Re The Offical Trustee v Ex parte Foster, P.C

[1987] FCA 124

FEDERAL COURT OF AUSTRALIA

Prlnclpal REGISTRY

F i l e : 3 - 2

h l l N b l t 10

A l l D i s t r i c t R e g i s t r a r s

Re: F o s t e r

E x P a r t e : T h e O f f i c i a l T r u s t e e

Q l d . E759 o f 8 4

T h e a t t a c h e d i s a j u d g m e n t o f P l n c u s J w h e r e i n h e r e f u s e d t o make

a n o r d e r t h a t p u b l i c a t i o n o f t h e p r o c e e d i n g s n i a p u b l i c

e x a m i n a t i o n b e p r e v e n t e d or r e s t r i c t e d .

I n t h e c o u r s e o f t h e j u d g m e n t P i n c u s J n o t e d t h a t w h i l e

s u b s e c t i o n 6 9 ( 4 ) r e q u l r e s t h e e x a m i n a t i o n t o b e h e l d i n p u b l l c

i t a p p e a r e d t o him t h a t t h e C o u r t h a d p o w e r t o r e s t r i c t or

p r e v e n t p u b l i c a t i o n o f t h e p r o c e e d i n g s . He h e l d , h o w e v e r , t h a t

t h i s was n o t a c a s e l n w h i c h t h a t p o w e r s h o u l d b e e x e r c i s e d ;

w h i l e t h e r e were d i s a d v a n t a g e s t o t h e e x a m i n e e s n i h a v i n g t h e

m a t t e r p u b l i c i s e d t h e r e were p u b l i c a d v a n t a g e s i n e n s u r i n g t h a t

members o f	t h e	p u b l i c	h a d	k n o l i l e d g e	o	f	t h e	p r o c e e d i n g s	n	i	p u b l i c
C o u r t s .

C.E. 12111sor1,

D e p u t y R e g i s t r a r .

2 6 M a r c h 1 9 8 7

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL	DIVISION	) QLD E759 of 1984
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF OUEENSLAND )

RE:	PETER CLARENCE FOSTER
also known as PETER MICHAEL FOSTER c. -_-

EX PARTE: THE OFFICIAL TRUSTEE

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	12 MARCH 1987
WERE MADE:	BR I S BANE
THECOURT ORDERS THAT.

(1) There be no order on the reference by the

Reglstrar;

( 2 ) The appllcatlon for an order that publlcatlon be

prevented or restrlcted be dlsmlssed;

( 3 )	The costs of the appllcatlon mentloned	In ( 2 ) be
reserved;

( 4 )

The applicatlon for leave to appeal from the order

made In ( 2 ) be dlsmlssed;

( 5 )

The applicatlon for a direction that the publlc

examlnatlon of the appllcant be adlourned be

refused.

NOTE: Settlement and entry of orders 1 s dealt wlth in

Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD E759 of 1984
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	1

RE: PETER CLARENCE FOSTER

also known as PETER MICHAEL FOSTER

EX PARTE: THE OFFICIAL TRUSTEE

PINCUS J. 12 MARCH 1987

EX TEMPORE REASONS FOR JUDGMENT

Thls matter came before the court by way of a reference

by the Reglstrar In the course of a publlc examlnation but, by

consent has been altered m Its character and 1 s now an

applicatlon by the bankrupt for a restrlctlon	of publlcation	of
the proceedlngs.

Senlor counsel for the bankrupt relies upon newspapers

exhibited, whlch he says show the dangers assoclated with

unresticted publlcation in this partlcular case to be excessive.

Exhibit 3 , to which he refers me, speaking of the examination of

the bankrupt which is to take place, says, "Angry business men are gathering from all over Australia to confront him" - "him" being the bankrupt. Exhibit 2, to whlch Mr. Douglas Q.C. also refers me, speaks of the bankrupt as facing or beating bankruptcy charges. There are other statements in the material whlch I can

2 .

understand the bankrupt finding offensive and which may well

constitute, as they are alleged to do, inaccurate reportlng.

Mr. Douglas Q.C.'s contentlon is that the examination

should not proceed in the ordinary way but that there should be a

speclal order made in favour of the bankrupt, and I suppose in a sense in favour of Samantha Fox who has also made an affidavit, restricting or preventlng publication of disclosures made in the course of public examlnatlon of the bankrupt. He argues In the

alternative that a proper course would be to dlrect that the

Registrar determlne each day what materlal 1s to be published by

newspapers - presumably those not only here, but overseas.

I can understand the bankrupt being annoyed by some of

the materlal which has been published and would hope that, In vlew of the complaint whlch has been made to the court, the genumeness of whlch I qulte accept, the newspapers concerned, namely Mldweek

Truth and the Gold Coast Bulletln, mlght take some care to ensure

that thelr reportlng of the matter 1s accurate and falr. Should

they fail to do s o , as has been mentioned durlng the course of the hearlng, there 1 s a posslbillty of legal proceedings against them directly. I do not, however, decide whether the reportlng whlch

has taken place 1 s or is not lawful. It appears, on the face of

it, to be rather exaggerated and lurid.

The basic princlple is not in doubt, and is conceded by

Mr. Douglas Q.C., that court proceedings should be conducted in

public and that the public should, through the media, be entitled

to know what is happening.

3 .

The principle is, of course, underlined in respect of

exammations of the klnd in Issue by s.69(4) whlch expressly requires that examination be held in public. Despite that, Mr. Logan, who is appearing for the Trustee, concedes that the court

has power to restrict or to prevent publication. Assuming that

such power exists, and it appears to me that it does, although it

1s unnecessary to reach a final conclusion on that matter, It is

clear, in my vlew, that this	1 s not a case in which It should be
exerclsed.

There are disadvantages to the bankrupt and to Miss Fox

in havlng the matter publicised, no doubt, but there are publlc

advantages In ensuring that people have the means of knowledge of

what is occurrlng in the publlc	courts, and they	have been
referred to by Mr. Logan.

The orders whlch I will make are that I wlll make no

order on the reference. On the appllcation by Mr. Douglas for an

order that publlcatlon be prevented or restrlcted, that

applicatlon wlll be dismlssed,	and the costs of that appllcation
will be reserved.

There is now a further applicatlon for leave to appeal

from my refusal of Mr. Douglas’ applicatlon, as 1 s required by

s.24(1A) of the Federal Court of Australia Act. The assumption on

which the applicatlon 1 s made is that the provisions of that

section apply to these proceedings and that assumption seems to me

correct. The argument which Mr. Douglas puts forward in support of the application for leave is that it is to be contended, or

4.

would be contended, that I have erred in the exercise of my

discretion, and have not reached the concluslon towards which	my
findlngs pointed.

It does not seem to me, however, that that is sufficient ground to give leave to appeal. Without attempting in any way to

be exhaustive, one would expect that m a matter of this sort the

court should not give leave unless there were some Important

question of principle involved, or some issue otherwise of great significance - in the sense that it 1s criticial to the parties or

of conslderable magnltude.

It does not seem to me that thls case is In that

category. It 1 s true that it 1 s an unusual appllcation and one in

respect of whlch no dlrect authorlty has been able to be found,

but I do not belleve that the court should glve leave. The

examlnatlon should, in my oplnlon, proceed, and I will refuse

leave to appeal.	f certify ttiat this and the 3 precedlng
pages are a true copy of the reasons for
judgment hcrein of HIS Honour
Mr. Justice Pmcus

,-+c 4 ~ 4 7 Associate