Pesic, D. v The Official Trustee in Bankruptcy

[1987] FCA 453

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN	CAPITAL	TERRITORY	)	No. ACT G20 of 1987
)

DISTRICT REGISTRY

GENERAL DIVISION

)

ON APPEAL from a single Judge

of the Federal Court of

Australia

BFIWEEN:

DOBROSOV PESIC and BORKA PESIC

Appellants

THE OFFICIAL TRUSTEE IN

BANKRUPTY

Respondent

MINIlTE OF ORDER

JUDGES MAKING ORDER:	FOX, FORSTER AND DAVIES JJ.
DATE OF ORDER:	10 JULY 1987
WHERE MADE:	CANBERRA
THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA 1

1

AUSTRALIAN CAPITAL TERRITORY	)	No. ACT G20 of 1987
1
DISTRICT REGISTRY	) )
GENERAL DIVISION	)

ON APPEAL from a single Judge

of the Federal Court of

Australia

BETWEEN:

DOBROSOV PESIC and BORKA PESIC

Appellants

m:

THE OFFICIAL TRUSTEE IN

BANKRUPTY

Respondent

M: FOX, FORSTER AND DAVIES JJ.

D=: 10 JULY 1987

. REASONS FOR JUDGMENT

(M TEMPORE)

FOX J.

This is an appeal from a judgment of Neaves J. given on

25 February 1987 in which he was dealing with an application

under the Bankruptcv Act 1966. There were two matters raised.

One involved the question of whether a bankrupt who had been

discharged by force of s.149 of the Act could be summonsed for

examination under s.81(1), which on its face refers to

“bankrupts“.

This is a question which has been fully considered

recently by a Full Court of this Court in Official Receiver in

Bankruptcy v. (1986) 70 A.L.R. 119. By majority the Court

. ,	*
was of the view that s.81 did apply to a bankrupt who has been
discharqed.

The strong attitude of this Court is not to overrule or

reconsider prior decisions of the Full Court. subject, of course. to entertaininq any argument that there is a patent error in the earlier decision or the decision was qiven per incuriam - without taking into account vital factors.

In that situation this Court declines to entertain any

argument that Official Receiver in Bankruptcv v. is wrong

and on the contrary will follow it.

The other matter concerned the decision of the Trustee

in Bankruptcy to issue the summonses. This matter was also

litigated before his Honour the primary judge. We see no reason

to interfere with his Honour's decision. The learned judqe had a

discretion. He plainly looked at the whole position and was of

the view that the Trustee's decision should not be interfered

with.	We see no reason to take a contrarv view but in any event
it is	to be remembered that it was a discretionary judgment of

his Honour and in accordance with well established principles we

will not re-examine the exercise of that discretion, except in

special circumstances, and those special circumstances are

lacking in the present case.

I would therefore be of the view that the present appeal

should be dismissed.

, e

i

l

3 . 4

FORSTER J: I agree.

DAVIES J: I am of the same opinion.

1 certifv that this and the

two ( 2 ) precedins pages are a

true copy of the Reasons f o r

Judgment h-Qqe Associate: Date: 10 July ‘l&--- *

Counsel for the Appellants:

D.F.Rofe Q.C. & B. Hull

Solicitors for the Appellants:

Allan R. Nelsen & Co.

Counsel for the Respondent:

I. Curlewis Q.C.

Solicitors for the Respondent:

Australian Government

Solicitor

Dates of hearinq:

10 July 1987

Date Iudgment delivered:

10 July 1987