Day v Gould

REASONS FOR JUDGMENT 1 Mr Gould has applied to the Court pursuant to a notice of motion for an order allowing him to inspect an affidavit filed by Mr Julian Day ("Mr Day") in respect of an application made by Mr Day under s 81 of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"). 2 Section 81(1) provides as follows: "Where a person (in this section called the 'relevant person') becomes a bankrupt, the Court or a Registrar may at any time (whether before or after the end of the bankruptcy), on the application of : (a) a person (in this section called a 'creditor') who has or had a debt provable in the bankruptcy; (b) the trustee of the relevant person's estate; or (c) the Official Receiver; summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy." 3 Six persons, including Mr Gould, have been summoned on the application of Mr Day. Mr Gould does not suggest that s 81(1) did not authorise the application made by Mr Day in this case. He asks that he be allowed to inspect the affidavit for the reasons outlined in affidavits filed by him in support of his application. In essence Mr Gould alleges in his affidavit that in the past Mr Day has been prone to exaggerate and to be very economical with the truth in three main categories: 1. Swearing perjured affidavits. 2. Misleading people as to his qualifications. 3. Exaggerating figures and accounts. 4 Order 77 of the Federal Court Rules is concerned with proceeding in bankruptcy. Subdivision C of the Order, which is comprised of rules 32‑39, applies to an application to the Court or a Registrar for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person. Rule 33 deals with the application for the summons and r 34 deals with the affidavit which is to accompany the application or notice of motion. Rule 34(3) provides that: "The supporting affidavit may be filed in a sealed envelope marked 'Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966'. If the supporting affidavit is filed in a sealed envelope in accordance with subrule (3), the Registrar must not make it available for public inspection." 5 In this case the supporting affidavit appears not to have been filed in a sealed envelope marked as provided for by r 34(3). However, I refer to the rule because it reflects a recognition that a supporting affidavit of the kind sworn by Mr Day may need to be withheld from public inspection. 6 Order 77 r 38(1) provides: "An examinable person who is served with a summons, and who wishes to apply for an order to discharge the summons may do so by filing: (a) a notice of motion in the proceeding in which the summons was issue; and (b) an affidavit setting out the grounds in support of the notice of motion." 7 There is currently no application for the discharge of the summons served on Mr Gould nor has any of the persons summoned, other than Mr Gould, made any application to the Court. 8 In Max Donnelly (Trustee), in the matter of William Roy Davison v William Roy Davison [2000] FCA 1396 ("Davison's case") I considered, among other things, the issue of access to material which grounded the issue of a summons under s 81. I took the view then, which I still hold, that the Court should only exercise its discretion to order disclosure of a document such as the affidavit which Mr Gould seeks to see where the justice of the case so requires. 9 I express no view about whether the material upon which Mr Gould has placed reliance would indicate that the justice of the case requires that he be given access to Mr Day's affidavit were Mr Gould to move the Court to set aside the summons served on him. As I have mentioned, there is no application before the Court to set aside either the summons served on Mr Gould or any of the summons issued on Mr Day's applications. In the circumstances, I do not consider that the justice of the case requires that Mr Gould have access to the affidavit sworn by Mr Day. I note, however, that in Davison's case I referred to the need for the courts to take care in giving persons who are to be examined under s 81 access in advance to material where their having such access might undermine the very purpose of the examination. 10 The application is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.