Re: Rutledge, M.C. v Ex Parte: The Trustee in Bankruptcy

[1989] FCA 307

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION	1.	W841 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN ) ~ISTRICT OF THE STATE OF QUEENSLAND )

RE: MALCOLN CHARLES RUTLEDGE

EX PARTE:  THE TRUSTEE IN BANKRUPTCY

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS 3.

DATE OF ORDER:	7 JUNE 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.   the Registrar's decision to adjourn the examinations be set aside;

NOTE :	Settlement and entry of orders is dealt with in
Rule 124 of the Bankruptcy Rules.

2.   the examinations of Mr and Mrs Rutledge proceed tomorrow, at 10.15 a.m., or at such time as the Registrar finds convenient.

IN THE FEDERAL COURT OF AUSTRALIA	. )
GENERAL DIVISION	1.
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )

RE: MALCOLM CHARLES RUTLEDGE

EX PARTE:  THE TRUSTEE IN BANKRUPTCY

PINCUS 3. 7 JUNE 1989

REASONS FOR JUDGMENT

This is an application to review a decision of Deputy Registrar Allen to adjourn examinations under the Bankruptcy Act 1966. I think the matter may have been explained to me slight-ly differently from the way in which it was explained to the Deputy Registrar, but on the facts as placed before me, there is no justification for adjourning the examinations.

The facts are that M and Mrs Rutledge, the proposed examinees, live at the Gold Coast, in Queensland; from that point of view, the place of examination is suitable to them. Mr Rutledge has informed me that he has desired the examination to be shifted to Sydney so that his 'counsel, who is from Sydney, can appear for him. It is said by Mr Aldridge, appearing for the trustee, and not challenged by the examinees, that there is no

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question of prosecutions having been brought or in prospect. Therefore, counsel for the examinees who appeared in the examinations of Hr and Mrs Rutledge would have, in my experience, quite a limited role. It is true that an examination may, if the Registrar presiding does not perform his functions properly, become oppressive. But I have complete confidence that that is very unlikely to occur before Deputy Registrar Allen, who is perfectly capable of controlling the matter so that Mr and ltrs Rutledge do not suffer any unfair disadvantage.

Mr Rutledge argued it is necessary that counsel appearing for him have the detailed and complicated information which he has, at some considerable expense, imparted to his counsel, Mr Brian Skinner. Mr Rutledge says that it is necessary for counsel appearing for him to have that information because he says that otherwise a proper re-examination cannot be conducted.

It is my opinion that the undertaking given by Mr

Aldridge completely covers that. If, for reasons which would not

seem to me to be very compelling, it. is desired that Mr Rutleclge

or Mrs Rutledge be re-examined, that can be done, under the arrangements proposed, in Sydney. Mr Rutledge can have the advantage, if he sees it as one, and incur the expense, if he thinks it is worthwhile, to have Mr Skinner appear and conduct that re-examination in Sydney.

I reiterate that I cannot see a great deal of practical point in that, because, while it may well be that information in

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addition to that which emerges from Mr ~ldrid~d's questions is relevant to the exercise of the trustee's functions, that information can be supplied, no doubt, otherwise than by oral examination.

There has been ample time to obtain legal representation. It is not necessary that the examination of the witnesses be conducted in the presence of fir Skinner. A just and fair examination could take place in his absence. It could have taken place in the presence of another counsel less fully apprised of the full details of the matter, but fir Rutledge has chosen not to brief another counsel, although many counsel would be available today who would be perfectly capable of fulfilling that role.

In my opinion, on the information placed before me, t:he decision of the Registrar to adjourn the examinations cannot stand, and I set it aside. I direct that the examination of Mr Rutledge, and that of Mrs Rutledge, proceed tomorrow at 10.15, or at such other time as the Registrar may find convenient.

In the circumstances, I do not propose to make an orclet for costs. I think that the application made by Mr Rutledge could well have been bona fide and made under a misapprehension as to what this was all about. He may well have thought that, contrary to the fact, there is some essentiality about having a re-examination. As M Aldridge points out, it is by no means routine, and has not got a great deal of point to it, in t:he ordinary case. The impression which Mr Rutledge has derived, that Mr Skinner's absence would cause him .some crippling disadvantacle, seems to me to be wrong, and his having held it is not necessarily his fault, so I will not make any order for costs.

I c e r t i f y t h a t thim and t h e three preceding pages

are a t rue copy o f t h e reamonm f o r judgment h e r e i n

o f R i m Ronour Hr. J u s t i c e Pincum

Aamociate

7 J;nt 194