Donnelly, M.C. v Edelsten, G.W.

[1992] FCA 297

JUDGMENT NO. 293/ Q&:

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY j	NO NG 421 of 1991
GENERAL DIVISION
B E T W E E N :

MAX CHRISTOPHER DONNELLY

JAS TRUSTEE OF THE ESTATE OF GEOFFREY WALTER EDELSTENL

Applicant

A N D:

GEOFFREY WALTER EDELSTEN AND OTHERS

Respondent

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m: NORTHROP J

PLACE :  MELBOURNE

2 1 :AY 1992

m:	28 APRIL 1992	JRT OF
LIA
'  AL

IRY

EX TEMPORE REASONS FOR JUDGMENT

It appears that the application before the Court was issued in Sydney on 1 August 1991 pursuant to the Federal Court rules even though it appears on its face, and it has been confirmed, that the relief being sought is pursuant to the provisions of the Bankru~tcv Act 1966. This matter, apparently, was not adverted to by any of the parties nor by any Court which gave directions in the matter. Nevertheless there is a vital distinction between the jurisdiction and exercise of power by this Court under the Bankruptcv Act and other statutes.

and incidental powers thereto. It appears that this is a

The Court is a court of limited jurisdiction. It only has that jurisdiction which is conferred upon it by statute

matter that should have been brought in the Court exercising jurisdiction in bankruptcy because the first respondent is presently a discharged bankrupt but the events which are being sought to be investigated are events arising during and from his bankruptcy. Orders are being sought pursuant to the Bankruptcv Act. In those circumstances the jurisdiction, the forms and the procedures are all conferred by the Bankruptcy Act and the Bankruptcy Rules.

The matter has progressed to a stage where the matter is now ready for trial and was listed for hearing this morning. Although there is some suggestion that there may be issues arising as to just what the questions are before the Court, those questions can be dealt with no matter what the form of the proceeding is. But because of the jurisdictional point, it is my opinion that this is a case that should have been issued in the bankruptcy registry in the bankruptcy matter of Dr Edelsten. The procedures are different; Rule 102 of the Bankruptcy Rules, for instance, requires the application to be

Answering affidavits and affidavits in reply are all provided

in a certain form. It should be supported by affidavits.

for. In the present case there are affidavits which have been filed both in support of and in opposition to the granting of the orders being sought. I see no irreparable damage or harm being caused to the parties by granting an amendment to enable this application to be treated as if it were an application in the bankruptcy matter of Dr Edelsten. I understand that that is matter No NB 497 of 1988. All documents thus should be filed with the Registrar of Bankruptcy and not with the Registrar of the Court. If that order is made, and I do make that order, I would also make an ancillary order that all the documents filed in this matter are to be treated as being filed in the bankruptcy matter and to be treated as if they

' had been filed pursuant to Bankruptcy Rules 102 and the

following Rules, and that all other procedures which have taken place are to be treated as being procedures under the Bankruptcy Rules.

The matter will then be ready for trial and I propose to proceed with the hearing of the trial immediately. Therefore I order that the applicant have leave to amend the application and all subsequent documents by treating it as an application under Rule 102, in bankruptcy matter No NB 497 of 1988. I direct further that all documents which have been filed in this matter are to be treated as being filed in the bankruptcy matter No NB 497 of 1988, and to be treated as part of the material presently before the Court in the exercise of its

jurisdiction in bankruptcy under the Bankruptcy Act.

I certify that this and the preceding two (2) pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Mr Justice R.M. Northrop.

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Associate:	/Q ,+
Date :

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