2 The Official Trustee in Bankruptcy is the trustee of the bankrupt estate of the respondent.

3 On 22 January 1987 a form of Notice of Objection to Discharge dated 20 January 1987 and signed by Paul John Cook, was entered by filing with the Registrar of Bankruptcy. Mr Cook purported to be Acting Official Receiver and to be acting "for and on behalf of the Official Trustee". Omitting the title the notice was in the following terms:-

"I, Paul John Cook of 162 Macquarie Street, Hobart Acting Official Receiver for and on behalf of the Official Trustee object to the discharge of Terrence William Byrne, formerly of 'Fairhaven', Tunnack, farmer from bankruptcy by force of Section 149 of the Bankruptcy Act, 1966 on the following grounds:-

THAT the discharge of the bankrupt by force of this section would prejudice the administration of his estate in that investigations in which the bankrupt was involved have yet to be completed.

THAT the bankrupt has failed to co-operate in the administration of his estate in that:-

1 He has not completed and returned annual statements of income, assets and employment forwarded to him.

2 He has not delivered to me copies of settlement statements or other documents concerning his property dealings when requested.

3 He has failed to respond to correspondence requesting him to assist in the administration of his estate.

THAT the conduct of the bankrupt, either in respect of the period before or the period after the date of bankruptcy, has been unsatisfactory in that he omitted to keep and preserve such books, accounts or records as sufficiently disclose his business transactions and financial position within the period of five years immediately preceding the date on which he became bankrupt.

DATED this 20th day of January, 1987.

4 The Notice of Objection was purportedly entered pursuant to s149(3)(c). If the notice was effective it had the result of extending the period of the bankruptcy from 3 years to 5 years, that is to 27 February 1989 (see s149(7)(a)) unless otherwise ordered by the Court.

5 The applicant, the Official Trustee, has applied to the Court under s149(12) for a direction that the respondent shall not be discharged from bankruptcy by virtue of the section. If the application is successful the respondent will not be discharged from bankruptcy on 27 February 1989, but will remain a bankrupt unless and until his discharge is ordered by the Court at some future time under s150.

6 The respondent has raised a preliminary point which, it has been agreed by counsel, should be disposed of by the Court before the substance of the application is considered. The respondent's argument, putting it simply, is that Mr Cook was not validly appointed as Acting Official Receiver, that it follows that the Notice of Objection to Discharge filed on 22 January 1987 was of no effect and as a result the respondent was automatically discharged at the expiration of 3 years from the date of bankruptcy. It is obvious that if this argument is successful the application of the Official Trustee that the respondent not be discharged, must fail because s149(12) requires the application to be made "before the discharge of a bankrupt" and the discharge occurred, if the respondent's argument is correct, on 27 February 1987.

7 The relevant provisions of s149 are:-

"149 - (1) Subject to this section, a person who becomes a bankrupt after the commencement of this section is, by force of this section, unless sooner discharged in accordance with section 150, discharged from bankruptcy upon the expiration of 3 years from the date of the bankruptcy.

(2) ......

(3) A bankrupt is not discharged from bankruptcy by virtue of this section if -

(c) the Registrar, the Inspector-General or the trustee has entered, or a creditor has, with the leave of the Court, entered, an objection, in accordance with the prescribed form and in the prescribed manner, to the discharge of the bankrupt by force of this section and the objection has not been withdrawn or lapsed before the time when the bankrupt would have been so discharged but for this subsection; or

(d) an order of the Court under sub-section (12) is in force in relation to the bankrupt.

(4) An objection shall not be entered under paragraph (3)(c) otherwise than on one or more of the following grounds:

(a) that the bankrupt is able, or likely within 5 years from the date of the bankruptcy to be able, to make a significant contribution to his estate;

(b) that the discharge of the bankrupt by force of this section would prejudice the administration of his estate;

(c) that the bankrupt has failed to co-operate in the administration of his estate;

(d) that the conduct of the bankrupt, either in respect of the period before or the period after the date of the bankruptcy, has been unsatisfactory.

(5) .....

(6) .....

(7) Subject to sub-section (11), an objection entered under paragraph (3)(c) lapses at the expiration of -

(a) subject to paragraph (b), the period of 5 years from the date of the bankruptcy; or

(8) .....

(9) .....

(10) .....

(11) .....

(12) The Court may, at any time before the discharge of a bankrupt, on the application of the Registrar, the Inspector-General, the trustee or a creditor, direct that the bankrupt shall not be discharged from bankruptcy by virtue of this section.

(13) In deciding whether to make an order under sub-section (12), the Court shall take into account such matters (if any) as are prescribed for the purposes of this sub-section.

(14) ....".

8 It can be seen from s149(3)(c) that an objection to the discharge of a bankrupt may be entered, without the leave of the Court, by "the Registrar, the Inspector-General or the trustee". The applicant's case is that the notice of objection filed on 22 January 1987 was entered by "the trustee". By virtue of the definition in s5(1) "the trustee" means "the trustee of the estate of the bankrupt", in this case the Official Trustee in Bankruptcy (hereafter I will refer to him as "the Official Trustee").

9 The Official Trustee is a corporation sole constituted by the Secretary of the Attorney-General's Department. s18 provides for the office so far as it is relevant:-

"18 - (1) The body corporate known as the Official Trustee in Bankruptcy that was in existence immediately before the commencement of this sub-section continues in existence, under that name, constituted as a corporation sole.

(2) .....

(3) The Secretary to the Department constitutes the Official Trustee in Bankruptcy.

.....

(8) An Official Receiver may, in the name of, and on behalf of, the Official Trustee, exercise any of the powers, or perform any of the functions, of the Official Trustee.

(8A) All acts and things done in the name of, or on behalf of, the Official Trustee by, or under the authority of, any Official Receiver, shall be deemed to have been done by the Official Trustee.

....".

10 By virtue of s18(8) an Official Receiver may in the name of, and on behalf of, the Official Trustee, exercise any of his powers and perform any of his functions and sub-section (8A) provides that all acts and things done in the name of, or on behalf of, the Official Trustee, by or under the authority of, any Official Receiver, shall be deemed to have been done by the Official Trustee.

11 The preliminary point raised concerns whether Mr Cook, in signing and filing the Notice of Objection to Discharge in January 1987, was in fact, as stated in the notice "Acting Official Receiver", and whether he had any power to enter the notice on behalf of the Official Trustee. The applicant claims that Mr Cook became Acting Official Receiver by virtue of appointment to that position by Peter James Wenn, the Inspector-General in Bankruptcy on 12 January 1987. The appointing instrument (incorrectly dated 12 January 1986) was in the following terms:-

" Appointment of Acting Official Receiver

In pursuance of a delegation given by the Secretary of the Attorney-General's Department and in pursuance of paragraph 17(1)(b) of the Act, I, PETER JAMES WENN, the person for the time being performing the duties of the office of Inspector-General in Bankruptcy, hereby appoint PAUL JOHN COOK to act in the office of Official Receiver for the Bankruptcy District of the State of Tasmania from 13 January 1987 to 23 January 1987 inclusive.

DATED this 12 day of January 1986.

(sgd) (P.J. WENN)

Inspector-General in Bankruptcy."

12 The appointment of Mr Cook was purportedly made pursuant to s17(1)(b). Section 17 provides:-

"17 - (1) The Secretary to the Department may appoint a person to act as Inspector-General or Official Receiver-

(a) during a vacancy in the office of Inspector General or Official Receiver, as the case may be; or

(b) during any period, or during all periods, when the Inspector-General or Official Receiver, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the functions of his office,

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

....

(6) While a person is acting as Inspector-General or Official Receiver, he has and may exercise all the powers, and shall perform all the functions and duties, of the Inspector-General or Official Receiver, as the case may be, under this Act or any other law of the Commonwealth.

(7) The validity of anything done by a person purporting to act under sub-section (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had ceased."

13 Section 17(1) expressly empowers the Secretary to the Attorney-General's Department to appoint an Acting Official Receiver but does not purport to authorise the Inspector-General or any other person, to do so. However, the instrument of appointment purported to have been made by the Inspector-General in "pursuance of a delegation given by the Secretary of the Attorney-General's Department". The evidence shows that the delegation relied on is contained in a document signed by the Secretary to the Attorney-General's Department on 28 June 1986 in the following terms:

"DELEGATION

I, PATRICK BRAZIL, Secretary to the Attorney-General's Department, hereby delegate to the person for the time being occupying, or performing the duties of, the office of Inspector-General in Bankruptcy my powers -

(i) under sub-section 17(1) of the Bankruptcy Act 1966 to appoint a person to act as Official Receiver; and

(ii) under sub-section 17(3) of the Bankruptcy Act 1966 to terminate an appointment of a a person to act as Official Receiver.

DATED this 25th day of June 1986

(Sgd) P Brazil, Secretary."

14 Prior to 19 May 1986 the power in s17 to appoint a person to act as Official Receiver reposed in the Minister. On that day the power was transferred to the Secretary of the Attorney-General's Department by virtue of an amendment made by s7 of the Bankruptcy Amendment Act 1985. At that time s10 enabled the Minister to, "by writing under his hand, delegate any of his powers and functions under this Act except this power of delegation". On 16 December 1987 s10 was replaced with a new s10 by the Bankruptcy Amendment Act 1987 so as to authorise the Secretary to, "by writing signed by him or her, delegate to an officer all or any of the Secretary's powers under this Act, other than this power of delegation", in addition to authorising the Minister to delegate as he could before. But the delegating document signed by the Secretary on 28 June 1986 was made at a time when there was no express power conferred by the principal Act on the Secretary to make the delegation.

15 The applicant's argument is that at all material times, the Secretary had, not an express, but instead an implied power to delegate his powers and that the purported delegation by the Secretary to the Inspector-General and the appointment by the Inspector-General of Mr Cook to act as Official Receiver were effective.

16 I cannot conclude that such an implied power existed. Prior to the operation of the Bankruptcy Amendment Act 1985, s17 expressly gave power to the Minister to appoint a person to act as Official Receiver and s10 expressly empowered the Minister to delegate his powers. With transfer of the power to appoint from the Minister to the Secretary by the 1985 Act and with no express power of delegation being also given to the Secretary, no implication of the power to delegate can be drawn from the legislation. The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. Where Parliament has given power to delegate to a named person but no such power to another named person in the same Act, the implication to be drawn is that Parliament did not intend that other to have such a power. This is a case where the maxims expressio unius est exclusio alterius (or designatio unius est exclusio alterius) and expressum facit cessare tacitum ought to be applied.

17 Counsel for the Official Trustee submitted that the validity of the action of the Secretary of the Attorney-General's Department in delegating to Mr Wenn the power under s17(1) to appoint persons to act in the office of Official Receiver should be upheld pursuant to the doctrine in Carltona, Ltd v Commissioner of Works and Others [1943] 2 All ER 560. I find it sufficient to perhaps inaccurately summarise the facts in the case to say that it involved a wartime regulation empowering a Minister to take possession of land for any of certain specified reasons connected with the war. The power was exercised by a notice signed by a public servant for and on behalf of the Minister. Lord Greene MR with whom the other members of the Court of Appeal agreed said at p563:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

18 The High Court considered the Carltona principle in O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others [1983] HCA 47; (1983) 153 CLR 1. In that case Gibbs CJ said at pp11 and 12 that the principle is not confined to Ministers. He could see no reason why, in construing sections of the Income Tax Assessment Act 1936 which conferred powers on the Commissioner of Taxation, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally. Those powers included the power to amend assessments and to serve notices of assessment, and with millions of tax payers "it would reduce the administration of the taxation laws to chaos if the powers conferred by those sections could be exercised only by the Commissioner or a Deputy Commissioner personally. It cannot be supposed that the Parliament intended such a result".

19 The Chief Justice decided the point he was considering, not on the basis of the existence or non-existence of a power to delegate, but on the basis that the Commissioner's powers (and those of his lawful delegates) could be exercised on his behalf through properly authorized officers. Murphy J agreed.

20 Wilson J was similarly minded. After referring to the Carltona case he said at p31:

"Yet I find the logic of the principle equally persuasive in its application to the head of any large government department, and, a fortiori, to a Deputy Commissioner of Taxation responsible within a State for the implementation of the Commonwealth's laws with respect to taxation. No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister. I share the view expressed by Sachs J in Commissioners of Customs and Excise v Cure & Deley Ltd [1962] 1 QB 340, at p 371:

'The commissioners are in a position parallel to that of the Ministers referred to in the judgment of Lord Greene in the Carltona Case [1943] 2 All ER , at p563, in that their functions are so multifarious that they could never personally attend to them all, and the powers given to them are normally exercised under their authority by responsible officials of the department.'"

21 The powers and functions of the Secretary under the Act are not many. They are the appointment of the Inspector-General and the Registrar, Deputy Registrars and Official Receivers of each District (s16), the appointment of persons to act as the Inspector-General or an Official Receiver (s17), the appointment of persons to act as a Registrar or Deputy Registrar (s17A), and the directing of Registrars in relation to the keeping of books of account and the making of returns, and in relation to the opening and maintaining of bank accounts (s20). There is no evidence that these powers and functions can be described as so multifarious that he could not personally attend to them together with those he has other than under the Act. They are restricted to the appointment of the most senior officers employed in the administration of bankruptcy, or persons who might act as such senior officers, and to the giving of a limited number of directions to some of those senior officers, the Registrars. Further the Secretary will no doubt have the advice and assistance of others in performing his powers and functions.

22 In addition, the Secretary constitutes the body corporate known as the Official Trustee in Bankruptcy (s18(3)). As such he has many functions which he could not possibly perform personally. But s18(8) expressly caters for that problem by saying that an Official Receiver may in the name of, and on behalf of, the Official Trustee, exercise any of the powers, or perform any of the functions, of the Official Trustee. Thus the Secretary, in his capacity of constituting the corporation of the Official Trustee, is expressly relieved from personal performance of those functions.

23 The conclusion I have come to is that the Secretary had no power to delegate his powers of appointment of an acting Official Receiver, based on an interpretation of the Act itself and from it what Parliament intended.

24 This is not a case of the officer in question purporting to exercise a power in the name of or on behalf of his superior, as was the position in both the Carltona and O'Reilly cases. Mr Wenn issued the Notice of Objection to Discharge in his own name for and on behalf of the Official Trustee, but not in the name or on behalf of the Secretary.

25 However, it is my view that the appointment of Mr Cook by the Inspector-General was effective because of the provisions of s17(7). Counsel for the respondent submitted two reasons why that should not be the case. Firstly, the subsection is expressed to operate only if Mr Cook was "purporting to act under sub-section (1)", that is to say was purporting to act pursuant to an appointment by the Secretary, whereas the appointment was made by the Inspector-General. Secondly, there cannot be said to be a defect or irregularity in connection with such an appointment in such circumstances. The appointment, being made by the Inspector-General, was a nullity and not simply a defect or irregularity. Reliance for the argument that it was a nullity was placed on Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, but that case is of no assistance, it involving a consideration of whether an erroneous decision by a commission, properly established, was a nullity. Reliance was also placed on Re Lehane, Ex parte Potter [1933] QWN 31 and Re Moir, Ex parte Byron [1934] QWN 37. Both those cases involved errors in bankruptcy notices and consideration of the equivalent of s306(1) in the Bankruptcy Act 1966. Clearly they should be distinguished.

26 In reality Mr Cook did purport to act under s17(1). The subsection empowered the Secretary to appoint an acting Official Receiver. The Secretary had purported to delegate that power to the Inspector-General who in turn purported to appoint Mr Cook to the position expressly under s17(1)(b). Acting on the assumption that he had been so appointed Mr Cook, as attested by him in his affidavit, performed all the duties associated with the office of the Official Receiver, including the issue of the Notice of Objection to Discharge relating to the respondent. The facts are similar to those which came before the Court of Appeal in Woollett v Minister of Agriculture and Fisheries [1955] 1 QB 103. In that case two of a number of members of a tribunal were required by statute to be appointed by a minister for each reference to a tribunal. A servant of the minister who was also secretary of the tribunal, informally approached two members to sit on the tribunal, without specific authorization from the minister but following prevailing practice established by the predecessor of the servant and secretary. Denning LJ at p121, held that the absence of any actual or professed authority to appoint on behalf of the minister was more than an informality. It was a defect which was fatal unless it was cured by other provisions of the statute. He found that cure in a provision in the statute, referred to as paragraph 20(2), that:

"All acts done at any meeting of any such body shall, notwithstanding that it is afterwards discovered that there was a defect in the appointment or disqualification of a person purporting to be a member thereof, be as valid as if that defect had not existed".

Jenkins LJ at p128 and Morris LJ at p137 also considered that if the appointment of the two members was not otherwise effective it could be classified as a "defect" in the appointment and what had occurred at the meeting of the tribunal was therefore valid.

27 Woollett's case is strongly persuasive and I follow it and hold that the validity of the issue of the Notice of Objection to Discharge by Mr Cook should not be called in question.

28 Section 306(2) would appear also to validate the Notice of Objection. It states:

"A defect or irregularity in the appointment of any person exercising, or purporting to exercise a power or function under this Act ... does not invalidate an act done by him in good faith."

Certainly the evidence establishes that Mr Cook acted in good faith.

29 Counsel for the applicant also relied on what has come to be known as the de facto officers doctrine. It was not referred to in Woollett's case but remarks made by Denning LJ at p121 are pertinent:

"I cannot help remarking that it would be most unfortunate if we came to any other conclusion. The members of the land tribunals in the eastern province have been appointed in this way for several years. They have made decisions in a great many disputes and people have acted on the faith of their decisions. Indeed, we have had cases in this court where these tribunals have given consent to notices to quit by landlords to tenants; and many landlords have recovered their lands on the basis that the decisions are valid: see Martin-Smith v Smale [1954] 1 WLR 247; [1954] 1 All ER 237. If all the decisions were now invalidated by a technical defect, it would produce great confusion and injustice. It is just the thing which paragraph 20(2) was made to avoid."

30 Before proceeding to consider the de facto officers doctrine, some of the evidence, all of which I accept, requires to be stated. The relevant paragraphs of Mr Cook's affidavit were:

"1 ...

2 Between 27th of February 1983 and 20th of March 1987 I was employed with the Official Receiver's Office at 188 Collins Street and 162 Macquarie Street in Hobart.

3 During my employment with the Official Receiver's Office I fulfilled the duties of the following positions:

4 Whilst employed in the above positions with the Official Receiver's Office my duties generally were:

Investigation of complex bankruptcies, management of the Task Force involved in the administration of the bankrupts estates, involved in the day to day administration of the office, responsible for the administration of the Estates of the Bankrupts and carrying out of all the duties of the Official Receiver under the Bankruptcy Act 1966.

5 In approximately November 1984 I commenced acting as the Assistant Official Receiver in charge of the Bankruptcy Task Force.

6 As the Acting Assistant Official Receiver I received an appointment to act as the Official Receiver in Tasmania from 13th of January 1987 to 23rd of January 1987 inclusive (hereinafter referred to as the 'relevant period'). Copy of appointment is annexed as annexure 'A'. Annexure 'A' was received by me together with a covering letter which is annexed as Annexure 'B'. Annexure 'A' and 'B' were received by me on 14 January 1987 as recorded in the 'Canberra Mail Register' which is annexed as Annexure 'C'.

7 The reason for my appointment as Acting Official Receiver was the absence of the then Official Receiver, Mr Digby Nicholas Bartholomew Ross, being on leave and the then appointed Acting Official Receiver Brett Richard Jeffrey Harrison being away on sick leave.

8 During the relevant period whilst acting as the Acting Official Receiver I performed all the duties associated with the Office of the Official Receiver.

9 During the aforementioned period I was also paid the salary commensurate with the Official Receiver's salary in Tasmania. I annex the direction to perform higher duties noting my appointment as the Official Receiver and noting my higher salary as Annexure 'D'.

10 During the relevant period I performed the following duties which are usually performed by the Official Receiver in Tasmania:

(a) I examined and admitted Proofs of Debt pursuant to Section 102 of the Bankruptcy Act.

(b) I approved the performance of higher duties by other staff in the Office.

(c) I approved staff leave, and generally supervised all staff in the Office.

(d) I reviewed files with a view to entering objections.

(e) I reviewed files with a view to withdrawing objections.

(g) I signed all cheques issued by the Official Receiver's Office.

(h) I dealt with all correspondence from the Inspector General's Office in Canberra.

(i) I approved the sale of assets pursuant at Section 134 of the Act.

(j) I dealt with all telephone calls directed to the Official Receiver.

(k) I received and dealt with all mail and other communications directed to the Official Receiver.

11 During the relevant period my name was substituted for that of Digby Nicholas Bartholomew Ross on all official correspondence that issued out of the Office under the name of the Official Receiver.

12 During this time I also occupied the actual office of the Official Receiver and had use of all his facilities in the office.

13 During the relevant period while I was performing the duties of the Official Receiver I was treated by all staff as the Acting Official Receiver, and believed my appointment of 12th January 1987 to be effective.

14 The first time I became aware that a question had arisen in relation to the appointment of the 12th January 1986 was on 25th of January 1989 when Brett Richard Harrison the Acting Official Receiver in Hobart contacted me by telephone.

15 I have perused the Affidavit of Digby Nicholas Bartholomew Ross and in relation to paragraph 22 I note that I was the Officer responsible for the physical filing of Annexure 'C' appearing in the said Affidavit." (The Notice of Objection to Discharge).

16 ...".

31 By his affidavit, the Inspector-General, Mr Wenn, attested as follows:

"1 ...

2 I annex a copy of the Delegation from the Secretary to the Attorney-General's Department dated 28 June 1986 delegating to me powers under section 17(1) and 17(3) of the Bankruptcy Act 1966 at annexure 'B'.

3 Upon receipt of the delegation mentioned in paragraph 2 above I acted in reliance upon it believing it to be an effective delegation and thereby appointed Paul John Cook to act in the office of Official Receiver for Bankruptcy in Tasmania from 13 January 1987 to 23 January 1987 inclusive. I annex the appointment to act as Official Receiver at annexure 'C' and note that the date '1986' just above my signature should in fact be 1987. I note that 1986 was typed in by mistake.

4 At all times whilst acting under the Delegation by the Secretary to the Attorney-General's Department dated 23 June 1986 I believed the delegation to be proper and effective and I acted under this Delegation in good faith when appointing Paul Cook as the Acting Official Receiver in Tasmania for the period 13 January 1987 to 23 January 1987 inclusive.

5 The first time that I became aware that there was a defect in the delegation to me and my appointment of Paul Cook as the Acting Official Receiver was on 12 December 1988."

32 The de facto officers doctrine has its roots in English common law. Its development from the 15th Century was traced by Butler CJ in an appeal to five judges of the Supreme Court of Connecticut in State v Carroll (1871) 38 Conn. 409 (and 9 Amer Rep 409). At p423 he said:

"The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers. It was seen, as was said in Knowles v Luce, that the public could not reasonably be compelled to inquire into the title of an officer, nor he compelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices under such apparent circumstances of reputation or color as would lead men to suppose they were legal officers, the law validated their acts as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid. It was not because of any quality or character conferred upon the officer, or attached to him by reason of any defective election or appointment, but a name or character given to his acts by the law for the purpose of validating them. When, therefore, in civil cases, the public or third persons had knowledge that the officer was not an officer de jure, the reason for validating the acts to which they submitted, or which they invoked, failed, and the law no longer protected them. That principle was recognized and applied even in Rex v Lisle, and particularly in Rex v Bedford Level.

It should be remembered that amongst the earliest cases there was a distinct class entirely independent of color derived from any known appointment or election, where the law said to the public as a rule of policy: 'If you find a man executing the duties of an office, under such circumstances of continuance, reputation or otherwise, as reasonably authorize the presumption that he is the officer he assumes to be, you may submit to or employ him without taking the trouble to inquire into his title, and the law will hold his acts valid as to you, by holding him to be, so far forth, an officer de facto. If he has color of appointment or election, and yet is not a good officer for the want of authority in the appointing power, or irregularity in exercising it, or because there was another lawful officer entitled to the office, or because the incumbent was ineligible, or had not qualified as the law required, or his term had expired, your case is made stronger by the color, but that kind of color is not essential to your protection, for you are not bound to inquire to see that it exists'. So the law has spoken in England from the first introduction of the doctrine, as the cases abundantly show. So it speaks there now. So it spoke in this country until that deceptive definition was introduced from Strange, and so it has since spoken, and the definition been modified accordingly, whenever a case has arisen where the policy on which the law was founded has made it necessary that it should so speak to save the public from mischief or individuals from loss."

33 Butler CJ then considered whether there is a need for the de facto officer to act under colourable title or authority, and concluded at p 427:

"A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take on oath, give a bond, or the like.

Third, under colour of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

Fourth, under colour of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.

Any thing less comprehensive and discriminating will, I think, be imperfect and deceptive as a definition."

34 The doctrine has been accepted by American courts. It was adopted by the Court of Appeal in New Zealand in Re Aldridge [1893] 15 NZLR 361 where there was in question the validity of a conviction and sentence by a de facto judge who, the Privy Council had later decided, had been invalidly appointed.

35 In Adams v Adams [1971] P188, Sir Jocelyn Simon P said that the doctrine applied to a de facto judge (but he did not apply it in the special circumstances of the case he was considering, the de facto Rhodesian judge having been appointed pursuant to a Constitution which England refused to recognize). He referred to State v Carroll (supra) and Re Aldridge (supra) and to the interesting article about the doctrine by Mr Justice Dixon (later Sir Owen Dixon) entitled "De Facto Officers" in (1938) 1 Res Judicata 285; reprinted in "Jesting Pilate" 228. He continued at p212:

"I can certainly conceive of circumstances where the doctrine of the validity of the acts of officers (including judicial officers) de facto sed non de jure would be useful.

'The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of that officer without being lawful officers' (State v Carroll, 9 Am 409, 432 by Butler CJ).

What I have said about public policy in relation to the doctrine of 'necessity' is therefore again relevant here.

A useful illustration of the doctrine in English law appears from Rex v Bedford Level Corporation [1805] EngR 148; (1805) 6 East 356. The question was whether the acts of a deputy registrar who continued to act after the death of his principal were valid as those of an officer de facto sed non de jure. Lord Ellenborough CJ, giving the opinion of the court, said, at pp368-369:

'An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.'

The court held that the acts of the deputy registrar were good until the death of the principal was known, but not afterwards. That case shows, in my view, that the doctrine has no place where the circumstances giving rise to the legal defect are notorious."

36 Zelling J in Hughes v Hughes [1971] 2 SASR 368 applied the doctrine in the case of Supreme Court Masters who "did not have a known or in fact any de jure appointment at all" (under the Matrimonial Causes Act 1959) "but were acting under circumstances of reputation or acquiescence (it must be remembered that both sides invoked their jurisdiction at various times and submitted to it during the course of this particular action) as were calculated to induce people in the position of these parties and their legal advisers without inquiry to submit to or invoke their actions, supposing the Masters to be the officers they assumed to be...." (at p376). He continued that "in my opinion the test in this country is that adopted by Lord Ellenborough CJ in R. v The Corporation of Bedford Level [1805] EngR 148; (1805) 6 East 356 at pp368 - 369:

"An officer de facto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law."

37 The New South Wales Court of Appeal applied the doctrine to a metropolitan land board in The Minister for Lands v Vaucluse Bowling Club Ltd [1971] 2 NSWLR 200. It was also applied by three judges of the South Australian Supreme Court sitting in banco in R. v Cawthorne, Ex parte Public Service Association of South Australia Incorporated [1977] 17 SASR 321. Bray CJ at p329 referred to it as "the venerable principle of the common law that the acts of a de facto officer done in the apparently regular execution of his office have equal force and effect with those of an officer de jure, and that his title to the office can only be challenged in some proceeding directly impeaching it such as quo warranto". At p331 he said that there were certain circumstances in which the doctrine "does not, or at least may not, apply", they being:

1 It does not apply to the purported exercise of an illegal office or one unknown to the law. The office in question must exist de jure even if the officer does not.

2 It is a matter of doubt, but there are some authorities which suggest that a court of error can interfere if the record itself (in this case I suppose the issue of the Notice of Objection to Discharge by Mr Cook) disclosed the invalidity of the appointment.

3 There is some suggestion in some cases that the doctrine does not apply to a mere usurper without colour of right.

38 None of these circumstances apply to the present case. I am satisfied that if s17(7) and s306(2) were not in the Act, the issue of the Notice of Objection to Discharge by Mr Cook would, by reason of the line of authorities establishing the de facto officers doctrine, be valid as falling within the third class of case set forth by Butler CJ in State v Carroll (supra).

39 I reject the submission of counsel for the respondent that the doctrine cannot be applied where a person's status is involved. The authorities do not support such a proposition.

40 The fact that Mr Cook purported to be Acting Official Receiver for only eleven days is immaterial. The doctrine should apply to a de facto officer regardless of the length of his de facto office provided that the case otherwise falls within the doctrine.

41 The facts establish that, albeit for 11 days, Mr Cook, under the belief held in good faith that he had been validly appointed to act in the position of Official Receiver, was paid a higher salary commensurate with the purported appointment, performed all the duties of an Official Receiver, had his name on all official correspondence that issued out of the office under the name of the Official Receiver, occupied the office of the Official Receiver and used his facilities. Further, he was treated by all staff as Acting Official Receiver. He acted under colour of appointment and the evidence establishes on the balance of probabilities that no one suggested that his appointment was invalid or irregular until about December 1988, well after he had ceased to be the de facto Acting Official Receiver.

42 The point was not argued, but it may be that the doctrine is inapplicable in a case where Parliament has made special provision, as it did in s17(7) and s306(2). It is not necessary for me to decide this in the circumstances of my other determinations.

43 The applicant also argued that the purported appointment of Mr Cook was effective because of s15(4) and (5). The section provides:-

"15 - (1) There shall be for each District an Official Receiver and such officers to assist the Official Receiver in the performance of his functions under this Act as are necessary.

(2) The Official Receivers shall be under the control of the Court.

(3) Each Official Receiver has such powers and functions as are conferred or imposed on an Official Receiver by this Act.

(4) The Inspector-General may, by writing under his hand, direct an officer to exercise and perform, for such period as is specified in the direction or until the direction is terminated, all of the powers, functions or duties of an Official Receiver under this Act or such of those powers, functions or duties as are specified in the direction.

(5) A power, function or duty of an Official Receiver under this Act, when exercised or performed by an officer in accordance with a direction given by the Inspector-General under sub-section (4), shall, for the purposes of this Act, be deemed to have been exercised or performed, as the case requires, by an Official Receiver."

44 The writing under the hand of the Inspector-General was expressed to "hereby appoint Paul John Cook to act in the office of Official Receiver for the Bankruptcy District of the State of Tasmania from 13 January 1987 to 23 January 1987 inclusive." The evidence establishes that this writing was received by Mr Cook in company with a letter or memorandum under the hand of the Inspector-General dated 12 January 1987 and addressed to the "Official Receiver Hobart" in the following terms:

"I attach an instrument pursuant to paragraph 17(1)(b) of the Bankruptcy Act 1966 which will enable Paul John Cook to act as Official Receiver of the District of the State of Tasmania from 13 January 1987 to 23 January 1987".

45 Although neither document in terms "directed" Mr Cook to exercise and perform all the powers, functions and duties of an Official Receiver, they certainly informed him that he could exercise and perform them and on balance the conclusion I have come to is that in the situation where the Inspector-General has express power to so direct a more junior officer in the bankruptcy administration, informing that officer that he is appointed to the acting position of Official Receiver is equivalent to directing him to exercise and perform those powers, functions and duties. I am assisted in coming to this conclusion by the Shorter Oxford English Dictionary (1977) which provides as a meaning of "direct": "To give authoritative instructions to; to ordain, order or appoint (a person) to do a thing" (my underlining). s15(5) therefore operates and the issue of the Notice of Objection to Discharge by Mr Cook is deemed to have been performed by an Official Receiver.

46 The instrument of appointment, which I have held to amount to a direction, was expressed to be made in pursuance of the purported delegation by the Secretary of the power to appoint which delegation I have held to be ineffective. However this does not prevent the instrument falling within the category of a direction under s15(4). "It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power ...": Lockwood v The Commonwealth [1954] HCA 31; (1954) 90 CLR 177 per Fullagar J at p184.

47 It is accordingly my decision that the Notice of Objection to Discharge effectively extended the period of the bankruptcy to 27 February 1989 and that the application of the Official Trustee for a direction under s149(12) that the respondent shall not be discharged from bankruptcy is properly before the court.