Desley Soong and Inspector-General in Bankruptcy
[2014] AATA 372
•13 June 2014
[2014] AATA 372
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1179
Re
Desley Soong
APPLICANT
And
Inspector-General in Bankruptcy
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member Date 13 June 2014 Place Sydney The Tribunal has no jurisdiction to review the application.
.................[sgd].......................................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
BANKRUPTCY – jurisdiction – application for review by Inspector-General lodged more than 60 days after bankrupt was notified of assessment – whether the Respondent made a reviewable decision – whether a refusal of a request to review decision on own initiative was reviewable – no jurisdiction
LEGISLATION
Bankruptcy Act 1966 ss 5, 33, 139ZA, 139ZF
CASES
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120
Re Queensland Timber Board (1975) 24 FLR 205
Ross v Costigan (1982) 59 FLR 184
REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
13 June 2014
The Applicant seeks review of a decision by the Respondent’s delegate of 7 February 2014 to refuse a review under s 139ZA of the Bankruptcy Act 1966 (the Act) of a bankruptcy trustee’s decision to make a contribution assessment.
The Respondent contends that this Tribunal has no jurisdiction to deal with that application.
Section 139ZA provides:
(1) The Inspector‑General may review a decision of a trustee to make an assessment:
(a) on the Inspector‑General’s own initiative; or
(b) if requested to do so by the bankrupt for reasons that appear to the Inspector‑General to be sufficient to justify such a review.
(2) The Inspector‑General must review such a decision if requested to do so by the Ombudsman.
(3) A request by the bankrupt to the Inspector‑General for the review of such a decision must:
(a) be in writing and lodged with the Official Receiver’s office not later than 60 days after the day on which the bankrupt is notified of the trustee’s assessment; and
(b) be accompanied by:
(i) a copy of the notice of assessment; and
(ii) any documents on which the bankrupt relies in support of the request.
…
Section 139ZF provides:
An application may be made to the Administrative Appeals Tribunal for the review of:
(a) a decision of the Inspector-General on the review of a decision by a trustee to make an assessment; or
(b) a decision by the Inspector-General refusing a request to review a decision by a trustee to make an assessment.
The parties agree that the application for the Inspector-General’s review was made more than 60 days after the Applicant had notice of the trustee’s assessment decision. This means that the Applicant was out of time under s 139ZA(3)(a), and the Respondent argues that consequently the Applicant has no right of review by this Tribunal.
Further, the Tribunal has no power to extend the time limit for making the application for Inspector-General’s review because that power is given solely to “the Court” pursuant to s 33(1)(c), and the definition of “the Court” in s 5 of the Act is “a Court having jurisdiction in bankruptcy under this Act”. The Tribunal is not a “court” and does not have jurisdiction in bankruptcy under the Act. The Respondent argues that the Tribunal has no jurisdiction in the matter because the 60 day time limit is a “jurisdictional fact” which, if not proved to exist, means that the Inspector-General had no power under the Act to consider whether she should review the trustee’s decision.
The Applicant concedes that the 60 day limit cannot be extended because s 33(1)(c) permits extensions, unless “this Act does not expressly provide to the contrary”, and s 139ZA(3) stipulates that the request for review must be lodged not later than 60 days. The Applicant concedes those words emphasised amount to an express provision to the contrary. Accordingly, the limit remains as an essential pre-condition to the exercise of power by the Inspector-General, and it is a jurisdictional fact which cannot be proved.
In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [43], the High Court said:
… Generally the expression [jurisdictional fact] is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
In the absence of proof of that jurisdictional fact (request made within 60 days), no power of the Inspector-General to review pursuant to s 139ZA(1)(b) exists. If there is no valid “request” then s 139ZF(b) is not enlivened. Essentially the parties agreed that if the Tribunal had jurisdiction then it must arise under s 139ZA(1)(a), that is, “on the Inspector-General’s own initiative”. The Applicant argued that she requested the Inspector-General to conduct a review on her “own initiative” and that the Inspector-General did so. The Respondent submitted that the Act contained no mechanism for such a request, and thus there was no jurisdiction in the Tribunal to review such a request.
While it is correct that the Act does not sanction or provide for such a request, I see no reason why a request could not be made and the existence of the request recognised, whether the Act contemplated it or not.
However, such a request would not of itself enliven the jurisdiction of the Tribunal. I do not believe that the existence of such request affects, one way or the other, a consideration of whether the combination of s 139ZA(2) and s 139ZF(a) apply to this case. Section 139ZF commences:
An application may be made to the Administrative Appeals Tribunal for the review of:
(a)a decision of the Inspector-General on the review of a decision by a trustee to make an assessment. (my emphasis).
I believe that “decision ... on the review” means a substantive judgment by the Inspector-General as to whether the trustee’s decision was correct or not. I do not believe those words refer to the Inspector-General’s judgment as to whether or not she correctly exercised her initiative. My opinion is that “on the review” means as a result of her review or implementing her review, rather than concerning the correctness or not of making a review.
There is some ambiguity in the phrase “on the review”, and so the context and purpose of the provision should be considered to arrive at the preferable meaning. In Re Queensland Timber Board (1975) 24 FLR 205 at 207 Woodward J, as President of the Trade Practices Tribunal, said of the phrase “an authorization ... granted ... on a review of a determination of the commission”:
If this definition is read in such a way that “on a review” includes “in the course of a review” as well as “following a review”, no problem arises. I believe that it should be so read. I regard the phrase “on a review” in this context as ambiguous. It would be a highly inconvenient result for the tribunal, the commission and the parties if the tribunal had no power to deal with interim authorization except by way of appeal from the commission. I do not believe this was the legislature’s intention.
In the instant case, I believe the context points in a different direction and “on the review” does not mean in the course of deciding whether or not to take the initiative. I note that “the word ‘decision’ means an ultimate or operative determination, not a mere expression of opinion or a statement which can of itself have no effect ...”: Ross v Costigan (1982) 59 FLR 184 at 197 per Ellicott J.
I believe that in the context of s 139ZF, subs (a) refers to the Inspector-General’s substantive decision, and subs (b) refers to a refusal to make a review. It does not make sense that the Tribunal should be able to review the Inspector-General’s judgment about using her own initiative. To do so is to remove the effect of the words “on the Inspector-General’s own initiative” in the section. On 7 February 2014 the Inspector-General’s delegate wrote to the Applicant’s solicitor noting that the trustee adhered to his assessment, following a query, but since the request for review was more than 60 days after the assessment:
The Inspector-General must … decide whether there is sufficient reason to perform a review on her own initiative.
The letter goes on to discuss one important aspect of the circumstances and concludes:
This being the case, the trustee’s assessment does not appear to be in error, at least on this important point and there is insufficient reason to perform a review.
…
However I should point out that even had a review been carried out, the outcome would in all probability [have] been consistent with the view expressed in this decision.
In my opinion, the Inspector-General considered whether to perform a review on her own initiative and concluded that she should not do so. No review was actually performed.
CONCLUSION
Accordingly, I am of the view that there has been no decision of the Inspector-General on the review of a decision by a trustee within the meaning of s 139ZF(a) of the Act.
DECISION
The Administrative Appeals Tribunal has no jurisdiction to review the application.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member .............[sgd]...........................................................
Associate
Dated 13 June 2014
Date of hearing 16 May 2014 Counsel for the Applicant Mr J T Johnson Solicitors for the Applicant Diamond Conway Lawyers Counsel for the Respondent Mr M Heath Solicitors for the Respondent Australian Government Solicitor
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