Nps a FEDERAL COURT OF AUSTRALIA File: 3-2 Principal REGISTRY MINUTE LO All District Registrars Re: Foster Ex Parte: The Official Trustee Qld. £759 of 84 The attached is a judgment of Pincus J wherein he refused to make an order that publication of the proceedings in a public examination be prevented or restricted. In the course of the judgment Pincus J noted that while subsection 69 (4) requires the examination to be held in public it appeared to him that the Court had power to restrict or prevent publication of the proceedings. He held, however, that this was not a case in which that power should be exercised; while there were disadvantages to the examinees in having the matter publicised there were public advantages in ensuring that members of the public had knowledge of the proceedings in public Courts. C.E. Walson, Deputy Registrar. 26 March 1987 e wm 4 . "1A ' IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISTON ~ ~ QLD E759 of 1984 BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND ~ - "eP \ RE: PETER CLARENCE FOSTER Ny also known as PETER MICHAEL FOSTER ent EX PARTE: THE OFFICIAL TRUSTER MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 12 MARCH 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: (1) There be no order on the reference by the Registrar; (2) The application for an order that publication be prevented or restricted be dismissed; (3) The costs of the application mentioned in (2) be reserved; (4) The application for leave to appeal from the order made in (2) be dismissed; (5) The application for a direction that the public examination of the applicant be adjourned be refused. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION —~ QLD E759 of 1984 BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND ~~ RE: PETER CLARENCE FOSTER also known as PETER MICHAEL FOSTER EX PARTE: THE OFFICIAL TRUSTER PINCUS J. 12 MARCH 1987 EX TEMPORE REASONS FOR JUDGMENT This matter came before the court by way of a reference by the Registrar in the course of a public examination but, by consent has been altered in its character and 1s now an application by the bankrupt for a_ restriction of publication of the proceedings. Senior counsel for the bankrupt relies upon newspapers exhibited, which he says show the dangers associated with unresticted publication in this particular case to be excessive. Exhibit 3, to which he refers me, speaking of the examination of the bankrupt which is to take place, says, "Angry business men are gathering from all over Australia to confront him" - "him" being the bankrupt. Exhibit 2, to which Mr. Douglas Q.C. also refers me, speaks of the bankrupt as facing or beating bankruptcy charges. There are other statements in the material which I can understand the bankrupt finding offensive and which may well constitute, as they are alleged to do, inaccurate reporting. Mr. Douglas 9.C.'s contention is that the examination should not proceed in the ordinary way but that there should be a special order made in favour of the bankrupt, and I suppose in a sense in favour of Samantha Fox who has also made an affidavit, restricting or preventing publication of disclosures made in the course of public examination of the bankrupt. He argues in the alternative that a proper course would be to direct that the Registrar determine each day what material is to be published by newspapers - presumably those not only here, but overseas. I can understand the bankrupt being annoyed by some of the material which has been published and would hope that, in view of the complaint which has been made to the court, the genuineness of which I quite accept, the newspapers concerned, namely Midweek Truth and the Gold Coast Bulletin, might take some care to' ensure that their reporting of the matter 1s accurate and fair. Should they fail to do so, as has been mentioned during the course of the hearing, there 1s a possibility of legal proceedings against them directly. I do not, however, decide whether the reporting which has taken place is or is not lawful. It appears, on the face of it, to be rather exaggerated and lurid. The basic principle is not in doubt, and is conceded by Mr. Douglas Q.C., that court proceedings should be conducted in public and that the public should, through the media, be entitled to know what is happening. The principle is, of course, underlined in respect of examinations of the kind in issue by s.69(4) which expressly requires that examination be held in public. Despite that, Mr. Logan, who is appearing for the Trustee, concedes that the court has power to restrict or to prevent publication. Assuming that such power exists, and it appears to me that it does, although it 1S unnecessary to reach a final conclusion on that matter, it is clear, in my view, that this 1s not a case in which it should be exercised, There are disadvantages to the bankrupt and to Miss Fox in having the matter publicised, no doubt, but there are public advantages in ensuring that people have the means of knowledge of what is occurring in the public courts, and they have been referred to by Mr. Logan. The orders which I will make are that I will make no order on the reference. On the application by Mr. Douglas for an order that publication be prevented or restricted, that application will be dismissed, and the costs of that application will be reserved. There is now a further application for leave to appeal from my refusal of Mr. Douglas' application, as 1s required by s.24(1A) of the Federal Court of Australia Act. The assumption on which the application is made is that the provisions of that section apply to these proceedings and that assumption seems to me correct. The argument which Mr. Douglas puts forward in support of the application for leave is that it is to be contended, or tht would be contended, that I have erred in the exercise of my discretion, and have not reached the conclusion towards which my findings pointed. It does not seem to me, however, that that is sufficient ground to give leave to appeal. Without attempting in any way to be exhaustive, one would expect that 1n a matter of this sort the court should not give leave unless there were some important question of principle involved, or some issue otherwise of great significance - in the sense that it 1s criticial to the parties or of considerable magnitude. It does not seem to me that this case is in that category. It 1s true that it 1s an unusual application and one in respect of which no direct authority has been able to be found, but I do not believe that the court should give leave. The examination should, in my opinion, proceed, and JI will refuse leave to appeal. t certify that this andthe "3 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus A ey Associate 12 Mark 149s] Dated