Re Brasier [1950] HCA 39; (1950) 81 CLR 625 (31 October 1950)

HIGH COURT OF AUSTRALIA

IN RE BRASIER [1950] HCA 39; (1950) 81 CLR 625

Bankruptcy

High Court of Australia
Latham C.J.(1), Williams(2) and Fullagar(3) JJ.

CATCHWORDS

Bankruptcy - Offence against Act - Summary proceedings in respect of offence - Limitation of time applicable only to such proceedings, not to proceedings by way of indictment - Bankruptcy Act 1924-1948 (No.37 of 1924 - No. 65 of 1948), s. 219 (2).

HEARING

Melbourne, 1950, October 31. 31:10:1950
CASE STATED.

DECISION

The following judgments were delivered:-
LATHAM C.J. This is a case stated for the opinion of the High Court under s.

2. Upon an application for an order of discharge by a bankrupt the Official Receiver reported that there was evidence of an offence by the bankrupt against the provisions of s. 209 (g) of the Bankruptcy Act. The last-mentioned section refers to the keeping of such books of account as are usual and proper in the business carried on by a person and such books as sufficiently disclose his business transactions and financial position during any period within the five years immediately preceding the date of the bankruptcy. Failure to keep such books constitutes an offence. (at p628)

3. In the present case the statement of facts shows that the Official Receiver, making his report in the year 1950, after August 1950, reported that the bankrupt had committed an offence against s. 209 (g) in that she failed to keep any books of account in respect of the period 15th March 1945 to 28th August 1947, being a period within five years immediately preceding the date of sequestration of the bankrupt's estate. The date of sequestration of the bankrupt's estate was 16th March 1950. (at p628)

4. It was further reported that in respect of a period between 8th February 1949 and November 1949 proper books of account were not kept. (at p628)

5. No question arises as to the charge in relation to this latter period, but in relation to the first suggested offence to which I have referred a question arises as to the application of s. 219 (2) of the Bankruptcy Act. The question submitted to this Court is whether the following provisions contained in sub-s. (2) of s. 219 of such Bankruptcy Act, namely, "nor in any case shall they be instituted after three years from the commission of the offence", apply to proceedings by way of indictment against the bankrupt in respect of an alleged offence by her under par. (g) of s. 209 of the Bankruptcy Act. (at p629)

6. Section 219 (1) refers to penalties which may be imposed in the case of proceedings upon indictment in respect of offences in relation to which no special penalty is imposed by the Act. Sub-section (2), as to which the question now arises, is in the following terms: - "(2) Summary proceedings in respect of any such offence shall not be instituted after one year from the first discovery thereof either by the official receiver or by the trustee in the bankruptcy, or, in the case of proceedings instituted by a creditor, by the creditor, nor in any case shall they be instituted after three years from the commission of the offence". Then sub-s. (3) of s. 219 relates to indictments. (at p629)

7. The words "summary proceedings in respect of any such offence" have been interpreted by this Court in the case of Re Hodgkinson [1947] HCA 27; (1947) 75 CLR 276 as relating to any offence against the Act and as not limited to offences against the Act in respect of which no special penalty is imposed. Therefore sub-s. (2) applies to summary proceedings in respect of any offence against the Act. (at p629)

8. The first part of the section says that summary proceedings shall not be instituted after one year from the first discovery thereof either by the Official Receiver or by the Trustee in the bankruptcy. The second part of the section refers to proceedings by a creditor, and provides that in that case summary proceedings shall not be instituted by the creditor after one year from the first discovery thereof. (at p629)

9. Then the final words of the section are "nor in any case shall they be instituted after three years from the commission of the offence". (at p629)

10. Therefore the section provides, certainly in respect of summary proceedings, what may be called a double period of limitation, the specification of the first period (one year) depending upon the date of discovery of an offence and the second period of limitation (three years), operating concurrently, depending upon the date of the commission of an offence. (at p629)

11. The question which arises here is whether the word "they" in the final words of the sub-section relates to all proceedings or only to summary proceedings. In my opinion it is clear that the word "they" relates to the summary proceedings mentioned in the initial words of the section. The sub-section is dealing throughout with summary proceedings, first in respect of certain cases, then finally "in any case", that is in all cases, and when the sub-section is thus construed as containing particular provisions for some cases in the first part and then as dealing with all cases in the final part it is, in my opinion, plain that the word "they" refers to the summary proceedings which are the subject matter of the whole provision. (at p630)

12. Therefore, in my opinion, the question submitted should be answered "No", and the costs should be paid out of the bankrupt's estate. (at p630)

WILLIAMS J. I agree that the word "they" in s. 219 (2) refers to summary proceedings for offences against the Act and not to indictable offences as it is only with summary proceedings that the sub-section is dealing. (at p630)

2. I agree that the question should be answered in the negative. (at p630)

FULLAGAR J. I agree that the only possible view is that the word "they" must be read as referring to summary proceedings, since they are the only kind of proceedings mentioned, and as referring to no other proceedings. (at p630)

ORDER

Question answered : "No." Costs of both the Official Receiver and the bankrupt to be paid out of the bankrupt's estate.