Re Deputy Commissioner of Taxation v Ex parte Clyne, P.L

[1987] FCA 209

CATCHWORDS

BANKRUPTCY - application to have public examination concluded

- whether the Court can make such order - ill health of

bankrupt - whether previously unanswered questions should be

answered - whether can resume public examination	that has been
concluded.

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Bankruptcy Act 1966 ss.69(5)(b), 69(5)(c), 69(7)(c)

s.81, s.l5O(l)(a)

RE: PETER LEOPOLD CLYNE	EX PARTE: DEPUTY COMMISSIONER OF
TAXATION

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NO. W929/1983

Jackson J

Sydney

6th May 1987

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IN THE FEDERAL COURT OF AUSTRALIA 1 1

GENERAL DrvrsroN	1
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BANKRUPTCY DISTRICT OF NEW SOUTH WALES 1 No. W929 of 1983

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AND THE AUSTRALIAN CAPITAL TERRITORY 1

RE :	PETER	LEQPOLD	CLYNE
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EX PARTE: DEPUTY COMMISSIONER OF TAXATION

CORAM: Jackdon J. DATED: 6 May 1987

MINUTES OF ORDER

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THE COURT ORDERS:

that the public examination of Peter Leopold Clyne be

and is now concluded.

- NOTE : Settlement and entry of orders is dealt with in

Bankruptcy Rule 124.

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IN THE FEDERAL COURT	OF AUSTRALIA	1 1
GENERAL DIVISION	1 1

BANKRUPTCY DISTRICT	OF NEW SOUTH WALES	1	No. W929 of 1983
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AND THE AUSTRALIAN CAPITAL TERRITORY 1

RE :	PETER	LEOPOLD	CLYNE
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EX PARTE: DEPUTY COMMISSIONER OF TAXATION

CORAM: Jacksbn J. DATED: 6 May 1987

REASONS FOR JUDGMENT

Peter Leopold Clyne, ("the bankrupt") was made bankrupt

on 22 January 1985. His public examination was conducted before

the Registrar and after some days of hearing the examination was adjourned for further hearing before a Judge pursuant to

s.69(5)(b) of the Bankruptcy Act 1966.

The examination was last before me on 6 November 1986

and it was agreed then that, due to the ill health of the

bankrupt, the public examination should be adjourned to a date to

be fixed by the Court with a mention on 1st May 1987. It was a condition of that adjournment that the bankrupt, if required by either the trustee in bankruptcy or the Deputy Commissioner of Taxation, would submit himself for further medical examination by such doctor or doctors a s may have been nominated by either or both of them.

2.

When the matter camc on beforc mo on 1st May 1987 the

bankrupt by his counsel sought an order that the public

examination of the bankrupt be concluded. Although the Act does

not specifically confer such a power on the Court, it seems clear

enough that s.69(7)(c) read in the light of the presence of

s.69(5)(c) is sufficiently wide to empower the making of such an

order. The ground on whlch the order is sought is that the bankrupt’s health would be put in jeopardy by the continuation of his public examination. It is alleged that the fact that he

would be rebuired to be present for examination would be

dangerous to his health and further that the mere fact of the

examination remaining on foot would also be dangerous to his

health by way of the stress it would cause.

A report of Dr. Peter Kendall dated 15 April 1987 is

relied on by the bankrupt in support of his case. The report

states that it would be dangerous to the health of the bankrupt

to appear in Court and regarding the future it says “I think he

has achieved as much improvement as is possible, and I doubt that

he would be any more fit for appearing in court in say 3 , 6 or 12

months or 2 years than he 1s now: in fact it 1s quite likely

that he will be less fit.“ Apart from that report, the bankrupt

relles on the reports of five other medical practitioners. These

! reports are from Dr. G.E. Bauer (6 April 1987), Dr. Davld Isaacs (13 April 19871, Dr. Warren Kidson (21 February and 10 April 19871, Dr. D.R. Richmond (13 April 1987) and Dr. Maurlce Richmond (9 January 1987). Simllarly, a medical report from St. Vincent‘s Hospital 1s relled upon. The matters stated in the reports are such that I am satisfied that it would be unwise, ~n vlew o[ the health of the bankrupt, to continue the court appearances.

3 .

The bankrupt's trustco does not presently wish to ask

the bankrupt further questions, but asks that the matter be left

open (by being adjourned generally) so that, if necessary,

questions can be asked regarding matters which arise in the

future. The Deputy Commissioner of Taxation, the substantial

creditor in this matter, also does not wish to ask further questions of the bankrupt at this point. He does, however, seek

answers to questions that were not answered by the bankrupt

during the earlier parts of the public examination. When the

bankrupt refhsed to answer various questions put to him on those

occasions he was directed to do so. He refused to answer them

pending a challenge to my rulings that he should do so.

The Deputy Commissioner by his Counsel has offered to put the questions in writing and to invite the bankrupt to give his answers In writing, the bankrupt returning to the witness box only to depose formally to his answers. I must say, having considered again the questions which appear to be outstanding, in the light of the manner in which the previous hearings of the matter proceeded, that I think it unlikely that the issue would be resolved so simply and that I think that the effect of adopting the course suggested would simply be that the public examination would remain.

In my view, in the light o E the medical evidence, the

order which I should make 1s that the bankrupt's examination be now concluded, rather than adjourned generally. It was suggested

that I f I were to adopt that course, the public examination could

not then be resumed, even if the bankrupt's health were to

lmprove and 1f new matters justify that course were to appear. I

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am not myself completely satisfied that the terms of s.69 are such that as a matter of law a second public examination may not be required, although it may be that provisions such as

s.l50(l)(a) should lead to that conclusion.

In any event, however, the Court has power under s.37(1)

to rescind an order concluding a public examination if

circumstances there appearing were to warrant it.

I phould note that it would be possible for an

examination of the bankrupt to'be held under s.81 of the Act. As

\ is the case with a public examination under s . 6 9 , the Act

provides that both the trustee in bankruptcy and creditors can

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take part in such an examination. It is probable, however, that

in an examination under s.81, the bankrupt is entitled to rely on

the privilege against self-incrimination whereas, in an

examination under s.69, he is not.

In the result I am minded to order that the public

examination of the bankrupt be concluded, and	I shall now do
so.

I certify that this and the preceding 3

pages are a true copy o € the

I	Reasons for Judgment herein of his Honour M r . Justice Jackson
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Associate k-
Dated: 6 May 1987