Re Washington, H.J. v Ex parte Washington, H.J.

[1988] FCA 242

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD E45 of 1984
BANKRUPrCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	)

RE: HONARD JOHN WASHINGTON

EX PARTE:	HOWRD J O H N WASHINGTON FRANCES JAYE WASHINGTON
THOMAS  J O H N O'TOOLE
IAN ROBERT SKINNER

Applicants

C.S.R. LIMITED

Respondent - ..

MINUTES OF ORDER

All'

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	21 APRIL 1988

BRISBANE	MADE:	WHERE
THE COURT ORDERS THAT:

1. the application made on behalf of Frances Jaye

Washington, which has been filed in Court by leave, be treated as if it were also an application by

Rule 124 of the Bankruptcy Rules.
Howard John Washington, Thomas	John O'Toole and Ian
Robert Skinner;

2 . the summons under 5.81 of the Bankruptcv Act 1966

issued at the request of C.S.R. Limited, dated	15
January 1988, be set aside in respect of each	of
the four applicants; and

3 . the costs of the applicants of and incidental to
this application to set the summons aside be taxed
and paid by the respondent, C.S.R. Limited.

- NOTE : Settlement and entry of orders is dealt with in

.-

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1 QLD E45 of 1984
BANKRUFTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	)

RE:	HOWARD JOHN WASHINGTON
M PARTE:	HOURD JOHN WASHINGTON
FRANCES JAYE WASHINGTON
THOMAS JOHN O'TOOLE
IAN ROBERT SKINNER

Applicants

C.S.R. LIMITED

Respondent

PINCUS J. 21 APRIL 1988

EX TEMPORE REASONS FOR JUM;MENT

In this matter I order that the application made on

behalf of Frances J. Washington, whlch has been flled in Court by

leave, be treated as if it were also an application by Howard John

Washington, Thomas John O'Toole and Ian Robert Skinner. I have

made that order to avoid the necessity of filing multiple

applications.

I order that the summons under s.81 of the Bankruptcy

&&	1966, issued at	the request of C.S.R. Limited, dated	15
February 1988,	be set aside in respect of each	of	the four

applicants. I order that the costs of the applicants of and

incidental to this application to set the summons aside be taxed

and paid by the respondent C.S.R. Limited. The remaining question

is the costs incurred by the proposed examinees in preparatory

work engaged in by Mr Harley in anticipation of the expected

examinations which will not, of course, take place. The point is

rather an unusual one.	It is, I think, correct that as Mr Lobban
says, it is not the practice to award costs	of lawyers' fees of
witnesses who are summoned to appear under	5.81.

Section 81(14), in effect, creates a statutory exceptlon

to that, but it does not apply so as to allow costs to be awarded

in these circumstances. The question is whether I should apply

the practice by analogy in this case in whlch, because of an

error, the proposed examination will not take place.

It seems to me that I should. The error whlch has been

made is, no doubt, regrettable, that has redounded to the beneflt

of the proposed examinees. Had the examinations proceeded, they

would have incurred more costs, which, had the ordinary practice

been applied, would not have been reimbursed.

I therefore do not propose to allow any further costs

than those I have already allowed, that is, the costs relating to

the application to set aside. f cert l fv t b a + V- : 2nd :I.E / Frcccdlng

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