Melsom v Forrest

CATCHWORDS

ADMINISTRATIVE LAW -judicial review - refusal of application to join trustees in

proceedings before Administrative Appeals Tribunal- reviewing decision of Inspector-

General confirming decision of trustees to file notices of objection to discharge from bankruptcy - trial judge held that refusal of joinder not unreasonable, not founded on failure to consider relevant considerations and not involve an error oflaw - whether refusal of joinder unreasonable - whether refusal founded on failure to consider relevant considerations - whether refusal involved error of law in failure to evaluate relevant factors.

Administrative Appeals Tribunal Act (Cth) s30(1A), s30(1)(b), s44(2)

Administrative Decisions (Judicial Review) Act 1977 (Cth), s5, s10(2)

Bankruptcy Act 1966 (Cth) sll, sl2, s5 1, s149D, s149K, s149P, sl49Q

Rules of the Federal Court of Australia 0 20 rl, 0 45 r7

No: WG 76 of 1996

BETWEEN:

PETER MICHAEL MELSOM and STANLEY FREDERICK ROBSON Appellants

-and-

DEPUTY PRESIDENT B M FORREST

First Respondent

MARIE SPINELLY and JACQUES SPINELLY

Second Respondents

BLACK CJ, LEE and CARR JJ

PERTH

17 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA

) )

WESTERN AUSTRALIA DISTRICT REGISTRY

)	No. WG 76 of 1996

)

GENERAL DIVISION

)

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PETER MICHAEL MELSOM and

STANLEY FREDERICK ROBSON

Appellants

DEPUTY PRESIDENT B M FORREST

First Respondent

MARIE SPINELL Y

and

JACQUES SPINELLY

Second Respondents

CORAM	BLACK CJ, LEE and CARR JJ
PLACE	PERTH
DATE	17 OCTOBER 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed, with costs.

Note:

Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

WESTERN AUSTRALIA DISTRICT REGISTRY

)	No. WG 76 of 1996

)

GENERAL DIVISION

)

ON APPEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF AUSTRALIA

BE TWEEN:

PETER MICHAEL MELSOM and STANLEY

FREDERICK ROBSON

Appellants

-and-

DEPUTY PRESIDENT B M FORREST

First Respondent

MARIE SPINELLY and

JACQUES SPINELLY

Second Respondents

CORAM	BLACK CJ, LEE and CARR JJ
PLACE	PERTH
DATE	17 OCTOBER 1996

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a decision of a judge of this Court, R D Nicholson J, given on 23 May 1996, dismissing the appellants' application for an order of review under s5 of the Administrative

Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). The appellants are the joint trustees of

the bankrupt estates of the second respondents.

They sought review of a decision made by the first

respondent, Deputy President B M Forrest, on 13 September 1995 in his capacity as a Deputy President to the Administrative Appeals Tribunal ("the Tribunal"), to refuse the appellants' application under s30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") to

be joined as parties to certain proceedings then and now pending before the Tribunal. These proceedings were an application by the second respondents for review of decisions made by the

Inspector-General in Bankruptcy ("the Inspector-General") on review of the appellants' decision, made under s149B of the Bankruptcy Act 1966 (Cth), to object to the second respondents' discharge from bankruptcy.

The second respondents became bankrupt on 29 April 1991. Had it not been for the trustees'

decision to object to their discharge, they would have been, by force of s 149 of the Bankruptcy Act, discharged from barikruptcy automatically in accordance with that section. That would have

happened at the end of 3 years from the date upon which they filed their statements of affairs, or

from 1 July 1992, whichever was the later: see Bankruptcy Act sl49(3). However, on 29 April

1994, the appellants lodged objections to their discharge from bankruptcy. The grounds of

objection were those provided for by s149D(l)(d) and (g) respectively of the Bankruptcy Act.	In
summary, the grounds of objection were:

1. Each bankrupt, when requested in wntmg by the trustees to provide written information about his or her property, failed to comply with that request; and

2. That at the time during the period of 5 years before the commencement of the bankruptcy, or during the bankruptcy, each bankrupt had spent money but failed to explain adequately to the trustees the purpose for which the money was spent, or had disposed of property but failed to explain adequately to the trustees why no money was received as a result of the disposal or what the bankrupt did with the money received as a result of the disposal.

In respect of each of the second respondents the grounds of objection related to moneys which, in civil proceedings in the Supreme Court of Western Australia, it had been held that money had been

stolen by the female second respondent, some of which had been used to the benefit of the male second respondent. The judgment creditor in the civil proceedings was a Mr Lord who had employed the female second respondent, who (so the Supreme Court found) stole the moneys in the course of her employment. One week after the judgments were delivered in those proceedings,

both the second respondents presented petitions to become bankrupt.

Mr Lord is the main creditor

of each

respondent.

On 22 June 1994 each of the second respondents exercised their rights under sl49K of the

Bankruptcy Act to request the Inspector-General to review the appellants' decision to file the

notices of objection. The Inspector-General decided to review those decisions (in the circumstances of this matter s 149K provided him with a discretion in that regard, that is to say whether to review: see s149K(5)) and on 1 August 1994 he published his decision following that

review. In relation to the female second respondent, the Inspector -General confirmed the

appellants' decision to object to her discharge from bankruptcy. In relation to the male second respondent, the Inspector-General confirmed the appellants' decision on one of the grounds but cancelled the objection on the other ground. It is not necessary, for the purposes of these reasons, to be more particular in that regard.

On 31 August 1994 the second respondents applied to the Tribunal, under s 149Q(b) of the Bankruptcy Act, for a review of the Inspector-General's decisions. The Inspector-General, being

the person who made the decisions, thereby automatically became a party to the proceeding before

the Tribunal. -see AAT Act s30(1B).

On 4 April 1995 the trustees, through their solicitors, applied under s30(1A) of the AAT Act to be

made parties to those proceedings. That application was initially dismissed as a result of the lack of any appearance on their behalf but it was reinstated and heard by the first respondent, Deputy President B M Forrest, on 13 September 1995.

The second respondents opposed the appellants' application to be made parties to the proceedings

before the Tribunal. They were represented by counsel when that application was heard by the

Tribunal.

The appellants were also represented by counsel (via telephone) and had, through their

solicitors, made extensive written submissions. The first respondent heard the matter on the morning of 13 September 1995 and delivered his decision that afternoon. The Deputy President found that the appellants were persons whose interests were affected by the Inspector-General's

decision and accordingly satisfied what the Tribunal described as the first "limb" of s30(1A). The

Deputy President then turned to the second limb, that is to say the question whether in the exercise

of his discretion he should make such an order. The Deputy President exercised his discretion

against making such an order and there is a transcript of his oral reasons.

On 24 October 1995 the appellants applied to this Court under the ADJR Act for review of the

Tribunal's decision not to order that they be made parties to the proceedings before the Tribunal.

In summary, the grounds of that application were unreasonableness, failure to take into account

relevant considerations and error of law in failing to evaluate and weigh the relevant factors and to explain why the factors against joinder prevailed. The learned trial judge found that none of the grounds were made out and dismissed the application.

Essentially the same grounds were raised in argument before us today.

An objection was lodged to

the competency of the proceeding and the jurisdiction of the Court to hear the matter but was not

pressed before his Honour or before this Court.

In his able and succinct argument, Mr G J O'Hara for the appellants first submitted that the decision

of the Tribunal was unreasonable and should have been set aside on that ground. It was put that

given the appellants' real interest in the outcome of the proceedings, the antecedents of the second

respondents and their failure to accept the findings in the judgments given against them, the decision to exclude the appellants as parties was unreasonable unless there were grounds that

clearly made joinder inappropriate and he submitted there were no such grounds.

The difficulty with this submission, however, is that, in this case, it is really only another way of

arguing that the Tribunal came to the wrong conclusion. To make out the ground relied upon the appellants must of course go so far as to persuade the Court that the power, in this case a discretionary power, has been exercised in a way that was so unreasonable that no reasonable

person could have exercised the power in that way: see ADJR Act s5(1)(e) and s5(2)(g). The

learned primary judge was quite correct in concluding that no such case had been made out.

Moreover, the Court should be particularly reluctant to come to a conclusion that a discretionary

decision was of that character when the decision in question is one concerning the practice and

procedure of the Tribunal. Questions of practice and procedure are questions peculiarly for the

judgment of the members of the Tribunal to be exercised in the light of their own special

knowledge of the Tribunal and of its work.

It was further submitted on behalf of the appellants that the Tribunal erred in failing to give

consideration to a risk that if the trustees were not joined as parties they would be denied an opportunity to appeal to this Court under s44 of the AAT Act if the Tribunal made a decision which had the effect of cancelling the objections lodged by the trustees to the discharge of the second respondents from their bankruptcies.

It is not obvious that the Tribunal did fail to consider that matter.

The written and oral submissions

of the appellants to the Tribunal addressed that question. The reasons of the Tribunal did not refer

to the weight given to that matter but such an omission provides no reason to conclude that the

Tribunal, comprised as it was by an experienced Deputy President, overlooked it. It was not an

overwhelming consideration likely to outweigh other relevant considerations and thereby

demanding the exposition of its treatment in any reasons provided.

the decision of the Inspector-General, which

confirmed the conduct of the trustees, were set

aside by the decision of the Tribunal, and the objections to the discharge of the respondents cancelled, the Inspector -General has the right to appeal to this Court against that decision on a question of law. If the trustees considered that there were compelling reasons to initiate such an

appeal that advice could be submitted to the Inspector-General for consideration.

It was in the discretion of the Tribunal to determine whether this aspect deserved particular weight

and no error can be shown in the exercise of that discretion in this case by pointing to a failure by the Tribunal to refer to it in short reasons given on an interlocutory application to a tribunal

directed by statute to conduct its proceedings with as little fonnality and technicality and with as

much expedition as the relevant requirements permit.

Next, the appellants complained that the Tribunal, when it referred to the likelihood that joining them as parties would increase costs, failed to weigh that factor against the injustice of the appellants if they were joined. When dealing with this point, however, the Deputy President

expressly took into account the appellants' interests and other relevant interests.	The following
passage appears in the transcript of the Deputy President's reasons:

"It seems to me to be inevitable that the joinder of the trustees, notwithstanding their interest in the proceedings. would increase the cost to the parties. Apart from cost considerations, there is also in my view a public interest factor. A raison d'etre

of the Tribunal is provide a forum for reviewing decisions as expeditiously as

reasonably possible, and without the burden of cost orders except in limited

circumstances."

(Emphasis added)

We do not think that this reasoning discloses the error, alleged by the appellants, of failing to weigh

the question of costs against the other matters.

The appellants complain that the Tribunal erred (and that the learned trial judge should have so held) in the assumption that the Inspector -General would participate fully in the review process. On this question the Deputy President said:

"Objectively, to my mind, there is nothing before me to indicate, nor has it been my experience in other matters, that the Inspector-General will do other than participate fully in the review process before the Tribunal. In that sense, there is commonality of interest with the Trustees in relation to the decisions under review."

Mr O'Hara described the Inspector -General as having acted as an umpire and submitted that there

was no provision for him or her to become an advocate. He contrasted that role with the role of the trustees and in particular the trustees' obligations to the creditors. We accept that there may not be total commonality of interest as between the Inspector-General and the trustees of this matter. We agree, however, with the assessment made by the learned primary judge in his reasons for judgment. His Honour referred to the power, including the power to require co-operation from

the trustees, and the functions conferred on the Inspector-General by the Bankruptcy Act and the

responsibilities which that Act places upon the Inspector-General. All of this must be set in the context of trustees here who are anxious to marshall and place before the Tribunal all evidence which they contend justifies the continuation of the second respondents' bankruptcies. In our view, the Deputy President did not err in the assumption which he expressed in the passage set out above. Nor in our view did he err in the context of the particular circumstances of this matter in the

assessment that, in the sense mentioned, namely that of participating fully in the review process,

there was commonality of interest between the Inspector-General and the trustees.

We should mention that this appeal was conducted in a somewhat unusual way as a consequence of

an injury suffered by Mrs Spinelly, who appeared on her own behalf and on behalf of the other

respondent, Jacques Spinelly. With her consent the hearing of the appeal was conducted in open court but with her submissions being made via an open telephone line with the equipment arranged

in such a way that she was able to hear what was said in Court, including of course the appellants'

submissions, and she was able to make her own submissions orally. She also made written

submissions.

It follows that the appeal should be dismissed and the ordinary order as to costs should follow. The

order of the Court therefore is the appeal be dismissed with costs.

I certify that this and the 8 preceding pages are a true copy of the reasons for judgment of the Court.

·, l:f)

Associate f -u ~~,~---

~: 17 O'Jf{~r 1996

Counsel for the Appellants	MrGJO'Hara
Solicitors for the Appellants	Kott Gunning
For the Second Respondents	Ms Marie Spinelly
Hearing Date	17 October 1996

[1996] FCA 1209

17 Oct 1996