JUDGMENT No. Ltt nad al 1! IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA IN THE MATTER of the Bankruptcy and No. 287 of 1980 Act 1966 IN THE MATTER of the Estate of Julius Sefton Holt BLUTWEEN: ANTHONY GEORGE HODGSON (The Trustce of the property of Julius Sefton Holt, a Bankrupt) Applicant AND: JOHN ADAMS, SHANE MAGUIRE and KATHLEEN MARY HOLT Coram: Fox J 24 August 1981 Melbourne. This is an application whic Respondents h secks to have set aside a summons issued by the Deputy Registrar under s.81 of the Bankruptcy Act 1966 under whic —_ h the present applicant is required to attend to give cvidence and produce documents. In the altcrnative to setting aside t he summons, an order is sought that its operation be postponed. I have had a number of affidavits presented to me 1n support of the application, in opposition to it, and in reply. The case was put by counsel for the applicant on the basi s that the summons was vexatious and oppressive, or at least that further matcrial having been pointed to or made available in the affidavit filed by or on behalf of the applicant, that some opportunity should be given to the trustee, who is the respondent, to consider that material and follow up further lines of enquiry before an examination takes place. What was pointed to in particular in the present case, and I have accepted it for the purpose os my conclusion, 1s that the applicant has been co-operative with the trustec, and at least until the time of the present summons being issucd, believed he had supplicd the trustee with all infor- mation which the latter had sought or might want. It is apparent nevertheless that the trustee seeks further documents and further information. The application for the summons was made to the Deputy Registrar ex parte on the basis of a written statement by the trustec as to the grounds, and reasons for the issuing of the summons. The matter was referred to the Court by another judge last week. I am not satisfied that a case of oppression has been made out or that there is any other adequate reason for setting aside the order of the Deputy Registrar. There 15 an unresolved question which has been discussed in the cases as to whether the matter is to be reconsidered de novo by the Court, or whether on the other hand it should be approached as an appeal from the exercise of a discretion given by statute to the Registrar, or, in this case, the Deputy Registrar. There are other problems which [I have not myself resolved, namely the question of disclosure or otherwise to the recipients of the summons of the grounds relied upon by the trustce. In this connection, the working out in a bankruptcy situation of matters discussed in Re Rolis Royce Limited, (No. 2) (1970) 1 Ch. 576, calls for consideration. I have also been referred to the judg- ment of Lockhart J in Re Csidei: ex parte Andrew, (1980) 39 FLR 387. As at present advised, it does not seem to me to be the function of this Court or, for that matter, of the Deputy Registrar, or Registrar, to weigh up the pros and cons of the need for the issue of a summons in order that the trustee might carrv out his functions. As I have indicated, the case is not really put to me on this basis. J do not know how the Court could deal with the matter if it were. I also have some question in my own mind as to whether one can properly or usefully describe the exercise of the power under s.8] as an extraordinary cvent, or the power as an extraordinary one. It has of course long been recognised that a person being examined or required to produce documents pursuant to that section should be appropriately protected against any abuse of the power. This has usually been done by careful supervision o€ the examination itself; in other words, to be a matter related more to the operation of the s.81 summons than to its issue. It does seem in the present case that in the light of the affidavits which have bcen filed on behalf of the applicant, the trustcce may wish to pursue enquirics before any examination under s.81 does take place. As I understand 1t, the production of further documents is offered, and it may well be that any further documents the trustee wants or thinks might be available will be produced. Whether or not all matters will be dealt with to his satisfaction and in the proper interests of the administration of the estate is a matter that he will have to determine before the exam- ination takes place. I therefore formally intimate to the Registrar that the trustce .11l1 be taking measures such as I have mentioned, and that as these may take some time, the cxamination undocr s.81 should not take place sooner than one month from today, unless an earlier date 1s agreed upon by the parties. The order I formally make is to dismiss the application, As I have said many times, costs are a difficult matter; nobody likes having an order for costs made against them. I think one should follow the ordinary rule unless there 1s a clear reason for not doing so. I thought that may be constituted by the sort of matters I have already adverted to, but on reflection we are getting almost to a separate enquiry if we are to work out with any precision who might reasonably be expected to do what next. The application should be dismissed with costs, The s.81 summons also 1s adjourned to come before me this day, not in any expectation that it would be heard today, but rather, J imagine, as a matter of convenience, and I now adjourn that summons to be heard before the Registrar no sooner than one month from today's date, unless the parties agree on an earlier hoaring. I certify that this and the 4. ; preceding pages are a true covy of the Reasons for Judgment horein of his Honour Mr. Justice Fox Dated: 1? VET