*% LIMITED DISTRIBUTION iG] IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY ) ) } ) No P 1999 of 1986 ) ) ) Re: JOHN WORTHY BAWN Judgment Debtor Respondent Ex parte: TRADE CREDITS LID. a Applicant™ CORAM : E1nfeld J. =P DATE : 17 March 1987 . Lo FEDERAL CCURT OF to. AUSTRALIA EX-TEMPORE JUDGMENT \. PRINCIPAL This 18 an application by the creditor presenting a petition the bankruptcy of the respondent that a notice of discovery dated 23 February 1987 (exhibit C) be set aside or, alternatively, that the discovery should be limited in some way. The notice of discovery was issued pursuant to rule 146 of the Bankruptcy Rules in accordance, as that rule provides, with form 50. Foxm 50 makes two alternative schemes available for discovery. One is precisely in the terms of rule 146 that documents be discovered "relating to the matters that are in question in the proceeding"; the other is a provision that documents be discovered relating to "the following matters that are in question in the proceeding". If the second alternative were adopted, the suggested matters would obviously be listed by the applicant for the discovery. In this case, the applicant for discovery being the alleged debtor has chosen the first and most general provision, which strictly accords with the words of rule 146. Rule 147 makes provision for the mechanism of discovery by an affidavit, and also provides for the form and content of the affidavit. Rule 148 makes provision for an application to be made to the court by a party in relation to discovery without limiting the potential applicants only to those who would seek discovery. In other words, it would seem that the court may be approached by any party to a proceeding in relation to discovery matters, including the recipient of a requisition for discovery. Rule 148 goes on to provide that on such application, the court may make such order for the "filing of an affidavit of discovery or a further affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceeding." This provision presumably implies that the court may not only make such order but decline to make such order. In this case, 1t does not appear to me to be appropriate to decline to make an order for the filing of an affidavit of discovery, because the proposed contested bankruptcy petition, which is set down for hearing hext month, may very well raise issues for which discovery 1s appropriate and in relation to which the respondent may be entitled to documents in the possession of the applicant. The question in this case is therefore whether there ought to be made an order pursuant to rule 148 of a limited kind in terms of confining the affidavit of discovery. In the course of argument, Mr. Newton for the respondent outlined a series of issues which he says will arise at the hearing of the petition. I do not take him to have attempted today to provide a comprehensive list of such issues, but that the seven or eight that he outlined were mere examples of some of the issues that would be proposed to be raised in defence of the petition. Some of the issues which he raised go to the very basis upon which the bankruptcy notice which preceded the petition was issued, including the validity in the sense of the appropriateness and correctness of the judgment of the Supreme Court of Queensland on which the bankruptcy notice was based. I asked counsel in argument whether there was a case 1n which the bankruptcy jurisdiction has been energised in these circumstances for the purpose of relitigating and re-examining the basis of the judgment preceding a bankruptcy notice and neither party was able to refer me to to any such decision. Because of the urgency of this matter, I am not able to search for authority myself. In any event, it is not necessary to decide the question now nor does it seem to me to be appropriate that I should prejudge the issue when the matter is still to be litigated. The problem is that 1f all of the INMatters that led up to the proceedings in the Supreme Court of Queensland from the judgment of which the bankruptcy notice stems, there would be no end of documents that might be produceable on discovery. On the evidence before me this would not only be time consuming, but apparently very costly and inconvenient, because, as I am informed, most if not all of these documents are in Queensland, and are being used in other proceedings. In the circumstances, it seems to me that I should order that the respondent should supply to the applicant a list of what it considers are the matters in question in the contested bankruptcy proceeding and that an affidavit of discovery should then be filed by the applicant in respect of those matters in question. In the event that there is a dispute about any or all of those matters in question as defined by the respondent, that matter will have to be determined at the hearing, and the discovery will have to be determined at that time as well. In order to protect the interests of the parties as best I can, I shall make orders at the hearing as may seem appropriate in order to ensure that the minimum injustice is done to the parties because of the delay, but I see no way at the moment, on an interlocutory proceeding of this kind, of confining the issues which would finally determine the matters in respect of which discovery can legitimately be required. I therefore order that within seven days the respondent serve upon the applicant a list of the matters which he alleges are in question in the contested bankruptcy proceeding. I order that the respondent then file within fourteen days thereof an affidavit of discovery in respect of those matters. I grant liberty to apply to the parties on 24 hours' notice to my associate in respect of disputes which arise 1n relation to these discovery proceedings. I stand over such other matters arising under the application as have not been dealt with, including the question of costs, to the hearing of the bankruptcy petition.