Re Whitla, W.J. & Anor v. Ex parte Taylor, A.R. [1985] FCA 77

Federal Court of Australia|1985-02-21|Before: Spender J

. 410 AND 411 of 1983 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ) RE: WILLIAM JAMES WHITLA and et DESLEIGH MARISE WHITLA er e@ EX PARTE: ALAN RICHARD TAYLOR , we Oe ae SPENDER J. 21 FEBRUARY 1985

This is an application by William James Whitla and his @vtte: Desleigh Marise Whitla, who are bankrupts. Yesterday, 20

February 1985, they applied by counsel to the Registrar-in-

had been set down for 20 and 22 February 1985. Mr Whitla had

been served on 23 December 1984 with a summons to attend that

public examination and he deposes to the fact that his wife was

The Registrar, Mr Ramsey, heard evidence both orally and

on affidavit and declined to grant the adjournment of the public examination. Mr and Mrs Whitla then applied to the Federal Court, exercising jurisdiction in bankruptcy 'pursuant to the

powers that are to be found under 3.14(5) of the Bankruptcy Act

It is necessary that there be public confidence in the administration of our insolvency law, and postponements and delay in ordinary cases in any event do nothing but hinder the eventual

day when bankrupts are released from the restrictions and

The object of a public examination of a bankrupt is not

@erely to obtain a full and complete disclosure of the assets of the bankrupt, and the facts relating to the bankruptcy, in the interests of the creditors of the bankrupt, but also to protect the public. It is an administrative inquiry, but it is nonetheless important for that fact. It can involve quite

serious consequences as some of the sub-sections of 3.19 tend to

On the other hand, there is aneed for a proper @rcraration to be allowed to persons who are to he publicly examined and the Bankruptcy Act itself expressly recognises the rights of persons who are bankrupts to the assistance that legal

representation can provide. Section 69(8) provides that:-

"A bankrupt is entitled to be represented. on his examination under this section, by counsel or a

solicitor, who may re-examine him after his examination."

Sub-section (9) of s.69 deals with the situation in respect of

the trustee and the creditor of the bankrupt, and provides:-

"The trustee or a creditor of the bankrupt may take part in the examination and, for that purpose, may be represerted by counsel or a solicitor or by an

It cannot be suggested that there 15 any fault on the

part of the trustee or of the creditor, and I do not think that

It follows then that two days of hearing of public examinations ere sought to be postponed for circumstances that es peculiar to Mr and Mrs Whitla, and involve no assertion of impropriety or misconduct on the part of the trustee, or of the

In the ordinary course, where a4 party seeks an adjournment for purposes which are quite valid, it is consonant with justice to all persons who are parties to that litigation

that, if the adjournment be granted, 1t be granted on terms that

In this case there is no real guarantee, in fact no prospect, that the granting of an adjournment would not involve

injustice in a real and pecuniary sense to persons other than the Whitlas. That perhaps would not be crucial or determinative of

the proper conclusion. In this particular case, however, in

addition to that consideration, I have no confidence that the

grant of an adjournment for a short pericd such as is proposed,

that of 14 days, would mean that when the matter were resumed, it

would be able to proceed with the Whitla's case properly

In the light of those conclusions, what I would expect to happen is this: the public examination of Mr and Mrs Whitla will proceed tomorrow but, being realistic about the constraints imposed by the present power situation, those proceedings will not commence until the provision of power to this building. It would be an unfair imposition on all the parties if the public

@...nination, however desirable that it get under way, involve the

inordinate physical difficulties of starting before the provision of power to this building. -

Next, it is clear that the matter will not conclude in the truncated day that would be available before the kegistrar or Deputy Registrar tomorrow, and it would seem to me consistent with the recognition of the value of legal representation, and to the promotion of a cost-efficient and expeditious determination @. the public examination, if the further hearing of that examination were to be resumed ata period not shorter than 14 days so that Messrs Watkins Stokes - of other legal

representatives, if it comes to that - can have the opportunity

of being in a position to render the representation which the Act

I would also hope that the representation of Messrs Watkins Stokes, albeit with the limitations necessarily attendant

apon the lack of preparation, could be extended to Mr and Mrs

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)