JUDGMENT No. =2\\. 2S Spee ~ IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: THOMAS JOHN 0'TOOLE Applicant B.M.G. RESOURCES LIMITED Respondent QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: IAN ROBERT SKINNER Applicant B.M.G. RESOURCES LIMITED Respondent QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: HOWARD JOHN WASHINGTON Applicant B.M.G. RESOURCES LIMITED Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 10 MAY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the application by Howard John Washington to set aside the summonses be dismissed; 2. the application by Ian Robert Skinner to set aside the summons be dismissed; 3. the application by Thomas John O'Toole to set aside the summons be dismissed; 4. the applicant, Howard John Washington, pay the respondent's, B.M.G. Resources Limited, costs of and incidental to his application to be taxed; 5. the applicant, Ian Robert Skinner, pay the respondent's, B.M.G. Resources Limited, costs of and incidental to his application, to be taxed; 6. the applicant, Thomas John O'Toole, pay one half of the respondent's, B.M.G. Resources Limited, costs of and incidental to his application, to be taxed; 7. the application by Howard John Washington under s.99 of the Bankruptcy Act to expunge the proof of debt of the respondent be adjourned sine die. Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA } GENERAL DIVISION ) RANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: THOMAS JOHN 0' TOOLE Applicant R.M.G. RESOURCES LIMITED Respondent QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: TAN ROBERT SKINNER Applicant B.M.G. RESOURCES LIMITED Respondent QLD E45 of 1984 RE: HOWARD JOHN WASHINGTON Bankrupt EX PARTE: HOWARD JOHN WASHINGTON Applicant B.M.G. RESOURCES LIMITED Respondent PINCUS J. 10 MAY 1988 EX TEMPORE REASONS FOR JUDGMENT These are applications to set aside or vary summonses for examination under s.81. The matter has been argued on behalf of the applicants by Mr Morrison of counsel, Mr Dutney of counsel, and Mr Johnson. The contentions which were advanced were three: firstly, that the creditor who obtained the summonses under s.81 was not such a person as is referred to in the provision; secondly, that there was a dispute in the Supreme Court which affected the matter, and thirdly, to put it broadly, that the summonses were not for any proper purpose. As to the first point, 1t appears from the evidence that the proof was admitted. As to the second point, the writ which has been issued in the Supreme Court seeks to raise the question of the validity of the guarantee, which I have examined, on the basis of what might be described as a side agreement or understanding. It does not appear to me that that is sufficient ground for holding the examination up at this stage. On the face of the guarantee, it 1s complete, it makes no reference at all to Mr O'Toole and 1s one in respect of which a proof has been lodged and admitted. The question which has concerned me most, and on which I have received much assistance from Messrs Morrison, Dutney and Johnson, is whether the summons is too wide, or likely to lead to an examination which is too wide. As regards the summons against Mr O'Toole, counsel for the creditor has submitted, if that 1s the right word, that it be amended 30 as to narrow it; Mr Douglas suggested that the summons be amended so as to cover the period from 1 January 1981 until 1 February 1984. That does not seem to be an appropriate course. What I intend to do is to ask Mr Douglas to undertake on behalf of the creditors that he will not seek to ask questions relating to any other period. (His Honour accepted an undertaking given by Mr Douglas on behalf of his clients.) The complaints which are made, however, do not stop there. The affidavits on which the summonses were obtained, to my mind, make it clear that the examination might drift into areas the pursuit of which would be harsh and oppressive to the examinees, or even into areas which have no relevance to the matters mentioned in s.81(1). The ground upon which I intend, as I do, to dismiss the applications to set the summonses aside is, however, that the relevancy and reasonableness of the questions that are asked are very difficult to prescribe in advance. Prima facie, if there is a good ground for examination (and it seems to me clear that speaking generally there is, in relation to the present summonses) it is a matter for the Registrar conducting the examination to confine it within proper limits. If an examinee contends that he has not done so, the matter must come back before the Court. In confining it within proper limits, the Registrar has to have regard not merely to the question whether a matter proposed to be examined on may be relevant to the bankrupt or his trade dealings, property or affairs, but to questions of harshness and oppression. I do not propose, however, to give any detailed exhortations to the Registrar about these matters because I am confident that he is conscious of his duty to consider them. I should add that Mr Morrison has challenged the correctness of the decision of the Full Court in Re Todd (1986) 70 A.L.R. 119 to the effect that an examination under s.81 may take Place after discharge. As he concedes, I am bound by Re _ Todd and I propose to follow it. The applications to set aside the summonses will therefore be dismissed. There has been some argument about costs. It seems to me that BMG Resources should have its costs against the persons represented by Messrs Morrison and Dutney - that is the costs of B.M.G. Resources of the application to set aside the summons in respect of those persons - to be taxed and paid by the applicants. Mr Johnson's client, Mr O'Toole, is in ae slightly different position. It seems to me (although as has been said he might have asked his opponent for this relief) he has had some success, although he has hada large degree of unsuccess; I propose to order that Mr O'Toole pay half the taxed costs of B.M.G. Resources in respect of his unsuccessful application to set aside. The only other order I propose to make is as to the application by Mr Morrison, for Mr Washington. That seeks an order under s.99, in addition to the relief which which I have dealt. At the request of Mr Morrison, the application under s.99 to expunge the proof will be adjourned sine die. reify shat thie and th: QL ¢ eceding "> @s are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus A Sry " Associate Dated 10 May 1983