Re The Official Trustee in Bankruptcy v Ex parte Heelan, R.F

- I

BANKRUPTCY - date of discharge - interlocutory order extending date for statutory discharge pendlng determinatlon of substantive application - order under sub-s.149(12) - doubtful power - voidable not vold - treated as valid - no power to rescind as'

operatlon terminated on dismissal of substantive application - further interlocutory order extending creditor's objection under sub-s.149(8) - interlocutory order "set aside" by final order - whether equivalent to rescission of order under s.37 - "set aside"

- meaning - retroactive in effect - order rescinded ab initio -

directions as to date of discharge - observation on prosecution of

bankrupt based on technical issues.

Bankruptcy Act 1966

Re: Ronald Frederick Heelan Ex Parte: The Official Trustee in Bankruptcy, the trustee

the property

of Ronald Frederick

Heelan, a bankrupt. NO. WAG 124 Of 1971

FRENCH J.

28 APRIL 1987

PERTH

I N THE FEDERAL COURT

OF AUSTRALIA

GENERAL DIVISION

1	NO. WAG 1 2 4 Of 1971

BANKRUPTCY DISTRICT

)

OF THE

STATE

)

WESTERN

AUST ALIA

RE: RONALD FREDERICK HEELAN

E X PARTE: THE OFFICIAL TRUSTEE I N

BANKRUPTCY, t h e t rustee O f t h e

p r o p e r t y

R o n a l d F r e d e r i c k

Heelan,

a	b a n k r u p t

A p p l i c a n t

MINUTE OF ORDER

JUDGE

M A K I N G ORDER:

FRENCH

3 .

DATE

ORDER:

28 APRIL 1987

WHERE

MADE:

P e r t h

THE

COURT

ORDERS

THAT:

I t

d e c l a r e d

t h a t

t h e

b a n k r u p t

was

d i s c h a r g e d

f r o m

b a n k r u p t c y

p u r s u a n t

t o

t h e

p rov i s ions

o f

s.149

t h e

Bankrup tcy

Act

1 9 6 6 o n 1 5 A p r i l

1 9 8 6 .

E a c h

2 .

p a r t y

t o

b e a r

t h e i r

own

costs.

Note:

S e t t l e m e n t

a n d

e n t r y of

o r d e r s 1s

d e a l t w i t h

i n

R u l e

1 2 4

t h e

B a n k r u p t y

R u l e s .

IN THE FEDERAL COURT

OF AUSTRALIA

GENERAL DIVISION

)	NO. WAG 124 Of 1971

BANKRUPTCY

DISTRICT

OF THE STATE OF	1
WESTERN AUSTRALIA	1

RE: RONALD FREDERICK HEELAN

EX PARTE: THE OFFICIAL TRUSTEE

BANKRUPTCY, the

trustee

the

property of Ronald Frederick Heelan,

a bankrupt

Applicant

CORAM :

FRENCH J.

28 April 1987

I	REASONS FOR JUDGMENT

Like Dante in the opening verse

of the Divine Comedy,

Ronald Frederick Heelan could well complain that

he has found

himself "in a gloomy wood astray, gone from the path direct".

His first step into the shade was taken on 11 June 1971

when he

became

bankrupt

upon

his own petition pursuant to

sub-s.57(31 of the Bankruptcy Act

1966.

As the Act then stood he could have expected automatic discharge after 5 years pursuant to sub-s.149(1).

However on 3 March 1976 the Deputy Commissioner of

Taxation moved him off "the path direct" by lodging a Notice of Ob~ection to his discharge dated 27 February 1976 on the stated ground that:-

“Subsequent to the sequestration of his Estate, the Bankrupt has failed to pay tax on income derived during the years ended 30 June 1972 to 1974 inclusive. It is

considered that his conduct at this	tune	is
unsatisfactory.“

The lodgment of that objection had the effect, by force of sub-s.149(3), of preventing automatic discharge pursuant to sub-s.149(1).

Under the Act

as it then stood discharge could not be

obtained except by order of the Court under s.150 or by automatic discharge upon withdrawal of the ob~ection and lapse of the 5 year

I	statutory waiting period.

In 1980 the objection was still in force

and

appllcation for discharge had been made under s.150.

That year saw the enactment of extensive amendments to

the Bankruptcy Act

1966.

In particular s.149 was altered so that the period for automatic discharge was reduced from 5

to 3 years.

Where previously an ob~ection

to discharge could remain

in force indefinitely, the amendments provided that objections would lapse at the expiry of 5 years from the date of bankruptcy or such period as the Court might order (s.149(7), ( 8 ) and (9)).

, .. -

Where an oblection lapsed and the minimum perlod

of 3

years from bankruptcy had expired automatic discharge would follow

by virtue of sub-section 149(14).

The impact of the amendment upon existing objections was covered by the transitional provlslon,	s.72(2) of the Bankruptcy
Amendment Act 1980 which provided:-

" ( 2 )

Where -

(a)

the Registrar, the trustee or

a creditor has,

before the commencement

of this section, entered an

objection under paragraph 149(3) (b) of the Principal Act to the discharge of a bankrupt by force of section 149 of the Principal Act;

(b)

the objection has not been withdrawn before the commencement of this section: and

bankruptcy has not been discharged

under

I	section 150 of the Principal Act	before	the
commencement of this section,

section 149 of the Principal Act as amended by

sub-section ( 1 ) of this section applies in relation to

the objection as if -

( d )

the objection had been entered by the Registrar,

I	the trustee or the creditor, as the case may be, under paragraph 149(3)(c) of the Principal Act as
so amended:

(e)	sub-section 149(4) of the Principal Act as so amended were omitted: and
(f)	the references in sub-sections 149(7), (8) and (9)

of the Principal Act as so amended to the date of

the bankruptcy were read as references to the date

of commencement of this section."

The effect of

that provision was that the objection

would lapse at the expiry of 5 years from the date of commencement

of the section which was 1 February 1981.

I ' I

; p -

!	I
I

Mr Heelan could therefore look forward to automatic discharge on 1 February 1986 pursuant to sub-s.149(14).

However on 2 January 1986 the Official Receiver filed an

appllcation for an order that, pursuant to sub-s.149(12)	the
bankrupt be not discharged.

Sub-section 149(12) of

the

Bankruptcy

Act 1966

provides:-

“The Court may, at any

time

before

the

discharge of a

bankrupt, on

the

application of the Registrar, the

Inspector-General, the Trustee or a creditor, direct

that the bankrupt shall not be

discharged

from

bankruptcy by virtue of this section.”

In his supporting affidavit the

Officlal

Receiver

referred to the deficiency of $50,134.00 shown on the bankrupt’s statement of affairs and the realisatlon of $620.78 on his estate. There had been, he said, no contribution by the bankrupt and his conduct had not been satisfactory.

It is not necessary for present purposes to explore the

merits of those contentions.

Because

there

were dlfficulties with service the

Official Receiver filed a further application

on 8 January 1987

seeking an order for substituted service and an interim order

preventing discharge.

B o t h a p p l i c a t i o n s

came

before Toohey

13 J a n u a r y .

His

Honour

t h e n

adlourned

t h e h e a r i n g

t h e s u b s t a n t i v e

a p p l l c a t i o n

J a n u a r y

t o

d a t e

f i x e d

b y

t h e

District

Registrar.

H e

a l so made

a n

i n t e r l o c u t o r y

order

i n

t h e

f o l l o w i n g

terms :-

"The

Respondent

n o t

d i s c h a r g e d

f r o m

b a n k r u p t c y

b y

v i r t u e of

t h e provisions

o f

s . 1 4 9

t h e

B a n k r u p t c y

Act

1966

u n t i l t h e d e t e r m i n a t i o n

t h e A p p l l c a t i o n

u n t i l

i	f u r t h e r order ."

The

O f f i c i a l

R e c e i v e r

s u b s e q u e n t l y

r e c e i v e d

a d v i c e

t h a t

t h i s I n t e r l o c u t o r y o r d e r

was

beyond

the

power

the

Cour t .

t h e r e f o r e f i l e d

two

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

and

J a n u a r y 1 9 8 6

r e s p e c t i v e l y .

T h e

a p p l i c a t i o n

2 2 J a n u a r y

s o u g h t

a n

order

t h a t

p u r s u a n t

t h e

p r o v i s i o n s

sub-s .149(8)

t h e

B a n k r u p t c y

A c t

t h e

o b j e c t i o n

t o

t h e d i s c h a r g e of

t h e

b a n k r u p t

lodged

b y

t h e

Deputy

Commissioner

T a x a t i o n

d o

n o t lapse

for a

p e r i o d of

y e a r s

from

t h e

commencement

t h e b a n k r u p t c y

t h e b a n k r u p t .

T h i s was

a n

o d d

r e q u e s t

t o

m a k e

a s

t h e

b a n k r u p t c y

h a d

commenced o n 11 June

1971.

l *

the application

dated

23 January he sought

interlocutory order as follows:-

“That pursuant to the provisions of Sectlon 149(8) of the Bankruptcy Act 1966 the ob-Jection to discharge of

the bankrupt herein lodged by the Deputy Commlssioner

Taxation and dated 27 day of February 1976 do not lapse until further order or determination of the application made 22 January 1986.“

On 30 January 1986 Muirhead J. adjourned the application

of 22 January untll 15 April and ordered that:-

“Pursuant to the

provisions

of s.149(8) of the

Bankruptcy Act 1966 the Objectlon to the Discharge of the Respondent lodged by the Deputy Commissioner of Taxation and dated 27 day of February 1976 do not lapse until 30 day of April 1986.”

On 15 April 1986 the two substantive applications, those

of 2 January and 22 January were dismissed by consent.

The orders made by hls Honour on that occasion were as

follows:-

“1.	The order made the 30th day of January, 1986 that pursuant to the provisions of Section 149(8) of the Bankruptcy Act, 1966 the objection to the discharge of the Respondent lodged by the Deputy Commissioner
of Taxation dated the 21th day of February, 1976 do not lapse until the 30th day of April, 1986 be set aside.
2.	The Applications of the Applicant dated the 2nd day of January, 1986 and filed the 2nd day of January 1986 and the application dated the 23rd day of January, 1986 and filed the 24th day of January, 1986 be dismissed.

3 .

The re

n o order

a s

t o costs ."

S u b s e q u e n t l y

O f f i c i a l

t h e

R e c e l v e r

r e q u e s t e d

t h e

R e g i s t r a r

B a n k r u p t c y

t o g i v e

c e r t r f l c a t e

u n d e r

h i s

h a n d

p u r s u a n t	t o	p a r a g r a p h 2 6 0 ( l ) ( a ) ( i i l ) o f	t h e	Act	i n r e l a t i o n	t o t h e
d i s c h a r g e .

T h a t

c e r t i f i c a t e

h a s

n o t

i s s u e d

t h e r e

b e i n g

b e t w e e n

t h e

O f f i c i a l

Receiver

a n d

t h e

R e g i s t r a r ,

some

d o u b t

a s

t o

when

t h e

b a n k r u p t w a s d i s c h a r g e d .

The

O f f i c i a l

R e c e i v e r

now

seeks

f o l l o w i n g

t h e

directions:-

"1.

r e a s o n

o f

t h e

O r d e r

o f

t h i s

H o n o u r a b l e

C o u r t

made

o n

t h e 1 5 t h d a y o f A p r i l 1 9 8 6 o n w h a t d a t e

( a s

a p p e a r s h e r e u n d e r )

was

t h e b a n k r u p t d i s c h a r g e d

from

b a n k r u p t c y

p u r s u a n t

t o

t h e

p r o v i s i o n s

S e c t i o n

1 4 9 o f

t h e B a n k r u p t c y

Act

b e i n g e i t h e r :

- .~

.. __.

(1)

t h e 1st day

February

1986;

o r

( i i ) t h e 1 5 t h d a y o f A p r i l 1 9 8 6

2 .

S u c h

o t h e r

d i r e c t i o n s

i n

s u c h

matters

r e l a t i n g

t o

t h e

a d m l n i s t r a t i o n

t h e

e s t a t e a s

t h e

C o u r t

sees

f i t . "

,-----

The

d l r e c t i o n s are

s o u g h t

p u r s u a n t

t o sub-s .134(4)

which

..-. _._

- - -

- __

. I ..__

p r o v i d e s : -

" T h e

T r u s t e e

may

a t a n y

time

a p p l y

t o

t h e

C o u r t

f o r

d i r e c t i o n s

i n

r e s p e c t

o f

matter

a r i s i n g

i n

c o n n e x i o n

w i t h

t h e a d m i n i s t r a t i o n

t h e

es ta te ."

In the absence ot any order ot the Court the bankrupt

would have been discharged

by operatlon of law on 1 February 1986.

The order of Toohey J. dated 13 January and apparently made pursuant to sub-s.149(12) extended the date

for statutory

discharge to the determination of the application dated

8 January

I	or until further order.

In Re Moore; Ex parte Nominal

Defendant (1985) 61 ALR

1	217 at 219 Pincus J. was of the view that such an order could not
i	i

l	made:-	be
I
I

"The question then becomes whether s.149(12) should be not be discharged from bankruptcy by virtue of this read as if It said: l ' . . . .direct that the bankrupt shall

section until the date specified in the direction."

The submissions made by Miss Wadley would have me so read it. Mr Carrick's contention, on the other hand, is that the provision should be read quite literally: that

I may make a direction under it only if the consequence

is intended that s.149 have no operation henceforth. I

have not been referred to any authority with respect to the point just mentioned but I have come to the conclusion that the contention made by Mr Carrick is correct, and that I cannot make what might be called a holding order under s.149(12), although I would, as I have indicated, do it if I had the power.

Other suggestions were made, more falntly, as to sources of power. The only one which I should mention is that attention was drawn to s.30(l)(b), which permits the

court to make orders of an interlocutory kind. In my

view, the provision does not assist here, because the order sought could not be described as one, "necessary for the purposes of carrying out or giving effect to

this Act.. . ' I .

It would rather be one designed to

circumvent the effect of s.149(1) which, as I have mentioned, achieves the result hat here is an automatic discharge unless an order is made under the later sub-sections. I cannot read that provision - that

is, s.149(1)

- as subject also to a power to extend the

p e r i o d

b a n k r u p t c y

f o r

s h o r t or

l o n g

t ime

u n d e r

S. 30 .

I t may

t h a t

t h e r e

is a

l a c u n a i n t h e Act,

b u t

d o n o t t h l n k

t h e m e t h o d

m e e t i n g

t h e

d i f f l c u l t y

s u g g e s t e d

b y

t h e

a p p l i c a n t

correct,

no r

have

been

a b l e

t o

see

t h a t

a n y

o t h e r

p r o v i s i o n

t h e Act

allows

t o m a k e a n

o r d e r

e x t e n d i n g

t h e

p e r i o d

b a n k r u p t c y

f o r a

s h o r t

time,

p e n d i n g

t h e h e a r l n g o f

t h e

a p p l i c a t i o n

f o r l e a v e

t o

e n t e r a n o b j e c t i o n . "

I f

I t b e

t h e

case

t h a t

t h e

a p p r o a c h

t a k e n

P i n c u s

was correct t h e n t h e

order made by

Toohey

J. was

beyond

power.

T h a t

is n o t

to s a y t h a t

i t was

l e g a l l y

i n e f f e c t i v e .

o rde r o f

S u p e r i o r

C o u r t

e v e n

w h e n

i n

excess

o f

j u r l s d l c t i o n

v o i d a b l e , n o t v o i d ,

a n d

is v a l i d u n t i l

s e t a s i d e -

Wilde

-v-

A u s t r a l i a n

T r a d e

E q u i p m e n t

Co.

P t y .

L t d .

( 1 9 8 1 )

1 4 5

CLR

590 AT 602,

Posner

-v-

Collector f o r

I n t e r - S t a t e D e s t i t u t e P e r s o n s

(Vic . )

(1946)

CLR 461 a t 489,

Cameron

-v-

Cole (1944)

CLR

571 a t 590 .

Regardless,

t h e r e f o r ,

o f

w h e t h e r

was

i n excess

j u r i s d i c t i o n

t h e

o r d e r

Toohey J .

t o b e

t r e a t e d

f o r

a l l

i n t e n t s a n d p u r p o s e s

v a l i d

order.

The

C o u r t has

power

unde

s . 37

t he

Bankrup tcy

Act

t o

r e s c i n d ,

v a r y

o r

d i s c h a r g e

i t s own

o r d e r s .

n o t

i n v i t e d

t o

t a k e

t h a t

s t ep w i t h

r e s p e c t

t o

t h e

o r d e r

of Toohey J.

And even

i f

were

t o be

so i n v i t e d I

h a v e

g r a v e

d o u b t s

a s

t o

t h e

a p p l i c a b i l i t y of

t h e

s e c t i o n .

The

order,

i n accordance

w i t h

its

own

terms,

c e a s e d

o p e r a t e u p o n

t h e

dismissal

t h e s u b s t a n t i v e

a p p l i c a t i o n .

10.

I do n o t

c o n s l d e r

t h a t

I am

otherwlse empowered t o

r e v i e w	o r	p a s s	u p o n	t h e	q u e s t i o n	w h e t h e r	t h e	o r d e r	w a s	w l t h i n
power.

A s

a t

F e b r u a r y

1 9 8 6

a n d

i n d e p e n d e n t l y

o f

t h e

o r d e r

made

Toohey

J .

Heelan

was

d e n i e d

h i s

t a t u t o r y

d i s c h a r g e

b e c a u s e o f

t h e

f u r t h e r

i n t e r l o c u t o r y o r d e r

made

Muirhead

J. on

30 J a n u a r y .

His

H o n o u r ' s

power

t o make

t h a t order d e r i v e s from

s u b - s e c t i o n 1 4 9 ( 8 )

a n d

does

n o t

seem

t o be

i n d i s p u t e .

I n Re

Moore

( s u p r a )

P i n c u s

a t

218

seemed

t o

a c c e p t

t h e v a l i d i t y

s u c h a n a p p l i c a t i o n o f

t h e s u b - s e c t i o n .

O f

I m p o r t a n c e

f o r

t h e

p r e s e n t

case

t h e

effect

o f

t h e

l a t e r

o r d e r

made

Mulrhead

J .

o n 1 5 A p r i l

s e t t i n g a s i d e

t h a t

30 J a n u a r y .

T h a t

e f f e c t

m u s t

gauged

from

t h e

terms

o f

t h e

o r d e r

wh'ich

a r e

t o be

read

i n t h e l i g h t

t h e

s t a t u t o r y p o w e r w h i c h

its	s o u r c e .

T h e

C o u r t

h a s

a n

e x p r e s s

p o w e r

u n d e r

s.37

i n

t h e

f o l l o w i n g

terms:-

11.

"37 ( 1 )

S u b l e c t

t o

s u b - s e c t l o n s

(2) and

( 3 ) ,

t h e

C o u r t

may

r e s c l n d ,

v a r y

d l s c h a r g e

o r d e r

made

i t

u n d e r	t h l s	Act	o r s u s p e n d	t h e	o p e r a t i o n	o	f	s u c h	a	n
o r d e r .

( 2 ) T h e

C o u r t

s h a l l

n o t ,

a f t e r

s e q u e s t r a t i o n

order

h a s

b e e n

s i g n e d

a n d

s ea l ed

a s

p r o v l d e d

b y

t h e

R u l e s ,	r e s c i n d	o r	s u s p e n d	t h e	o p e r a t i o n	of	t h e
order.

( 3 ) T h e

C o u r t

s h a l l

n o t ,

a f t e r

a n

order

f o r

t h e

a d m i n i s t r a t i o n

o f

t h e

e s t a t e

d e c e a s e d

p e r s o n

unde r

P a r t

X I

has

b e e n

s i g n e d

a n d

s e a l e d

a s

p r o v i d e d

b y

t h e

R u l e s ,

r e s c i n d

o r

s u s p e n d

t h e

o p e r a t i o n o f

t h e

order."

H i s Honour

d id

n o t ,

15 A p r l l ,

u s e

t h e

language

o f

r e s c i s s i o n ,

v a r l a t i o n

o r

d i s c h a r g e .

I n s t e a d

h e

" s e t

a s i d e "

t h e

e a r l i e r

o r d e r .

T h e

term

" s e t a s i d e "

i n

t h e

r e l e v a n t

s e n s e

a s

d e f i n e d

i n

t h e S h o r t e r O x f o r d E n g l i s h D i c t i o n a r y m e a n s : -

" ( a ) To

p u t

o n

o n e

s i d e .

( b )

d i s c o n t i n u e

t h e

p e r f o r m a n c e

pract ice

o f .

( c ) To

d i s m i s s

f r o m

o n e ' s

m l n d ,

a b a n d o n

t h e

c o n s i d e r a t i o n

o f .

( d )

To reject or

t h r o w o v e r

a s b e i n g

n o

v a l u e ,

c o g e n c y

p e r t i n e n c e ;

t o o v e r r u l e .

( e )

T o

d i s c a r d

o r

r e j ec t

f r o m

u s e

s e rv i ce ,

i n

f a v o u r

o f

a n o t h e r .

( f )

annu l ,

quash ,

r e n d e r v o i d

n u g a t o r y .

C h i e f l y

law."

The

term

h a s

a p p e a r e d

i n

many

s t a t u t o r y

c o n t e x t s

p a r t i c u l a r l y

i n

r e l a t i o n

t o

t h e

p o w e r

o f

a p p e a l

c o u r t s

t o

q u o t e

"'quash"

"set aside"

c o n v i c t i o n s .

I n Commissioner for Rai lways ( N S W ) -v-

Cavanough

(1935)

C L R

2 2 0 ,

225,

Rich ,

Dixon,

Evat t

and

McTiernan

33.

d e s c r i b e d

t h e

e f f e c t

o f

q u a s h i n g

a n d

s e t t i n g

a s i d e

c o n v i c t i o n

u p o n

s t a t u t o r y a p p e a l : -

12.

"The conviction is avoided ab initio. 'The judgment

J., R.V. Drury (1849) 3 Car. and K. at 199".

reversed is the same as no judgment' . (Per Coleridge

In Lynch -v-

Hargrave (1971) VR 99 McInerney J.

considered the effect of an order setting aside certain traffic period of cancellation.

convictlons for which the offender's licence had been cancelled.

The Court concluded that the

order setting aside the

conviction had the result that there was no order cancelling the licence and that therefore the information for driving under cancellation had been rightly dismissed by the Magistrate at first instance.

In the course of the judgment His Honour made

the

following general comments at page 105 concerning the term "set

aside":-

"The phrase 'to set aside' is a phrase which occurs in a

great variety of legal contexts, e.g. setting aside

awards of arbitrators, setting aside bankruptcy notices, setting aside conveyances or other transactions proved to have been induced by misrepresentation and so on. It is a phrase also used in connexion with setting aside judgments given in default of appearance or pleading or

given in excess of

jurisdiction. Although in some

instances the transaction ultimately set aside is in the eyes of the law valid, though defeasible, until set aside, it is, when set aside, of no effect whatever."

In my opinion His Honour's choice of the phrase "set

aside" discloses an intention to

annul his earlier order.

13.

His power to do that derives from the power conferred

!	the Court by s.37 to "rescind" an earlier order.
I
I
I
I	The term "rescind" is defined in the relevant sense in the shorter Oxford English Dictionary
!

as:-

I	"to abrogate, annul, repeal ."

The order had the effect that the extension of the life of the objection of the Commissioner for Taxation beyond

February 1986 was annulled.	That is to say, the order was retro-
active in its operation.

that basis

the

only bar to the

bankrupt's discharge

at 1 February was the order of Toohey J. made on 13 January.

That

order'

was

never

rescinded.

Its operation

I	terminated on 15 April with	the dismissal of the substantive
i
I	application.
l
I

Notwithstanding the question as to whether his Honour

had power

to make that order, it was and remains a valid

order

unless and until avoided.

In the circumstances therefore and by way of direction to the Official Trustee I will declare that the bankrupt was

discharged from his bankruptcy pursuant to s.149	of the Bankruptcy
Act 1966 on 15 April 1986.

14.

There is one o t h e r matter o n which

I should

comment .

h l s

a f f i d a v i t

i n

s u p p o r t

t h e

p r e s e n t

a p p

l i c a t i o n

t h e

O f f i c i a l

R e c e i v e r

s a i d

a t

p a r a g r a p h

14:-

" F u r t h e r ,

h a v e

r e c e i v e d

c o m p l a i n t s

from

v a r i o u s

p e r s o n s

r e l a t i n g

t o

t h e

a c t i o n s

a n d

c o n d u c t

o f

t h e

B a n k r u p t

b e t w e e n

t h e

p e r i o d

t h e

1st

day

o f

Feb rua ry

1986 to t h e 1 5 t h d a y

Apr i l

1986

whlch

i f

proved

would

m e a n

t h a t

t h e

b a n k r u p t

h a d

c o m m i t t e d

o f f e n c e s

u n d e r

s . 2 6 9

o f

t h e

Act

s h o u l S :

h e

n o t

h a v e

b e e n

d l s c h a r g e d

u n t i l

t h e 1 5 t h

d a y o f A p r i l 1 9 8 6 . "

t a k e

i t

f r o m

t h a t

p a r a g r a p h

t h a t

t h e

b a n k r u p t

may

l i a b l e t o c r i m i n a l

p r o s e c u t i o n

f o r

o f f e n c e s

w h o s e

commission

d e p e n d s u p o n h i s c o n t i n u i n g s t a t u s

b a n k r u p t d u r i n g

t h e p e r i o d

w h i c h h a s b e e n

i n

i s s u e

i n

t h i s

case.

T h e

q u e s t i o n

w h e t h e r

n o t

t h e

case is a n

a p p r o p r i a t e

o n e

f o r

t h e

i n s t i t u t i o n

c r i m i n a l

p r o c e e d i n g s

o n e

f o r

t h e

r e l e v a n t p r o s e c u t i n g a u t h o r i t i e s .

H o w e v e r ,

t h e

b a n k r u p t

c o u l d

e x c u s e d

s e n s e

g r i e v a n c e

h i s

e x p o s u r e

t o

p r o s e c u t i o n

were

depend

upon

the

d p t e r m i n a t l o n

o f

t h e

r a t h e r

t e c h n l c a l

issues

t h a t

u n d e r l i e

t h e

d e t e r m i n a t i o n

h i s s t a t u s

bankrup t

be tween

1 February

1986

and

15 A p r i l

1 9 8 6 .

T h a t

s e n s e

g r i e v a n c e

w o u l d

t h i n k

r e i n f o r c e d

t h e

' k n o w l e d g e

t h a t

t h e

d e t e r m i n a t i o n

r e s t e d

i n

p a r t

u p o n

t h e

v a l i d i t y o f	a n	i n t e r l o c u t o r y	o r d e r	w h i c h	was	a r g u a b l y	b e y o n d
power.

15.

I certify that the preceding

fourteen (14) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice French

Counsel :

.for the Official Trustee: Mr L. Christensen

instructed by Phillips Fox

.for the Bankrupt: Mr R.G.S.

Harrison

instructed by Warren McDonald French

& Harrison

Date of Hearing:	26 February 1987
Date of Judgment:	28 April 1987

I I

[1987] FCA 208

28 Apr 1987