Matheson and Inspector-General in Bankruptcy

[2008] AATA 1160

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3126

GENERAL ADMINISTRATIVE DIVISION		)
Re		FREDERICK MATHESON

Applicant

And INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

DECISION

Tribunal Dr K S Levy RFD Senior Member

Date23 December 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]...................

Senior Member

CATCHWORDS

BANKRUPTCY – Review of Decisions and Appeals – no abuse of process – existence of special ground – applicant has no reasonable excuse for conduct – decision under review affirmed.

Bankruptcy Act 1966 (Cth) ss 77(1)(ba), 77(1)(g), 149(4), 149A(2)(a)(ii), 149D(1)(d), 149N(1)(A)(b), 160, 181A

Re Woodman and Inspector-General in Bankruptcy [1996] AATA 115

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30.

Puttick v Tenon Limited [2008] HCA 54.

Voth v Manildra Flour Mills Pty Ltd [1990] 171 CLR 538

Puttick v Tenon Limited [2008] HCA 54

Nguyen v Pattison (2005) 86 ALD 43

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

Re De La Hunty and Inspector-General in Bankruptcy [2006] AATA 610

REASONS FOR DECISION

23 December 2008	Dr K S Levy RFD Senior Member
INTRODUCTION

1.      The Applicant, Frederick Matheson, is appealing against the decision to extend the period of his bankruptcy. 

2.      The Applicant is the subject of a Sequestration Order made against his estate by the Federal Magistrates Court of Australia on 3 March 2005.  In the course of administering the bankruptcy, the Official Trustee (“the Trustee”) sought certain information from the Applicant by letter dated 9 February 2007.  By letter dated 7 April 2008, the Trustee informed Mr Matheson that the Trustee had objected to Mr Matheson’s discharge from bankruptcy as a result of his failure to comply with the Trustee’s request for information which originated in the letter dated 2 March 2007.  That objection was agreed to by a delegate of the Inspector-General in Bankruptcy, and upon review that objection was affirmed.

3.      Mr Matheson sought a review of that decision by the Administrative Appeals Tribunal.  At the hearing, the Applicant represented himself.  The Inspector-General in Bankruptcy was represented by Mr P D Fenton (Australian Government Solicitor).

ISSUES

4.      The issues to be determined by the Tribunal are as follows:

(1)Has there been an abuse of process on the basis that the Trustee did not advise the Applicant that he should respond to requests for information by the Trustee’s agent?

(2)Is there sufficient evidence to support the existence of at least one “special ground” which is specified in the objection?  (Section 149N(1)(A)(b) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”))

(3)If there is a “special ground”, did Mr Matheson have a reasonable excuse for conduct or failure that constituted the “special ground”?

EVIDENCE

5. The Applicant’s bankruptcy commenced with the Sequestration Order made by the Federal Magistrates Court of Australia on 3 March 2005. The Official Trustee then became the Trustee of Mr Matheson’s estate as a matter of law, by virtue of s 160 of the Bankruptcy Act. The Applicant then submitted a Statement of Affairs on 23 May 2005.

6. The Official Trustee appointed another Trustee, Mr Bevin Schafferius, as the Trustee of Mr Matheson’s estate under s 181A of the Bankruptcy Act. During the currency of the appointment of the Trustee, Mr Matheson was initially represented by a firm of solicitors, Tucker & Cowen. That firm of solicitors was then requested by the Trustee, on 3 October 2005, to provide certain information to him. That information was never supplied. On 22 January 2007, the Trustee then required the Applicant, who no longer engaged that firm of solicitors, to personally provide to the Trustee the information requested on 3 October 2005 from Tucker & Cowen. That request was made under s 77(1)(ba) and (g) of the Bankruptcy Act. With that request, the Trustee also demanded the Applicant complete certain questionnaires in relation to income. The Applicant was required to complete the questionnaires in full and return these to the Trustee within 14 days of that date. On 9 February 2007, the Applicant provided 50 pages of documents including the completed Income Statements and Income Questionnaires. The Trustee’s request was therefore satisfied within the timeframe required.

7.      As a result of providing that information, the Trustee sought further particulars about information which the Applicant had provided both in his Statement of Affairs and in his letter dated 9 February 2007 (including the 50 pages of attachments).  The Trustee (through his agent P A Lucas & Co) in his letter dated 2 March 2007, sought further particulars about the following eight issues:

(1)All documents relating to the sum of $81,037.79 which the Applicant claimed, at question 31 of his Statement of Affairs of 23 May 2005, to be owed to him;

(2)All documents relating to the debt of $14,400 which the Applicant claimed, at question 40 of his Statement of Affairs of 23 May 2005, to be owed to the 345B Trading Trust;

(3)The current balance of Mr Matheson’s superannuation account which was listed with a balance of $10,000, at question 27 of his Statement of Affairs of 11 May 2002;

(4)Full details of the item described, at question 48 of his Statement of Affairs of 11 May 2002, as “debt is owned by Matheson Family Trust TDG as tractor rentals Qld”;

(5)Copies of income tax returns and Notices of Assessments for the financial years ended 30 June 2004 and 30 June 2005, referred to in question 44 of his Statement of Affairs of 22 May 2005, as well as (by that stage) the financial year ended 30 June 2006;

(6)All details of the purchase on 14 February 2003 and subsequent sale on 20 August 2003 by the Applicant of the property at Kunda Park, Queensland;

(7)All bank books and statements, income tax returns, Notices of Assessment and financial statements in relation to the Applicant and all trusts of which the Applicant was the trustee for the three years prior to the date of bankruptcy;

(8)Details of and original evidence (ie. bank statements) substantiating all payments made by the Applicant to the 345B Trading Trust pursuant to the Hire Agreement for the 1998 Toyota Hilux.

8.      Mr Matheson responded to the Trustee by letter dated 12 March 2007 indicating that he had forwarded certain material to the Inspector-General in Bankruptcy and was seeking a determination.  He could not respond to the letter for further particulars dated 2 March 2007 until he had received an answer from the Inspector-General in Bankruptcy.

9.      The Trustee’s agent, P A Lucas & Co, subsequently wrote to the Applicant on 28 March 2007 and demanded that Mr Matheson comply with the request dated 2 March 2007 in the light of his obligations as an undischarged bankrupt.

10.     The Applicant responded on 30 March 2007 and sought certain information about the petitioning creditors but did not provide the information as required by the Trustee.  Mr Matheson further wrote to the Trustee on 9 April 2007 and indicated that he would pay $8,000 in settlement of the Trustee’s fees on 1 August 2007 and would provide an irrevocable authority to settle the Trustee’s fees on the release date from bankruptcy, ie. 26 May 2008.

11.     Subsequent correspondence from the Trustee to the Applicant dated 13 August 2007 again requested the information set out in the Trustee’s letter of 2 March 2007, and that such information should be provided within seven days of the date of the letter (13 August 2007).  The Applicant responded on 17 August 2007 and merely reiterated his offer of 9 April 2007.  The information requested by the Trustee in his letter dated 2 March 2007 again was not provided.

12. Ultimately, on 7 April 2008, the Trustee informed Mr Matheson, following his letters dated 2 March 2007, 28 March 2007 and 13 August 2007, that he had still not received the information which he had requested so that he could undertake his role as Trustee. Therefore, he had objected to the Applicant’s discharge from bankruptcy under s 77(1)(ba) and (g) of the Bankruptcy Act.

13.     In terms of warnings provided by the Trustee to the Applicant, the evidence shows also that the Trustee had engaged the services of P A Lucas & Co in undertaking part of his role as Trustee.  That firm wrote to Mr Matheson on 22 January 2007 advising that a failure to return a Statement and Questionnaire by the due date could result in an objection to the Applicant’s discharge from bankruptcy being lodged.  Subsequently, in the letter dated 13 August 2007, where a further demand was made by the Trustee to provide information within seven days, the Applicant was advised that a failure to provide that information within that seven day period meant that the Trustee intended to object to Mr Matheson’s discharge from bankruptcy, and that the consequential effect would be to extend the period of his bankruptcy from three years to eight years.  Also, on 5 June 2007, the Trustee wrote to Mr Matheson and referred to the 50 pages of documents which he had referred to as having been delivered on 9 February 2007.  The Trustee informed Mr Matheson that that information did not satisfy the Trustee’s request as the information previously provided was prior to the request dated 2 March 2007 by the Trustee.  The letter of 5 June 2007 further informed Mr Matheson that he was strongly urged to reconsider and provide the information requested as soon as possible. 

14.     The Applicant relevantly informed the Tribunal that he was previously made bankrupt in 2002, and in the course of those proceedings an objection was taken to the Applicant’s discharge from that bankruptcy.  However, in May 2007, the trustee in that bankruptcy withdrew his objection to the Applicant’s discharge.  The Applicant says the current Trustee should have followed a similar course in the current bankruptcy.

CONSIDERATION

15. I have considered all the evidence provided by Mr Matheson and by the Inspector-General in Bankruptcy and also considered all the statutory and case law relevant to the matters before the Tribunal. Section 149(4) of the Bankruptcy Act allows Mr Matheson to be discharged from bankruptcy at the end of three years from the date upon which he filed his Statement of Affairs, ie. date due for discharge is 23 May 2008. However, where a Trustee objects to the discharge from bankruptcy, the period is extended to five years (s 149A(2)(a)(ii) of the Bankruptcy Act), or, where the objection is made on a “special ground”, the period is extended to eight years (s 149A(2)(a)(i) of the Bankruptcy Act).

16. A review of the decision may be made of the Trustee’s decision by the Inspector-General in Bankruptcy under s 149K of the Bankruptcy Act. That decision may be further reviewed by the Administrative Appeals Tribunal under s 149Q of the Bankruptcy Act. In addition, this Tribunal may review the decision using all the powers and discretions conferred by that Act[1].

[1]See further s 43(1) of the Administrative Appeals Tribunal Act 1975; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143.

17. As a further preliminary matter before dealing with the issues, the other relevant legislation is contained in s 149N of the Bankruptcy Act and is relevant to determination of the issues submitted by the Applicant. This section provides, inter alia, as follows:

“s 149N Decision on review

(1) On a review of a decision, if the Inspector-General is satisfied that:

(a) the ground or grounds on which the objection was made was not a ground or were not grounds specified in subsection 149D(1); or

(b) there is insufficient evidence to support the existence of the ground or grounds of objection; or

(c) the reasons given for objecting on that ground or those grounds do not justify the making of the objection; or

(d) a previous objection that was made on that ground or those grounds, or on grounds that included that ground or those grounds, was cancelled;

the Inspector-General must cancel the objection.

(1A) An objection must not be cancelled under subsection (1) if:

(a) the objection specifies at least one special ground; and

(b) there is sufficient evidence to support the existence of at least one special ground specified in the objection; and

(c) the bankrupt fails to establish that the bankrupt had a reasonable excuse for the conduct or failure that constituted the special ground.

For this purpose, special ground means a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (k) or (ma).”

18. Relevantly, for the purposes of this application, the “special ground” in s 149D(1)(d) provides a ground of objection is that the “bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request”. That is the basis of objection by the Trustee in this case.

19.     As was stated in Nguyen v Pattison[2], s 149N, by establishing a “special ground” provides that it is intended, where sufficient evidence is provided, “to continue a bankruptcy beyond three years …”. That, of course, is subject to s 149N(1) where the Inspector-General in Bankruptcy must cancel the objection where there is insufficient evidence to support the objection; or under s 149N(1A) where the Inspector-General must not cancel the objection where a “special ground” is involved, and where there is also sufficient evidence available to support the objection but where there is no reasonable excuse provided by the bankrupt.

Issue One - Is there an abuse of process; ie. Was there an obligation to advise Mr Matheson to respond to the Trustee’s agents? 

[2] Nguyen v Pattison (2005) 86 ALD 43 at [38].

20.     Mr Matheson claims that he should have no case to answer as the failure of the Trustee to inform him of the appointment of an agent or of an obligation to answer queries from the Trustee’s agent, constitutes an “abuse of process”.

21.     The evidence upon which the Applicant relies for this claim is, briefly, as follows:

·     He had never received a letter or a phone call from the Trustee advising him of an obligation to respond to the Trustee’s agent or that he had appointed an agent.

·     He had only received a request from a third party – of which he was not aware of this person’s qualifications.

·     The Applicant had spent $3,767.05 in legal costs in good faith to have a s 73 report placed before creditors within 30 days of being made bankrupt.

·     There was negligence on behalf of the Trustee in that there was no letter of authority advising him that this firm of P A Lucas & Co had been appointed as the Trustee’s agent.

·     The Trustee lodged the objection 46 days before he was due to be released from the bankruptcy.

· He says therefore that the Trustee has not objected to anything, or in other words that his objection is a legal nullity. He claims therefore that he has a ground to have the action under the Bankruptcy Act set aside.

·     The Respondent points to the signature block on the letter from the Trustee’s agent and that the letter is clear on its face that the letter comes from the agent of the Trustee.

22.     In response to questions both from the Respondent and the Tribunal, Mr Matheson stated that he had provided information to P A Lucas & Co voluntarily.

23.     The issue here is whether there is an “abuse of process” as claimed by the Applicant.  While the use of that term by the Applicant may be somewhat misplaced, it might be more appropriate to refer to the claim as a claim of an abuse of power.  Such a claim would be either to consider a matter on its merits or for failing to take account of a relevant consideration or taking account of an irrelevant consideration[3].  Also, as was recently confirmed by the High Court of Australia in Puttick v Tenon Limited[4], that where an abuse of process exists, a court is empowered to order a stay or to dismiss proceedings where they are “… oppressive, vexatious or an abuse of process” and that “the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case”[5].

[3] See further Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1.

[4] [2008] HCA 54.

[5] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 cited in Puttick v Tenon Limited [2008] HCA 54 at [29].

24.     The evidence in this case shows that Mr Matheson gave information to the Trustee’s agents voluntarily and therefore effectively acquiesced in the request for information.  While Mr Matheson was self-represented, he demonstrated he was an intelligent man and indicated he had been a businessman for over 30 years conducting an earth moving business.  He seemed informed and confident in challenging many issues throughout the course of the hearing and therefore it is not accepted that he was at any disadvantage dealing with the Trustee’s agents and that it is unlikely he would not have challenged it if he so felt.  In any event, he was legally represented for some of that period and could well have satisfied himself about the legal position had he required clarification.  I am therefore not persuaded that the lack of advice directly from the Trustee to Mr Matheson was an abuse of process but seems to be merely the Trustee taking a step in the ordinary course of conducting his statutory duties.  In any event, the discretion which the Trustee has and his obligations seem unrestricted statutorily.  Therefore the manner, in which the Trustee conducted his inquiries, seems also unrestricted, subject to other legal requirements.

25.     Equally, I have considered the Applicant’s submissions concerning the objection being lodged 46 days prior to his due date of release. In light of ongoing correspondence, requests and demands by the Trustee for over 12 months, and the warning to the Applicant of the consequences for failing to comply with the Trustee’s demands, I am unpersuaded by the Applicant’s submissions.  

26.     I therefore find that there is no basis for this ground as submitted by the Applicant.

Issue 2 - Is the objection based on at least one “special ground”?

27. Section 149N(1A)(a) provides that an objection must not be cancelled under s 149N where the objection specifies at least one “special ground”. A “special ground” is defined by reference to the various provisions in s 149D(1). Paragraph (d) of that subsection refers to a ground of objection which may be set out in a notice of objection that “the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request”.

28. Putting aside at present the issue of whether there is sufficient evidence for establishing a “special ground”, this issue is based on whether the Notice of Objection issued by the Trustee contains a “special ground”. Certainly, the Respondent has pointed to evidence of an alleged failure which falls within the definition of a “special ground”. A number of letters were issued to Mr Matheson. He has given evidence about his responses to these requests. As a result, I am satisfied that this condition, as the basis of the decision to object to Mr Matheson’s release from bankruptcy, refers to one of the statutorily defined causes ie. s 149D(1)(d). Therefore, this issue is satisfied in favour of the Respondent.

Issue 3 – Is there sufficient evidence to support the existence of at least one “special ground”; ie. did Mr Matheson fail, when requested in writing by the trustee, to provide information about his property, income and expected income?

29.     The evidence provided by the Applicant and the Respondent has been set out above.  This critical issue must be assessed in relation to the eight factors contained in the letter of 2 March 2007.  Each of these are considered seriatim below:

(a)This refers to documents relating to the sum of $81,037.79, which the Applicant claimed was owed to him (Question 31 of the Statement of Affairs).  The Applicant said his accountants would prepare the information but the Trustee required him to provide documentation with respect to this debt.  He stated in evidence that there was a copy of an agreement between Allen Services Pty Ltd (in liquidation) and Mr Matheson.  The request stated that if no written agreement was in place then he should advise the Trustee accordingly.  In oral evidence, Mr Matheson said he had not searched for such an agreement.  However, he did indicate he had a copy of the document but had not provided it as requested.  Therefore, he has not satisfied this request.

(b)He was requested to provide all documents relating to a debt of $14,400 (Question 40 of his Statement of Affairs).  The Applicant claimed this amount was owed to the 345B Trading Trust, and was to provide documents, including trust account ledger details and supporting documentation to justify his claim.

Mr Matheson stated in oral evidence that he had provided no other information in relation to this matter as the Insolvency Trustee Services Australia had advised him that his file would be handed to the new trustee.  The burden of proof is on Mr Matheson to show that he satisfied this requirement. From the paucity of evidence he provided, I could not be satisfied that he had satisfied this request.  I therefore regard that request as not being satisfied by Mr Matheson.

(c)He was required to provide the current balance of his superannuation account which was understood to be $10,000 (as per Question 27 of Statement of Affairs).  The Applicant’s oral evidence was that he did not provide a copy of anything.  However, his qualified remark was that he had supplied information earlier but did not provide it in answer to the letter from the Trustee.  His answer (and demeanour) in oral evidence implied an unwillingness to be co-operative with the Trustee, at least in respect of the information sought.  I regard the evidence as showing that Mr Matheson has not satisfied this request.

(d)He was required to provide documentation in relation to the debt claimed to be owed to the Matheson Family Trust trading as Tractor Rentals (Question 48 of the Statement of Affairs).  The Applicant’s evidence was merely that he had already provided this information to Worrells but went no further.  I regard this request as being not satisfied.

(e)There was a requirement to provide income tax returns and Notices of Assessment for the financial years ending 30 June 2004, 30 June 2005 and 30 June 2006 (Question 44 of his Statement of Affairs).  In evidence, he stated that he had not provided these because they had not been lodged.  This was true from the time of the creation of the trust.  In respect of other returns which had not been prepared, the Applicant stated he had included this information in the 50 pages of documentation which he had provided earlier.  On the basis of this evidence, I would regard the Applicant as having satisfied this request. While it could be said that he has not completely satisfied the request, it was as adequate a response as Mr Matheson could provide to the Trustee. 

(f)Details of the purchase and sale of the property at Kunda Park were to be provided.  The Applicant stated that he had copies of sale documentation but he simply did not provide this to the Trustee.  On the basis of his responses in evidence, I regard this item of information as being not satisfied.

(g)The Applicant was required to provide all bank books and statements, income tax returns, and Notices of Assessment for the Applicant and for all Trusts for three years prior to bankruptcy.  Mr Matheson stated that he provided some documents but did not provide all of the documents requested.  Therefore, this aspect is not satisfied.

(h)He was required to provide details of and original statements (bank statements) to substantiate payments made to the 345B Trading Trust in relation to the Hire Agreement for a 1998 Toyota Hilux.  The Applicant admitted he did not provide this documentation.  This request is therefore also not satisfied.

30. On the basis of the evidence presented, I find that there is sufficient evidence to support the existence of at least one “special ground” specified in the objection as required by s 149N(1A)(b), and therefore, on that basis, the Inspector-General must not cancel the objection.

Issue Four – Did Mr Matheson have a reasonable excuse for the conduct or failure that constituted the “special ground” s 149N(1A)(c)?

31.     The Applicant’s evidence is that the preparation of the taxation returns and the financial statements were beyond his control and required his accountants to complete these.  No evidence was offered as to why these were not completed over quite a lengthy period even though an imperative existed that the Trustee required certain information from Mr Matheson to be able to complete the administration of Mr Matheson’s estate.  Nevertheless, he is entitled to the benefit of any doubt in this regard, and there was no evidence of Mr Matheson’s failure to provide information to his accountants.  In that respect, Mr Matheson has a reasonable excuse. 

32.     He also relies on the fact that he had a previous bankruptcy which was finalised in the course of the current bankruptcy and despite an objection being lodged to his discharge in that previous bankruptcy, the objection by the Trustee in that earlier case was ultimately withdrawn.  No evidence was offered in relation to any facts or circumstances surrounding the previous bankruptcy. The assessment of the circumstances in that case in comparison to the present bankruptcy therefore cannot be properly assessed.  I might add however that I have not taken into account the fact of the previous bankruptcy as being a relevant factor in the assessment of any of the other issues in the present bankruptcy.

33.     While Mr Matheson may have a reasonable excuse for failure to produce the financial statements, that is not the only special ground upon which the Trustee (and the Inspector-General in Bankruptcy) relies in the decision to extend the period of the bankruptcy in this case.  The other matters about which the Trustee sought information from Mr Matheson in his letter of 2 March 2007 have been analysed in the previous issue and have been found to be not satisfied by Mr Matheson.

34.     In determining whether a reasonable excuse has been provided by the Applicant in respect of those other matters, it has been previously regarded as a matter of strict liability to satisfy the Trustee’s demands[6]. In Re De La Hunty and Inspector-General in Bankruptcy[7], a case involving a knowledgeable businessman, who had not been warned of the consequences of failing to comply with the trustee’s demands, was nevertheless held to not have a reasonable excuse for the purposes of the statutory provision. 

[6] Re Woodman and Inspector-General in Bankruptcy [1996] AATA 115.

[7] [2006] AATA 610.

35.     In the present case, I am satisfied that in respect of Question 40 of the Statement of Affairs concerning the provision of books and records, it was not intentional to disrupt the flow of information although he had an obligation to assist.

36.     However, in respect of the other information sought, the evidence of the Applicant shows that he knew information was available yet did not seek to find information in respect of a number of the matters sought by the Trustee.  Consequently that information exhibits an intention to hinder the Trustee’s administration at least passively and in some respects. I am satisfied this was done intentionally.  His attitude and demeanour as a witness confirmed that intention.  In addition, Mr Matheson was warned of the consequences of not providing the information.  He was warned in the letter of 22 January 2007 and was again reminded in the Trustee’s letter of 28 March 2007.  In the Trustee’s letter of 5 June 2007, the Trustee strongly urged the Applicant to reconsider the Trustee’s letter of 2 March 2007 and to provide the information as soon as possible.  A further demand was then made on 13 August 2007 indicating that if the demands were not met, that the Trustee intended to object to the Applicant’s release from bankruptcy.  On 7 April 2008, the Trustee advised the Applicant that he had then objected to the Applicant’s release from bankruptcy.  In other words, there was a period of eight months between January 2007 and August 2007 when the Applicant was repeatedly reminded of his obligations.  A further 10 months elapsed between the warning in August 2007 and the final objection being taken by the Trustee. I find the Trustee has satisfied his legal obligations but Mr Matheson did not provide all information which he was obliged to make available to the Trustee.

37. I have taken account of the factual basis and all the circumstances relevant to Mr Matheson’s case and I determine in accordance with s 149Q of the Bankruptcy Act, that Mr Matheson does not have a reasonable excuse for not providing the information requested in the letter of 2 March 2007 (other than tax returns and financial statements for which I have already found there is a reasonable excuse). Therefore, he does not, in all of the circumstances, have a reasonable excuse for his conduct or failure to comply with this special ground.

38.     As a consequence, the decision under review is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD Senior Member

Signed: .................[Sgd]..........................................................
              Michael Buckingham, Associate

Date of Hearing  20 November 2008
Date of Decision  23 December 2008
The Applicant was self-represented
Solicitor for the Respondent     Mr P Fenton, Australian Government Solicitor