Re Bawn, J.W. v. Ex parte Trade Credits Ltd [1987] FCA 167

Re Bawn, J.W. v. Ex parte Trade Credits Ltd [1987] FCA 167

It was not appropriate to refuse discovery altogether because the contested bankruptcy petition might raise issues for which discovery was appropriate, but unrestricted discovery should not be ordered on the interlocutory application because it was uncertain which issues could legitimately be raised and broad discovery would be burdensome. The respondent was therefore required to identify the matters alleged to be in question, with discovery to proceed in respect of those matters and disputes reserved.

Jurisdiction
Australia
Judgment Date
17 March 1987
Procedural Posture
Bankruptcy Creditor's Petition / Interlocutory Application to Set Aside or Limit Notice of Discovery
Outcome
Application allowed in part; discovery not set aside but confined by requiring the respondent to list the matters in question before an affidavit of discovery is filed, with other matters stood over.
Legal Topics
['discovery' "creditor's Petition" 'bankruptcy Notice' 'affidavit of Discovery']
['bankruptcy' 'civil Procedure'] ['discovery' "creditor's Petition" 'bankruptcy Notice' 'affidavit of Discovery']

Case Brief

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Procedural Posture

Bankruptcy Creditor's Petition / Interlocutory Application to Set Aside or Limit Notice of Discovery

Legal Issues

  1. 1 ['Whether the notice of discovery dated 23 February 1987 should be set aside.' 'Whether discovery should be limited by confining the affidavit of discovery to specified matters in question in the contested bankruptcy proceeding.']

Ratio Decidendi

It was not appropriate to refuse discovery altogether because the contested bankruptcy petition might raise issues for which discovery was appropriate, but unrestricted discovery should not be ordered on the interlocutory application because it was uncertain which issues could legitimately be raised and broad discovery would be burdensome. The respondent was therefore required to identify the matters alleged to be in question, with discovery to proceed in respect of those matters and disputes reserved.

Court Disposition

Application allowed in part; discovery not set aside but confined by requiring the respondent to list the matters in question before an affidavit of discovery is filed, with other matters stood over.

Orders

  • ['Within seven days the respondent serve upon the applicant a list of the matters which he alleges are in question in the contested bankruptcy proceeding.' 'The respondent then file within fourteen days thereof an affidavit of discovery in respect of those matters.' "Liberty to apply is granted to the parties on 24...