Re Aitken, L.R. v. Ex parte Aitken, M.N. [1987] FCA 322

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT IN THE No. W 935 of 1985

STATE OF NEW SOUTH WALES AND THE

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AUSTRALIAN CAPITAL TERRITORY

Re: LINDSAY ROBERT AITKEN Ex parte: MARGARET NOREEN AITKEN CORAM: Einfeld J. PLACE: Sydney DATE: 16 March 1987

EX-TEMPORE JUDGMENT

This 1s an application to set aside a summons issued under section 81 of the Bankruptcy Act (hereinafter referred to as "the Act") and, as a

preliminary point, the applicant has sought access to the original

application for the 1ssue of the summons.

My attention has been drawn to two cases which bear upon the question as to whether access should or should not be granted to such fundamental

information in relation to an application of this kind: Re Abrahams; Ex

parte Thomas (1985) 9 FCR 232 and Re Stirling Henry Limived (in Liq.) and The Companies Act (1972) 1 NSWLR 497.

In Re Abrahams at 236, Mr. Justice Lockhart said:

"It 1s, I think, timely to comment that whether the document he called an application for the 1ssue of a summons under s 69 or s 81 or a statement of reasons to ground the issue of sucha summons or otherwise, 1t should be sealed in an envelope by the Registrar with a notation that it 1s net to be opened without the order of a judge, the Registrar or a Deputy Registrar."

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I am informed that it was these observations of Mr. Justice Lockhart

that led to the Registry adopting the practice of sealing applications of this kind. The application 1n this matter is so sealed, permission to open being limited only to a judge and a registrar. Mr. Justice Lockhart went on to say that this was a practice which has been "followed 1n courts accustomed to deal with matters of insolvency for as long as I can remember" - the "I" in this case being his Honour. His

Honour also said that 1t was a practice approved by authority and quoted