' JUDGMENT No. (30/62. CATCHWORDS ADMINISTRATIVE LAW - Extradition - Review of Magistrate's decision to commit to prison - whether hearing de novo by court - whether Magistrate had jurisdiction - whether extradition crime - whether documents on Magistrate's file formed part of the material before the Magistrate - whether material supported Magistrate's finding that applicant was the person referred to in the foreign warrant. Extradition (Foreign States) Act 1966 ss. 4(1A), 17(6), 17(6A), 18, 24(1) HANS HEINZ KLEPP v WILLIAM PATERSON GIBB and REPUBLIC OF AUSTRIA No. VG 224 of 1987 MELBOURNE KEELY J. 18 NOVEMBER, 1987 a IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 224 of 1987 ) ) GENERAL DIVISION BETWEEN: HANS HEIN2 KLEPP Applicant AND: WILLIAM PATERSON GIBB First Respondent REPUBLIC OF AUSTRIA Second Respondent 18 NOVEMBER, 1987 KEELY J. MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application for an order of review, dated 18 August 1987, be dismissed. 2. The decision of the Magistrate, William Paterson Gibb, made 7 August 1987, that the applicant be committed to Prison under s. 17(6)(c) of the Extradition (Foreign States) Act 1966 be confirmed. 3. The applicant, Hans Heinz Klepp, pay the costs of both the firstnamed respondent, William Paterson Gibb, and the secondnamed respondent, the Republic of Austria. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 224 of 1987 ) ) GENERAL DIVISION BETWEEN HANS HEINZ KLEPP Applicant AND: WILLIAM PATERSON GIBB First Respondent REPUBLIC OF AUSTRIA Second Respondent 18 NOVEMBER, 1987 KEELY Jd. REASONS FOR JUDGMENT Hans Heinz Klepp (the applicant) has applied under s. 18 of the Extradition (Foreign States) Act 1966 (the Act) for an order to review the decision of the firstnamed respondent, made on 7 August 1987, that the applicant is liable to be surrendered to a foreign state, Austria, and that a warrant of committal issue under s. 17(6)(c) of the Act. The applicant was represented by his solicitor, Mr. P. Nedovic. Mc. J. Santamaria, of counsel, appeared for the firstnamed respondent, Mr. Gibb, Stipendiary Magistrate (who submitted to any order that the court might make) and also for the Republic of Austria (the secondnamed respondent) which was joined as a respondent. An agreement, signed by Mr. Nedovic on behalf of the applicant and by Mr. Santamaria on behalf of the respondents, was received in evidence (exhibit N8), together with documents marked "A", "B", "C" and "D", which were referred to in that agreement. The agreement read as follows:- "Agreement In these proceedings, the Solicitor appearing on behalf of the Applicant and Counsel appearing on behalf of the Respondents hereby agree as follows:- 1. The document annexed hereto marked "A" is:- (a) the transcript of proceedings in relation to proceedings for the extradition of Hans Heinz Klepp conducted before Ww. Gibb, Magistrate, in the Magistrates' Court at Melbourne on 7 August 1987; and (b) a true and accurate record of the proceedings before the said Magistrate. 2. The reasons for decision found between Pp. 103-106 of the document annexed hereto marked "A" 1S a true and accurate record of the statement of the reasons for decision given by the said Magistrate in deciding to issue a warrant for the committal of the Applicant being the warrant for committal the subject of these proceedings before this honourable Court. 3. The document annexed hereto marked "B" is a true copy of the said warrant for committal signed by the said Magistrate in respect of the Applicant on 7 August 1987. 4. The document annexed hereto marked "C" 1s a true copy of an Information for a Warrant dated 29 June 1987 sworn by Detective Senior Sargeant James Duffy before Sally Brown S.M. of and in respect of Hans Heinz Klepp. 5. The document annexed hereto marked "D" is a true copy of a Warrant for Apprehension issued by Sally Brown S.M. on 29 June 1987 pursuant to section 16 of the Extradition (Foreign States) Act 1966 of and in respect of Hans Heinz Klepp. 6. Each of the documents annexed hereto being the Information for a Warrant ("Cc") and the Warrant for Apprehension ("DD") were on the court file held by the Magistrate on 7 August 1987 but Neither was tendered in evidence before him on that day or at any other time." The transcript (document "A") included the Magistrate's reasons for his decision. Certain other documents were also put in evidence by consent, including a diplomatic request and an Austrian warrant of arrest, dated 30 January 1987 (the Austrian warrant). The grounds of the application were as follows:- "1. The firstnamed Respondent did not have jurisdiction to hear and determine the matter as he was not a person in respect of whom an arrangement under s. 24(1) of the Extradition (Foreign States) Act 1966 was in force. The decision of the firstnamed Respondent was not authorised pursuant to the Extradition (Foreign States) Act 1966 in that - (a) the materr1al presented to the Court was not sufficient to enable a finding that there was an extradition crime pursuant to s. 4(1A) of the said Act; (b) there was no valid treaty properly in operation between the Republic of Austria and Australia for the purposes of the Extradition (Foreign States) Act 1966. The material before the Court was insufficient to justify the order made in that 1t did not justify a finding that the Applicant is liable to be surrendered to the Republic of Austria because - (a) the material taken at its highest revealed only a civil dispute and not an extraditable crime; (b) there was no evidence properly admissible placed before the Court upon which the _= finding could properly be based. {There was no ground 4] 5. The documents translated from German into English and tendered in support of the application for extradition were so unsatisfactory that they could not properly be relied upon for the purposes of making the Order made by the firstnamed Respondent. There was not any or any sufficient material or evidence upon which a finding could be = made that the Applicant was the person referred to and the subject of the warrant of arrest issued in the Republic of Austria and tendered in the proceedings herein." Mr. Kent, of counsel, on behalf of the applicant, had advanced to the respondent Magistrate, on 7 August 1987, arguments which were recorded at pages 42-90 of the transcript of those proceedings - the document marked "A" referred to in the agreement set out earlier. Before this court those arguments were adopted by Mr. Nedovic who orally "highlighted" certain of them and also filed a written submission. As to the role of the Magistrate, s. 17(6) and 17(6A) of the Act, so far as material, read as follows:- "(6) If the person was apprehended under a warrant 1ssued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) ... - (a) there 18 produced to the Magistrate - (1) in the case of a person who 1s accused of an extradition crime - (A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant; (B) a duly authenticated statement in writing setting out a description of each offence for which the surrender of the person 15 requested and the penalty applicable to each such offence; and (C) a duly authenticated statement in writing setting out all the acts or omissions in respect of whch the surrender of the person 15s requested; or (ai) .... and, if the application of this Act to the foreign state that made the requisition for the surrender of the person 1s subject to any limitations, conditions, exceptions or qualifications, any other documents required by those limitations, conditions, exceptions or qualifications to be produced; and (b) the Magistrate 18S satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender, the Magistrate shall either - (c) by warrant in accordance with the form prescribed for the purposes of this sub-section, commit the person to Prison to await the warrant of the Attorney-General for the surrender of the person; or (d) sae. but otherwise the Magistrate shall order that the person be released. (6A) A person referred to in paragraph (6)(b) 1S not entitled to adduce, and a Magistrate 1s not entitled to receive, evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person 1s requested." As to the role of this court, s. 18 of the Act, so far as material, read as follows:- "18.(1) Where a person (in this section referred to as a "fugitive") is committed to prison ... by a Magistrate pursuant to section 17, the fugitive may, within the period of 15 days after the date of the decision of the Magistrate, apply to the Federal Court, ... for a review of the validity of the decision of the Magistrate. (3) Upon a review under sub-section (1), the Court shall have regard only to the material that was before the Magistrate and shall - (a) if satisfied that the decision of the Magistrate was valid - make an order confirming the decision; or (b) 1£ not so satisfied - order that the fugitive be released." At an early stage in the hearing I rejected a submission by Mr. Nedovic that s. 18(3) provides for a hearing de novo by this court. In my opinion s. 18, in providing for "a review of the validity of the decision of the Magistrate", does not intend that there should be a re-hearing by this court of the application made to the Magistrate under s. 17(6); 1t permits a review akin to that which occurs when a decision of a Magistrate 1s the subject of an order to review in the Supreme Court of Victoria. The wording of s. 18(3), on one reading of 1t, may be thought to require this court, where 1t 1s unable to form any opinion as to whether the Magistrate's decision is valid or not, to "order that the fugitive be released". However, having considered the provision in its context, I have decided to uphold Mr. Santamaria's written submission that:- "6. Under s. 18(3) of the Act, the Court will be "satisfied that the decision of the Magistrate was valid" if having "regard only to the material that was before the Magistrate" the Court 1s satisfied:- (a) that there was sufficient material before the Magistrate upon which he could have lawfully decided that the fugitive should be committed to prison; and (b) there is no evidence or reason to believe that the Magistrate proceeded otherwise than in accordance with the law. The section does not require the Respondent to establish positively that the Order of the Magistrate was valid." That construction of s. 18(3) of the Act has been applied by me in reviewing the validity of the Magistrate's decision, and in examining his reasons for decision. On the Material before this court, in my opinion there was sufficient material before the Magistrate for him to lawfully decide that the applicant should be committed to prison and there is nothing to suggest that the Magistrate proceeded otherwise than in accordance with the law. I shall deal with each of the grounds of the application, which have been set out in full earlier in these reasons. There 1s no substance in ground 1, namely, that the firstnamed respondent was not a person in respect of whom an arrangement under s. 24(1) of the Act was in force. An extract from the Commonwealth of Australia Gazette No. 728, dated 1 September 1969, included the following: "And it is hereby further arranged, in pursuance of sub-section (1.) of section twenty-four of the Extradition (Foreign States) Act 1966-1968, that all persons who from time to time hold office as Stipendiary Magistrates in the State of Victorla may perform the functions of a magistrate under that Act. Dated this first day of September, 1969. Paul Hasluck Governor-General. By His Excellency's Command, Nigel Bowen Attorney-General. Rohan Delacombe Governor. By His Excellency's Command, G. 0. Reid Attorney-General." In my opinion the firstnamed respondent, as a Stipendiary Magistrate holding office in the State of Victoria, clearly waS a person in respect of whom there was in force an arrangement under s. 24(1) of the Act; the wording of that section expressly provides that an arrangement can be made for the performance of the functions of a Magistrate under the Act "by all or any of the persons who from time to time hold office as ... stipendiary ... magistrates ...". lu. As to ground 2({a), in my opinion the material presented to the Magistrate was sufficient to support the finding that there was an extradition crime within the meaning of s. 17(6)(a)(i). Section 4(1A) of the Act, in defining an "extradition crime", requires the existence of two elements as follows: "(1A) .... (a) the maximum penalty for the offence 1s death or imprisonment for not less than 12 months; and (b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that part of Australia the maximum penalty for which 1s death or imprisonment for not less than 12 months." The words "a relevant act or omission" in s. 4(1A)(b) must be read in the light of s. 4(1B). I accept Mr. Santamaria's submission that the existence of element (a) 1s demonstrated by the provision in the Austrian Penal Code that the maximum penalty is imprisonment for ten years. Element (b) leads to a consideration of the contents of the Austrian warrant of arrest to ascertain whether or not the relevant acts there alleged - if proved - would constitute an offence against the law of Victoria. Mr. Santamaria submitted that the material in that warrant supported the allegation that Mr. Klepp had committed the crime of obtaining, by deception, property belonging to a company; that Mr. Klepp did so by giving that company certain bills of exchange and that when he ordered the goods he did not intend to pay for them. He submitted that there was material in abundance to satisfy the Magistrate that the relevant acts by Mr. Klepp would have constituted an offence against Australian law - specifically s. 81 of the Crimes Act (Victoria) 1958. Having examined the Austrian warrant of arrest I accept Mr. Santamaria's submission that the material before the Magistrate was sufficient to support his finding that the acts alleged constituted an extradition crime. Accordingly ground 2(a) is rejected. Ground 3(a), which 1s very closely related to ground 2(a), is also rejected for substantially the same reason, as 1s the contention that the material "revealed only a civil dispute". Ground 3(b) was that "there was no evidence properly admissible placed before the Court upon which the {Magistrate's] finding could properly be based". Mr. Nedovic submitted that the Act and the treaty together imposed strict requirements as to the duly authenticated documents required to be produced to the Magistrate. He La. referred to the opening words of s. 17(6), contending that the Magistrate must be satisfied that Mr. Klepp "was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) [of the Act]"; in support of that submission he cited passages from Schlieske v Federal Republic of Germany (1987) 71 ALR 215 at 221-223. As to the "authority by the Attorney-General in a notice under paragraph 15(1)(a) [of the Act]", 1t may be said immediately that 1t was placed before this court by Mr. Nedovic. In my opinion the warrant of apprehension under which Mr. Klepp was apprehended was part of the material before the Magistrate. The transcript of the proceedings before him showed (pp. 19-20) that the Magistrate's attention was expressly drawn to "the manner in which Mr. Klepp came before this Court" and the Magistrate said that he had copies of the warrant of apprehension, dated 29 June 1987, under s. 16 of the Act and of the information for a warrant, dated 29 June 1987, sworn by the informant. In addition, the agreement between the parties (the terms of which are set out earlier) expressly states that the warrant of apprehension was "on the court file held by the Magistrate on 7 August 1987" (paragraph 6). In my opinion the applicant's case 1s not assisted by the fact that the warrant of apprehension was not formally tendered in evidence before the Magistrate; it was common ground before this court that the Magistrate was not 13. exercising judicial power but was performing an administrative function. It may be added that, for the same reasons, the information for a warrant was also part of the material before the Magistrate. As to ground 2(b), 1n my opinion the material was sufficient to support the Magistrate's finding, that at the relevant time there was in force a valid treaty between Australia and the Republic of Austria. As to ground 5, although the documents translated from German into English might have been expressed with greater clarity, I reject the contention that they "were so unsatisfactory that they could not properly be relied upon" by the Magistrate in making his order. The last ground, ground 6, was that there "was not any or any sufficient material upon which a finding could be made that the Applicant was the person referred to and the subject of [the Austrian warrant of arrest, dated 30 January 1987]". It was common ground in this court that the applicant was physically present during the hearing before the Magistrate. The transcript shows that counsel for the applicant did not suggest to the Magistrate that the applicant denied that he was the man named in the warrant. It may be noted that the transcript of that hearing before the Magistrate shows that the applicant's counsel, Mr. Kent, opposed the application for extradition on "a number of bases" - including the 14, Matters now raised in grounds 2(a) and (b), 3 and 5 of the present application. Then, after an address to the Magistrate which occupied 40 pages of transcript, he said that "there 1s no real evidence to say that this Mr. Klepp before the court is the man referred to in any event in this documentation"; he also referred to the description of Mr. Klepp in the Austrian warrant, saying "Your Worship is asked to say that you can order this man sitting in this court to be returned to Austria based on this material". It was common ground between the parties in this court that s. 17(6A) did not prevent the applicant from giving evidence before the Magistrate, 1f he had wished, denying that he was the Hans Heinz Klepp referred to in the Austrian warrant of arrest, dated 30 January 1987. In this connexion, Mr. Santamaria referred to the case of R v Chandler [1976] 1 WLR 585 at 589 where the Court of Appeal said: "The law has long accepted that an accused person 1s not bound to incriminate himself; but 1t does not follow that a failure to answer an accusation or question when an answer could reasonably be expected may not provide some evidence in support of an accusation." As appears from the transcript of the hearing before the Magistrate, Mr. Klepp did not give evidence denying that he was the person named; nor did he call any evidence to suggest that it might be a case of "mistaken identity"; for example he did not give or call any evidence (1) that he had lo. never been a director of the Austrian company, Techimpex, or (2) that he had not left Austria on 30 January 1986 with his family or (3) that he was born on a different date. On the latter aspect it may be noted that the Diplomatic Request, dated 24 April 1987 referred to Mr. Klepp as having been "born 16 January 1993 [sic]". The Republic of Austria expressly drew the Magistrate's attention to the error as to the year of his birth but Mr. Kent, on behalf of the applicant, said, as to that error in the stated year of birth, that he did "not propose to take up the time of the court because it 1s a matter that is plainly oversight or error or typographical error or some error in translation that would be an absurd point to take and it 1s not taken." In my opinion the material before the Magistrate, viewed in the light of the way in which the matter was conducted before him by the applicant's counsel in the presence of the applicant, was such that the Magistrate was entitled to be "satisfied, within the meaning of s. 17(6)(b) of the Act that the person (the present applicant) is liable to be surrendered to the foreign state that made the requisition for the surrender", namely, the Republic of Austria, For the above reasons I have been unable to uphold any of the applicant's grounds. Iam "satisfied that the decision of the Magistrate was valid" within the meaning of those words in s. 18(3) of the Act, construed in the manner set out earlier in these reasons. Accordingly the application must be dismissed and an order made confirming the decision of the Magistrate. The applicant must be ordered to pay the costs of both the firstnamed respondent and the secondnamed respondent. I hereby certify that this and the fifteen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely. Associate: \L- Mesrey Date: 18 November, 1987 Dates of Hearing: Counsel for the applicant: Solicitors for the applicant: Counsel for the firstnamed and secondnamed respondents: Solicitors for the firstnamed secondnamed respondents: Li. 19, 20, 21, 27 October and 2 November 1987 Mr. P. Nedovic Nedovic & Co. Mr. J. Santamaria Director of Prosecutions Public and IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION OF THE STATE OF ) ) ) BANKRUPTCY DISTRICT ) ) ) WESTERN AUSTRALIA No. 198 of 1984 , RE: ROGER KEITH MULLEN Bankrupt EX PARTE: ROGER KEITH MULLEN Applicant MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 16 NOVEMBER 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: The bankrupt is discharged. Note: Settlement and entry of orders Rule 124 of the Bankruptcy Rules. 1s dealt with in IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA No. 198 of 1984 RE: ROGER KEITH MULLEN Bankrupt EX PARTE: ROGER KEITH MULLEN Applicant CORAM: FRENCH J. 16 November 1987 REASONS FOR JUDGMENT Roger Keith Mullen became a bankrupt upon his own petition on 6 April 1984. Under the provisions of s.149 of the Bankruptcy Act he would have been automatically discharged on 6 April 1987, but for the lodgment by the trustee of an objection to discharge on 30 March 1987. He now applies for discharge from his bankruptcy by order of this Court pursuant to s.150 of the Act. When made bankrupt he was 39 years of age and married with two dependent children, Kellie and Brett, aged 11 and 8. He had separated from his wife in April 1982. She retained custody of the children. A trust was set up for their benefit known as "The Kellie and Brett Mullen Trust" and she is the trustee of it. Although a pharmacist by qualification, Mullen's business interests were diverse. 2. He was a 50% partner in the Wickham Pharmacy, carried on the business of the Paraburdoo Pharmacy and was managing director of Mullen Nominees Pty Ltd, which operated trucking, air charter and electrical goods retailing businesses. He was a director of North West Travel Pty Ltd and North West Rental Cars Pty Ltd. He was also Chairman of Directors of an investment company called Calpurnicus Pty Ltd. He had some 100,000 shares in that company which were forfeited for non-payment of calls. Following the withdrawal of financial support by the Westpac Banking Corporation in September 1982 and unsuccessful approaches to various lending institutions, receivers and managers were appointed over Mullen Nominees Pty Ltd. North West Travel Pty Ltd and North West Car Rentals Pty Ltd went into liquidation and a receiver and manager was appointed to another company with which he was associated, namely, Roger M. Pty Ltd. It appears to have been accepted by the trustee that the bankruptcy arose from the failure of the various companies and the liabilities incurred by reason of personal guarantees in respect of finance provided to those companies. Assets and liabilities disclosed in the statement of affairs were $355,100.00 and $1,345,780.00 respectively. 3. Realisations by the trustee have yielded $100,778.00 to date, while proofs of debt of $539,382.00 have been received. As yet unrealised assets include buildings on leased land at Wickham and Paraburdoo, an aircraft hangar at Roebourne Airport and Mullen's equity in a house at Lot 446 Flight Street, Miami. There are debts of unknown value said to be due by a company called Etan Pty Ltd pursuant to an employment contract and rentals owing by the same company for the use of the premises at Wickham known as the Wickham Sound Lounge. Some giftware, jewellery and electrical goods, video recorders and television sets were sold by the receivers and Managers of Mullen Nominees Pty Ltd, but are believed by the trustee to have been the property of the bankrupt. The picture is complicated by the terms of a property settlement between Mullen and his wife. That settlement is embodied in an agreement dated 14 November 1983. Under that agreement he transferred to his wife as trustee of the Kellie and Brett Mullen Trust, his interest in their house at Attadale subject to mortgages to Alliance Acceptance Co. Ltd and Australian Guarantee Corporation Ltd. 4. He also assigned his interest in the Wickham Pharmacy premises and a house at 15 Oleander Place, Wickham - both subject to the consent of the lessor, Cliffs Western Australian Mining Co. Pty Ltd. He undertook to pay amounts due under the Alliance mortgage and to discharge the AGC mortgage within a year of the date of the agreement. To secure the discharge of the AGC mortgage, Mullen charged to his wife in her capacity as trustee, his interest in the Wickham Sound Lounge building. The agreement was expressed to be subject to approval by the Family Court of Western Australia pursuant to s.87 of the Family Law Act 1975 and it was duly approved. He defaulted in relation to the Alliance and AGC mortgages and the Attadale house has been sold for the benefit of those mortgagees. Trustee's fees to date have been paid, but there has been no dividend to creditors. Since his bankruptcy Mullen has been employed as a pharmacist in Darwin from 1 July 1984 to September 1985, in Bundaberg, Queensland from September 1985 to June 1986 and at the Promenade Pharmacy in Bedford until May 1987. 5. He says that he has not earned in that time sufficient to make any significant contribution, having received between $20,000.00 and $22,000.00 in each of the years since his bankruptcy commenced. Since 5 May 1987 he has carried on the business of a pharmacy at a shopping centre in Innaloo. It is one of a group of pharnacies which trade under the name "Pharmacy 777". His acquisition of this business was made with the approval of the trustee and financed by the vendor and a loan from the National Bank in Rivervale, guaranteed by a company called Sigma Rumbles Ltd. The lease of the pharmacy premises has not yet been assigned to him as there is a provision in 1t barring assignment to a bankrupt. The head lessee is Chevrolet Nominees Pty Ltd, a company associated with the Pharmacy 777 group. It continues to hold the lease while Mullen occupies the premises. Mullen is experiencing some difficulties in dealing with suppliers to the pharmacy as he is obliged to advise any who deal with him on credit terms that he is an undischarged bankrupt. He presently pays $70.00 per week maintenance for his children. He is trying to operate on the basis that he takes 6. drawings of $2,000.00 per month. Out of that he must make provision for tax. The trustee's objection filed on 30 March 1987 was based on two grounds:- l. That the bankrupt is able or is likely within 5 years from the date of his bankruptcy to be able to make a significant contribution to his estate. 2. That the discharge of the bankrupt by force of s.149 would prejudice the administration of the estate in that it has been and is ae vexed administration and the trustee envisages that a further and sustained co-operation on the part of the bankrupt will be required to successfully conclude investigations and to facilitate the realisation of assets. As can be seen neither ground involved any suggestion of misconduct. His report to the Court pursuant to sub-s. 150(3) of the Act also avoided any allegation of misconduct under sub-s.150(6) or at all. While there was a passing reference to Mullen having been disciplined by the Pharmaceutical Council of W.A., this was neither explained nor relied upon at the hearing. In the light of the report it was a more than a little surprising to see a Notice of Opposition to Discharge filed on 6 July 1987 which alleged:- "1. You brought on, or contributed to, your bankruptcy by culpable neglect of your business affairs, including but not limited to your affairs as a director of companies which went into liquidation (North West Travel Pty. Ltd., North West Car 7. Rentals Pty Ltd) or which had a Receiver and Manager appointed to them (Mullen Nominees Pty Ltd). 2. Prior to your bankruptcy, you divested yourself of assets that would otherwise have been available as part of your assets, by entering into deeds and maintenance agreements pursuant to sections 86 and 87 of the Family Law Act and further that you entered into the agreements with your wife in anticipation of bankruptcy and in anticipation of companies of which you were a director either going into liquidation or having Receivers and Managers appointed over them." Mr D.R. Spencer, an employee of the trustee, gave evidence about the discrepancy between the report and the notice of opposition:- "Unfortunately at that time we had two days' notice to get that report submitted. Unfortunately, there was not sufficient time to review the file in as much detail as what was warranted." As an explanation of the omission from the report of any allegation of culpable neglect, this 1s less than satisfactory. The application for discharge was filed on 13 April 1987. There was ample time to file a considered report and it was the personal non~delegable duty of the trustee to do so. If a bankrupt is to meet allegations of misconduct, he is entitled to know the basis upon which they are made. A court is entitled to the assistance of a report which properly informs it of the facts supporting such imputations. - Re: Daff and Daff; Ex parte: the Bankrupts (Unrep. 9/9/85, Toohey J.), Re: Tarvydas; Ex parte: The Bankrupt (Unrep. 22/11/85, Toohey J.) 8. Counsel for the trustee seemed to suggest that Mullen's lack of business acumen could support an inference of culpable neglect. While there may be some cases in which the cognitive deficiency can be elevated into volitional default, this 1s not one of them. The failure of a businessman to take steps necessary for the proper conduct of his business may be culpable if he knows what he ought to do. According to the circumstances, the same conduct might not be culpable in the case of an inexperienced or uneducated person. That is not to suggest that inexperience or ignorance will provide a general excuse for allegations of neglect. However the attempted equation between lack of acumen and culpable neglect cannot be sustained in this case. Nor was there any other evidence to satisfy me that Mullen's bankruptcy was brought about or contributed to by culpable neglect of his business affairs. Counsel for the trustee also contended, for the first time, in his closing address, that Mullen had, after knowing himself to be insolvent, continued to trade and thereby engaged in misconduct of the kind contemplated by para.150(6)(b) and possibly also para.150(6)(c). 9. Not only does the allegation find no place in the trustee's report, it is not mentioned in the Notice of Opposition to Discharge filed by the trustee. Nor is 1t raised in the original objection to automatic discharge. Mullen told the Court that in September 1982 the Westpac Banking Corporation withdrew financial accommodation for his companies. Having reduced the liability to Westpac by some $185,000.00 between October and November 1982, he found himself in a difficult liquidity situation. With his accountant he tried early in 1983 to re-finance the business enterprises. The R. & I. Bank and Perpetual Trustees were prepared to accommodate him, but the arrangement failed for want of co-operation from his estranged wife who was then a director of Mullen Nominees Pty Ltd. He was cross-examined briefly on the continued trading of the companies up until the appointment of receivers and Managers. I could not, however, be satisfied on the evidence that he had, after knowing himself to be insolvent, continued to trade or contracted a debt provable in bankruptcy without having at the time of contracting 1t any reasonable or probable grounds of expectation of being able to pay it. As to his ability to make a contribution to the estate, there was no evidence to suggest the source of such a 10. contribution. His present salary, reflected in his drawings, is a modest one and there is no reason to suppose that there will be any dramatic increase in that over the next 2 years. As to the property agreement with his wife, I think it sufficient to say that the evidence does not persuade me that it was entered into in anticipation of bankruptcy. However, the principal thrust of the trustee's case was that the settlement agreement required further investigation with a view to determining whether it could be set aside. Mullen's co-operation, it was said, was necessary to further this investigation and also there were outstanding inquiries in relation to the affairs of his companies. The trustee's witness, Mr Spencer, readily agreed that Mullen would co-operate even were he to be discharged from bankruptcy. The nature of the assistance contemplated related largely to the supply of information as to the circumstances and events that occurred at the time of the settlement agreement. It is important to note that the fact of discharge does not dissolve the statutory duty upon the former bankrupt to co-operate with his trustee. Section 152 of the Act enjoins the discharged bankrupt to provide "such assistance as the trustee li. reasonably requires in the realization and distribution of such of his property as is vested in the trustee". Failure to comply with the obligation constitutes a contempt of court. The obligation is serious and the sanction powerful. There 1s no need for the trustee to rely upon voluntary co-operation. A Notice of Intention to Oppose the Application for Discharge was also filed by a creditor, MGICA Ltd, on the grounds that all assets in the estate had not been realised and that "...the Family Court matter hasn't yet been finalised re distribution of assets". In the event MGICA, although represented by counsel, did not lead evidence, cross-examine or otherwise actively participate in the proceedings. 1 Mullen has now been a bankrupt for some 3 1/2 years. The principles which should govern the Court in approaching the exercise of its discretion under s.150 were enunciated by Smithers J. in Re: Zion; Ex parte: The Bankrupt (Unrep. Smithers J., 26.9.86) at 3:- "In my view it is the policy of the law that bankruptcy should in most cases come to an end at 3 years and when there is an objection at the end of 5 years from the decree for sequestration of the estate, but that ina case where public interest so requires the discharge may be delayed or made conditional according to _ the 12. requirements of the public interest in the circumstances of the case. Public interest will require that a discharge be delayed or made conditional 1f the conduct revealed or the character of the bankrupt indicates that the return of the bankrupt to the commercial world in full freedom might involve unacceptable risk to persons likely to be engaged in commercial relations with him in the future. In other words, 1t 1s for the applicant to show that balancing the policy of the law in favour of the return to commercial life of a hankrupt against the dangers that might accrue to the public from full commercial capacity of the applicant, it is appropriate that the discharge be granted." This case is one in which the bankrupt came seriously undone to the substantial detriment of his creditors. I have not been satisfied of any relevant misconduct on his part but have regard to the public interest and considerations of commercial morality in dealing with this application - Re: Maher (1985) 61 ALR 592. In doing so however I also respect the policy of the law as embodied in the provisions of s.149 and expounded by Smithers J. Having regard to the post discharge constraint imposed by s.152, I do not consider that there is anything to be gained by allowing the bankruptcy to continue and I will direct that Mullen be discharged. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of his Honour Justice French. Associate: Re broek. Wyte pate: ll N\euenrcheas (17 13. Counsel for the Applicant: Mr J.R. Brooksby Solicitors for the Applicant: Paterson & Dowding Counsel for the Trustee: Mr K.L. Christensen Solicitors for the Trustee: Phillips Fox Counsel for MGICA Ltd: Mr M.F. Holler Solicitors for MGICA Ltd: Parker & Parker Date of Hearing: 2 September 1987 Date of Judgment: 16 November 1987