Petruk, E.M. v The Official Trustee in Bankruptcy [1986] FCA 282

Federal Court of Australia|1986-06-18|Before: Burchett JJ, Woodward J, Smithers J, Sweeney J, Burchett J

CORAM: Sweeney, Wilcox and Burchett JJ. DATE: 18 June 1986

SWEENEY J. The order of the Court is that the appeal be dismissed with costs. The Court's reasons for judgment will be !

BURCHETT J. This is an appeal from an order of Mr. Justice Smithers made on 2 April, 1986, upon an application by ' the Official Trustee in Bankruptcy as trustee of the estate of ' Andy Rolf Petruk, described in that application as being also

Petruk, the present appellant, who is the wife of the bankrupt, for contempt of Court, in that before the Court when being examined before the Court pursuant to section 81(6) of the Bankruptcy Act 1966 ("the Act"), on 7 May 1985, she

refused to answer the question: "How many windsurfers does your husband own?"

("the said question"), when directed by the Court to do so.

(2) That the appellant pay the trustee's costs of his application.

Section 81(11) provides that: "A person being examined under this section shall answer all questions that the Court, the

Registrar or the magistrate puts or allows to be put to him."

The examination of the appellant was taking place before

Woodward J. on 7 May 1985, when she was asked the question I have indicated, directed by the Court to answer it, and refused to do

so. It is clear from the transcript that Woodward J. was at pains to ensure that she understood her obligation under the law,

"(1) That the said respondent do stand committed to Her Majesty's Prison

Pentridge or other appropriate prison for her said contempt for the period of six months and the Court further orders pursuant to rule 176(3) of the Bankruptcy Rules that the warrant for committal of the said respondent to prison lie in the office of the Registrar in Bankruptcy at Melbourne until 4PM on the 16th day of April 1986, and be not executed if before 4PM on the 16th day of April 1986, the said Elizabeth Maria Petruk shall have caused to be filed in the said office in this proceeding an undertaking in writing signed by the said Elizabeth

Maria Petruk in the terms of the undertaking set forth in the schedule to this order..."

There were further orders, and in the schedule there was

"I, ELIZABETH MARIA PETRUK, the person ordered by the Federal Court of Australia on the 2nd day of April, 1986 to be committed to prison for contempt of that court on the 7th day of May 1985, hereby promise and undertake to the court that upon my further examination pursuant to Section 81 of the Bankruptcy Act 1966 I will answer the question 'how many windsurfers does your husband own?' if the said question shall be asked of me and that upon my further examination pursuant to the said section i (sic) will answer each question that the Court or a Registrar may put to me or allow to be put to me."

The appellant, who appeared in person, had filed a Notice of Appeal which states as grounds for the appeal:

"That the Orders and the Judgement made by Mr. Justice Smithers in proceedings No 397 of 1984 on 2 April 1986, be annulled as they are illegal, unconstitutional and violate principles of democracy."

The document also sought an order that the respondent pay the

Mrs. Petruk made statements, in the course of her argument, about the reasons for her leaving the court room, to which I shall refer later, during the hearing of the respondent's application to Smithers J., and thereafter remaining out of court. We note that the transcript is not consistent with her

explanation. She told us that she left at the stage which was

reached at the end of page 554 of the transcript. Immediately before that the transcript shows she had told the Judge:

"I intend to go home now because you have no right to be here in this Court and the High Court shall decide if you have the right or you have not the right because what is going on here in this Court, that the other party can collect judges - they already had you once and they got beautiful orders, all fraudulently achieved, because you just ignored everything which was brought before

Well, Mrs. Petruk, I have explained to you the fact that the fact that you go away will not stop the case.

MRS PETRUK: Your Honour, it has to stop the case because you have no right to be here and I shall be applying to the High Court about whether you can continue or not.

MRS PETRUK: If you do continue, your Honour, you have no right to continue. It is just of doing some more damages and administer the

money they have already fraudulently made away so there is nothing left. OK.

And that is the stage at which Mrs Petruk told us she left the

Mrs Petruk complained that the Registrar limited the appeal documents, and that he applied the Appeal Rules of this Court. Of course, it is true that he did both these things, but he did not limit the documents so as to exclude anything relevant

So far as the rules are concerned, this Court's original jurisdiction is, in bankruptcy, exercised according to the Bankruptcy Rules, but an appeal is, of course, not a proceeding in Bankruptcy but in the appellate jurisdiction of this Court, and the rules are the rules of this Court applicable to such

A further complaint was that the name of the appellant was incorrectly stated on earlier documents, though not in the application before Smithers J. It was not disputed that she did in fact refuse to answer the Court's question when appearing before Woodward J. Probably the main matter argued by the appellant was that Smithers J. had no power to hear the

proceedings for contempt, because Jenkinson J. had partly dealt

It appears there came before Jenkinson J. applications to punish for contempt of court both Mr and also Mrs Petruk. His Honour dealt with the two matters separately, and made an order in respect of Mr Petruk. During intervals in the hearing of the proceedings in respect of Mr Petruk, some evidence was taken respecting the allegations against Mrs Petruk. However, after giving judgment in Mr Petruk's case, his Honour expressed the view that it would be better for the proceedings against Mrs

After being listed for mention on several occasions, the

matter was listed for hearing before Smithers J. on 2 April 1986.

On that day, Mrs Petruk appeared and submitted to Smithers J. that he should not hear the matter. Before the hearing was

completed, she withdrew, and in the result his Honour found the

applicant's case proved, and made the order under appeal.

In view of the submissions made to us, particular reference should be made to the fact that the matter was listed for mention before Jenkinson J. on 3 February 1986 at 4.15PM. His Honour on that occasion was apparently unable to take the matter, and after a short interval, the matter was dealt with by Keely J. who ordered that it be listed in a call-over list. In our view, nothing turns on the identity of the judge who dealt with the mention of the application. The real question is whether Smithers J. was disentitled to hear the matter because of what had occurred before Jenkinson J. in December. Clearly he

The application had not been heard to finality, and the power of the Court to deal with it had not been exhausted.

There had been no appeal, in the proceedings relating to Mrs

The other matters argued can be dealt with shortly. Mrs Petruk conceded before us, as I have already indicated, that she had been directed to answer a question about windsurfers owned by

her husband, and had refused to do so. She claimed to be

Firstly, she claimed that she had herself been denied

answers to questions she had raised about the removal of property from premises in Perth at an earlier date. One version of this

"I did not answer the question because the court refused to give the reason why (the Official Receiver) had the stolen goods."

Secondly, that is the second reason given was, that ona

prior occasion an error had occurred in a transcript.

disobedience to a direction of the Court to answer the question.

Mrs Petruk also complained that the proceedings had been brought in the name of the Official Trustee without nominating the individual concerned, who was, she said, a Mr Bursacott. Her complaint in this regard was that she was thus denied an opportunity to question Mr Bursacott. However, he did not swear any affidavit tendered before Smithers J., nor was he called on subpoena, nor so far as appears was this point taken below. rt

Mrs Petruk claimed that, in two respects, matters put to Smithers J. by counsel then appearing were inaccurate. It is not

clear to us whether this is in fact so, but in any event the

statements were matters of quite immaterial detail.

committal for contempt was not personally served, as required by

rule 176. The evidence was - and she conceded ~ that she received the documents by special delivery post. It does not

appear whether there was an order for substituted service, but it is clear that she was at all times aware of the progress of the matter, and participated both before Jenkinson J. upon at least the mention date (about which she complains in an argument which

I have mentioned earlier), and again, before Smithers J.

The matter of service was not raised before Smithers J., and indeed the argument presented - that is, the argument that was raised - was based upon the pre~-supposition that she had been

properly before Jenkinson J. If there was any deficiency in

Finally, the appellant submitted that the application was mala fide in that it was brought to obtain an order for costs

to found a bankruptcy petition. There is no substance in this

Because the appellant was unrepresented, we have dealt with her arguments, notwithstanding: firstly, her failure to file proper appeal papers in accordance with the rules of this Court, which is the Court to which she has appealed; and secondly, that she has in fact signed an undertaking in writing

as provided for in the order. The precise terms of the

court that upon my further examination pursuant to Section 81 of the Bankruptcy Act 1966 I will answer the question 'how many windsurfers does your husband own?' if the said question shall be asked of me and that upon my further examination pursuant to the said section i (sic) will answer each question that the Court or a Registrar may put to me or allow to be put to me."

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Court.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Cited By (1)