Kleinwort Benson Australia Limited v Crowl

(2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes). (3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901." Section 25C is the section to the effect that where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient. Of course, if the contrary intention does appear by s 41(2) of the Bankruptcy Act, it would not be possible to regard the regulation as amending the Act by requiring it to be read, notwithstanding the proviso contained in s 25C of the Acts Interpretation Act, as having an effect different from that which the Act itself has when properly construed. Form 1 contains statements addressed to the recipient of a bankruptcy notice indicating steps that he can take, each of a number of which would require attendance at or contact with a Federal Court Registry. The form then provides, and I quote: "10. The Federal Court Registry for your State or Territory is located at: -" and the form goes on in brackets to issue the instruction, and I quote: "[S]et out the address and telephone number of the relevant Registry." It seems to me that the Act is quite explicit in requiring that the bankruptcy notice must be in accordance with the form, and the form itself is quite explicit in requiring the address and telephone number of the Registry, for what it calls the debtor's state or territory, to be set out in the form. That, on the face of it, would seem to invoke in plain terms the principle laid down by the High Court which I have drawn from the decision in Kleinwort Benson. It is perhaps unnecessary to add that if the matter could be looked at as a matter of discretion, there would be competing considerations. It is all very well to suggest that the error is minor, and that a sensible debtor might be able to ascertain where he should go by making some inquiries. However, not all debtors are sensible. Ex hypothesi, they may be in a seriously disturbed state of mind, may be greatly harassed, and may lack the means to obtain legal advice, or certainly to travel from Sydney to Adelaide. This underlines the often cited warning of Cardozo J (in Burnet, Commissioner of Internal Revenue v Guggenheim (1933) 288 US 280 at 286) that when a court is asked to be liberal, it should view all facets of the suggested liberality, since what is liberal to one litigant may be very illiberal to another. I am not prepared, in a matter as serious as bankruptcy, to stretch the law to validate a document, such as a bankruptcy notice, which does not in fact comply with the requirements laid down by the legislature. For these reasons, the petition will be dismissed. I should only add that, on behalf of the petitioning creditor, my attention was directed to the proposition that, since people do move interstate in modern society, the strict requirements of the form may lead to difficulties in particular cases. I do not think, however, that a policy consideration of that kind can be allowed to influence the decision of the court, which must assume that the problem, which is obvious, was taken into account when the form was drafted. It is, after all, a problem capable of being overcome by the exercise of a little care. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Solicitor for the Applicant: Mr M D Roset of Manion McCosker