Re Robert Trimbole Ex Parte: Deputy Commissioner of Taxation [1984] FCA 319; 1984 Bankruptcy 4 FCR 586 (31 October 1984)

FEDERAL COURT OF AUSTRALIA

Re: ROBERT TRIMBOLE
Ex Parte: DEPUTY COMMISSIONER OF TAXATION
No. P1277 of 1984
Bankruptcy
4 FCR 586

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Sheppard J.(1)

CATCHWORDS

Bankruptcy - service of bankruptcy petition outside Australia - manner of service - considerations applicable.

Bankruptcy - Petition - Service - Outside jurisdiction - Upon prisoner - Form of order - Bankruptcy Act 1966 (Cth) - Federal Court Rules. Held: (1) The recognised course for service of a bankruptcy petition upon a person in a foreign, non-Commonwealth country is for notice of the fact that the petition has been presented to be given, rather than for the petition itself to be served.

Re Mendonca; Ex parte Commissioner of Taxation (1969) 15 FLR 256, not followed.

(2) Such notice should, in the case of a person in prison, be directed to the officer in charge of the prison.

HEARING

1984, October 30, 31. 31:10:1984
APPLICATION

Application for orders for substituted service of a bankruptcy petition.

P Urquhart, for the petitioning creditor.

Solicitor for the petitioning creditor: Australian Government Solicitor.
GFV

ORDER

Personal service of Creditor's Petition No. 1277 of 1984 be dispensed with.

That an official copy of the Creditor's Petition herein together with a copy of the affidavit of Bruce Shirlaw sworn the 24th day of August 1984 together with a copy of the affidavit of Warwick James Bulmer sworn the 22nd day of August 1984 together with a copy of the affidavit of James Joseph Stokes sworn the 22nd day of August 1984 together with a copy of the affidavit of Robert Milton Peterson sworn the 22nd day of August 1984 together with a copy of the affidavit of Bruce Provost sworn the 23rd day of August 1984 together with a copy of the affidavit of Janice Anne Lawrance sworn the 21st day of August 1984 together with a copy of the affidavit of Robert Milton Peterson sworn the 23rd day of August 1984 together with a copy of the affidavit of Michael James Walker sworn the 23rd day of August 1984 together with a copy of the affidavit of Robert Joseph Taylor sworn the 22nd day of August 1984 together with a copy of the affidavit of Richard Valerian Martin sworn the 23rd day of August 1984 together with a copy of the affidavit of Philip Douglas Osbeiston sworn the 23rd day of August 1984 together with a copy of the affidavit of Graham Thomas Blewitt sworn the 23rd day of August 1984 together with a copy of the affidavit of Robert Milton Peterson sworn the 23rd day of August 1984 together with a copy of the affidavit of Christopher John Morris sworn the 17th day of October 1984, together with a copy of the consent signed by Max Christopher Donnelly to act as trustee pursuant to s. 156a dated the 15th day of August 1984 together with a sealed copy of these orders be served on or before 19 November 1984 as follows:

by prepaid registered post addressed to:

"Craig Grainger Trimbole, 7 Huntingdale Avenue, Cabramatta, 2116."

Leave is given to serve Creditor's Petition No. 1277 of 1984 on the debtor outside Australia by delivering, on or before 26 November 1984, to the Officer-in-Charge of Mountjoy Prison, Phibsboro, Cabra and North Circular Roads, Phibsborough, Dublin, Ireland

(a) Notice of Creditor's Petition in the form annexed
hereto;

(b) Copies of the Affidavits and consent referred to in
Order 2 above; and

(c) A sealed copy of these orders
under cover of a letter in the form annexed hereto.

Service in accordance with this order shall be deemed good and sufficient

service of the creditor's petition upon the debtor and the creditor's petition shall be deemed to be served on the debtor on 18 December 1984.

The costs of the application be reserved.

The hearing of the petition be adjourned to Monday, 11 February 1985 at 9.30 a.m.

DECISION

This is an application for the substituted service of a bankruptcy petition in which the petitioning creditor is the Deputy Commissioner of Taxation and the debtor one Robert Trimbole. The evidence establishes reasonable grounds for believing that the debtor is presently an inmate of the Mountjoy Prison in Dublin, Ireland.

2. Yesterday, in accordance with the usual practice, the application came in the first instance before a Deputy Registrar for the purpose of her determining whether the matter was in order. Certain orders were proposed for me to make. These included the sending of the petition, that is to say, an official copy of the petition, by registered post addressed to the debtor at the Mountjoy Prison in Dublin.

3. In the course of the general run of matters in the bankruptcy list yesterday, I made the orders as suggested, but having reflected upon the matter yesterday afternoon, it seemed to me there might be a question as to the propriety of sending, even by post, an official copy of a bankruptcy petition to a place outside the jurisdiction of the Court, not part of the British Commonwealth, and also that a preferable course would have been to make a request to the Governor or officer in charge of the prison to deliver notice of the petition and copies of the relevant documents to the debtor, rather than to post them to the debtor as was previously contemplated.

4. I requested counsel to see me in chambers yesterday afternoon, and my discussion with him has led to the relisting of the matter today. In the course of that discussion there arose consideration of whether or not it was appropriate at all to serve a bankruptcy petition outside the jurisdiction. Counsel referred me to the decision of the present Chief Justice of the High Court, when Judge in Bankruptcy, in Re Mendonca; ex parte Commissioner of Taxation (1969) 15 FLR 256 which is authority for the proposition that a bankruptcy petition may be served outside the jurisdiction. I mention, however, in passing that it is curious that there is no provision in the Act or Rules expressly authorising such a course. That is contrary to the position which prevails in England where the Rules of Court make provision for such service; Rule 86 of the Bankruptcy Rules 1952, see Halsbury's Statutory Instruments (4th Re-issue), Vol. 3, p. 233.

5. The Rules of the Federal Court in their application to matters other than bankruptcy matters make specific provision for service outside the jurisdiction (Order 8). Those Rules are expressly made not to apply in bankruptcy (Order 1, Rule 11). It seems to me that consideration should be given to the question of whether Bankruptcy rules should not be made dealing expressly with this matter.

6. I should add that I would myself even without the authority of the decision of Gibbs J. (as he was) in Re Mendonca have reached the conclusion there were indications in the Bankruptcy Act 1966 that petitions might be served out of the jurisdiction. Such an indication is provided in the very ground relied upon in the present petition. The act of bankruptcy which it alleges is that the debtor within six months of the presentation of the petition committed an act of bankruptcy, namely, that from 25 February 1984 and continuing the debtor with intent to defeat or delay his creditors has remained out of Australia. The petition was presented on 24 August 1984.

7. As I have said, my major concern in having the matter looked at again is not the question of whether the Court had jurisdiction to give leave for the petition to be served out of Australia but the precise terms of the order which was made. I am satisfied, having considered some authorities and texts overnight, that it was inappropriate to order that an official copy of the petition be sent even by post to the debtor in Ireland.

8. The recognized course, so it seems to me, is to send notice of the fact that the petition has been presented. The reason for this is that it is inappropriate, as a matter of international comity, to send to a place outside Australia (except perhaps another part of the British Commonwealth) unless there be a relevant convention - there is none affecting Ireland - an official copy of originating process which bears the seal of this Court and which may be thought to contain a command 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.

9. Counsel and his instructing solicitor have now prepared orders in a different form. These provide for the giving to the debtor of notice of the presentation of the petition rather than for the sending of an official copy of the petition to him. They also provide for the documents to go, in the first instance to the Governor or officer in charge of prisons accompanied by a letter which will request him, if he sees fit, to deliver the petition and copies of the other relevant documents to the debtor.

10. I vacate the orders for substituted service which were made by me yesterday. In lieu thereof I make orders in terms of the short minutes which I have initialled and dated and placed with the papers. In terms of those orders the date fixed now for the hearing of the petition is Monday, 11 February 1985 at 9.30 a.m.