Bennell v American Express Australia Ltd [2005] FCA 1169 | Case summary

Federal Court of Australia|2005-09-13|Before: Big J, Hill J, Emmett J

BACKGROUND 1 These proceedings were argued before Hill J on 27 June 2005, when his Honour reserved his decision. His Honour had completed a written judgment before his death and it was to be delivered on 24 August 2005. Because of his Honour's death, judgment was not delivered on that day. 2 On 5 September 2005, the parties appeared before me as List Judge with a view to indicating their wishes as to how the matter should now proceed. All parties agreed that I might dispose of the matter upon the materials that were before Hill J and without further hearing or argument. I have examined the papers and have studied the reasons prepared by his Honour. I consider that, in the light of the materials that I have examined, the proceedings should be disposed of in the way proposed by Hill J for his Honour's reasons. What follows hereafter constitute Hill J's reasons, which I adopt as my own.

THE PROCEEDINGS 3 Before the Court are at least five separate applications. Two are applications for review: one filed by Mr Ian Robert Bennell and the other filed by his wife, Mrs Susan Jane Bennell (both being "the applicant debtors") under the Bankruptcy Act 1966 (Cth) ("the Act"), initially in the Federal Magistrates Court on 21 March 2005. 4 By their separate applications, the applicant debtors seek review of the exercise of the power, by a Registrar, inter alia, to make orders for substituted service of bankruptcy notice NN 556 of 2004 and bankruptcy notice NN 557 of 2004 ("the bankruptcy notices") and consequentially extending the time for compliance with the bankruptcy notices that were issued against the applicant debtors. 5 The third proceeding is an application by American Express International Inc, the second respondent, filed initially in the Federal Magistrates Court on 7 April 2005, seeking orders amending an application originally filed on behalf of American Express Australia Ltd, the first respondent; that application had sought orders for substituted service and consequentially, amendment of the bankruptcy notices. A Registrar of that Court had in fact made those orders on 12 November 2004 and the orders are the same orders as those which the applicant debtors seek to review. If the application is amended as sought, and the review sought by the applicant debtors proceeds, American Express International Inc seeks an order nunc pro tunc in the same terms as the Registrar made. 6 There are two further applications filed in this Court, one filed by Mr Bennell and the other filed by Mrs Bennell. Those applications seek orders setting aside, inter alia, as an abuse of process, two further bankruptcy notices issued against them at the instance of American Express International Inc and served upon Mr and Mrs Bennell on 23 May 2005. Logically, these two applications should be determined only after the first three applications referred to above are dealt with. 7 The history of the proceedings is complicated. On 3 November 2003, judgment was entered in favour of American Express International Inc against Mrs Bennell, in the amount of $8,239, and against Mr Bennell, in the amount of $1,979,754. 8 The bankruptcy notices were thereafter issued, based upon the judgments referred to above and requiring payment to American Express International Inc in accordance with their terms. The bankruptcy notices correctly identified the relevant applicant as "the debtor" and American Express International Inc as "the creditor" and required the applicant debtors, within 21 days after service on them of the bankruptcy notices, to pay to American Express International Inc, the amount of the debt, or to make arrangements to settle the debt. 9 In the period from March to August 2004, various attempts to effect personal service on the applicant debtors were made on behalf of American Express International Inc, but proved unsuccessful. It was necessary to extend the bankruptcy notices because one year had expired since they were issued. Subsequently, on 23 September 2004, an application was made to the Federal Magistrates Court for substituted service of the bankruptcy notices. The application erroneously named American Express Australia Limited as applicant. American Express International Inc and American Express Australia Limited are separate companies, being part of the American Express Group of companies. In fact, American Express Australia Limited is a wholly owned subsidiary of American Express International Inc. It was never known as American Express International Inc. 10 On 12 November 2004, the Registrar of the Federal Magistrates Court, on the application of American Express Australia Limited, made an order for substituted service of the bankruptcy notices upon the applicant debtors. The order of 12 November 2004, as entered, named the applicant debtors as the respondents and named American Express Australia Limited as the applicant. But for the name of the applicant, it is not suggested that the order should not have been made. There was clearly evidence pointing to the making of an order. Service was deemed to be effected on 9 December 2004. Consequentially, the Registrar ordered the bankruptcy notices to be amended by inserting in place of the words: "after service of this bankruptcy notice upon you", the words: "after 9 December 2004", that being, as ordered, the date from which effective service of the notices would be deemed to have occurred. 11 The effect of that latter order was thus to stipulate as the day upon which, at the latest, the applicant debtors should make payment, or otherwise commit an act of bankruptcy, the date 21 days after 9 December 2004. The applicant debtors made no payment by that date and, subject to the question of validity of the bankruptcy notices as ordered to be amended by the Registrar, each of them committed an act of bankruptcy on 30 December 2004. The name of the creditor and outstanding judgment debt were unaffected by the Registrar's order. 12 The terms of the order for substituted service provided that service upon the applicant debtors could be effected by sending the bankruptcy notices, together with a sealed copy of the order and 'Extension of Bankruptcy Notice', on or before 1 December 2004, by ordinary pre-paid post to the two residential addresses that had previously been provided by the applicant debtors. These documents were apparently sent on 23 November 2004, and received by the applicant debtors on 26 November 2004. 13 On 23 December 2004, the applicant debtors filed applications in this Court seeking to set aside the bankruptcy notices under s 41(7) of the Act, submitting that, as the substituted service orders were made upon application of an entity that was not a judgment creditor of the applicant debtors, the original bankruptcy notices themselves should be set aside. 14 The matter came for hearing before Hill J on 15 March 2005. At the hearing, the applicant debtors sought an adjournment, which would permit them to file an application in the Federal Magistrates Court, seeking a review of the Registrar's order of 12 November 2004 upon the basis that the applicant before the Registrar was at no time the judgment creditor of the applicant directors, and thus, the Registrar should not have made the order she did. The matter was adjourned part-heard pending that review. 15 On 7 April 2005, American Express International Inc filed its own application in the Federal Magistrates Court, which sought, inter alia, to amend the application for the substituted service order (originally filed in that Court on 23 September 2004) by changing the name of the applicant from 'American Express Australia Limited (formerly known as American Express International Inc.)' to 'American Express International Inc' from the date of the application for substituted service (23 September 2004). American Express International Inc further sought that the same amendment be made to the Registrar's order of 12 November 2004, that is to say, that the Registrar's order be likewise amended to reflect American Express International Inc as the applicant. 16 When the proceedings contemplated by the parties, and commenced in the Federal Magistrates Court, came before a Federal Magistrate on 12 April 2005, his Honour, on his own motion, transferred to this Court, pursuant to s 39 of the Federal Magistrates Act 1999 (Cth), the applications made to the Federal Magistrates Court. His Honour did so on the basis that related matters were still pending in this Court. However, once the new matters were transferred to this Court the outstanding applications which had been part heard were not pressed. They remain as proceedings which, in due course, will be dismissed. 17 Accordingly, it is necessary to first consider whether to grant leave to substitute American Express International Inc as a party to the application before the Registrar, well out of time and, indeed, after the Registrar had decided the matter and, secondly, to review, at the instance of the applicant debtors the Registrar's decision. 18 It was common ground that this Court had, in the circumstances, jurisdiction to review the decision of the Registrar. Rule 29.04 of the Federal Magistrates Court Rules provides for review of decisions of a Registrar of that Court. It does not authorise this Court to do so. The review, once it had been applied for in that Court was transmitted to this Court. 19 There is also an issue between the parties as to which court rules apply, those of this Court or those of the Federal Magistrates Court. Order 82 rule 3 of the Federal Court Rules makes it clear that, where a proceeding has been transferred from the Federal Magistrates Court to this Court, the Federal Court Rules will apply.

APPLICANT DEBTORS' SUBMISSIONS 20 In their applications for review, the applicant debtors submitted that the Federal Magistrates Court order of 12 November 2004, allowing substituted service and consequential orders, should be set aside. They relied on ss 41(1) and 41(3) of the Act,from which it was said to follow that the Registrar had no power to make the orders she made because the orders were made on the application of a stranger to the proceedings. Those sections relevantly provide: "41(1)An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor: (a) a final judgment or final order that: (i) is of the kind described in paragraph 40(1)(g);… … (3) A bankruptcy notice shall not be issued in relation to a debtor; except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor; …" 21 However, in answer to this submission it may be noted that the power to order substituted service resides in s 309(2) of the Act, which merely empowers the Court to make the order and makes no reference to the person who should apply for it. Nevertheless, it is really common ground that American Express Australia Limited had no standing to apply for the order. It had no interest in the proceeding. 22 During the hearing on 27 June 2005, both the applicant debtors and respondents agreed that the order of 12 November 2004, as it stood and until such time as it might be set aside, was a valid order of the Federal Magistrates Court. Nevertheless, it was argued by counsel for the applicant debtors that, upon review by this Court of the Registrar's decision to make the order of 12 November 2004, that order should now be set aside, because it affected and amended the date for compliance with the bankruptcy notices and was made upon the application of a party that was not the judgment creditor entitled to the issue of a bankruptcy notices or within s 41 of the Act. 23 The applicant debtors argued that the 12 November 2004 order amending the bankruptcy notices was wrongly made, having regard to the provisions of s 27 of the Actand the definition of bankruptcy in s 5, jurisdiction (whether of this Court or of the Federal Magistrates Court) requires the existence of a proceeding under or by virtue of the Act. However, it was submitted that the application for substituted service by the first respondent, American Express Australia Limited, culminating in the 12 November 2004 order, could not be described as involving any jurisdiction or as being any proceeding under or by virtue of the Act. This result was said to follow from ss 41(1) and 41(3) of the Act. It was submitted that, because those sections provide that only a creditor who has obtained final judgment against a debtor can apply to have a bankruptcy notice issued in respect of that debtor, proceedings involving an application by an entity such as American Express Australia Limited, which is not such a creditor, cannot properly be described as being a proceeding or involving the exercise of jurisdiction under or by virtue of the Act.

RESPONDENTS' SUBMISSIONS 24 American Express International Inc and American Express Australia Limited, as already noted, sought leave to substitute as the party to the application for substituted service, American Express International Inc, the judgment creditor. It was argued that the Court should make the substitution from the date the application was filed. It is accepted that leave to amend was required and that the application to do so was, to say the least, made somewhat late in the day. On the other hand, the evidence is that the naming of the applicant on the application for a substituted service order as American Express Australia Limited was merely an inadvertent mistake by a solicitor employed by American Express International Inc. 25 While it was conceded that the 12 November 2004 order was a valid order of the Federal Magistrates Court, it was argued by counsel for the applicant debtors that, if jurisdiction to make the order could not be found in the Actthen, on a review of the decision to make the order, this Court should set that decision aside. The submission takes no account of any change in parties. 26 The submission of American Express International Inc and American Express Australia Limited, in support of allowing an amendment to substitute the correct name of the judgment creditor, relied upon s 306(1) of the Act, which provides: "Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court." Counsel for American Express International Inc and American Express Australia Limited submitted that the naming of American Express Australia Limited as the applicant for the substituted service order was a mistake in the name or identity of the applicant for that order and, as such, should be described as a formal defect or irregularity that has not caused substantial and irremediable injustice. They relied upon Order 13 sub-rule 2 of the Federal Court Rules, which relevantly provides: "(1) …the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. … (4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party." 27 Although it was conceded that the 12 November 2004 order itself could not be amended under the Federal Court Rules (as an order does not fall within the definition of "document" for the purposes of Order 13), it was submitted that, once the application for the order was amended (with the amendment to take effect retrospectively from the date the application was made), then, upon the review, the Registrar's order would have been made upon the application of the correct party and thus should not be set aside. 28 In the alternative, counsel for American Express International Inc and American Express Australia Limited submitted that s 309(2) of the Act, referred to above, gives the Federal Magistrates Court jurisdiction to entertain applications to commence proceedings of the nature commenced by American Express Australia Limited when it applied for a substituted service order. Such jurisdiction was said not to be conditional on the application being one made by a person with standing under the Actto commence it. It was submitted that, were this not the case, cases such as SmithKline Beecham (Australia) Pty Ltd v Minister for Family Services (1993) 45 FCR 587 would have been decided differently. 29 In SmithKline, SmithKline Beecham Laboratories (Australia) Limited ('SmithKline Laboratories') applied to the Court to review a decision of the Minister for Family Services. The decision involved a refusal to consider whether an initial decision to approve the registration of a brand of cimetidine under s 60(3) of the Therapeutic Goods Act 1989 (Cth) should be reconsidered. Prior to the hearing, a notice of motion was filed by SmithKline Beecham (Australia) Ltd ('SmithKline Australia') seeking an order under Order 13 of the Federal Court Rules to be substituted as the applicant in the proceedings. Prior to filing the application for review, SmithKline Laboratories had sold its assets to SmithKline Australia and thus it was argued that it was only SmithKline Australia that had standing, under the Act there in question, to request reconsideration of the Minister's decision. 30 The application for substitution was opposed. Section 60(2) of the Therapeutic Goods Act provided: 'A person whose interests are affected by an initial decision may … request the Minister to reconsider the decision'. The primary issue for determination was what constituted a sufficient 'interest' for the purposes of the section. The Court considered in that case that, under the relevant provisions of the Act that was the subject of that case, the words that specifically provided that 'a person whose interests are affected' were not to be construed strictly and that in the circumstances of that case, where the evidence indicated that other correspondence between the parties made it clear who was intending to make the application, there was sufficient compliance with the provision. 31 Needless to say, that case involved the consideration of a different provision, in a different Act in an entirely different legislative and factual context and accordingly, it cannot assist the respondents to the extent submitted. 32 As a third alternative, counsel for American Express International Inc and American Express Australia Limited submitted that the applicant debtors' application should be dismissed with the effect that the order of 12 November 2004 would remain a valid order of the Federal Magistrates Court, altering the date for compliance with the bankruptcy notices.

THE AMENDMENT OF THE APPLICATION AND SUBSTITUTION OF PARTY 33 In the circumstances, the application to amend the application to the Federal Magistrates Court should be allowed so as to substitute American Express International Inc in place of American Express Australia Limited as the applicant in that application. Notwithstanding the submission of the applicant debtors, there is no prejudice to them. In part, this derives from their acceptance that the order of the Federal Magistrate was a valid order and not void. As such, it was effective, at least unless set aside on a review. 34 Order 13 rule 2 of the Federal Court Rules deals with general powers of amendment, other than the amendment of judgments and orders. Rule 2(4) provides: "Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party." Rule 2(5) provides: "Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced." 35 The High Court of Australia considered a similar provision in the Victorian Supreme Court rules in Bridge Shipping v Grand Shipping SA (1991) 173 CLR 231. Rule 36.01 in the Victorian Supreme Court Rules relevantly provided: "(1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. … (4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced." 36 Although not in identical terms (and the Federal Court Rules specifically encompass the situation in which the mistake is in the 'identity' of the party), Bridge Shipping provides some assistance in considering the cases in which a mistake in the name of a party may be corrected, even though the effect is to substitute another person as a party. Bridge Shipping Pty Ltd ('Bridge'), the appellant in that case, had been engaged by Philip Morris Ltd, to carry containers by vessel from Brazil to Melbourne. Another company, the identity of which was unknown to Bridge, was employed by Bridge to arrange for the carriage of the goods. On arrival, certain containers were missing or damaged. Philip Morris Ltd issued a writ claiming damages against Bridge and the latter company sought contribution from the person responsible, which it thought to be the registered owner of the vessel, Grand Shipping SA ('Grand'). After issuing the third party notice against Grand, Bridge discovered that Grand, by a bareboat charter agreement, had chartered the vessel to Rainbow Line SA ('Rainbow'), which had in fact been the carrier of the containers. By this time, the time for suing Rainbow for contribution had expired. Thus, an application to substitute Rainbow in the place of Grand was made under r 36.01. 37 McHugh J (with whose reasons Brennan and Deane JJ agreed), said: "The concluding words of sub-r. (4) 'whether or not the effect is to substitute another person as a party' enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. … Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description. …The rule imposes three limitations on a person's right to amend. First, there must be a mistake. Secondly, the mistake must be "in the name of a party". [The third limitation applied only by reason of rule 36.01(6) which is not relevant here.] 38 In SmithKline, Bridge Shipping was applied in this Court, where a notice of motion was filed seeking an extension of time for lodgement of an application pursuant to provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant named in the notice of motion had been named in error. Beazley J held that: "[the] mistake was as to the name of the party. The solicitor, intending to bring the application on behalf of the marketing company, made an error in the name of that company. That falls within the category of error which McHugh J in Bridge Shipping Pty Ltd identified as being amenable to the power of amendment." 39 It follows specifically from the terms of Order 13 rule 5 that the amendment will take effect back to the commencement of the proceedings as if American Express International Inc were, at the time, a party. 40 It may perhaps be argued that there is a need to amend the form of the Federal Magistrate's orders so as to name the correct party. The title to the matter, naming the relevant parties, does not really form part of the orders made by the Registrar. I see no reason to vary the title on the orders, even if it were thought desirable to do so as a matter of form.

ORDER ON REVIEW 41 For completeness, it should be noted that a review of a decision of the Registrar of the Federal Magistrates Court, like a review of a Registrar of this Court, proceeds by way of a hearing de novo: Bride v Official Trustee in Bankruptcy (1999) 95 FCR 75; Esanda Finance Corp Ltd v Velissaris [1999] FCA 1359; Re Vincent; Ex parte State Bank of New South Wales Ltd (1996) 71 FCR 58. The cases cited above rely as authority for that proposition on cases such as Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374; Re Brindle; Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506 at 511-2; and Ginnane v Diners Club Limited (1993) 42 FCR 90 at 92. This is not in dispute and it is not of any significance that these cases were based on the words of the now repealed s 31A of the Federal Court of Australia Act 1976 (Cth). 42 While the Federal Court of Australia Act applies only to a review of a decision of a Registrar of this Court, Order 82 rule 3 of the Federal Court Rules provides that those rules 'apply to a proceeding transferred from the Federal Magistrates Court as if it were a proceeding instituted in the Court'. That rule is enough to bring the transferred proceedings within Order 77 rule 8 of the Federal Court Rules, which provides that a decision of a Registrar (that is, a Registrar of the Federal Court) may be reviewed by the Court or a Judge. The result is, in any event, the same when the position of the Registrar in the Federal Magistrates Act is examined (cf s 104). 43 In reviewing the Registrar's decision to order substituted service, it is the task of this Court to review the evidence before the Registrar and any other evidence before the Court (in fact, the evidence is really the same) to determine whether an order providing for substituted service should be made. The Court must then decide whether, had the application to make the order come before the Court, this Court would have exercised its discretion to make the order. It may be that what must be reviewed is also the form of the order for substituted service. That is, whether, based upon the evidence, the order would have been made by the Court in the form in which it was made by the Registrar (see Re Vincent per Hill J). The Court's task on the review is to decide whether, in its view, the order was correctly made. If not of that view, the Court should then proceed to set aside the order. 44 It is not suggested that the learned Registrar in any way erred in the orders she made on the review. The only submission is that she should not have made those orders on the application of a company that was not the creditor. Having substituted the right party, the Court could in no way set aside the Registrar's decision, even if at the time it was made it was made on the application of the wrong party. It should be added that the present is not a case where the order was made, in the strict sense, without jurisdiction. There is no doubt the Registrar had such power. Rather, what is complained of is that the order was not made at the request of an interested party. No argument was put that the Registrar could, at least, properly act of her own motion. The decision of the Registrar on the review should be affirmed and the applicant debtors should pay the costs of the review. American Express International Inc and American Express Australia Limited must pay the costs of the application to substitute the correct company as a party. Formal defects and irregularities 45 Once the orders have been made on the review, the problems of the case resolve themselves. The amendment to the bankruptcy notices as ordered by the Registrar was valid. This is not a case where there was any irregularity in the bankruptcy notices or mistake in the form of the bankruptcy notices. There was no formal defect or irregularity of the bankruptcy notices. Nor is there any suggestion that the bankrupts, as a result of the bankruptcy notices, or at least a person in the position of the bankrupts, would have been misled. The notices, as amended, required payment to the judgment debtor on a date 21 days after the stipulated date. As it happens, payment was not made and in the result, each of the applicant debtors has committed an act of bankruptcy. 46 As indicated above, this is not a case where a person in the position of the applicant debtors could reasonably have been mislead as to what was required by the bankruptcy notices. The submission to the contrary was that, as the bankruptcy notices as originally issued stated one date for compliance (21 days from service) and the 12 November 2004 order varying the bankruptcy notices provided for a different time for compliance (21 days from a stipulated date, being the date of deemed service), the applicant debtors may have been mislead as to which date was the relevant date for compliance, as the bankruptcy notices and the order named different applicants. Accepting, as the applicant debtors do that the order of the Federal Magistrate was a valid order of the Federal Magistrates Court unless set aside, it is hard to see just how any person could be misled.

CONCLUSION 47 There remain the applications that the new bankruptcy notices issued were an abuse of process. One can understand the reason why American Express International Inc sought the issue of new bankruptcy notices where the question was outstanding whether the existing notices were valid. They are. It follows that the later notices should not have been issued and should be set aside with costs. There still remain extant, although no longer the subject of any argument, the original proceedings in this Court, which were part heard before the proceedings in the Federal Magistrates Court were instituted. Those proceedings, now redundant, should be dismissed but there should be no order as to the costs of them.

FORM OF ORDERS 48 The applicant debtors should file and serve short minutes of order reflecting the conclusions set out in these reasons. American Express International Inc and American Express Australia Limited should make submissions about any disagreements with the form of orders. The applicant debtors may then respond if they wish. If no submissions are made, orders will be made in accordance with the short minutes filed. Otherwise, orders will be made after taking into account any submissions filed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 13 September 2005 Counsel for the Applicant: C D Freeman

Solicitor for the Applicant: Purcell Insolvency Lawyers

Date of Hearing: 27 June and 5 September 2005

Federal Magistrates Act 1999(Cth)

Bennell v American Express Australia Ltd

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