Case: Sogelease Australia Ltd v Griffin [2003] FCA 453 ; (2003) 128 FCR 399
Outcome: cited
This ground was also added by amendment over the Creditor's opposition on the second day of the hearing. The Debtor explained that he had become aware over night of the decision of Emmett J in Sogelease Australia Pty Ltd v Griffin [2003] FCA 453 ; (2003) 128 FCR 399 (" Sogelease ") in which his Honour held that reg 16.01 does not apply to the service of a bankruptcy petition, and does not negate the requirement of O 7 r 1 of the Federal Court Rules ("FCRs") of personal service of an originating process, including a bankruptcy petition. 29 I respectfully agree with Emmett J for the reasons his Honour gave. 30 The legislative framework has changed since Sogelease , but this makes no difference. The Federal Court (Bankruptcy) Rules 2005 (No 341, 2005) ("the Bankruptcy Rules") commenced on 6 February 2006, replacing the former Order 77 of the FCRs (and see the associated Federal Court Amendment Rules 2005 (No 3) (No 340, 2005)). The Bankruptcy Rules applied to service of the Creditor's Petition, which was issued on 19 April 2006. Rule 1.03 of the Bankruptcy Rules provides that the other rules of the Court apply in so far as they are not inconsistent with the Bankruptcy Rules. Rule 4.05 of the Bankruptcy Rules provides, relevantly, that unless the Court otherwise orders, at least five days before the date fixed for the hearing of a creditor's petition, the applicant creditor must "serve" on the respondent debtor, relevantly, the creditor's petition. "Service" is not, however, defined in the Bankruptcy Rules. 31 Order 7 r 1 of the FCRs provides that, subject to the provisions of O 7, originating process must be served personally. Order 7 r 2 provides that personal service is effected on an individual by leaving a copy of the document with him. The combined effect of r 4.05 of the Bankruptcy Rules and rr 1 and 2 of O 7 of the FCRs was, relevantly, to require that at least five days before the hearing of the Creditor's Petition, a copy of the Creditor's Petition be left with the Debtor. This did not happen. The Creditor's Petition was not served on the Debtor. 32 It is important, however, to understand how and when the Debtor's challenge to service arose. The circumstances are quite different from those in Sogelease . In that case, the debtor filed a conditional appearance and a notice of grounds of opposition relying solely on the ground that the petition had not been served. The debtor applied under O 9 r 7 of the FCRs for a declaration that the petition had not been duly served on him. In sum, the debtor took the objection to service from the outset. 33 In the present case, the Debtor filed a notice of grounds of opposition and affidavits and participated unconditionally on the first day of the hearing, without raising any issue as to service of the petition, and cross-examining Mr Cotsis at length. Indeed, he expressly acknowledged that he was not raising any such issue. Moreover, in his affidavit of 26 May 2006, the Debtor stated that he received a copy of the petition by facsimile transmission late on 3 May 2006. It was at the commencement of the second day of the hearing that the Debtor first raised the present issue. 34 The Debtor pointed out that unlike O 9 r 6 and Form 15 of the FCRs, Rule 2.06 and Forms 4 and 5 of the Bankruptcy Rules do not provide for conditional appearances (I note, in passing, that the Debtor did not enter an appearance). It was, however, open to the Debtor to take the point as to service in his Notice Stating Grounds of Opposition. It was also open to him to do as the debtor in Sogelease did, namely, to apply under O 9 r 7 of the FCRs for a declaration that the Creditor's Petition had not been served on him. There is no substance in the point that the Bankruptcy Rules do not apply for conditional appearances. 35 The case is clearly one of waiver of the benefit of the requirement of personal service, if waiver is possible. 36 When granting the Debtor leave to raise the third ground of opposition, I made it clear that I was doing so only to enable him to contend that personal service was a condition precedent to the Court's jurisdiction to make a sequestration order, and therefore could not be waived.