JUDGMENT No. 5! 949/81 CATCHWORDS BANKRUPTCY - Application to review the issue of section 81 summons - status of Deputy Registrar in Bankruptcy in applying for summons after appointment by the Inspector-General to exercise powers of Official Receiver - definition of "officer" in section 5(1) - whether Deputy Registrar in Bankruptcy is an "officer of the Commonwealth". Bankruptcy Act 1966: sections 5(1), 14(5), 15(4) and 81 Re: Kenneth Graham Winton Debtor Ex parte: James John Jolliffe Deputy Registrar in Bankruptcy W168 of 1984xX EINFELD J SYDNEY 30 October 1987 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT IN THE STATE OF No. W168 of 1984xX NEW SOUTH WALES AND www eww ww THE AUSTRALIAN CAPITAL TERRITORY Re: KENNETH GRAHAM WINTON Debtor Ex parte: JAMES JOHN JOLLIFFE Deputy Registrar in Bankruptcy CORAM: Einfeld J PLACE: Sydney DATE: 30 October 1987 MINUTE OF ORDERS & 1. The applications is dismissed. 2. Applicant is to pay the respondent's costs. NOTE: Settlement and entry of these orders is dealt with in rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT IN THE STATE OF No. W168 of 1984x NEW SOUTH WALES AND wwwewwwweww THE AUSTRALIAN CAPITAL TERRITORY Re: KENNETH GRAHAM WINTON Debtor Ex parte: JAMES JOHN JOLLIFFE Deputy Registrar in Bankruptcy CORAM: Einfeld J PLACE: Sydney DATE: 30 October 1987 REASONS FOR JUDGMENT This is an application on behalf of the bankrupt, Kenneth James Winton ("the applicant"), under section 14(5) of the Bankruptcy Act ("the Act") for review of a summons issued by a Deputy Registrar in Bankruptcy ("the respondent") to Mr. Winton under section 81 of the Act. Applications are also made for the section 81 summonses to Laitier Pty. Ltd. and Cadoplum Pty. Ltd. ("the companies") to be reviewed or set aside. All these summonses were issued on the application of a Deputy Registrar under appointment by the Inspector-General under section 15(4) of the Act to carry out the duties of official receiver. The original grounds of the application were that the summonses: (a) were too wide; (b) were oppressive; and (c) do not specify sufficiently precisely the documents' to be produced. During the course of the hearing, leave was granted to the applicant and the companies to amend their applications to make the additional assertion that the respondent in his section 15(4) capacity, had no status to apply for a summons under section 81 of the Act. On the day of the hearing, 10 June 1987, I gave judgment on the first three issues raised. However, the issue concerning the status of a Deputy Registrar in Bankruptcy to apply for the summons was in one respect reserved to permit written submissions. The argument was twofold, viz: (1) that under section 81 itself the application can only be made by a creditor or by an Official Receiver or Official Trustee. (2) that under section 15(4) the only person who may be directed by the Inspector-General to exercise the powers of an Official Receiver and perform his functions or duties is an "officer". The first of these arguments was addressed and rejected in my judgment on 10 June 1987. The issue left to be determined is whether a Deputy Registrar in Bankruptcy is an "officer". "Officer" 18 defined in section 5(1) as an officer of the court or of the Commonwealth. As stated in my judgment of 10 June 1987, I believe that a Registrar is not an officer of the court (see James v Deputy Commissioner of Taxation (1956-57) 97 CLR 23). Therefore, the question is whether or not a Registrar in Bankruptcy is an "officer of the Commonwealth". It was argued by the applicants that a Registrar is not an officer of the Commonwealth and that he is merely a person independently appointed under the Act. It was said that he is in no way subject to the direct service and control of the Commonwealth. Support for the applicant's argument was sought in Attorney-General of New South Wales v Perpetual Trustee Co. (1955) AC 457 and Clyne v Federal Commissioner of Taxation (1982) ATC 4648. The second of these two cases focused on whether the Commissioner of Taxation is a servant or agent of the Commonwealth. It was held that the Commissioner of Taxation is a public or ministerial officer who holds an independent public office and carries out duties referable to his appointment. He was held not to be a servant or agent of the Commonwealth. The first case dealt with the status of police constable under the Police Regulation Act of New South Wales. A distinction was drawn between a person who is employed by a State and a person who is appointed to an independent office and operates directly under the Crown. It was held in this case that the constable was a ministerial officer exercising statutory rights independently of contract. His relationship with the government could not be described as that of master/servant. Although neither of these decisions was determinative of the issue here, the applicant's argument was based on the submission that a Registrar is not an "officer of the Commonwealth" because he is not a servant or agent of the Commonwealth. The applicant said that just as a Registrar is not an officer of the court because he is not a servant or agent of the Court, so is he not an officer of the Commonwealth because he is not a servant or agent of the Commonwealth. An "officer of the Commonwealth", it was submitted, must be appointed by the Commonwealth and act on behalf of the Commonwealth as against acting on behalf of the Crown. The respondent submitted that as a consequence of being appointed to the Commonwealth Public Service under the Public Service Act 1922, a Registrar's promotion, pay and discipline are governed by this Act. The respondent, it is said, has also been appointed to the position of Deputy Registrar in Bankruptcy pursuant to section 16 of the Act. He therefore possesses the powers conferred on a Registrar pursuant to section 14(2) of the Act in addition to the powers and functions of an administrative nature as the court authorises and directs under section 14(3). For both of these reasons, it is submitted by the respondent that he is an officer of the Commonwealth. The respondent submits that the concept "officer of the Commonwealth" does not appear to have any special meaning in the Act and therefore its ordinary meaning should be given. Reference was made to section 7 of the Public Service Act to "officer" who therein is a person appointed or transferred to the public service. The respondent suggests that a Registrar comes within this meaning. Reference was made to section 75(v) of the Constitution, where the term "officer of the Commonwealth" appears. In this instance, the term "officer of the Commonwealth" has been confined to (1) persons appointed by and answerable to the Commonwealth: Rv Commonwealth Court of Conciliation and Arbitration ex parte Whybrow & Co. and Ors. (1910) 11 CLR 1 at 33 and R _ v Murray and Cormie ex parte the Commonwealth (1916) 22 CLR 437 at 452-3, 464 and 471; (2) persons appointed and given certain powers and functions confined to them under Commonwealth regulations: R v Drake Brockman ex parte National O11 Pty. Ltd. (1943) 68 CLR 51 at 58- In R v Murray and Cormie ex parte the Commonwealth (supra), Isaacs J at 453 said in relation to "officers of the Commonwealth" under section 715(v) of the Constitution: "The expression "officer of the Commonwealth" has not a fictional meaning. It has a real meaning that the person referred to 1s individually appointed by the Commonwealth; and therefore the Constitution takes his Commonwealth official position as 1n itself a sufficient element to attract the original jurisdiction of the Commonwealth High Court, supposing, of course, the "matter" is of the requisite nature. The phrase "officer of the Commonwealth" 1s found in sub-section xox of section 51 in the same sense. See also the term "officers" in sections 64, 67 and 84, which strengthen the view I have indicated." In The Queen v Registrar of Companies for Australian Capital Territory Ex parte Boris Ganke (1960) 1 FLR 109 at 111 Morgan J inclined to the view that the Registrar of Companies of the Australian Capital Territory is an officer of the Commonwealth within section 75(v) of the Constitution, but appeared to do so on the special basis that he was serving in the Australian Capital Territory. In Coward & Ors. v Allen & Ors. (1984) 52 ALR 320 at 325, it was held by Northrop J that while justices of the peace were not "officers of the Commonwealth" when granting the search warrants even though exercising powers granted by a Commonwealth Act, the Federal Police Officers seeking the warrants were officers of the Commonwealth. (See also Sankey v Whitlam (1977) 1 NSWLR 333 per Hutley JA at 362-3.) On these bases, I think that the respondent Deputy Registrar in Bankruptcy is an officer of the Commonwealth. The application 1s dismissed. The applicant is to pay the respondent's costs. | certify that this and the 7 SVE preceding prges are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Einfeld Mm A TUM Associate Dated: 307* OcroseR /9787 Counsel for the Counsel for the Date of Date of and solicitors Applicant and solicitors Respondent Hearing Judgment Mr. E.C. Lewis instructed by Messrs. I. Abelitis & Co. Solicitors Mr. P.S. Hastings instructed by the Australian Government Solicitor 10 June 1987 30 October 1987