Federal Court of Australia
JUDGMENT No. ALS | 5
eseveencenel aevcccsesase
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION BANKRUPTCY DISTRICT . OF THE STATE OF NEW SOUTH WALES
No. NB 1414 of 1995
Net Ne er ee
Re: GARY MILLER Bankrupt
Ex parte: . FELICITY MAY EDWARDS Applicant
And: THE OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 6 DECEMBER 1995
Felicity May Edwards comes before the Court to seek an order of review of a Deputy Registrar's decision taken this morning not to discharge or strike out a summons issued pursuant to section 81(1) of the Bankruptcy Act and served upon her. The summons required her to attend before a registrar today "to give evidence in connection with the affairs. of the bankrupt". This is basically in the form provided for in Form 49 in the Bankruptcy
Rules.
On 23 October 1995 Ms Edwards made an application to strike out an earlier version of this summons and after argument and for reasons given in the judgment given on that day, the summons was
struck out, principally on the ground that it sought to examine
-2- Ms Edwards in connection with her own affairs and not the affairs
of the bankrupt.
During the course of argument on that occasion, a submission was made that the provisions of rule 129 had not been complied with. This rule provides that an application for a summons must be supported by an affidavit setting out, amongst other things, details of the request made to the person concerned to provide the information being sought and the circumstances of any refusal
or failure of the person to cooperate in complying with the
request.
When the earlier version of the summons was struck out, the failure of the affidavit in support to comply with rule 129 was another basis upon which the summons was struck out but there are clear differences between that circumstance and this. The affidavit in support of the issue of the present summons was sealed in an envelope by the Deputy Registrar not to be opened without an order of a Judge or permission of the Registrar. The parties argued that I may open the envelope and I have read the affidavit. The trustee has applied for those provisions of rule 129 to be dispensed with as require the supporting affidavit to contain a request to the proposed examinee to provide the information and state the details of the request together with
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