JUDGMENT No. 5s BO IN _THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA No. P1002 of 1987 RE: MAXWELL GARRETT BOXSHALL Judgment Debtor EX PARTE: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Petitioning Creditor CORAM: Jenkinson J. PLACE: Melbourne DATE: ll February, 19898 REASONS FOR JUDGMENT Hearing of a bankruptcy petition. On the hearing of the petition yesterday, there was no appearance for the debtor. Mr. Moshinsky of counsel for the petitioner, Deputy Commissioner of Taxation of the Cammonwealth of Australia, pointed out that in this case the petition had been signed, not by the petitioner, but in the name of the petitioner by one of his officers, so that at the foot of the petition, beneath the date, appears the written name "R. Conwell" (the Deputy Commissioner concerned being Raymond Leslie Conwell), and beneath the signature is typed his official name "Deputy Commissioner of Taxation for the State of Victoria." Mr. Moshinsky explained that this course had been taken advisedly and 2. in reliance on the provisions of regulations known as the Income Tax Regulations made under power conferred by the Income Tax Assessment Act 1936. The regulation upon which the petitioner relies in justification of the course taken is Regulation 62. Regulation 62 reads: ""(1) Judicial notice shall be taken of the mames and signatures of the persons who are, or were at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a prescribed delegate of the Commissioner. (Z) A certificate, notice or other document bearing the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Commissioner, a Second Commissioner, a Deputy Commissioner or a prescribed delegate of the Commissioner in lieu of that person s signature shall, unless it is proved that the document was issued without authority, be deemed to have been duly signed by that person." It was submitted on behalf of the petitioner that sub-regulation (2) operated on the hearing as a command addressed to the court hearing the petition to treat the writing at the foot of the petition as establishing that the petition was, for the purposes of the proceeding, that is to say the hearing of the bankruptcy petition, duly signed by the petitioner, there being in this case no evidence to suggest that the petition was issued without the authority of Raymond Leslie Conwell. The Bankruptcy Act 1966 provides by sub-section 47(1): "A creditor's petition shall be in accordance with the prescribed form." The form prescribed is that which is prescribed by Rule 12 of the Bankruptcy Rules, and is set out in the form numbered 5 in the First Schedule to those rules. The form concludes with these words: "Dated this day of 7i9 Signed by the petitioner ) in my presence: (a) ) (a) If the petitioner 15 a corporation, the petition may be under the seal of the corporation and the sealing need not be in the presence of a person other than a person required to witness the sealing of a document by the corporation, (Signature, address and eccupation of witness) This petition is filed by . om behalf of whose address for service is " In my opinion, the provisions of the Bankruptcy Act and the Rules to which I have referred amount to a statutory command that a matural person who desires to procure the issue of a petition shall, himself, make whatever marks at the foot of the petition may satisfy the requirement expressed by the word "signed", in the presence of a person who thereafter himself signs beneath the words "Signed by the petitioner in my presence." It is therefore, in my opinion, a requirement of the Bankruptcy Act that, whatever acts causing markings on the petition may satisfy the requirement of signing, they must be acts done by the person who 15 the petitioner, and they must be dome in the presence of another person who thereafter signs as witness to the commission of those acts by the petitioner. If that be so, then it becomes 4. unnecessary to consider the proper construction and operation of Regulation 62. Regulation 62 is concerned to address commands to courts and other bodies as to what circumstances may suffice to require the conclusion that there has been a due signing. It may be assumed that this particular petition has been duly signed, but it is plain - and the petitioner and his advisers and his counsel have made it perfectly plain with complete frankness - that there has not been compliance with the requirements of the Bankruptcy Act that the marks made in this particular case, the letter and word "R. Conwell", be placed on the document by the petitioner, in the presence of the person who in fact signed in testimony that it had been so, a C. McIlwain, an officer of the petitioner's Department. I make it, of course, perfectly plain that there 15 not the slightest suggestion of any impropriety on the part of Mr. McIlwain or of anybody else concerned in the preparation and 1s5sue of the petition. The view has no doubt been taken that Mr. McIlwain was able to testify to what he did testify in reliance upon provisions of the law, including no doubt Regulation 62. But 1t is my conclusion that in that view he and they were quite Mistaken. It could not, 1m my opinion, be supposed that in some way a regulation made under one Act of the Commonwealth Parliament was to modify impliedly a different requirement of another Act. It will be noticed that the requirement of attasting the signature by the petitioner is a requirement of the Bankruptcy Act, because the Act provides that the petition shall be in accordance with the form prescribed. This petition was not regularly presented because the attesting by Mr. McIlwain was not the attesting required and, the irregularity having been disclosed, I would have thought that the proper course is for the petition to he dismissed. But the consequences were not the subject of a submission. I would he prepared to hear Mr. Moshinsky about that. MR. MOSHINSKY: Your Honour, we accept your Honour's ruling that the petition ought to be dismissed. HIS HONOUR: Yes, very well. Order that the petition he dismissed. I certify Ehat this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Jenkinson. en ne (PH sociate Dated: 11 February, 1988