CATCHWORDS BANKRUPTCY - application to have public examination concluded ~- whether the Court can make such order - ill health of bankrupt ~ whether previously unanswered questions should be answered —- whether can resume public examination that has been concluded. Bankruptcy Act 1966 ss.69(5)(b), 69(5)(c), 69(7)(c) s.81, s.150(1)(a) RE: PETER LEOPOLD CLYNE EX PARTE: DEPUTY COMMISSIONER OF TAXATION NO. W929/1983 Jackson J Sydney 6th May 1987 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. W929 of 1983 AND THE AUSTRALIAN CAPITAL TERRITORY RE: PETER LEOPOLD CLYNE EX PARTE: DEPUTY COMMISSIONER OF TAXATION CORAM: Jackgon J. DATED: 6 May 1987 MINUTES OF ORDER . THE COURT ORDERS: that the public examination of Peter Leopold Clyne be and is now concluded. NOTE: Settlement and entry of orders is dealt with in Bankruptcy Rule 124. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. W929 of 1983 AND THE AUSTRALIAN CAPITAL TERRITORY RE: PETER LEOPOLD CLYNE EX PARTE: DEPUTY COMMISSIONER OF TAXATION CORAM: Jackson J. DATED: 6 May 1987 REASONS FOR JUDGMENT . Peter Leopold Clyne, ("the bankrupt") was made bankrupt on 22 January 1985. His public examination was conducted before the Registrar and after some days of hearing the examination was adjourned for further hearing before a Judge pursuant to s.69(5)(b) of the Bankruptcy Act 1966. The examination was last before me on 6 November 1986 and it was agreed then that, due to the ill health of the bankrupt, the public examination should be adjourned to a date to be fixed by the Court with a mention on lst May 1987. It was a condition of that adjournment that the bankrupt, if required by either the trustee in bankruptcy or the Deputy Commissioner of Taxation, would submit himself for further medical examination by such doctor or doctors as may have been nominated by either or both of them. 2. When the matter came on before me on Ist May 1987 the bankrupt by his counsel sought an order that the public examination of the bankrupt be concluded. Although the Act does not specifically confer such a power on the Court, it seems clear enough that s.69(7)(c) read in the light of the presence of s.69(5)(c) is sufficiently wide to empower the making of such an order. The ground on which the order is sought is that the bankrupt's health would be put in jeopardy by the continuation of his public examination. It is alleged that the fact that he would be required to be present for examination would be dangerous to his health and further that the mere fact of the examination remaining on foot would also be dangerous to his health by way of the stress it would cause. A report of Dr. Peter Kendall dated 15 April 1987 is relied on by the bankrupt in support of his case. The report states that it would be dangerous to the health of the bankrupt to appear in Court and regarding the future it says "I think he has achieved as much improvement as is possible, and I doubt that he would be any more fit for appearing in court in say 3, 6 or 12 months or 2 years than he is now; in fact it 1s quite likely that he will be less fit." Apart from that report, the bankrupt relres on the reports of five other medical practitioners. These reports are from Dr. G.E. Bauer (6 April 1987), Dr. David Isaacs (13 April 1987), Dr. Warren Kidson (21 February and 10 April 1987), Dr. D.R. Richmond (13 April 1987) and Dr. Maurice Richmond (9 January 1987). Similarly, a medical report from St. Vincent's Hospital is relied upon. The matters stated in the reports are such that I am satisfied that it would be unwise, in view of the health of the bankrupt, to continue the court appearances. 3. The bankrupt's trustce does not presently wish to ask the bankrupt further questions, but asks that the matter be left open (by being adjourned generally) so that, if necessary, guestions can be asked regarding matters which arise in the future. The Deputy Commissioner of Taxation, the substantial creditor in this matter, also does not wish to ask further questions of the bankrupt at this point. He does, however, seek answers to questions that were not answered by the bankrupt during the earlier parts of the public examination. When the bankrupt refiised to answer various questions put to him on those occasions he was directed to do so. He refused to answer them pending a challenge to my rulings that he should do so. The Deputy Commissioner by his Counsel has offered to put the questions in writing and to invite the bankrupt to give his answers in writing, the bankrupt returning to the witness box only to depose formally to his answers. I must say, having considered again the questions which appear to be outstanding, in the light of the manner in which the previous hearings of the matter proceeded, that I think it unlikely that the issue would be resolved so simply and that I think that the effect of adopting the course suggested would simply be that the public examination would remain. In my view, in the light of the medical evidence, the order which I should make is that the bankrupt's examination be now concluded, rather than adjourned generally. It was suggested that 1£ I were to adopt that course, the public examination could not then be resumed, even if the bankrupt's health were to improve and if new matters justify that course were to appear. I 4. am not myself completely satisfied that the terms of s.69 are such that as a matter of law a second public examination may not be required, although it may be that provisions such as s.150(1)(a) should lead to that conclusion. In any event, however, the Court has power under s.37(1) to rescind an order concluding a public examination if circumstances there appearing were to warrant it. I should note that it would be possible for an examination of the bankrupt to be held under s.81 of the Act. As is the case with a public examination under s.69, the Act provides that both the trustee in bankruptcy and creditors can take part in such an examination. It is probable, however, that in an examination under s.81, the bankrupt is entitled to rely on the privilege against self-incrimination whereas, in an examination under s.69, he is not. In the result I am minded to order that the public examination of the bankrupt be concluded, and I shall now do so. I certify that this and the preceding -3 pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Jackson Associate Jubean Natiaa~ Dated: 6 May 1987