Edelsten, G.W. v Donnelly, M

[1991] FCA 644

JUDGMENT No.

IN THE FEDERAL COURT	1
OF AUSTRALIA	1
VICTORIA DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. VG 243 of 1991
B E T W E E N :

GEOFFREY WALTER EDELSTEN

Applicant

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MAX DONNELLY

Respondent

Olney J Melbourne	.,.-	:.<
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i	Date :	24 September 1991	, .
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On 12 September 1991 the applicant, Geoffrey Walter

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Edelsten, conunenced proceedings in the Melbourne Registry of the Court seeking orders inter alia for the delivery

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up to him of his passport. The respondent is the person	S+_
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who is, or was, the trustee of the applicant's bankrupt	..>
estate pursuant to a sequestration order made in the	1. ::
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Sydney Registry on 10 March 1988.	,.. ,. .
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The basis upon which the applicant seeks to invoke the	! 7,.

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jurisdiction of the Court is found in the provisions of	,.: c< <
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the Jurisdiction of Courts (Cross Vestinq) Act 1987, and	:	t
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the cause of action which he seeks to rely upon is an	l:,%!
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action in conversion. No issue has been raised before me	p'
today as to the jurisdiction of the Court to enter upon a	- ,
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consideration of the matters raised, and in the	~..
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circumstances I will proceed on the basis that the Court

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in fact has jurisdiction.

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The application indicates that the applicant, amongst

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other things, claims by way of interlocutory relief an

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order pending the trial of this proceeding requiring the

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respondent to deliver up the passport.	It is common	.:	*
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cause that the passport in question was given to an

earlier trustee in bankruptcy by the applicant at the

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time of a sequestration order being made, and that this

was done in accordance with the provisions of the

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Bankruptcy Act. The present respondent later became the

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trustee of the applicant's bankrupt estate and obtained

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custody of the passport in that capacity.

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The basis upon which the applicant seeks relief is that

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he says that he has been discharged from bankruptcy, and	:	;	:	i
he says this occurred by operation of section 149 of the	f - '
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Bankruptcy Act upon the expiration of a period of three	F':
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years from the date of the bankruptcy. Although there is

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nothing before me in these proceedings filed by the

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respondent, there is substantial material placed on the

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record by the applicant indicating that in other

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proceedings in New South Wales it is contended by the

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present respondent that in due time, that is, prior to 10

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March 1991 a notice of objection to discharge was entered

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with the Court pursuant to paragraph 149(3)(c) of the

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Bankruptcy Act.	If this were the case, then the	...
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automatic discharge on 10 March 1991 would not have	,.;,
occurred and it would follow that the present applicant would remain at this time an undischarged bankrupt.
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It is very obvious from the material before me that there is a serious question of fact to be tried as to whether
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or not the notice of objection to discharge was entered	I.?
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within the time required, that is, before the expiration	:1:
of the three years from the date of bankruptcy. The
applicant has obtained from the Bankruptcy Mstrlct of	i 1.- l
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New South Wales, under the hand of the Deputy Registrar	b.
in Bankruptcy, a certificate of discharge issued under section 149 which indicates that he was discharged from the bankruptcy by force of section 149 as from 11 March 1991. That certificate remains in force, although proceedings are on foot in the Sydney Registry to obtain a declaration that notice of objection to discharge was
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in fact duly entered.	1;	;
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The issues between the parties are fairly narrow. Either	i.\ ,::.
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the respondent caused an appropriate notice of objection	i :

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to be entered in the Sydney Registry before the

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expiration .of three years from the date of bankruptcy or

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he did not. If he did, then the certificate of discharge

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was obviously issued erroneously. If he did not, then

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the applicant is presently discharged from his bankruptcy

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and was so discharged on 11 March of this year. This question is one which will fall for consideration and decision in the proceedings in the New South Wales Registry which have been relatively recently instituted, and in respect of .which a hearing (which I assume to be in the nature of a directions hearing) is scheduled for 8 October this year.

The question arises as to whether an interlocutory order in mandatory form ought to be made in these proceedings requiring the delivery np of the passport. As I have said, there is a serious question of fact to be tried but that serious question is one in respect of which the onus clearly rests upon the present respondent to overturn what on the face of it is a valid discharge. There is no question that if the applicant has been validly discharged he ought to have his passport back, and I know of no reason and no argument as to why a citizen who is not otherwise disqualified by operation of law ought not

to be in possession of his own passport.

The competing evidence as to whether or not a notice of objection was filed is equivocal and it is not for me in these proceedings to make any assessment of the weight to be attached to the various affidavits. 'Sufficient to say that the responsible official of the Bankruptcy administration in Sydney must have been of the view, at

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the appropriate time, that no notice of objection had been entered. The view I take is that unless and until this Court, or some court of competent. jurisdiction, .

decides otherwise the present applicant is entitled to rely upon his certificate of discharge. That being so, I am of the view that he is as a matter of right entitled to possession of his passport.

The applicant has offered, through his counsel, the usual undertaking as to damages in support of his claim for interlamtary relief, and he has also offerect an undertaking, through his counsel, that in the event of the certificate of discharge being set aside-, or otherwise his discharge from bankruptcy being overturned, he will return the passport to the trustee. That of course would be his obligation under the statute in any event, but I am prepared to accept the two undertakings offered and I am of the view that the trustee ought to be ordered to return the passport on the basis of those

undertakings.

I think also it is appropriate that because there is a - single issue of fact upon which the final determination of this matter and the other matter in the, Sydney Registry depend, that the further hearing of the matter presently before me should be transmitted to the New South Wales Registry of the Federal Court and be

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adjourned for directions before a judge sitting in that registry on 8 October 1991. It will be then a matter for

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the judge concerned as to whether the two matters should	--
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proceed concurrently or in some other way.	,. .',
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Perhaps I should just make a couple of comments on issues	...~
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raised against the granting of relief. It is said that
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the applicant delayed in seeking the relief that he has	~
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now sought. Apart from any judicial knowledge that one	t ;
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can take of the events that occur outside in the
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comnity, it is obvfons tram the certff?cate of	.
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discharge that as at 25 July 1991 Dr Edelsten's address
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was Long Bay Correction Centre, Anzac Parade, Malabar.	I .
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The date when he was released from that custody is not	. .
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before me, but it is obvious from the correspondence that	;.
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fairly soon thereafter on 5 August steps were taken to	, .
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obtain delivery of his passport from the trustee, and I	::1 +L
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do not think that there can be any question of delay	b.
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raised against him.

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It is said also that he has not shown a case for needing	I -
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his passport, as a matter of urgency, at this time. I	1 :,.
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have already indicated that in my view if he is entitled	,
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to his passport he does not need to establish a reason to	1:;~
have it. It is argued that the granting of interlocutory	t
relief is in effect the granting of final relief, and the	:,
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only thing I can say about that is that the granting of
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the relief today is conditional upon and has been granted pursuant to undertakings which indicate that the applicant still has to overcome some hurdles in his quest to retain his passport. There has been nothing put before me to suggest that those undertakings will not be honoured in the event that a need to honour them arises.
In all the circumstances, I would make an order as sought for the return of the passport.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Olney

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Associate:  ;hnr, l C i i + ~ i - -

Dated: m. 1 0 . j-J

Heard:	24 September 1991
Counsel for the applicant	Mr P.A. Liddell QC

- and Mr H.A. Aizen

Solicitors for the applicant :	Messrs Mowbray Erdynast
Counsel for the respondent	Mr P.A. Tribe
Solicitors for the respondent :	Messrs Isenberg, Spedding & Player