DATE OF ORDER: 20 January 1988 IN THE FEDERAL COURT JUDGMENT No. So 7 BS aevetoenteee eee OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF ) ) GENERAL DIVISION ) ) ) ) WESTERN AUSTRALIA JUDGE MAKING ORDER: FRENCH J. WHERE MADE: PERTH LIMITED DISTRIBUTION Nos. 72 of 1976 354 of 1979 601 of 1987 RE: AGNES MARIE GOUGH Bankrupt EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY THE TRUSTEE OF THE ESTATE OF AGNES MARIE GOUGH Applicant MINUTE OF ORDER THE COURT ORDERS THAT: The bankrupt Agnes Marie Gough, was at 17 August 1987, an undischarged bankrupt not having been discharged from her previous bankruptcies of 20 May 1976 and 11 September 1979. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. o IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ) LIMITED DISTRIBUTION ) ) BANKRUPTCY DISTRICT ) ) ) OF THE STATE OF WESTERN AUSTRALIA Nos. 72 of 1976 354 of 1979 601 of 1987 RO: AGNES MARIE GOUGH Bankrupt EX PARTE: OFFICIAL TRUSTEE IN BANKRUPTCY THE TRUSTEE OF THE ESTATE OF AGNES MARIE GOUGH Applicant CORAM : FRENCH J. 20 January 1988 EX TEMPORE REASONS FOR JUDGMENT Agnes Marie Gough first became bankrupt on her own petition on 20 May 1976. As s.149 of the Bankruptcy Act 1966 then stood, she could, in the absence of objection, have expected automatic discharge from that bankruptcy after the expiry of five years. That 1s to say, on 20 May 1981. However, on 1l September 1979 and prior to the 1980 amendment to s.149, which introduced provision for statutory discharge after three years, she became bankrupt for a second time. In 1980, the Act was amended by the Bankruptcy Amendment Act 1980 which substituted a new s.149 for the old allowing for 2. automatic discharge after three years except where objection had been lodged or subsequent bankruptcy supervened. The effect of the second bankruptcy is to block any prospect of automatic discharge from the first bankruptcy, by reason of para. 149(3)(b). The effect of the first bankruptcy is to prevent automatic discharge from the second by virtue of para. 149(3)(a). In the absence of an application for discharge under s.150 Mrs Gough therefore remains undischarged from each bankruptcy. An objection to discharge from the first bankruptcy was lodged on 7 November 1979 and it would appear that, by virtue of the transitional provisions of the 1980 amendment, that objection would have lapsed in February 1986. It plays no part in the determination of this case, however, as its effect is overtaken and subsumed by Mrs Gough's second bankruptcy. The Official Receiver recently applied to the Acting Registrar in Bankruptcy for certificates under s.260 to the effect that Mrs Gough was undischarged from each of the bankruptcies in question as at 17 August 1987. The Acting Registrar replied to that request saying she could not issue the certificates as she could not ascertain whether Mrs Gough was still bankrupt or whether she had been discharged from one or more of the bankruptcies. It should be noted that she became bankrupt a third time on 18 August 1987. 3. In my opinion, the position 1s guite clear and it is rather surprising that the Acting Registrar was not able to issue the certificates sought. The Official Receiver now comes to the Court to seek a declaration in the following terms:- "That the bankrupt AGNES MARIE GOUGH was at the 17th day of August 1987 an undischarged bankrupt not having been discharged from her previous bankruptcies of the 20th May 1976 and 1lth September 1979." There 1S a pending prosecution against Mrs Gough for a bankruptcy offence which is to be heard in the Perth Court of Petty Sessions on 11 February and, if the declaration sought 1s made, the Official Receiver will again approach the Registrar for issue of a certificate under s.260. The declaration so made will, I suspect, not bind the bankrupt in the criminal proceedings, as 1t 1s made in this Court in proceedings between different parties. It will however form a basis upon which the Acting Registrar may issue the relevant certificate. The certificate so 1ssued will only have prima facie effect and it will be open to Mrs Gough, 1f£ she wishes to do so, to challenge its correctness in the criminal proceedings. Having regard to those circumstances, I see no reason why the declaration should not be made and will make it accordingly. I therefore declare that the bankrupt, Agnes Marie Gough, was, at 17 August 1987, an undischarged bankrupt not having been discharged from her previous bankruptcies of 20 May 1976 and 11 September 1979. 4. I certify that the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Mr Justice French. Associate: Deborolk eke & mite: Qo dorwory HE Counsel for the Bankrupt: Mr R. Bayly Solicitors for the Bankrupt: Bayly and O'Brien Mr I. Campbell for the Official Trustee Date of Hearing: 20 January 1988 Date of Judgment: 20 January 1988