Case: Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391
Outcome: cited
The following exchange took place on the first of the three days on which Mr Lamb was cross-examined: "I am asking you about your position as a registered liquidator and a registered trustee in bankruptcy which you told his Honour this morning you have been since 1983?---That is what I believe. Do you remember Sweeney J of this Court?---Yes. Do you remember the Registrar of Bankruptcy bringing an application before his Honour in May 1984?---Yes. Do you remember being struck off as a registered trustee in bankruptcy on 15 May 1984 because you lacked independence, as his Honour found?---And I appealed and won. And you appealed the first report, your Honour, is volume one of the Federal Court Reports at page 390. And you appealed and the matter was sent back for a retrial. Is that right? The Full Court report is in volume four of the Federal Court Reports at page 269, your Honour. On appeal the matter was sent back for a retrial?---I don't think that is right, is it. The on appeal the earlier decision was turned over. The gist of it was you had been a member of a firm, Scott and Lamb - - -?---Yes. - - - and you had then gone from there to being an employee of Deusbury's?---Yes. And the Registrar of Bankruptcy had brought an application to have your registration cancelled and that is what Sweeney J heard in 1984?---Yes. Because you lacked independence, the independence required of a trustee in bankruptcy because you were an employee, is that right?---Only because I was an employee. Yes and on appeal do you recall Northrop J saying this at page 277, volume four of the Federal Court Reports, your Honour: 'In this case it would appear that the employee and the employer have failed to grasp the real issue of the employee's independence in the performance of acting as a trustee in any estate. They have approached the matter only in the most general manner.' Do you remember his Honour saying that on your appeal?---No. You don't remember that. Right, well, you do remember in general terms that the Registrar of Bankruptcy put you up for striking off and a Judge of this Court made such an order in May 1984, now that I jog your memory, don't you?---I remember that, yes." That line of questioning, which was clearly intended to insinuate that Mr Lamb was "struck off" because of some deficiency in his character and/or competence, was both shabby and sloppy. In Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391 at 399, Sweeney J said: "The status of [Mr Lamb] as an employee is ... fatal to his continued registration as a person qualified to act as a trustee." However, at 400, his Honour said: "Nothing in these reasons is intended in any way to reflect upon the character or competence of the respondent or of his employers." On appeal, in Lamb v Registrar of Bankruptcy (1984) 4 FCR 269 at 277, Smithers ACJ said what Mr Gunst attributed to Northrop J and immediately went on to say that: "However, on the evidence it does not appear that [Mr Lamb] will not have the necessary independence." The Full Court upheld Mr Lamb's appeal and did not order a re-trial only Jenkinson J thought one necessary.