Re Weiss, Zdenek Ex Parte The Official Trustee Clyne, Peter v The Official Trustee [1983] FCA 400

Re Weiss, Zdenek Ex Parte The Official Trustee Clyne, Peter v The Official Trustee [1983] FCA 400

The summonses should be set aside because there was insufficient material before the Registrar to justify their issuance under s.81(1) of the Bankruptcy Act 1966; the application did not set out sufficient grounds or facts linking the applicant to the matters sought to be examined.

Parties
Applicant: Peter Clyne; Respondent: The Official Trustee; Bankrupt: Zdenek Weiss
Jurisdiction
Australia
Judgment Date
22 December 1983
Procedural Posture
Bankruptcy Application to Set Aside Registrar's Summons / Application to Set Aside Summons Before the Federal Court
Outcome
Summonses set aside
Legal Topics
Judicial Power of the Commonwealth, Powers of Registrar in Bankruptcy, Requirements for Issuance of Summons Under Bankruptcy Act, Natural Justice in Bankruptcy Proceedings
Constitutional Law Bankruptcy Judicial Power of the Commonwealth Powers of Registrar in Bankruptcy Requirements for Issuance of Summons Under Bankruptcy Act Natural Justice in Bankruptcy Proceedings

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Parties

Peter Clyne

Applicant

The Official Trustee

Respondent

Zdenek Weiss

Bankrupt

Procedural Posture

Bankruptcy Application to Set Aside Registrar's Summons / Application to Set Aside Summons Before the Federal Court

Legal Issues

  1. 1 Whether the issue of a summons under s.81 of the Bankruptcy Act 1966 by a Registrar involves the exercise of the judicial power of the Commonwealth and is thus invalid
  2. 2 Whether the person to whom the summons is directed must be given an opportunity to be heard before its issue
  3. 3 Whether there was sufficient material before the Registrar to justify the issuance of the summons

Ratio Decidendi

The summonses should be set aside because there was insufficient material before the Registrar to justify their issuance under s.81(1) of the Bankruptcy Act 1966; the application did not set out sufficient grounds or facts linking the applicant to the matters sought to be examined.

Court Disposition

Summonses set aside

Orders

  • The summonses issued under s.81(1) of the Bankruptcy Act 1966 and dated 25 and 30 November 1983 addressed to Peter Leopold Clyne requiring him to give evidence before the Registrar be set aside.
  • No order as to costs.