JACKSON J:
1 This matter concerns ongoing disputes regarding the bankruptcy of Peter Fiore. I provided background in relation to the matter in two previous decisions: Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore [2019] FCA 687; and Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore (No 2) [2019] FCA 916.
2 On 15 May 2019, I ordered that examination summonses issued to parties, including the respondents, would be returnable on 7 August 2019, that is, tomorrow. The return has been listed for three days, being 7 to 9 August. Counsel for the trustee indicated that the attendance of the second to seventh respondents may be required as early as tomorrow afternoon, and that the attendance of Peter Fiore may not be required until after that, perhaps on Friday, 9 August.
3 By an application filed on 1 August 2019, the respondents, being Peter Fiore and members of his family, now seek orders with the effect of requiring them not to attend at the return of the summonses, and other orders in the alternative. There was no indication given at the time of filing the summons that it was urgent, and the court's registry did not issue it until 5 August 2019. So it was not served until yesterday afternoon. Nevertheless, the trustee did not seek an adjournment of the hearing today, and counsel for the trustee indicated that he was prepared to argue the matter.
4 One of the matters raised by the interlocutory application fell away as a result of the parties' agreement, which emerged in interchanges between the bar table and the bench at the hearing. Orders were made by consent dealing with that issue. So it is not necessary to address it in these reasons.
5 The first issue that does need to be addressed is that Peter Fiore seeks a declaration that he does not have to attend the examination summons because he has not been served with it. As a party to an application to set aside the summons, which application I dismissed in relation to Peter Fiore, he can hardly claim not to have had notice of the summons and its terms. Nevertheless, his solicitor has deposed that she is instructed that Mr Fiore has not ever been personally served with the summons. While she acts for him and has received a copy of the summons by email, she has never indicated to the trustee's solicitors that she accepted service by email. That evidence is not disputed.
6 I was initially disposed to look very dimly on this application because the papers filed in support of it gave no indication of why the application was only filed late last week, when, as I have indicated, Mr Fiore and those advising him must have been aware of the summons and the issue well before that time. However, again in discussions between the bench and the bar table, it emerged that counsel for the respondents had raised the issue of lack of service on Mr Fiore with counsel for the trustee some weeks ago. There was no evidence before me to that effect, because it was something said in conferral. However, counsel for the respondent, with respect sensibly, did not object to me taking account of that as a fact, after I asked whether any without prejudice privilege or other restriction on disclosing communications made by way of conferral had been waived. Counsel for the trustee could not recall exactly when the issue had been raised with him, but he confirmed it was a matter of weeks, as opposed to days.
7 No submission to the effect that personal service has been made was advanced by the trustee. Instead, the trustee relied on two points.
8 The first was that r 6.09 of the Federal Court (Bankruptcy) Rules 2016 (Cth) provides:
Service of summons
If the Court or a Registrar summons a relevant person under subsection 81(1) of the Bankruptcy Act for examination, the applicant for the summons must, at least 8 days before the date fixed for the examination:
(a) serve the summons on the relevant person personally, or in another way directed by the Court or a Registrar; …
9 Counsel submitted that the effect of the judgment I delivered on 14 June 2019, confirming that the summons issued to Mr Fiore was valid and would not be set aside, was effectively a direction complying with r 6.09(a), to the effect that Peter Fiore could be served in a way other than personal service. However, I cannot see how that can be so. A direction for the purposes of r 6.09(a) must refer to an order. I made no order about the summons issued to Peter Fiore on 14 June 2019. I simply indicated in my reasons that I declined to set it aside. Even if I had made such an order, an order that the summons as issued is valid cannot be equated with an order as to the manner in which it could be served.
10 The second point made was that if I had not made any direction concerning alternative service, I could make one now under r 6.09(a). It is true that if I were otherwise minded to make that order, a further issue would arise, in that it would not be made within the eight days required by the rule. I am nevertheless prepared to assume that I have power under s 33 of the Bankruptcy Act 1966 (Cth) to abridge that time.
11 Counsel for Peter Fiore did not argue strongly that I do not have that power. Instead, he principally relied on the submission that, as a matter of exercise of the discretion, no order for alternative service should be made, and no order abridging the time should be made. The trustee has been on notice of this issue for some weeks and his response, the submission went, was that the trustee was right, that is, that valid service had been effected, and that the first respondent was wrong. That response was indeed reflected in the position that the trustee took at the outset of this hearing, namely that valid service had been effected. But with respect, there is little basis for the trustee's position in that regard. As I have said, no direction under r 6.09(a) has been made. Nor, in my view, has anything reasonably capable of being construed as such a direction been made.
12 I accept that Peter Fiore has been on notice of this summons for a long time, but in circumstances where:
(a) the trustee and those representing him are experienced professionals;
(b) they must, therefore, be taken to have been aware of the importance that the law places on personal service, especially when a person is being compelled to attend a court to give evidence, rather than do whatever else, in the circumstances, he would have been free to do;
(c) they were on notice of the issue for a matter of weeks;
(d) they could have fixed the problem very simply by serving Mr Fiore (no suggestion has been made that this would have been in any way impossible or impracticable); and
(e) instead, they maintained, with little or no basis, that service had taken place,
I decline to exercise my discretion to either make a direction varying the method of service or abridging the time for service.
13 It may have been open to the trustee to argue that Peter Fiore was now estopped from denying that service was valid or, by his conduct, had waived the right under the rules to require personal service: see Ditfort v Temby (1990) 26 FCR 72 at 80. But while counsel for the trustee did refer to the fact, which is undoubtedly true, that there has been a great deal of correspondence about the summons and that Mr Fiore and his solicitors must have been fully aware of its existence and its terms and the date of its return, no estoppel or waiver argument was put or supported by evidence. I do not consider it would be appropriate for me to deal with the matter on that basis. In any case, the facts in Ditfort v Temby were very different as, in that case, there had been a clear and explicit acceptance by a legal officer acting on behalf of the respondent that personal service was not required.
14 In view of the circumstances I have set out, I see no reason why the discretion to make a declaration that valid service has not yet been effected on Peter Fiore should not be exercised in Mr Fiore's favour. I will therefore make such a declaration.
15 The second issue that calls for determination today arises because the application filed on 1 August 2019, as amended, seeks declarations to the effect that the respondents are not in jeopardy of a warrant for their arrest issuing for non-attendance at the summons on 7 August 2019, because they have not been paid conduct money.
16 Ms Velevski's affidavit filed on 1 August 2019 says that on 9 May 2019 the solicitors acting for the trustee wrote advising that conduct money for Liliana Fiore in the sum of $50 would be paid and asked for bank account details into which it could be deposited.
17 On 20 June 2019 Ms Velevski emailed the solicitors for the trustee saying, among other things, 'Explain [sic] that we require conduct money for all examinees by cheque'. She explains in her affidavit (but not in the email) that she did not want to give bank account details because she does not maintain a trust account. That does not explain why bank account details for the examinees could not have been provided. But, in the end, that is neither here nor there because Ms Velevski says that she has not received a response to that email and has not received any payments from the trustee.
18 Counsel for the trustee pointed out that the respondents had indicated that the claim about failure to provide conduct money would not be pressed for the purposes of the application concerning validity of the summons. Counsel indicated that he and his instructors thought that the issue had gone away.
19 However confirmation that the point would not be pressed for the purposes of the validity of the summons was given before 20 June 2019 and, in any event, related to a different issue. I do not accept, therefore, that those advising the trustee would have reasonably thought that conduct money was no longer required. Counsel for the trustee indicated that his instructors wrote to Ms Velevski yesterday, offering to pay conduct money of $50 at the hearing. Once again, while there was no evidence of this, no objection was raised to me taking into account that information as proffered from the bar table. Subject to that, at present only Liliana Fiore has arguably received any tender of conduct money and, in my view, the lapse of time since Ms Velevski's response indicates that the tender is no longer current or surviving.
20 While there has been a proposal for tender made yesterday, the proposal is not for the provision of the conduct money at a reasonable time before the hearing, as is required by r 6.17(3) of the Federal Court (Bankruptcy) Rules. Counsel for the trustee indicated, again from the bar table, that no conduct money was tendered because the amount had not been agreed but, with respect, that is not a sufficient explanation. It will often not be possible to reach agreement with recipients of summonses or subpoenas as to the appropriate amount. Instead, it must be proffered or tendered. All the relevant examinees live in the Perth metropolitan area. So a relatively modest amount, such as $50, would surely have been sufficient.
21 In my view, authority establishes that, in the absence of conduct money a reasonable time before the examination summons, an examinee served with a summons under s 81 of the Bankruptcy Act is not required to attend. That is consistent with the express terms of the rules of other courts: eg, Rules of the Supreme Court 1971 (WA) O 36B r 6(1). Those rules reflect the longstanding approach of the courts in relation to subpoenas and summonses. That approach is also reflected in Donnelly (trustee) v Archer, in the matter of Archer [2003] FCA 197 at [15]-[16], a decision in which Allsop J, as he then was, held that an examinee did not need to attend at the return of a summons if conduct money had not been tendered.
22 While that decision was not made under the Federal Court (Bankruptcy) Rules that now apply, I do not discern any different intention in those rules. Had the drafter wished there to be a different requirement, I would have expected to see that in clear words. I see no discretionary reason not to make the declaration sought. There is clearly a justiciable controversy between the parties as to the question, and resolving it will have utility, in that the examinees will not be required to run the risk of having warrants issued for their arrest, something the trustee has indicated he is prepared to do.
23 Once again, the trustee is an experienced professional and is represented by experienced professionals, and he must be taken to have been well aware that conduct money was required. He has been on notice of the issue since at least 20 June 2019. He could have addressed it very simply by sending cheques for modest amounts of conduct money to Ms Velevski. In those circumstances, I am prepared to make the declarations sought.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.