COURT
IN THE FEDERAL COURT OF AUSTRLIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Forster J.

CWDS
  Bankruptcy - judgments obtained in Switzerland registered in Supreme Court
of South Australia pursuant to Foreign Judgments Act 1971 (S.A.) - decision of
Registrar of Federal Court refusing to issue bankruptcy notice except in
respect of taxed costs of registration proceedings - application pursuant to
s.14(5) Bankruptcy Act to review Registrar's decision - interpretation of
s.41(3)(c)(i).
  Bankruptcy Act, ss. 5, 14(5), 41(3)(c)(i) Foreign Judgments Act 1971 9S.A.),
s.7(7)
  Re a Judgment Debtor (1939) 1 Ch. 601

HRNG
ADELAIDE
#DATE 17:3:1986

ORDER
  The Registrar issue a bankruptcy notice in the form of Exhibit "6" to the
affidavit of Grant Kingsley Feary sworn herein on March 1986.

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

JUDGE1
  This was an application by Foreign Commerce Bank Inc. for an order directing
the Registrar of this Court to issue a bankruptcy notice directed to Gordon
Campbell McGilvray.   The application was made under s.14(5) of the Bankruptcy
Act to review a decision of the Registrar to refuse to issue a bankruptcy
notice.    At the conclusion of the hearing I made an order as asked and said
that I would give written reasons later which I now do.
2.  The applicant obtained in two courts in Switzerland judgments against
McGilvray dated respectively, 16 November 1976 and 11 May 1977.   Pursuant to
an order of the Supreme Court of South Australia made by Master Teesdale-Smith
on 25 July 1985 it was ordered that the judgments be registered in the Supreme
Court pursuant to provisions of the Foreign Judgments Act 1971 of South
Australia in the total sum of $168,295-06.   Provision was made for the
registered judgments to bear interest on part of the sum. Clause 4 of the
Master's order provided that the time within which the defendant might appeal
from the order be extended for a period of 14 days from 25 July 1985.   The
Master also ordered that the defendant pay, with some exceptions, the taxed
costs of his order.
3.  Application was made to the Registrar in the ordinary way for the issue of
a bankruptcy notice against McGilvray for a sum including the registered
judgments, interest upon portion pursuant to the Master's order and the taxed
costs of the application to register the judgment.   The Registrar declined to
issue a bankruptcy notice for any of the sum claimed except as to $7,440-11
being the taxed costs of the registration proceedings. The applicant asked the
Registrar to issue a bankruptcy notice for the whole amount mentioned in the
order of the Supreme Court, less the portion with respect to which execution
was stayed. The Registrar declined to do any more than issue a bankruptcy
notice with respect to the taxed costs.
4.  The applicant asked the Registrar to give his reasons in writing for
refusing to issue a bankruptcy notice with respect to the amount of the
registered judgments less a small portion. The Registrar gave three reasons
for declining to issue the bankruptcy notice.
5.  The first was that he had no evidence as to whether or not the defendant
McGilvray had exercised his right to appeal to a judge of the Supreme Court
against Master Teesdale-Smith's order.   It now appears, as the Registrar
concedes, that McGilvray did appeal to a judge and that his appeal was
dismissed.   This ground therefore is no longer valid.
6.  The second ground given by the Registrar was based on his interpretation
of s.41(3)(c)(i) of the Bankruptcy Act which is as follows -

         "(3) A bankruptcy notice shall not be issued in
              relation to a debtor -

              (c) in respect of a judgment or order for the
                  payment of money made by the Court in the
                  exercise of the jurisdiction conferred on
                  it by this Act if-

                  (i) a period of more than 6 years has
                      elapsed since the judgment was given
                      or the order was made;".

7.  The Registrar contends that since more than six years had elapsed since
the judgments were originally given in Switzerland when application for the
issue of a bankruptcy notice was made, they could not form the basis of a
bankruptcy notice because of the provisions of the section and notwithstanding
that the judgments had been registered in the Supreme Court of South
Australia.   With all respect to him I think the Registrar has mistaken the
meaning of s.41(3)(c)(i).   I point out that the section proscribes the issue
of a bankruptcy notice "in respect of a judgment or order for the payment of
money made by the court in the exercise of the jurisdiction conferred on it by
this Act" if the judgment or order is more than six years old.   Section 5
defines "the court" as meaning "a court having jurisdiction in bankruptcy
under this Act".   It seems to me to be plain that the judgment or order for
the payment of money was made either by the Swiss Courts or the Supreme Court
of South Australia and certainly not by a court having jurisdiction under the
Bankruptcy Act in the exercise of that jurisdiction.   It is to such a
judgment or order that s.41(3)(c)(i) refers.   Whatever precisely the section
may mean and encompass it is clear that it has no relevance here.
8.  The third ground given by the Registrar as I understand it is that s.7(7)
of the Foreign Judgments Act 1971 of South Australia does not permit the issue
of a bankruptcy notice with respect to the amount of a foreign judgment
registered pursuant to the Act.   Section 7(7) is as follows -

         "Subject to this Act, a registered judgment shall,
          for the purposes of execution, be of the same
          force and effect as a judgment of the Supreme
          Court recorded at the date of the registered
          judgment, its execution shall be subject to the
          control of the Court, and proceedings may be taken
          thereupon as if it were such a judgment."

9.  The Registrar considers that this sub-section means that the only
execution or other proceedings permitted to be taken with respect to a
registered judgment are execution or other proceedings under the control of
the Supreme Court which the issue of a bankruptcy notice plainly is not.   In
this I consider that the Registrar is mistaken.   No doubt execution properly
so called such as the issue of a Writ of Fi. Fa. must be subject to the
control of the Supreme Court.   It is my view however that the final words of
the sub-section "and proceedings may be taken thereupon as if it were such a
judgment" (viz. a judgment of the Supreme Court) are unlimited in scope and
mean for present purposes that bankruptcy proceedings may be taken on the
registered judgment in the same way as they may be taken on a Supreme Court
judgment given in one of its own actions.   Were it otherwise the efficacy of
registering a foreign judgment would be considerably diminished.   Not only
would it not be possible to take bankruptcy proceedings but also in the case
of a smaller debt it would not be possible to register the judgment in turn in
the Local Court and take advantage of the cheaper and, in one respect at
least, wider powers of enforcement.   I am fortified in the view which I take
of s.7(7) by the judgment of Sir Wilfrid Greene M.R. in Re a Judgment Debtor
(1939) 1 Ch 601.