Re Clyne, P.L. v Ex Parte Commissioner of Taxation

Re: PETER LEOPOLD CLYNE
Ex parte: DEPUTY COMMISSIONER OF TAXATION
No. W929 of 1983
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Jackson J.

CATCHWORDS

Bankruptcy - public examination under s. 69 - refusal by bankrupt to answer questions put by principal creditor - scope of public examination under s. 69 - "conduct, trade dealings, property and affairs of the bankrupt" - discretion to disallow questions - whether questions an abuse of process - role of creditor in public examination under s. 69 - whether questions in breach of Income Tax Assessment Act s. 16 - claim of privilege against self-incrimination - whether the privilege applies to public examination of a bankrupt under s. 69 - meaning of the word "only" in s. 69(12).

Bankruptcy Act 1966 ss. 69, 306A(3).

Income Tax Assessment Act 1936 s. 16

In re Atherton (1912) 2 KB 251. In re Paget (1927) 2 Ch. 85.

In re Jawett (1929) 1 Ch. 108. Re Clyne; Ex parte O'Brien (unreported - Wilcox J., 5th February 1986). Mortimer v. Brown (1970) 122 CLR 493. Re Smith (1960) 19 ABC 13. Clyne v. Deputy Federal Commissioner of Taxation (1985) 85 ATC 4597.

Clyne v. Deputy Commissioner of Taxation (No.3) (1984) 58 ALJR 398

Norper Investments Pty Ltd v. Deputy Federal Commissioner of Taxation (1977) 77 ATC 4211

Pyneboard Pty Ltd v. Trade Practices Commission (1983) 57 ALJR 236

Sorby v. The Commonwealth (1983) 57 ALJR 248.

The Royal Commission Re A Brisbane Hotel (No. 2) (1964) QWN 29.

HEARING

SYDNEY

#DATE 16:9:1986

Counsel for the bankrupt: The bankrupt appeared in person.

Solicitors for the bankrupt: The bankrupt appeared in person.

Counsel for the creditor: Mr D.G. Hill, Q.C. with Mr A. Cramer-Roberts

Solicitors for the creditor: Australian Government Solicitor

Counsel for the trustee: Mr S.M.P. Reeves (21 & 22 August only)

Solicitors for the trustee: Stephen Jaques Stone James (21 & 22 August only)

ORDER

In the public examination of the bankrupt Peter Leopold Clyne the following two questions, namely:-

(i) "Mr Clyne, is that a photocopy of a document written by you?"

(ii) "Mr Clyne, do you agree that that is your initial that appears above the words "Peter Clyne" in that photocopy of a letter?"

be allowed to be put to the bankrupt.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

Peter Leopold Clyne is a bankrupt whose public examination pursuant to s. 69 of the Bankruptcy Act 1966 has been taking place before the Registrar who, in the exercise of the powers conferred by s. 69(5)(b), has adjourned the examination for further hearing before the Court. It is thus that the matter comes before me.

The occasion for the adjournment of the examination by the Registrar was that the bankrupt declined to answer a question put to him by counsel for the Commissioner of Taxation, the principal creditor in the bankruptcy. In so doing the applicant raised a number of matters relating to the interpretation of s. 69 - and in particular of ss. 69(11) and 69(12) - as justification for his refusal to answer the question and the Registrar, very correctly in my view, then took the course to which I have referred.
When the matter came before me it was agreed that the best course would be for the bankrupt, who appeared for himself, to re-enter the witness box and to be asked the relevant questions. That took place and in the event two questions are now asked, namely:-

"Mr Clyne, is that a photocopy of a document written by you?"

and:-

"Mr Clyne, do you agree that this is your initial that appears above the words "Peter Clyne" in that photocopy of a letter?"

The "document" and the "photocopy of a letter" shown to the bankrupt when the questions were asked and referred to in those questions are the same document, namely a photocopy of what purports to be a letter dated 28th September 1983 from the bankrupt to a Mr R.E. Parker of Nowra, a letter in which some advice was given to Mr Parker as to steps which might be taken in order that a company Utility Brute Trailers Pty Ltd might not pay sales tax and as to certain other matters. The letter also stated what the costs and fees involved in the giving and the implementation of the advices might be. The two questions have not been answered pending my ruling on them and the bankrupt submits that:-

(a) they are not questions falling within the scope of a public examination under s. 69;

(b) alternatively, I should exercise my discretion under s. 69(11) to decline to allow the questions to be asked;

(c) the questions were questions to which a claim of privilege against self-incrimination might properly be made and in the particular circumstances of the case, the right to claim privilege is unaffected by s. 69(12);

(d) if there is not an absolute right to claim privilege, I should exercise my power under s. 69(12) to decline to require the bankrupt to answer the questions.

Before turning to the grounds upon which the bankrupt advances those contentions, it is convenient to deal with the scheme of s. 69, in its present form, a little more fully.
S. 69(1) empowers the trustee of the estate of a bankrupt to apply to the Registrar for the examination of the bankrupt on oath "as to the conduct, trade dealings, property and affairs of the bankrupt". The application is to be in writing (s. 69(1)) and on receipt of it the Registrar is obliged to fix a date, time and place for the commencement of the examination and is to summon the bankrupt to attend at that date and time (s. 69(2)). The examination is to be held in public before the Registrar or a magistrate (s. 69(4)) but the Registrar or magistrate may adjourn it for further hearing before the Court (s. 69(5)) with, if the Registrar or magistrate so chooses, such report with respect to the examination as the Registrar or magistrate thinks fit (s. 69(6)). The trustee or any creditor of the bankrupt may take part in and be legally represented at the examination (s. 69(9)).
S. 69(11) provides, in relation to the questions which a bankrupt may be asked at a public examination under s. 69(1), that:-

"(11) The Court, the Registrar or the magistrate may put to the bankrupt, or allow to be put to the bankrupt, such questions as the Court, the Registrar or the magistrate, as the case may be, thinks proper."

The obligation of a bankrupt to answer questions in a public examination under s. 69 is dealt with in s. 69(12) which provides that:-

"(12) The bankrupt shall answer all questions that the Court, the Registrar or the magistrate puts or allows to be put to him and, unless the Court, the Registrar or the magistrate, as the case may be, otherwise directs, is not excused from answering any such question by reason only of the fact that the answer to it may tend to incriminate him."

I turn then to consider the various matters argued before me mentioning in so doing that it is accepted by counsel for the Commissioner of Taxation that if permitted to do so he wishes to go on to ask the bankrupt further questions concerning both the transactions the subject of the letter to which I have referred and other matters.
The first such matter with which I shall deal is the bankrupt's contention that the questions seek to go to matters outside the scope of a public examination. The scope, in terms of permissible subject matter, of the questions in a public examination under s. 69 is determined by the ambit of the expression "as to the conduct, trade dealings, property and affairs of the bankrupt" (s. 69(1)). The examination, as the words which I have quoted indicate clearly, is not limited to an ascertainment of the assets and liabilities of the bankrupt with a view to the determination of the property ultimately divisible amongst his creditors, but extends beyond it to matters relating to his "conduct", his "trade dealings" and his "affairs". That these terms should be construed relatively widely is apparent also from the authorities dealing with cognate provisions. See for example In re Atherton (1912) 2 KB 251 at 256 where matters relevant to the success of an application for discharge were treated as being within the expression "conduct, dealings, and property" of the bankrupt. In In re Paget (1927) 2 Ch 85 at 87 Lord Hanworth M.R. (with whom the other members of the Court of Appeal agreed) said at 87-88:-

"The debtor in the present case came up for public examination . . . under the provisions of s. 15 of the Bankruptcy Act, 1914, which require that a debtor against whom a receiving order has been made shall be publicly examined as to his affairs. I use that word comprehensively, the object of the examination being not merely for the purpose of collecting the debts on behalf of the creditors or of ascertaining simply what sum can be made available for the creditors who are entitled to it, but also for the purpose of the protection of the public in the cases in which the bankruptcy proceedings apply, and that there shall be a full and searching examination as to what has been the conduct of the debtor in order that a full report may be made to the Court by those who are charged to carry out the examination of the debtor. To concentrate attention upon the mere debt collecting and distribution of assets is to fail to appreciate one very important side of bankruptcy proceedings and law."

See also In re Jawett (1929) 1 Ch 108 at 112 where Astbury J. required the bankrupt to disclose the source of supply to him of items infringing a patent, the bankrupt having carried on a business of selling these items, and Re Clyne; Ex parte O'Brien, (Wilcox J., 5th February 1986 - as yet unreported). In Mortimer v. Brown (1970) 122 CLR 493 at 499-503 Walsh J, with whom Barwick C.J., Windeyer and Owen JJ. agreed, appears to have treated the English cases to which I have referred as stating the law correctly.
It is obvious, however, that the terms "conduct" and "affairs" in s. 69(1) are not to be treated as unlimited in their application. As was suggested in argument questions seeking to elicit admissions that the bankrupt had lived in an adulterous relationship would not without more seem to have any relationship with the possible objects of a public examination. On the other hand, of course, that fact when combined with other matters might be relevant to a public examination. For example if the infatuation had led to the abandonment by the bankrupt of the management of the family business, thus leading to the bankruptcy, there seems no reason why that fact might not be elicited in the bankrupt's public examination.
That some limits are to be placed on the ambit of the expressions "conduct" and "affairs" was recognized by Clyne J. in Re Smith (1960) 19 ABC 13, when he said (at 14) that "conduct" must be "conduct which could or might have something to do in bringing about the bankruptcy or affecting the bankruptcy in any way after its commencement". Whether that description states the full ambit of s. 69(1) may be open to doubt, although it may well operate as a counsel of prudence in exercising the discretion under s. 69(11). It is unnecessary for present purposes, however, to seek to define the outer limits of the concepts in s. 69(1) because it is sufficient to say that the concepts include at least matters going to the business conduct of the bankrupt, both before and after the making of the sequestration order.
In the present case, the questions asked relate to a document which on its face is a copy of a document brought into being by the bankrupt in the course of his business as a consultant on matters relating to the revenue. There is nothing, it seems to me, to show why the questions are not questions which relate to the "conduct" and to the "trade dealings", to the "property" (fees are referred to in it) and to the "affairs" of the bankrupt. I think it clear that the questions presently in issue do fall within the concepts referred to in s. 69(1).
The second matter with which it is necessary to deal is whether, as urged by the bankrupt, I should decline to allow the questions to be put to him.
As I have intimated in connection with Re Smith (supra) it seems clear that the discretion under s. 69(11) may be exercised to refuse to allow a question notwithstanding that the question is within the scope of the questions permitted by s. 69(1). In Clyne v. Deputy Federal Commissioner of Taxation (1985) 85 ATC 4597 at 4601 Morling J. treated as an instance where the discretion might be exercised in that way questions the answers to which might tend to incriminate the bankrupt but which could not be seen to be likely to elicit information which would be "of real assistance to the trustee in his administration of the bankrupt's estate". See too the remarks of Walsh J. in Mortimer v. Brown (supra) at 502-3. The issue, however, is whether I should so excise the discretion and I shall discuss that issue first by reference to factors other than the possibility of self-incrimination (although I recognize its relevance - see the two cases to which I have last referred), and shall return to the issue after consideration of the third matter to which I have earlier referred, namely whether the privilege against self-incrimination applies in its fullest sense, or only to the limited degree permitted by s. 69(12).
On that basis I do not think that sufficient reasons appear to incline me to exercise my discretion not to allow the questions.
In this regard, the questions seek simply to confirm the bankrupt's apparent authorship of a letter in which advice is given concerning past and future liabilities to sales tax of companies with which the addressee was concerned or might establish, and in relation to a scheme, described as a "FOUR WAY TANGO", which might be used "to assist with the real estate development", the letter also setting out the fees and costs which were payable if the schemes were proceeded with.
The letter thus appears to relate to the manner in which the bankrupt conducted his business and to the charges which he made, or proposed to make, in it. It was suggested by him, however, that the questions were really directed to ascertaining information relating to the affairs of Mr Parker and his companies, that their relevance to the bankrupt's affairs was slight, and that in consequence they should not be allowed.
I agree that a particular circumstance in which the discretion under s. 69(11) might be exercised against allowing a question to be put is where, although the question is in form one related to the "conduct, trade dealings, property and affairs" of the bankrupt in terms of s. 69(1), it is apparent that the question is in truth directed, or more directed, to ascertaining information about the conduct of persons other than the bankrupt. I should add that I do not mean, of course, that it will be a frequent occurrence for a question not to be allowed on this basis. Business dealings must often take part as bipartite or tripartite transactions and the fact that questions relating to such dealings may be characterised as relating both to the conduct of the bankrupt and as relating to the conduct of a person other than the bankrupt does not mean that they may not properly be asked of the bankrupt.
As matters stand in this case, however, there is nothing to suggest that the particular questions are directed solely or principally to ascertaining matters concerning persons other than the bankrupt.
It is convenient at this point to mention also a larger, but related, issue raised by the bankrupt, namely a contention that if the Commissioner of Taxation's purpose in asking the questions in issue were to aid an investigation of the affairs of Mr Parker and his companies, or to build up a case against the bankrupt for, as it was put, a breach of the revenue laws, such a purpose would be an abuse of process, being a matter "foreign to the bankruptcy laws".
In making these submissions the bankrupt relies on the remarks of Gibbs C.J., Murphy, Brennan and Dawson JJ. in Clyne v. Deputy Commissioner of Taxation (No. 3) (1984) 58 ALJR 398 at 402 that the use of a procedure under the Bankruptcy Act for a purpose foreign to the bankruptcy laws is an abuse of process. It may well be that there are cases when the principle is applicable in the case of a public examination under s. 69(1). There is, however, nothing in the present circumstances to attract the operation of that notion.
It was also suggested by the bankrupt as a relevant factor that in an examination under s. 69 a creditor's role is subsidiary, that the creditor "has only a walk-on part" and should be restricted to supplementing the trustee's questions, it being contended that a creditor had the right to conduct his own examination under s. 81 of the Act.
The terms of s. 69 do not lend support to this view of the role of a creditor in a public examination under that provision. It is true that s. 69(1) does not give a creditor, but does give the trustee, the right to apply for the examination of the bankrupt. Once the examination has commenced, however, the creditor is given by s. 69(9) a statutory right to take part in the examination. The creditor's right to do so is not expressed to be in any way subsidiary to, or different from, that of the trustee and it may be expected that in many cases their areas of interest will be different. There is no reason why a creditor may not ask questions relating to a matter already the subject of questions by the trustee, although it may be that the person before whom the examination is conducted would decline to allow a question to be put if it were unduly repetitious. It should also be noted that the creditor does not have a right to have an examination of the bankrupt pursuant to s. 81(1)(a) of the Act and it might well be that a factor in refusing to grant an application under that section would be that the creditor had not taken up an opportunity to participate in an examination under s. 69.
I am thus unable to accede to the bankrupt's contentions on this point.
Reliance was also placed by the bankrupt on s. 16 of the Income Tax Assessment Act 1936, the bankrupt contending that to permit the questions to be put would be to countenance a breach of that provision.
S. 16(2) provides that:-

"(2) Subject to this section, an officer shall not either directly or indirectly, except in the performance of any duty as an officer . . ., divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of "officer" in sub-section (1)".

Information "as mentioned in the definition of "officer"" in s. 16(1) is relevantly information respecting the affairs of another person "disclosed or obtained under the provisions of this Act . . .".

S. 16(2) applies, of course, to an "officer", a term defined relevantly by s. 16(1) to mean:-

". . . a person who is or has been appointed or employed by the Commonwealth . . ., and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act . . .",

and s. 16(1A) extends the meaning of the term "officer" to include a person who "performs services for the Commonwealth".

I am content to assume that the document in question was obtained by the Commissioner under the provisions of the Income Tax Assessment Act. I am content also to assume that counsel in putting the questions is by reason of s. 16(1A) to be treated as an "officer" to whom s. 16(2) applies. I shall assume also that the line of questioning proposed will go beyond the two questions presently asked and involve "divulging" contents of the letter to a person other than the bankrupt. Having said that it must be borne in mind that the Commissioner of Taxation is the principal, and for practical purposes the only, creditor in the bankruptcy and I do not see why participation in an examination under s. 69(1) is not the performance of a duty as an officer in terms of s. 16(2). Compare Norper Investments Pty Ltd v. Deputy Federal Commissioner of Taxation (1977) 77 ATC 4,211 where Needham J said at 4,212:-

"It is suggested in the objection that the hearing of a petition for the winding-up of the company is not a procedure engaged in for the purpose of carrying into effect the provisions of the Act. In my opinion the Commissioner in recovering tax is acting for the purpose of carrying into effect the provisions of the Act. It is suggested that the issue of a petition for the winding-up of a company upon which an assessment has been served is not collecting or attempting to collect tax.

In my opinion the issue of the process by the Commissioner, while it is a process available to him under the Companies Act, is an act done by him for the purpose of carrying into effect a duty imposed upon him under the Act of collecting taxation as it is assessed. I think it would be quite unreal to say that he was, in issuing a petition, not performing that duty which is imposed upon him under the Act."

In these circumstances, and as I have indicated earlier, I do not consider that, leaving aside the question of the application of the privilege against self-incrimination, the case is one where the discretion under s. 69(11) should be exercised in favour of the bankrupt. Indeed the questions seem to me to be of the very nature one might expect to see in examinations under s. 69.
I turn then to consider the third ground raised by the bankrupt, namely his contention that the privilege against self-incrimination is not affected by s. 69(12) and that in the particular circumstances of the case the bankrupt is entitled to rely upon the privilege.
The argument involves the following steps. First it is said that the privilege against self-incrimination existing under the general law will apply to a public examination under s. 69 either by reason of the general law or by reason of s. 306A unless it be that the terms of the enactment exclude the privilege expressly or by necessary implication. Secondly it is said that the only attempt to exclude the privilege against self-incrimination examinations under s. 69 is to be found in s. 69(12). It is then said that the terms of s. 69(12) are such that the privilege is not excluded unless reliance on the privilege against self-incrimination is the only reason why there is a refusal to answer the question. Finally, it is put that because there are other reasons in addition to reliance on the privilege against self-incrimination advanced in the present case, the terms of s. 69(12) do not have any relevant application, and the general principle to which I have referred applies.
It is clear, of course, that as Mason, Wilson and Dawson JJ. (repeating their observations in Pyneboard Pty Ltd v. Trade Practices Commission (1983) 57 ALJR 236 at 240-241) said in Sorby v. The Commonwealth (1983) 57 ALJR 248 at 260:-

". . . a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication . . .".

Further as their Honours said in both those cases, in determining whether the privilege against self-incrimination is impliedly excluded, much depends on the language and character of the relevant legislative provision and on the purpose which it is designed to achieve: Pyneboard Pty Ltd v. Trade Practices Commission (supra) at 241 and Sorby v. The Commonwealth (supra) at 260.

Putting to one side for a moment the provisions of s. 306A(3) of the Act, it is clear that the public examination of bankrupts under the enactments in bankruptcy has long been an instance where, without there being any reference to the exclusion of the privilege against self-incrimination, a statutory duty of the bankrupt to answer "all such questions as the Court may put or allow to be put to him" has been held to carry with it an exclusion of the privilege against self-incrimination. See the summary of the position by Phillimore J. in In re Atherton (supra) 254 where he said:-

"This is a question which has arisen out of the public examination of a debtor under s. 17 of the Bankruptcy Act, 1883, which provides in sub-s. 1 that the debtor "shall be examined as to his conduct, dealings and property," and in sub-s. 8 that "it shall be his duty to answer all such questions as the Court may put or allow to be put to him." Those words are in themselves wide enough for the purpose of the matter now before me, but I have also the authority of the cases of In re a Solicitor (25 QBD 17), Reg. v. Erdheim ((1896) 2 QB 260), and Reg. v. Scott (25 LJ (MC) 128), which decide that those words mean what they say, that a debtor is bound to answer all such questions as the Court may put or allow to be put to him, whether they tend to criminate him or not - even such a question as "Have you committed a crime?""

That statement of principle was approved by the Court of Appeal in England in In re Paget; Ex parte Official Receiver (supra) at 88-89 and it has been treated as correct on many occasions both in England (see e.g. In re Jawett (supra) and R. v. Harris (1970) 1 WLR 1252) and in Australia (see eg Re Wagner (1958) QWN 49, Rees v Kratzmann (1965) 114 CLR 63, Mortimer v. Brown (supra) and Re Clyne; Ex parte O'Brien (supra)).
On that view the terms of s. 69(12) should be treated as providing, in favour of the bankrupt, for an exception to the general principle that the privilege does not apply.
The remarks which I have so far made deal with the position without regard to s. 306A(3) which is in the following terms:-

"(3) Subject to this Act, a person summoned to attend for examination, or appearing for examination, under section 50, 69 or 81 has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court".

In The Royal Commission Re A Brisbane Hotel (No. 2) (1964) QWN 29, Gibbs J. said of a provision in terms similar to s. 306A(3), namely s. 14(3) of The Commissions of Inquiry Acts, 1950 to 1954 (Q.) that "the words of s. 14(3) of the Acts appear to recognize the existence of the privilege", i.e. the privilege against self-incrimination. His Honour appears to have remained of that view in Sorby v. The Commonwealth (supra) at 256. The other members of the Court in that case did not find it necessary to deal with the effect of s. 14(3), although arriving at the same conclusion. No doubt the term "protection" in s. 306A(3) is apt to refer to other "rights" of a witness, such as immunity from suit in respect of evidence given, but the term "protection" does not seem an inapt description of the privilege against self-incrimination. It has commonly been used in textbooks (see e.g. Powell's Law of Evidence 10th Ed., 1921, at 193) and in judgments (as by Starke J. in Kempley v. The King (1944) ALR 249 at 253) as a description of the privilege.
There are thus three possible starting points in the approach to be taken to s. 69(12). One is that s. 306A(3) has the effect that, subject to s. 69(12), the general principle is that the privilege against self-incrimination would apply to a public examination under s. 69. The second is that s. 306A(3) does not have that effect, but that the principle against self-incrimination would be applicable by reason of the approach indicated by Pyneboard Pty Ltd v. Trade Practices Commission (supra) and Sorby v. The Commonwealth (supra), and is displaced only to the extent to which s. 69(12) does displace it. The third approach is that the effect of the bankruptcy cases to which I have earlier referred (i.e. In re Atherton (supra) and those following or applying it) is that the general principle in relation to public examinations in bankruptcy is different from that applying generally and that in consequence s. 69(12) should be treated as granting a relaxation of the general rule applicable in bankruptcy cases that the privilege does not apply.
Whilst I prefer the view that the effect of s. 306A(3) is that the privilege against self-incrimination would apply, save to the extent that s. 69(12) alters that position, it is unnecessary to resolve the question unless it be that the bankrupt's contention as to the effect of the presence of the word "only" in s. 69(12) should be upheld, and I turn now to that issue.
When a question has been put, or allowed to be put, in accordance with s. 69(11), a bankrupt may seek to refuse to answer it on a number of grounds. One question which arises is whether reliance on any privilege (other than the privilege against self-incrimination) is permitted by s. 69(12). If it is permitted, then the word "only" in s. 69(12) shows that the Court, Registrar or magistrate has no power to require an answer to that question if the claim to privilege (other than the privilege against self-incrimination) is properly made. If on the other hand the privilege is not available under s. 69(12), the word "only" emphasizes that it is only in the case of the privilege against self-incrimination that the rule abolishing a right to rely upon privilege is relaxed.
In neither case, however, does it seem to me that the use of the term "only" could support the proposition advanced by the bankrupt, namely that whenever refusal to answer is based on more than one reason, s. 69(12) becomes entirely inapplicable.
The result is that I have to consider the fourth matter raised by the bankrupt, namely whether I should exercise in his favour the discretion conferred by s. 69(12). In this regard I shall assume in favour of the bankrupt that the answer to the questions might form part of a chain of events exposing him to a possible liability to conviction for offences in relation to the revenue of the Commonwealth. Nonetheless the matters referred to in the document in question clearly go to, amongst other things, the amounts of money which the bankrupt earned in the period from the date of the letter until the commencement of the present bankruptcy in early 1985 and I can see no sufficient reason why I should exercise my discretion under s. 69(12) in his favour in relation to those questions.
I should add, returning to the discretion under s. 69(11), that taking into account the possibility of self-incrimination in addition to the other matters to which I have earlier referred, I would yet regard the case as one where I should allow the questions to be put to the bankrupt.
In the result I shall, in terms of s. 69(11), allow the questions to be put to the bankrupt and I decline, in terms of s. 69(12), to "otherwise direct" in respect of the bankrupt's obligation to answer those questions.

[1986] FCA 410

16 SEPTEMBER 1986