Re Miller, Gary Ex Parte The Official Trustee in Bankruptcy

[1995] FCA 1118

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )  No. NB 1414 of 1995
GENERAL DIVISION  )

Re:       GARY MILLER
  Bankrupt

Ex parte:       THE OFFICIAL TRUSTEE IN
  BANKRUPTCY

REASONS FOR JUDGMENT

EINFELD J                    SYDNEY              23 OCTOBER 1995

Felicity May Edwards of 29 Edgecliff Road, Bondi Junction applies for the striking out or discharge of a summons issued to her on 29 September by a Deputy Registrar in Bankruptcy purporting to have been issued under section 81(1) of the Bankruptcy Act to attend to give evidence before a Registrar today "in connection with your affairs".  When the matter came before the Deputy Registrar it was intimated by the solicitor for the proposed examinee that he wished to contest the validity of the summons and accordingly he subsequently sought and obtained an adjournment of the examination to apply to the Court for the order now sought.  It is conceded that Ms Edwards is an examinable person pursuant to section 81(1) and section 5 of the Bankruptcy Act and that she may be examined in relation to what section 81 describes as the relevant person which is the bankrupt. 

The summons in question was issued following an application made to the Registrar on 25 August 1995.  The application was supported by an affidavit as required by rule 129(1) of the Bankruptcy Rules.  That regulation provides relevantly that an application for the issue of a summons must be in writing, and must identify the person whom it is sought to examine and the bankruptcy in relation to which it is sought to examine the person.  It must be supported by an affidavit setting out the inquiries that have been made concerning the subject matter of the proposed examination, the details of the request made to the person to provide the required information and the circumstances of any refusal or failure of the person to co-operate in complying with the request.

The application did not in terms identify the bankruptcy in relation to which it is sought to examine Ms Edwards although in the heading it indicated that the bankruptcy in discussion was that of Gary Miller.  It seems to me desirable that forms issued to members of the public should satisfy the natural curiosity and concerns of the person upon whom it is served and not the lawyers who have caused the documents to issue.  A person receiving a summons should clearly understand what is being sought because there are serious penalties associated with a failure to comply with it.

Of course, the examinee does not receive the application for the issue of a summons or the affidavit so that it might have been clear to the Registrar which bankruptcy was concerned in this particular application.  However, the affidavit makes no effort to set out the inquiries that have been made concerning the subject matter which was sought to be examined.  It does not state whether there was any request made to Ms Edwards to provide the required information voluntarily, let alone any details of the request, and it therefore does not contain any information at all about any refusal or failure of the person to co-operate.

It is perfectly obvious that the rule was set up in order to avoid an examination in court if possible by obtaining the information in advance without having to trouble the Court or the Registry to provide hearing time for this purpose.  The affidavit in support of this summons says nothing at all about any contact between the trustee who was the applicant for the summons and the proposed examinee.  It merely says that the trustee wanted to make inquiries concerning the circumstances of a transfer to the examinee of the bankrupt's half interest in a property at Edgecliff Road, Bondi Junction.  The affidavit also makes the statement:

Until the trustee has had the opportunity of obtaining sworn evidence in relation to the matter he will be unable to determine whether the transfer of the bankrupt's half interest to his wife is void as against the trustee.

This is simply incorrect.  The trustee might have been able to obtain the information directly from Ms Edwards herself without sworn evidence in order to determine that fact but no contact appears to have been made or at any rate none is deposed to in
the affidavit.  On that ground alone the summons should not have been issued.  But that is not the primary ground upon which the solicitor for the examinee seeks to obtain this relief.  He says that the summons is ultra vires because it seeks to examine Ms Edwards "in connection with" her own affairs.

Rule 129A of the Bankruptcy Rules provides that a section 81 summons on a person such as Ms Edwards must be in accordance with form 49, be signed and stamped by the Registrar, and be served personally on the examinee.    This summons clearly was signed and stamped by the Registrar and was served personally and in the most unselective way is in the form of form 49.  However, it is clear that form 49 was intended to be read somewhat more than automatically.  The power given under section 81 is to examine the bankrupt in relation to his or her affairs, and to examine other examinable people in relation to the affairs of the bankrupt.  This particular summons sought to examine Ms Edwards about her own affairs which her solicitor quite correctly describes as two wide and oppressive.

It is perfectly clear, and is not denied, that Ms Edwards could legitimately have been summonsed to give evidence and be interrogated about Mr Miller's affairs provided, of course, that the summons was obtained by an application and an affidavit complying with rule 129.  However, this particular summons has been issued against Ms Edwards and on its face seeks to interrogate her in relation to her own affairs, not Mr Miller's.  It is not adequate, as was sought to be argued for the Trustee,
that the summons itself is headed as Re Garry Miller Bankrupt.  A member of the public receiving such a document would not be likely to understand that a summons which says that the person concerned must attend to give evidence in connection with her own affairs really meant that it was the bankrupt's affairs or her knowledge of the bankrupt's affairs that was to be investigated.  That would not be a fair way to read the summons in the hand of a person who was not familiar with the documentation.  I would not read it that way.

In my view, the summons should not have been issued by the Registrar for two reasons:  one, because the affidavit in support of the application was not in accordance with rule 129, and, two, because the form used was not in accordance with the requirements of section 81(1) rule 129A and form 49 as these legislative enactments are intended to apply to persons other than bankrupts.  For those reasons I strike out the summons and order that the Trustee pay the examinee's costs.