Commissioner for Motor Transport v Train [1972] HCA 62;

Commissioner for Motor Transport v Train [1972] HCA 62; - HCA 1972 case summary — Zoe

[41]

3. In considering whether this submission on behalf of the appellant should be accepted, I shall not attempt a complete survey of the history of s. 60 (1) or of the background of State law to which it may be thought to have been directed. But I think it is desirable to make some references to legislation in force at the times when the Act and when its predecessor, the Bankruptcy Act 1924, which contained in s. 63 a similar provision, were enacted. Before making those references I observe that in the English Bankruptcy Acts 1883 and 1914 provision was made for the staying, after the presentation of a bankruptcy petition, of an action, execution or other process against the property or person of the debtor, but those provisions did not include any reference to discharging an order against the property or person of the debtor under any law relating to the imprisonment of fraudulent debtors. Nor did the bankruptcy legislation of the Australian States contain such a reference. The insertion in the Bankruptcy Act 1924 of a provision for discharging an order made against the property or person of the debtor under "any Act or State Act dealing with the imprisonment of fraudulent debtors" appears to have been an innovation. This was copied, with minor changes, including the substitution of the words "any law" for the words "any Act or State Act", in the 1966 Act. Of course, the expression "fraudulent debtor" was not new. It had been used, for example, in the Debtors Act 1869 (Eng.). There it was used to describe persons who had become bankrupt and had committed acts of a kind similar to those which are made offences by s. 265 of the Bankruptcy Act now in force here. The expression had been used also, but in a different sense, in legislation in Australia, to some of which I shall refer later. But it had not been used, so far as I am aware, in provisions of bankruptcy legislation relating to the making of orders for the release of debtors who were bankrupt or were about to become bankrupt. (at p406)

[48]

6. In Victoria, the Imprisonment of Fraudulent Debtors Act 1915 re-enacted, with some changes, an Act of 1890. The 1915 Act was replaced by an Act of 1928, which was in turn replaced by the Imprisonment of Fraudulent Debtors Act 1958. The last-mentioned Act deals separately, as do the earlier Acts, with judgments of the Supreme Court, judgments of the Country Court and orders of the Courts of Petty Sessions. Section 3 provides that no person shall be arrested or imprisoned or detained in prison upon any writ of capias ad satisfaciendum issued out of the Supreme Court. Provisions of a similar kind are made with respect to the other Courts. But the prohibitions against imprisonment of debtors are not absolute. Under certain conditions orders may be made for the committal of a debtor to prison. But the conditions are of such a character, so it has been held, that imprisonment when it is ordered is a means of punishing a debtor who is deserving of punishment, because some fraud or dishonesty has been involved in the contracting of the debt or in divesting himself of property in fraud of his creditors or because he has acted in defiance of the orders of the Court. The view that an order made under the Imprisonment of Fraudulent Debtors Act 1915 is of a punitive character and is not to be regarded as a process of execution is explained fully in the judgments of Madden C.J. and Cussen J. in R. v. Wallace ; Ex parte O'Keefe [1918] VicLawRp 49; (1918) VLR 285 The latter judgment contains an elaborate historical survey of legislation relating to the imprisonment of debtors and to the discharge from custody of insolvent debtors. In Newmarch v. Atkinson [1918] HCA 53; (1918) 25 CLR 381, the decision in Wallace's Case [1918] VicLawRp 49; (1918) VLR 285 was approved by this Court It was held that the effect of the Victorian Act of 1915 was that coercion of the body of a judgment debtor, by way of execution in order to obtain payment of a debt, is entirely and absolutely abolished, but where there is a judgment against a debtor, then for certain cases of dishonest or unjust conduct in relation to that debt, expressed in the statute, punishment by imprisonment is provided. The Court was of opinion that the imprisonment was not intended as a means of execution for debt, but as a deterrent against reprehensible conduct in relation to the debt : (1918) 25 CLR, at pp 385-387 (at p408)

[52]

10. From the legislation and the judicial pronouncements to which I have referred, certain conclusions may be drawn which are relevant to the construction of s. 60 (1). The first is that it is probable that in that provision and in its 1924 predecessor the reference to a "law" (or in the 1924 Act to "any Act or State Act"), described as "relating to" or as "dealing with" the imprisonment of "fraudulent debtors", was intended as a reference to such laws as the Imprisonment of Fraudulent Debtors Act 1915 (Vict.) and the subsequent re-enactments made in similar terms, and similar enactments elsewhere, that is to say, it was intended as a reference to laws which provide for the committal to prison of certain debtors whose conduct was considered to be reprehensible and deserving of punishment, whether in relation to the contracting of the debt or evading payment of it or in defying orders of the Court designed to help the creditor to recover it. It is not, I think, an objection to that view to say that s. 60 (1) contemplates that under such a law an order might have been made against the property of the debtor as well as against his person. Under the Victorian legislation, the debtor may free himself in whole or in part from the operation of the order for his imprisonment, either by paying the debt, before he is imprisoned, within the time specified in the order or by paying it after he has been imprisoned and thus obtaining his discharge from custody : see the Imprisonment of Fraudulent Debtors Act 1958 (Vict.), ss. 5 and 10 and Newmarch v. Atkinson (1918) 25 CLR, at p 386 I think, therefore, that an order under such legislation could be regarded as being in a sense an order against the debtor's property as well as against his person. But in any event, the central feature of the description of the law to which s. 60 (1) refers is that it is a law relating to imprisonment. That part of the provision is clearly intended, in my opinion, to apply mainly to orders against the person of the debtor. (at p410)

[62]

20. In determining the nature of the proceedings and of the orders made in them, the fact that the initial liability to pay the charges was a civil debt is important but is not, in my opinion, decisive. It is necessary to consider the form and the character of the action taken and the nature of the jurisdiction which is exercised by the court in which that action is taken. There can be no doubt, of course, that if an action for debt had been brought against the respondent in a court exercising civil jurisdiction that would have been a civil proceeding. But there was nothing in the Road Act or in the Justices Act, 1902 (N.S.W.), as amended, to enable the appellant to take some alternative form of action, in which the recovery of the amount of the charges could be regarded as the sole or as the principal purpose of the proceedings. We need not decide in this case the question whether if the Act had enabled the appellant to make a claim, which was simply a claim to recover payment of the charges, before some particular court therein specified and had empowered that court to enforce by imprisonment any judgement or order for payment given or made by it, such a proceeding and the orders made in it would have been of a civil nature. It may be that they could be properly so described. But what is, in my opinion, of great importance in this case is that, apart from an ordinary civil action in a court of civil jurisdiction, the only way by which any order could be obtained for the payment of the charges was to bring a prosecution for an offence against the Road Act and to obtain a conviction for that offence. Such a prosecution was without doubt a criminal proceeding. It was the only proceeding that came before the court. The Road Act empowered the court before which the offender was convicted to make an order for payment of the charges and such an order when made was deemed to be "a conviction or order whereby a sum of money is adjudged to be paid" and it was, therefore, an order to which s. 82 (2) of the Justices Act applied. But it was an order made in a criminal proceeding. There was not and there could not have been a proceeding before the magistrate, exercising jurisdiction in accordance with the Justices Act, consisting simply of a claim for recovery of the charges as a debt. (at p414)

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Decision date

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Judgment (83 paragraphs)

Commissioner for Motor Transport v Train [1972] HCA 62; (1972) 127 CLR 396 (4 December 1972)

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Legislation Cited (12)

Cases Cited (4)