Settlement and entry of orders is dealt with in Rule 124 of
- the Bankruptcy Rules.
IN THE FEDERAL COURT OF BANKRUPTCY )
)
BANKRUPTCY DISTRICT
OF THE
)
No.
7 4 3 of 1985
)
OF
STATE
VICTORIA
)
Re:
LUIGI GROLLO (a Bankrupt)
Ex parte:
LUIGI GROLLO
(the Applicant)
and:
DEPUTY REGISTRAR A. ELLIS
(Respondent)
and:
OFFICIAL TRUSTEE IN BANKRUPTCY
FOR THE STATE
OF VICTORIA
(Respondent)
and:
R.D.
WIDDOWS (as Trustee in Bankruptcy
of the Bankrupt)
(Respondent)
COURT: woodward
J.
-
DATE:
10 June
1987
PLACE:
Melbourne
EX-TEMPORE REASONS FOR JUDGMENT
I do
not think I need call
on you, Mr
Irlicht, I
have
reach
ed a clea
.r view of this matter and Mr Pago
ne, I think, has
said all that could usefully
be
said in favour
of the argument
which he advances. But there is authority
of this Court which is
directly contrary to the argument that he has been putting.
- 2 -
That authority
1 s a decislon of His Honour Mr Justice
Spender, so far unreported, ln a matter of re Joy Naoml Jacka, ex parte Joy Naomi Jacka, in whlch ~udgment was dellvered on 28 May
1986. There his Honour dealt In detarl with the provlsions of the Act, with the history of the legislation, with relevant English authority, and he considered carefully the Interaction between the legislation and the principles of natural justice.
And having carefully considered those matters he arrived at the conclusion that a bankrupt has no right or entitlement to put questlons to a witness summoned to give evidence pursuant to the provislons of section 81 of the Bankruptcy Act. That decision is of persuasive authority so far as this court is concerned; and I am persuaded that it is correct and that I should follow it.
I do so bearing in mlnd that principles of natural justice are variable and have to be considered in the light of the legislative code, which is provlded to cover particular cases. I think it is particularly slgnificant that the Act expressly deals with the rights of the trustee and creditors to be represented and take part in the examination of persons summoned under section 81
of the Act, whereas there is no suggestion, as Mr Pagone has
properly conceded, to be found anywhere in the legislation, which
would give the bankrupt that right to examine persons summoned.
In the light of the long-standing authorities in England and the comparatively recent amendments to the Act, I thlnk that if there had been any intention of the legislature to convey that right it would have been done either expressly or by clear
- 3 -
implication. That is not the case, and lt is for those reasons application will be dismlssed with costs.
that, even without authorlty, I would have reached the conclusion
that I have. I am, as I say, very much fortified by the knowledge
that I am following a consldered decision of Mr Justice Spender.
For the reasons I have given, the appllcatlon will be dlsmlssed.
I certify that this and the
two ( 2 ) preceding pages are a
true and accurate copy of the
Reasons for Judgment herein of
The lion l4r Justice Woodward
Associate
Dated:
10 June 1987
Counsel for the Applicant: Mr G.T. Pagone
Solicitors for the Applicant:
Messrs Carroll and Dillon
Solicitor for the first respondent: MC U. Torrisi of
Australian Government Solicitor
Solicitor for the second respondent: Mr T. Irlicht of
MeSSrS Irlicht and Broberg
Details
AGLC
WEA International Inc v Hanimex Corporation Ltd [1987] FCA 379
Case
[1987] FCA 379
Decision Date
CaseChat Overview and Summary
The Federal Court of Bankruptcy heard an application by Luigi Grollo, a bankrupt, against the Deputy Registrar A. Ellis, the Official Trustee in Bankruptcy for the State of Victoria, and R.D. Widdows, as Trustee in Bankruptcy of the Bankrupt. The central issue in the case was whether a bankrupt has the right to put questions to a witness summoned to give evidence under section 81 of the Bankruptcy Act 1966 (Cth). The case hinged on the interpretation of the statutory provisions and the principles of natural justice.
Woodward J considered the arguments presented by Grollo's counsel, Mr Pagone, but ultimately found that the decision of Mr Justice Spender in the unreported case of Re Joy Naomi Jacka, ex parte Joy Naomi Jacka, was directly contrary to Grollo's argument. The Court held that the Bankruptcy Act does not provide any explicit or implied right for a bankrupt to examine witnesses summoned under section 81. The Court emphasised that the Act expressly deals with the rights of the trustee and creditors but makes no mention of the bankrupt's right to question witnesses. Woodward J was also influenced by the long-standing English authorities and recent amendments to the Act, which suggested that if the legislature intended to grant such a right, it would have done so expressly or by clear implication.
The Court dismissed the application with costs, following the persuasive authority of Mr Justice Spender's decision. Woodward J was fortified in his decision by the considered reasoning of Mr Justice Spender, which thoroughly examined the relevant statutory provisions, legislative history, and principles of natural justice. The Court concluded that even without the authority, it would have reached the same decision. The application was dismissed on the basis that the bankrupt has no right or entitlement to put questions to a witness summoned under section 81 of the Bankruptcy Act.