Jackson-Grose v Official Receiver [2002] FMCA 239 (10 October 2002)

Last Updated: 21 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JACKSON-GROSE v OFFICIAL RECEIVER

[2002] FMCA 239

BANKRUPTCY - Refusal to permit overseas travel - Bankruptcy Act 1966 s.78 - Application insufficient evidence to allow court to intervene.

Re Tyndall; Ex parte Official Receiver [1977] FCA 15; (1977) 17 ALR 182

Re Hicks; Ex parte Lamb (Heerey J 4 March 1994 VB 1473 of 1993).

Casella v Prentice [2002] FMCA 48

Re Wheeler; Ex parte Wheeler v House [1994] FCA 1348; (1994) 54 FCR 166

Bankruptcy Act 1924, s.148

Bankruptcy Act 1966, ss.178, 272B

Applicant:

CATHERINE HELENE JACKSON-GROSE

Respondent:

THE OFFICIAL RECEIVER

File No:

MZ 1025 of 2002

Delivered on:

10 October 2002

Delivered at:

Melbourne

Hearing Date:

9 October 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

Mr D Jackson-Grose, Applicant's Husband in person

Solicitor for the Respondent:

Mr P Frost

Solicitors for the Respondent:

The Official Receiver

ORDERS

(1) All times be abridged to enable the application filed 4 October 2002 to be heard this day.

(2) The Application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ 1025 of 2002

CATHERINE HELENE JACKSON-GROSE

Applicant

And

THE OFFICIAL RECEIVER

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an urgent application filed on behalf of Catherine Helene Jackson-Grose, (the applicant), on 4 October 2002. The application seeks certain orders against the Official Receiver (the respondent).

2. The application seeks certain orders against the respondent who is the trustee of the bankrupt estate of the applicant. The applicant became bankrupt on 27 August 2002.

3. The application is claimed to be urgent due to the medical condition said to be suffered by the applicant, namely post-natal depression. The applicant did not appear at the hearing and leave was granted unopposed, for David Jackson-Grose, the applicant's husband, to appear on behalf of the applicant. I should note that the application having been filed on 4 October 2002, this application was initially listed for hearing on 7 October 2002 when it was then adjourned for hearing on 9 October 2002 and listed before me.

4. As I indicated, I allowed the applicant, although not present, to be represented by her husband. I should indicate I did that with some hesitation because on the material before me, there was no clear evidence to indicate that the applicant was not even capable of attending the court, though it may be said was not able to present her own case or argue in support of the application. In any event, the matter proceeded on the basis that the applicant was absent and represented by her husband.

5. The court had before it an affidavit sworn not by the applicant, but by her husband on 4 October 2002. That affidavit has certain exhibits attached to it to which I shall make reference in due course. In addition to that affidavit, the applicant had also sought to rely upon an affidavit sworn by Raymond Jiminez on 7 October 2002. Mr Jiminez claims to be a director of companies who are said to be creditors of the applicant, and the thrust of his affidavit is that he is aware that the applicant had sought permission to travel overseas, and on his own behalf and on behalf of the companies listed in his affidavit indicates that he supports the applicant's application and does not believe that her absence from Australia will in any way affect the administration of justice.

6. I should indicate that in addition to the affidavits to which I have referred, the court also received written submissions filed on behalf of the applicant which had been prepared by her husband and heard further argument. There was no affidavit evidence from the applicant, nor was there any affidavit evidence from any medical practitioner treating the applicant.

7. The application essentially claims that the applicant should be permitted to travel overseas for a period up to six weeks, and that she be permitted to depart on the earliest available flight for which her current airline ticket is valid. It further claims the following:

"2. That no Public Examination of the applicant in relation to her Bankruptcy be set down for hearing on a date prior to 1^st of December 2002."

8. Further orders are sought in relation to each party bearing their own costs. As I understand it, there is now a date fixed for a public examination of the applicant, namely 29 October 2002, although it would appear that the appropriate notices have not yet been served.

9. By way of background I should indicate that the applicant and her husband were married in 1985. There are three children of that marriage; a boy aged eight, and two girls are aged six years and the other aged nine months. The applicant is French born and possesses both an Australian and French passport.

10. In addition to the affidavit material, I received by consent certain other exhibits. In particular for and on behalf of the applicant, I received an affidavit of Wayne Richard Trotter sworn 26 August 2002 which became exhibit A1. I further received a letter purporting to be signed by the applicant and dated 7 October 2002 which became exhibit A2 and which reads in part:

"This is to confirm that David Jackson-Grose has my authority to represent me as my Unpaid Agent during these proceedings."

11. The letter is dated 7 October 2002 but refers to the following: "Application by Catherine Helene Jackson-Grose for permission to travel to be heard 7 October 2002."

12. The court further received by way of exhibits tendered for and on behalf of the respondent exhibit R1 which is a statement of affairs of the applicant filed 25 September 2002. Exhibit R2 was a copy of a letter dated 17 September 2002 addressed to Mrs Walkcom of the respondent and it appears, although the copy I have is faint, to be a response to certain questions asked by the Official Receiver of the applicant, and I assume has been signed by the applicant's husband. That letter has attached to it a copy of the statement of affairs.

13. The court also received a copy letter dated 8 October 2002 from Mr Steven Campbell addressed again to Ms Walkcom and that letter indicates that Mr Campbell acts for and on behalf of FWO Nominees Pty Ltd said to be a creditor of the applicant, and in that letter, the author states that his client "objects to Mrs Jackson-Grose having her passport returned to her".

14. Exhibit R4 is a copy letter dated 8 October 2002 from Southern Cross Lawyers addressed to Ms Walkcom, and in that letter the authors confirm that they act for Ms Diana Minter, said to be a creditor of the applicant, and the authors in the letter further say that they understand that the bankrupt has made application to the Federal Magistrates Court to travel overseas, and that the Official Trustee has previously indicated his opposition to such an application.

15. The letter goes on to state the following:

"We confirm that our client opposes the application. Mrs Jackson-Grose is indebted to our client in an amount exceeding $400,000 pursuant to a judgment she obtained in the District Court of NSW on 7 May 2001. That judgment (based on a loan made in January 1998) was obtained against the bankrupt and her husband David Jackson-Grose and bankruptcy proceedings were initiated by our client against both of them last year. Our client did not proceed with a creditors' petition as she was aware that other creditors would be doing so.

The basis of our client's objection to the application by the bankrupt is that our client has real fears that the bankrupt will not return to Australia. She travelled to France in 2000 and stayed there for a lengthy period. We understand that she is a French citizen (or at least has resident status in France) and has members of her family there. Our client also believes that she has assets in France which may not have been disclosed to the Official Trustee.

We understand that the bankrupt has applied to adjourn the public examination proceedings scheduled for the end of this month on health grounds. Our client is extremely cynical about any claim of ill health by the bankrupt and/or her husband. During the course of the District Court proceedings, and later the Federal Court proceedings after bankruptcy proceedings were commenced, numerous applications were made for adjournments based on medical grounds and/or pregnancy complications. On no occasion in the time that this firm has been acting against Mr and Mrs Jackson-Grose did Mrs Jackson-Grose appear in court. On all occasions her husband appeared for her. We and our client have grave doubts that Mrs Jackson-Grose was even aware that a judgment had been obtained against her, notwithstanding the fact that all proper court processes are adhered to by our client.

We have not been provided with a copy of the bankrupt statement of affairs and so do not know what assets she claims to have or have had. We do however understand that her disclosed list of creditors exceeds $7 million. We also understand that her husband David Jackson-Grose has been summoned to appear in the County Court in Melbourne later this month to answer a number of charges lodged by ASIC involving his company, Barterbank Australia Pty Ltd. We understand that the assets of this company were sold last year for a substantial sum of money, and shortly afterwards the company went into liquidation. We do not know where the proceeds of sale went.

Would you please note our client's objection to the application lodged by the bankrupt and take all steps necessary to oppose the application."

16. Exhibit R5 is a copy letter dated 8 October 2002 and it's from Mr David Jackson-Grose and appears to be addressed to the respondent. That letter states that:

"I understand that earlier today you were personally served with a copy of the Application and supporting affidavit (previously faxed to you last Friday), an Affidavit of Mr Jiminez and the Orders of the Court from yesterday's hearing.

In view of the information provided and the issues raised therein, please reconsider the request for permission to travel by Catherine Jackson-Grose. It would be greatly appreciated if you either:

(1) granted her request to travel for a period of up to six weeks, departing Melbourne on the earliest available date, using her current tickets (in which case the court application would be withdrawn); or

(2) notify the Court that you do not object to her Application.

Your continued refusal is causing great distress as each day passes."

17. The letter goes on to give a contact point.

18. Each and every one of those exhibits was received, and I received them in the absence of supporting affidavit material simply on the basis that there is a claimed urgency in these proceedings and that it was a process deemed appropriate by both parties.

19. In the application the representative for the respondent has indicated that the respondent neither opposes nor consents to the orders sought. It should also be added that at the commencement of the application, the applicant's husband indicated that he was prepared, as a condition of orders being made, to give an undertaking to this court to deliver up all current passports that he holds and indeed the current passport of the son, that is the eight-year-old child of the marriage.

20. The reason that that offer of an undertaking was made was clearly - and it might be thought appropriately at least provides some assurance and security to both the respondent and creditors of the applicant in terms of indicating that the husband and the eight-year-old male child of the relationship would not seek to join the mother overseas and on that basis there was at least some degree of security provided in the sense that it may be said that it is less likely that the mother would fail to return from France by the agreed date.

21. The undertaking had been noted by the respondent, and upon receiving instructions, Mr Frost who appeared for the respondent indicated that if orders were to be made, then that undertaking was considered an appropriate undertaking to be received by the court. It did not however alter the respondent's position in relation to this application, that is that it neither opposed nor consented to the application.

22. The submissions made for and on behalf of the applicant by her husband in writing indicate a number of issues to which I shall briefly make reference. I was referred to two cases, namely the decisions of the Federal Court of Australia in the matter of Re Tyndall; Ex parte Official Receiver [1977] FCA 15; (1977) 17 ALR 182 and I was also referred to the decision of the Federal Court in the matter of Re Hicks; Ex parte Lamb. The full reference to that is Re Hicks; Ex parte Lamb (Heerey J 4 March 1994 VB 1473 of 1993).

23. Particular reference was made to both those decisions and in the matter of Tyndall, I note that in that case, where there had been a decision made by an Official Receiver in relation to a bankrupt seeking consent to leave Australia as required by section 272B of the Bankruptcy Act, permission had been refused. In that case, the court had held that s.178 of the Bankruptcy Act 1966 differs in a number of respects from provisions of s.148 of the Bankruptcy Act 1924 and the comparable provisions of the English bankruptcy legislation, and it's said - and I accept - that the English cases and early Australian cases concerning s.148 of the earlier Bankruptcy Act do not have automatic application to s.178 of the Bankruptcy Act.

24. It was held by the court in Tyndall - and I accept - that it cannot be said that the court should only interfere with the decision of a trustee if it appeared that the trustee had acted absurdly or unreasonably or in bad faith. The court, in my view quite properly, held that where the matter is before the court, the court is by the express words of s.178 empowered, even obliged, to make such order in the matter as it thinks just and equitable.

25. It is appropriate to make specific reference to section 178 which provides:

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

26. In the Tyndall decision, the court states:

"An application by a bankrupt for permission to travel overseas requires careful consideration of all relevant circumstances for the reason that is ordinarily related to the freedom of a subject who is neither a criminal nor under criminal restraint to travel to pursue his legitimate commercial or personal desires."

27. In Re Hicks Heerey J said,

"I suggested to counsel for the trustee in argument that the following issues were, while not necessarily conclusive, nevertheless at the forefront of the matters to be considered in exercising my discretion:

(i) Is the proposed visit genuine?

(ii) Is the bankrupt likely to return to Australia as promised?

(iii) Will the visit hamper the administration of the estate?"

28. It is clear to me that those two cases are cases which are relevant and assist the court in its determination of the issues. I should add for the sake of completeness that I was also referred by the respondent to a decision which I delivered in a matter of Casella v Prentice [2002] FMCA 48. In that decision I referred to the decision of Re Wheeler; ex parte Wheeler v House [1994] FCA 1348; (1994) 54 FCR 166 at 170, and I was referred to other authorities.

29. In paragraph 18 of my decision, I referred to the principles arising from the Respondent's outline as follows:

A court should interfere with a trustee's exercise of discretion only if it be shown by the applicant that the impugned conduct of the trustee was incorrect or that other conduct was or ... would be preferable and that justice and equity require the court's intervention (Healey v Prentice No 2 (2000) FCA 15, 98 and compare the observations Re Wheeler; ex parte Wheeler [1994] FCA 1348; (1994) 54 FCR 166)

30. I went on to say at paragraph 19:

I accept that the court should only interfere with the trustee's exercise of discretion if it is shown, as indicated by the applicant, that the impugned conduct of the trustee was incorrect or that other conduct was or would be preferable and that justice and equity require the court's intervention.

31. In the present case, as I have indicated, submissions were made for and on behalf of the applicant. The issue is of very narrow compass. The applicant seeks to travel overseas and does so for the reason of introducing her youngest child in particular to her family who now reside in France. She had been endeavouring to complete that trip since earlier this year.

32. The respondent has refused to grant consent to that trip and it should be indicated that there is no strong evidence advanced for and on behalf of the respondent to suggest on the material currently before the court that the applicant will not necessarily return to Australia. However, I think it would be unfair to conclude from the urgent way in which this matter has been treated that the respondent is able to do any more than what has been done in terms of bringing matters to the attention of the court which as I have indicated were received and I consider to be relevant.

33. In the submissions made on behalf of the applicant in writing, the applicant's husband states that the applicant had never been bankrupt before and had made no previous arrangement with creditors. It is submitted the origin of the debt is one which has arisen primarily from directors' guarantees, and that there is no suggestion of deception on the applicant's part. It goes on to say that the applicant's bankruptcy resulted from a creditor's petition, but stem from a default judgment. Attempts to have the default judgment set aside failed due to the non-appearance of the applicant and her husband who represented her. It is asserted in the submissions that this was due to their poor health.

34. It is submitted the applicant has been totally cooperative with the Insolvency and Trustee Service Australia (ITSA) and the Official Trustee at all times. According to the submissions, the applicant provided written authority to ITSA to discuss her financial affairs with the husband so that her illness would not cause any delays, that the applicant completed the statement of affairs within 10 days of receipt and answered all questions asked of ITSA within two working days of receipt.

35. It is then asserted in the submissions that the applicant has suffered from serious post-natal depression since "January 2002". The submissions go on to say in relation to the applicant that her health has deteriorated a great deal more since ITSA's first refusal on 26 September for permission to travel on 3 October. It is claimed she is not supposed to expose herself to any undue pressure, she is unfit to participate in any legal proceedings or activities such as the investigation into her affairs for at least six weeks.

36. The submissions further go on to say that the proposed trip is genuine and refers to the fact alleged by the applicant and her husband that the applicant's grandmother was seriously ill at the time the trip had been booked on 4 June 2002, that the applicant's grandmother has since passed away, and the applicant has yet to show her new baby to her parents in France. The proposed trip is important to the applicant and her family in their time of grief.

37. The submissions further state that there's no likelihood of the applicant not returning to Australia and indicates that the flights originally booked are return flights, are non-refundable and that the applicant proposes to travel with her nine-month-old baby and six-year-old daughter whilst her eight-year-old son and husband remain in Melbourne. The applicant and her husband are happily married and their family is a close Christian family.

38. It is submitted that the proposed trip is supported by the majority of the applicant's creditors said to represent over 90 per cent of her debt, and letters of support have been provided to which I will refer shortly. It is further asserted that the applicant's departure would in no way hamper the Official Trustee's investigation into her affairs. It is submitted that the applicant's medical condition prevents her from participating in the Official Trustee's investigation or any public examination for at least six weeks, and then says that such public examination should be postponed to a date following that period or, if permitted to travel, a date following her return to Melbourne.

39. The applicant's husband, it is said, has personal knowledge of all the applicant's financial affairs and has already demonstrated his ability to assist with the Official Receiver's investigation into the applicant's affairs, and he will be available, it is said, to assist the Official Receiver throughout the applicant's proposed absence.

40. The applicant, it is said, is an unemployed mother of three, her income is minimal, she has no assets apart from personal assets, most of which are jointly owned, amounting to a maximum of around $3000. There was no likelihood or suggestion that she would be required to make contributions to the Official Trustee.

41. The submissions then further refer to the proposed trip and that it had been postponed for departure on 3 October. I should indicate that it goes on to say that the applicant currently holds seats for a flight departing 16 October returning 26 November 2002.

42. On balance it is said that to deny permission to travel to the applicant would be harsh and unfair and that a just and equitable result would be to grant her application. The affidavit which has been relied upon by the applicant sworn by her husband on 4 October 2002 sets out in some further detail primarily the matters which have been raised in the submissions.

43. The Affidavit further exhibits certain medical reports. The first of those medical reports is a report from Dr Mark Sweet dated 3 October 2002. In that copy of the report which is exhibit "AA" to the affidavit of the applicant's husband, Dr Sweet says:

"This is to certify that Ms Catherine Jackson-Grose aged 40 years is suffering from depression, and as a result of this, among other effects, her concentration has been poor. She has commenced treatment, however, I feel that she should not have undue pressures placed upon her, nor is she currently fit to be involved in matters of a legal nature. It is likely that her symptoms will persist for more than six weeks."

44. I should indicate that there is an earlier medical report from the same doctor which is exhibit CC to the affidavit and dated 30 September 2002. In that report the doctor states:

"This is to certify that Mrs Catherine Jackson-Grose aged 40 years is a patient of this clinic and has been suffering from post-natal depression. Mrs Jackson-Grose has been under great stress with financial problems and raising a new baby. She states that she has been planning a trip to visit her family in France since June this year.

Mrs Jackson-Grose's emotional state has been very fragile, but she has been hoping that reunion with her family in France will, as it has in the past, give her both emotional and physical strength.

I'm quite certain that her depression will be quite severely affected by denying her permission to fly to her family. It remains to be seen if Mrs Jackson-Grose's mental state will in fact improve with the travel, but I am optimistic that it will."

45. It was indicated to me during the course of submissions that Dr Sweet is the family general practitioner. I was also referred to another medical report, this time prepared in handwriting, by Dr E. Youssef and dated 29 July 2002. In that medical report, the doctor writes:

"This lady has been seeing me since February 2002 soon after the birth of her third child. She developed post-natal depression after her second child's birth in 1996 but had recovered well. Since February she has been obviously stressed and depressed once again. She has had some counselling which was helpful to a degree and is now starting anti-depressant medications.

Her (condition) worsens with any extra stress, and at the moment she is having trouble coping with the legal proceedings she is facing.

I feel the tablets will help, and review her in about one month to see how she will cope then."

46. As I indicate, that report is dated 29 July 2002. All three reports, however, are relied upon for and on behalf of the applicant in support of the submissions concerning the medical health which as I have indicated is the main basis upon which it is said that the applicant is unable to attend court or swear an affidavit and indeed is the main basis upon which it is said, at least in part, that the trip to France would be of benefit.

47. I should pause there to indicate this, that on my assessment of those medical reports, it's unfortunate that none of the reports indicate whether consideration has been given to a referral by the general practitioners - that is Drs Sweet and Youssef - of the applicant for psychiatric treatment or assessment. While there is some reference to counselling in Dr Youssef's report, that report dated 29 July 2002 indicates a review one month later, and yet there is no further updated report from that doctor which may indicate a number of things. For example there is no specific reference to the precise type and dosage of medication, no reference to whether, as I have indicated, there is any referral for psychiatric treatment. There is also in Dr Sweet's report no reference to the applicant's current state in terms of merely attending at court or indeed swearing an affidavit in support of her application which may simply adopt other material which could be prepared by her husband.

48. Whilst it is true that Dr Sweet's report refers to the concentration of the applicant being poor and that she should not be involved in matters in terms of legal proceedings for a period of up to six weeks, it again is not clear from that report as to the current medical treatment - that is the current dosage and type of antidepressant medication - which is now presumably being prescribed.

49. The other matter which I should mention in those reports is that they are in each case somewhat vague, and to some extent do not assist the court in determining the real nature and extent of the applicant's medical condition. For example there is no reference in the report to the capacity of the applicant to travel apparently unaccompanied on a long journey to France with two children, one aged nine months and the other aged six years.

50. It seems to me on the face of it that at least some assessment should be made of the capacity of a person suffering from post-natal depression to embark upon that journey in the circumstances where, in the absence of any evidence to the contrary, I'm entitled to conclude that the applicant will be unaccompanied and will have the care of two very young children during the course of the very young journey.

51. It is also not clear from any of the reports as to why the applicant is unable to physically be present in court, albeit not necessarily participating. It is further unclear as to why a six-week period is imposed in the report of Dr Sweet when back in July of this year, Dr Youssef said that he would review the applicant after one month, and there is no further updated report of the progress of the treatment provided by that doctor since 19 July 2002.

52. To that extent therefore it is clear to me that the medical reports, as they presently stand, are less than helpful in assisting the court to reach a decision in this urgent application.

53. I have already indicated that the principles to be applied in an application of this kind are referred to in the decisions, which the applicant and the respondent have referred. This is not an easy task for a court to make a decision in circumstances where there is both an alleged need for an urgent decision to be made and material placed before the court which, as I have indicated at least in terms of the medical material, is less than satisfactory.

54. Whilst the court has to consider the discretion it will exercise carefully and in accordance with the authorities to which I have referred, it is equally clear from all the authorities that the court should have regard to the trustee's exercise of discretion and the responsibility the trustee has to all creditors, not simply those creditors who may be sympathetic and/or friendly towards the debtor. It is significant that the trustee has now arranged for a public examination in circumstances where it is clear in my view that there are matters which need to be addressed in relation to the financial affairs of the debtor.

55. It is not appropriate for the court to act upon or be persuaded by mere assertions from the bar table by the applicant's husband that he has full knowledge of the applicant's financial affairs, nor indeed is it appropriate for the court or the trustee for that matter to be satisfied without further inquiry that there's no likelihood or suggestion that the applicant would be required to make contributions to the Official Trustee.

56. The facts are far too complex for anyone at this stage to draw that conclusion, certainly not before proper public examination has taken place, and that that examination should take place in an unfettered and appropriate manner in the interests of all creditors and in a way which would enable the respondent to properly discharge the duty which the respondent undoubtedly has under the provisions of the Bankruptcy Act.

57. Doing the best I can on the material before me which as I have indicated is extremely limited due to the urgency of the matter, it seems to me it is possible to make the following findings. I am prepared to find that the applicant has a genuine desire and need to travel overseas. That is a social desire which may also have some medical benefits.

58. I do not think I can put the medical benefit any higher than that because the medical reports themselves indicate that it is hoped that there might be some improvement, and whilst optimism is expressed by Dr Sweet in the report to which I have referred dated 30 September 2002, it would be difficult to put the proposed trip in any other light than that it is primarily for social reasons which I accept are genuine, that is to visit relatives who are, as a result of the death of the applicant's grandmother, still in a state of grieving and who would all no doubt benefit from the visit of the applicant and her third-born child.

59. I accept further that the fact of an offer of the undertaking by the husband in this matter is an additional piece of information not available to the respondent until the day of the hearing, but which must have some effect and carry some weight in terms of assisting the court in deciding whether in truth and in fact there is any real risk that the applicant would not return to Australia. It seems clear to me that the undertaking, if fulfilled, of surrendering all passports held by the applicant's husband and eight-year-old child would at least provide for the time being some degree of security in the sense that it may be less likely in those circumstances that the applicant and the two female children would not return to Australia as promised.

60. I do not think that that offer, however, can be put any higher than that in the sense that it is conceivable, having regard to the enormous stresses and strains and the matters raised in all the material including assertions yet untested by other creditors that a separation on a long-term basis may indeed be in the interests of both the applicant and her husband may for whatever reason, be contemplated. However, for the present purposes I am prepared to find that there is not a strong likelihood that the applicant would not return to Australia; that is to put it another way, I am satisfied that there is a reasonable prospect in all the circumstances that the applicant would return to Australia.

61. That does not, however, bring to an end my obligations in terms of findings in this matter. It seems to me that I need to consider the issue of the administration of the bankrupt's estate. I need to consider that this is an estate where there are, at least on the papers before me, significant amounts owing to creditors and significant complexity in relation to the affairs of both the applicant and her husband. Certainly for the applicant, who is the relevant party before me in this case, it is clear that there are a number of matters which need to be explored and properly investigated in the interest of all creditors, and this can be done most effectively at a public examination which is already scheduled.

62. Whilst therefore I find, as I have, that there is a genuine social desire to travel overseas, I am unable to find on the material before me that that desire to travel is medically essential. I am also unable to find that at present the delay to the end of the month would not coincide with an improvement in the health of the applicant to such a degree where she could at least attend and be examined at a public examination with all due allowances made for her alleged condition.

63. What troubles me about the medical evidence is that although treatment is said to have been offered since July, there is inadequate material which would indicate the extent to which that medical treatment was administered, the precise nature of the treatment and the extent to which it has succeeded since July. It is difficult to reconcile the earlier suggestion of a review in one month or so by Dr Youssef with the later reports of the current treating general practitioner Dr Sweet.

64. It may well be that further more detailed medical evidence can be obtained and then provided to the respondent, and if that occurs, the respondent will naturally discharge the obligations to reconsider the matter, but in my view on the medical evidence before me at the moment, there is insufficient to medically justify the overseas travel.

65. When it comes to then balancing the social need at the moment to travel compared with the delay which might be incurred upon a public examination and further consideration of the matter, it is my view that in the present circumstances it is difficult applying the authorities to which I have referred for this court to in fact impugn the conduct of the respondent in a way which would entitle this court to intervene, no matter how sympathetic it might be the plight of the applicant and the claimed medical condition.

66. For the court to intervene in a matter of this kind is a serious step. For the court not to intervene is equally serious in terms of the applicant and the consequences to the applicant as a citizen in terms of her failure to be able to travel freely as a citizen of this country.

67. Doing the best I can and balancing all the interests including the duty of the respondent, the obligations the respondent has to the creditors and the time frame concerned, together with what I have described as the inadequacy of the current material before the court, it is my view that applying the authorities to which I have referred, it is appropriate that I do not interfere with the decision and accordingly the application should be dismissed.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 October 2002