allsop j:

3                     Index:

Introduction [4] – [16]

The Claims of the Appellant [17]

The Orders of the Primary Judge [18] – [19]

The Contentions of the Parties Below [20]

The Relevant Current Provisions of the Bankruptcy Act [21] – [23]

The Reasoning of the Primary Judge [24] – [33]

The Appellant’s Submissions on Appeal in Summary [34] – [36]

Governing Principles [37] – [56]

The Contemporary Statutory Context [57] – [79]

Legal and Historical Context [80] – [168]

England [81] – [124]

Australia [126] – [168]

The Arguments of the Parties, the Proper Construction

of ss 77, 81, 130 and 150 and the Disposition of the Appeal [169] – [215]

Introduction

4                     The appellant, David James Griffin, is a bankrupt. The respondent, the trustee of his estate, required him to answer certain questions at a public examination and produce certain documents. The appellant claimed the protection of the common law privilege against self-incrimination. The appellant appeals from the dismissal of his claims by a Judge of this Court. (See Griffin v Pantzer [2003] FCA 793.)

5                     The issues raised in the appeal have their genesis in the affairs of the appellant, Sogelease Australia Ltd and S G Australia Ltd (which two companies I will refer to as “Sogelease”). By summons dated 3 April 2002 filed in the Equity Division of the Supreme Court of New South Wales, Sogelease commenced proceedings against the appellant and others. The matter thereafter proceeded by way of statement of claim filed on 19 July 2002.

6                     In the statement of claim, Sogelease alleged that Mr Griffin, between October 1997 and March 2002, while engaged as an employee of Sogelease, dishonestly and without the knowledge or authority of Sogelease and for personal advantage to himself and another, misappropriated some 76 cheques drawn upon certain identified bank accounts of Sogelease and totalling not less than $10 million. The claims of Sogelease against the appellant were based on a number of causes of action arising out of the same facts including a breach of employment contract, breach of fiduciary duty as an employee, deceit, conversion, restitution, contravention of the Fair Trading Act 1987 (NSW) and other grounds. The relief claimed against the appellant included damages, equitable compensation, an order for the taking of accounts, orders under the Fair Trading Act, an account of profits and other forms of equitable relief.

7                     On 16 April 2002, the appellant filed a notice of motion in the Equity Division seeking a stay of proceedings on the ground that he had cause to believe that criminal charges arising out the facts pleaded in the statement of the claim would soon be laid against him and that to file a defence would require him to incriminate himself or to risk self-incrimination. The application was unsuccessful. No defence was filed. Palmer J ordered default judgment to be entered against the appellant pursuant to Part 17 rule 9 of the Supreme Court Rules 1970 for the full sum claimed by Sogelease by way of damages, together with interest. That did not finally dispose of the proceedings against the appellant in the Supreme Court as Sogelease wished to pursue certain ancillary claims for relief, including an account of profits.

8                     By notice of motion, filed on 18 February 2003 in the Equity Division, Sogelease sought orders for discovery against the appellant. At the commencement of the hearing of the notice of motion, a notice to produce under Part 36 rule 16 of the Supreme Court Rules that had been served on the appellant by Sogelease was called on. The call was for production of the same categories of documents as were sought by way of discovery.

9                     The appellant objected to any order for discovery and to production of documents under the notice to produce on the ground that compliance with such orders would infringe his privilege against self-incrimination.

10                  These claims were dealt with by Palmer J and the Court of Appeal of the Supreme Court of New South Wales. It is unnecessary to deal with the precise issues dealt with by both by Palmer J and the Court of Appeal, in particular with the claim for privilege by the appellant in relation to producing documents to the solicitors for one of the co-defendants in the proceedings. It is sufficient to say that the Court of Appeal, in accordance with well-known authority, identified the privilege as a fundamental common law right, which it found had not been abrogated by any relevant provision of the Supreme Court Act 1970 (NSW)or Supreme Court Rules: Sorby v Commonwealth (1983) 152 CLR 281 and Reid v Howard (1995) 184 CLR 1. The argument in the Court of Appeal was heard on 14 May 2003 and judgment was delivered on 20 June 2003.

11                  Meanwhile, on 15 May 2003, a sequestration order was made by a Judge of this Court (the primary judge) in respect of the estate of the appellant. It should be noted that no argument took place in the Court of Appeal concerning the operation of the Bankruptcy Act 1966 (Cth) (the “Act”). No aspect of the Court of Appeal decision touched any issue under the Act.

12                  The relevant chronology thereafter was as follows (the account being taken largely from the reasons of the learned primary judge). On 16 May 2003, the trustee in bankruptcy wrote to the appellant bankrupt enclosing a copy of the sequestration order and a copy of the notice from the Insolvency and Trustee Service of Australia concerning the trustee’s consent. The letter requested completion of a statement of affairs pursuant to the provisions of the Act and enclosed copies of a notice entitled “Warning Bulletin” setting out the responsibilities of a bankrupt under the Act. These responsibilities included the provision of books and records to the trustee in accordance with s 77 of the Act.

13                  On 21 May 2003, the appellant’s solicitors wrote to the trustee saying that he would fully comply with his statutory duties, but did not wish to abandon his right to privilege against self-incrimination in relation to the records and documents that he would otherwise be required to produce to the trustee pursuant to ss 77, 81, 129 and 130 of the Act. At that stage, as the above chronology reveals, the decision of the Court of Appeal was reserved.

14                  On 19 June 2003 (one day before delivery of judgment in the Court of Appeal), the trustee’s solicitors wrote to the appellant’s solicitors saying, amongst other things, that ss 77, 81, 129 and 130 of the Act evinced an intention on the part of the Commonwealth Parliament to abrogate the privilege against self-incrimination. The letter demanded that the appellant deliver up to the trustee, the books, accounts, records requested in the earlier letter of 16 May 2003.

15                  As the primary judge noted in [7] of his reasons, the decision of the Court of Appeal handed down on 20 June 2003 proceeded on the basis that certain documents that would otherwise have been required by the appellant to be produced in the Equity Division proceedings were not liable to be produced because of the privilege against self-incrimination.

16                  It was common ground before the primary judge that, unless restrained, the trustee proposes to examine the appellant bankrupt pursuant to s 81 of the Act and to ask questions about the following:

(a) whether the bankrupt stole $10 million from his employer;

(b) if so, what happened to the proceeds of that theft;

(c) the documents otherwise protected by the privilege; and

(d) the transactions that are the subject of allegations in the proceedings in the Equity Division of the Supreme Court.

The Claims of the Appellant

17                  The applicant sought twelve substantive orders in the amended application, as follows:

1.                  A declaration that David James Griffin is entitled to a claim of privilege against self-incrimination in respect of the documents held on his behalf in his solicitor’s office being the documents the subject of the decision of the Court of Appeal delivered on 20 June 2003 in the Supreme Court of New South Wales Court of Appeal, Griffin v Sogelease (2003) NSWCA 158 in matter number CA 40269 of 2003 being an appeal from the Supreme Court proceedings 2105 of 2002 in which the petitioning creditor obtained judgment giving rise to the order for sequestration.

2.                  A declaration that the respondent is not entitled to require production by the applicant of the said records the subject of the claim of the privilege against self-incrimination under ss. 19AA, 71 [sic: 77], 81, 129 and 130 of the Bankruptcy Act 1966 or otherwise.

3.                  An order restraining the respondent by himself his servants and agents from asking questions or compelling an answer to questions in any examination under section 81 concerning the documents the subject of the claim for privilege against incrimination or concerning the transactions the subject of the Supreme Court proceedings No 2105 of 2003 the answers to which the applicant objects to answer on the grounds that the answer would tend to incriminate him.

4.                  An order restraining the respondent by himself his servants and agents from requiring production by the applicant under section 81 (1B) of the Bankruptcy Act 1966 the documents the subject of the claim for privilege against incrimination by the applicant.

5.                  A declaration that the applicant is entitled to the application and protection of section 128 of the Evidence Act 1995 in any examination under section 81 of the Bankruptcy Act 1966.

6.                  An order restraining the respondent by himself his servants and agents from asking questions or compelling answers to questions in any examination under section 81 from not affording the applicant the protection of section 128 of the Evidence Act 1995 in the giving of evidence and any documents or things obtained as a consequence of the giving of evidence under section 128.

7.                  Further and in the alternative, an order under s 178 of the Bankruptcy Act 1966 that the decision by the respondent conveyed in the letter dated 19 June 2003 from Peter Kemp solicitors to North & Badgery solicitors be set aside.

8.                  An order under s 178 that the respondent excuse the applicant from production of the records the subject of the said claim for privilege.

9.                  An order under s 178 that in the circumstances the applicant is not required to produce the records the claim of the privilege against self-incrimination.

10.              An order under s 178 that the respondent take no further steps to require production of the records the subject of the said claim for privilege against self-incrimination.

11.              An order that the respondent is not entitled to any examination of the applicant to compel answers to questions concerning the claim for privilege over the said records or in relation to the subject matter of the alleged fraud in Supreme Court proceedings 2105 of 2002.

12.              Alternatively, such other order as the Court thinks just and equitable under s 178 to protect and preserve the privilege against self-incrimination of the applicant in respect of the said records and in respect of any examination concerning the said records or concerning the alleged fraud in the Supreme Court proceedings number 2105 of 2002.

The Orders of the Primary Judge

18                  The primary judge made four substantive orders as follows:

1.          orders that the application be dismissed;

2.          declares that the cross respondent is in default of his obligation pursuant to s 77 of the Bankruptcy Act 1966 (Cth) in that he has failed to give to the cross claimant the documents the subject of the claim for the privilege against self-incrimination by the cross respondent that are Marked For Identification 3.1A, 3.2A and 3.4A (‘the Privileged Documents’), being books and records in the possession of the cross respondent that relate to his examinable affairs.

3.          orders that the cross respondent forthwith give to the cross claimant the Privileged Documents;

4.          declares that the cross claimant is entitled to require production of the Privileged Documents by the applicant in answer to a summons pursuant to s 81(1B) of the Bankruptcy Act 1966 (Cth);

…

19                  A stay was given on conditions, pending appeal.

The Contentions of the Parties Below

20                  The learned primary judge summarised the parties’ contentions in [10] and [11] of his reasons as follows:

[10] The Trustee contends that while, the privilege against self-incrimination, as properly understood, exists at common law in relation to the documents, on the proper construction of ss 77, 81, 129 and 130, that privilege has been abrogated to the extent that compliance with those provisions would be inconsistent with the privilege.

[11] The Bankrupt, on the other hand, first contends that none of those provisions has the effect of abrogating, to any extent, the common law privilege against self-incrimination. Secondly, the Bankrupt contends that, in so far as the Trustee has refused or omitted to excuse production of the documents in question, that refusal or omission, or the decision to refuse or omit to do so, should be the subject of an order of the Court under s 178 prohibiting the trustee from requiring productions of the documents in question. Finally, the Bankrupt contends that s 128 of the Evidence Act 1995 (Cth) applies in relation to any examination of the Bankrupt pursuant to s 81 of the Act; the Trustee contends to the contrary.

The Relevant Current Provisions of the Bankruptcy Act

21                  Provisions of the Act relevant to the issues are ss 19AA, 58, 77, 77A, 77C, 78, 81, 129, 130, 178, 265, 265A, 267B, 267E, 267F and 267G are in the following terms:

s19AA

(1) The trustee of the estate of a bankrupt may investigate:

(a)     the bankrupt's conduct and examinable affairs; and

(b)     books, accounts and records kept by the bankrupt;

so far as they relate to the bankruptcy.

s 58

(1) Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

…

(6) In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.

s77

(1) A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:

(a) forthwith after becoming a bankrupt, give to the trustee:

(i)       all books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of his or her examinable affairs; and

(ii) the bankrupt's passport, if any; and

(b)               attend the trustee whenever the trustee reasonably requires; and

(ba) give such information about any of the bankrupt's conduct and examinable affairs as the trustee requires; and

(bb)         as soon as practicable after becoming a bankrupt, advise the trustee of any material change that occurred between the time the bankrupt lodged his or her statement of affairs and the time the bankrupt became a bankrupt; and

(bc) if a material change occurred later, advise the trustee of that change as soon as practicable after the change occurs; and

(c) attend a meeting of creditors whenever the trustee requires; and

(d) at each meeting of creditors at which the bankrupt is present, give such information about any of the bankrupt's conduct and examinable affairs as the meeting requires; and

(e)             execute such instruments and generally do all such acts and things in relation to his or her property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee; and

(f)              disclose to the trustee, as soon as practicable, property that is acquired by him or her, or devolves on him or her, before his or her discharge, being property divisible amongst his or her creditors; and

(g) aid to the utmost of his or her power in the administration of his or her estate.

…

s77A

(1) Where a trustee is conducting under section 19AA an investigation relating to a person (in this section called the “bankrupt”), subsections (2) and (3) of this section apply.

(2) For the purposes of the investigation, a trustee may by writing require a person to produce:

(a)     to a specified person, being the a trustee or another person; and

(b)     at a specified place, and within a specified period or at a specified time on a specified day, being a place, and a period or a time and day, that are reasonable in the circumstances;

specified books, or specified classes of books, that:

(c) are books of an associated entity of the bankrupt;

(d) are in the possession of the person of whom the requirement is made; and

(e) in the trustee's opinion, are relevant to the investigation.

(3) Where the trustee requires a person (in this subsection called the “relevant person”) under this section to produce books to a specified person, the trustee or the specified person:

(a)     if the books are so produced:

(i)       may make copies of, or take extracts from, the books; and

(ii) may require the relevant person, or any other person who was a party to the compilation of the books, to explain to the best of his or her knowledge and belief any matter about the compilation of the books or to which the books relate; or

(b) in any other case—may require the relevant person to state, to the best of his or her knowledge or belief:

(i)     where the books may be found; and

(ii) who last had possession, custody or control of the books and where that person may be found.

(4) The production of books under this section does not prejudice a lien that a person has on the books.

s77C

(1) The Official Receiver, by written notice given to any person, whether a bankrupt or not, including any person employed by or in connection with a Department, or an authority, of the Commonwealth, of a State or of a Territory, may require the person:

(a)   to give to the Official Receiver such information as the Official Receiver requires for the purposes of the performance of the functions of the Official Receiver or a trustee under this Act; and

(b)   to attend before the Official Receiver, or before an officer authorised in writing by the Official Receiver to exercise powers under this paragraph, and:

(i)       give evidence; and

(ii) produce all books in the possession of the person;

relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act.

(2) The Official Receiver or authorised officer may require the information or evidence to be given on oath, and either orally or in writing, and for that purpose may administer an oath.

s78

(1) Where it is made to appear to the Court:

(a)   that a debtor against whom a bankruptcy notice has been issued or a petition has been presented has absconded, or is about to abscond, with a view to avoiding payment of his or her debts or to preventing or delaying proceedings against him or her under this Act;

(b)   that a debtor against whom a bankruptcy notice has been issued or a petition has been presented has concealed or removed, or is about to conceal or remove, any of his or her property with a view to preventing or delaying possession of it being taken under this Act in the event of his or her becoming a bankrupt;

(c)    that a debtor against whom a bankruptcy notice has been issued or a petition has been presented has destroyed, concealed or removed, or is about to destroy, conceal or remove, books (including books of an associated entity of the debtor) relating to any of the debtor's examinable affairs;

(d)   that a bankrupt has concealed, or, without the permission of the trustee, has removed, any of the property of the bankrupt; or

(f) that a bankrupt has, without good cause shown, neglected or failed to comply with an order of the Court or with any other obligation under this Act;

the Court may issue a warrant for the arrest of the debtor or bankrupt, as the case may be, and his or her committal to such gaol as the Court appoints until the Court otherwise orders and may, by the same warrant, order that any property and books in the possession of the debtor or bankrupt be seized and delivered into the custody of such person as the Court appoints.

(2) Any property and books delivered into the custody of a person in pursuance of an order under subsection (1) shall be retained by him or her until the Court makes an order as to their disposal.

(3) Paragraphs (1)(a), (b) and (c) apply in relation to a debtor whether or not he or she has become a bankrupt and whether, in the case of a debtor against whom a petition has been presented, the petition was a creditor's petition or a debtor's petition.

s81

(1) Where a person (in this section called the “relevant person”) becomes a bankrupt, the Court or a Registrar may at any time ... on the application of:

(a)       a person (in this section called a "creditor ") who has or had a debt provable in the bankruptcy;

(b)       the trustee of the relevant person´s estate; or

(c)       the Official Receiver;

summon the relevant person for examination in relation to the bankruptcy.

…

(1B) A summons to a person under [subsection (1)] may require the person to produce at the examination books (including books of an associated entity of the relevant person) that:

(a)   are in the possession of the first-mentioned person; and

(b) relate to the relevant person or to any of the relevant person´s examinable affairs.

…

(2) An examination under this section shall be held in public.

…

(7) A person summoned to attend before the Court, the Registrar or a magistrate for examination under this section is entitled to be represented, on his or her examination, by counsel or a solicitor, who may re-examine him or her after his or her examination.

(8) Where a person is summoned for examination under this section, a creditor, the trustee or the Official Receiver may take part in the examination and, for that purpose, may be represented by counsel or a solicitor or by an agent authorized in writing for the purpose.

(9) Without limiting the generality of subsection (8), where the Official Trustee is the trustee, the Official Trustee may, for the purpose of taking part in the examination, be represented by the Official Receiver.

(10)The Court, the Registrar or the magistrate may put, or allow to be put, to a person being examined under this section such questions about the relevant person or any of the relevant person's examinable affairs as the Court, the Registrar or the magistrate, as the case may be, thinks appropriate.

...

(11)A person being examined under this section shall answer all questions that the Court, the Registrar or the magistrate puts or allows to be put to him or her.

(11AA) Subject to any contrary direction by the Court, the Registrar or the magistrate, the relevant person is not excused from answering a question merely because to do so might tend to incriminate the relevant person.

(11A) The Court, the Registrar or the magistrate may direct a person who is being examined under this section to produce at the examination specified books, or specified classes of books, that are in the possession of the person and are relevant to matters about which the person is being, or is to be, examined.

(11B) Without limiting the generality of subsection (11A), a direction under that subsection may relate to books of an associated entity of the relevant person.

(12)Where a person admits on examination under this section that he or she is indebted to the relevant person, then, the Court, the Registrar or the magistrate, as the case may be, may, on the application of the trustee or a creditor, order the person to pay to the trustee, at or by such time and in such manner as the Court, the Registrar or the magistrate, as the case may be, thinks fit, the whole or a part of the amount in which the person admits he or she is indebted to the relevant person.

(13)Where a person admits on examination under this section that there is in the possession of the person property of the relevant person that is divisible among creditors, the Court, the Registrar or the magistrate, as the case requires, may, on the application of the trustee or a creditor, order the first-mentioned person to deliver the property to the trustee within a specified period, in a specified manner and on specified terms.

…

(15)The Court, the Registrar or the magistrate, as the case may be, may cause such notes of the examination of a person under this section to be taken down in writing as the Court, the Registrar or the magistrate, as the case may be, thinks proper, and the person examined shall sign the notes.

…

(17)Notes taken down and signed by a person in pursuance of subsection (15), and the transcript of the evidence given at the examination of a person under this section:

(a)   may be used in evidence in any proceedings under this Act in which the person is a party; and

(b)   shall be open to inspection by the person, the relevant person, the trustee or a person who states in writing that he or she is a creditor without fee and by any other person on payment of the fee prescribed by the regulations.

s129

(1) The trustee shall forthwith take possession of all the property of the bankrupt capable of manual delivery, including all deeds, books and documents of the bankrupt.

(2) The Court may on the application of the trustee enforce possession accordingly.

(3) A person is not entitled, as against the trustee, to withhold possession of the books of account or any papers or documents of the bankrupt relating to the accounts or to any of the examinable affairs of the bankrupt or to claim any lien on any such papers or documents.

(4) If a person has in his or her possession or power any moneys or security that he or she is not by law entitled to retain as against the bankrupt or the trustee, he or she shall pay or deliver the moneys or security to the trustee.

...

s130

(1) The trustee of a bankrupt´s estate may apply for the issue of a warrant under subsection (2) if the trustee has reasonable grounds for suspecting that there is on or in any premises property (in this section called "relevant property"), being:

(a)       any of the property of the bankrupt;

(b)       property that may be connected with, or related to, the bankrupt´s examinable affairs; or

(c)       books ... relevant to any of the bankrupt´s examinable affairs.

(2) On an application under subsection (1), the judge may issue a warrant authorising a constable, together with any other person named in the warrant:

(a)     to enter on or into the premises, using such force as is necessary for the purpose and is reasonable in the circumstances

(b)     to search the premises for relevant property;

(c)      to break open, and search for relevant property, any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, on or in the premises;

(d)     to take possession of, or secure against interference, any relevant property found on or in the premises; and

(e)      to deliver to the trustee, or to a person authorised in writing by the trustee for the purpose, any property of which possession is taken under the warrant.

…

(6) Where, under this section, a person takes possession of property, or secures property against interference, a person is not entitled, as against the trustee, to claim a lien on the property, but such a lien is not otherwise prejudiced.

(7) Where, under this section, a person takes possession of books, or secures books against interference, that person or any other person to whom the books are delivered under paragraph (2)(e):

(a)     may make copies of, or take extracts from, the books;

(b)     may require a person who was a party to the compilation of the books to explain to the best of the person's knowledge and belief any matter about the compilation of the books or to which the books relate;

(c)      may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the trustee; and

(d)     during that period shall permit a person who would be entitled to inspect any one or more of those books if they were not in the possession of the first-mentioned person or the other person to inspect at all reasonable times such of those books as that person would be so entitled to inspect.

s178

(1) If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.

(2) The application must be made not later than 60 days after the day on which the person became aware of the trustee's act, omission or decision.

s265

(1) A bankrupt:

(a) shall fully and truly disclose to the trustee all of the property of the bankrupt, and its value;

(b) shall fully and truly disclose to the trustee particulars of any disposition of property made by him or her within the period of 2 years immediately preceding the date on which he or she became a bankrupt;

(c) shall not refuse or fail to comply with a direction by the trustee to deliver to the trustee property in the possession of the bankrupt, being all or part of the property of the bankrupt;

(ca) shall fully and truly disclose to the trustee such information about any of the bankrupt's conduct and examinable affairs as the trustee requires;

(d) shall not refuse or fail to tell the trustee where the books (including books of an associated entity of the bankrupt) relating to the bankrupt's examinable affairs may be found;

(e) shall not refuse or fail to comply with a direction by the trustee to deliver to the trustee books (including books of an associated entity of the bankrupt) that are in the possession of the bankrupt and relate to any of the bankrupt's examinable affairs;

(f) shall not omit any material particular from a statement relating to any of the bankrupt's examinable affairs;

(g) shall, if he or she knows that a person has lodged a proof of debt in the bankruptcy that is false, forthwith inform the trustee of the fact; and

(h) shall give to the trustee a full and proper explanation of any loss or depreciation of any of his or her assets or part of any of his or her assets that occurred within the period of 2 years immediately preceding the date on which he or she became a bankrupt.

Penalty: Imprisonment for 1 year.

…

(3) A bankrupt shall not, with the intention of obtaining the consent of his or her creditors or any of them to any matter relating to any of the bankrupt's examinable affairs, make a false representation or commit any fraud.

Penalty: Imprisonment for 3 years.

(4) A person who, after the presentation of a petition on which, or by virtue of the presentation of which, he or she becomes a bankrupt:

(a) conceals or removes any part of his or her property to the value of $20 or more;

(b) conceals a debt due to or by him or her;

(c) conceals, parts with, destroys, mutilates, falsifies, alters or makes a false entry in, or omits a material particular from, a book (including a book of an associated entity of the person) affecting or relating to any of the person's examinable affairs;

(d) attempts to account for any part of his or her property by falsely stating that he or she has incurred a loss or expense;

(e) otherwise than in the ordinary way of his or her business, disposes of, or gives security over, property that he or she has obtained on credit and for which he or she has not paid; or

(f) prevents the production of a book (including a book of an associated entity of the person) affecting or relating to any of the person's examinable affairs;

is guilty of an offence and is punishable, upon conviction, by imprisonment for a period not exceeding 1 year.

…

s265A

(1) A person shall not refuse or fail to comply with a requirement under section 77A or 130.

(1A)Subsection (1) does not apply if the person has a reasonable excuse.

(2) A person shall not, in purported compliance with a requirement under section 77A or 130, give information, or make a statement, that is, to the person's knowledge, false or misleading in a material particular.

(3) A person shall not:

(a)   obstruct or hinder a person in the exercise of a power under section 77A; or

(b)   obstruct or hinder a person who is executing a warrant issued under section 130.

(3A) Subsection (3) does not apply if the person has a reasonable excuse.

(4) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 130 shall provide to the last-mentioned person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty: Imprisonment for 12 months.

s267B

(1) A person must not refuse or fail to comply with a notice given to the person under subsection 6A(3), paragraph 77C(1)(a) or section 139V.

Penalty: Imprisonment for 12 months.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

s267E

(1) Subject to subsection (2), if a person who is required by a notice under subsection 77C(1) to attend before the Official Receiver or an authorised officer:

(a)     fails to attend as required by the notice; or

(b)     fails to appear and report from day to day, as required by the Official Receiver or authorised officer;

the Registrar, on proof by affidavit of the service of the notice, may issue a warrant for the arrest of the person.

…

s267F

(1) A person attending before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) must not:

(a)     refuse or fail to be sworn or to make an affirmation; or

(b)     refuse or fail to answer a question that the person is required to answer by the Official Receiver or authorised officer, as the case may be; or

(c)      refuse or fail to produce any books that the person is required by the notice to produce.

Penalty: Imprisonment for 6 months.

(2) Subsection (1) does not apply if the person has a reasonable excuse.

s267G

Where a person who is giving evidence before the Official Receiver or an authorised officer as required by a notice under subsection 77C(1) is guilty of prevarication or evasion, the person is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 6 months.

22                  Some expressions of importance which are defined in s 5(1) are as follows:

“associated entity”, in relation to a person, means

(a)      an entity (other than a company) that is, or has been, associated with the person; or

(b)      a company that is, or has been, associated with the person at a time when the company is, or was, as the case may be, a private company;

“books” is widely defined in s 5(1) of the Act as follows:

books includes any account, deed, paper, writing or document and any record of information however compiled, recorded or stored, whether in writing, on microfilm, by electronic process or otherwise;

“examinable affairs” in relation to a person means:

(a)      the person's dealings, transactions, property and affairs; and

(b)      the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs;

“examinable person” in relation to a person (in this definition called the “relevant person”), means:

(a) if the relevant person is a debtor and property of the debtor is known or suspected to be in the possession of a person—that person;

(b) if the relevant person has become a bankrupt and any of the property of the bankrupt is known or suspected to be in the possession of a person—that person;

(c) in any case—a person who is believed to be indebted to the relevant person;

(d) if a person, including:

(i) a person who is an associated entity of the relevant person; or

(ii) a person with whom an associated entity of the relevant person is or has been associated;

may be able to give information about the relevant person or any of the relevant person's examinable affairs—that person; or

(e) if books (including books of an associated entity of the relevant person):

(i) are in the possession of a person, including a person of a kind referred to in subparagraph (d)(i) or (ii); and

(ii) may relate to the relevant person or any of the relevant person's examinable affairs;

that person.

23                  I will refer to other definitions as appropriate later.

The Reasoning of the Primary Judge

24                  The primary judge noted that the parties accepted that the documents are such that there is a reasonable ground to apprehend the incrimination of the appellant bankrupt if he is compelled to produce the documents in circumstances where they would be available as evidence in a prosecution in relation to the conduct alleged in the statement of claim in the Equity Division. It was not common ground before the primary judge that the mere production of the documents to the trustee would involve the bankrupt in such a danger.

25                  The primary judge commenced by recognising that the privilege is a common law right, which Parliament may abrogate. His Honour said that there was a presumption that Parliament did not intend to alter such an important principle of the common law except by express words or necessary implication. His Honour said that the intention to exclude the privilege may appear even though no express words of exclusion are enacted and that the character and purpose of the statute may indicate that it should not be construed so as to preserve the common law privilege.

26                  The primary judge found that the obligations of the appellant under ss 77, 81, 129 and 130 were not circumscribed by the privilege. His Honour, however, considered that that did not entitle the trustee to use documents and information unfettered and unaffected by the claim for the privilege against self-incrimination. However, his Honour was of the view that the history and context of the legislation was such that the appellant was obliged fully to comply with the obligations contained in those sections for the provision of documents and the answering of questions. His Honour held that the mere production of the documents to the trustee would not eliminate the privilege in relation to the documents. To the extent that privilege was abrogated by s 77 it did so only to the extent necessary to ensure compliance with s 77 and to enable the trustee to discharge his duties. The primary judge expressed the view that the trustee would be acting improperly if he were to make documents produced to him under compulsion available to an unsecured creditor in circumstances where he was told that the documents had been the subject of a claim for privilege against self-incrimination. Further, his Honour said that the trustee would be acting “quite improperly” if he were to make available to the plaintiffs in the Equity suit (who were, one would assume, major creditors in the bankruptcy), or to any prosecuting authority, documents that had been produced to him under compulsion and in respect of which he had been informed unequivocally that there was a claim for privilege against self-incrimination.

27                  His Honour rejected the argument that the qualification found in s 77 (“illness or other sufficient cause”) expressly covered a claim for the privilege. His Honour was of the view that this phrase referred to physical or practical difficulties in complying with the requirements of s 77.

28                  His Honour also rejected the argument that the absence of a protective regime such as that found in s 128 of the Evidence Act 1995 (Cth) was a reason to recognise that the obligations under s 77 were subject to the privilege against self-incrimination. In his Honour’s view, s 77 was unequivocal in its overriding of the privilege, at least insofar as documents were required to be given to the trustee.

29                  His Honour rejected the argument that the content of s 81(11AA) indicated the extent, and the only extent, to which the Parliament intended to abrogate the privilege. His Honour in part rejected that argument because of his rejection of the proposition that the production of the documents to the trustee resulted in the complete loss of the privilege.

30                  His Honour applied like reasoning to ss 81(1B), 129 and 130.

31                  His Honour also rejected the argument that s 81(11AA) only required an answer (subject to the Registrar’s discretion) when the answer would or might tend toincriminate, as opposed to when the answer would incriminate. His Honour was of the view that s 81(11AA) should be read as referring to the common law privilege against self-incrimination as a whole.

32                  His Honour found it unnecessary to deal with the question under s 128 of the Evidence Act.

33                  In reaching the conclusion that he did that the privilege did not prevent or impede the obligation of production of the records to the trustee the primary judge relied on and followed the decision of Sheppard J in Re Bond; Ex parte Ramsay (1994) 54 FCR 394.

The Appellant’s Submissions on Appeal in Summary

34                  The primary submission of the appellant was that there was no clear intention to abrogate the privilege against self incrimination in ss 77, 81, 129 and 130 of the Act. The reasons of the primary judge, it was submitted, gave no real weight to the presumption against a construction of a statute to destroy a fundamental common law right: Environment Protection Authority v Caltex Refining Co Pty Limited (1992) 178 CLR 477, 498, 501, 502-3 and 527. The appellant submitted that the words of the statute, not its history, must be examined and that the reasoning of the High Court in Reid v Howard and The King v Associated Northern Collieries (1910) 11 CLR 738 at 742 and 747 required the upholding of the appeal and the overruling of the decision of Sheppard J in Re Bond; Ex parte Ramsay.

35                  The appellant also submitted that the history and provenance of the Act was not relevant to examine. It was said that one had recourse only to the words of the Act.

36                  It is necessary, before coming to the submissions of the appellant in some more detail, to set out the relevant governing principles and proper legal and historical context to the construction of the current form of the Act. That involves the necessary rejection of the last identified submission of the appellant.

Governing Principles

37                  The privilege is that a person (not company) is not bound to answer any question or produce any document if the answer or the document would expose, or would have a tendency to expose, the person to conviction for a crime. The privilege is often expressed only in the wider terms as to tendency; but because of the arguments in this case I have stated the principle as I have, though by doing so I should not be taken to be dividing the privilege into two. I have also expressed the privilege beyond the answering of questions – that is, as more than a testimonial privilege. This broader scope reflects the recognition in Australia of the privilege as a right existing beyond the curial and quasi-judicial context.

38                  The privilege is often expressed, and sometimes authoritatively so, in circumstances where the answer or production would tend toexpose the person to incrimination. Generally where that is done it is to express the privilege widely and inclusively of circumstances where answer or disclosure would expose the person to incrimination: see for example Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, 647; Lamb v Munster (1882) 10 QBD 110, 111; Redfern v Redfern [1891] P 139, 147; and Blunt v Park Lane Hotel [1942] 2 KB 253, 257. The privilege is related to the cognate privileges against exposure to a civil penalty, to forfeiture and to ecclesiastical censure: Daniels Corporation v ACCC [2002] HCA 49; 192 ALR 561 at [13]; and Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328at 337.

39                  The privilege is available where the answer is required orally or in writing; and whilst the privilege operates to excuse a person from physically producing, identifying, revealing or explaining the document, it does not affect the power of an officer seizing documents, in the execution of a warrant: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1984) 156 CLR 385, 393. It is a privilege against self-incrimination, not against incrimination.

40                  The nature of the privilege, its strength and interstitial character in the fabric of the law are said to be derived from the rejection, by the English revolutions of the seventeenth century and by the strengthened common law which resulted therefrom, of the excesses of the Crown prerogative in and before the seventeenth century in England, including the curial manifestations of such in tribunals such as the Star Chamber: Holdsworth A History of English Law (3^rd Ed, 1944) pp 199-200, Brown v Walker 161 US 591, 596-97(1896); Hammond v The Commonwealth (1982) 152 CLR 188, 199-200, 202-203; and Bishopsgate Investment Ltd v Maxwell [1993] Ch 1, 17-18. See, however, as to the origin of the rule, McCormick Evidence (3^rd Ed) [114] pp 279-82; Wigmore Evidence 1961 Vol 8 [2250]; Heydon Cross on Evidence (5^th Aust Ed) [25070]; McNicol Law of Privilege (LBC 1992) pp 137-39; and Phipson on Evidence (8^th Ed, 1942) pp 198-200.

41                  The privilege (at least as a testimonial privilege) was deeply rooted and embedded in the law (common law and equity) by the end of the eighteenth century, and certainly by the time of the development of modern bankruptcy law in England in the nineteenth century: Smith v Read (1737) 1 Atk 526, 527; Bishop of London v Fytche (1781) 1 Bro CC 96, 97; Oliver v Haywood (1792) 1 Anst 82, 83; Cartwright v Green (1803) 8 Ves 405, 410; Ex parte Symes (1805) 11 Ves 521, 524-25; Claridge v Hoare (1807) 14 Ves Jun 59, 65; Paxton v Douglas (1812) 19 Ves Jun 225, 227-28; and Parkhurst v Lowten (1819) 2 Swans 194, 215.

42                  The privilege was clearly not limited to what would directly or expressly or necessarily incriminate; it extended to what would tend to do so: Ex parte Symes at 525; Claridge v Hoare at 65; and Paxton v Douglas at 227-28.

43                  The privilege not to answer questions or produce documents which have a tendency to expose the person to a criminal charge, or a penalty or to forfeiture has been recognised by the High Court as a deeply rooted principle of the general law: The King v Associated Northern Collieries at 748; Sorby v The Commonwealth(1983) 152 CLR 281, 294, 309, 311; Pyneboard at 340, 341, 347; and Reid v Howard at 11-12, which can now be expressed also in terms of a human right: Environment Protection Authority v Caltex Refining Co Pty Ltd at 498.

44                  The consequence of the recognition by the High Court that the privilege is one deeply rooted in the law as a fundamental right is that it is not merely a rule of evidence available in judicial proceedings, it is available generally, even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document: Pyneboard at 340-341; Sorby at 309; and Police Service Board v Morris & Martin (1985) 156 CLR 397.

45                  Prior to Pyneboard, it had been generally expressed that the privilege was inherently incapable of application in non-judicial proceedings. In this form, it was seen as a testimonial privilege. That was the view of Wigmore 1961 Vol 8 [2263], of the United States Supreme Court: see, for example, Re Harris 221 US 274, 279(1911), and of the Full Courts of New South Wales and Victoria: see the cases cited in Pyneboard at 337-338; and see generally Phipson on Evidence (8^th Ed, 1942) pp 198-203. There was, however, a contrary line of authority: see the discussion in Pyneboard at 337-40.

46                  It is presumed that Parliament does not intend to interfere with fundamental principles or rights including entrenched general law rights, such as the privilege against self-incrimination, without expressing its intention clearly, whether by express words or necessary implication: Potter v Minahan (1908) 7 CLR 277, 304; Sorby at 294-5, 309-310; Baker v Campbell (1983) 153 CLR 52, 96-7, 116, 123, 132; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Annetts v McCann (1990) 170 CLR 596, 598; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1993) 179 CLR 427, 437; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1996) 188 CLR 501; Daniels Corporation v ACCC [2002] HCA 49; 192 ALR 561, [11] 565, [43] 573, [88]-[94] 584-85 and [132]-[134] 596-97; and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 195 ALR 24, [30] 36.

47                  The clarity with which Parliament’s intention has to be manifested for the privilege to be affected has been expressed variously, but with a universal intention in prevailing authority that the abrogation or curtailment of the privilege must be clear and unmistakable. In Coco at 437, Mason CJ, Brennan, Gaudron and McHugh JJ said:

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at p 12 per Mason CJ.

48                  In Plaintiff S157/2002 at [30] Gleeson CJ said:

[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment (Coco v R (1994) 1709 CLR 427 at 437; 120 ALR 415 at 418-19 per Mason CJ, Brennan Gaudron and McHugh JJ). As Lord Hoffmann recently pointed out in the United Kingdom (R v Home Secretary: Ex parte Simms [2000] 2 AC 115 at 131; [1999] 3 All ER 400 at 412), for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual" See also Annetts v McCann (1990) 170 CLR 596 at 598; 97 ALR 177 at 178-9 per Mason CJ, Deane and McHugh JJ.

49                  The abrogation or curtailment is not, however, found only where express words deal with the subject. As Mason, Wilson and Dawson JJ said in Sorby at 309-310:

…much depends on the language and character of the provision and the purpose which it is designed to achieve.

50                  In Pyneboard at 341, Mason ACJ, Wilson and Dawson JJ said the following:

In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification . This is so when the object of imposing the obligations is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.’

[emphasis added]

51                  To similar effect it has been stated that the presumption may be displaced by an implication if the implication is necessary to prevent the statutory provisions being inoperative or meaningless, though this is rare: Coco at 438, or being unworkable: Carmody v Mackellar (1997) 148 ALR 210, 230, or being largely frustrated: Daniels at 573 [43] and Mortimer v Brown (1969) 122 CLR 493 at 495, 501. However, the expression of the displacement of the presumption by necessary intendment may be seen merely to emphasise the stringency of the requirement of clarity: Bropho at 16-17 and Coco at 438.

52                  It should be borne in mind that the requirement for clarity and a lack of ambiguity before a legislative intent will be discerned to abrogate or curtail a fundamental common law right such as the privilege against self-incrimination is a rule of statutory interpretation. This perspective, that one starts with the presumption that the privilege is not to be affected, rather than looking for an implied qualification of an otherwise freely interpreted statute, led Gleeson CJ, Gaudron, Gummow and Hayne JJ, in their Honours’ discussion of Pyneboard, to say the following in Daniels at [16]:

…In construing s 155, Mason ACJ, Wilson and Dawson JJ expressly acknowledged that legislation is construed as abrogating a common law right only if it does so expressly or by necessary implication ((1983) 152 CLR 328 at 341; 45 ALR 609 at 617). On the other hand, Brennan J approached the construction of s 155 on the basis that the issue was whether the obligation in s 155(5) to comply with a notice under s 155(1) was impliedly qualified by the privilege against self-incrimination or any like privilege ((1983) 152 CLR 328 at 354-5; 45 ALR 609 at 628-9) – an approach which fails to give effect to the rule expressed in Potter v Minahan (1908) 7 CLR 277.

53                  I do not see any disapproval in Daniels at [12]-[23] of what Mason ACJ, Wilson and Dawson JJ said in Pyneboard at 341. The passage in Pyneboard at 341 has been applied in the High Court: Police Service Board v Morris & Martin at 404, 408 and Controlled Consultants at 394; though cf Controlled Consultants at 395 per Murphy J; and see also what was said by Kirby J in Daniels at [90]-[92].

54                  The deeply rooted nature of the privilege and its otherwise universal application, except where abrogated or curtailed by statute, or by waiver, can be seen in the joint judgment of Toohey, Gaudron, McHugh and Gummow JJ in Reid v Howard at 14:

There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 346, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal” Lamb v Munster (1882) 10 QBD 110 at 111. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.

55                  The rule of interpretation is one to be strictly applied: Daniels at [11]. It is important to recognise, however, that this rule of interpretation is not of recent enunciation; just as the importance and deeply rooted nature of the privilege is not of recent recognition or enunciation. O’Connor J in Potter v Minahan at 304 had recourse to the fourth edition of Maxwell on Statutes. Maxwell (in the first to fourth editions) and O’Connor J in Potter v Minahan both referred to the United States Supreme Court decision (delivered by Marshall CJ) in U.S. v Fisher 2 Cranch 358, 390 in 1804, the judgment of the Court of Common Pleas delivered by Trevor CJ in Arthur v Bokenham 11 Mod 148, 150, 88 ER 957, 958 in 1802, and Harbert’s Case (1584) 3 Co Rep 11b, 13b; 76 ER 647, 659-61 in the Exchequer. However, in recognising the antiquity of the privilege through these older authorities, the testimonial nature of the privilege, as opposed to the right-based privilege enunciated in Pyneboard, should be recognised.

56                  Part of the process of statutory interpretation is, in appropriate cases, the examination of the anterior legal and historical context of the provisions and legislation in question: Newcastle City Council v GIO General Limited (1977) 191 CLR 85, 112, CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384, 408; and Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 at [11]. Given the well-known antecedents of the Act, it is necessary and appropriate to understand the relevant provisions of the Act in their historical context.

The Contemporary Statutory Context

57                  Central to the administration of bankruptcy and the estate of the bankrupt is the control by the trustee of the property and affairs of the bankrupt. The bankrupt becomes such by a sequestration order against his estate (s 43) or by endorsement by the Official Receiver of a debtor’s petition already presented (s 55(4A)).

58                  Subject to the Act, when a debtor becomes a bankrupt, the “property of the bankrupt” vests forthwith in the Official Trustee or a registered trustee (s 58(1)).

59                  The phrase “the property of the bankrupt” is defined in s 5(1) as meaning, in relation to a bankrupt:

(a) except in subsections 58(3) and (4):

(i) the property divisible among the bankrupt's creditors; and

(ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt; and

(b) in subsections 58(3) and (4):

(i) the property, rights and powers referred to in paragraph (a) of this definition; and

(ii) any other property of the bankrupt.

60                  The word “property” is widely defined in s 5(1) as follows:

property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property;

61                  Section 116 defines “the property divisible among the bankrupt’s creditors”. Section 116(1) is in the following terms:

Subject to this Act:

(a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge;

(b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge;

(c) property that is vested in the trustee of the bankrupt's estate by or under an order under section 139D; and

(d) money that is paid to the trustee of the bankrupt's estate under an order under section 139E;

is property divisible amongst the creditors of the bankrupt.

62                  The wide definition of property in s 5(1) is incorporated into s 116(1)(a).

63                  Section 116(2) sets out a list of property that is not so divisible, in part by reference to the regulations. Few of the exclusions in s 116(2) or the regulations are expressed by reference to books or records or documents; some are: for example, 116(2)(d)(i). Some, however, could apply to certain types of documents: for example, s 116(2)(a), (ba)(i), (ba)(ii) and (c)(i).

64                  The intent of the Act is clear that, with some exceptions, everything answering the description of “property” vests in the trustee. There is no criterion which would exclude the books, records and documents owned by the bankrupt at the date of the bankruptcy (or at the commencement of bankruptcy for the purposes of relation back and s 116(1)). The property of the bankrupt which passes to the trustee includes property which is of no practical benefit – hence the need for provisions dealing with onerous property: Davies v The English, Scottish and Australian Bank (1934) 7 ABC 210, 214. The question as to what causes of action pass to the trustee has been the subject of difficulty in connection with the conception of property, including the notion of what was purely personal and what could be turned to profit: Beckham v Drake (1849) 2 HL Cas 579, 627; Rose v Buckett [1901] 2 KB 449, 454; and Cummings v Claremont Petroleum NL (1996) 185 CLR 124.

65                  Thus, unless otherwise dealt with under the Act, in particular s 116(2), the property in the papers, records and books owned by the bankrupt, vests in the trustee.

66                  Part viof the Act deals with administration of property. Section 129 in Division 4 of Part videaling with realization of property commands the trustee to take possession forthwith of “all the property of the bankrupt capable of manual delivery, including all deeds, books and documents of the bankrupt.” This is, or is included in, the property which vests in the trustee by s 58. Section 129 is expressed in terms of possession. The right of the trustee to possession of all documents is unequivocal. Indeed it is the trustee’s duty to take possession of the documents. The enforcement contemplated in s 129(2) is not restricted to an order requiring the bankrupt to do anything. The terms of s 129 assist in the elucidation of the extent of the reach of “property” and “the property of the bankrupt” – it includes “all deeds, books and documents” of the bankrupt.

67                  Section 130 (read with s 129A, dealing with eligible judges) provides for warrants for the entry (including forcible) into premises, the searching of premises and the taking possession of property. The power is a broad and general one not limited to the bankrupt or his or her premises or property. It expressly deals with books relevant to any of the bankrupt’s examinable affairs, and thus the books of the bankrupt, which the trustee owns and has a right to possession of, and a duty to take possession of.

68                  It should be noted that s 130 not only provides for the seizure under warrant (s 130(2)), but also for explanations to be given in certain circumstances (s 130(7)).

69                  Part V of the Act deals with the control over the person and property of debtors and bankrupts. Section 77 is central to the task of the trustee. It provides for obligations on the bankrupt to give assistance to the trustee. Section 77(1)(a) requires the bankrupt to give the trustee all books that are in his or her possession. Section 77(1)(a)(i) is couched in terms of possession; but it should be recognised that the trustee will own many, if not all, of the bankrupt’s records by force of ss 58(1) and 116. Information must be provided by the bankrupt to the trustee or creditors: s 77(1)(ba), (bb), (d), (f) and (g). The provision of information includes answering the questions of creditors at a meeting: s 77(1)(c) and (d). Co-operation of the bankrupt is required: s 77(1)(bc) and (e). There is nothing said about self-incrimination in s 77.

70                  Section 77AA provides for access to the Official Receiver or his or her delegate to “all premises and books” for the purposes of the Act, not limited to those of the bankrupt.

71                  Section 77A provides for a power in a trustee, who is conducting an investigation under s 19AA of the Act, to require production from a person (not limited to the bankrupt) of books of an associated entity.

72                  Section 77C provides for the Official Receiver to require any person (not limited to the bankrupt) to attend and give evidence and to provide books or information, which may be required on oath.

73                  Section 78 provides for the arrest of a debtor or bankrupt on a warrant issued by the Court in certain circumstances, including those stipulated in s78 (1)(d) and (f) where the bankrupt has concealed or removed any property of the bankrupt or where the bankrupt has neglected or failed to comply with an obligation under the Act. The Court may, by the same warrant, order any property or books in the bankrupt’s possession to be seized and delivered to the custody of an appointed person.

74                  None of these sections expressly deals with self-incrimination.

75                  Section 81 provides for the public examination of the bankrupt (the “relevant person”) or another person (the “examinable person”, as to the meaning of which see s 5(1)). Section 81(11AA) expressly deals with self-incrimination, but only in respect of the bankrupt (the “relevant person”). Section 81(1B) provides for the production of books at the examination.

76                  The public examination of the bankrupt is not merely for the identification and collecting of assets, but also for the purpose of the protection of the public by a full and searching examination to be carried out as to the conduct of the debtor, in order that a full report may be made: In re Paget; Ex parte Official Receiver [1927] 2 Ch 85, 87 (per Lord Hanworth MR, with whom the other members of the Court of Appeal agreed), Mortimer v Brown at 499-503 and Re Clyne; Ex parte Deputy Commissioner of Taxation (1986) 15 FCR 128, 131.

77                  Most of these provisions have antecedents going back to 1869 or earlier. They are not to be understood in or constrained by a temporal vacuum.

78                  It will be necessary, in due course, to return to these particular provisions. Before considering the legal and historical context of the provisions it is helpful (for that task) to identify some key propositions put forward on behalf of the appellant. First, apart from s 81(11AA) there was no express abrogation or curtailment of the privilege in ss 77, 81, 129 and 130. Secondly, the phrase “prevented by illness or other sufficient cause” in s 77 was said to be wide enough to encompass an otherwise legitimate claim under the privilege, just as the phrase “reasonable excuse” was said to be wide enough to encompass such a claim when used in ss 265A(1A), 267B(2) and 267F(2) so far as the obligations of persons affected by ss 77A and 77C are concerned. Thirdly, the absence of any express provisions in ss 77, 81, 129 and 130, other than s 81(11AA), reinforced, it was said, the proposition that Parliament did not intend to curtail the privilege in those sections. It used words in s 81 when it chose to. Fourthly, the words of s 81(11AA) were, it was said, only a curtailment, and not an abrogation, of the privilege. The privilege was only removed, it was said, insofar as an answer might tend to incriminate; it was not a removal of the privilege insofar as the answer would incriminate.

79                  The claims and arguments of the appellant concern two distinct acts: first, the production to the trustee by the appellant of books that fall within the description of “books (including books of an associated entity of the [appellant])” or “books and documents of the [appellant]” for the purposes of ss 77(1)(a), 81(1B), s 129(1) and s 130(1)(2) of the Act; secondly, the answering of questions put to the appellant at an examination under s 81. No issue arises directly concerning any act, which the appellant might be called upon to perform by reference to s 77(1)(b) to (g) or s 130(7).

Legal and Historical Context

80                  There is now only one provision in the Act dealing with examination: s 81. The predecessor provisions to s 81, both in England and Australia, dealt with examination in two contexts: first, public examination as part of the obligation of the debtor or the bankrupt to assist in the general administration of his estate, and secondly, examination upon being summoned by the Court to give evidence. In England, this second type of examination was generally conducted in private, in chambers. The differences in type of provision leading to an examination of the bankrupt did not, however, lead to any difference of approach as to the question of the privilege against self-incrimination.

England

81                  Under legislation prevailing before the 1825 Bankruptcy Act (6 Geo 4 c 16) Commissioners could be appointed by the Lord Chancellor to deal with the property (and body) of a bankrupt trader. One of those powers, under s 16 of an Act passed in 1732 (5 Geo 2 c 30), was to summon and examine orally or by interrogatories any person (including the bankrupt) on oath touching all matters relating to the person, trade, dealings, estate and effects of the bankrupt.

82                  There was some authority that a bankrupt was not obliged to answer questions of the Commissioners if the giving of such answers would incriminate him: Re Oliver; Ex parte Oliver (1813) 1 Rose 407, 414 (per Lord Eldon LC). It was certainly clear from Cartwright v Green at 410 and Ex parte Symes at 524-25 (per Lord Eldon LC) that a third party was not obliged to answer questions of the Commissioners if the answer had any tendency to incriminate him.

83                  In 1820, (at a time, as has already been noted, when both the privilege and the need for clarity in abrogation were clearly recognised) in Re Worrall; Ex parte Cossens (1820) Buck 531, 540, Lord Eldon expressed the relevant principle that the privilege did not apply to the bankrupt. (It is unnecessary to examine the relationship of the following passage to what Lord Eldon said in Re Oliver.) In Re Worrall Lord Eldon said:

I conceive that there is no doubt that it is one of the most sacred principles in the law of this country, that no man can be called on to criminate himself, if he choose to object to it; but I have always understood that proposition to admit of a qualification with respect to the jurisdiction in bankruptcy, because a bankrupt cannot refuse to discover his estate and effects, and the particulars relating to them, though in the course of giving information to his creditors or assignees of what his property consists, that information may tend to shew he has property which he has not got accordingly to law; as in the case of smuggling, and the case of a clergyman carrying on a farm, which he could not do according to the act of parliament, except under the limitation of the late act; and the case of persons having the possession of gunpowder in unlicensed places, whereby they became liable to great penalties, whether the crown takes advantage of the forfeiture or not; in all these cases the parties are bound to tell their assignees, by the examination of the commissioners, what their property is, and where it is, in order that it may be laid hold of for the purpose of the creditors.

[emphasis added]

84                  However, Lord Eldon then discussed (at 542-45) the relevance of the terms of the question being put to the bankrupt. The matter before the Court concerned whether the bankrupt Worrall had resigned the office of town clerk of Bristol in consideration of a payment by one Ludlow. Lord Eldon appeared to qualify the obligation to answer if the question was directly framed in terms of illegality, as opposed to being framed merely in terms of receipt of property, and Lord Eldon declined to require an answer to the question as asked.

85                  The 1825 Act amended, simplified and consolidated the some twenty-one Acts dealing with bankruptcy. Commissioners were appointed (s 12), were given power to summon persons to give evidence of trading of the bankrupt, and of any act of bankruptcy and to order the production of books and records in connection with the bankruptcy (s 24), were given power to issue warrants to search including to enter premises by force (ss 27, 28, 29 and 30), were given power to summon persons suspected of having the bankrupt’s property and to examine them and require the production of books and records (ss 33 and 34) and were given power to summon and examine the bankrupt, who was required to answer on oath on pain of committal by warrant issued by the Commissioners (s 36).

86                  In Re Kirby and Thomas; Ex parte Kirby (1829) Mont & M 212, Kirby, a bankrupt, sought discharge, upon a writ of habeas corpus, from commitment to prison by warrant issued by Commissioners for refusing to answer a question, which he said might expose him to a criminal prosecution. Lord Lyndhurst LC recognised the existence of the privilege and said at 229-30:

In the present case, it is by no means clear that the inquiry would be beneficial to the bankrupt’s estate; but even if it were likely to prove advantageous, there is not any authority to shew that the commissioners may dispense with the general rule of law, that no person can be compelled to criminate himself; and although part of the question proposed is free from this objection, yet as it is blended with part which, if taken separately, the bankrupt could not have been compelled to answer, I am of opinion that to the question, in the very general form in which it was proposed, the bankrupt was entitled to demur. The commissioners may conduct the necessary investigation by a more particular and minute examination as to parts of the written statement, without affording grounds for the objection that has been made; and, adverting to the circumstances disclosed, I am far from thinking that such an examination would not be proper. But, under this commitment, the prisoner is entitled to his discharge.

[emphasis added]

87                  Ex parte Kirby does not, however, appear to have been followed. In Re Heath (1833) 2 Deac & Ch 214 Erskine CJ applied the expression of principle of Lord Eldon in Ex parte Cossens (without adverting to the apparently qualifying approach of Lord Eldon in reaching the result that he did, or to that result) and said that the statement of principle by Lord Eldon in Ex parte Cossens (quoted above)was “recognised” by Lord Lyndhurst in Ex parte Kirby. It was, but only during argument, and prior to the statement by Lord Lyndhurst of the operative existence of the privilege. Sir John Cross at 223-24 applied the privilege. Sir George Rose at 224-25said there was no doubt that the bankrupt must answer the question. He explained Ex parte Kirby (having been counsel therein) as follows:

…In the case of Ex parte Kirby … the bankrupt was discharged, because the commitment was upon a multifarious question, and the Commissioners might have conducted the necessary investigation by a more particular and minute examination as to parts of the written statement in question, without affording grounds for the objection that had been made; and adverting to the circumstances disclosed, the Lord Chancellor said he was far from thinking that such an examination would not be proper.

88                  Thus, these expressions were less than entirely unanimous; and, in particular, to the extent that the privilege was seen as curtailed or abrogated for a bankrupt, it may be seen to depend upon the terms of the question. Further, the distinction underlying this qualification, that between direct incrimination and a tendency to incriminate, supports one of the primary arguments of the appellant here.

89                  The same court (Erskine CJ, Sir John Cross and Sir George Rose) dealt with a similar question in the same sittings in Re Smith (1833) 2 Deac & Ch 230. An examination of the bankrupt was adjourned by the Commissioners to the Court. The nature of the question was as to the accuracy of records kept by him and was described as follows at 230:

The solicitor, who put this question to the bankrupt, having stated to the Commissioner, that his object was to show that the bankrupt had not upon his last examination made a full and complete discovery of his estate and effects; the bankrupt objected to answer the question, because it would tend directly to criminate himself.

90                  Erskine CJ applied what Lord Eldon said in Ex parte Cossens and required the bankrupt to answer the question; but he did pay regard to the nature and purpose of the question. He said that the question and its purpose went to discovering the bankrupt’s property. As to a differently phrased question, Erskine CJ indicated that he may have another view saying the following at 234-35:

If I could consider this as an examination, the object of which was to involve the bankrupt in criminality, without any intention to discover his estate and effects, I should pause before I should say it was lawful to put the question which the bankrupt has demurred to.

91                  Sir John Cross viewed the question differently to Erskine CJ. He emphasised that the bankrupt was being asked a second time (at his second examination) the same question that he had answered at his first examination. He saw the question as having a purpose to enquire as to whether a false answer had been given to an earlier question (that is, whether perjury had been committed). He would not allow the question and would permit the privilege to be availed of.

92                  Sir George Rose viewed the purpose of the question as Erskine CJ did: to discover the property of the bankrupt. Nevertheless, he drew a distinction between a tendency to incriminate and direct incrimination. After referring to the clear words of s 36 of 6 Geo 4 c 16 and the views expressed by Lord Eldon in Ex parte Cossens that the bankrupt is bound to answer all questions which relate to his estate, Sir George Rose said the following at 239:

I am the more confirmed in the opinion I entertain, that the bankrupt in this case has no right to refuse to answer the question put to him, by sheltering himself under the plea that his answer may tend to criminate himself. The statute expressly declares, that the bankrupt is only guilty of a felony in concealing his effects, when the concealment is, with intent to defraud his creditors. If the bankrupt now asserts that his concealment was fraudulent, he may then, certainly, have a right to say, “I will not answer a question, which may convict me on an indictment.” But let the bankrupt take the consequences of such a refusal, for he will ever afterwards forfeit all the benefit he might derive from his commission, and would never obtain his certificate.

93                  Thus, Sir George Rose appeared to contemplate the legitimacy of refusal to answer such a directly incriminating question. On the following day, after the Court had overruled the objection, Sir George Rose said that he had looked into his notes of what occurred in Ex parte Kirby (in which he had appeared) and is recorded at 239 as saying:

[H]e found what he stated yesterday was correct, namely, that Lord Lyndhurst allowed the habeas corpus, not merely because the question proposed to the bankrupt was multifarious, but because he thought the answer to the question would directly criminate the bankrupt upon a prosecution against him then pending for a conspiracy, with intent to defraud.

94                  The English legislation of the nineteenth century had provisions dealing with the public examination of the debtor or bankrupt in respect of the general administration of his property: see generally s 105 of the Bankrupt Law Consolidation Act 1849 (12 & 13 Vict c 106)(the 1849 Act),s 19 of the Bankruptcy Act 1869 (32 & 33 Vict c 71) (the 1869 Act), and s 17 of the Bankruptcy Act 1883 (46 & 47 Vict c 52) (the 1883 Act). Under separate provisions, generally dealing with discovery of the bankrupt’s property, the Court was given power to take evidence from the bankrupt and others about his affairs: see ss 117, 118 and 120 of the 1849 Act, ss 96 and 97 of the 1869 Act, and s 27 of the 1883 Act. The taking of evidence under these provisions was generally in private: Ringwood’s Bankruptcy Law (5^th Ed, 1927) p 69; and Halsbury’s Laws of England (2^nd Ed) Vol 2, p 190.

95                  Section 117 of the 1849 Act provided for questioning of the bankrupt before the Court in respect of:

[A]ll Matters relating to his Trade, Dealings, or Estate, or which may tend to disclose any secret Grant, Conveyance, or Concealment of his Lands, Tenements, Goods, Money, or Debts, …

96                  In R v Scott (1856) Dears & Bell 47; 169 ER 909 the Court of Criminal Appeal resolved what might be seen from the earlier cases to be a vacillation in judicial approach. In that case, Scott, a bankrupt, was tried and convicted of mutilating one of his trade books. He was convicted on his evidence given at his examination under s 117. The tender of this evidence was objected to and the admissibility of the evidence was reserved and stated for the consideration of the Court of Criminal Appeal consisting of Lord Campbell CJ, Coleridge J, Willes J, Alderson B and Bramwell B. The questions concerned the bankrupt’s books and records, but also were directly relevant to his incrimination. They were as follows (at 49; 910):

You have stated that the entries as to Clarkson’s account were in your account books and are how torn out. I now ask you, where are those leaves or what has become of them?

I don’t know nothing about the leaves.

That answer is not satisfactory, and if you do not give me a better I shall commit you to York Castle until you do answer.

My brother was there at the time, and he saw Mr Chambers tear them out; but I do not know where they were put.

When did your brother tell you they were torn out?

Since the last examination, about a week ago or better.

You just stated you did not know who tore them out.

I don’t know, only what my brother told me. He said Mr Chambers had torn them out.

I am not satisfied with your answer, and unless you tell me truth as to those leaves, I shall commit you.

I don’t know, only they were burnt in the fire.

Who burnt them?

My brother told me Mr Chambers burnt them.

When?

At the time when they were torn out at the Wheatsheaf.

Where is the Wheatsheaf?

It is somewhere in Briggate.

When were they torn out there?

The very day the books were delivered into the Court, Monday, 26^th October.

Then how could you use them to make out your balance sheet?

It was wrong saying so. I told a lie.

97                  Willes J, (who was also the trial judge) in explaining why he referred the question to the Court said (at 49; 910):

The questions put under threat of committal, and the answers to them, related to the bankrupt’s trade books. The answers to these questions must have influenced the jury against the prisoner, and tended to cause his conviction.

The admission of the examination in evidence was objected to by the prisoner’s counsel, but I allowed it to be read, and reserved the question of its admissibility for the opinion of the Judges.

98                  The Court (Coleridge J dissenting) was of the view that the evidence was admissible and that the bankrupt was obliged to answer all the questions even if the answers might incriminate him. The Court reconciled what might be seen to be the competing views earlier expressed in the following discussion (at 56-7; 913):

On referring to Ex parte Cossens (Buck 540), and the other cases upon this point, the result seems to be that a question cannot be put to a bankrupt which does not touch his trade, dealings, or estate, or the direct object of which is to shew that he has committed a criminal act, yet that he cannot refuse to answer a question which does touch his trade, dealings, or estate, although the answer may tend to shew that he has concealed his effects, or been guilty of any other offence connected with his bankruptcy. This distinction accounts for …the dicta of Lord Eldon and other Judges respecting the questions which may be put to a bankrupt: and we think it would be in contravention of the expressed intentions of the Legislature to permit the bankrupt to refuse to answer such questions; for ever since the reign of Elizabeth successive statutes have been passed purporting that to guard against frauds in bankruptcy the bankrupt, when called upon to answer questions respecting his estate and effects, should not be allowed to avail himself of the common law maxim “nemo tenetur se ipsum accusare. ” There is no physical compulsion to enforce the obligation, and the refusal to answer is not made an offence subjecting the bankrupt to any specific punishment; but the questions, although tending to criminate the bankrupt, are made lawful, and if he refuses to answer them he is liable to be committed and imprisoned as upon a refusal to answer any other lawful question. The present defendant, when before the Court of Bankruptcy, did, after objections properly overruled, answer questions put to him relating to his trade, dealings and estate, which tended to disclose a fraud about concealment of his property.

99                  The Court continued (at 59; 914):

This Act of Parliament, 12 & 13 Vict c 106, creates felonies and misdemeanors, and compels the bankrupt to answer questions which may shew that he has been guilty of some of those felonies or misdemeanors. The maxim of the common law therefore has been overruled by the Legislature, and the defendant has been actually compelled to give and has given answers, shewing that he is guilty of the misdemeanour with which he is charged.

100               Coleridge J, in a powerful dissenting judgment, would have recognised at least a limitation of the curtailment of the privilege to what might be called bankruptcy purposes. He saw the lawfulness of the examination as not conclusive of the question of admissibility.

101               Section 19 of the 1869 Act provided, amongst other things, for public examinations. Section 86 of the 1869 Act provided in certain circumstances for the arrest of the debtor and seizure of books, records and property. Sections 96 and 97 of the 1869 Act dealt with the discovery of bankrupt’s property. Under s 96 the Court might, on the application of the trustee, summon the bankrupt or his wife or any person whatsoever known or suspected to have in his possession any of the estate or effects belonging to the bankrupt or supposed to be indebted to the bankrupt, or any person whom the Court may deem capable of giving information respecting the bankrupt, his trade dealings or property and the Court might require such person to produce any documents in his custody or power relating to the bankrupt, his dealings or property. It was an offence not to comply with such a summons. Section 96 was the successor provision to s 117 that was dealt with in R v Scott. Section 97 empowered the Court to examine upon oath either orally or by written interrogatories any person so brought before it concerning the bankrupt, his dealings or property.

102               Section 96 was considered by the Court of Appeal in Ex parte Schofield; In re Firth (1877) 6 Ch D 230. The question arose as to whether a mere witness (as opposed to the bankrupt) could avail himself of the privilege. It was held that he or she could. As to the position of the bankrupt, James LJ was clear that there was no privilege, saying (at 233):

No doubt the bankrupt himself, when summoned under this section, is placed in a different position, because it is his duty to discover the whole of his estate and effects to his creditors, and he cannot be allowed to conceal a part of it by saying, “If I tell you where it is you will be able to prosecute me for a criminal offence.” But this is a personal obligation of the bankrupt. In the absence of any authority to the contrary, I am of opinion that a mere witness summoned under this section stands in the same position as any other witness.

Baggallay and Cotton LJJ agreed.

103               The 1883 Act provided in s 16 that where a receiving order was made against a debtor, the debtor shall make out and submit to the official receiver a statement of in relation to his affairs showing information concerning assets and liabilities and such further information as may be required by the official receiver. Section 17 of the 1883 Act provided for public examination of the debtor after a receiving order. Subsections 17 (4) to (8) were in the following terms:

(4)      Any creditor who has tendered a proof, or his representative authorised in writing, may question the debtor concerning his affairs and the causes of his failure.

(5)      The official receiver shall take part in the examination…

(6)      If a trustee is appointed before the conclusion of the examination he may take part therein.

(7)      The court may put such questions to the debtor as it may think expedient.

(8)      The debtor shall be examined upon oath, and it shall be his duty to answer all such questions as the court, may put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down in writing, and shall be read over to and signed by the debtor, and may thereafter be used in evidence against him; they shall also be open to the inspection of any creditor at all reasonable times.

[emphasis added]

104               Section 25 of the 1883 Act provided for the arrest of the debtor and seizure of books, papers, money and goods in his possession in certain circumstances.

105               Section 27 of the 1883 Act dealt with discovery of debtor’s property and the power of the Court to summon the debtor, his wife or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor, or supposed to be indebted to the debtor, or any person whom the Court might deem capable of giving information respecting the debtor, his dealings or property.

106               In In re a Solicitor (1890) 25 QBD 17 Lord Coleridge CJ dealt with s 17 of the 1883 Act. Lord Coleridge discussed Ex parte Cossens and noted the important distinction that was drawn by Lord Eldon LC in that case and said:

It will be seen from the judgment in Ex parte Cossens … that Lord Eldon, drew a broad distinction between a man being compelled to answer to a question which inferentially criminated him, and a question which in its very terms was intended to make him confess that he had committed a crime, and which the person who put it would not put in any other form than the direct form. Lord Eldon, in 1820, said, in effect, “You have no right to ask a man point blank, ‘Have you committed a crime?’” and could not allow that question, although, in his opinion, the man might have been forced to answer a question tending to criminate himself if put in another form.

107               Lord Coleridge then turned to R v Scott and noted that the majority of the Court of Appeal were of the view that a directly incriminating answer was admissible; and said that the point was settled by s 17 in its admission of answers into evidence (see emphasised passage in s 17(8) above). Thus, the abrogation of the privilege by R v Scott, and now s 17, was recognised by Lord Coleridge as applying not only to answers, which tended to incriminate, but also to those, which directly incriminated. In that context, Lord Coleridge said (at 25):

…Whether Parliament was aware of Reg. v Scott … and meant to remove all doubt or ambiguity I know not; but it has done so, because it has in express terms enacted that which, of course, if it had been enacted at the time of Reg v Scott would have taken away from the dissentient judge any ground whatever for his argument. Therefore, it is plain that a bankrupt is bound to answer questions which the Court allows to be put, and that the answers, although they tend to criminate him, may, by the express words of the Act of Parliament, afterwards be read in evidence against him.

108               No distinction was drawn between the provision of answers at a public examination attended pursuant to an obligation of the debtor or bankrupt to assist in the general administration of his estate, and the obligation of the bankrupt to give evidence when summoned by the Court.

109               Section 17 of the 1883 Act and R v Scott were again considered in R v Erdheim [1896] 2 QB 260. There the judgment of the Court (for the Consideration of Crown Cases Reserved) was delivered by Lord Russell of Killowen CJ (with whom Pollock B, Hawkins, Cave and Wills JJ concurred). Section 17(8) was the provision in issue. Lord Russell agreed with what the Court of Criminal Appeal had said in R v Scott.

110               The effect of these cases and s 17 of the 1883 Act was stated by Phillimore J in In re Atherton [1912] 2 KB 251 at 254 as follows:

…I have also the authority of the cases of In re a Solicitor, … Reg v Erdheim …, and Reg v Scott …, which decide that those words mean what they say, that a debtor is bound to answer all such questions as the Court may put or allow to be put to him, whether they tend to criminate him or not – even such questions as “Have you committed a crime?”

111               Thus, the distinction drawn by Lord Eldon between the mere tendency to incriminate, and direct incrimination had not survived the later statutes and attendant jurisprudence in England.

112               Section 14 of the Bankruptcy Act 1914 (4 & 5 Geo 5 c 59) (the 1914 Act) provided for a statement of affairs by a debtor; and s 15 dealt with public examination. Subsections 15(4) to (8) were in the following terms:

(4)      Any creditor who has tendered a proof, or his representative authorised in writing, may question the debtor concerning his affairs and the causes of his failure.

(5)      The official receiver shall take part in the examination of the debtor; and for the purpose thereof, if specially authorised by the Board of Trade, may employ a solicitor with or without counsel.

(6)      If a trustee is appointed before the conclusion of the examination, he may take part therein.

(7)      The court may put such questions to the debtor as it may think expedient.

(8)      The debtor shall be examined upon oath, and it shall be his duty to answer all such questions as the court may put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down in writing, and shall be read over either to or by the debtor and signed by him, and may thereafter, save as in this Act provided, be used in evidence against him; they shall also be open to the inspection of any creditor at all reasonable times.

113               Section 23 of the 1914 Act provided in certain circumstances for the arrest of the debtor and the seizure of books, records and property.

114               Section 25 of the 1914 Act provided for the Court to summon the debtor, his wife or a third person to give evidence and produce documents in the manner of s 27 of the 1883 Act.

115               In In re Paget; Ex parte Official Receiver Lord Hanworth MR, in dealing with an examination under s 15, discussed not only the proper scope of the examination but also the question of self-incrimination, saying the following at 87 and 88-9:

The debtor in the present case came up for public examination… under the provisions of s 15 of the Bankruptcy Act 1914 which require that a debtor against whom a receiving order has been made shall be publicly examined as to his affairs. I use that word comprehensively, the object of the examination being not merely for the purpose of collecting the debts on behalf of the creditors or of ascertaining simply what sum can be made available for the creditors who are entitled to it, but also for the purpose of the protection of the public in the cases in which the bankruptcy proceedings apply, and that there shall be a full and searching examination as to what has been the conduct of the debtor in order that a full report may be made to the Court by those who are charged to carry out the examination of the debtor. To concentrate attention upon the mere debt collecting and distribution of assets is to fail to appreciate one very important side of bankruptcy proceedings and law.

…

It has been laid down by Phillimore J in In re Atherton … and I agree with his decision, that in the course of the public examination of a debtor the debtor is not entitled to refuse to answer questions put to him on the ground that the answers thereto may incriminate him, the purpose of the Act being to secure a full and complete examination and disclosure of the facts relating to the bankruptcy in the interests of the public and not merely in the interests of those who are the creditors of the debtor.

116               In re Atherton and In re Paget were followed by Astbury J in In re Jawett [1929] 1 Ch 108, 111.

117               There appears to be no reported case in which a debtor claimed the privilege against self-incrimination to avoid compliance with one or more of the other obligations on the debtor or bankrupt to assist and co-operate in connection with his estate. These obligations were of the kind described in the following paragraphs.

118               In the 1849 Act, forthwith upon notice of adjudication of bankruptcy, the bankrupt, if required by the official assignee, was to deliver up to the official assignee on oath all books of account, papers and writing relating to his estate in his possession or power and discover any in the possession or power of others; the bankrupt was to attend upon the assignee when requested and assist in making out the accounts of the estate. See s 105 of the 1849 Act.

119               Section 19 of the 1869 Act contained the general provisions affecting the administration of property. The section provided that the bankrupt was required, to the utmost of his power, to aid in the realisation of his property, and the distribution of the proceeds amongst his creditors. The bankrupt was required to produce a statement of affairs prior to the first meeting of creditors and was to be publicly examined upon that on a day to be named by the Court and to be subject to further public examination. The bankrupt was obliged to give an inventory of property, a list of creditors and debtors and to attend such meetings of his creditors, wait at such times on the trustee, execute such powers of attorney, conveyances, deeds and instruments and generally do all such acts and things in relation to his property and the distribution of the proceeds as may be reasonably required by the trustee. It was the duty of the Court to adjourn the public examination if information from the bankrupt was insufficient: Ex parte Milne; In re Denton (1873) 28 LTNS 175; Re Lawrence (1870) 22 LTNS 246; and Williams The Law and Practice of Bankruptcy (2^nd Ed, 1876), p 131. Section 22 of the 1869 Act provided, amongst other things, that the trustee should as soon as may be take possession of the deeds, books and documents of the bankrupt and all other property capable of manual delivery.

120               Under the 1883 Act a receiving order for the protection of the estate could be made after the commission of an act of bankruptcy and the presentation of a petition by a creditor: s 5. Upon the making of a receiving order the receiver took control of the debtor’s property: s 9; and a general meeting of creditors was to be held to consider any proposal for composition or arrangement, or whether the debtor should be adjudged bankrupt: s 15. Upon the making of a receiving order, the debtor was obliged to make out a verified statement of affairs showing his assets, liabilities and particulars thereof and such further information as might be required by the receiver. The statement was available to creditors. The debtor was then subject to a public examination: s 17. If adjudged bankrupt under s 20, the bankrupt’s property vested in the trustee (hitherto controlled by the receiver) and the trustee was appointed (the receiver standing as trustee until appointment).

121               After a receiving order, there arose duties in the debtor. Section 24 of the 1883 Act dealt with these duties of assistance, including when a debtor was adjudged bankrupt. It was in the following terms:

24. (1) Every debtor against whom a receiving order is made shall, unless prevented by sickness or other sufficient cause, attend the first meeting of his creditors, and shall submit to such examination and give such information as the meeting may require.

[emphasis added]

(2)     He shall give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager, or trustee, execute such powers of attorney, conveyances, deeds, and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the official receiver, special manager, or trustee, or may be prescribed by general rules, or be directed by the Court by any special order or orders made in reference to any particular case, or made on the occasion of any special application by the official receiver, special manager, trustee, or any creditor or person interested.

(3)     He shall, if adjudged bankrupt, aid, to the utmost of his power, in the realization of his property and the distribution of the proceeds among his creditors.

(4)     If a debtor wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property, which is divisible amongst his creditors under this Act, and which is for the time being in his possession, or under his control, to the official receiver or to the trustee, or to any person authorised by the Court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of Court, and may be punished accordingly.

122               Of relevance is the qualifying phrase in s 24(1): “unless prevented by sickness or other sufficient cause”. It was a phrase plainly directed in the context to physical incapacity to do these things. The bankrupt was required to be present in the room for the meeting and examination: Ex parte Best (1881) 18 Ch D 488; and Ex parte Hollender [1883] WN 186.

123               The 1914 Act also provided for a receiving order after an act of bankruptcy and on presentation of a petition (s 3) upon the making of which the official receiver became receiver of the debtor’s property (s 7). As soon as might be thereafter, a creditors’ meeting was to be held to consider any proposals or whether the debtor should be adjudged bankrupt (s 13). The debtor was obliged to write out a statement of affairs and submit it to the official receiver (s 14) to which statement the creditors had access. The debtor was publicly examined (s 15). Subsections 15(4), (5), (6), (7) and (8) were in similar terms to subss 17(4), (5), (6), (7) and (8) of the 1883 Act. Adjudication of bankruptcy vested property in the trustee (s 18). Section 22 was in similar terms to s 24 of the 1883 Act. The same qualifying phrase was used: “unless prevented by sickness or other sufficient cause”.

124               Sections 23 and 25 of the 1914 Act were similar to ss 25 and 27 of the 1883 Act, providing for arrest and seizure by warrant, and the summoning of parties to give evidence and produce documents.

125               Under s 154 of the 1914 Act various offences by the debtor (after a receiving order) or the bankrupt were provided for, including a failure of the debtor or bankrupt to the best of his knowledge and belief to discover and deliver up all his property, books, documents, papers and writings in his possession, custody or control, concealment of property and a material omission in a statement of affairs, unless there was no intent to defraud.

Australia

126               Thus, from 1856, and certainly by the time of the Bankruptcy Act 1924 (Cth) (the 1924 Act), it was clear that even without express words abrogating the privilege a bankrupt could not take advantage of the privilege against self-incrimination in an examination, whether a public examination held under the provisions concerning general administration or in evidence given before the Court after being summoned. There was some suggestion in some colonial legislation and cases before Federation that the privilege was available in the context of bankruptcy examinations: Insolvency Act 1871 (Vict) and Re Aarons (1880) 6 VLR (L) 56, 70-71. See, however, s 91 of the Insolvency Act 1897 (Vict) and Re Hickman (1909) 15 Argus LR (CN) 21. By the end of the century, to the extent that the privilege had been raised in connection with either public examination or the exercise of the Court’s power to summon, the balance of authority was clearly that the privilege had been impliedly abrogated.

127               The 1924 Act provided for a sequestration order, not a receiving order: s 54 of the 1924 Act, whereupon all property of the bankrupt (property being widely defined in s 4) vested in the official receiver named in the order: s 60. Upon the sequestration order being made the debtor was required to file a statement of affairs showing particulars of the estate, the causes of the bankruptcy and such other information as the official receiver required, which statement was available to creditors: s 66. Section 67 provided for a general meeting of creditors. There was no provision in s 67 for the questioning of the debtor. Sections 68 and 69 provided for public examination. Subsections 68(4)-(9) were similar to s 17 (4)-(8) of the 1883 Act and were in the following terms:

(4) Any creditor whose proof has been admitted, or his representative authorized in writing, may question the bankrupt.

(5) The official receiver may take part in the examination of the bankrupt, and for that purpose, if specially authorized by the Registrar, may employ a barrister solicitor or attorney.

(6) If a trustee is appointed before the conclusion of the examination, he may take part therein.

(7)      The Court may put or allow such questions to be put to the bankrupt as it thinks fit.

(8)      The bankrupt shall be examined upon oath, and he shall answer all such questions as the Court puts or allows to be put to him.

(9)      Such notes of the examination as the Court thinks proper shall be taken down in writing, and, after being read over either to or by the bankrupt and signed by him, may be used in evidence against him, and shall be open, at all reasonable times, to the inspection of the official receiver, the trustee, the bankrupt or any creditor of the bankrupt, or the agent of any such person, without fee, and to the inspection of any other person, on payment of the prescribed fee.

128               Sections 54, 60, 66, 67, 68 and 69 were in Part ivof the 1924 Act “Proceedings in Connection with Sequestration”.

129               Also within Part iv was s 70 dealing with the requirement to answer questions. It was in the following terms:

Unless the Court otherwise directs, a bankrupt shall not be excused from answering any questions put to him on any examination by reason only that the answer thereto may expose him to punishment.

130               The prevailing English jurisprudence was clear: the privilege against self-incrimination did not apply to public examinations (or private examinations) and any evidence given over any such objection was admissible. Nevertheless, two State provisions: s 226 of the Insolvency Act 1915 (Vict) and s 310 of the Insolvent Act 1886 (SA)dealt directly with the privilege. The South Australian provision simply expressed an abrogation of the privilege. The Victorian provision concerned the Supreme Court’s dealing with persons committed for failing to answer questions. The phrase “lawful question” was used. In that context it was provided that no question put to any insolvent on any examination under the Act should be deemed unlawful by reason only that the answer thereto might expose him to punishment under the Act.

131               Robertson and Tait in Federal Bankruptcy Law and Practice (Butterworth, 1928) commented on s 70 at 146:

The section gives legislative effect to the principle established in England in the cases of R v Scott, … R v Robinson … Ex parte Schofield, re Firth …, Re a Solicitor, … and more recently Re Atherton, … where it was held that a debtor in custody or on remand on a criminal charge is bound at his public examination to answer all questions touching his conduct, trade dealings, property and affairs as the Court may put or allow to be put to him, even although the answers may incriminate him. The principles enunciated in the last case were approved and followed in In re Paget, Ex parte Official Receiver, … the object of the public examination of a debtor is not merely for the purpose of obtaining disclosure of assets or other information in the interests of the creditors of the debtors, but also in the interests of the public. Bankrupt cannot demur to questions on the ground that he had given false answers on his last examination: Re Smith, … R v Erdheim, ….

132               Section 70, however, did more than enshrine the existing jurisprudence. If provided, in favour of the bankrupt, an ameliorating discretionary power in the Court by the opening words, “Unless the Court otherwise directs”.

133               Part v of the 1924 Act dealt with the “Control over Person and Property of the Debtor”. Section 76 of the 1924 Act provided in terms similar to s 24 of the 1883 Act and was the predecessor of the current s 77. Section 76 was in the following terms:

(1)      Every bankrupt shall, unless prevented by sickness or other sufficient cause –

(a)     attend the first meeting of his creditors, and submit to such examination and give such information as the meeting requires;

(b)     forthwith deliver to the official receiver or trustee all the books, papers, and writings in his possession relating to his estate;

(c)      give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examinations in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager, or trustee, execute such powers of attorney, conveyances, transfers, deeds and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as is reasonably required by the official receiver, special manager, or trustee, or as is prescribed, or directed by the Court by any order made in reference to any particular case, or made on any application by the official receiver, special manager, trustee, or any creditor or person interested;

(d)     aid, to the utmost of his power, in the realization of his property and the distribution of the proceeds amongst his creditors.

(2)      If a bankrupt wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property which is divisible amongst his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or to the trustee, or to any person duly authorized to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of contempt of Court.

134               Section 76 provided, as did s 24 of the 1883 Act, for questioning of the bankrupt by the creditors at the meeting.

135               Section 77 of the 1924 Act provided for the arrest of the debtor and the seizure of books, papers, documents, money and goods by warrant in certain circumstances.

136               Section 80 of the 1924 Act provided for summoning parties (including the bankrupt) to give evidence on oath and to produce documents in terms similar to s 27 of the 1883 Act.

137               It is not entirely clear whether s 70 (in the earlier Part) applied to evidence under s 80. There was used in s 80 the term “examination” to describe the process there envisaged. However, s 80 was a provision having its roots in provisions separate from those providing for the mandatory public examination. Arguably, s 70 did not apply to evidence given under s 80. (This approach was reflected in the later structure under the Bankruptcy Act 1966 (Cth) (the “1966 Act”), see below.) If s 70 did not apply to s 80, arguably the position reflected by the implied abrogation of the privilege recognised by the English cases would have obtained in relation to s 80, there being no intention apparent in the 1924 Act to create any new regime whereby the privilege against self-incrimination could be invoked by the bankrupt in one, but not the other, type of examination, contrary to the clear authority of over 75 years of jurisprudence.

138               Section 210 of the 1924 Act provided for various offences, without any qualifying excuses, which provisions, in substance, made criminal any failure to comply with obligations under ss 66 and 76: s 210(1)(a), (b), (c), (d) and (g) and 210(2), (4) and (5).

139               The question of self-incrimination under the 1924 Act came before Hanger J in 1958 in In re Wagner [1958] QWN 49. Hanger J said, after In re Paget was cited to him, that the obligation imposed on the bankrupt by s 68(7) was sufficient, in effect, to abrogate the privilege.

140               In 1965, in dealing with cognate provisions under the Companies Acts, Windeyer J in Rees v Kratzmann (1965) 114 CLR 63 recognised as correct the English cases to which I have referred, when he said at 80:

There is in the common law a traditional objection to compulsory interrogations. Blackstone explained it: “For at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, "but rather to be discovered by other means, and other men”: Comm. iv, 296. The continuing regard for this element in the lawyer’s notion of justice may be, as has been suggested, partly a consequence of a persistent memory in the common law of hatred of the Star Chamber and its works. It is linked with the cherished view of English lawyers that their methods are more just than are the inquisitional procedures of other countries. But, strong as has been the influence of this attitude upon the administration of the common law, of the criminal law especially, it must be admitted that in the Chancery Court it had less place: and in bankruptcy jurisdiction it has been largely displaced. For example, a debtor upon his public examination in bankruptcy cannot refuse to answer questions on the ground that the answers may incriminate him (Re Paget; Ex parte Official Receiver [1927] 2 Ch 85; Re Jawett [1929] 1 Ch 108), the purpose of the bankruptcy statute being to secure a full and complete examination and disclosure of the facts relating to the bankruptcy in the interests of the public.

141               The Report of the Committee appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth (“the Clyne Committee”) was delivered in 1962. There were some recommendations as to changes to the provisions concerning public examinations in s 68 (see [98] to [102] of the Report) and as to control over persons and property of debtors and bankrupts in ss 76 to 80 (see [107]-[111] of the Report). There was no discussion of the privilege against self-incrimination. The Committee did, however, reiterate the central role of the public examination in bankruptcy, resisting a suggestion (later taken up by Parliament in 1980) that public examinations only take place when the Court or the committee of inspection required it. The expression by the Clyne Committee of the public importance of examination echoed what Lord Hanworth MR had said in In re Paget concerning the central role of the examination in the purposes of the bankruptcy legislation and the public interest involved.

142               In 1966, Parliament replaced the 1924 Act with the 1966 Act in terms that were largely as recommended by the Clyne Committee. In Part iv(“Proceedings in Connection with Bankruptcy”) s 58 provided for vesting of all property in the Official Receiver. Also in Part iv, s 69 provided for public examinations. Subsections 69(5)-(8) were in the following terms:

(5)          A creditor of the bankrupt or his agent authorized in writing for the purpose may take part in the examination.

(6)          If a trustee has been appointed by the creditors before the conclusion of the examination he may take part in the examination.

(7)          The Court or the Registrar may put to the bankrupt, or allow to be put to the bankrupt, such questions as the Court or the Registrar thinks proper.

(8)          The bankrupt shall answer all questions that the Court or the Registrar puts or allows to be put to him and, unless the Court or the Registrar otherwise directs, is not excused from answering any such question by reason only of the fact that the answer to it may render him liable to punishment.

143               Thus, s 70 of the 1924 Act was incorporated into s 69(8) of the 1966 Act.

144               Section 77, 78 and 81 of the 1966 Act appeared in Part V “Control over Person and Property of Debtors and Bankrupts”. Section 77 was the successor of s 24 of the 1883 Act, s 22 of the 1914 Act and s 76 of the 1924 Act, and was in the following terms:

77. A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause -

(a)     forthwith after he becomes a bankrupt, deliver to the trustee all the books, documents, papers and writings in his possession relating to his trade dealings, property or affairs and, if he has a passport, his passport;

(b)     wait at such times on the trustee as the trustee reasonably requires and give such information concerning his conduct, trade dealings, property and affairs as the trustee requires;

(c)      attend the first meeting of his creditors and, if so required by the trustee, attend any subsequent meeting of creditors;

(d)     at each meeting of his creditors at which he is present, give such information concerning his conduct, trade dealings, property and affairs as the meeting requires;

(e)      execute such instruments and generally do all such acts and things in relation to his property and its realization as are required by this Act or by the trustee or as are ordered by the Court upon the application of the trustee;

(f)       disclose to the trustee, as soon as practicable, property that is acquired by him, or devolves on him, before his discharge, being property divisible amongst his creditors; and

(g)     aid to the utmost of his power in the administration of his estate.

145               Section 78 provided for the arrest of the debtor and the seizure of property and records. It was the successor to s 86 of the 1869 Act, s 25 of the 1883 Act, s 23 of the 1914 Act and s 77 of the 1924 Act.

146               Section 81 of the 1966 Act dealt with discovery of the bankrupt’s property in a similar manner to s 96 of the 1869 Act, s 27 of the 1883 Act, s 25 of the 1914 Act and s 80 of the 1924 Act: the Court could summon any party (including the bankrupt) to give evidence and produce documents.

147               Section 81 did not provide expressly for any curtailment of the privilege. No equivalent of s 70 of the 1924 Act was placed in s 81 of the 1966 Act. Section 81 was, relevantly, in the following terms:

(1) The Court or the Registrar may, on the application of the trustee or of a creditor who has proved his debt, and on such terms as to costs as the Court or the Registrar thinks fit to impose, at any time summon –

(a)     the bankrupt or the spouse of the bankrupt; or

(b)     a person known or suspected to have in his possession any property of the bankrupt, or who is supposed to be indebted to the bankrupt or to be able to give information respecting the bankrupt or his trade dealings, property or affairs,

to attend before the Court or before the Registrar or, if the Court or the Registrar thinks fit, before a magistrate, to give evidence and produce any documents in his custody or power relating to the bankrupt or his trade dealings, property or affairs.

…

(3)      A person summoned to attend before the Court, the Registrar or a magistrate under this section may be examined on oath concerning the bankrupt or his trade dealings, property or affairs by the Court, the Registrar or the magistrate, or by the trustee or a creditor.

148               Whilst no express abrogation of the privilege against self-incrimination can be found in s 81 (s 70 of the 1924 Act having been incorporated only into s 69 of the 1966 Act), there was no discernible purpose or intent in the Clyne Committee Report or the debates in Parliament to remove the abrogation of the privilege in relation to a s 81 examination, but not in relation to a s 69 examination. Nevertheless, in 1971 in The Queen v West (1971) 18 FLR 333, Judge White, in the Central District Criminal Court of South Australia in dealing with ss 69 and 81 said the privilege was not taken away by s 81: at 335. That, however, was obiter and said in the context of a witness and not the bankrupt. There was no reference to the English cases to which I have referred dealing with implied abrogation.

149               In 1970, in Mortimer v Brown, Walsh J at 499-500 (with whom Barwick CJ, Windeyer and Owen JJ agreed) referred without disapproval to In re Atherton and In re Paget.

150               In 1980, the then existing s 69 was repealed by s 38(1) of the Bankruptcy Amendment Act 1980 (Cth) (the 1980 Amendment Act). The changes to s 69 in 1980 were directed to a number of matters, in particular removing the need for examination in some cases. There was no apparent intention to change the abrogation of the privilege against self-incrimination, at least by the terms of s 69. The new s 69 included s 69(12) in terms the same as s 69(8) of the original 1966 Act, as follows:

The bankrupt shall answer all questions that the Court, the Registrar or the magistrate puts or allows to be put to him and, unless the Court, the Registrar or the magistrate, as the case may be, otherwise directs, is not excused from answering any such question by reason only of the fact that the answer to it may tend to incriminate him.

151               Section 41 of the 1980 Amendment Act also replaced s 81. The new s 81 clarified various matters. One aim expressed in the Explanatory Memorandum was to achieve consistency with s 69 examinations. Nevertheless, s 81 continued not to contain any express reference to the privilege or its abrogation.

152               New offences were introduced by s 155 of the 1980 Amendment Act concerning examinations and ss 69 and 81. The offences concerned the failure to attend, the refusal to be sworn, prevarication or evasion in examination and the conduct of an examinee at an examination.

153               Section 306A was inserted into the Act by s 167 of the 1980 Amendment Act. It provided protection for various parties participating in examination. It was in the following terms:

(1)      A Registrar or magistrate has, in the exercise of the powers and the performance of the functions conferred on him by section 50, 69 or 81 in relation to the examination of a person, the same protection and immunity as a Justice of the High Court.

(2)      A barrister, solicitor or other person representing a person being examined under section 50, 69 or 81, or a person entitled to take part in the examination of a person under section 50, 69 or 81, has in respect of the examination the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3) Subject to this Act, a person summoned to attend for examination, or appearing for examination, under section 50, 69 or 81 has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court.

154               Section 306A(3) might be seen to have introduced into the Act protections which included the privilege against self-incrimination previously said, at least in the English jurisprudence, to be impliedly abrogated, unless a specific provision, such as s 69(12) (previous s 69(8) and s 70 in the 1924 Act), dealt with the privilege expressly. That appeared to be the view favoured by Jackson J in Re Clyne; Ex parte Deputy Commissioner of Taxation at 136, citing, in particular, Gibbs J in Re Royal Commission; A Brisbane Hotel (No 2) [1964] QWN 29.

155               The Explanatory Memorandum to the Bill which became the 1980 Amendment Act does not necessarily support that view. The protection introduced would appear to have been intended against possible suit for defamation. The Explanatory Memorandum stated the following about s 306A:

C1.165: protection against liability for actionable statements of persons engaged in bankruptcy proceedings

334. Background: There is often a special need for a full disclosure of facts in bankruptcy proceedings without any fear of liability for defamation so as to assist in the recovery of assets and the investigation of the conduct and dealings of the bankrupt. However, at the moment a fear of liability for defamation may prevent full disclosure by:-

(a)     persons taking part in proceedings before a Registrar or magistrate; and

(b)     Official Receivers reporting upon their investigations under s 19.

New provisions are proposed to overcome these difficulties and assist in the administration of the Act (Bill cl 165).

335. Amendments: Registrars or magistrates, and persons appearing before them, will be given the same protection against civil liability as they would have if the proceedings were civil proceedings in the High Court (Bill cl. 165 – proposed s 306A – similar protection is provided in the Copyright Act s 171 and the Trade Practices Act s 158).

336. Official Receivers will be given qualified privilege in any report filed with the Registrar under s 19 (which sets out the duties of an Official Receiver) (Bill cl 165: proposed s 206B). This will ensure that in the performance of his duties under s 19 an official Receiver is not inhibited by concern about civil liability for defamation (cf s 167B of the existing States and Territory companies legislation).

156               It is unnecessary to reach a view about the meaning and effect of s 306A.

157               Changes were made to ss 69 and 81 by the Bankruptcy Amendment Act 1985 (Cth). The Parliamentary debates reveal a perceived difficulty in some private trustees not undertaking public examinations. The amendments permitted the Official Receiver to conduct an examination, even if the trustee did not. The Explanatory Memorandum referred to the continued recognition of the importance of the public examination.

158               The Bankruptcy Amendment Act 1987 (Cth) introduced a number of changes to the Act designed to strengthen the investigatory powers under the Act. The introductory outline to the Explanatory Memorandum stated the following:

The majority of people becoming bankrupt each year are consumer bankrupts who, in most cases, become bankrupt through misfortune or poor judgment. However there is an increasing incidence of bankruptcies involving persons who become bankrupt as a deliberate device to defeat the claims of their creditors. Frequently it is a feature of such bankruptcies that the persons involved have made use of sophisticated and complex commercial structures of companies and trusts as a device to conceal property, the use and enjoyment of which is reserved to the bankrupt but which has the appearance of being owned by the company or trust. Upon a bankruptcy the bankrupt is protected from the claims of the creditors but the secreted property is beyond the reach of the trustee in bankruptcy. Such bankruptcies were commented upon by the Royal Commission on the Activities of the Federated Ship Painters and Dockers Union (the Costigan Royal Commission) which referred to the incidence of ‘insolvency fraud’.

The Bill will ensure that the investigatory powers available to the trustee in bankruptcy are such as to empower the trustee to investigate the sophisticated commercial structures which are encountered now more frequently than ever before in bankruptcies.

Other amendments included in the Bill also reflect the change of emphasis from the administration of consumer bankruptcies to the investigation of the bankruptcy fraud…

159               The Explanatory Memorandum identified five main categories of amendments which included the following:

changes designed to enhance the investigatory powers of bankruptcy trustees and to enable asset recoupment from corporations, partnerships and trusts which a bankrupt has used to conceal…

160               The Explanatory Memorandum went on to discuss these extended investigatory powers, as follows:

Accordingly it is proposed to extend the investigatory powers of the trustee with a view to permitting the trustee to investigate thoroughly companies, trusts and other entities financially associated with a bankrupt. This will be achieved by extending the trustee’s own powers of investigation and by expanding the scope of various provisions of the Act which provide for the examination on oath of a bankrupt and other persons associated with the bankrupt. In particular the amendments will render a person who has been discharged from bankruptcy liable to be examined on oath, and will render persons who are or may be associated with the bankrupt, and with corporations, trusts and partnerships with which the bankrupt is or has been associated, liable to be summoned for examination. The scope of permissible questioning at an examination will be widened so as to embrace all the financial activities of the bankrupt including, for example, activities of a bankrupt in his or her capacity as an officer of an associated company. It is undesirable that the full extent of a bankrupt’s business activities should go uninvestigated for two major reasons of policy. The first reason is that there is an increasing incidence of abuse of the corporate veil and other devices as a means of disguising the identity of assets which are acquired, directly or indirectly, though the efforts of the bankrupt, the use of which is enjoyed by the bankrupt, but which have the guise of being the property of an associated entity. The second reason is that the Act requires an evaluation of the conduct of the bankrupt, both before and after bankruptcy, in a number of circumstances such as where the bankrupt applies to the Court for discharge from bankruptcy before becoming entitled to automatic discharge. The trustee’s ability to thoroughly investigate a bankrupt’s activities is hampered by the confined scope of the trustee’s powers and of the examination provisions.

161               One aspect of these changes was the introduction of s 19AA, providing for investigations. The terms of s 19AA introduced in 1987 were not the same as the present s 19AA.

162               Amendments to s 50 provided for the summoning of a debtor before a sequestration order to be examined on oath. The relevant parts of s 81 applied to such an examination.

163               Amendments to s 69 made public examination available as a procedure after discharge of the bankrupt and there was also the widening of the field of questions to include the affairs of a company, partnership or trust with which there was an association. In dealing with these matters the Explanatory Memorandum expressed the purpose of examinations in a way conformable with accepted principle:

…There are two objects in the examination of a bankrupt, the first being to obtain a full and complete disclosure of the bankrupt’s assets and liabilities and the facts relating to the bankruptcy in the interests of creditors, and the second being the protection of the public interest.

164               Amendments were made to s 81 in 1987 which included the introduction of the power in a creditor to request the Court to summon the relevant person or examinable person. The Explanatory Memorandum at [229] said this about the changes to s 81:

Consistently with the other proposed amendments to the investigation and examination provisions, this section will permit examination of persons associated with companies, partnerships, trusts and other persons that are associated with the bankrupt, so as to enable, where necessary, the fullest possible inquiries into the bankrupt’s activities, particularly where it is thought that the bankrupt has concealed property, or has materially contributed to the acquisition of property by the associated entity or other person.

165               In 1990, the dual provisions (ss 69 and 81) concerning examination were collapsed into one: s 81. Section 69 was repealed by s 14 of the Law and Justice Legislation Amendment Act 1990 (Cth) (the 1990 Act). By s 15(1) of the 1990 Act subsection (11AA) was inserted into s 81 in terms that currently appear. Section 15(2) stated:

Section 81 of the Principal Act, as in force immediately before the commencement of this section, continues to apply in relation to the examination of a person who, before that commencement, became a “relevant person” within the meaning of that section.

166               The 1990 Explanatory Memorandum stated the following about the repeal of s 69 and about the privilege in connection with the then existing ss 69 and 81 and the proposal to insert subsection (11AA) into s 81:

31.     Subclause 14(1) will repeal section 69. The provision of section 69 which restricts the bankrupt’s right to refuse to answer questions on the ground that the answer may tend to incriminate him or her will be incorporated with some modifications into section 81 by clause 15 of the Bill, discussed below. This change will consolidate the two examination provisions into one which will simplify the Act.

…

33. Section 81 provides for the examination on oath of bankrupts, debtors and persons who have knowledge about the financial affairs of bankrupts, debtors and their associated entities. Subsection 69(12) of the Act provides that an examinee under that section, that is a person who is a bankrupt or who having been bankrupt has been discharged, is required to answer all questions put or allowed to be put to him or her, including questions the answer to which may tend to incriminate him or her, unless the Court, the Registrar or the magistrate otherwise directs.

34.     Among the main differences between section 69 and section 81 are that the Registrar has no discretion to issue a summons under section 69, and there is a discretion under section 81. Only the bankrupt can be summoned under section 69, whereas the bankrupt and other persons may be summoned under section 81. Further the common law privilege against self-incrimination is restricted by subsection 69(12) in the case of a bankrupt, although there is no such restriction in the case of the bankrupt under section 81.

35.     The changes to the Act made by clauses 14 and 15 will have the effect of reinstating the discretion of the Registrar whether to issue a summons to the bankrupt or not in all cases, and to preserve the statutory restriction on the privilege against self-incrimination provided for by subsection 69(12). This will be achieved by the insertion, by subclause 15(1), of proposed subsection 81(11AA) into the Act, which provides that the bankrupt is not excused from answering any question put to him or her at the examination on the ground that the answer may incriminate him or her, subject to any contrary direction by the Court, the Registrar or the magistrate.

36.     Subclause 15(2) is an application provision similar to subclause 14(2) of the Bill. The subclause provides that section 81 as in force immediately before the commencement of the Bill will continue to apply in relation to the examination of a person who became a bankrupt before the commencement of the Bill. This will ensure that bankrupts and discharged bankrupts who are undergoing or about to undergo an examination under the section are not subject to any liabilities that they were not subject to before the commencement of the amendments, in particular, the restriction on the limited privilege against self-incrimination that is being imported from the provisions of section 69.

[emphasis added]

167               This expression of view by the Executive reveals a view that the privilege could be availed of in a s 81 examination before the insertion of subsection (11AA). Arguably this mis-states what was the law as to the implied abrogation of the privilege as seen in the English jurisprudence. Alternatively, it might reflect a view of the effect of s 306A(3) conformable with that of Jackson J in Re Clyne. In any event, after 1990, s 81 was in a form relevantly the same as the present terms of the section.

168               Whilst the later amending legislation made extensive amendments to the Act, none needs to be referred to here.

The Arguments of the Parties, the Proper Construction of ss 77, 81, 129 and 130 and the Disposition of the Appeal

169               The appellant first submitted that there was no clear intention of Parliament to abrogate the privilege in ss 77, 81, 129 and 130.

170               Section 77 is a provision at the core of the working of the Act. Central to the ability of the trustee to take over the affairs of the bankrupt is his or her ability to gather in the assets of the bankrupt, understand the affairs of the bankrupt (in the wide sense provided for) and administer the estate of the bankrupt in the interests of creditors, and in the public interest.

171               The trustee obtains property in the books and records owned by the bankrupt. Clear entitlement and duties of possession are provided for.

172               Section 265 provides in an unqualified way for offences in connection with the duty of full production and disclosure of information.

173               The appearance of the phrase “without good cause shown” in s 78(1)(f) does not qualify the offences in s 265. Section 78(1)(f) deals generally with all obligations under the Act. In so doing a general provision such as “without good cause shown” is not determinative of the question whether any particular obligation or group of obligations abrogates or curtails the privilege.

174               The history discussed earlier clearly reveals that by the early twentieth century the privilege against self-incrimination was seen as impliedly abrogated in respect of questioning on oath in an examination. Perhaps because of the view (before Pyneboard) that the privilege only arose in a curial context, that is, as a testimonial privilege, no English case dealt with the obligation in provisions such as s 77.

175               Viewing, as I do, the character and purpose of s 77 as fundamental and central to the trustee’s task and duties, considering the unconfined and unqualified offences in s 265, considering the vesting of property of the bankrupt in his or her books and records in the trustee and the duty of the trustee to take possession of the books and records, considering what would be the impossibility of the trustee understanding the extent and nature of the affairs of a bankrupt were the bankrupt able to withhold documents about his or her affairs, and set against the history to which I have referred, I think it to be unmistakable that at least the production and provision of books of the bankrupt to the trustee under s 77(1)(a) is an obligation which abrogates and overrides the privilege. The character and purpose of the provision, set against the Act as a whole, demands it. Without that obligation the very ability of the trustee to perform his or her duties would be frustrated and made unworkable whenever the bankrupt had been, or asserted that there was a risk of finding that he or she had been, less than honest.

176               Bankruptcy administration is not merely intended to occur in relation to the insolvency of honest people. It has always been recognised that the fraudulent will become insolvent too. Indeed, one of the considerations that from time to time has concerned the Executive and Parliament is the ability of the fraudulent to hide behind the bankruptcy laws. The trustee must be able to investigate and understand such a person’s affairs, in full. The Act cannot be construed as entitling the bankrupt to refuse to give to the trustee the books and records that the bankrupt owned and which now are either owned by the trustee or which the trustee has a duty to take possession of.

177               Giving the fullest recognition to the strength of the expressions of view by the High Court as to the fundamental and deeply rooted nature of the privilege, it appears to me to be plain and unmistakable that the obligation to hand over books and records provided for by s 77(1)(a) is fundamental to the trustee carrying out his or her necessary task in the interests of the creditors, the public and indeed the bankrupt himself or herself, and that the administration of bankruptcy would be frustrated in a case such as the present if books and records could be held back by the bankrupt because of the claim of privilege. This compels me to the conclusion that the privilege has been abrogated in respect of the obligation in s 77(1)(a).

178               This view reflects how the American courts have approached the question of the bankrupt’s books and records. The Supreme Court, in a number of decisions, has stated that the privilege secured by the Fourth and Fifth Amendments to the Constitution does not apply upon the statutory transfer of title, custody and right to possession of the books to the trustee: Re Harris at 279 (Holmes J delivering the opinion of the Court), Johnson v United States 228 US 457 (1913) (Holmes J delivering the opinion of the Court) and In re Fuller 262 US 91, 93-94 (1923) (Taft CJ delivering the opinion of the Court).

179               To a degree, these cases were based on the testimonial nature of the privilege in the United States: see Re Harris at 279. However, central to all was the clear transfer of ownership in the books and the necessity of their transfer for the carrying on of the trustee’s responsibilities.

180               Further, in In re Fuller Taft CJ delivering the opinion of the Court rejected the proposition that the trustee should somehow be limited in what use he could make of the books, saying the following at 94:

…With the appointment of the trustee both the title and the right to possession of such books and papers passed to him and Judge Mack’s order properly confirmed this result. The receiver, the bankrupts, and their attorney must yield possession and title to the Trustee. Neither can accompany the delivery he is bound by law to make with any effective conditions restricting use of the books, papers, or other property of the bankrupts’ estate as evidence against them.

181               The introductory words to s 77(1), “prevented by illness or other sufficient cause” have their origins in the nineteenth century legislation. They plainly relate, in my view, to physical capacity. The word “prevented” makes that clear, as used in the context of acts, which the bankrupt has to perform.

182               I will return to the other obligations in s 77(1) in due course.

183               To the extent that ss 129 and 130 merely provide for the seizure of books and documents no question of the privilege arises. The privilege is not one against incrimination, but self-incrimination: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs.

184               To the extent that s 130(7) apparently entitles questions to be asked about the books seized different questions arise to which I will revert when dealing with the other obligations in s 77(1).

185               To the extent that s 81(1B) provides for the production of books at an examination pursuant to summons, and to the extent the bankrupt may be served with such a summons, the conclusion that I have reached as to s 77(1)(a) and the abrogation of the privilege in respect thereof means that no privilege could apply to an answer to a summons to a bankrupt to produce the same documents. Since the bankrupt is obliged to produce the documents provided for in s 77(1)(a) to the trustee, without any entitlement to claim the protection of the privilege, the same must prevail in relation to the Court order to produce the very same documents, which, ex hypothesi, should already have been produced by the bankrupt to the trustee.

186               The above conclusions deal with the claims made in [1], [2], [4], [7], [8], [9], [10] and [12] of the amended application insofar as these paragraphs deal with the production of documents.

187               As to answering questions at the s 81 examination, the appellant says that “s 81(11AA) is directed only to questions which might tend to incriminate, not questions which would incriminate him”. I reject this submission. Set in its history as deriving from s 70 of the 1924 Act and in the light of the clear general law abrogation of any aspect of the privilege in respect of the bankrupt answering questions at an examination I am in no doubt that the wider use of the phrase is such as to ensure that the abrogation was of a width conformable with the existing law – in that the bankrupt could not refuse to answer merely by reason of the privilege. As I have said earlier, the privilege was often expressed in the terms of “tending” to ensure its width and utility. That width was intended to be abrogated, in my view.

188               I agree with the analysis of Jackson J in Re Clyne at 135-36 that the discretion of the Court or the Registrar or magistrate to excuse an owner was a benefit in favour of the bankrupt introduced into Australian legislation in s 70 of the 1924 Act, against the background of the jurisprudence then plain – that there was no ability to use the privilege to refuse to answer a question at an examination.

189               Thus approached, it will be a matter for the presiding officer at the examination as to whether to excuse the bankrupt from answering any particular question. The amended application seeks to prevent, in limine, the asking of questions: see [3], [7], [11] and [12] of the amended application insofar as those paragraphs deal with the asking of questions at an examination. That claim must fail.

190               The amended application and the appeal do not call upon the Court to lay down rules in advance for the guidance of the Registrar in any exercise of discretion under s 81(11AA). It would not be appropriate to embark on such a course. The decision of Pincus J in Re Gordon (1988) 80 ALR 289 was not debated before us.

191               It is also unnecessary to deal with the obligations of the trustee as to how he or she deals with documents produced under s 77(1)(a). The primary judge in the course of his reasoning made comments severely circumscribing the use to which the documents, once produced to him, could be put. No precise issue arises for determination in respect of these views of the primary judge. It is sufficient to say that, in dealing with the documents produced, the trustee may well be bound to use them only for the purposes of the administration of the estate and carrying out his or her functions and duties under the Act. Those purposes or functions in any particular context might well be very broad, and conceivably antithetical to the interests of the bankrupt in the continuing maintenance of the privilege or of any confidentiality from the maintenance of the privilege. I would reserve for further argument any limitation beyond that just mentioned. With respect to the primary judge, I do not see the basis for placing any further restriction on the trustee beyond that which I have identified.

192               The appellant also argued that he was entitled to the rights contained in s 128 of the Evidence Act 1995 (Cth) in any examination. See [5] and [6] of the amended application. Strictly, this issue does not arise, as s 81(11AA) abrogates the privilege. Nevertheless, it might be able to be said that the discretion conferred on the Registrar, the Court or the magistrate, carries within it the capacity to employ s 128, if it were otherwise applicable. Thus, I will give my views.

193               Section 128 of the Evidence Act provides for a protective regime when evidence given by a witness may incriminate him or her. Section 128 is in the following terms:

(1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty.

(2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness:

(a) that he or she need not give the evidence; and

(b) that, if he or she gives the evidence, the court will give a certificate under this section; and

(c)      of the effect of such a certificate.

(3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence.

(4) The court is also to cause a witness to be given a certificate under this section if:

(a) the objection has been overruled; and

(b) after the evidence has been given, the court finds that there were reasonable grounds for the objection.

(5) If the court is satisfied that:

(a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law; and

(b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(c) the interests of justice require that the witness give the evidence;

the court may require the witness to give the evidence.

(6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence.

(7) In any proceeding in an Australian court:

(a) evidence given by a person in respect of which a certificate under this section has been given; and

(b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;

cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.

(8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant:

(a) did an act the doing of which is a fact in issue; or

(b) had a state of mind the existence of which is a fact in issue.

(9) A reference in this section to doing an act includes a reference to failing to act.

(10) If a person has been given a certificate under a prescribed State or Territory provision in respect of evidence given by the person in a proceeding in a State or Territory court, the certificate has the same effect, in a proceeding to which this subsection applies, as if it had been given under this section.

(11) The following are prescribed State or Territory provisions for the purposes of subsection (10):

(a) section 128 of the Evidence Act 1995 of New South Wales;

(b) a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision for the purposes of subsection (10).

(12) Subsection (10) applies to:

(a) a proceeding in relation to which this Act applies because of section 4; and

(b) a proceeding for an offence against a law of the Commonwealth or for the recovery of a civil penalty under a law of the Commonwealth, other than a proceeding referred to in paragraph (a).

(13) Until the day fixed under subsection 4(6), subsection (10) applies to a proceeding for an offence against a law of the Australian Capital Territory or for the recovery of a civil penalty under such a law, other than a proceeding referred to in paragraph (12)(a).

194               The application of the Evidence Act is dealt with in Part 1.2. In that Part, s 4(1) provides:

This Act applies in relation to all proceedings in a federal court or an ACT court, including proceedings that:

(a) relate to bail; or

(b) are interlocutory proceedings or proceedings of a similar kind; or

(c) are heard in chambers; or

(d) subject to subsection (2), relate to sentencing.

195               Section 5 provides for an extended operation of some provisions to apply “in relation to all proceedings in all Australian Courts.”

196               The word “proceedings” is not defined in the Evidence Act. The word “witness” is defined in Part 1 of the Dictionary to the Evidence Act as including the meaning given in clause 7 of Part 2 of the Dictionary. Clause 7 of Part 2 of the Dictionary is in the following terms:

(1) A reference in this Act to a witness includes a reference to a party giving evidence.

(2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(3) A reference in this clause to a party includes a defendant in a criminal proceeding.

197               The phrase “federal court” is defined in Part 1 of the Dictionary as follows:

federal court means:

(a) the High Court; or

(b) any other court created by the Parliament (other than the Supreme Court of a Territory);

and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.

198               The word “proceedings” is capable of wide and flexible application. In the Evidence Act, however, the proceedings contemplated are those conducted by a court, or by a person or by a body who or which is required to apply the laws of evidence. The whole Evidence Act is concerned with the regulation of the rules of evidence in proceedings in which there are parties, and in which there are witnesses. Chapter 2 deals with adducing evidence, chapter 3 with admissibility, chapter 4 deals with proof and chapter 5 with miscellaneous matters. Within chapter 3, Part 3.10 deals with privileges. Division 2 deals with religious confessions and the privilege against self-incrimination.

199               As can be seen from the terms of s 128, and its place within Part 3.10, the privilege being dealt with is that of a witness in legal proceedings to which the Evidence Act and the rules of evidence otherwise apply.

200               In the Final Report of the Australian Law Reform Commission Report on Evidence (No 38) the application of the bill is discussed at [55] to [57]. The following appears at [57]:

Proceedings. The Evidence Bill applies, subject to specified exceptions, in all proceedings in federal courts and in courts of the Territories. It applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and proceedings heard not in open court but in chambers. It applies, not only in ordinary trials (whether civil or criminal) but also in matters such as bankruptcy proceedings. There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the Bill.

[emphasis added]

201               Though “bankruptcy proceedings” are specifically referred to, it does not follow that an examination after the sequestration order is made and the debtor is made a bankrupt is such a proceeding. The paragraph makes clear that it is proceedings “whenever evidence is to be adduced”.

202               It is not easy to see how an examination under s 81 is such a proceeding. It is not between parties. It is not the resolution or agitation of a lis at which evidence is adduced under the rules of evidence. It does not have parties or witnesses properly so-called. It is an interrogation – a fact-finding exercise of the kind discussed by Lord Hanworth MR in In re Paget. The notes or transcript of the “evidence given at the examination” (see s 81(17)) can be used as evidence, but the “evidence” is only the answers on oath to an interrogation by the trustee or creditor.

203               An examination under s 81 or an application for an examination under s 81 may for some purposes, or in some legislative contexts, be a proceeding, such as under the Federal Court of Australia Act 1976 (Cth)or the Rules made thereunder: see generally Re Appleton, French & Scrafton Ltd [1905] 1 Ch 749; Re Auto Import Co (Australia) Ltd (1925) 25 SR (NSW) 587; In re Standard Gold Mining Co [1895] 2 Ch 545; Cheney v Spooner (1929) 41 CLR 532; Re Burns Philp Trustee Co Ltd (in liq) (No2) (1992) 29 NSWLR 713; Re Interchase Corporation Ltd (1996) 68 FCR 481; Deputy Commissioner of Taxation v Currockbilly Pty Ltd [2002] NSWSC 1061; Fiorentino v Irons (1997) 79 FCR 327; Re HJ Price (No 4) (1948) 14 ABC 142; Re Csidei; Ex parte Andrew (1979) 28 ALR 381, 390; Karounos v Official Trustee (1988) 80 ALR 626; Re Jacka; Ex parte Jacka (1986) 66 ALR 564; and Clyne v Official Trustee (1983) at 263.

204               An examination under s 81 is in the nature of an interrogation supervised by the Court, the Registrar or a magistrate. Lord Esher MR described the procedure in In re Cronmire; Ex parte Cronmire [1894] 2 QB 246, 250-51 and in In re Beall [1894] 2 QB 135, 137. See also Re Schaumann (1909) 26 WN (NSW) 2; Re Andrews (1958) 18 ABC 181; R v Zion [1986] VR 609, 613-14; Re Weiss; Ex parte The Official Trustee; Clyne v The Official Trustee (1983) 74 FLR 259; Friedrich v Herald & Weekly Times (1989) 1 ACSR 277, 285; and Keay “Bankruptcy Examinations under s 81 of the Bankruptcy Act” (1992-93) 17 Uni Qld LJ 35.

205               In Re Interchase Corporation Ltd, Kiefel J expressed the view that an examination under s 596B of the Corporations Law was a proceeding for the purpose of the Evidence Act. Her Honour said at 487:

Counsel for the liquidators did at one point suggest that the Evidence Act might not apply, because an examination was not a “proceeding” in a Federal Court: see s 4(1) of the Evidence Act. But I do not think that is a correct statement of position. The examinations referred to in Div 1, Pt 5.9 of the Corporations Law are conducted by the Court upon application to it, whether that be by a judge or by registrars acting under delegation (as to the validity of which see Re Socket Screw & Fastener Distributors (NSW) Pty Ltd (In Prov Liq) (1994) 51 FCR 599). Whilst it is not like usual court proceedings and is in the nature of a facilitated investigation by one party, s 4 of the Federal Court of Australia Act 1976 (Cth) in its definition of “proceeding” does not require that all proceedings be inter partes.

206               With respect, I do not agree. The examination may be a proceeding for the Federal Court of Australia Act. It does not follow that it is a proceeding in which it is intended that evidence be adduced from witnesses. Her Honour’s views were obiter.

207               In my view, s 128 of the Evidence Act, along with the other provisions of the Evidence Act, does and do not apply to an examination under s 81.

208               The above disposes of all the claims in the amended application – the documents in question must be produced, the questions may be put, and s 128 of the Evidence Act does not apply.

209               It is strictly unnecessary to deal with the question whether the terms of ss 77(1)(b) to (g) and 130(7) abrogate the privilege. Sheppard J in Re Bond was of the view that all of s 77 abrogated the privilege. It is appropriate, however, to identify what might be seen to be different considerations concerning the balance of s 77, to those affecting s 77(1)(a).

210               It is certainly the case that the bankrupt’s books and documents must be produced and he must answer questions under s 81. But s 81(11AA) and the discretion therein provide a measure of supervised relief from the abrogation otherwise provided for by s 81(11AA). In those circumstances, the trustee has relatively full, but supervised, power of extraction of information from the bankrupt, and he or she has all the books and records of the bankrupt. The ability of the bankrupt to claim the privilege in connection with the other obligations arising under s 77(1)(b) to (g) and s 130(7) may not cause the frustration of the Act that a refusal to hand over documents would cause. It is less easy to see it as unmistakably necessary for there to be an implied abrogation of the privilege by these provisions than it is in connection with s 77(1)(a) and s 81(1B).

211               The issues on the appeal do not, however, require a final view to be taken on the question as to whether Sheppard J in Re Bond was correct in his view that the privilege is abrogated generally by s 77.

212               I do not think that the terms of ss 77A and 77C and the defences of “reasonable excuse” in ss 265A, 267B and 267F affect the interpretation that is necessary for s 77(1)(a). These provisions concern demands made for information and books not only to the bankrupt but also to other persons. The use of the “reasonable excuse” defence by Parliament in this context does not gainsay the necessary and implied abrogation of the privilege in respect of the production of books under ss 77(1)(a) and 81(1B). There will be no reasonable excuse for the failure to produce documents which should already have been produced to the trustee. There may be a reasonable excuse for the bankrupt or another in other circumstances.

213               It was argued that the evidentiary consequences attracted by s 255(1) and (2) to the transcript or recording of the s 81 hearing were difficult to reconcile with the privilege. I disagree. That regime has obtained since R v Scott, s 17 of the 1883 Act and the discussion of both by Lord Coleridge CJ in In re a Solicitor.

214               For these reasons the appeal should be dismissed with costs.

215               Nothing that I have said about the abrogation of privilege by s 77(1)(a) or s 81(11AA) is intended to deal with the position of persons other than the bankrupt dealt with by the trustee.

Associate:

Dated: 11 May 2004