FEDERAL COURT OF AUSTRALIA
Combe v Inspector General in Bankruptcy [2005] FCA 1101
BANKRUPTCY – Decision by trustee not to withdraw notice of opposition to discharge from bankruptcy – appeal from the Administrative Appeals Tribunal – special ground under s 149D Bankruptcy Act 1996 (Cth) – no reasonable excuse – ‘questions of law’ – applies principles in Birdseye v Australian Securities and Investments Commission (2003) FCAFC 232; 76 ALD 321– whether the entitlement to legal representation under s 81(7) Bankruptcy Act 1996 (Cth) applies to Pt VII, Div 2B, Div 2C Bankruptcy Act 1996 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 10
Bankruptcy Act 1966 (Cth) ss 77, 81(7), 149, 149A, 149B, 149D, 149K, 149J, 149N, 153A, 153B, 178
Federal Court Rules Order 53Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Australian Telecommunications Corporations v Lambroglou (1990) 12 AAR 515 applied
Birdseye v Australian Securities and Investments Commission (2003) FCAFC 232; 76 ALD 321 applied
Combe v Pascoe (2004) FCA 725 referred to
Duncan v Fayle (2004) 138 FCR 510 applied
Peczalski v Comcare (1999) FCA 366; 85 ALD 697 referred to
Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 referred to
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 referred to
TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1998) 82 ALR 175 appliedFAYE DIANE COMBE v INSPECTOR GENERAL IN BANKRUPTCY
NSD65 OF 2005
BENNETT J
11 AUGUST 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD65 OF 2005
BETWEEN:
FAYE DIANE COMBE
APPLICANTAND:
INSPECTOR GENERAL IN BANKRUPTCY
RESPONDENTJUDGE:
BENNETT J
DATE OF ORDER:
11 AUGUST 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD65 OF 2005
BETWEEN:
FAYE DIANE COMBE
APPLICANTAND:
INSPECTOR GENERAL IN BANKRUPTCY
RESPONDENT
JUDGE:
BENNETT J
DATE:
11 AUGUST 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 13 December 2004 affirming the decision of the respondent (‘the Inspector-General’) to confirm a notice of objection to the discharge from bankruptcy of the applicant (‘Ms Combe’). The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), which provides for an appeal on a question of law from a decision of the Tribunal.
Factual Background
Ms Combe was made bankrupt on a sequestration order issued under the Bankruptcy Act 1966 (Cth) (‘the Act’) on 15 October 2002. Mr Scott Pascoe, a registered trustee in bankruptcy (‘the trustee’), was appointed the trustee of the bankrupt estate.
In the normal course, Ms Combe would be discharged from bankruptcy on 14 November 2005. However, in October 2003, the trustee filed three…
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- Case
- [2005] FCA 1101
- Decision Date
CaseChat Overview and Summary
The appeal raised questions of whether there was a denial of procedural fairness and whether the Tribunal took into consideration certain statutory provisions. The court found that the appellant's contention that there was a denial of procedural fairness was not made out, as the Tribunal had properly considered the issue of whether there was evidence to support a special ground within the meaning of section 149N(1A) and whether the appellant had a reasonable excuse for failure to comply. The court also found that the appellant had raised numerous factual issues and contentions that had not previously been raised and which had no proved factual basis. The appeal was dismissed with costs.
The court concluded that the appeal was not properly founded in law as the Tribunal had correctly applied the relevant statutory provisions. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by:
Mr Murray, who appears for the Inspector-General, contends that Question 6 is not a question of law. Certainly, it contains a number of unproved factual assumptions. Ms Combe possibly intended to call into question whether the Tribunal failed to comply with an obligation to give proper consideration to the evidence and other material before it. So understood, the question is not stated in a way which complies with the requirements of O 53 r 3(2) of the Federal Court Rules. Further, the factual basis in the question, extending to the alleged failure on the part of the Tribunal, was not raised before the Tribunal or, indeed, before me. To the extent that it seeks to raise some issue of procedural unfairness, none is established.Question 7: Whether the Tribunal took into consideration s 30(5)(b) of the Bankruptcy Act 1966 ‘by failing to inform the Inspector-General in Bankruptcy of Conti J’s directions in transcript before the Federal Court of Australia on 3 June 2004, cease to object to the discharge of bankruptcy before the Administrative Appeals Tribunal’. Question 7 does not raise a question of law. The decision of Conti J in Combe v Pascoe (2004) FCA 725 is irrelevant for the purposes of this application even though Ms Combe was a party to those proceedings. In her submissions at [17] Ms Combe asserts that his Honour directed that the ‘trustee discontinue his objection to discharge the bankruptcy’ and that, by not acting on his Honour’s directions, the trustee breached the Act and also the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’). On 22 December 2003, Ms Combe had filed a notice of appeal against the judgment of Raphael FM given on 2 December 2003, whereby his Honour ordered Ms Combe, upon the application of the trustee, to vacate a property comprising an asset of her bankrupt estate. On 12 February 2004 Conti J refused an application for a stay of the order to vacate the property. On 3 June 2004 his Honour dismissed the remaining grounds of Ms Combe’s appeal, concerning an ongoing dispute with her creditor, Mr Ziade. Conti J did not direct the trustee to discontinue his objection to discharge the bankruptcy. The trustee’s objection to discharge the bankruptcy was not an issue before his Honour. At [11] Conti J says:‘…the interests of justice clearly require the completion of the winding up of the bankrupt estate of Ms Combe takes place without further delay, so that she can pursue her complaints and claims against Mr Ziade without the intervention of her trustee in bankruptcy.’ His Honour’s comments may indicate a preference for expediency but they do not require the trustee to abstain in future from objecting to the discharge of bankruptcy, nor did his Honour have the power to make such an order. Question 8: Whether in terms of the Administrative Decisions (Judicial Review) Act 1977 section 6(1)(e) the making of the decision of the bankrupt’s trustee to extend the period of Bankruptcy as affirmed by the Tribunal was an improper exercise of power conferred by the enactment in pursuance of which the decision purported to have been made namely s 149J and s 178 of the Bankruptcy Act 1966.