Re Bawn, J.W. v. Ex parte Trade Credits Ltd [1987] FCA 167

Rule 147 makes provision for the mechanism of discovery by an affidavit, and also provides for the form and content of the affidavit. Rule 148 makes provision for an application to be made to the court by a party in relation to discovery without limiting the potential applicants only to those who would seek discovery. In other words, it would seem that the court may be approached by any party to a proceeding in relation to

discovery matters, including the recipient of a requisition for

Rule 148 goes on to provide that on such application, the court may make such order for the "filing of an affidavit of discovery or a further affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceeding." This provision presumably implies that the court may not

only make such order but decline to make such order.

In this case, 1t does not appear to me to be appropriate to decline to make an order for the filing of an affidavit of discovery, because the proposed contested bankruptcy petition, which is set down for hearing hext month, may very well raise issues for which discovery 1s

appropriate and in relation to which the respondent may be entitled to

The question in this case is therefore whether there ought to be made an order pursuant to rule 148 of a limited kind in terms of confining the

In the course of argument, Mr. Newton for the respondent outlined a series of issues which he says will arise at the hearing of the petition. I do not take him to have attempted today to provide a comprehensive list of such issues, but that the seven or eight that he outlined were mere examples of some of the issues that would be proposed

Some of the issues which he raised go to the very basis upon which the bankruptcy notice which preceded the petition was issued, including the validity in the sense of the appropriateness and correctness of the judgment of the Supreme Court of Queensland on which the bankruptcy notice was based. I asked counsel in argument whether there was a case 1n which the bankruptcy jurisdiction has been energised in these circumstances for the purpose of relitigating and re-examining the basis of the judgment preceding a bankruptcy notice and neither party was able to refer me to to any such decision. Because of the urgency of this

matter, I am not able to search for authority myself.

In any event, it is not necessary to decide the question now nor does it seem to me to be appropriate that I should prejudge the issue when the matter is still to be litigated. The problem is that 1f all of the INMatters that led up to the proceedings in the Supreme Court of Queensland from the judgment of which the bankruptcy notice stems, there would be no end of documents that might be produceable on discovery. On the evidence before me this would not only be time consuming, but apparently very costly and inconvenient, because, as I am informed, most if not all of these documents are in Queensland, and are being used in

In the circumstances, it seems to me that I should order that the respondent should supply to the applicant a list of what it considers are the matters in question in the contested bankruptcy proceeding and that an affidavit of discovery should then be filed by the applicant in

In the event that there is a dispute about any or all of those matters in question as defined by the respondent, that matter will have to be determined at the hearing, and the discovery will have to be determined at that time as well. In order to protect the interests of the parties as best I can, I shall make orders at the hearing as may seem appropriate in order to ensure that the minimum injustice is done to the parties because of the delay, but I see no way at the moment, on an interlocutory proceeding of this kind, of confining the issues which

would finally determine the matters in respect of which discovery can

I therefore order that within seven days the respondent serve upon the applicant a list of the matters which he alleges are in question in the contested bankruptcy proceeding. I order that the respondent then file within fourteen days thereof an affidavit of discovery in respect of those matters. I grant liberty to apply to the parties on 24 hours' notice to my associate in respect of disputes which arise 1n relation to these discovery proceedings. I stand over such other matters arising under the application as have not been dealt with, including the

question of costs, to the hearing of the bankruptcy petition.