Burke v Inspector-General in Bankruptcy

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE v INSPECTOR-GENERAL IN BANKRUPTCY & ORS [2013] FMCA 2

BANKRUPTCY – Possible de-registration of a registered trustee – formation of a committee to consider de-registration – whether the committee had been convened for that purpose considered – when a committee can be convened for that purpose considered.

WORDS AND PHRASES – “Convened”.

Bankruptcy Act 1966, s.155H
Bankruptcy Regulations 1966 (Cth)
Evidence Act 1995 (Cth), ss.166, 167

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
NSX v Pritchard & Ors [2009] FCA 584
Zaccardi v Caunt [2008] NSWCA 202; (2008) 15 BPR 28

Applicant: JOHN CHRISTOPHER BURKE

First Respondent: INSPECTOR-GENERAL IN BANKRUPTCY

Second Respondent: ROBERT TOM

Third Respondent: ROBYN ERSKINE

Fourth Respondent: ANDREW SELLARS

File Number: SYG 1136 of 2012

Judgment of: Driver FM

Hearing dates: 17 October and 14 December 2012

Date of last submission: 15 January 2013

Delivered at: Sydney

Delivered on: 8 February 2013

REPRESENTATION

Counsel for the Applicant: Mr J Johnson

Solicitors for the Applicant: Sally Nash & Co

Counsel for the Respondents: Mr Heath

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 25 May 2012 is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1136 of 2012

JOHN CHRISTOPHER BURKE

Applicant

And

INSPECTOR-GENERAL IN BANKRUPTCY

First Respondent

ROBERT TOM

Second Respondent

ROBYN ERSKINE

Third Respondent

ANDREW SELLARS

Fourth Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant (Mr Burke) is a registered trustee under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). He is concerned about action being taken against him by the Inspector-General in Bankruptcy (the Inspector-General) which may result in his deregistration.

2. The following facts have been agreed between the parties.

   a)The applicant is a registered trustee.

   b)By letter dated 26 July 2011 and pursuant to s.155H(1) of the Bankruptcy Act the Inspector-General (by her delegate Mr Findlay) (the delegate) asked Mr Burke for a written explanation why Mr Burke should continue to be registered (the show cause letter).

   c)The delegate was not satisfied by the explanation provided by Mr Burke in response to the show cause letter.

   d)Because the delegate was not satisfied by the explanation provided by Mr Burke in response to the show cause letter, pursuant to s.155H(2) of the Bankruptcy Act and reported that fact to the Inspector-General, the Inspector-General was required to convene a committee to consider whether Mr Burke should continue to be registered.

   e)The committee consisted of:

   i)Mr Robert Tom, a delegate of the Inspector-General;

   ii)Mr Andrew Sellars, an Australian Public Service employee; and

   iii)Ms Robyn Erskine, a registered trustee chosen by the Insolvency Practitioners’ Association of Australia (ACN 002 472 362.

   f)Pursuant to regulation 8.30(2) of the Bankruptcy Regulations 1966 (Cth) (the Regulations), because the Inspector-General was required to convene a committee to consider whether Mr Burke should continue to be registered for the purposes of s.155H(2), the committee after consultation between themselves[1] was…