Byrnes, J.W.

[1994] FCA 895

JUDGMENT No. 8% ",?L

JN THE FEDERAL COURT OF AUSTRALIA )

1

PEW SOUTH WALES DISTRICT REGISTRY )	No. NB 1666 of 1991
GENERAL DIVISION	1

BETWEEN:  JAMES WARREN BY

Applicant

31 october, 1994 2 5 NOV 1994

AUSTAALLA PRINCIPAL

REASONS FOR JUDGMENT

LOCKHART J,

There is before the Court this afternoon an urgent application by James Warren Byrnes, who represents himself. The application joins as a respondent, as I understand it, Mr George Caddy, a trustee in bankruptcy, who is trustee of Mr Byrnesl estate. The application of Mr Byrnes in terms is to set aside a bankruptcy examination relating to various people, namely, Stephen Jurke, Robert Vered, L.C. Thompson, June Byrnes, Jackie Byrnes and Reg Delaney. I have treated the application as also being to set aside the examination of Mr Byrnes himself, although he does not appear to be named in the application in the appropriate place. Other orders are also sought in the application. There is a second application by Mr Byrnes, also to be brought on urgently, by which he seeks to stop the use of information that may be gathered in the examinations.

The material before the Court is brief which is not

surprising in view of the urgency of the matter. It consists of an affidavit of Mr Byrnes himself of today's date with a number of annexures. As I understand it, the essential attack by Mr Byrnes upon examinations in bankruptcy can be explained as follows. Mr Byrnes has been a bankrupt for over two years and proceedings have been commenced by him and by a number of corporations against the Commonwealth of Australia, the Australian Federal Police and Mr Caddy seeking declarations and orders relating in the main to searches and seizure of documents, records, works of art and other things from certain premises, pursuant to search warrants issued under the authority of a judge of the Court.

Arrangements were made for the examination of Mr Byrnes and certain of the other people, to whom I have referred, for two days to commence this morning. One of the examinations commenced as I understand it and the matter has been stood down generally until the result is known of Mr Byrnesl

Mr Byrnes can, of course, only appear for himself and does not	challenge to the examinations, which I am presently hearing.	seek to appear for others. The others are not before the Court, but the matters on which he relies may well have direct relevance to the examinations of the other persons.
There are two essential grounds of attack by Mr Byrnes against the examinations and therefore presumably the summonses issued to attend for examination. First, he says that the relevant searches that have been carried out and the seizure of things pursuant to search warrants and otherwise under authority are invalid and proceedings have been instituted against the relevant parties, as I have mentioned, which are due to come before another judge of the Court in two weeks or so. He says that, if those proceedings operate in his favour and in favour of the other parties to them, the result will be the setting aside of search warrants and the inability of the respondents to those proceedings, including
Mr Caddy, to use the documents and information gleaned therefrom against him in his bankruptcy.
He says the current proceedings before the registrar to examine him and others are proceedings which he fears will be conducted by those who appear for Mr Caddy with use of the information which he says was illegally gained from the conduct of the earlier search and seizure. Therefore he says, if that be so and if he wins his case, it would have been an
which is a related, though in a sense discrete point, is that improper use of the examination. The second point he makes,
the information which may have been gleaned from the search and seizure could have no bearing on his own financial affairs and his own divisible property and his own conduct relating to his bankruptcy.
It is difficult for the Court with the meagre material that it has before it to deal as adequately as it would like with a case such as this, but it is urgent and it must be disposed of now and in my view can be disposed of now.
On the material I have before me I see nothing that would support in any way an interference with the due process of examination of witnesses including Mr Byrnes. I am not persuaded on the material presently before me that whatever
may have been gleaned from the search and seizure would be, if
used in the bankruptcy examinations, used improperly in any way against him or the other witnesses to whom I have referred. If indeed it turns out that Mr Byrnes or others win the litigation to be heard in two weeks or so's time, then there would be a real question perhaps as to the extent to which whatever information was gleaned in the examinations could be used against him and others. However, that can be adequately determined in other proceedings at another time and does not in my view prejudice him or the other people in relation to the conduct of the examinations presently before
the registrar.
Accordingly, the applications filed today on behalf of Mr Byrnes are dismissed.

The respondent, Mr Caddy, asks for costs. In my view it

is a case in which it is appropriate to order that the

applicant pay the respondent's costs. I therefore order that
the applicant pay the costs of the respondent of today's
proceeding before the Court.

I certify that this and the

preceding four (4) pages are a true copy of the reasons for judgment herein o f the Honourable Mr. Justice Lockhart.

Associate: $A-& dc,

RZ&elL 31 October 1994

The applicant appeared in person.

Counsel for the Official Trustee:	Mr J E Thomson
Solicitors for the Official Trustee:	Gordon & Johnstone
Date of Hearing:	31 October 1994
Date of Judgment:	31 October 1994