Dudley v White & Anor [2009] FMCA 1329 (13 July 2009)

Last Updated: 4 October 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUDLEY v WHITE & ANOR

[2009] FMCA 1329

BANKRUPTCY – Application seeking trustee disclose information – information sought already provided to applicant – applicant actually wanted the original source material giving rise to the information – purpose for disclosure of information unrelated to administration of bankruptcy – information sought to be used in matrimonial proceedings or as leverage in his matrimonial conflict.

Bankruptcy Act 1966, s.170(2)

Applicant:

KEITH IRVINE DUDLEY

Respondents:

CLYDE PETER WHITE & PHILIP NEWMAN

File Number:

MLG 762 of 2009

Judgment of:

O’Dwyer FM

Hearing date:

13 July 2009

Date of Last Submission:

13 July 2009

Delivered at:

Melbourne

Delivered on:

13 July 2009

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor appearing for the Respondent:

Mr Broberg

Solicitors for the Respondent:

Irlicht & Bromberg

ORDERS

(1) The application filed on 19 June 2009 is dismissed.
(2) The applicant pay the respondents’ costs according to statute.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 762 of 2009

KEITH IRVINE DUDLEY

Applicant

And

CLYDE PETER WHITE & PHILIP NEWMAN

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me today on the application of Mr Keith Irvine Dudley, who is a bankrupt, wherein he seeks against the trustees of his estate in bankruptcy orders that would require them, pursuant to section 170(2) of the Bankruptcy Act 1966 (the Act), to disclose to him the “information” he seeks. The application is opposed.
2. The information he seeks relates to “information” provided by Mr Dudley’s estranged wife who resides in England. She has provided the trustees with five items of information which amount to allegations that Mr Dudley, during the term of his bankruptcy, has acted in breach of his obligations under the Act. They are set out in a letter dated 1 May 2009 forwarded to Mr Dudley by the trustees.
3. Mr Dudley gives the following background. The relationship between he and his wife is acrimonious and that he is convinced – and from what he has told me there may be good grounds for his concerns in this regard – that his wife is determined to frustrate in any way she can his capacity to travel to England, where she lives with their two children, and further frustrate his capacity to spend time with his two sons. He recites a history of travelling to England and having difficulties in exercising what he would regard as reasonable time with them and draws the conclusion that his wife, as I said before, is prepared to do anything, including making false reports to the trustees to cause him mischief.
4. Mr Dudley was very frank and open in the presentation of his case and that frankness and openness led me to have no misunderstanding that he proposes to use the “information” he seeks for legal purposes in England on two levels. One would be to assist him in persuading a court exercising family law jurisdiction of the mischief that his wife has attempted to cause and the frustration she is attempting to implement concerning his time with his children. The other is so he can get legal advice as to whether there is any action he can take against her for what he described as slander.
5. There was also another motive and that was that if he got the information he anticipates getting from the trustees, he would not use it straight up, but only use it as a means to enhance his bargaining position with her to prevent her, between now and the expiration of his bankruptcy period (which is 26 July 2009) causing more trouble, on the threat that if she was to do so, he would have the capacity to take action against her for what he described as inappropriate and perhaps illegal activities to date.
6. He relies upon section 170(2) of the Act to justify the furnishing of that information.
7. Before I go much further, it should be clearly understood that the trustees in the letter previously described that was written to Mr Dudley identified the source of the allegations as being the wife.
   They also particularised the allegations they sought to investigate.
   In itself it is a bit strange that they were so frank and open having regard to the fact that they now argue, to some degree, the need to protect sources as a matter of policy. The unusual aspect of this case is that the “information”, including its source, has been fully disclosed. However, the applicant seeks to get, whatever form it might be in, the hard copy, so to speak, of that “information”; which I took to mean he wanted any written correspondence received by the trustees from the wife with her signature on it. He hoped to be able to produce this documentation at some later date, if needs be, in the English court. What facility such a document would have in those circumstances I am not sure.
8. Going to the provision relied upon by the applicant; namely, s.170(2).

Subsection (2) states:

The trustee shall, at the request of the bankrupt, furnish to the bankrupt information reasonably required by the bankrupt concerning his or her property or affairs.

9. Mr Dudley says that the word “affairs” is very wide and all encompassing and would include his matrimonial issues and the broader difficulties he is suffering because of them. The information he seeks (that is, the hardcopy of the allegations made by her and sent to the trustees) he says is caught by the requirement to furnish such.
10. In my view, the subsection read as a whole, and in the context of the Act, clearly relates “affairs” to those matters that can properly and sensibly be his affairs associated with the administration of the bankruptcy and would not spread a net so wide as to be a vehicle to be used for ulterior motives, such as I have already outlined, to better arm Mr Dudley in any proceedings he might partake of in England.
11. The other expression appearing in that subsection is “reasonably required”. Again, that provision must necessarily be read in the context of bankruptcy proceedings - in the context of the applicant’s property and affairs over which a trustee in bankruptcy would ordinarily be involved. The reasonableness required in those circumstances would not extend, in my view, to providing information that has an ulterior purpose beyond the administration of the bankruptcy as clearly the information sought has. There is sufficient information already provided by the trustees about the source and the nature of the allegations and there is strong argument to say that information already provided goes beyond what would be reasonable. I do not believe it is reasonable to go even further beyond that.
12. There is also a broader issue that touches upon the question of reasonableness and that is a question of policy. The submission made on behalf of the trustees is that there are still investigations ongoing and there is always the risk of jeopardising the investigations. In that circumstance I accept that it would not be reasonable to furnish the information.
13. For all those reasons, I am not of the view that the information sought comes within the description of “information” as contemplated by the Act; nor, in any event, would it be reasonable to provide the information that is actually sought by the applicant (that is, the hard copy, if such exists). I intend to dismiss the application.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date: 13 July 2009