Re Gordon, K.J. [1988] FCA 246

Re Gordon, K.J. [1988] FCA 246

The Deputy Registrar erred by applying an inflexible rule derived from Oades v. Hamilton and excluding all questions merely because they may relate to matters the subject of criminal proceedings. s.69(12) of the Bankruptcy Act requires the exercise of discretion, balancing potential prejudice to the bankrupt against the benefit to the administration of the estate. In this case, the record did not demonstrate that answering the questions would do real harm to the defence in the criminal proceedings, and the trustee's purpose was legitimate investigation for the bankruptcy. Hence, the questions should not have been disallowed on the basis stated.

Parties
Bankrupt/respondent: Kenneth John Gordon; Applicant: S.R. Eleftheriou (Official Trustee)
Jurisdiction
Australia
Judgment Date
15 April 1988
Procedural Posture
Bankruptcy Review Application / Application to Review Deputy Registrar's Directions During Public Examination
Outcome
Deputy Registrar's directions set aside; bankrupt not to be excused from answering the indicated questions solely because they may tend to incriminate.
Legal Topics
Public Examination, Privilege Against Self Incrimination, Discretion of Registrar, Questions Tending to Incriminate
Bankruptcy Public Examination Privilege Against Self Incrimination Discretion of Registrar Questions Tending to Incriminate

Case Brief

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Parties

Kenneth John Gordon

Bankrupt/respondent

S.R. Eleftheriou (Official Trustee)

Applicant

Procedural Posture

Bankruptcy Review Application / Application to Review Deputy Registrar's Directions During Public Examination

Legal Issues

  1. 1 Whether the Deputy Registrar erred in excusing the bankrupt from answering questions during a public examination on the ground that the answers may tend to incriminate him
  2. 2 Proper test and discretion to be applied in allowing or disallowing such questions under s.69(12) of the Bankruptcy Act 1966

Ratio Decidendi

The Deputy Registrar erred by applying an inflexible rule derived from Oades v. Hamilton and excluding all questions merely because they may relate to matters the subject of criminal proceedings. s.69(12) of the Bankruptcy Act requires the exercise of discretion, balancing potential prejudice to the bankrupt against the benefit to the administration of the estate. In this case, the record did not demonstrate that answering the questions would do real harm to the defence in the criminal proceedings, and the trustee's purpose was legitimate investigation for the bankruptcy. Hence, the questions should not have been disallowed on the basis stated.

Court Disposition

Deputy Registrar's directions set aside; bankrupt not to be excused from answering the indicated questions solely because they may tend to incriminate.

Orders

  • Sets aside Deputy Registrar's directions of 8 March 1988.
  • Directs that the bankrupt not be excused by reason only of the fact that answers may tend to incriminate him, from answering questions as to: (i) receipt by any person or company of moneys earned in connection with the bankrupt's work relating to sales tax arrangements; (ii) amounts of money so received; (iii)...