Re Whitla, W.J. & Anor v Ex parte Taylor, A.R

[1985] FCA 77

BANKRUPTCY DISTRICT OF THE SOUTHERN )

DISTRICT OF THE STATE OF OUEENSLAND )

RE: WILLIAM JAMES WHITLB and

DESLEIGH M I S E WITLA

M PARTE: ALAN RICHARD TAYLOR

SPENEER J. 2 1 FEBRUARY 1985

EXTEMPORE REASONS FOR JUDGMENT

This is an application by Wllliam James Whltla and his

Deslelgh Marise Whltla, who are bankrupts. Yesterday, 20

owif e p

February 1985, they applled	by counsel to the Reqlstrar-m-
Bankruptcy for an adiournment	of thelr public examlnatlon whlch

powers that are to be found under s.14(5) oL the Bankruptcy Act

had been set d o m f o r 20 and 2 2 February 1985. Mr Whltla had

been served on 3 December l984 with a summons to attend that

public exammatlon and he deposPs to the fact that hls wlfe was

served also on that ?ay.

The Registrar, Mr Ramsey, heard evidence both orally and

on affidavit and decllned to grant the ad~ournment of the public

examnation. Mr and Mrs Whltla then applled to the Federal

Court, esercisinq jurisdiction In bankruptcy ,pursuant to the

It is necessary that there be public confidence in the

administration of our insolvency law, and postponements and delay

in ordinary cases in any event do nothing but hinder the eventual

day when bankrupts are released from the restrictions and

restraints that their status entails.

The object of a public examination of a bankrupt is not

eerely to obtain a full and complete disclosure of the assets of

the bankrupt, and the facts relating to the bankruptcy, in the interests of the creditors of the bankrupt, but also to protect the public. It is an administrative inquiry, but it is

nonetheless Important f o r that fact. It can involve quite

serious consequences as some of the sub-sections of 5.19 tend to

Indicate.

On the other hand, there is a need for a proper

reparation to be allowed to persons who are to be publicly

e	examined and the Bankruptcy Act itself expressly recognlses the
rights of persons who are bankrupts to the asslstance that legal
representation can provlde. Section 6 9 < 8 ) provides that:-

"A bankrupt is entitled to be represented, on his

examination under this section, by counsel or a

solicitor, who may re-examine him after his

examinat ion. I'

Sub-sectlon ( 9 ) of 5.69 deals with the sltuatlon in respect of

the trustee and the creditor of the bankrupt, and provides:-

"The trustee or a creditor of the bankrupt may take

part in the examination and, for that p u r p o w , may be represented by counsel or a solicitor or by an

It cannot be suggested that there 1 s any fault on the

part of the trustee or of the credltor, and I do not think that

has been asserted.

It follows tnen that two days of hearing of public

examinations are sought to be postponed for circumstances that

e r e peculiar to Mr and Mrs Whitla, and involve no assertion of

impropriety or misconduct on the part of the trustee, or of the

credltor who appears before me.

In the ordinary cour~e, where R party seeks an

sdjournment for purposes which are quite valid, it is consonant

with justice to all persons who are parties to that litiqation

that, if the adlournment be granted, It be qranted on terms that

cecognlse the effect on the other parties.

0 In this case there is no real guarantee, In fact no

prospect, t‘nat the qranting of an adjournment would nr>t involve

injustice in a real and pecuniary sense to persons other than the

Xhitlas. That perhaps would not be crlxlal or determinatlve of

the proper conclusion. In thls particular case, however, in

additicn to that cnnslderaticn, I have no cmfidence tLat the

qrant c: an adjournment for a short perlcd such 2 3 is proposed, chat of 14 clays, would mean that when the matcer were resumed. it

tmlld be able	to	proceed	with	the whitla’s	case	properly
preparea.

.

. 7.

,

In the light of those conclusions, what I would expect

to happen is this: the public esamination of Mr and lYrs Whitla

will proceed tomorrow but, being realistic about the constraints

imposed by the present power situation, those proceedings will

not commence until the provision of power to this building. It

would be an unfair imposition on all the parties if the public

dxamination, however desirable that it get under way, involve the

inordinate physical difficulties	of starting before the provision
of power to this building.

Next, it is clear that the matter will not conclude in

the truncated day that would be available before the keqistrar or

Deputy Registrar tomorrow, and it would seem to me consistent

w:th the recognltlon of the value of legal representation. and to

the promotion of a cost-efficient and expeditious determination

% the public examination, if the further hearinq of that

examination were to be resumed at a period not shorter than 14

days so that Messrs Watkins Stokes - or other leqal

representatlves, if it comes to that - can have the opportunity

Qf being in a position to render the representation whlch the Act recognises.

I would also hope that the representation of Messrs

ktkins Stokes, albeit with the limitations necessarily attendant

~ p o n r;he lack of preparation, could be extended to Mr and Krs

t la.