Selvadurai v MIEA & Anor

[1994] FCA 1105

d

f

d

1105  , 44-

JUDGMENT No. . ........ ........ . ........ -

IN THE FEDERAL COURT OF AUSTRALIA )	\
I
NEW SOUTH WALES DISTRICT REGISTRY )	No. NB 1666 of 1992

1

GENERAL DIVISION 1

BETWEEN:  JAMES WARREN BYRNES

Applicant

AND :  ITCA

Respondent

RECEIVED

1 November 1994

REASONS FOR JUDGMENT

LOCKHART J.

This is an application by James Warren Byrnes filed today and supported by his affidavit sworn and filed today, seeking a number of orders referred to in 12 paragraphs of the application. In essence, what is sought by Mr Byrnes is to restrain the official trustee and the respondent (named- as ITCA) from using, broadly speaking, two categories of documents and information for what is said to be ulterior and improper purposes, and therefore impermissible purposes: (a) information which may have been gleaned by the trustee as a result of the execution of certain search warrants, which were issued pursuant to orders of a judge of the Court some time ago; and (b) information which may have been gathered by the trustee in the last few days or so in the course of conduct of examination of Mr Byrnes, and other persons who have been summoned to be examined before a registrar concerning the affairs of Mr Byrnes who is an undischarged bankrupt.

The orders need not be recited by me - the application

speaks for itself - but Mr Byrnes' case is, in short, that the

information and documents gathered from these two essential

sources - that is, search warrants and examinations under the Bankruptcy Act - may be used against him and other applicants

in certain proceedings that have been instituted by Mr Byrnes

and those applicants, of whom there are four in number, against the trustee, Mr Caddy, also the Commonwealth of Australia and the Australian Federal Police. These proceedings are listed for either hearing, or mention, or interlocutory

hearing - I do not know which, but it matters not - before

another judge of the Court, which I am told is to take place
on 11 November 1994.

There is no material before me either in the affidavit or what has been said from the bar table, which would support the suggestion that any improper use has been or will be made by the trustee or anybody else of the material, which has been gleaned from the two sets of sources to which I have referred.

The position could be different, of course, if Mr Byrnes had himself been sued by the trustee or others, and if evidence disclosed that a purpose of the section 81 examinations under the Bankruptcy Act or the issue of search warrants was not simply to gather material together to see if any case existed against any persons, but to gather the material for the purpose of using it for the litigation on foot against Mr Byrnes. But that is a hypothetical case. It is not this case, as the proceedings were instituted by Mr

Byrnes and applicants, being corporations, against the parties to whom I have referred. That is a quite different matter.

There could be a case in certain circumstances where a trustee (I emphasise it is not this case on the evidence) might seek to use the inquisitorial powers under section 81 and other related sections for the purpose of destroying the case, or cutting down the case, of an applicant in other proceedings brought by the applicant against the trustee. I can envisage circumstances where that would be a quite improper use of the inquisitorial power, but there is nothing

on the material that I have before me which would suggest that

this is such a case.

The case is, in essence, an extension of one which was
brought by Mr Byrnes yesterday. He does not have the benefit,

as I understand it, of legal training or legal advice, but he

has put his arguments very clearly, and his documents recite

his case clearly and I understand them. But I am not

persuaded that there is any substance in the application which

has been brought.

Accordingly, the application is dismissed,

The respondent asks for costs of the application, In my
view it is an appropriate case in which to make an order for

costs. I do not feel it would be proper to accede to the request of Mr Byrnes to simply reserve costs. Accordingly, I order the applicant to pay the respondent's costs of today's

application.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 1 November 1994

The applicant appeared in person.

Counsel for the Official Trustee:	Mr Thomson
Solicitors for the Official Trustee:	G o r d o n  &
Johnstone

Counsel for the Insolvency & Trustee Service: Mr Madden &
Mr Marshal1

Date of Hearing:	1 November 1994
Date of Judgment:	1 November 1994