Re Piccardi, K. v Ex parte Grivas, G

[1987] FCA 416

C A T C H W O R D S

BANRRUPTCY - Review of action of Registrar in Bankruptcy - signing and sealing of sequestration order - application for rescission or suspension of sequestration order.

PRACTICE AND PROCEDURE - Practice of Registry when such application is made as directed - resolution of Federal Court Judges.

Bankruptcy Act 1966: ss 14(5), 30.

Re Kurt and Gerlinde PICCARDI

EX parte George Gregory GRIVAS

W 1607 of 1986

I	Coram: Einfeld J.
Sydney
I	24 July 1987

!

I	IN TEE FEDERAL COURT OF AUSTEULIA	1
)
N E W SOUTH WALES DISTRICT REGISTRY	1 No. W 1607 of 1986
i	1

DIVISION BANKRUPTCY 1

i

KURT Re AND GERLINDE PICCARDI

Ex parte GEORGE GREGORY GRIVAS

I	I
I I

l	coram:	Einfeld J.
i
I	Delivered:	24 July 1987
i
I
i

MINOTES OF ORDERS

I

i 1 I direct that the applicants file and serve any further

affidavits on which they wish to rely in the applications to

rescind/suspend and annul the sequestration order on or before	4
pm on Thursday 30 July 1987.

I

I	2.	I direct that all creditors seeking to participate in these
l	proceedings file and serve all affidavits on which they intend
I
I
to rely on o r before 4 pm on Thursday 13 August 1987.
3.	I direct that the applicants (the bankrupts) file and serve
issues for trial on or before 4 pm Thursday 27 August 1987.
i
I
4 .	I direct that the applications to rescindfsuspend and annul the
I	sequestration order be listed for directions on 9.30 am on
Thursday 28 August 1987 on which date subpoenas for the
I	production of documents on behalf of all parties are to be made
i	returnable. The parties are to exchange before that time for
I	discussion with me at that directions hearing lists of the witnesses required for cross examination at the hearing.
I	5.	I dlrect that each party serve on each other party an outline of
I	the submissions intended to be advanced at the hearing by not
later than 4 pm on Thursday 3 September 1987. These submissions
are to be supplied to my Associate by not later than 4 pm on
Friday 4 September 1987.
6.	I fix for hearing the applications to rescind/suspend and to
annul the sequestration order during the week commencing Monday,
7 September 1987.
7.	I reserve my decision on and stand over to th completion of the
aforementioned hearing the application to review the signing and
sealing of the sequestration order by the Registrar on 21
January 1987. i

I.

I -.

!	I .
i

I

> :

- 2 -

I .

8. I reserve costs.

9 . I grant liberty to all parties to apply on 48 hours‘ notice to

my Associate and to the other parties.

l	NOTE:	Settlement and entry of orders is dealt with in accordance with
1	-	Order 36 of the Federal Court Rules.
l
l
l l
i
1
\

IN TEE FEDERAL COURT OF AUSTRALIA 1

1

N E W SOUTE WALES DISTRICT REGISTRY 1 No. W 1607 of 1966

)

BANKRUPTCY DIVISION )

Re	KURT AND GERLINDE PICCARDI
Ex parte	GEORGE GREGORY GRIVAS

- C :oram: Einf eld J.

Delivered: 24 July 1987

REASONS FOR JQEGMENT

Followlng upon the judgment orders and directions which I gave on 8 July last, this matter came on for hearing again on Thursday, 23 July 1987. On this occasion the Registrar was represented by a solicitor. I announced to the Court that prior to the hearing the Registrar in

question had contacted me not to discuss the facts of the matter but to

acquaint me with certain matters relating to the existence of Court

procedures of which he correctly suspected I was not aware. These were

that in November 1986 when the sequestratlon order in this matter was

made and in January 1987, when it was signed	and sealed, the practice of
the Registry was that

1. where an application for rescission or suspension of

sequestration orders was filed, the Registry took no action with

respect to the signing and seallng of the sequestration order

untll the Court had decided the matter

\ I

I

! . . - 2 -

2. in March 1987 this practice was varied by resolution of the

Judges of the Federal Court so that where an application for rescission or suspension is filed in Registry, it is now to be

treated as an application to a Judge in chambers to give

appropriate directions concerning the matter, including any

directions about the signing and sealing of the order. r .

The Registry was directed to notify practitioners of this practice and

of the need to make an application to a Judge in chambers. The Registry

was further directed not to delay the signing and sealing of any

sequestration order except for the short time necessary to allow a party

to file an application to rescind or suspend and to see a Judge in

chambers.

At the resumption of the hearing on 23 July, the solicitor representing

the Registrar advised me that the reason why the Registrar signed and

sealed.this order, notwithstanding the Registry's then practice not to

do so when there was an outstanding application to rescind, and .,

notwithstanding the file notes and conversations to which I referred in

my earlier judgment, was that he read the proceedings before Mr. Justice

Jackson as having been concluded by a refusal by his Honour to order the

Registrar not to sign and seal the sequestration order in this case.

That seems to me to be a perfectly plausible explanation, and no party

suggested that it was incorrect or expressed any desire to cross examine

the Registrar on the matter. For the reasons I gave in my remarks on 8

July, I think, though not without some doubt, that hat is not what Mr.

Justice Jackson did or even was asked to do, although I can understand

that the transcript could be read in that way. Sub~ect to one aspect to

which I w i l l come, that	then completes the factual picture which I
otherwise outlined on 8 July.

! .A

- 3 -

.~

. t

The question that now arises is what should flow as a result. It was :

intimated before	me on 23 July that whatever I decide to do on this	~
I .

appllcation for review of the Registrar's action in signing and sealing

the sequestration order, that decision is likely to be appealed by the

unsuccessful party or parties. (It may in fact be an application for

leave to appeal rather than the exercise of a right to appeal.) There

1s no reason at all why that course should not be available, but I do

not think that it needs to be available at this time in these

proceedings. All the parties' rights in this regard will. be preserved

if I ad~ourn this matter and reserve my decision upon it until all the

evidence has been heard on the substantive application to rescind and on

the application to annul the sequestration order. I wlll then decide

the questlon as to whether the application for review should be granted

in the light of the additional evidence that will have emerged by that

time. This 1s for the reason that it seems to me that one matter that

might go to the exercise of the discretion under section 1 4 ( 5 ) of the

Bankruptcy Act as it relates to this matter is vhether there is any

substance to the application under section 37(1) Itself. If the

evidence should reveal that there is no substance to that application,

there might be an additional reason for refusing to review the act of

the Registrar which has been impugned in this case. If on the other

hand there is real substance to the application, that may be a r ason

for setting aside	or quashlng the Registrar's actions.
For those reasons	I now make the following orders and directions:

1. I direct hat he applicants file and serve any further

affidavits on which they wish to rely In the applications to

resclnd/suspend and annul the sequestratlon order n o before 4

pm on Thursday 30 July 1987.

S 1

. a - 4 -

2. T direct that all creditors seeking to participate in these proceedings file and serve all affidavits on which they intend

I

to rely on or before 4 pm on Thursday 13 August 1987.

I I 3. I direct that the applicants (the bankrupts) file and serve

i -

issues for trial on or before 4 pm Thursday 27 August 1987.

I i 4 . I direct that the applications to rescindlsuspend and annul the

I i

I

..

I sequestration order be listed for directions on 9.30 am on

I	Thursday 28 August 1987 on	which	date subpoenas for the
I
i	I

production of documents on behalf of all parties are to be made

I .	,	;
I	.

returnable. The parties are to exchange before that time for

i I . .

i	discussion with me at that directions hearing lists of the
I
I	witnesses required fol cross examination at the hearing.
I

1.

5. I direct that each party serve on each other party an outline of i

i the submissions intended to be advanced at the hearing by not

I later than 4 pm on Thursday 3 September 1987. These submissions are to be supplied to-my Associate by not later than 4 pm on Friday 4 September 1987.

.-

! 6. I fix for hearing the applications to rescind/suspend and to L .

annul the sequestration order during the week commencing Monday.

I 7 September 1987.

7.	I reserve my decision on and stand over to the completion of the	i
I ,
aforementioned hearing the application to revlew the signing and	1.
sealing of the sequestration order by the Registrar on 27 January 1987.
i:

, . _

I .

. . - 5 -

. 1 1

8. I reserve costs.

I I I

L

!

9 . I grant liberty to all parties to apply on 48 hours' notice to

!

my Associate and to the other parties.

1 I

NOTE:

Settlement and entry of orders is dealt with in accordance with

Order 36 of the Federal Court Rules.

i	I
I

7- ,. .

I c- - - 9 -l=--= $

I p-..: I	-	:: 5 s	1
I

1 ;c:-: .i :.;S t i c x w

f -