James and Inspector-General in Bankruptcy - [2019] AATA 5171

James and Inspector-General in Bankruptcy [2019] AATA 5171 (3 December 2019)
Division:TAXATION AND COMMERCIAL DIVISION
File Number: 2019/0265
Re:John Edward James
APPLICANT

AndInspector-General in Bankruptcy
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:3 December 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD]..............................................
Member D K Grigg
CATCHWORDS
BANKRUPTCY – extent of scope and power to amend National Personal Insolvency Index – whether statement of affairs filed with official receiver – whether trustee validly appointed – whether trustee agent of official receiver –– decision under review affirmed.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1996 (Cth)
CASES
Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 141; (1982) 44 ALR 690
Cable v Pattison [2003] FCA 1499
Casey v Repatriation Commission (1995) 39 ALD 34
Jovanovski v Official Receiver, Australian Financial Security Authority [2018] FCCA 1193
Klinger v Nicholl [2005] FCAFC 153
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
O’Brien v Sheahan [2005] FCAFC 59
Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Purden Pty Limited v Registrar of Bankruptcy (1982) 43 ALR 512
Re Owen Rowland Hill and Official Receiver [2007] AATA 1420
Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1
Shi v Migration Agents Registration Authority [2008] HCA 31
Shulver v Sherry (1992) 28 ALD 570
Sofia and Anor v. Pattison and Anor [1997] FCA 1586
Soong and Inspector General in bankruptcy [2014] AATA 372
Trihakis v Official Receiver (Vic) [1999] FCA 1426
REASONS FOR DECISION
Member D K Grigg
3 December 2019
BACKGROUND AND CLAIM HISTORY

On 17 January 2008 the Federal Magistrates Court (as it was then known) made a sequestration order[1] against the estate of Mr John James. The sequestration order provided that the date of the act of Mr James’ bankruptcy was 15 August 2007.[2]
[1] A sequestration order is an order made when a debtor has committed an act of bankruptcy: Bankruptcy Act 1966 (Cth), section 43.
[2] Exhibit 1, T Documents, T5, page 55, Sequestration Order dated 17 January 2008.
Pursuant to section 43(2) of the Bankruptcy Act 1966 (Cth) (“the Act”), when a sequestration order has been made, the debtor, in this case Mr James, becomes a bankrupt, and continues to be a bankrupt until:
(a)he or she is discharged;[3] or
(b)his or her bankruptcy is annulled.[4]
[3] By force of subsection 149(1) of the Act.
[4] By force of subsection 74(1) or 153A(1) or under section 153B of the Act.
When a person becomes bankrupt their name is entered onto the National Personal Insolvency Index (“NPII”) pursuant to regulation 13.03 of the Bankruptcy Regulations 1996 (“Regulations”).
Mr Christopher Palmer, of O’Brien Palmer Chartered Accountants and Insolvency Practitioners, was made trustee of Mr James’ estate pursuant to section 156A of the Act.[5] Mr James contends that Mr Palmer was invalidly appointed.
[5] Exhibit 1, T Documents, T6, page 69, Certificate of Appointment dated 22 January 2008.
On 24 January 2008 Mr Palmer (“the Trustee”) informed Mr James by letter that:[6]
(a)pursuant to section 54 of the Act, he had to file a Statement of Affairs (“SOA”), which sets out a debtor’s assets and liabilities, with the Official Receiver within 14 days; and
(b)pursuant to section 149(2) of the Act, the term of his bankruptcy, which is three years, would not commence until his SOA was filed.
[6] Exhibit 1, T Documents, T6, pages 56-69, Letters from Mr Palmer to Mr James dated 24 January 2008.
On 12 March 2008 the Trustee informed Mr James that he had still not received, among other things, his SOA, and reiterated that the term of his bankruptcy would not commence until it had been filed.[7]
[7] Exhibit 1, T Documents, T7, page 70, Letter from Mr Palmer to Mr James dated 12 March 2008.
On 7 April 2008 Mr James acknowledged that he had received a copy of the Trustee’s letter and instructions dated 24 January 2008 by signing and returning a copy of the letter to Mr Palmer.[8]
[8] Exhibit 1, T Documents, T8, page 76, Letter from Mr Palmer to Mr James dated 24 January 2008, signed by Mr James on 7 April 2008.
In February 2010 the Inspector-Regulation Central Region of the Insolvency & Trustee Service Australia (“ITSA”) contacted the Trustee regarding Mr James’ purported failure to file his SOA. The Trustee informed the Inspector on 8 March 2010 that he had informed and reminded Mr James of his obligations on two occasions and that two years ago, on 7 April 2008, Mr James contacted his office and advised he was endeavouring to return the SOA as soon as possible.[9]
[9] Exhibit 1, T Documents, T9, pages 77-78, Letter from Mr Palmer to the Inspector dated 8 March 2010.
By 13 May 2010 the Trustee had still not received Mr James’ SOA. He advised Mr James via letter that if his SOA was not forthcoming within 14 days he may notify the Fraud Investigation Unit of ITSA.[10]
[10] Exhibit 1, T Documents, T10, page 79, Letter from Mr Palmer to Mr James dated 13 May 2010.
In August 2010 the SOA had still not been filed so a representative of the Trustee emailed Mr James and again advised that the term of his bankruptcy will not commence until the SOA is filed.[11]
[11] Exhibit 1, T Documents, T11, page 80, Email to Mr James dated 10 August 2010.
Four years later, in June 2014, the Trustee determined that Mr James’ estate could be finalised and made inactive, in large part because Mr James had never provided his SOA and there were no known assets or funds in the estate to realise.[12]
[12] Exhibit 1, T Documents, T12, page 81, File note of Mr Palmer dated 26 June 2014.
On 27 June 2014 the Australian Financial Security Authority (“AFSA”), formerly the ITSA, noted the Trustee’s finalisation as trustee of Mr James’ estate.[13]
[13] Exhibit 1, T Documents, T13, page 82, Email from AFSA to Mr Palmer dated 27 June 2014.
In 2018 Morgan Conley Lawyers, on behalf of Mr James, wrote to AFSA regarding the fact that Mr James was still listed as an undischarged bankrupt on the NPII.[14] According to their instructions Mr James lodged his SOA with the Trustee in “around 2008” and had assumed that the Trustee had forwarded the document to AFSA. Morgan Conley states that Mr James no longer had a copy of the SOA and requested that AFSA remove Mr James as an undischarged bankrupt from its records given that 10 years have passed since he provided the SOA to Mr Palmer.[15]
[14] Exhibit 1, T Documents, T3, page 15, extract of NPII.
[15] Exhibit 1, T Documents, T14, page 84, Letter from Morgan Conley to AFSA dated 3 May 2018.
AFSA followed up Mr James’ request with the Trustee, requesting confirmation of whether Mr James did in fact lodge his SOA.[16]
[16] Exhibit 1, T Documents, T15, page 87, Email from AFSA to Mr Palmer dated 11 May 2018.
On 22 May 2018 Mr Rob Clapham, Manager of O’Brien Palmer, confirmed that searches were carried out and Mr James’ estate had been rendered inactive because Mr James had not lodged an SOA.[17]
[17] Exhibit 1, T Documents, T16, page 88, Email from Mr Clapham to AFSA dated 22 May 2018.
AFSA then advised Mr James on 23 May 2018 that:[18]
(a)there are no records of his filing a SOA which is why he remains an undischarged bankrupt;
(b)it cannot amend the records on the NPII; and
(c)Mr James should file a SOA and then make a request to AFSA to amend the record.
[18] Exhibit 1, T Documents, T17-T18, pages 90-92, Email from AFSA to Mr James and Morgan Conley dated 23 May 2018.
On 24 October 2018 Mr James lodged a SOA with the Official Trustee.[19] Morgan Conley emailed AFSA and, acknowledging that they had no proof of the original lodging of the SOA, asked AFSA whether a statutory declaration of Mr James would be sufficient proof to have the NPII amended.[20]
[19] Exhibit 1, T Documents, T3, pages 23-45, Statement of Affairs of Mr James dated 19 October 2018.
[20] Exhibit 1, T Documents, T19, page 95, Email from Morgan Conley to AFSA dated 24 October 2018.
On 16 November 2018 Morgan Conley contended that:[21]
(a)adding another three years to his bankruptcy was punitive and contrary to the bankruptcy regime which is not intended to be punitive where there has been no dishonesty or disingenuousness;
(b)there is no evidence that Mr James did not file his SOA with Mr Palmer;
(c)on 10 August 2010 the Trustee wrote to Mr James regarding his income questionnaire and made no reference to Mr James SOA;
(d)the Trustee had lodged no objections to Mr James’ discharge; and
(e)AFSA’s rejection of a statutory declaration as sufficient evidence is burdensome on Mr James, particularly given that a statutory declaration is admissible evidence in Court proceedings.
[21] Exhibit 1, T Documents, T20, pages 100-103, Letter from Morgan Conley to AFSA dated 16 November 2018.
Morgan Conley again requested the Official Receiver confirm that it would accept a statutory declaration as evidence of the SOA being filed and amend its records accordingly to reflect a filing date of 31 January 2008.[22]
[22] Exhibit 1, T Documents, T20, pages 100-103, Letter from Morgan Conley to AFSA dated 16 November 2018.
On 7 December 2018 the Delegate of the Inspector-General in Bankruptcy made a decision, pursuant to regulation 13.04 of the Regulations, to reject Mr James’s request to amend the date of his discharge from bankruptcy.[23]
[23] Exhibit 1, T documents, T4, pages 51–54, Statement of Reasons for Decision dated 7 December 2018.
On 10 January 2019 Mr James applied to this Tribunal for review of the Inspector-General’s decision pursuant to regulation 13.05 of the Regulations.[24] Mr James contends that the Inspector-General did not have a proper regard to all available evidence.
[24] Exhibit 1, T Documents, T2, pages 5-11, Application for review dated 10 January 2019.
The Tribunal has jurisdiction to review this decision pursuant to section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
ISSUE FOR THE TRIBUNAL
The issues for determination by the Tribunal are whether:
(a)the NPII is inaccurate in relation to the particulars of Mr James’ estate; and, if yes,
(b)the NPII can and should be amended.
The parties agreed to have the matter determined on the papers without the need for a hearing pursuant to section 34J of the AAT Act.
In addition to the section 37 documents, the Tribunal was provided with the following material:
(a)Mr James’ Statement of Facts, Issues and Contentions dated 11 April 2019;
(b)a statement of Mr James dated 11 April 2019;
(c)Mr James’ submissions dated 21 June 2019;
(d)the Respondent’s Statement of Facts, Issues and Contentions dated 23 May 2019;
(e)the Respondent’s submissions dated 28 June 2019 with attachments;
(f)Mr James’s reply to the Respondent’s submissions dated 3 July 2019;
(g)further submissions of the Respondent dated 28 August 2019; and
(h)further submissions of Mr James dated 11 September 2019.
CONTENTIONS
Mr James’ Contentions
Mr James states that:
(a)he recalls receiving the SOA to complete from the Trustee in early 2008;
(b)in accordance with section 54 of the Act, he completed the SOA and returned it to the Trustee shortly thereafter, sometime between April and June 2008;
(c)he received no letters from the Trustee after 7 April 2008 or any other information to cause him to think the SOA had not been filed on his behalf;
(d)the NPII is inaccurate insofar as it reflects that he:
(i)is not an undischarged bankrupt; and
(ii)only filed a SOA no earlier than 24 October 2018;
(e)he believed, on reasonable grounds, that his SOA had been filed sometime between 8 April 2008 to 1 June 2008;
(f)in relation to the letters sent by the Trustee to Mr James, he did not receive any correspondence or notification to cause him to believe that his SOA had not been properly filed and received, after the time he believed his SOA had been filed;
(g)he moved to a new address on 10 March 2008 and did not receive the correspondence of 12 March 2008 or 13 May 2010 (referred to in paragraphs 6 and 9above) as these letters were addressed to his previous address; and
(h)in or around mid-2010 he was contacted by either Mr Andrew Terry or “Robert” from O’Brien Palmer who enquired as to whether he had changed address. He confirmed that he had and provided his then current address in Queensland. At no time did the person inform him that they were still waiting to receive a copy of his SOA. In addition to not receiving any letters from the Trustee after 10 March 2008, he also does not recall receiving any emails relating to his SOA after the time he had sent it to O’Brien Palmer.
In written submissions dated 21 June 2019, Mr James additionally asserts that:
(a)The Trustee was not validly appointed as a trustee. Mr James says Mr Palmer did not provide his consent to act as trustee to the Official Receiver, pursuant to section 156A of the Act, until 22 January 2008, two days after the sequestration order was made. Mr James says that Mr Palmer’s failure to provide his consent to act after the order was made was in breach of section 156A of the Act and did not comply with regulation 8.01 of the Regulations.
(b)The effect of the Trustee’s allegedly invalid appointment is that Mr Palmer undertook his dealings with Mr James merely as an agent of the Official Receiver and that by reason of that relationship all notices by Mr James to
Mr Palmer as agent, including the provision of this SOA, is deemed notice directly to the Official Receiver as principal.
(c)Notice to an agent is sufficient notice to the principal and therefore the date Mr James provided his SOA to Mr Palmer constitutes notice on receipt of that SOA to have occurred in relation to the Official Receiver.
(d)He has deposed to providing his SOA to Mr Palmer in early to mid-2008, and the Respondent has not sought to cross examine him nor has the Respondent provided any evidence to the contrary, and therefore Mr James’ evidence as to the provision of the SOA to Mr Palmer in 2008 ought to be accepted.
(e)The obligation to file the SOA in section 54 of the Act is satisfied by lodging or sending a copy to the Official Receiver, or his agent.
In summary Mr James contends that the NPII should be amended because:
(a)he had in fact “filed” the SOA with the Trustee in 2008;
(b)the Trustee did not alert Mr James to not having received the SOA after June 2008;
(c)the Trustee was invalidly appointed and merely an agent of the Official Receiver; and
(d)sending a copy of the SOA to the Trustee, as agent for the Official Receiver, satisfied Mr James’ obligations under section 54 of the Act.
Inspector-General’s Contentions
The Inspector General contends that:
(a)pursuant to section 54 of the Act, Mr James was obliged to file his SOA with the Official Receiver which he did not do;
(b)even if, as Mr James contends, he posted the SOA to the Trustee, it never arrived at the Trustee’s office and hence was never lodged with the Official Receiver;
(c)whether Mr James provided his SOA to Mr Palmer is irrelevant;
(d)the mere posting of an SOA cannot satisfy a person’s obligation to “file” with the Official Receiver his SOA;
(e)Mr James did not file an SOA with the Official Receiver until 24 October 2018;
(f)the NPII correctly records the filing of the SOA on 24 October 2018 and the fact that Mr James has not been discharged from bankruptcy;
(g)there is nothing inaccurate or misleading in the NPII regarding Mr James bankruptcy within the meaning of regulation 13.04(1)(c) of the Regulations;
(h)there is no basis upon which the NPII could be amended; and
(i)Mr James’ contention that he had a reasonable belief that his SOA had been filed is of no relevance to the decision of the Inspector-General or the Tribunal and is only relevant to an application to a “Court” pursuant to section 33A of the Act.
CONSIDERATION
Power to Amend the NPII
Schedule 8 to the Regulations, headed “Information on the National Personal Insolvency Index”, specifies the information that is to be recorded on the NPII. Item 3 of Schedule 8 specifically states that the date on which an SOA is filed is required to be included pursuant to regulation 13.03.
Pursuant to section 43(1) of the AAT Act, the AAT has the power to affirm, vary, set aside, make a decision in substitution of, or remit a decision under review. In Shi v Migration Agents Registration Authority [2008] HCA 31, Keifel J, as her Honour then was, explained the role of the Tribunal as follows (citations omitted):
[134] Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.
(my emphasis)
The Full Federal Court in Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 said at 106:
When reviewing an administrative decision under s 43(1) the AAT stands in the place and is empowered to exercise all of the relevant powers and discretions, of the decision-maker in respect of the decision under review. The AAT hears the matter de novo in the light of the evidence placed before it.
(emphasis added)
The power given to the Inspector-General to amend the NPII derives from regulation 13.04 which provides relevantly:
Application for certain information not to be on the Index
(1)Subject to subregulation (4), a person who is a debtor or bankrupt may apply in writing to the Inspector-General for information in respect of the person:
(a)   not to be entered on the Index, on the ground that the entry of the information would jeopardise, or be likely to jeopardise, the person's safety; or
(b)   on the Index to be removed on the ground that:
(i)its inclusion jeopardises, or is likely to jeopardise, the person's safety; or
(ii)    it is inaccurate or misleading; or
(c)    on the Index to be corrected on the ground that it is inaccurate or misleading.
Note: Under subregulation (4), an application cannot be made for the removal of information in respect of a person's name or date of birth.
(2)The application must specify the ground relied and contain, or have with it, full particulars in support of the ground.
Example: A person may rely on a court order (such as a domestic violence order) to show that publication of the information in question would jeopardise, or be likely to jeopardise, the person's safety.
(3)The Inspector-General must, without delay:
(a) decide an application; and
(b)   give notice in writing to the applicant of:
(i)   the decision and the reasons for it; and
(ii)the applicant's right, if aggrieved by the decision, to apply under regulation 13.05 to the Administrative Appeals Tribunal for review of the decision.
(4)An application or a decision must not be made under this regulation to remove from the Index any of the following items of information in respect of a person:
(a)    the person's name;
(b)    the person's date of birth.

The grounds upon which the power can be exercised to correct the NPII record are limited to the circumstances set out in regulation 13.04.[25] Regulation 13.03(6)(b) also requires the Official Receiver to correct an entry in the NPII without delay if the entry contains information that is out of date, inaccurate or misleading.
[25] David Ian Mansfield as Trustee of the Bankrupt Estate of Maria Fokasv Maria Fokas [2018] NSWSC 249, at [18].
The issue here is whether the information regarding Mr James recorded on the NPII is inaccurate or misleading. The NPII currently records that Mr James is an undischarged bankrupt and that he filed his SOA on 24 October 2018. Mr James requests that the NPII be amended to record that he is no longer an undischarged bankrupt and that he filed his SOA on a date no later than 30 June 2008. The Respondent contends that the information on the NPII regarding Mr James’ lodgement of his SOA is neither incorrect, inaccurate nor misleading.
The Respondent contends that before the NPII records can be amended under regulation 13.04(1)(c), two requirements need to be met. First, the information sought to be amended must be “incorrect” and second, that the incorrect information must be “inaccurate or misleading”.
The Tribunal is not persuaded that regulation 13.04(1)(c) is to be interpreted in the way proposed by the Respondent. A plain reading of the regulation indicates that what is required before the NPII records can be amended under regulation 13.04(1)(c), is a finding that the information is inaccurate or misleading. If that finding is made, it follows that the NPII needs to be corrected (this ties in with the Inspector-General’s obligation under regulation 13.03(6)(b)). No correction power arises unless it is established that the information which is sought to be amended is inaccurate or misleading. There is no additional quality of the information having to be “incorrect” although it stands to reason that if the information is inaccurate or misleading that it is more than likely to be incorrect and therefore require correction.
The Oxford Online Dictionary provides the following definitions:
Incorrect
Not in accordance with fact; wrong
Accurate
(especially of information, measurements, or predictions) correct in all details
Inaccurate
Not accurate
The meaning of “incorrect” and “inaccurate” are essentially the same.
The Respondent contends that regulation 13.04(1)(c) involves the exercise of discretion and in this regard refers to Re Owen Rowland Hill and Official Receiver [2007] AATA 1420 where the Tribunal referred to the “Inspector-General has a discretion to consider and allow certain exclusions”. Where that discretion arises or which exclusions are applied were not set out in the decision. This Tribunal does not consider that there is any discretion in relation to a request to amend information on the NPII which is inaccurate and misleading. There is certainly no indication in regulation 13.04(1)(c) that a discretion exists. Further, regulation 13.03 (6)(b) of the Regulations specifically states that the Official Receiver must correct the entry without delay if an entry on the NPII contains information, in the opinion of the Official Receiver, that is out of date, inaccurate or misleading.
The Respondent notes that there is no power to amend the NPII to a date which is not the date the SOA was filed. The Tribunal agrees. If a correction is made it needs to be accurate.
Mr James primary contention is that the SOA was “filed” with Mr Palmer between April and June 2008. Mr James also contends that he had a genuine belief that his SOA had been received by the Trustee and filed and/or that he did not receive letters from the Trustee informing him that the SOA had not been received, and that this is relevant to the determination of whether the NPII can be corrected.
In order to correct the record, the Official Receiver, and hence the Tribunal, must be satisfied that the information on the Register currently is inaccurate or misleading. The Tribunal must also be satisfied of what the correct information should be. That question can only be answered by the Tribunal being able to determine the date that should be entered as the filing date of the SOA. Issues such as Mr James’ belief of events occurring which did not, or information regarding whether or not he would have filed a further SOA if he had known his original SOA had not been received, have no bearing on the Tribunal’s task of determining the correct date. In fact, those alternative contentions only go towards supporting the Respondent’s submission that the Tribunal cannot be satisfied that the SOA was received at a time earlier than 24 October 2018. In this regard the Tribunal believes that Mr James contentions are misconceived.
The Tribunal agrees with the Respondent that it is beyond the ability of the Inspector-General, and hence the Tribunal, to decide to record a date on the NPII which is not the date the SOA was filed with the Official Receiver. Even if the evidence of Mr James that he sent the SOA to the Trustee was accepted, this would not allow the Tribunal to treat a SOA as having been lodged earlier than it was. That power rests solely with “the Court” as provided for in section 33A of the Act which provides:
Alteration of filing date for statement of affairs
(1) This section applies to a statement of affairs that was filed for the purposes of section 54, 55, 56B, 56F or 57 by a bankrupt, or by a person who later became a bankrupt.
(2) If the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed, the Court may order that the statement is to be treated as having been filed at a time before it was actually filed.
(3) The Court cannot make an order that would result in the person being discharged from bankruptcy earlier than 30 days after the order is made.
(4) In this section:
"filed" includes presented, lodged or given.
Section 5 of the Act defines “the Court” to mean “a Court having jurisdiction in bankruptcy under this Act”. The power in section 33A of the Act is not a power that was open to the Inspector–General, nor this Tribunal. The Federal Court and the Federal Circuit Court have concurrent jurisdiction in bankruptcy pursuant to section 27(1) of the Act. The AAT does not have jurisdiction in bankruptcy and is not “the court” for this purpose: see Soong and Inspector General in bankruptcy [2014] AATA 372, at [6].
It is only section 33A of the Act which gives rise to whether a consideration of whether Mr James had a genuine and reasonable belief that he had filed his SOA. It is not relevant to the power available to the Tribunal under regulation 13.04. Even if that were not the case, as the Respondent points out, the Federal Court has held that, in relation to section 149(3) of the Act, section 33A cannot be used to alter the time provision, such as to ensure Mr James is automatically discharged from bankruptcy pursuant to section 149(4), “even where the statement of affairs was not filed on time by mistake or through no fault of the debtors”.[26]
[26] Van-Minnen (nee Huson) ex parte Harrison [1999] FCA 43 per Nicholson J at [7] referring to Nilant v Macchia (1997) 148 ALR 329. Note at [8] his Honour also held that “It is incontestable that the decision in Niland is applicable also to the utilisation of para 33(1)(c) in relation to subs149(4)”.
It is not in dispute that the SOA was never filed with the Official Receiver directly. Regulation 16.02 allows inter alia, a SOA to be posted to the office of the Official Receiver. The Trustee did not post a copy of the SOA to the Official Receiver because it did not receive it. Mr James also did not, pursuant to his obligation under section 54 of the Act, file a copy with the Official Receiver. In Cable v Pattison [2003] FCA 1499 Hely J held, at [17], that a failure to lodge a SOA “is not a formal defect, or a mere irregularity. It is a serious non-compliance with the provisions of s 54 of the Act for which a maximum punishment of five penalty units is specified”.
Irrespective of whether Mr James sent a completed SOA to the Trustee at some point, the Tribunal is not satisfied on the evidence available that the SOA was ever received by the Trustee.
In Jovanovski v Official Receiver, Australian Financial Security Authority [2018] FCCA 1193 (“Jovanovski”) the application made an application pursuant to s 33A of the Act seeking an order that the applicant’s SOA be treated as having been filed at a time before it was actually filed. This case is like the present matter in many respects and it is useful to go through it in some length. Mr Jovanovski accepted that he never filed the SOA with the Official Receiver but contended that it was delivered to his Trustee’s office by post, and later by hand. The central issue was whether Mr Jovanovski believed that his SOA had been filed with the Official Receiver and if so, whether he held such belief on reasonable grounds. This matter is distinguishable from the present case in that, as discussed, the Tribunal does not have jurisdiction in relation to section 33A. However, as in this case, the appointed Trustee sent Mr Jovanovski the requisite SOA to complete and advised him of the consequences of not completing and filing the SOA with the Official Trustee pursuant to section 54. As in this case, Mr Jovanovski did not complete, file or lodge the SOA with the Official Receiver or the Trustee within the prescribed 14-day period. Further communications were made by the Trustee again reminding Mr Jovanovski that he would be eligible for discharge from bankruptcy three years after the filing of his SOA with the Official Receiver. Unlike Mr James, Mr Jovanovski relied on witnesses whom he says assisted him with the completion of the SOA. Mr Jovanovski deposed that he asked one of those witnesses to deliver the SOA to the Trustee and that he believed it had been posted to the Trustee. Unlike Mr James however Mr Jovanovski tended a photocopy of Australia Post express post envelope. The envelope did not contain all the correct details of the Trustee such as the Trustee’s company name and the level number of the office building in which the Trustee operated. There was no evidence of the SOA having been returned. Again, as in this matter, AFSA sent the Trustee a letter noting that Mr Jovanovski had not yet filed his SOA. The Trustee informed AFSA that Mr Jovanovski had been notified of his obligation to file a SOA. A month after the SOA had purportedly been posted to the Trustee the Trustee had advised that they had not received the SOA. Mr Jovanovski continued to contend that he had a reasonable belief that his SOA had been delivered by post and later by hand. The circumstances of the evidence presented regarding the delivery by hand are not relevant for present purposes. Ultimately Mr Jovanovski’s solicitor wrote to AFSA requesting that a correction be made to the NPII as to the date of Mr Jovanovski’s discharge from bankruptcy on the ground that it was an accurate or misleading pursuant to regulation 13.04(1)(c). Mr Jovanovski did not seek to argue that the Trustee and the Official Receiver were the same person but rather than the Trustee should have told him to lodge the SOA with the Official Receiver. Mr Jovanovski’s solicitor argued that he should be excused from his failure to provide the SOA. The Inspector-General decided not to amend Mr Jovanovski’s discharge from bankruptcy date recorded on the NPII on the grounds that the information contained therein was not inaccurate or misleading and that there was no proper basis on which to categorise Mr Jovanovski’s attempts to deliver the SOA as constituting a formal defect or irregularity within the meaning of section 306 of the Act. Unlike here however, Mr Jovanovski filed an application to the court seeking alteration of the filing date pursuant to section 33A of the Act. The Court noted that a failure to comply with the obligations under section 54()1 is an offence of strict liability pursuant to section 54(3). In the case of Mr James, this was not pursued by the Official Trustee. The Court also noted that the term “filed” is not defined by section 5 of the Act although it is defined for the purposes of section 33A. The Court also pointed out that regulation 16.02 provides that where a document is required to be filed with the Official Receiver it must be sent to its office. The Court held that:
[137] By s33 the Court is given power with respect to, amongst other things, the abridgment of times that are fixed by the Act. However, this power does not extend to abridgment of the threeyear (sic) period prescribed by s149 for the early discharge of bankruptcy: Nilant, (Trustee) v Macchia (1997) 78 FCR 419. In this appeal in the extensive Nilant litigation, the Full Court held that para33(1)(c) of the Act did not confer power to abridge the time within which a bankrupt would be discharged as limited by subs149(3).
[139] Following the 1997 Nilant appeal, it was not until 2002 that the lacuna in power was filled by the Bankruptcy Legislation Amendment Act 2002 which inserted s33A into the Act. Section 33A conferred an express power on the Court to abridge the time provided by subs149(3) for the automatic discharge of a bankrupt.
[140] Section 33A is contained in Div 2 of PtIII of the Act which comprises ss 2737 (sic) and concerns the jurisdiction and powers of Courts in bankruptcy…
[141]    The power to order that a Statement of Affairs be treated as having been filed at the time before it was actually filed is only engaged where the Court is satisfied that the person believed, on reasonable grounds, that the statement had already been filed at a time before it was actually filed. Where in a bankruptcy proceeding it is necessary to establish or for the Court to be satisfied as to a particular fact, it is sufficient for the Court to be satisfied as to that fact on the balance of probabilities: s34A of the Act; cf ss58, 183, 140 Evidence Act 1995 (Cth). Where the evidence does not disclose a proper basis for the requisite belief, the requirements of the section cannot be satisfied: cf Asuzu v The Council of NSW Bar Association [2015] FCCA 210.
…
[151]    The bankrupt’s distinct obligations to file his or her Statement of Affairs with the Official Receiver and to furnish a copy of the statement to the trustee is readily apparent from the text of s54: Wangman v Official Receiver [2006] FCA 202, [47]. A Statement of Affairs which is so lacking in content as to be defective will not satisfy s54: sss6A(2).
[152]    Compliance with the obligation to file a Statement of Affairs is fundamental to the administration of an estate: Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238, 245 (Hill J). His Honour recognised the importance of the obligation, including so that creditors may become aware of the bankruptcy. These factors inform the significance of the NPII.
[153]    The filing of the Statement of Affairs is important to the bankrupt in that it marks the commencement date from which the discharge of the bankruptcy is calculated. Where it applies, s149 of the Act provides for the automatic discharge from bankruptcy. The section provides expressly that a bankrupt is discharged at the end of the period of three years from the date on which the bankrupt filed his or her Statement of Affairs: see subss149(2)(c); 149(3)(a) and 149(4).
[154]    The Statement of Affairs is important to the trustee also. The Act imposes an extensive array of duties upon a trustee: s19. A failure to file a statement impedes and delays the trustee in the orderly administration of the estate. Primary duties of a trustee are to determine whether the estate includes property that can be realised so as to pay creditors a dividend, whether the bankrupt has made a transfer of property that is void against the trustee and to furnish reports to creditors. Absent the filing of a Statement of Affairs in a timely manner, a trustee is unable effectively to pursue investigations in relation to the estate or to recoup property that may comprise part of the estate. Where a Statement of Affairs contains information that is considered to be false or misleading or omits material information, a trustee may give notice to a bankrupt requiring the production of books within 14 days: s6A(3). Absent a Statement of Affairs, a trustee’s ability to challenge transactions caught by ss120122 is impeded. Where monies are available for distribution amongst creditors and a bankrupt has failed to file a Statement of Affairs, the trustee must make an application to the Court for orders to facilitate distribution of dividends amongst creditors who have proved their debts: s146. Completion of the administration of the estate will be delayed. Accordingly, I accept that the trustee has a vested interest in the timely receipt of a Statement of Affairs. So too, do creditors of the bankrupt estate: cf subs54(4).
…
[162]    Applied here, relief may be denied where the evidence demonstrates that the applicant had no belief that a Statement of Affairs had ever been filed: Matteucci v Gollant [2013] FCA 6, [55]…
…
[171]    Where, in a civil proceeding, a Court is required to be satisfied as to the probabilities of a matter, it should consider the weight of the combination of facts which have been proven to its satisfaction and then determine whether the combined weight of those facts support the inference, as a matter of probability, that the event occurred (or did not occur, as the case may require): Transport Industries Pty Ltd v Longmuir (1997) 1 VR 125, 128 (Winneke P), 141 (Tadgell JA agreeing); Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359, [156]-[175]. These authorities emphasise that the Court should not deny itself the full benefit of the evidentiary impact of the combined weight of all of the intermediary facts as a united force
[173]    Subsection 54(1) indicates that the bankrupt has personal responsibilities to file the Statement of Affairs with the Official Receiver and to furnish a copy to their trustee. It is not to the point that a trustee may send the statement on behalf of the bankrupt on occasions where assistance is provided to a bankrupt to complete the document or where it is sent directly to the trustee. A suggestion that relief may be available where trustee had through carelessness failed to file a statement may rest on an assumption that a trustee is fixed with responsibility to do so… In my view, it is not consistent with the purpose or objects of the Act that the trustee should be fixed with a responsibility to file a Statement of Affairs
(emphasis added)
As pointed out by the Federal Circuit Court in Jovanovski, there is no basis for assigning the responsibility of filing the SOA with the Official Receiver, over to the Trustee. Regardless of whether the Trustee received the SOA, which he did not, the Trustee was under no obligation to perform what were Mr James’ responsibilities under section 54 of the Act.
Mr Jovanovski “sought to attribute blame upon the trustee for the failure to file a statement with the Official Receiver. His solicitors (sic) submission was that “any failure to provide a Statement of Affairs to AFSA ought to be excused since Mr Jovanovski, as a layperson, relied on his trustee who failed to inform him that he had to send a copy of the Statement of Affairs to AFSA and also failed to send it to AFSA himself”.[27]
[27] Jovanovski v Official Receiver, Australian Financial Security Authority [2018] FCCA 1193, at [200].
As here, Mr Jovanovski’s Trustee had in fact informed Mr Jovanovski of his obligations under section 54 in writing. Mr James was expressly informed that he had to file the original SOA with the Official Receiver and provide a copy to the Trustee.
In Jovanovski the Court did not accept that Mr Jovanovski believed his Trustee would lodge it with the Official Receiver. Here, there is no evidence from Mr James that he held such a belief.

Like Mr James, Mr Jovanovski also did not provide his Trustee with the change of residential address in a timely fashion.
As in Jovanovski, Mr James was reminded on several occasions that he would be eligible for discharge from bankruptcy three years after the filing of his SOA with the Official Receiver. The Court found that Mr Jovanovski was seeking an order “because it suits him to obtain an earlier discharge from bankruptcy arising from the late lodgment of his Statement of Affairs …”. The Court noted that:
[216] … Had he complied with his statutory obligation to file his statement within 14 days of being notified of the making of the sequestration order, the statement would have been filed in June 2014. He would have been automatically discharged from bankruptcy by June 2017. There has been no credible or adequate explanation for his delay of some three years in discharging that obligation. The failure to do so has impeded the trustee. It has hampered the orderly conduct of the administration of the estate.
[217] Had it been necessary to do so I would have refused to make an order in the circumstances as a matter of discretion.
Mr James now contends that Mr Palmer was the agent of the Official Trustee. No authority for this proposition was cited. As referred to earlier, this goes against the purpose and object of the Act.
Although Mr James has provided a statement deposing to the fact that he sent his SOA to Mr Palmer in or around April to June 2008, there is no corroborating evidence of his doing so. There is no copy of the SOA he says he sent to Mr Palmer; there is no record, such as an express post receipt, acknowledging that the SOA was sent and delivered; and there is no evidence that the SOA ever arrived at Mr Palmer’s offices.
There is also no explanation provided by Mr James as to why he did not notify the trustee of his change of address in a timely fashion. Mr James moved address on 10 March 2008 and yet this information was not provided to the trustee until two years later in or around mid-2010. In any event Mr James acknowledges that he received a copy of Mr Palmer’s letter and instructions dated 24 January 2008 when he signed and returned it to Mr Palmer.[28] Mr James acknowledged in his January 2019 statement that he received a copy of the pro forma statement of affairs to complete.[29]
[28] Exhibit 1, T Documents, T8, page 76, Letter from Mr Palmer to Mr James dated 24 January 2008, signed by Mr James on 7 April 2008.
[29] Exhibit 1, T Documents, T3, pages 12-13 Statement of Mr James dated January 2019, para 5.
The letter of 24 January 2008 specifically advised Mr James as follows:
When completing the forms [the SOA]… You should arrange for the original form to be filed with the Insolvency and Trustee Service Australia, whose address is Level 8, 135 King Street, Sydney 2000. You are required to provide me with a copy.
(emphasis added)
The letter, which Mr James signed and acknowledged that he had read and understood, clearly informs Mr James that it was his obligation and responsibility to file the SOA with the Official Receiver, not Mr Palmer.
The letter also clearly explains to Mr James that pursuant to section 80 of the Act he was under an obligation to immediately notify Mr Palmer in writing of any change in his place of residence. The penalty for failing to do so is six months imprisonment.
In his first statement Mr James refers to having moved address several times as a basis for explaining why he no longer has any copies of any correspondence to Mr Palmer or the completed SOA. However, there is no mention of the date that he moved address until the second statement of 11 April 2019 was provided. In that statement Mr James says he moved to Queensland on 10 March 2008, which just happens to be two days prior to the letter from Mr Palmer to Mr James dated 12 March 2008 addressed to Mr James’ New South Wales address.
The Tribunal notes that it was Mr James’ statutory obligation to keep the Trustee informed of his residential address. The Trustee correctly reiterated that it had not received a copy of Mr James’ SOA in letters after 10 March 2008 which was sent to the address that
Mr James had given to the Trustee. In those circumstances the Tribunal finds that
Mr James is taken to have had constructive notice of that information. There is also nothing in the statements deposed by Mr James regarding why, given he had moved address and was in a state of bankruptcy, he had not arranged for mail sent to his New South Wales address to be forwarded to his new address in Queensland.
The letter from Mr Palmer to Mr James of 12 March 2008 also indicates that Mr James had on more than one occasion failed to provide the requested information to the trustee. That letter refers to the fact that Mr James had also failed to provide:
(a)a signed copy of the effects of bankruptcy which Mr Palmer had attached to a letter dated 27 April 2007; and
(b)information regarding his shareholdings in certain companies which had been requested in a letter dated 1 February 2008.
Both of those requests occurred prior to Mr James moving and yet he does not address his failure to have complied with those requests.
The letter from Mr Palmer of 8 March 2010 records that Mr James contacted Mr Terry via telephone on 7 April 2008 and advised that as he had separated from his wife he had only just received a large bundle of mail which included letters sent from Mr Palmer. Mr Palmer records that Mr James emailed Mr Terry on 7 April 2008 enclosing a signed copy of the notice, which Mr James acknowledges that he sent, and advised that he was endeavouring to complete and return the SOA as quickly as possible. Given that Mr James says he had moved address in March 2008 it is unclear why he did not advise Mr Terry or Mr Palmer at that time of his new contact details.
The fact that the Trustee’s letters of 12 March 2008, 13 May 2010 and 10 August 2010 or make reference to the fact that the Trustee had not received Mr James’ SOA is evidence that that SOA was not in fact received regardless of whether Mr James received copy of those letters or not.
Relevance of whether Mr Palmer validly appointed as Trustee of Mr James’ estate
The sequestration order was made against the estate of Mr James on 17 January 2008. On 22 January 2008 a certificate of appointment was issued appointing Mr Palmer as Trustee with an effective date of appointment from 17 January 2008.[30]
[30] Exhibit 1, T Documents, T3, page 17, Certificate of Appointment of Mr Palmer as Trustee.
Section 156A(1) of the Act provides:
(1) A registered trustee may, by instrument signed by him or her and filed with the Official Receiver, consent to act:
(a) as the trustee of the estate of the debtor specified in the instrument in the event that the debtor becomes a bankrupt; or
(b) as the trustee of the joint and separate estates of such of the debtors specified in the instrument, being members of a partnership or joint debtors who are not in partnership with one another, as may become bankrupts, or, if only one of those debtors becomes a bankrupt, as the trustee of the estate of that debtor.
The Tribunal agrees with Mr James that section 156A(3) of the Act provides that the trustee must have given their signed consent prior to the sequestration order.
The Full Federal Court discussed the enactment of section 156A and its practical effect in O’Brien v Sheahan [2005] FCAFC 59 (“O’Brien”) as follows:
[31] The significant amendment to the Act by the Commonwealth Functions (Statutes Review) Act 1981 (Cth), for present purposes, was the enactment of s 156A of the Act. It provides for a registered trustee to become the trustee of the estate of a bankrupt at the time of the sequestration order. That change meant that it was no longer necessary that there be the default appointment of an official receiver (later, the Official Trustee) under s 160 as the first trustee of the estate of a bankrupt. The appointment of a registered trustee as the trustee of a bankrupt estate may occur under s 156A(3) upon the making of a sequestration order. The condition upon which s 156A(3) operates is the signed consent of the registered trustee being given prior to the sequestration order to the Registrar (later, the Official Trustee) to being so appointed.
(emphasis added)
The Court in O’Brien went on to note however that if the proposed trustee has not consented prior to the making of the sequestration order, the Official Trustee becomes the trustee:
[32] If no consent of a registered trustee is given before the sequestration order, s 160 makes the Official Trustee the trustee. If a registered trustee is to be the trustee upon the making of a sequestration order, the proposed trustee must have consented to appointment to that office before the making of the sequestration order. Regulation 8.06 of the Bankruptcy Regulations requires the consent to be filed with the Official Receiver as soon as practicable after it is signed or, if a sequestration order is made, within two days of the order.
…
[36]…in our view…s 156A requires an anticipatory written consent.
In Klinger v Nicholl [2005] FCAFC 153, the Full Federal Court outlined the trustee’s consent process as follows:
[16] Under s 156A(1) of the Act, a registered trustee may consent to act as the trustee of the estate of a debtor in the event that the debtor becomes a bankrupt. Under s 156A(3), where, at the time when the debtor becomes a bankrupt, a registered trustee has consented to act as the trustee of the estate of a debtor and the consent has not been revoked, the registered trustee becomes, at that time, the trustee of the estate of the bankrupt. Provision is made in s 156A(4) for any creditor to apply for removal of a trustee appointed pursuant to s 156A(3). There is no equivalent provision for the bankrupt to apply for removal. Further, there is no requirement in s 156A for a debtor to be informed that a registered trustee has given consent pursuant to s 156A(1). However, r 31.05(1)(e) of the Rules of the Federal Magistrates Court requires that a consent of a trustee to act as trustee in bankruptcy must be served on the debtor.
[17] While the Trustee had consented to act as trustee, the appellant gave oral evidence that the Trustee’s consent had not been served on him. On the other hand, an affidavit filed on behalf of the Creditor contained an assertion by a licensed commercial agent that the agent had served a copy of the Trustee’s consent on the debtor personally in accordance with the Rules. The primary judge considered that it was not necessary to make a finding on that disputed question.
[18] Service of a registered trustee’s consent is not a prerequisite to a registered trustee becoming trustee of a debtor’s estate pursuant to s 156A. Further, the Rules of the Federal Magistrates Court can be dispensed with under r 1.06. The primary judge did not consider that a failure to comply with r 31.05(1)(e) was a sufficient cause for dismissing the Creditor’s petition.
The Respondent noted that the claim that Mr Palmer was invalidly appointed was not made by Mr James until the submission prepared by his solicitor was filed on 21 June 2019. The Tribunal notes that whether Mr Palmer was validly appointed was not raised by Mr James when he requested the original review of the Inspector-General’s decision and was, as a result, not addressed as part of the reviewable decision.
The Respondent submits that the Trustee:
(a)was validly appointed; and
(b)was not an agent of the Official Receiver.
The Respondent states that although this issue was not raised originally, and in fact did not form part of the original decision maker’s consideration, it is able to respond to these contentions subject to the Tribunal permitting the Respondent to tender additional documents.
The Respondent submits that whether Mr Palmer was validly appointed is a red herring and irrelevant because Mr Palmer never received the SOA, and therefore, on Mr James’ argument, neither did the Official Receiver. The Tribunal agrees. There is no evidence that Mr Palmer, whether validly appointed or not, received the SOA. Therefore, even if it was arguable that Mr Palmer was the Official Receiver’s agent, the Official Receiver also did not receive the SOA.
There is no evidence of any express agency relationship, therefore Mr James would need to establish that the agency relationship can be implied in the circumstances. There were no facts put forward by Mr James to establish that an implied agency relationship exists.
Even if Mr Palmer was not validly appointed, section 160 of the Act, provides that the Official Trustee would have been the trustee. Therefore, Mr James should have delivered a copy of the SOA to the Official Trustee, which he did not. The fact that the Official Trustee becomes the trustee by default undermines the alleged existence of any agency relationship existing between Mr Palmer and the Official Receiver. In this situation the obligations to act fall on the Official Trustee. There are no indicators to otherwise establish any implied agency arrangement between an invalidly appointed trustee and the Official Receiver while there is in fact an Official Trustee of the bankrupt’s estate appointed.
Mr James objected to the additional documents (which purportedly confirm that Mr Palmer complied with section 156A(3) of the Act and was validly appointed) being accepted as evidence by the Tribunal and submitted that the Tribunal should disregard those documents.
The Tribunal is authorised to undertake proceedings in a manner which “shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act ... and a proper consideration of the matters before the Tribunal permit” (s 33(1)(b), AAT Act).
Section 2A of the AAT sets out the Tribunal’s objective as follows:
Tribunal's objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Pursuant to sections 37 and 38AA of the AAT there is an obligation on the Respondent to provide the Tribunal with material documents. This obligation is ongoing. The Respondent is also obliged to “use his or her best endeavours to assist the Tribunal to make its decision”.[31]
[31] Section 33(1AA), AAT Act.
After Mr James raised the argument that Mr Palmer had not been validly appointed the Respondent obtained a copy of the Consent from the Official Receiver.
Davies J in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 explained the process the Tribunal should engage in in admitting and assessing evidence as follows:
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.
It is not in every case fair to all parties or otherwise appropriate that the Tribunal should insist upon the best evidence of disputed facts, even critical facts. There are occasions when it is inappropriate to insist upon such evidence and when it is appropriate to receive evidence which, though of a logically probative nature, cannot be tested by one or more of the parties. In such a case, the party adversely affected by the evidence is given a fair hearing by his attendance at the hearing, his awareness of the evidence adduced against him and his ability to adduce evidence to the contrary if he sees fit to do so. The fair hearing in this instance takes account of the function of the Tribunal including the fact that it is an administrative tribunal and not a court of law. As an administrative tribunal, it has the duty to review an administrative decision and to exercise the decision-making power. It is necessary that the nature of the procedures adopted at the hearing and the nature of the evidence which is received by the Tribunal be adapted to the function which it performs (at 5).
…
We are concerned here with the exercise of an administrative discretion and it seems to me that having regard to that I should take into account documents which I think are genuinely relevant and, which are documents to which I should have regard. And I think that once I do that and give an opportunity to the applicant to meet by evidence whatever matters that he thinks are adversely raised against him in those documents I do the best that sensibly can be done.
(emphasis added)
On appeal, in Barbaro v Minister for Immigration and Ethnic Affairs [1982] FCA 141; (1982) 44 ALR 690 the Full Federal Court noted:
The admission of an adverse hearsay report, without an opportunity being provided to cross-examine the author, does not by itself amount to a denial of natural justice [citations omitted]. Consideration of whether there has been a denial of natural justice must have regard to statutory provisions, such as s 33 of the Administrative Appeals Tribunal Act (as well as ss 30,31 and 32). In the present case, it seems to us that the appellant was treated fairly. He had an opportunity by his own evidence, and by any other he could produce, to refute statements in the Report, and he had a legal representative through whom all appropriate submissions could be made ibid at 693-694.
(emphasis added)
The Consent document is relevant to the Tribunal’s consideration of Mr James’ contention that Mr Palmer was invalidly appointed. To ignore this document would lead the Tribunal into error with the result that the correct or preferable decision may not be made.
Mr James contends that the documents have not been introduced into evidence and argues there is a risk that without the ability to test the “history and authenticity” of the documents that the Tribunal could be led into error. Mr James contends that he will be prejudiced. The Tribunal is unconvinced. Mr James had an opportunity to present his argument, to introduce evidence which may have undermined the acceptability or weight to be given to the documents. Mr James was afforded procedural fairness. No evidence is before the Tribunal which contradicts the information contained within the documents. Pursuant to section 33(1)(c) of the AAT Act the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
In Shulver v Sherry (1992) 28 ALD 570, Hayne J explained, at 574, that evidence relied upon by a Tribunal does not need to meet the admissibility criteria required of a Court at 574:
When considering whether a decision-maker has based his decision on the evidence, I consider that it is clear that the question is directed to the identification of material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined not to the identification of material that would be admissible in a court of law.

In Casey v Repatriation Commission (1995) 39 ALD 34 Hill J noted (at 38):
The criterion for admissibility of material in the tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.
The Tribunal notes that the documents clearly show that Mr Palmer lodged a consent to act prior to the date he was appointed as trustee of Mr James’ estate. The documents show that the Trustee’s consent to act was:
(a)signed on 12 November 2007;
(b)lodged with the Official Receiver by letter dated 16 November 2007 from the petitioning creditor’s lawyers; and
(c)received by the Official Receiver on 19 November 2007.
In any event, in these circumstances it is unnecessary for the Tribunal to consider the additional documentation provided by the Respondent.
The trustee is not an agent of the Official Receiver and was under no obligation to lodge the SOA with the Official Receiver, even if the SOA had been received.
Is notice given to the trustee sufficient for the purpose of section 54 of the Act?
Brian Palmer confirmed with the Official Receiver on 22 May 2018 that it had never received a SOA from Mr James. The Official Receiver confirmed on 23 May 2018 that it had not received an SOA from Mr James.
The Tribunal is not satisfied when considering the whole of the evidence that the Trustee ever received Mr James’ SOA in 2008. Even if the Tribunal had found otherwise the Tribunal believes that the sending of a copy of an SOA to the trustee does not satisfy the obligations in section 54 of the act.
Section 54 of the Act provides that:
Statement of Affairs
(1)Where a sequestration order is made, the person against whose estate it is made shall, within 14 days from the day on which he or she is notified of the bankruptcy:
(a) make out and file with the Official Receiver a statement of his or her affairs; and
(b) furnish a copy of the statement to the trustee.
Penalty: 50 penalty units.”
(emphasis added).
The word “file” is not defined in the Act and therefore should be given its ordinary meaning.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In interpreting a section of an Act, “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22].
The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ):
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…
More recently, the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 said (at [52]):
The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.
(emphasis added)
The Respondent referred the Tribunal to the Federal Court decision of Sofia and Anor v. Pattison and Anor [1997] FCA 1586 (“Sofia”) where Finkelstein J considered and held that the ordinary meaning of the word “file” in the Act “is to place on a “file”. In Sofia the Court had to consider whether leaving a SOA at an unattended counter constitutes "filing" for the purpose of section 54 of the Act. The Applicants sought to rely on section 306(1) of the Act to relieve them from the consequences of non-compliance with section 54(1). Section 306(1) of the Act provides that:
(1) Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.
Finkelstein J referred to the Full Federal Court decision in Purden Pty Limited v Registrar of Bankruptcy (1982) 43 ALR 512 the Full Court discussed the meaning of the word "filed" when used in a number of sections of the Bankruptcy Act but not in section 54(1). The Full Court said (at 515):
Filing is the word traditionally used to describe the act or process of placing documents in the records of courts or registries.
Finkelstein J held that the word “file”, “having regard to the context in which the word is used [in section 54]…should be regarded as a reference to the act of the bankrupt”, and that:
the obligation that is imposed by s 54(1) is an obligation that is imposed on the bankrupt. In the second place the obligation is to file a document at a particular place namely at a Registry. This suggests that the statement will be filed when it is left with an officer at the Registry rather than when it has been placed on a file that is maintained at the Registry. Thus the subsection will be complied with whether or not the statement is subsequently placed on a file by the officer who received it.
The Court found that leaving a copy at an unattended counter was not sufficient to comply with the obligation in section 54.
In this matter there is no suggestion of the SOA being left in any manner with the Official Receiver.
It is clear from the wording of section 54 and the cases referred to that the obligation is on the bankrupt to file the SOA, not the trustee or any other person. It is not in dispute in this case that that did not occur. It follows that the mere act of positing a copy to the trustee is not enough to meet with the obligations imposed by section 54(1) of the Act.
If there had been a defect which could be remedied, it is for the court, not the Tribunal, to exercise.
In Trihakis v Official Receiver (Vic) [1999] FCA 1426 the Applicant sought a declaration that a statement of affairs be deemed to have been filed in the office of the Registrar of Bankruptcy. Section 54(1) has since been amended to substitute for the Registrar in Bankruptcy the Official Receiver as the person with whom the bankrupt's statement of affairs is to be filed. The Applicant deposed that she had completed the SOA and given it to her husband to deliver. The Registrar’s records showed that no SOA had been filed.
Kenny J found that:
In the present case, there is no evidence that the statement of affairs of Ms Trihakis did not exist or that it was not duly filed. The evidence is that it did exist, that it was forwarded by Mr Trihakis to the authorities, coming eventually into the hands of the trustee. There is no evidence that the Registrar in Bankruptcy did not receive it before it came into the hands of the trustee. In these circumstances, it would, I think, be open to me to apply the presumption of regularity to find that the original statement of affairs of Ms Trihakis had been filed in the office of the Registrar as s 54(1) required, and that such filing was effected on 20 May 1996
This case can be distinguished again from this matter because in Trihakis the Court was exercising its power to make declarations regarding the status of the applicant. The Tribunal has no such power. It is also distinguishable, as the Respondent points out because there was evidence of the SOA being received by at least the Trustee. That is, there was direct evidence of the SOA having been completed and sent, albeit not to all the correct authorities. No such evidence exists in this case.
DECISION
The decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

......................[SGD]..................................................
Associate
Dated: 3 December 2019

Date reserved:
11 September 2019

Solicitors for the Applicant: Morgan Conley Solicitors

Solicitors for the Respondent: Matthews Folbigg Lawyers

Date reserved:	11 September 2019
Solicitors for the Applicant:	Morgan Conley Solicitors
Solicitors for the Respondent:	Matthews Folbigg Lawyers