Re Roger Gregory Matson

[1980] FCA 214

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IN THE FEDERAL COURT OF AUSTRALIA )

DIVISION	GENERAL	!	r
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BANKRUPTCY DISTRICT OF THE STATE )No. N.S.W.	780 of 1977
OF NEW SOUTH WALES AND THE

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AUSTRALIAN CAPITAL TERRITORY 1

GREGORY MATSON ROGER RE:

PARTE: EX OFFICIAL RECEIVER

REASONS FOR JUDGMENT

Iq 1980 LOCKHART J .'3

I give leave to the applicant, the Official Receiver

for the Bankruptcy District for the State of New South Wales

and the Australian Capital Territory to file in Court, returnable

instanter, an application by the Official Receiver for an order

that an undischarged bankrupt, Roger Gregory Matson, be produced

to this Court by the Governor of the Central Industrial Prison

of New South Wales on Monday next, 22 September 1980., at 12.00

noon. The 0fficial"Receiver applies today, ex parte, for an order in the terms to which I have referred. The bankrupt has

applied to this Court for an order of discharge from his

bankruptcy. The application is set down for hearing	on Monday
next at 12.00 noon.

The application for an order that the bankrupt be

produced to this Court is made by the Official Receiver upon the

ground that it is, if not necessary, certainly desirable that

the bankrupt be here to presecute his application. I am informed

by the solicitor for the Official Receiver that the bankrupt has

indicated that he wishes to	be in Court when his application for
discharge is heard.'

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It was submitted that a possible source of

jurisdiction of this Court to order the production of the

bankrupt from the custody of the Governor of the Central

Industrial Prison of New South Wales is S. 44 of the Prisons

- Act 1952 of the State of New South Wales.

Plainly that cannot be a source of jurisdiction

because it is a section of an Act passed by the New South

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Wales Parliament which has no competence to confer-$ower on this Court.

Although the matter has not been debated at any length

and the question is not an entirely easy one, in my view there

is power in this Court to make the order sought.

Section 23 of the Federal Court o f Australia Act 1976

provides that this Court has power, in relation to matters in

which it has jurisdiction, to make orders of such kinds,

including interlocutory orders, as the Court thinks fit. As

this Court has undoubted power to hear an application for

discharge of a bankrupt under the Bankruptcy Act, in my view

S . 23 may be relied upon as a source of power to make the order

sought, so that the bankrupt can be before the Court not only

to prosecute his application for discharge; but so that he may

be here- to answer any questions that may be put to him by

the Official Receiver	or any creditor who may appear,	or the
Court itself.

An independent head of power is S . 30 of the Bankruptcy

- Act 1966 which provides, so far as relevant, that the Court may

make such orders as it considers necessary for the purpose of

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carrying out or giving effect to the Act in any case of

bankruptcy - see S . 30 (1) (b). Order 33 R. 14 of the

Federal Court Rules has a bearing on the matter as it provides

that a party requiring the production of a prisoner from lawful

custody to give evidence in proceedings before the Court shall

move for an order to that effect, and that the motion shall be

made ex parte. The Rule also provides that the motion shall be

supported by an affidavit showing the person in whoke custody

the prisoner is held and the reasons for which the proceedings

and attendance are required. --

The Rule provides that the appropriate order shall be

in accordance with form 46 in the first schedule to the Rules.

Although there is no affidavit in support of this application

I shall dispense with compliance with the Rules	in that respect
in all the circumstances.

Accordingly, the order of the Court is that Roger

Gregory Matson, a prisoner said to be confined in the prison

known as the Central Industrial Prison of the State of New South

Wales be produced to this Court by the Governor of the said

prison under secure conduct on 22 September 1980 at the hour

of 12 noon and so on from day to day until his attendance is no

longer required by this Court in connection with the

application for discharge from bankruptcy that has been

made by Roger Gregory Matson.