Lukic v Lukic

[1995] FCA 1198

JUDGMENT NO. LL&$e,en&~

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NB 1321 of 1995

GENERAL DIVISION	1
0

Between :

And :	KATHLEEN CORALEE LUKIC
NIKOLA LUKIC

Applicant

FEDERALCOURT

OF AUSTf?ALlA

Respondent

2 8 J A N

LIBRARY

ReASONS FOR JUDGMENT

BINPELD $ SYDNEY 29 AUGUST 1995

I will not give detailed reasons for the conclusions which I have reached in this matter. They can be given at a later time if required. The Official Trustee in Bankruptcy seeks the immediate hearing of an application. The immediate hearing is not opposed and I will thus grant it. The hearing is now being conducted. The application seeks a series of directions under section 81(6)(c) of the Bankruptcy Act, or in the alternative injunctions against the bankrupt and his father, concerning the proposed public examination of the bankrupt himself and later the further examination of the father of the bankrupt, such hearings being fixed to continue at 2.15 pm this afternoon. In my opinion the injunctions sought are not appropriate.

It has been submitted for the bankrupt that the injunctions sought are beyond the power of the Court, but I do not find it necessary to make any finding as to whether this submission is correct. It will suffice to say that in my view the injunctions

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should not be pronounced - in the case of the father, because he has not been served with the application and it has not been heard against him; and in the case of the son, because it does not seem to me to be the most appropriate way to proceed in relation to the matters of concern raised. I think it is sufficient if I exercise the powers referred to in section 81(6)(c) which provide for the Court to make such proper orders as it thinks appropriate in relation to the continuation of public examination before a Registrar.

Part of the context has been dealt with by an undertaking given by counsel for the bankrupt to the Court today and will be given by the partner of his instructing solicitor's firm to the Registrar when the matter is called upon later. Their undertakings are and will be that the transcript of evidence, or what is described in section 81(17) as the "notes taken" given at the examination, of the father of the bankrupt shall be made available only to the counsel and solicitor for the bankrupt on the basis that they will not be discussed with or shown to the father of the bankrupt or the bankrupt until the primary examination of the bankrupt has been taken. It is expected that that primary examination will be completed this afternoon and hence when it is completed the transcript may be made available as envisaged by subsection (17).

I therefore direct the Registrar or such other persons as are in charge of the transcript and notes only to make them available at this stage to counsel and solicitor, in the latter case upon

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the undertaking being given to the Registrar in the same terms

as counsel has given to me.

The other matter raised is the question of the presence in the hearing room of the examination of the father of the bankrupt during the examination of the bankrupt. It is true that section

81(2) provides for examinations under section 81 to be held in

public. In my opinion that does not preclude a Registrar or other person taking an examination from excluding a person from the hearing room for a limited period and a specific identified purpose in order to ensure that the maximum possible justice is done in the matter.

I therefore direct that the Registrar may if he or she considers it appropriate exclude the father, Zoran Lukic, from the hearing room during the primary examination of the bankrupt, Nikola Lukic .

(After discussion)

It is the intention of this order that this power be exercised as the Registrar deems appropriate on the occasion of any future examinations of either the bankrupt or the father of the bankrupt, so that the other of the persons not being examined at the time is excluded from the hearing room during such examination.

(After discussion)

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Costs of t h i s applic'ation t o the court w i l l be cos ts i n the

administration of the es tate .