Wily, Hugh v Fitz-Gibbon, Peter Gerald

In the matter of Wily, Hugh v Fitz-Gibbon, Peter Gerald, the dispute before the court centred on the trustee's demand for the delivery of property allegedly held by the bankrupt and the appropriate burden of proof for admissions made by a bankrupt during questioning by a trustee. The case was heard in the Federal Court of Australia. The primary concern was whether the trustee's duty could be delegated and if civil or criminal standards of proof were applicable to admissions made by the bankrupt under questioning.

The legal issues addressed included the interpretation of sections 84, 85, and 138 of the Evidence Act 1995 in relation to the admissibility of admissions made against the bankrupt's interest. The court also considered the appropriate burden of proof for such admissions and whether it should be civil or criminal. Additionally, the court needed to decide on the joinder of third parties whose rights could be affected by the court's order. The court determined that the trustee's duty could indeed be delegated and that the burden of proof for admissions made by the bankrupt should be civil, aligning with the civil standard of proof rather than criminal.

The court concluded that the bankrupt, Peter Gerald Fitz-Gibbon, must deliver a gold Rolex watch to the applicant within seven days of the order's service. It also reserved the question of whether certain paintings were property of the bankrupt and whether an order should be made for their delivery. Mrs Maree Fitz-Gibbon was to be joined as a party for the determination of this separate issue. The application was otherwise dismissed, with leave granted for the parties to submit on costs when the matter was next listed for directions. The orders also included provisions for the filing of an amended application and the return of the matter for further directions.