Seddon, G.N. v Donnelly, M.C

[1989] FCA 118

.

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

GENERAL DIVISION	1
)
BANKRUPTCY DISTRICT OF	) No. W173 of 1985
I
THE STATE OF NEW SOUTH WALES AND )
I
THE AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:	GARRY NEIL SEDDON and JILL ELIZABETH SEDDON
Appllcants

AND:  MAXWELL CHRISTOPHER DONNELLY
Respondent

CORAM: WILCOX J

PLACE: SYDNEY

DATE : 16 MARCH 1989

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Each of the applications be dismissed.

L

2. The hearing of the examinatlons of each of the

applicants be adjourned until 2 4 April 1989 befo re

the Registrar.

3 . Each of the applicants pay the respondent's costs of

his or h e r application.

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

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

DIVISION	GENERAL	)
)
BANKRUPTCY DISTRICT OF	) No. W173 of 1985
)
THE STATE OF NEW SOUTH WALES AND )
)
THE AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:	GARY NEIL SEDDON and JILL ELIZABETH SEDDON
Applicants

AND: MAXWELL CHRISTOPHER DONNELLY

Respondent

CORAM:  WILCOX J

PLACE: SYDNEY

DATE : 16 MARCH 1989

EXTEMPORE REASONS FOR JUDGMENT -

-	i	3
-
.	3
-	*

There are before the Court two appllcatlons to set-
aside summonses issued pursuant o s.81 of the Bankruptcy Act

1966.   The summonses have been issued to Gary Neil Seddon and

to his wife Jill Elizabeth Seddon. Each of these persons has

sought to have the summons issued against him OK her set

aside, the sole ground of the application being that Mr Seddon

has now been discharged from bankruptcy.

L.

The evidence before the Court indicates that a

sequestration order was made against Mr Seddon on 2 4 February
1985 upon the petition of a creditor. The respondent, Maxwell

Christopher Donnelly, was appointed trustee of Mr Seddon's

estate. No objection to discharge having been filed, M r

Seddon was discharged from bankruptcy pursuant to s.149 of the

Bankruptcy Act on 25 February 1988.

The argument which the appllcants wish to put is

that, once a person has been dlscharged from bankruptcy, it is

no longer open to any person to issue a summons under s.81 of
the Bankruptcy Act for the examinatlon either of the former

bankrupt or of any other person.

The difficulty standing in the way of that submission

is a decision of a	Full Court of this Court, Offlcial Receiver
v Todd (1986) 14 FCR 177.	In that case the Full Court, by
ma~ority,	rejected the argument that liablllty to examlnatlon

pursuant to s.81 explres with the discharge of the person fiom

-	-	~
-	-

i

bankruptcy.

-	-
In Todd's Case the relevant bankrupt had been made

bankrupt upon her own petition. Accordingly the relevant

provision was s.55(8) of the Act. In the present case the

bankrupt was made bankrupt upon the petition of a creditor.

Consequently s . 4 3 ( 2 ) applies. However, these two subsections

are in the same terms and it is conceded by counsel for the

applicants that the factual distlnction to whlch I have

referred affords no basis for distinguishing the result In

Todd.

In essence, Mr Dowdy wlshes to contend that Todd was

wrongly decided.	However, Mr Dowdy recognises that such a
submission cannot succeed	before me and that whatever personal
views I might develop in respect of the division	of opinion

which occurred in Todd’s Case I would be bound to give effect

to the majority decision. Under these circumstances	I have
not heard argument on behalf of the parties as to the
correctness of the competing views in Todd.	It seems to me

that there is no point in my reaching any personal view. The matter will obviously have to be resolved at a hlgher level.

MC Dowdy has indicated a vlew that a Full Court of

this Court would	be likely to regard ltself as bound by Todd.
The course which he proposes	is to make an applicatlon to the

-

High Court of Australla for special leave to appeal against4

-3

-

A -

any decision which I make following Todd and, in effect, t o 1

-	-
-

argue before the High Court that Todd was wrongly declded.	He
requests that, for this purpose, there	be an adjournment of
the proposed examinations for a period of one month.	That
application is not opposed.	Having regard to the
circumstances, I will say	no more about the arguments which
might be developed in connection wlth the matter.	I am of the

view that I must follow the declsion In __ Todd.

Accordingly, I dismlss each of the applications. I

adjourn the hearing of the examinations of each of the

appllcants until 24 April 1989 before the Registrar.	I order
that each of the applicants pay the	respondent's costs of his
or her application.
I certify that this and the three ( 3 )
preceding pages are a true copy of the Reasons for Judgment of his Honour Justice Wilcox.
Associate:
Date :	30 March 1989
Counsel for the Applicants:	MC P Dowdy
Solicitors for the Applicants:	Rlchard D Wallbank
Counsel for the Respondent:	MC M R Aldridge

Solicitors for the Respondent: P W Turk and Associates

Date(s) of hearing:  16 March 1989