Petruk, E.M. v The Official Trustee in Bankruptcy

[1986] FCA 282

IN THE FDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) No. G.75 of 1986
)
GENERAL DIVISION	1
BETWEEN:

ELIZABETH MARIA PETRUK

Appellant

THE OFFICIAL TRUSTEE

IN BANKRUPTCY

Respondent

CORAM: Sweeney, Wilcox and Burchett JJ.

m: 18 June 1986

M-TEMPORE REASONS FOR JUDGMENT

SWEENEY J. The order of the Court is that the appeal be

dismissed with costs. The Court's reasons for judgment will be

delivered by my brother Burchett.

BURCHETT J. This is an appeal from an order of Mr.

Justice Smithers made on 2 April, 1986, upon an application by

the Official Trustee in Bankruptcy as trustee of the estate of

Andy Rolf Petruk, described in that application as being also

known as Andy Rolf Anthony Bates, the bankrupt.

orders :

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Petruk, the present appellant, who is

the wife of the bankrupt, for contempt	i
of Court, in that before the Court when
being examined before the Court pursuant
to section 81(6) of the Bankruptcy Act
1966 ("the Act" ) , on 7 May 1985, she	I

refused to answer the question: "How

many windsurfers does your husband own?" I

("the said question"), when directed by	;
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the Court to do so. i

( 2 ) That the appellant pay the trustee's

costs of his application.

Section 81(11) provides that: "A person being examined

under this section shall answer all questions that the Court, the

Registrar or the magistrate puts	or allows to be put to him."	l
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The examination of the appellant was taking place before

Woodward J. on 7 May 1985, when she was asked the question I have

indicated, directed by the Court to answer it, and refused to do

so. It is clear from the transcript that Woodward J. was at

pains to ensure that she understood her obligation under the law, !

c and to give her every opportunity of compliance.

Mr. Justlce Smithers made orders (inter alia):

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"(1) That the said respondent do stand

I committed to Her Majesty's Prison

Pentridge or other appropriate prison

for her said contempt for the period of

six months and the Court further orders

pursuant to rule 176( 3 ) of the

Bankruptcy Rules that the warrant for

committal of the said respondent to

prison h e in the office of the

Registrar in Bankruptcy at Melbourne

until 4PM on the 16th day of April

1986, and be not executed if before 4PM

on the 16th day of April 1986, the said

Elizabeth Maria Petruk shall have

caused to be filed in the said office

in this proceeding an undertaking in

writing signed by the said Elizabeth

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Maria Petruk in the terms of the

undertaking set forth in the schedule

to this order.. . ' I .

There were further orders, and in the schedule there was

contained an undertaking:

"I, ELIZABETH MARIA PETRUK, the person ordered

by the Federal Court of Australia on the 2nd

day of April, 1986 to be committed to prison for contempt of that court on the 7th day of May 1985, hereby promise and undertake to the

court that upon my further examination

pursuant to Section 81 of the Bankruptcv Act

1966 I will answer the question 'how many

windsurfers does your husband own?' if the

said question shall be asked of me and that

upon my further examination pursuant to the

said section i (sic) will answer each

question that the Court or a Registrar may

put to me or allow to be put to me."

The appellant, who appeared in person, had filed a

Notice of Appeal which states as grounds for the appeal:

"That the Orders and the Judgement made by Mr.

Justice Smithers in proceedings No 397 of

t	1984 on 2 April 1986, be annulled as they are
illegal, unconstitutional violate and
'i	principles of democracy."

The document also sought an order that the respondent pay the appellant's costs of this appeal.

Mrs. Petruk made statements, in the course of her

argument, about the reasons for her leaving the court room, to

which I shall refer later, during the hearing of the respondent's

application to Smithers J., and thereafter remaining out of

court. We note that the transcript is not consistent with her

explanation. She told us that she left at the stage which was

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reached at the end of page 554 of the transcript. Immediately before that the transcript shows she had told the Judge:

“I intend to go home now because you have no

right to be here in this Court and the High

Court shall decide if you have the right or

you have not the right because what is going

on here in this Court, that the other party

can collect judges - they already had you

once and they got beautiful orders, all

fraudulently achieved, because you just ignored everything which was brought before you. ”

The transcript shows that his Honour replied:

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Well, Mrs. Petruk, I have explained to you

the fact that the fact that you	go away will
not stop the case.

The transcript contlnues:

MRS PETRUK:	Your Honour, it has to stop the
case because	you have no right to be here and

I shall be applying to the High Court about

whether you can continue or not.

HIS HONOUR:	Well, that is fair enough.	.	._
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MRS PETRUK:	If you do continue, your Honour,

you have no right to continue. It is just of

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doing some more damages and administer the

money they have already fraudulently made

away so there is nothing left. OK.

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And that is the stage at	which Mrs	Petruk told us she left the	l
court room.

Mrs Petruk complained that the Registrar limited the

appeal documents, and that he applied the Appeal Rules of this

Court. Of course, it is true that he did both these things, but

he did not limit the documents so as to exclude anything relevant

to the proceedings before Smithers J.

5.

So far as the rules are concerned, this Court's original

jurisdiction is, in bankruptcy, exercised according to the

Bankruptcy Rules, but an appeal is, of course, not a proceeding in Bankruptcy but in the appellate jurisdiction of this Court,

and the rules	are the rules	of	this Court applicable to such
appeals.

A further complaint was that the name of the appellant

was incorrectly stated on earlier documents, though not in the

application before Smithers J. It was not disputed that she did

in fact refuse to answer the Court's question when appearing

before Aoodward J. Probably the main matter argued by the

appellant was that Smithers J. had no power to hear the

proceedings for contempt, because Jenkinson J. had partly dealt

with those proceedings during December 1985.

It appears there came before Jenkinson J. applications

to punish for contempt of court both Mr and also Mrs Petruk. His

Honour dealt with the two matters separately, and made an order in respect of Mr Petruk. During intervals in the hearing of the

proceedings in respect of Mr Petruk, some evidence was taken

respecting the allegations against Mrs Petruk. However, after

giving judgment in Mr Petruk's case, his Honour expressed the

view that it would be better for the proceedings against Mrs

Petruk to be recommenced before a different judge.

After being listed for mention on several occasions, the

matter was listed for hearing before Smithers J. on 2 April 1986.

6.

On that day, Mrs Petruk appeared and submitted to Smithers J.

that he should not hear the matter. Before the hearing was

completed, she withdrew, and in the result his Honour found the

applicant's case proved, and made the order under appeal.

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In view of the submissions made to us, particular

reference should be made to the fact that the matter was listed

for mention before Jenkinson J. on 3 February 1986 at 4.15PM.

His Honour on that occasion was apparently unable to take the

! matter, and after a short interval, the matter was dealt with by

Keely J. who ordered that it be listed in a call-over list. In our view, nothing turns on the identity of the judge who dealt with the mention of the application. The real question is

whether Smithers J. was disentitled to hear the matter because of

what had occurred before Jenkinson	J.	in December. Clearly	he
was not.

i The application had not been heard to finality, and the

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power of the Court to deal with it had not been exhausted.

There had been no appeal, in the proceedings relating to Mrs

Petruk, against any order made by Jenkinson J.

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The other matters argued can be dealt with shortly. Mrs

Petruk conceded before us, as I have already indicated, that she

had been directed to answer a question about windsurfers owned by

I	her	husband,	and	had	refused	to do so.	She claimed	to	be
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justified by two considerations.

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Firstly, she claimed that she had herself been denied

answers to questions she had raised about the removal of property

from premises in Perth at an earlier date. One version of this

reason given to us was:

“I did not answer the question because the

court refused to give the reason why (the

Official Receiver) had the stolen goods.“

Secondly, that is the second reason given was, that on a

prior occasion an error had occurred in a transcript.

Plainly, these matters afford no excuse for her

disobedience to a direction of the Court to answer the question.

Mrs Petruk also complained that the proceedings had been

brought in the name of the Official Trustee without nominating

the individual concerned, who was, she said, a Mr Bursacott. Her

complaint in this regard was that she was thus denied an

opportunity to question Mr Bursacott. However, he did not swear

Any affidavit tendered before Smithers J., nor was he called on

subpoena, nor so far as appears was this point taken below. It

is in any case without substance.

Mrs Petruk claimed that, in two respects, matters put to

Smithers J. by counsel then appearing were inaccurate. It is not

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clear to us whether this is in fact so, but in any event the :

statements were matters of quite immaterial detail.

The appellant pointed out that the application for

committal for contempt was not personally served, as required by

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rule 176. The evidence was - and she conceded - that she

received the documents by special delivery post. It does not

appear whether there was an order for substituted service, but it

is clear that she was at all times aware of the progress of the

matter, and participated both before Jenkinson J. upon at least

the mention date (about which she complains in an argument which

I have mentioned earlier), and again, before Smithers 3.

The matter of service was not raised before Smithers and indeed the argument presented - J.,

.I that is, the argument that

- was raised - was based upon the pre-supposition that she had been

properly before Jenkinson J. If there was any deficiency in

service, it was clearly waived.

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Finally, the appellant submitted that the application

was mala fide in that it was brought to obtain an order for costs

to found a bankruptcy petition. There is no substance in this

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submission.

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I Because the appellant was unrepresented, we have dealt with her arguments, notwithstanding: firstly, her failure' to file proper appeal papers in accordance with the rules of this Court, which is the Court to which she has appealed; and !

secondly, that she has in fact signed an undertaking in writing

as provided for in the order. The precise terms of the

undertaking which she has signed are as follows:

"I, ELIZABETH MARIA PETRUK, the person ordered

by the Federal Court of Australia on the 2nd day of April, 1986 to be committed to prison

for contempt of that court on the 7th day of

May, 1985 hereby promise and undertake to the

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court that upon my further examination

pursuant to Section Si of the Bankruptcy Act 1966 I will answer the question ‘how manv

windsurfers does your husband own?‘ if ti;”e

said question shall be asked of me and that

upon my further examination pursuant to the

said section i (sic) will answer each

question that the Court or a Registrar may

put to me or allow to be put to me.”

The appeal should be dismissed with costs.

I certify that this and the

preceding eight (81 pages are

a true copy of the Reasons for

Judgment herein of the Court.

Dated: 18 June 1986.

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