Re Edelsten, G.W. v Donnelly, M.C.

[1988] FCA 229

JUDGMENT No. z . k % . . L 1 -

CATCHWORDS

BANKRUPTCY - spouse of bankrupt - examnation under	6.81 - evidence - proceedings in Family Court -
prohibition publication of proceedlngs -
prohibition ot infringed by examination before
Registrar
Bankruptcy Act 1966, 6-81 Family Law Act 1975, S.121(1); s.12(9)
R v Howe (1978) 19 SASR 3 0 3
i n t h c a r r i a g e of Batman and Patterson

(1982) 51 FLR 263

GEOIIREY WALTER	EDCLSTEN	. Bankrupt
MX	C E R I ~ P R E R	DONHC€ET

ar trurtoe of the bankrupt
ertete of Geoffrey Walter

Edelrten - . Applicant

GEOTIREY WALTER CDELSTEN . F i r s t Respondent

HCALTR INBUIUNCC CO MHISSION . Second Respondent

m f i o U C R O? TAXATION . Third Respondent . Third Party

NO. W497 of 1988

Sydney

Norling J.
11 nay 1988

. ' . . .

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1

BANKRUPTC Y DISTRICT OF THE STATE ) No. W497 of 1988

AUSTRALIAN CA PITAL TERRITORY )

re:	GEOFFREY	WALTER	DELSTEN
Bankrupt

MAX CHRISTOPHER DONNELLY as
trustee of the bankrupt estate

Of GEOFFREY WALTER EDELSTEN

Applicant

and GEOFFREY WALTER EDELSTEN

First Respondent

and HEALTH INSURANCE OMMISSION

Second Respondent

and DEPUTY COMMISSIONER OF TAXATION

Third Respondent

LEANNE and ED LSTEN

Third Party

MINUTE OF ORDER

JUDGE U X I N G ORDER : Morling J.

DATE or ORDER : 11 May 988

WHERE W E : Sydney

THE COURT omgms AS roLLows:

1.      Tho oxamination of Leanne Edolsten under 6.81 of

the Bankruptcy Act 1966 be adjourned for further

hoaring before the Registrar on a date to be

fixed.

NOTE:  Settlement and entry of orders is dealt

with in Order	36 of the Federal Court
Rules.

IN THE FEDERAL COURT	OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE STATE	)	No. W497 of 1988

) A )

re :	GEOFFREY	WALTER	EDELSTEN
Bankrupt

HAX CHRISTOPHER DONNELLY as

trustee of the bankrupt estate

Of GEOFFREY WALTER EDELSTEN

Applicant

and GEOFFREY WALTER EDELSTEN

First Respondent

and HEALTH INSURANCE OHHISSION

Second Respondent

and DEPUTY COHHISSIONER OF TAXATION

Third Respondent

LEANNE and ED LSTEN

Third Party

MORLING J. 11 May 1988

REASONS FOR JUDGHENT

Dr Geoffrey Edelsten's estate is being administered in

bankruptcy. Eis wife, Mrs Leanne Edelsten, has been summoned

purruant to 6.81 of the Bankruptcy Act 1966 to attend before the

Registrar to give evidence concerning the bankrupt or his trade

dealings, property or affairs. In the course of her examination

before the Registrar a question has arisen as to whether

questions which might be put to Hrs Edclsten may require her to

give answerr which might expose her	to the risk of committing an
offence under 8.121 of the Family Law Act 1975, sub-sec.	(1) of
which provides ar follows:

"121. (1) A person who publishes in a newspaper

or periodical publicatlon or by radio broadcast or

television, or otherwise disseminates to the public

or to a section of the publlc by any means, any

account of any proceedings, or of any part of any

proceedings, under this Act, that identifies - :

(a) a party to the proceedings;

( b ) a person who is related to, or

associated with, a party to the

proceedings or is, or is alleged to be,

in any other way concerned in the

matter to which the proceedings relate;

or

(c) a witness in the proceedings,

is guilty of an offence punishable, upon

conviction -"

(d) in the case of a person not being a

body corporate - by a fine not

exceeding $5,000 or imprisonment for a
period not exceeding one year, or both;

or

(e)	in the case of a person being a body
corporate - by a fine not exceeding $10,000."

In the course of the proceedings before the Registrar

senior counrel for the Deputy Commissioner of Taxation indicated

intonded to quertion Hrs Edelston about proceedings to which sho and her husband are parties in the Famlly Court.

that h	.
According to the Doputy Commissioner's counsel, the substance	of

the lino of questioning seeks generally to explore whether there

eXi6tm any proporal for property settlement, the nature of any

proporod proporty settlement with the bankrupt and the

circummtancos thoreof, with the ultimate aim, inter alia, of

determining whether there has been or is likely to be any

fraudulent dirposition of property by the bankrupt in terms	of
8.121 of the Bankruptcy Act.

when the question arose as to whether firs Edelsten’s

answers to questions asked of her mlght place her in breach	of
s.121(1)	the Deputy Commissioner’s counsel submitted to the
Registrar that Mrs Edelsten would be protected	i f her evldence

were taken in camera. The Registrar entertained some doubt

whether he had power to take evidence in camera because of the

provisions of s.81(2) of the Bankruptcy Act 1966, which provldes that an examination under 8.81 shall be held in public. In vlew of the possible prejudice to Mrs Edelsten and what he saw as the

apparent limitation on his power to order that the examination be conducted in camera, the Registrar adjourned the examination for

further hearing before the Court under s.81(4) of the Bankruptcy

Act - and made a report to the Court under s.81(5).

Tho first question the Court has been asked to determine

is whother answors given by Mrs Edelsten to questions asked of

her at a public hearing before the Registrar might expose her to
the risk of prosocution for an offence against s.lZl(l) of the

Family Law Act. Sho would only be exposed to that risk if her

answers could be said to be a dissemination by her to the public,

or a roction of the public, of any part of the proceedings to

which sho ir a party in the Family Law Court.

Section 121(1) identifies a number of ways in which a person may disreminate to the public an account of proceedings

under the Family Law Act. These include publication In a

newspapor or poriodical publication and publication by radio

broadcast or tolevision. It was submitted by counsel for the

Deputy Commisrioner that the words “or otherwise disseminates to

the public" in s.121(1) should be read e ~ u s d e m generis with the

words which precede it, with the result that the sub-section

places a	restriction only upon publication rn the media. This
submission loses much of its force	by reason of the lnclusron in

8.121 of sub-s.(9), which provides that the preceding provisions

of the section do not apply to several forms of communlcation not

specifically referred to in S. 121(1). None of these forms are

methods of communication in or through the media. The draftsman
of the section must have thought that, absent some provision such
as is found in s.121(9), those forms of communication would have

been caught by s.121(1).

It seems probable that the legislature would have

intended that the restriction on publication of proceedings in tho Family Court should extend, for example, to a document dirreminated to a section of the public by post. It can hardly have been intended that such a document identifying a party to proceedings under the Family Law Act and giving an account of them should not be caught by the restriction on publication for

which	s.121(1) provides. Yet publication and disseminatlon of
such a documont would not be caught by	S. 121(1) if the ejusdem

generis rulo is applied to its construction. The ejusdem

generir rule is a rule of construction designed to assist rn

ascertaining the intention of the legislature: The King v Regos

and Morgan (1947)	74 CLR 613 at 622 per Latham	C.J., and 1s to be
applied with caution: Craies	on Statute Law, 7th edn p.181.	I

do not think the rule should be applied in the interpretation of
S.l21(1).

*. .

5.

However, that is not to say that s.121(1) has any

application to answers given	by	a	witness who 1s examined by
counsel for	a creditor under	s.81 of the Bankruptcy Act.	I

think it is clear that what s.121(1) proscribes is the voluntary

dissemination to the public or to	a section of the public	of any
account of proceedings under the Family Law Act.	A	witness
summoned under	6.81	of the Bankruptcy Act must answer all

question8 allowed by the Court or the Registrar - see. 81(11).

In my opinion it would be straining the meaning of the word

"disseminates" to apply it to the responses of a witness who,

under compulsion of law, answers questions put to him or her in	a
public examination under S .	81.

Quite apart from the involuntary nature of such answers,

I do not think a witnoss who gives such answers disseminates to

"the public" the information contained in the answers. The
publication, if it be regarded as such, is to the Court. Cf. - In
the Marriage of T. 6 T. (1984) PLC 91-588 where a Full Court of
tho Family Court of Australia held that the transmission of

documents to the Attornoy-General or to responsible officers in

his Dopartment was not a publication to the public or to a

section of the public of the information contained in the

documents.

Counsel for the Deputy Commissioner submitted, in my

view correctly, that in the context of s.121 "disseminates to the public" should be taken as a reference to widespread communic- ation with the aim of reaching a wide audience. It cannot have

been intended by the legislature that the restriction on

dissemination should apply, for example, to conversatlons between

a party to Family Court proceedings and a close personal friend.

Prior to amendments made to the Family Law Act in 1983,

s.121(1) provided as follows:

"121. (1) A person shall not print or publish -

(a) any statement or report that proceed-

ings have been instituted in the Family
Court or in another court exerclsing

jurisdiction under this Act; or

( b )	any account of evidence In proceedlngs instituted in the Family Court or in another court having jurisdiction under
this Act, or any other account or

particulars of any such proceedings."

Section 121(1), in its old form, was considered by	a Full Court
of the Family Court of WOStern Australia in	In the Marriage of

Batman and Patterson (1981) 51 FLR 263. It was there held that

the use of pleadings, affidavits and transcript of evldence In

Family Court proceedings in proceedings under the Bankruptcy Act

did not amount to publishing that material within the meaning of

s.l21(1) of the Act in its then form. This decislon IS

consistent with the view I take of the Act in its present form.

Even if I had been of the view that s.121( 1 ) of the

Family Law Act applies to answers given by a witness examlned

under s.81 of the Bankruptcy Act, I would have held that Mrs

Edelsten would be protected by the provislons	of s.l21(9)(a) of
the Family Law Act, which provides	as follows:

"121. (9) The preceding provisions of thls

section do not apply to or in relation to -

(a) the communication, to persons concerned

in proceedings in any court, of any

pleading, transcript of evidence or

other document for use	in connection
with those proceedings."

Section 121(9)(a) was substituted in 1983 for the former

s.l21(5)(a) which, in relevant respects, was in almost identical

terms. In - R. v Howe (1978) 19 SASR 303 the Court of Crrminal -

Appeal of South Australia held that the former s.l21(5)!a)

operated so as to exclude from the operation of the former

s.lZl(1) (which was	in terms not dissimilar to s.121(1) of the
Family Law Act in its present form), a	reference by counsel to

evidence given in proceedings in the Family Law Court by persons

against whom proceedings were subsequently brought in the

Criminal Court. I respectfully agree with this decision. In

-	Howe, the Court held that the phrase "persons concerned in the
proceedings" in s.l21(5)(a) were apt to include, inter allos, judge, counsel, reporters and any members of the public present in court. Section 121(9)(a) was inserted into the Family Law Act - after Howe's Case was decided. I think it is plain that the legislature must have intended that s.l21(9)(a) should give the

same immunity from prosecution as was given by the almost

identical provision which it replaced. It therefore seems to me

that if answers given by Mrs Edelsten disclose something that

appears in the transcript	in the Family Court, she would be
protected by 8. 121(9)(a).

Counsel for Mrs Edelsten submitted that it would be

appropriate for her further evidence before the Registrar to be

taken in camera. He submitted that notwithstanding that	s . 8 1 ( 2 )
of	the Bankruptcy Act provides that an examination under the
section shall be held	in public, s . 1 7 ( 4 ) of the Federal Court of
Australia Act would authorize	a judge of the court to conduct an
examination under s.81	in camera. He relied upon the fact that
s . 1 7 ( 4 )	was enacted after s.81(2) of the Bankruptcy Act, which
has been included in that section of the Act since	i t was first

enacted in 1966. I think there is considerable substance ln

this submission but I do not find it necessary to rule upon it.

It is the policy of the Bankruptcy Act that examinations

under 6.81 should be held in public. It must often happen that

a bankrupt's spouse is able to give information concerning the

bankrupt or his property or affairs. It will sometimes be the
case that a bankrupt's property or affairs have been the sublect

of an agreement under 6.86 or 6.87 of the Family Law Act. Since

6.121 of that Act has no application to answers given by a

witness suauoned to give evidence under s.81 of the Bankruptcy

- Act, I can see no reason why the 8.81 examination should not be

held in public, as contemplated by s.81( 2 1. It was not

suggested in argument that there was any reason for Mrs

Edelsten'l examination to be conducted in camera other than her

apprehension that she might contravene s.121(1) when givlng her

answers. Since there is no risk of such a contravention, there

is no occasion for her evidence to be given in camera.

I adjourn the examination of Mrs Edelsten for further

hearing before the Registrar on a date to be fixed.

I certify that this and the eight ( 8 )

preceding pages are a true copy of the

Reasons for Judgment of his Honour

M C Justice Morling.

Associate:

The Bankrupt (First Respondent) appeared in person.

Counsel for applicant,

flax Christopher Donnelly:  MC. S.G. Finch

instructed by:  Isenberg, Spedding L Player

Counsel for second respondent: Mr. M.A. Pembroke

instructed by:  Ellison Minter

Counrel for Third Respondent: Mr. D.B. McGovern

instructed by:  Australian Government
Solicitor

Counsel for Third Party: Mr. P.M. Donohue

instructed by:  Photlos S ater & CO

Date of Hearinq:	8 April 1988
Date of Judgment:	11 May 1988