Re Jacka, J.N. v Ex parte Jacka, J.N - [1986] FCA 248

Re: JOY NAOMI JACKA
Ex Parte: THE ABOVE
ESTATE No. 781 OF 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Spender J.

CATCHWORDS

Bankruptcy - Public Examination - Whether Bankrupt has a right or entitlement to put questions to a witness summoned under s.81 of the Bankruptcy Act.

Bankruptcy Act, 1966

Re Beall; Ex parte Beall (1894) 2 Q.B. 135.

Re Csidei; Ex parte Andrew (1979) 39 F.L.R. 387

Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106

HEARING

BRISBANE

#DATE 28:5:1986

For the Official Trustee - Mr. F. Clair, instructed by Messrs. McLaughlin Gordon & Lennon.

For the Bankrupt - Mr.J.A. logan, instructed by Messrs. Primrose, Couper, Cronin & Rudkin.

ORDER

Answer the question referred as follows:

Question: Does the bankrupt have a right or entitlement to

put questions to a witness summonsed to give evidence pursuant to the provisions of Section 81 of the Bankruptcy Act?

Answer: No.

JUDGE1

Pursuant to r.119 of the Bankruptcy Rules, the Deputy Registrar in Bankruptcy has submitted the following question which he seeks to have determined by the Court:

"Does the bankrupt have a right or entitlement to put questions to a witness summonsed to give evidence pursuant to the provisions of Section 81 of the Bankruptcy Act?"

In my opinion, the answer is "No".

It is necessary to set out s.81 of the Bankruptcy Act 1966, in full.

"81(1) The Court or the Registrar may, on the application of a creditor who has proved his debt and on such terms as to costs as the Court or the Registrar thinks fit to impose, or on the application of the Official Receiver or the trustee, at any time summon -

(a) the bankrupt or the spouse of the bankrupt; or

(b) a person who is known or suspected to have in his possession any of the property of the bankrupt, or is supposed to be indebted to the bankrupt or to be able to give information concerning the bankrupt or his trade dealings, property or affairs,

to attend, on a date and at a time and place fixed in the summons, before the Court or the Registrar or, if the Court or the Registrar thinks fit, before a magistrate, to give evidence concerning, and produce any books (whether or not in existence at the time the bankrupt became a bankrupt) in his custody or power relating to, the bankrupt or his trade dealings, property or affairs.

(2) An examination under this section shall be held in public.

(3) The Court, the Registrar or a magistrate may at any time adjourn the examination of a person under this section either to a fixed date or generally, or conclude the examination.

(4) The Registrar or a magistrate may at any time adjourn the examination of a person under this section for further hearing before the Court.

(5) Where the examination is adjourned by the Registrar or a magistrate for further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1986] FCA 248
Decision Date: 28 MAY 1986

CaseChat Overview and Summary

The case before the court was an application by a bankrupt, J.N. Jacka, for a declaration that he had a right to put questions to a witness who had been summoned under Section 81 of the Bankruptcy Act. The application was made during a public examination of the bankrupt's affairs, and the respondent to the application was the trustee in bankruptcy, who had called for the examination. The court was required to determine whether the bankrupt had the right to question the witness summoned under the Act.

The primary legal issue before the court was whether a bankrupt had a right or entitlement to put questions to a witness summoned under Section 81 of the Bankruptcy Act during a public examination. The bankrupt argued that the statutory provisions did not exclude the bankrupt from having the right to question the witness. The court considered the relevant statutory provisions and case law to determine whether the bankrupt had such a right.

The court found that the statutory provisions did not explicitly grant the bankrupt the right to question the witness summoned under Section 81 of the Bankruptcy Act. The court held that the statutory scheme did not exclude the bankrupt from having the right to question the witness, but it did not necessarily mean that such a right existed. The court considered the purpose of the public examination and the role of the bankrupt in such an examination. The court concluded that the bankrupt did not have a right or entitlement to put questions to the witness summoned under Section 81 of the Bankruptcy Act.

The court made a declaration that the bankrupt did not have a right or entitlement to put questions to a witness summoned to give evidence pursuant to the provisions of Section 81 of the Bankruptcy Act. The court's decision was based on the statutory provisions and the purpose of the public examination. The court's decision was binding on the parties and had the effect of clarifying the rights of a bankrupt in a public examination under the Bankruptcy Act.

Orders

Orders of the court

Answer the question referred as follows:

Question: Does the bankrupt have a right or entitlement to

put questions to a witness summonsed to give evidence pursuant to the provisions of Section 81 of the Bankruptcy Act?

Answer: No.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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