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[1987] FCA 379
Federal Court of Australia
1987-06-10
Woodward J, Spender J
Original judgment source is linked above.
I do not think I need call on you, Mr Irlicht, I have reached a clear view of this matter and Mr Pagone, 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.
That authority 1s a decision of His Honour Mr Justice Spender, so far unreported, in a matter of re Joy Naomi Jacka, ex parte Joy Naomi Jacka, in which judgment was delivered on 28 May 1986. There his Honour dealt in detail with the provisions of the Act, with the history of the legislation, with relevant English authority, and he considered carefully the interaction between the
And having carefully considered those matters he arrived at the conclusion that a bankrupt has no right or entitlement to put questions to a witness summoned to give evidence pursuant to the provisions 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 mind that principles of natural justice are variable and have to be considered in the light of the legislative code, which is provided to cover particular cases. I think it is particularly significant 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 think that if there had been any intention of the legislature to convey that
right it would have been done either expressly or by clear
implication. That is not the case, and it is for those reasons that, even without authority, 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 considered decision of Mr Justice Spender. For the reasons I have given, the application will be dismissed. I can see no reason why costs should not follow the event, so the
I certify that this and the two (2) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward
Counsel for the Applicant: Mr G.T. Pagone Solicitors for the Applicant: Messrs Carroll and Dillon Solicitor for the first respondent: Mr U. Torrisi of Australian Government Solicitor
Solicitor for the second respondent: Mr T. Irlicht of Messrs Irlicht and Broberg