Gray, N.J. v The Official Trustee in Bankruptcy

[1991] FCA 241

JUDGMENT No. 24/ / q! ......

NOT FOR D I S Y 1 3 I 3 U T I O N

IN TFlE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	No. VG 69 of 1988
1
GENERAL DIVISION	1
BETWEEN:

NORMAN JOHN GRAY

Applicant

- and-
OFFICIAL TRUSTEE IN BANKRUPTCY

RECEIVED First Respondent

13MAY 1991 - and -

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL	JEFFREY NORMAN GRAY
REGISTRY	Second Respondent

- and -

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Third Respondent

JUDGE :	Heerey J.
PLACE :	~elbourne
W:	2 May 1991

EX TEMPORE REASONS FOR .JUDGMENT

I think that MI Ginnane is correct to this extent that the Court cannot force somebody in the Official Trustee's position to take inter-pleader proceedings or to pay money in accordance with a particular view of the matter. But the reality here seems to be that these issues have been the subject of contested litigation in this Court and in particular the question of the ownership of the money by M r Gray Jnr has really not even been raised let alone decided. Without, of course, expressing any concluded view on it I would have considerable doubt whether one could say that payment out to Mr Gray Jnr or to the Deputy Commissioner of Taxation was clearly justified within the terms of

s.243G(l)(b) of the Customs Act.

And, of course, the reality is that there is another party, namely, Mr Gray Snr, who has established in this Court a possessory right to the money which on ordinary principles is good against all the world except the true owner, and one can readily imagine that injunctive proceedings might be taken by

Mr Gray Snr to restrain any disposition of the money without a

determination of the competing rights of himself and the
Deputy Commissioner of Taxation.

It is ultimately, I think, a matter for the Official Trustee to consider, therefore, in the light of the comments I have made. I think the best course to do is to adjourn this hearing which is pursuant to the liberty to apply that was reserved in my judgment delivered yesterday, until Tuesday, 21 May 1991. I can give an indication that in substance a full day's hearing would be available on that day.

In the meantime if the Official Trustee so determines an

-. appropriate inter-pleader motion can be taken out under 0.44.

I cannot give directions, of course, in a proceeding which hasn't yet issued and need not necessarily in fact issue. But as a matter of practicality and common sense if there were to be a hearing on 21 May 1991 any further affidavit material on which the parties wish to rely ought to be filed by Friday, 10

May 1991, and any further affidavit material in reply by the

following Friday, 17 May 1991.

Unless you gentlemen have anything to say to the contrary I propose to reserve the cost of today's proceedings.

I certify that this and the

preceding page are a true copy of the Reasons for Judgment of the Honourable

M r Justice Heerey

\ AB oci te

Counsel for the Applicant:	Mr G J Maguire
Solicitors for the Applicant:	F W Robson & CO
Solicitors for the First
Respondent:	Australian Government Solicitor
Solicitors for the Second
Respondent:	No appearance
Solicitors for the Third
Respondent:	Department of Public Prosecutions
Counsel for the Deputy
Commissioner of Taxation:	Mr T J Ginnane
Solicitors for the Deputy
Commissioner of Taxation:	Australian Government Solicitor