i ', at t Nea ' : - to s : TAPCHATR ODS : \.: Ps BANKRUFTCY - scder For costs ~ whetnerc execution nay i554. FEDERAL COURT - sower to issue wr1ts - implied limitation of suca powec. ve y. tec (r STATUTES -~ power given "subject to the rules" - erfactt af sucn i - - jt Bsubjecticr - resolution oF agoparcent canflict petween two be i : Federal Court of ti) : Federal Coucct Ru é Banc.uptev Rules ' RE: TINY BASILE EX PARTE: ERIC JOHN ANCICH c tus Te) Ewa) LD PET 123 OF 1 1) PINCUS J. BRISBANE 18 SEPTEMBER 198 iN THE FEDERAL COURT OF AUSTRALIA GENEZAL DIVISTON BANKRUPTCY DISTRICT OF THE SOUTHERN ! DISTRICT OF THE STATE OF OCUEENSLAND ~_ FL TONY BASTLE EX PAPTE: ERIC ccokN ANcicH MINUTES OF DRDER QLD PET 123 of 1985 CUDGE MAKING GRO: PLINCU . DATE OF oPLeER: 12 SEPTEMBER 1985 FrErFE MADE BRISBASE No weit of execution may eespecrc of the costs orde Spender J. NOTE: Secclement and entsy of orders is of the Fedecal Court Rules. 1ssuea in x made by iy ny rary cr . Fr ct re) BN a Qa Lay fu n % a) ny are ae tee Fe Maat le 7 nn Os cet te ee ee qrey coor ~_ ' nye . salead ite Ta taah Sait Sed aera tical ae al , % ' a t eg re gee ewes an = 7 nT . IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIViISiTON ) QLD PET 123 of BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF GUEENSLAND } 18 SEPTEMBE> 1985 REASONS FOR JUDGMENT This 1S a mattes cerercced to the Couct by the Registrar pursuant to ¢.119 of the Sankrurtcy Rules, On 7 May 1565 Mr Justice Spender dismiss a per rtion brought Sy COric John Ancich, a judgment creditor, against Tony \" Bascle, the judgment dentor, ardezead that the sum of $1,340 paid ints Court by or on behalf of the judgement aebtor be paid out fo 's s0liciters, ana ordered that "che debtor pay the casts of and incidental to the petition, to se A certifccate of the sum of $1,671.7¢. Subsequently, the solicitors for tha tert judgment creditor applied to the Registrar in Bankruptcy to issue a writ of execution against Mr Basile in respect of nis Honour's . < Pe aepesne aaa ree woe . por ne Pr me rte te : ts aie ay poe eee eae judgment for the costs. The Registrar seeks to have decided two { questions: - {- { 1. Wnethec he mav issue a writ of execution, and bh ' 2. TF aweit of axecution may 0e issuea, in : woat form thoula it 1ssue. Le ve Tt ages nor & ® Jliven to che fairsc question; 1S fatner sbscure. Tf have found 15 mecessary ©G trace rather & tartuous satn cowards my rp.297-290 held that Registrar croula not, under che Banksrupte Act 1566, issue a weit oF execution to enforce any judgmenic o¢ oder made uncer shat Act, aitnough such writs waece A.B.C. 264 ana Re Sutherland (1935) 5 A.3.C. 1753. However, the enactment of the Federal Court cf Australia Act 1976 brought into Lr existence two sections which bear upon Riley J's. conciusion. ti They are ss.23 and 53; 1¢ 15 convenient to deal with the latter first. [° i 7 . ~ a . 4 Section 53 yrovides.- pe I "(l) Subject to tne Rules of Court, a person in 1. io whose favour a judgment of the Court is given 15 entitled to the same remedies for enforcement of the judgment ina State or Territory, by execution or otherwise, as are a@liowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State oc Tarritory 15 given. (2) This section aces not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enfcrcemen=t oF judgments oF the Court." Iv will be noted that the section applies "subj he rules of courec". The pnrase is, perhaps. capabie of m4 execution for which the section provides. appear to se che orovision for = ~nich, appeacs ta mec sules for exec provisian in 5.5 similar in its power, subject t "J... in court, other the § which the Jj Suprem hat rules may vacy or requiate the proce However, that doe Tcue invention; by $.59(2){3, tne rules may m execution anc i note chat ict 15 the entiti sees of 53, is s.57ectea co the rules. o rollow that such srovision as is made ob ution may supplement or replace entirely 3. ncoipal cule célating ta o.37 4 effect to s.53. That is, it gives the o the rules, to:- order to enforce a judgment or order of the make any order, issue any weit oc take anv step that could be made, issued or taken by upreme Court of the State of Territory in be enforced if made by tnat the judament or order is ct udgment or order haa bee e Court." jsugne: mn oA iw 7] re rh S5 3 S$ nor ¢ stat pi oa weet ee ee eee ene = wy tne Sms pers a nd tf wd ana The making of ¢ Ps his rule has resulted in the supersession of the provision for execution in s.53. It is now to the cules, and not to 5.53, that execution. one leoks for the source of power to issue The argument co the contrary 15 tnat, wnile it may ce generally true that che rules now govern execution, the rules Simpiy ¢o not apply, subject tc c.4i, ta praceecings unaéer tre 1966: 582 oO.) ¢.ll. The point may de mace lan: hew ran ait be, 1f che cules made unger the gate to take away the entitlement ta executisn i5 taat f the furtes ciearly enough that chey were intendad tc be exhaustive of the subject : The fact that 1s to the same Looking at the matter more broadly, the conclusion taat the intention of the cules was to orceserve the operation of $.53 oniy ain bankruptcy cases is sca aimpronsable that cnly cléeac language would j The under the Fede ustify ora in adopting 1¢. ronclucion, then, to this point,is that 'tne rules a rai Voucs Act have, as 5.53 says tney may, supplanted the cperation of the section in all matters in the r, aye ee ' + rx arn hare BRT th nor ven nr ove re * crtmoate ae Federal Court, including bankruptcy cases; however, the provision in the rules for execution does not apply to bankruptcy cases. Tt should Se added that it does not anpear that the is any question abouc che validity of 5.53, on the basis thac by ic the legislature has delegatea too much; Victorian Stevedoring ana ws General Contracting Co. Ptv. Led. v. Dignan (1931) 46 C.L.R. 73. SECTION 22 Sect ——s I pasS now to the next question, Which is whether an incependent power to issue writs of exeécuticn ais given by 5.23. Tt reads as follows: - "The court mas vower, Im relation to matrecs 1 it has the jucisdicticn, to make orders such kinds, including inteclocutoscy orders, and issue, or direct the issue of, writs o kinds, as tne court thinks aporopriate." Ta rams a Fi an The provision has been considered a number of times in respecc of ts cl interlocutory; injunctions and simziar relief, foc example by the High Court in Thomson Austcalian Holdings Pry. 65. However, there appears to be no authority on the effect of the latter scart of the provision, empowering the 15sue of writs. Since s.23 15 not made "subject to the cules" the power 1t gives cannot be taken away by the rules, which cannot, of arose oe av ee ee ES oF ' t r wee course, be inconsistent with the Act. The question simply is, then, whether reading the Act as a whole s.23 was intended to, and did, give the Court power to issue writs of execution. Reading s.23 in isolation. no around appears for che court thinks u limiting che expression "writs of sucn Kinds, 4 of execution. in appropriate", in such a way as to exclude vrit Parcther, 10 is ciear that suth a reading would involve a quite substartial limitation of the impoctant cower given by 3.25. Nevertheless, I nave come to the conclusion that the ' limitation snouid be read into the section. Reflection on the matter nas canvincei me that if carnoc possibly have been latter gives a right to execution 'subject to the rules", which, for the reasons explained above, must mean that tne cules may take the antitlement avay ana replace it by one, of the same or a to nave that scheme co-existing with a simple grant of power to issue weits of execution, ircespective of the content of the rules. Toam somewhat encouraged towards this conclusion by the example of the aecision sf the Hign Court in Cooper Brookes 'Woatlonyong: Pry. Ltd. v. Feceral Comeissioner of Taxation (19982) 35 A.ELR. 151. It would be carricious and irrational of the legislature to have, on the one nand, made specific provision by s.53 for execution, subject to the rules, while, on the other hand, making general provision by 5.23 for the issue of writs +s toc a | including writs of execution, not subject to the rules. The appearance of caprice and irrationality may be removed by maxing the necessary Implication 1n s.23, and that I do. The ultimate conclusion. then, is that no writ of execution may be issued in respect of the order for costs mage by Spender 3. * certify thar this and the (4 preceding pages are a true copy of the reasons for judgrrent herein of His Honour Mr. Justice Pincus oD revicl O Rua. . 17/9 1/35 'Associate Dated oan oe, ere ee ot ' Ne tere ce ne nae ~ welt