Re Munro, D.C. Ex parte Australia and New Zealand Banking Group Ltd

[1993] FCA 509

.S. \SUDGMENT No. ........ ........ .. .....I.-- 509 1'993

IN THE FEDERAL COURT OF AUSTRALIA	)
1 No VP 1541 of 1992
VICTORIA DISTRICT REGISTRY	1 1

0 -

(Judgment Debtor)

AUSTRALIA h NEW ZEALAND
RANKING GROUP LIMITED

jA.C.N. 005 357 5221

(Judgment Creditor)

Corm:  Ryan J

Place: Melbourne

W:  21 April 1993

EX TEMPORE REASONS FOR JUDGMENT ON APPLICATION

FOR LEAVE TO AWEND GROUNDS OF OBJECTION AND FOR AN ADJOURNMENT

Rvan J: On 14 April 1993 I gave leave to the petitioning

.

creditor, the Australia and New Zealand Banking Group Limited, ("the Bank") to amend its petition. I also ordered that the Bank file and serve, by 15 April 1993, an affidavit of discovery. That order was complied with, but, because he had been on vacation, the solicitor for the debtor was unable to inspect the documents until about noon yesterday. Leave is sought on behalf of the debtor to amend his grounds of objection to include the following additional paragraph:

application for leave to amend his grounds of objection and for	In an affidavit, sworn 20 April 1993, in support of the
an adjournment of the petition, the debtor's solicitor, Hr Neville Cousins, has sworn that he has been unable in the time available to obtain copies of the documents which he inspected yesterday. That affidavit also contains the following paragraph:

"The bankruptcy proceedings constitute an abuse of process in that the judgment credrtor is seekrng to obtain a collateral advantage and is not motivated by commercial probity in the prosecution of the proceedings."

"15. Further, I have this day received instructions from the judgment debtor to cause to be issued subpoenas to give evidence at the hearing of the petition for the following persons:

John Lewis Davies, ANZ Manager,
Russell Rechner, ANZ Retail Manager,
Ken Stapleton, ANZ Cheltenham,
Stan Lancaster, ANZ senior Corporate Solicitor
retired,
Brenton May, ANZ,
David L. Christie, ANZ Echuca,
David Stannard, Chartered Accountant,

Richard Milne Lightfoot,

- Michael Gaylard."

There is no indication at all, either in the affidavit or in what has been said from the Bar table by Mr Phillip Ginnane, who now appears as Counsel for the debtor, of any circumstances which could support the proposed ground of abuse of process or ulterior

purpose. high responsibility on Counsel required to formulate particulars Mr Ginnane very properly acknowledged that there is a	of an allegation of that kind, and was understandably reluctant
to essay such a formulation in view of the fact that he had only been retained onbehalf of the debtor during yesterday afternoon.
However, the debtor is a legal practitioner and has had ample time in the past week to arrange for another solicitor and Counsel in place of M r McIntosh, who appeared for him on the last occasion, to mount a case of abuse of process or ulterior purpose if one could have been made out. As well, no proposal has been

made for payment of the costs of the adjournment.

By a further affidavit sworn today, the debtor's solicitor has indicated additional grounds of opposition which the debtor seeks to raise. Those grounds all go to matters arising from the form and terms of the bankruptcy notice, and do not require for their resolution the consideration of extrinsic evidence or the examination of witnesses. The Bank does not oppose the debtor's having leave to advance them at this stage.

For these reasons, the adjournment and leave to allege abuse of process are refused. There will be leave to amend the grounds of objection to include the grounds set out in paragraph 5 of M r Cousins' affidavit sworn 21 April 1993. I shall stand this matter down to deal with other matters in the list, and I shall resume it as soon as practicable.

I certify that this and the preceding two (2) pages are

a true copy of the reasons

for judgment of his Honour

Mr Justice Ryan

Associate: &[<l I;) Kk.Cf

Date:  ?IL-~CC? 17c13

Solicitor for the debtor:	Barbour Arnold & Cousins
Counsel for the debtor:	Mr P Ginnane
Solicitor for the creditor:	Corrs
Counsel for the creditor:	Mx T J McLean