Re Kenyon, Bradford Charles Ex Parte St George Partnership Banking Ltd (formerly known as Barclays Bank Australia Ltd)

[1997] FCA 267

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )                 
GENERAL DIVISION                 )
BANKRUPTCY DISTRICT OF THE       )    No. NB 2224 of 1995
STATE OF NEW SOUTH WALES             )

RE:               BRADFORD CHARLES KENYON
  (Debtor)

EX PARTE:         ST GEORGE PARTNERSHIP BANKING
  LIMITED (formerly known as
  BARCLAYS BANK AUSTRALIA LIMITED)
  (Creditor)

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       25 MARCH 1997

MINUTE OF ORDERS

The Court orders that the application be dismissed.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )                 
GENERAL DIVISION                 )
BANKRUPTCY DISTRICT OF THE       )    No. NB 2224 of 1995
STATE OF NEW SOUTH WALES             )

RE:               BRADFORD CHARLES KENYON
  (Debtor)

EX PARTE:         ST GEORGE PARTNERSHIP BANKING
  LIMITED (formerly known as
  BARCLAYS BANK AUSTRALIA LIMITED)
  (Creditor)

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       25 MARCH 1997

REASONS FOR JUDGMENT

TAMBERLIN J:

An application has been made on behalf of the Trustee of the estate of the bankrupt to punish the bankrupt for contempt pursuant to s 54(3) of the Bankruptcy Act 1966.

I have been referred to a number of affidavits and have heard arguments on the question from Mr Joseph appearing on behalf of the Trustee.

There has been no compliance with the requirement of O 40 of the Federal Court Rules relating to punishment for contempt and in particular there has been no service of a statement of charge on the bankrupt specifying the details of the contempt which has been alleged.

If the Federal Court Rules apply the failure to comply is fatal.  However, it is not necessary for me to decide that matter because even if, as Mr Joseph has contended, the requirements of r 176(1) of the Federal Bankruptcy Rules are applicable, I am satisfied that there has been no compliance. That sub-rule requires that an application for punishment of a person for contempt of court shall specify the contempt of which the person is alleged to be guilty and shall be served personally.

There is no doubt that the application has been served personally on the bankrupt but I am not satisfied that it specifies the contempt of which the person is alleged to be guilty. Section 54(3) of the Bankruptcy Act has been repealed.
However, reliance is placed on the application of s 8 of the Acts Interpretation Act 1901 in order to support the proposition that the provisions of s 54(3) apply with respect to a contempt in respect of which proceedings have been commenced before 16 December 1996 as in the present case. The application was taken out three days before that date.

However, whether or not the requirements of s 54(3) are continued in force, there has been no compliance with the requirements of r 176 in respect to the specification of the contempt of which the bankrupt is alleged to be guilty. As has recently been stated by the High Court in Witham v Holloway (1995) 185 CLR 525, a contempt charge is in the nature of a criminal allegation and must be proved beyond reasonable doubt. In the present case I do not think that the contempt has either been specified or proven beyond reasonable doubt.

Accordingly, I dismiss the application for punishment for contempt which has been filed in the court.  I do this notwithstanding a submission that the appropriate course would be to adjourn the matter so that additional evidence and an amended application might be served on the bankrupt.  In the circumstances having regard to the seriousness of the matter, I am not prepared to adjourn the matter.

A question has been raised in relation to costs.  Mr Joseph has forcefully put a submission that these proceedings have been brought bona fide by the trustee. The proceedings are an attempt to procure compliance from the bankrupt in relation to the filing of the statement of affairs so as to enable the orderly administration of the estate. The application asks that the cost of the application be paid out of the assets of the estate of Bradford Charles Kenyon. 

I am satisfied that Mr Kenyon has been personally served with a copy of the application and of the supporting documents.  He has failed to appear before the court today in order to contest the matter.  Notwithstanding his non-appearance, however, I consider in the circumstances there should be no order as to costs. They should not be awarded in favour of the bankrupt because of the history which is revealed in the affidavits presented to the court. On the other hand I am somewhat concerned that proceedings of this gravity should be brought before the court in circumstances where the evidence is clearly not sufficient to sustain it and for this reason I am not prepared to order that the cost of the application be paid out of the assets of the estate of the bankrupt.

Accordingly I dismiss the application for contempt and I make no order as to costs.

I certify that this and
the preceding three (3)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  18 April 1997

Solicitor for Applicant:              Kemp Strang & Chippindall

Date of Hearing:               25 March 1997

Date Judgment Delivered:              25 March 1997