C A T C H W O R D S
BANKRUPTCY - creditor's petition - service - outside jurisdiction - form of order - question of comity.
Bankruptcy Act 1966 S. 309(2)
Bankruptcv Rules r. 15, r. 113
Re Trimbole: Ex parte Deputy Commissioner of Taxation (1984)
4 F.C.R. 586
Re Mendonca: Ex parte Commissioner of Taxation (1969)
15 F.L.R. 256.
RE: BRIAN GREENWOOD: EX PARTE: STATE BANK OF NEW SOUTH WALES
LIMITED
NO. QP 1678 of 1992
SPENDER J.
BRISBANE
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| GENERAL DIVIS.1-03 | |
BANKRUPTCY DISTRICT OF THE
STATE OF OUEENSLAND |
| RE : | BRIAN GREENWOOD |
| EX PARTE: | STATE BANK OF NEW SOUTH WALES LIMITED |
MINUTES OF ORDER
| JUDGE MAXING ORDER: | Spender J. |
| DATE OF ORDER: | 27 July 1992 |
| WHERE MADE: | Brisbane |
| THE COURT GRANTS LEAVE: |
1. To the applicant to effect service of a creditor's petition on the judgment debtor, Brian Greenwood, in Fiji outside Australia by delivering, not less than 21 days before the hearing date for the petition, to Brian Greenwood personally a notice that the creditor's petition No. 1678 of 1992 has been presented to the Federal Court at Brisbane and by personally handing to Brian Greenwood a copy of creditor's petition No. 1678 of 1992 and copies of the affidavits verifying the contents of the petition, as well as a sealed copy of this order.
THE COURT ORDERS THAT:
| 2. | Service in accordance with this order shall be
deemed good and sufficient service of creditor's
petition No. 1678 of 1992 on Brian Greenwood and |
| creditor's petition No. 1678 of 1992 shall be deemed | |
to be served when the notice of the presentation of the petition, a copy of the creditor's petition No. 1678 of 1992, copies of the affidavits verifying the
contents of the creditor's petition and a sealed copy of this order are handed to Brian Greenwood personally.
3. ,Costs are reserved.
| NOTE: . ~~'Setflemenk | and entry of orders is dealt with in Rule |
| - ' | 124- of the Bankruptcv Rules. |
I I
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| GENERAL DIVISION | |
BANKRUPTCY DISTRICT OF THE
STATE OF OUEENSLAND |
| RE: | BRIAN GREENWOOD |
| EX PARTE: | STATE BANK OF NEW SOUTH WALES LIMITED |
| CORAM : | Spender J. |
| PLACE : | Brisbane |
| m: | 27 July 1992 |
EX TEMPORE REASONS FOR JUDGMENT
This is an application filed on 29 June 1992 by the State Bank of New South Wales Limited for an order that leave be granted to effect service of a creditor's petition, No. 1678 of
1991 on Brian Greenwood in Fiji, and that service be effected not
less than 21 days before the hearing date for the petition.
| On the application filed on 29 June, the number of bankruptcy notice is used rather than the number of the |
creditor's petition.
Rule 15 of the Bankruptcv Rules provides that:
| " Unless o therw i se ordered by t h e Court | under |
| subsec t i on | 309 ( 2 ) o f | t h e A c t : |
| ... |
| (b) | service | o f a | c r e d i t o r ' s | p e t i t i o n | s h a l l | be |
| e f f e c t e d on | a | d e b t o r by | d e l i v e r i n g : |
| ( i ) | an | o f f i c i a l c o p y o f t h e p e t i t i o n ; |
| ( i i ) a | c o p y | o f | t h e | a f f i d a v i t | o r | o f | each |
| a f f i d a v i t v e r i f y i n g t h e p e t i t i o n ; | and |
| ( i i i ) w h s r e a | r e g i s t e r e d | t r u s t e e h a s |
| consen ted , | a s r e f e r r e d t o i n paragraph |
| 12(3) | ( b a ) , | t o a c t | a s the | t r u s t e e - | a |
| c o p y o f | the | c o n s e n t , |
| t o the | d e b t o r p e r s o n a l l y : |
| ( i v ) i f | service | i s e f f e c t e d i n A u s t r a l i a | - |
| not | less than 8 | days b e f o r e the |
| h e a r i n g d a t e f o r | the p e t i t i o n ; | o r |
| i n a n y o t h e r c a s e - | n o t less t h a n such |
| (v ) | r easonab l e | time | b e f o r e | the | h e a r i n g |
| d a t e f o r | the p e t i t i o n a s i s de termined |
| by | the R e g i s t r a r . | " |
| As | i s p l a i n | from r . | 15 ( b ) | ( i v ) | , it | i s contemplated t h a t |
| s e r v i c e | may | be | e f f e c t e d o u t s i d e | A u s t r a l i a . |
| S e c t i o n | 309(2) | o f the | B a n k r u ~ t c v | Act | 1 9 6 6 | p rov ide s : |
| " |
Where a notice o r other document i s r e q u i r e d by
| th is Act | t o be | se rved | on o r g i v e n | t o a person , |
| the | Court may, | i n a | p a r t i c u l a r | c a s e , | o r d e r t h a t |
| i t be | g i ven | or | se rved | i n a manner | s p e c i f i e d by |
| the | Cour t , | whether | o r n o t | a n y o t h e r manner | o f |
| g i v i n g o r s e r v i n g the n o t i c e o r other document | i s |
| pre sc r ibed . | " |
| Rule | 1 1 3 ( 1 ) p rov ide s : |
| " | Where the Court i s s a t i s f i e d t h a t - |
| ( a ) | the | p r o v i s i o n s | o f | the | A c t | r e l a t i n g | t o | |
| p r a c t i c e | and procedure | and | the r u l e s made |
| under | t h e A c t | do | n o t | make | p r o v i s i o n | w i t h |
| r e s p e c t | t o | the | p r a c t i c e | and | procedure |
| a p p l i c a b l e | i n | the | c i r cums tances | o f | a |
| p a r t i c u l a r | ca se ; | o r |
| (b) | d i f f i c u l t y a r i s e s o r doubt exists a s t o the p r a c t i c e or procedure a p p l i c a b l e i n the |
| c i r cums tances | o f a | p a r t i c u l a r | c a s e , | |
| the | | Court may g i v e | such | d i r e c t i o n s | w i t h r e s p e c t | |
| t o the p r a c t i c e | and procedure | t o be | fo l lowed | i n |
| the | c a s e a s | t h e Court | c o n s i d e r s n e c e s s a r y . | " |
Those provisions give the court ample power to order service outside the jurisdiction. There is, however, no rule similar to r. 86 of the English Bankruptcy Rules 1952 expressly empowering the court to order service outside Australia. This lack has been referred to by Gibbs J (as he then was) in Re Mendonca: Ex parte Commissioner of Taxation (1969) 15 F.L.R. 256 at 261, and, more recently, by Sheppard J in Re Trimbole; Ex parte Deputy Commissioner of Taxation (1984) 4 F.C.R. 586 at 587. The suggestion by Sheppard J at 587:
"
| I t seems | t o me | t h a t c o n s i d e r a t i o n shou ld be | g i v e n |
| t o | the | q u e s t i o n | o f | whether | Bankrup tcy | r u l e s |
| shou ld | n o t | be | made | d e a l i n g | e x p r e s s l y w i t h | t h i s |
| m a t t e r |
is still a suggestion deserving of consideration.
The concern I have in the present matter is the same as that expressed by Sheppard J at 587, where he said:
| " ... | m y m a j o r | concern | i n h a v i n g | the m a t t e r l ooked |
| a t aga in | was | n o t | the | q u e s t i o n | o f | whe the r | the |
| c o u r t | had | j u r i s d i c t i o n | t o g i v e | l e a v e | f o r | the |
| p e t i t i o n | t o be | se rved | o u t | o f A u s t r a l i a | b u t | the |
| p r e c i s e | terns o f the o r d e r which was made. |
He concluded:
"
| . . | .it | was i n a p p r o p r i a t e | t o o r d e r t h a t an o f f i c i a l |
| c o p y o f the p e t i t i o n be | sent | even by p o s t | t o the |
| d e b t o r i n I r e l a n d . | " |
and said:
| " | The r e c o g n i s e d c o u r s e , | s o it seems | t o me, | i s t o |
| send | notice | o f | the | f a c t | t h a t | the p e t i t i o n | h a s |
| been | p r e s e n t e d . | The r e a s o n | f o r | t h i s | i s t h a t i t |
| i s i n a p p r o p r i a t e , | a s | a | m a t t e r | o f | i n t e r n a t i o n a l |
| c o m i t y , | t o send | t o a | p l a c e | o u t s i d e | A u s t r a l i a | I |
| ( e x c e p t | perhaps | a n o t h e r | p a r t | o f | the | B r i t i s h |
| Commonruealth) | u n l e s s | there | be | a | r e l e v a n t |
| convention | - there i s none | a f f e c t i n g I r e l a n d - an |
| o f f i c i a l c o p y o f | o r i g i n a t i n g p r o c e s s | which | b e a r s |
I
the seal of this Court and which may be thought to contain a conunand for the appearance of the person to whom the originating process is addressed in default of compliance with which he may suffer prejudice or disadvantage - in this case, prejudice or disadvantage to his status because he will not be heard. "
Notwithstanding the efforts of solicitors for the petitioning creditor to resolve the question of what convention, if any, exists between Australia and Fiji in relation to service of proceedings in one country concerning proceedings in the other, doubts still exist as to what is the precise position. Letters seeking the assistance of the Attorney-General of Fiji have not been fruitful in resolving this issue. Due to the question of comity, this is a case where service outside of Australia ought to be the subject of leave by the court.
The orders I make, in the light of the matters to which
I have referred, are these:
| The court 'grants leave to effect service of a creditor's Australia by delivering, not less than 21 days before the hearing | petition on the judgment debtor, Brian Greenwood, in Fiji outside |
| date for the petition, to M r Greenwood personally a notice that the creditor's petition No. 1678 of 1992 has been presented to the Federal Court at Brisbane and by personally handing to Mr Greenwood a copy of that creditor's petition which has been so presented and copies of the affidavits verifying the contents of that petition as well as a sealed copy of this order. |
| I further order that service in accordance with this order shall be deemed good and sufficient service of the creditor's petition on Brian Greenwood and that the petition shall be deemed to be served when the notice of the presentation of the petition and the other documents earlier referred to in this order are handed to b l r Brian Greenwood personally. |
I reserve the costs of the application.
I certify that this and the
preceding pages are a true copy
of the reasons for judgment
herein of the Honourable
| Solicitors for the applicant: | Clayton Utz |
| Date of Hearing | |