Fera v Morris [2003] SBCA 17; CA-CAC 009 of 2003 (10 September 2003)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case Number 9 of 2003

BETWEEN:

REX FERA
Appellant

AND:

WAYNE FREDERICK MORRIS and BENJAMIN St GILES PRINCE
Respondents

Nature of Jurisdiction: Appeal from judgment of High Court of Solomon Islands (Kabui J)

File number: Civil Appeal No. 9 of 2003 (On Appeal from High Court Civil case No. 177 of 2000)

Date of hearing: 3rd September 2003

Court: Lord Slynn of Hadley P, McPherson JA, and Ward JA

Advocates: Mr Barnabas Upwe for Appellant

Mr John Sullivan for Respondents

Keywords: Bankruptcy, whether Trustees entitled to use evidence from Public Examination

Reserved Judgment read by Registrar Chetwynd 10th September 2003

JUDGMENT

The appellant has been adjudged bankrupt and the respondents are the trustees of his estate. By summons filed in April 2003, the appellant sought leave to commence proceedings against the trustees on the basis that they had paid money to the creditors acting on the evidence given by the appellant at his public examination although that evidence had not been taken in accordance with the terms of section 19(8) of the Bankruptcy Act:

"19 (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 ... and they or a transcript thereof 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 upon payment of the prescribed fee..."

It is common ground that the answers given by the appellant at the public examination were not read over or signed by him and that the public hearing has not yet been completed.

Kabui J refused the application and the bankrupt appeals against that refusal on the grounds that:

"1. The learned judge erred in construing section 19(8) of the Bankruptcy Act in a purposive approach when there is no ambiguity;

2. The learned judge erred in his finding that the Trustees can act upon the evidence given on oath by the debtor when the transcript was neither read over to him or read by him or signed by him so that the evidence is authenticated by his own signature."

The appellant starts with the well known principle that where there is no ambiguity, the words in a statute shall be given their ordinary meaning, citing Maile v Solomon Islands National Provident Fund Board SILR 244 [sic] and the English authorities referred to in that judgment. He asks the Court to read the section as prohibiting any use of the answers given in the examination until they have been signed.

On that reading, he suggests the trustees cannot act on such information. In this case, they did use those answers to ascertain the position of the estate and take steps to pay the creditors.

We can deal with the appeal shortly. The purpose of the section is to provide a means by which the answers given in a public examination can be produced in evidence in subsequent proceedings without the need for parole evidence. The section is not written as a restriction of the rights of others to use the information revealed by the answers.

Far from using the plain meaning of the words of the section, the appellant's submission requires the Court to import the word "only" into the section so it would read "... and may thereafter, save as in this Act provided, only be used ..."

The authority cited by the appellant in support of his appeal, R v Erdheim [1896] 12 QB 260 does not assist his contention, That case allowed the answers to be used in subsequent court proceedings even without the record if the answers were proved by parole evidence.

One of the principle purposes of the public examination is to assist the trustee to obtain the information he needs to be able to administer the bankrupt's estate. The evidence in the appellant's public examination was given on oath and the trustees were correct to use that information in order to commence a proper distribution to the creditors.

The appeal is dismissed with costs to the respondents.

Lord Slynn of Hadley
BH McPherson
Gordon Ward