - judgment obtained by Accident Compensation Commission against debtor for compensation after fraudulently obtaining a payment under Accident Compensation Act 1985 (Vic) - whether final order - bankruptcy notice issued by Victorian WorkCover Authority, successor in law to Accident Compensation Commission - whether misleading

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Re Borg (1965) Arg 926

Re Gibbs; ex parte Trescott (1995) 133 ALR 718

Re Hanson; ex parte Hanson (1985) 4 FRC 59

Re:  Estate of Nashat Gamali ex parte: Walid Gamali v Victorian WorkCover Authority
No. VB 3136 of 1996

JUDGE:        HEEREY J
PLACE:        MELBOURNE
DATED:       15 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)  VB 3136 of 1996
)
GENERAL DIVISION	)

BETWEEN:             

RE:

ESTATE OF NASHAT GAMALI

Debtor

EX PARTE:             

WALID GAMALI

Applicant

- and -

VICTORIAN WORKCOVER AUTHORITY

Respondent

JUDGE:

HEEREY J

PLACE:

MELBOURNE

DATED:

15 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs, including reserved costs.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	)   VB 3136 of 1996
)
GENERAL DIVISION	)

BETWEEN:             

RE:  

ESTATE OF NASHAT GAMALI

Debtor

EX PARTE:

WALID GAMALI

Applicant

- and -

VICTORIAN WORKCOVER AUTHORITY

Respondent

JUDGE:

HEEREY J

PLACE:

MELBOURNE

DATED:

15 JULY 1997

REASONS FOR JUDGMENT

The applicant seeks a review of an order made by Registrar Wood on 15 October 1996 sequestrating the deceased estate of Nashat Gamali.  The substantive issues are whether the judgment on which the bankruptcy notice was based was a final order and whether the bankruptcy notice was misleading.  Before dealing with these issues I turn to some procedural matters.

First, the applicant is the son of the late Nashat Gamali (the deceased) who died on 17 April 1996.  The widow of the deceased, and mother of the applicant, is still alive and is the next of kin.  She has returned to Egypt.  There is no legal personal representative of the estate, however the applicant has responsibility within the family for the administration of his father’s affairs.  The Registrar on 8 August 1996 made an order for service of the petition on the applicant for the purposes of s 244(9)(g) of the Act.  In my opinion, the applicant is a person within the meaning of s 303 of the Act who is “aggrieved by or interested in ... the matter”. 

Secondly, the applicant seeks an extension of time under s 31A(6) of the Act.  The relevant time expired 21 days after 15 October 1996 (Rule 119A).  Some delay was caused in obtaining legal advice.  But the extent of delay is not substantial.  No prejudice is alleged.  I think leave should be granted.

Facts
On 7 May 1993 in the Magistrates’ Court of Victoria at Box Hill the deceased was convicted under s 248 of the Accident Compensation Act 1985 (Vic) of the offence of fraudulently obtaining a payment under that Act on or about 18 February 1990. The certified extract from the court register names the “Informant, Plaintiff or Complainant” as

Kolotylo, Stephen
Accident Compensation Commission. 

The deceased was ordered to pay compensation of $19,250 and costs of $2,846 and placed on a community service order. 

On 16 February 1996 a bankruptcy notice was issued against the deceased.  The judgment creditor named in the bankruptcy notice was “Victorian WorkCover Authority”.  The bankruptcy notice commenced

Whereas Victorian WorkCover Authority of Level 3, 285 Latrobe Street Melbourne in the State of Victoria (hereinafter referred to as the judgment creditor) ...

The petition was served on the applicant on 15 June 1996 and after an adjournment on 8 August a sequestration order made against the estate of the deceased on 15 October.

Whether a Final Order
The order of the Magistrates’ Court was made under s 86(1) of the Sentencing Act 1991 (Vic) which provides:

If a Court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) that the Court thinks fit. 

Section 87 of the same Act provides:

An order made under s 86(1) must be taken to be a judgment debt due by the offender to the person in whose favour the order is made and payment of any amount remaining unpaid under the order may be enforced in the Court by which it was made.

Counsel for the applicant relied on Re Borg (1965) Arg 926 in which Clyne J held that an order made under s 546 of the Crimes Act 1958 (Vic) was not a final judgment or final order for the purposes of s 52(j) of the Bankruptcy Act 1924-1960 (Cth). Clyne J considered that the order in question was not a final judgment or final order because it was not made in an action or proceeding between a creditor and a debtor and did not give the debtor an opportunity to set up any counter-claim, set-off or cross-demand.

However s 40(3)(b) of the present Act, which had no equivalent in the legislation considered by Clyne J, provides:

(3)       For the purpose of para (1)(g)(b) a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained.

Having regard to s 87 of the Sentencing Act already quoted, there can I think now be no doubt that the order in question was a final order.  Moreover, in Re Gibbs; ex parte Trescott (1995) 133 ALR 718 at 729 Drummond J declined to follow Re Borg and held that it was not an essential characteristic of a final order for the purpose of s 40(1)(g) that the order must be made in proceedings which the debtor could, if he wished, have raised a cross-demand. I respectfully agree with his Honour.

Whether Bankruptcy Notice Misleading
The applicant accepts that the Victorian WorkCover Authority is the successor in law to the Accident Compensation Commission:  see s 64(1) of the Accident Compensation (WorkCover)  Act 1992 (Vic).

I do not think the notice was misleading.  The notice required the debtor to pay the sum in question or to secure payment to an entity, properly named and described, who was in law entitled to enforce the judgment.  The present case is to be distinguished from Re Hanson;parte Hanson (1985) 4 FCR 590 where the judgment creditor was identified by a name which it had abandoned some considerable time previously. Beaumont J held (at 594) that:

The judgment debtor could thus have been misled as to the identity of the party with whom he had to deal in order to comply with the requirements of the bankruptcy notice.

Here there was no misleading.  The party with whom the debtor had to deal with Victorian WorkCover Authority.  Indeed, any other description would have been misleading.

Orders
The application will be dismissed with costs, including reserved costs.  

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            15 July 1997

Counsel for the Applicant:	Mr D J Christie
Solicitor for the Applicant:	Smith Ryan & Co
Counsel for the Respondent:	Mr S P Gardiner
Solicitor for the Respondent:	Hussey & Co
Date of Hearing:	28 April 1997
Date of Judgment:	15 July 1997