McIvor v Watson

High Court of Australia|1960-07-01|Before: Windeyer JJ

High Court of Australia Dixon C.J. Menzies and Windeyer JJ. McIvor v Watson [1960] HCA 43

ORDER Appeal allowed with costs, order of sequestration set aside.

The judgment of the Court was delivered by Dixon C.J.: -

Paragraph (e) says that a debtor commits an act of bankruptcy if execution against him has been levied by seizure of his goods under process in an action in any court or in any civil proceeding in any court and goods have been either sold or held by the sheriff for seven days or if any such execution has been issued against him and has been returned unsatisfied.

The definition clause of the Act gives a wide definition of "sheriff" so that the term includes an officer executing the process in execution against the goods or land.

The question upon which this case appears to us to turn is whether the process was in any civil proceeding. We do not doubt that it was in a proceeding, but the question is whether it was civil.

The petition was founded upon a proceeding which originated in the Commonwealth Industrial Court and, as we are informed, it was a proceeding for an offence against s. 138 of the Conciliation and Arbitration Act 1904-1958 Cth. It is unnecessary to read that provision. It is sufficient to say that it enables the Commonwealth Industrial Court to impose a penalty, and a proceeding under s. 138 clearly is not civil. There is a power to award costs.

The proceeding was taken by the present respondent, who is the petitioner in the Bankruptcy Court, and a fine of £10 was imposed upon the present appellant against whom the order of sequestration has been made. It was further ordered that he should pay to the present petitioner, who is described as the informant, the informant's costs of and incidental to the proceedings. He did not pay the informant's costs, and steps were taken to enforce that order under s. 121 of the Conciliation and Arbitration Act 1904-1958, which provides: "Where a Court has imposed a penalty for an offence against this Act or the regulations thereunder or for a breach or non-observance of any term of an order or award, has, in pursuance of sub-section (3) of section one hundred and nineteen of this Act, ordered the payment of an amount, or has ordered the payment of any costs or expenses, a certificate under the hand of the Registrar, specifying the amount payable and the organizations and persons by and to whom respectively it is payable, may be filed in any Federal or State Court having civil jurisdiction to the extent of that amount, and shall thereupon be enforceable in all respects as a final judgment of that Court." It will be noticed that it speaks of a court in general and the phrase doubtless goes back to tribunals which are mentioned in s. 119 as those before whom certain penalties may be recovered. It stood before the establishment of the Commonwealth Industrial Court, but it has been assumed in the proceedings that the expression "a court" includes that tribunal. No question of the validity of the provision has been raised.

A certificate was granted by the Registrar of the Commonwealth Industrial Court to the present respondent in respect of the amount of costs which had been awarded to him. That certificate was then filed in the Magistrate's Court in Brisbane. That is a State Court having civil jurisdiction to an extent which, presumably, covers the amount of the costs. Execution issued out of that court, that is to say upon the certificate. In the documents before us contained in the transcript nothing appears to show that there was any other order and s. 121 clearly requires that the execution should be to enforce the certificate, although it be execution in the form of the court in which the certificate was filed.

The execution was not wholly satisfied and it is that execution that is relied upon to bring the appellant within s. 52 (e). It is plain that to bring him within s. 52 (e) the execution must be in an action or a civil proceeding. The expression "in an action" may be put aside at once because clearly it was not in an action and it is not alleged that it was. What is claimed is that it was an execution in a civil proceeding in a court. One may concede at once that it was in a proceeding in a court but can it be described as a civil proceeding?

It is an execution on a certificate of an order made in a proceeding for an offence and that certainly could not be described as a civil proceeding. Is it transformed into a civil proceeding because it is carried in the form of a certificate to another court and there filed so that execution may be issued upon the certificate? We think not. We think that it bears its original character, nothing has been done to change its character and the proceeding remains not a civil proceeding but one founded upon the prosecution of an offence.

The contrary view was taken by Mack J. and to a great extent he was influenced by three cases to which I propose to refer.

The first of those cases is a Victorian case of Re Heathcote; Ex parte Groom [1] . It was a decision given on the Victorian Insolvency Act 1890 in 1902 by a'Beckett J. There a certificate had been filed in the Supreme Court from an order made by justices under the then legislation in Victoria governing procedure of justices. It is unnecessary to examine the decision in detail, it is enough to say that no question of the criminal or non-civil character of the proceeding was in issue. The objection that was made before his Honour was that the order nisi for sequestration was founded on a judgment not in the Supreme Court but before the justices. Perhaps it did not matter very much, except for the purposes of the manner in which the proceedings were framed. They were framed to show it was an execution issued on a judgment obtained in the Supreme Court in favour of the petitioning creditor. It is not clear whether a'Beckett J. was prepared to say that that was true but he ended a discussion on the matter by saying: "Therefore, that process having been adopted, I think that there were the materials for an act of insolvency under sec. 37, sub-sec. viii, of the Insolvency Act 1890, and that the process was "issued on an order obtained in a court in favour of any creditor" " [1] . The whole point made was that there was no order in the Supreme Court and that perhaps may have been so. So far as it goes the decision rather favours the view that we take.

(1902) 28 V.L.R. 126. 2. (1902) 28 V.L.R., at p. 129.

The next case in order of date is Ex parte Caucasian Trading Corporation; In re a Bankruptcy Petition [2] . It was a proceeding in bankruptcy based upon an order to enforce an ordinary civil arbitration award. Under s. 12 of the Arbitration Act 1889 Imp. it was possible to obtain an order in the High Court of England for the enforcement of such an order and all that was held was that that was a civil proceeding in the High Court. For the enforcement of the order it was necessary to issue an originating summons in the High Court based upon the award and to obtain an order. Quite simply, the Court of Appeal held that that was a proceeding in the High Court.

A decision of Clyne J. was also referred to, Re Ley; Ex parte Best [3] . There had been an application to register in the Supreme Court of New South Wales a judgment obtained in England. There was a special provision in the Administration of Justice Act, 1924 N.S.W. for such a proceeding. His Honour's judgment deals with the point which appears to have occurred to him that perhaps the words "Any civil proceeding" should be restrained in their meaning to a proceeding analogous to an action, but on consideration he thought no such narrow restraint should be placed upon them and in reaching the conclusion contrary to the doubt he had he was influenced by Ex parte Caucasian Trading Corporation; In re a Bankruptcy Petition [2] which I have just cited. He said: "If an application to enforce an award is a civil proceeding, an application by summons under the Administration of Justice Act, 1924 N.S.W., to register a judgment recovered against a debtor in England, must, I think, be regarded as a civil proceeding in the Supreme Court of New South Wales within the meaning of s. 52 (e) of the Bankruptcy Act " [4] .

(1949) 14 A.B.C. 191. 2. (1896) 1 Q.B. 368. 3. (1949) 14 A.B.C., at p. 192.

It is clear from a reference to those cases that they do not touch the question with which we are concerned, namely, whether the proceeding as it went through two courts remained not a civil proceeding but one for an offence. We think it did. For that reason the petition was not founded on an act of bankruptcy which was made out under s. 52 (e).

The appeal shall be allowed and the order of sequestration set aside.

The order will be: the appeal allowed with costs; order of sequestration set aside.

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