- »* JUDGMENT No. $53., neces. ooomeenetnell NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G20 of 1987 ) ) ) ) DISTRICT REGISTRY ) ) GENERAL DIVISION ) ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN : DOBROSOV_ PESIC and BORKA PESIC Appellants AND: THE OFFICIAL TRUSTEE IN BANKRUPTY Respondent MINUTE OF ORDER JUDGES MAKING ORDER: FOX, FORSTER AND DAVIES JJ. DATE _OF ORDER: 10 JULY 1987 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. my IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ) ) ) No. ACT G20 of 1987 ) ) ) ) ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN : DOBROSOV_PESIC and BORKA PESIC Appellants AND: THE OFFICIAL TRUSTEE IN BANKRUPTY Respondent CORAM: FOX, FORSTER AND DAVIES JJ. DATE: 10 JULY 1987 REASONS FOR JUDGMENT (EX TEMPORE) FOX J. This is an appeal from a judgment of Neaves J. given on 25 February 1987 in which he was dealing with an application under the Bankruptcy Act 1966. There were two matters raised. One involved the question of whether a bankrupt who had been discharged by force of s.149 of the Act could be summonsed for examination under s.81(1), which on its face cefers to "bankrupts". This is a question which has been fully considered recently by a Full Court of this Court in Official Receiver in Bankruptcy v. Todd (1986) 70 A.L.R. 119. By majority the Court was of the view that s.81 did apply to a bankrupt who has been discharged. The strong attitude of this Court is not to overrule or reconsider prior decisions of the Full Court, subject, of course, to entertaining any argument that there is a patent error in the earlier decision or the decision was given per incuriam - without taking into account vital factors. In that situation this Court declines to entertain any argument that Official Receiver in Bankruptcy v. Todd is wrong and on the contrary will follow it. The other matter concerned the decision of the Trustee in Bankruptcy to issue the summonses. This matter was also litigated before his Honour the primary judge. We see no reason to interfere with his Honour's decision. The learned judge had a discretion. He plainly looked at the whole position and was of the view that the Trustee's decision should not be interfered with. We see no reason to take a contrary view but in any event it is to be remembered that it was a discretionary judgment of his Honour and in accordance with well established principles we will not re-examine the exercise of that discretion, except in special circumstances, and those special circumstances are lacking in the present case. I would therefore be of the view that the present appeal should be dismissed. FORSTER J: I agree. DAVIES J: I am of the same opinion. T certifv that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of. e Court. Associate: yl Date: 10 July 87 Counsel for the Appellants: D.F.Rofe Q.C. & B. Hull Solicitors for the Appellants: Allan R. Nelsen & Co. Counsel for the Respondent: I. Curlewis Q.C. Solicitors for the Respondent: Australian Government Solicitor Dates of hearing: 10 July 1987 Date judgment delivered: 10 July 1987