Case: Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184
Outcome: followed
It is not considered that the " final judgment or final order " could be constituted by the order for costs made by the Supreme Court, either on its own or together with the Certificate of Determination of Costs : Franks v Warringah Council [2003] FCA 1047 , 131 FCR 287. A certificate that sets out the determination of the costs assessor, without being filed in a court of competent jurisdiction, is not sufficient to found a bankruptcy notice: Snelgrove v Roskell [2007] FCA 122 at [53] , 157 FCR 313 at 319 per Jacobson J. In Franks , the Land and Environment Court had there ordered that the Council's costs be agreed or assessed under the then Legal Profession Act 1987 (NSW). A bankruptcy notice was served, the schedule to which stated that costs had been so assessed and annexed a certificate. Branson J summarised the submissions there being advanced as follows: [16] It was submitted by the Council that the argument that it could only recover its costs by filing in a court of competent jurisdiction a certificate issued pursuant to s 208J of the Legal Profession Act was contrary to established authority and the proper construction of the relevant legislation. The Council submitted that in respect of each order of the Land and Environment Court, having received the determination of the costs assessor, it had two options open to it for the purpose of the Bankruptcy Act . The first option, it argued, was the option of filing the certificate issued under s 208J of the Legal Profession Act in a court of competent jurisdiction and issuing a bankruptcy notice on the judgment thereby deemed to have been obtained. The second option, it argued, was the option which it in fact adopted; that is, the option of issuing a bankruptcy notice founded on the order of the Land and Environment Court supported by the certificate issued under s 208J. The Council contended that the second of these options remained open to it even after it had filed in a court of competent jurisdiction the certificate issued by the costs assessor. Her Honour reviewed the authorities and then concluded: [30] The submissions of the Council identified in [16] are, in my view, unsustainable. Section 40(1)(g) does not, as it seems to me, admit of the possibility that a creditor may have obtained against a debtor more than one final judgment or final order in respect of the one debt, or perhaps more accurately, sourced from the same obligation. Further, s 40(1)(g) of the Bankruptcy Act refers only to final judgments and final orders that can be enforced by a writ of execution (Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 198 per Riley J). I incline to the view that Pt 44 r 7 of the Supreme Court Rules (NSW), as presently worded, does not allow a writ of execution to issue in respect of the orders of the Land and Environment Court on which reliance is here placed. It seems to me to be implicit in Pt 44, r 7, as presently worded, that a writ of execution may only issue in respect of costs determined under the Legal Profession Act to enforce a judgment entered as a result of the filing of a certificate under the Legal Profession Act . ... [32] I conclude that each of the bankruptcy notices should be set aside on the basis that it is fatally flawed because the judgment or order upon which it is founded, and which is attached to it as required by Form 1, is not "a final judgment or final order, being a judgment or order the execution of which has not been stayed" within the meaning of s 40(1)(g) of the Bankruptcy Act . 36 The " final judgment or final order " in the present proceeding, it was ultimately submitted by the Applicant, was the judgment of the District Court. The form of a bankruptcy notice is that prescribed by reg 4.02 of the Bankruptcy Regulations 1996 (Cth) and clause 2 to that form provides as follows: The creditor claims that the debt is due and payable by you. A copy of the judgments or orders relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgments or orders had not been stayed. If a bankruptcy notice is to satisfy the requirements of s 41(1) and (2) of the Bankruptcy Act as to form, it must correctly identify the source of the bankrupt's liability to make the payment demanded by the notice: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718 at 721 per Drummond J. Only a judgment upon which a creditor is in a position to issue execution when he issues the bankruptcy notice can constitute a final judgment for the purposes of s 40(1)(g): cf. Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642 at 657 per Williams J. A judgment which has been stayed may not found a bankruptcy notice: s 41(3)(b) ; Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 187 8 per Riley J; Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144.