WEA International Inc v Hanimex Corporation Ltd

[1987] FCA 379

377

(NOT FOR DISTRIBUTION)

IN THE FEDERAL COURT OF BANKRUPTCY )

)

BANKRUPTCY	DISTRICT	THE	OF	)	No. 743 of 1985
)

STATE OF 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)

NINUTES OF ORDER

COURT: Woodward J.

DATE: 10 June 1987

PLACE: Melbourne

THE COURT ORDERS THAT:

The application be dismlssed with costs

NOTE: 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