El-Maghraby v Pattison
[2003] FMCA 103
•26 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EL-MAGHRABY v PATTISON | [2003] FMCA 103 |
| BANKRUPTCY – Review of decision of Trustee of a bankrupt refusing permission to travel overseas. |
Bankruptcy Act1966, s.178
re Tyndall ex parte Official Receiver (1977) 17 ALR 182
Re Hicks: Ex parte Lamb (Heerey J 4 March 1994 VB 1473 of 1993)
Casella v Prentice [2002] FMCA 48
| Applicant: | ALAN RAMADAN EL-MAGHRABY |
| Respondent: | PAUL ANTHONY PATTISON |
| File No: | MZ 165 of 2003 |
| Delivered on: | 26 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 March 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms A Wardell |
| Solicitors for the Respondent: | Meltzer Green |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 165 of 2003
| ALAN RAMADAN EL-MAGHRABY |
Applicant
And
| PAUL ANTHONY PATTISON |
Respondent
REASONS FOR JUDGMENT
In this application filed on 20 February 2003 Alan Ramadan
El-Maghraby (the Applicant) seeks permission to travel overseas to Egypt.
The Application is made pursuant to s.178 of the Bankruptcy Act1966 (the Bankruptcy Act) and arises out of a decision made by Paul Anthony Pattison (the Respondent) to refuse to grant permission to the Applicant to travel overseas.
The Respondent was appointed as Trustee of the bankrupt estate of the Applicant and his spouse on 20 November 2001.
When the application was filed on 20 February 2003 it was set down for hearing as an urgent matter on the next day. On that day submissions were made and the material then available was considered by the Court. A number of issues were properly raised by the Respondent in relation to the material relied upon by the Applicant and the matter was then listed for further hearing on 27 February 2003.
I had concluded that although there was some element of urgency in the application, namely the Applicant’s desire to visit his ill mother in Egypt, that there was insufficient material which would permit the Court to make a decision on the merits of the application. Hence, the matter was further adjourned to 3 March 2003. It is clear throughout that the Applicant, who is unrepresented, had not initially provided sufficient corroborative material or material in a proper affidavit form to establish the genuineness of the claim that he required permission to travel overseas to visit his sick mother. He failed to establish that he had provided details of his current passport, detailed itinerary of departure and return and other material reasonably requested by the Trustee including the provision of certain documents relating to the financial affairs of the bankrupt required for the administration of the bankrupt estate.
As the matter progressed I became satisfied as a result of corroborative affidavit material of the Applicant’s cousin who is a Federal Police Officer that the Applicant’s mother was seriously ill and requiring further hospitalisation and/or treatment of a kind which would at least prime facie establish that there was a legitimate prime facie claim for permission to travel on compassionate grounds.
On the material before me as at 3 March 2003 I was not satisfied however that it would be in the interests of justice to proceed to make a decision and deny the Respondent the opportunity of filing and serving a detailed affidavit in response. I was not satisfied that there was material to justify making an urgent order based on the medical evidence of the Applicant’s mother. Hence, the Respondent was granted leave to file and serve further answering material.
The task of the Court and the Trustee in making an assessment of the Applicant’s request has been made more difficult by the Applicant’s use of multiple names albeit on occasions with minor variations of spelling and a somewhat aggressive and antagonistic approach by the Applicant towards the Trustee. The Applicant had little or no understanding of the responsibility of the Trustee in pursuing enquiries which include obtaining documents and then making a proper assessment of the financial affairs of the bankrupt in order to properly administer the bankrupt estate. It was clear to me that on a number of occasions the Applicant demonstrated hostility and resentment towards the Trustee and the officers properly engaged by the Trustee to administer the bankrupt estate. Hence, obtaining information by the Trustee and indeed even the provision of the information to this Court has been made more difficult by the attitude of the Applicant.
Ultimately after hearing evidence the Court was satisfied that a genuine issue had been raised as indicated concerning the health of the Applicant’s mother and when the matter was finally heard by the Court on 13 March 2003 I was satisfied that the Applicant had made a legitimate application for a new passport and in the circumstances had adequately explained the loss of an earlier passport. The earlier passport issued on 25 February 1998 was disclosed on an application for a new passport dated 18 February 2003 by the Applicant. He gave evidence that his earlier passport had been lost or stolen and although I had some reservation about the circumstances of the loss, I am now satisfied that the Applicant has at least applied for a passport in his correct name and that matter will no doubt be dealt with by the Passports Office in due course. The Applicant ultimately produced for the satisfaction of the Trustee a receipt for the amount advanced for the new passport. The inability to locate the receipt was again another matter which justifiably aroused some suspicion, as the Court was concerned that if an application had been made for a passport that a citizen would not receive a receipt for a passport fee upon the lodging of the application. Likewise, initially the Applicant had produced a photocopy of a ticket which he had allegedly purchased for travel overseas. The copy was of such a poor quality that it could not be read. Again, this was cause for some concern until ultimately a legible copy of a ticket was produced. The ticket now relied upon is a ticket issued 24 February 2003 issued by Emirates Airlines which I note is not valid after 1 September 2003. It provided for a departure date of 1 March 2003 with a return flight leaving Cairo on 28 March 2003. Obviously those dates will need to be altered and a new itinerary produced.
At the hearing on 13 March 2003 the Applicant also produced an income statement from Centrelink demonstrating that the Applicant receives a New Start Allowance. This is consistent with a now duly completed Annual Statement of Income dated 20 February 2003 signed by the Applicant on 26 February 2003 tendered as an exhibit in the present proceedings.
At the hearing the Applicant also considered an itemised list of books, documents and other possessions to be delivered or otherwise put under the control of the Trustee. Having considered those items the Applicant indicated a willingness to co-operate in the production of those documents and/or at least advise the Trustee as to whether he was ever in possession of the items and if lost or destroyed then to explain what had happened to each and every document. Again it was clear that the offer to co-operate was provided somewhat reluctantly by the Applicant who did not have a full understanding and appreciation of the requirement of the Trustee to obtain the documents in order to make a proper assessment of the Applicant’s financial affairs and as indicated earlier to properly administer the estate. Some of the documents in the pro forma list to which I have referred would clearly not apply to the Applicant and it was agreed by the Trustee that the Applicant need do no more than simply advise the Trustee that certain documents would not have been used by the Applicant.
Relevant law
It is appropriate to refer to s.178 of the Bankruptcy Act which provides:-
“If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.”
In re Tyndall ex parte Official Receiver (1977) 17 ALR 182 the Court said,
“An application by a bankrupt for permission to travel overseas requires careful consideration of all relevant circumstances for the reason that is ordinarily related to the freedom of a subject who is neither a criminal nor under criminal restraint to travel to pursue his legitimate commercial or personal desires”.
In Re Hicks: Ex parte Lamb (Heerey J 4 March 1994 VB 1473 of 1993) the Court said,
“I suggested to counsel for the trustee in argument that the following issues were, while not necessarily conclusive, nevertheless at the forefront of the matters to be considered in exercising my discretion:
(i)Is the proposed visit genuine?
(ii)Is the bankrupt likely to return to Australia as promised?
(iii)Will the visit hamper the administration of the estate?”
In the matter of Casella v Prentice [2002] FMCA 48 I stated the following:
“I accept that the court should only interfere with the trustee's exercise of discretion if it is shown, as indicated by the applicant, that the impugned conduct of the trustee was incorrect or that other conduct was or would be preferable and that justice and equity require the court's intervention.”
Applying the principles referred to and the authorities to which I have referred, I am satisfied in the present case that it can be properly concluded that based upon the corroborative material from the Applicant’s cousin the proposed visit to the Applicant’s mother is genuine. The Applicant is a married man with children and though separated he appears to have the intention to return to Australia. He is an Australian citizen and although born in Cairo I have not received any information from the Trustee which would suggest that the Applicant is not likely to return to Australia.
Hence one of the more significant issues that remains in the present application is whether the Applicant’s overseas visit will hamper the administration of the estate. I am satisfied that that issue can properly be addressed by providing conditions upon which the Court will permit the Applicant to travel overseas. The primary condition is that he co-operate with the Trustee in providing 48 hours prior to departure the following:
1.A detailed and up to date itinerary.
2.A current address where the Applicant intends to reside whilst overseas.
3.Delivery to the Respondent those documents set out and numbered as 1 to 25 in the Respondent’s pro forma list of documents to the extent that they apply to the Applicant.
4.A photocopy of the Applicant’s ticket.
5.A photocopy of the Applicant’s passport.
I am further satisfied that upon meeting those conditions it is appropriate to make an order that the Applicant be permitted to travel overseas and the order will specify a departure and return date. Within 48 hours of his return to Australia it will further be ordered that the Applicant shall deliver his current passport to the Trustee.
It is noted throughout that the Respondent in my view has adopted a reasonable attitude towards this application and made a number of concessions during the course of the various hearings. It is noted however that ultimately the application remains opposed though for the reasons stated I am satisfied that it is appropriate for the Court in this instance despite the reservations to exercise a discretion the Court has to make an order pursuant to s.178 of the Bankruptcy Act.
I shall consider any further submissions by the parties in relation to the form of orders arising out of this decision.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 March 2003
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