JUDGMENT No. 2.22.28 CATCHWORDS BANKRUPTCY - spouse of bankrupt - examination under s.81 - evidence - proceedings in Family Court - prohibition on publication of proceedings ~ prohibition not infringed by examination before Registrar Bankruptcy Act 1966, s.81 Family Law Act 1975, s.121(1); s.12(9) R v Howe ) 19 SASR 303 In the Marriage of Batman and Patterson SELYa 51 FLR 263 GEOFFREY WALTER _EDELSTEN - Bankrupt MAX CHRISTOPHER DONNELLY L as trustee of the bankrupt estate of Geoffrey Walter Edelsten - - Applicant GEOFFREY WALTER EDELSTEN . First Respondent HEALTH INSURANCE COMMISSION . Second Respondent DEPUTY COMMISSIONER OF TAXATION . Third Respondent LEANNE EDELSTEN . Third Party No. W497 of 1988 Morling J. 11 May 1988 Sydney IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE AUST I PITAL TERRITORY res: and and and and No. W497 of 1988 wwe we GEOFFREY WALTER EDELSTEN Bankrupt MAX CHRISTOPHER DONNELLY as trustee of the bankrupt estate of GEOFFREY WALTER EDELSTEN Applicant GEOFFREY WALTER EDELSTEN First Respondent HEALTH INSURANCE COMMISSION Second Respondent DEPUTY COMMISSIONER OF TAXATION Third Respondent LEANNE EDELSTEN Third Party MINUTE OF ORDER JUDGE MAKING ORDER $ Morling J. DATE OF ORDER 3 11 May 1988 WHERE MADE : Sydney THE COURT ORDERS AS FOLLOWS: 1. The examination of Leanne Edelsten under s.81 of the Bankruptcy Act 1966 be adjourned for further hearing before the Registrar on a date to be fixed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) ) ) ERNERUPECY DISTRICT OF THE STATE No. W497 of 1988 AU APITAL TERRITORY re: GEOFFREY WALTER EDELSTEN Bankrupt MAX CHRISTOPHER DONNELLY as trustee of the bankrupt estate of GEOFFREY WALTER EDELSTEN Applicant __ and GEOFFREY WALTER EDELSTEN First Respondent and HEALTH INSURANCE COMMISSION Second Respondent and DEPUTY COMMISSIONER OF TAXATION Third Respondent and LEANNE EDELSTEN Third Party MORLING J. 11 May 1988 REASONS FOR JUDGMENT Dr Geoffrey Edelsten's estate is being administered in bankruptcy. His wife, Mrs Leanne Edelsten, has been summoned pursuant to 8.81 of the Bankruptcy Act 1966 to attend before the Registrar to give evidence concerning the bankrupt or his trade dealings, property or affairs. In the course of her examination before the Registrar a question has arisen as to whether questions which might be put to Mrs Edelsten may require her to give answers which might expose her to the risk of committing an offence under s.121 of the Family Law Act 1975, sub-sec. (1) of which provides as follows: "121. (1) A person who publishes in a newspaper or periodical publication or by radio broadcast or television, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act, that identifies - : (a) a party to the proceedings; (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or {c) a witness in the proceedings, is guilty of an offence punishable, upon conviction -" (d) in the case of a person not being a body corporate - by a fine not exceeding $5,000 or imprisonment for a period not exceeding one year, or both; or (e) in the case of a person being a body corporate - by a fine not exceeding $10,000." In the course of the proceedings before the Registrar senior counsel for the Deputy Commissioner of Taxation indicated that he intended to question Mrs Edelsten about proceedings to which she and her husband are parties in the Family Court. According to the Deputy Commissioner's counsel, the substance of the line of questioning seeks generally to explore whether there exists any proposal for property settlement, the nature of any proposed property settlement with the bankrupt and_ the circumstances thereof, with the ultimate aim, inter alia, of determining whether there has been or is likely to be any fraudulent disposition of property by the bankrupt in terms of 8.121 of the Bankruptcy Act. When the question arose as to whether Mrs Edelsten's answers to questions asked of her might place her in breach of s.121(1) the Deputy Commissioner's counsel submitted to the Registrar that Mrs Edelsten would be protected if her evidence were taken in camera. The Registrar entertained some doubt whether he had power to take evidence in camera because of the provisions of s.81(2) of the Bankruptcy Act 1966, which provides that an examination under s.81 shall be held in public. In view of the possible prejudice to Mrs Edelsten and what he saw as the apparent limitation on his power to order that the examination be conducted in camera, the Registrar adjourned the examination for further hearing before the Court under s.81(4) of the Bankruptcy Act and made a report to the Court under s.81(5). The first question the Court has been asked to determine is whether answers given by Mrs Edelsten to questions asked of her at a public hearing before the Registrar might expose her to the risk of prosecution for an offence against s.121(1) of the Family Law Act. She would only be exposed to that risk if her answers could be said to be a dissemination by her to the public, or a section of the public, of any part of the proceedings to which she is a party in the Family Law Court. Section 121(1) identifies a number of ways in which a person may disseminate to the public an account of proceedings under the Family Law Act. These include publication in a newspaper or periodical publication and publication by radio broadcast or television. It was submitted by counsel for the Deputy Commissioner that the words "or otherwise disseminates to the public" in s.121(1) should be read ejusdem generis with the words which precede it, with the result that the sub-section places a restriction only upon publication in the media. This submission loses much of its force by reason of the anclusion in 8.121 of sub-s.(9), which provides that the preceding provisions of the section do not apply to several forms of communication not specifically referred to in s. 121(1). None of these forms are methods of communication in or through the media. The draftsman of the section must have thought that, absent some provision such as is found in s.121(9), those forms of communication would have been caught by 8.121(1). It seems probable that the legislature would have intended that the restriction on publication of proceedings in the Family Court should extend, for example, to a document disseminated to a section of the public by post. It can hardly have been intended that such a document identifying a party to proceedings under the Family Law Act and giving an account of them should not be caught by the restriction on publication for which 8.121(1) provides. Yet publication and dissemination of such a document would not be caught by s. 121(1) if the ejusdem generis rule is applied to its construction. The ejusdem generisa rule is a rule of construction designed to assist in ascertaining the intention of the legislature: The King v Regos and Morgan (1947) 74 CLR 613 at 622 per Latham C.J., and 1s to be applied with caution: Craies on Statute Law, 7th edn p.181. I do not think the rule should be applied in the interpretation of s.121(1). 5. However, that is not to say that s.121(1) has any application to answers given by a witness who 1s examined by counsel for a creditor under s.81 of the Bankruptcy Act. T think it is clear that what s.121(1) proscribes is the voluntary dissemination to the public or to a section of the public of any account of proceedings under the Family Law Act. A witness summoned under s.81 of the Bankruptcy Act must answer all questions allowed by the Court or the Registrar - see. 81(11). In my opinion it would be straining the meaning of the word "disseminates" to apply it to the responses of a witness who, under compuision of law, answers questions put to him or her ina public examination under s. 81. Quite apart from the involuntary nature of such answers, I do not think a witness who gives such answers disseminates to "the public" the information contained in the answers. The publication, if it be regarded as such, is to the Court. cf. In the Marriage of T. & T. (1984) FLC 91-588 where a Full Court of the Family Court of Australia held that the transmission of documents to the Attorney-General or to responsible officers in his Department was not a publication to the public or to a section of the public of the information contained in the documents. Counsel for the Deputy Commissioner submitted, in my view correctly, that in the context of 5.121 "disseminates to the public" should be taken as a reference to widespread communic- ation with the aim of reaching a wide audience. It cannot have been intended by the legislature that the restriction on dissemination should apply, for example, to conversations between a party to Family Court proceedings and a close personal friend. Prior to amendments made to the Family Law Act in 1983, s.121(1) provided as follows: "121. (1) A person shall not print or publish - (a) any statement or report that proceed- ings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or (b) any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings." Section 121(1), in its old form, was considered by a Full Court of the Family Court of Western Australia in In the Marriage of Batman and Patterson (1981) 51 FLR 263. It was there held that the use of pleadings, affidavits and transcript of evidence in Family Court proceedings in proceedings under the Bankruptcy Act did not amount to publishing that material within the meaning of g.121(1) of the Act in its then form. This decision 15s consistent with the view I take of the Act in its present form. Even if I had been of the view that s.121(1) of the Family Law Act applies to answers given by a witness examined under s.81 of the Bankruptcy Act, I would have held that Mrs Edelsten would be protected by the provisions of s.121(9)(a) of the Family Law Act, which provides as follows: "121, (9) The preceding provisions of this section do not apply to or in relation to - (a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings." Section 121(9)(a) was substituted in 1983 for the former s.121(5)(a) which, in relevant respects, was in almost identical terms. In R. v Howe (1978) 19 SASR 303 the Court of Criminal Appeal of South Australia held that the former s.121(5)(a) operated so as to exclude from the operation of the former s.121(1) (which was in terms not dissimilar to s.121(1) of the Family Law Act in its present form), a reference by counsel to evidence given in proceedings in the Family Law Court by persons against whom proceedings were subsequently brought in the Criminal Court. I respectfully agree with this decision. In Howe, the Court held that the phrase "persons concerned in the proceedings" in s.121(5)(a) were apt to include, inter alios, judge, counsel, reporters and any members of the public present in court. Section 121(9)(a) was inserted into the Family Law Act after Howe's Case was decided. I think it is plain that the legislature must have intended that s8.121(9)(a) should give the same immunity from prosecution as was given by the almost identical provision which it replaced. It therefore seems to me that if answers given by Mrs Edelsten disclose something that appears in the transcript in the Family Court, she would be protected by s. 121(9)(a). Counsel for Mrs Edelsten submitted that it would be appropriate for her further evidence before the Registrar to be 8. taken in camera. He submitted that notwithstanding that s.81(2) of the Bankruptcy Act provides that an examination under the section shall be held in public, s.17(4) of the Federal Court of Australia Act would authorize a judge of the court to conduct an examination under s.81 in camera. He relied upon the fact that s.17(4) was enacted after s.81(2) of the Bankruptcy Act, which has been included in that section of the Act since 1t was first enacted in 1966. I think there is considerable substance in this submission but I do not find it necessary to rule upon it. It is the policy of the Bankruptcy Act that examinations under s.81 should be held in public. It must often happen that a bankrupt's spouse is able to give information concerning the bankrupt or his property or affairs. It will sometimes be the case that a bankrupt's property or affairs have been the subject of an agreement under s.86 or s.87 of the Family Law Act. Since s.121 of that Act has no application to answers given by a witness summoned to give evidence under s.81 of the Bankruptcy Act, I can see no reason why the s.81 examination should not be held in public, as contemplated by s.81(2). It was not suggested in argument that there was any reason for Mrs Edelsten's examination to be conducted in camera other than her apprehension that she might contravene s.121(1) when giving her answers. Since there is no risk of such a contravention, there is no occasion for her evidence to be given in camera. I adjourn the examination of Mrs Edelsten for further hearing before the Registrar on a date to be fixed. 'se I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Morling. Associate: Date: —_— ATR Ne —~ r/ . Aes ASS The Bankrupt (First Respondent) appeared in person. Counsel for applicant, Max christopher Donnelly: instructed by: Counsel for second respondent: instructed by: Counsel for Third Respondent: instructed by: Counsel for Third Party: instructed by: Date of Hearing: Date of Judgment: Mr. S.G. Finch Isenberg, Spedding & Player Mr. M.A. Pembroke Minter Ellison Mr. D.B. McGovern Australian Government Solicitor Mr. P.M. Donohue Photios Slater & Co. 8 April 1988 11 May 1988