Johns, M.N. v. Clout, D.L. & Ors [1987] FCA 21

Johns, M.N. v. Clout, D.L. & Ors [1987] FCA 21

The applicant's arguments for setting aside the second s.81 summons fail; compliance with procedural rules was sufficient, there is no abuse of process in issuing a second identical summons where an earlier one remains extant, and the applicant has not established any oppression or unfairness. There is an established practice for issuing further summonses or restoring previous ones, and oral examination is appropriate in the circumstances.

Parties
Applicant: Malcolm Nelson Johns; First Respondent: David Lewis Clout; Second Respondent: James Howard; Third Respondent: Simon Daley
Jurisdiction
Australia
Judgment Date
30 January 1987
Procedural Posture
Bankruptcy Application for Review / Final Judgment, Post Hearing
Outcome
Application for review dismissed
Legal Topics
Public Examination, Summons, Abuse of Process, Procedure Under Bankruptcy Act
Bankruptcy Public Examination Summons Abuse of Process Procedure Under Bankruptcy Act

Case Brief

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Parties

Malcolm Nelson Johns

Applicant

David Lewis Clout

First Respondent

James Howard

Second Respondent

Simon Daley

Third Respondent

Procedural Posture

Bankruptcy Application for Review / Final Judgment, Post Hearing

Legal Issues

  1. 1 Whether the second summons for public examination under s.81 is vexatious or an abuse of process
  2. 2 Compliance with procedural requirements for issuing s.81 summons
  3. 3 Practice of issuing multiple summonses in identical terms

Ratio Decidendi

The applicant's arguments for setting aside the second s.81 summons fail; compliance with procedural rules was sufficient, there is no abuse of process in issuing a second identical summons where an earlier one remains extant, and the applicant has not established any oppression or unfairness. There is an established practice for issuing further summonses or restoring previous ones, and oral examination is appropriate in the circumstances.

Court Disposition

Application for review dismissed

Orders

  • Application for review be dismissed
  • Applicant to pay respondent's costs