Pereira v Pattison - [2004] FMCA 916

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEREIRA v PATTISON

[2004] FMCA 916

BANKRUPTCY – Application pursuant to s.178 of the Bankruptcy Act – refusal to return passport.

Bankruptcy Act 1996, s.178

Re Wheeler; Ex parte Wheeler v House (1994) 54 FCR 166
Casella v Prentice [2002] FMCA 48

Applicant:

JUNE TERESA PEREIRA

Respondent:

PAUL ANTHONY PATTISON TRUSTEE IN BANKRUPTCY

File No:

MLG 1503 of 2004

Delivered on:

24 November 2004

Delivered at:

Melbourne

Hearing Date:

24 November 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr. M. Whittle

Solicitors for the Respondent:

Middletons Lawyers

ORDERS

The application be dismissed.
The applicant pay the respondent's costs including reserved costs, if any pursuant to order 62 of the Federal Court Rules to be paid out of the estate of the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1503 of 2004

JUNE TERESA PEREIRA

Applicant

and

PAUL ANTHONY PATTISON TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application by June Teresa Pereira (the Applicant) filed on 22 November 2004 which I take to be an application seeking to review a decision of the trustee pursuant to s.178 of the Bankruptcy Act 1966 (the Act) in relation to the refusal by the trustee to return the passport to the applicant for the purpose of travel.
The application simply states that the order sought is return of passport for travel to Kuala Lumpur to attend a wedding on Friday, 26 November 2004 urgent.
The matter was dealt with as an urgent application. It was first listed before this court on 23 November 2004 at 2.15 pm. On that day

I permitted the matter to be relisted again this day on the basis that the respondent was then directed to file and serve by midday today an affidavit in response.
The applicant relies upon an affidavit sworn by her on 22 November 2004 and the respondent in compliance with the directions made by the court on 23 November 2004 has filed and served an affidavit of Paul Anthony Pattison sworn 24 November 2004.
By way of background, it is noted that on 27 May 2004 a Registrar of this court made a Sequestration Order against the estate of the applicant and on 28 May 2004 Mr Pattison was appointed as the trustee of the applicant's estate. The respondent opposes the application before the Court.
In her affidavit in support the applicant relies upon correspondence which suggests that she had been invited to an old friend's son's wedding in Kuala Lumpur and indicates that as her airfare and accommodation is being paid for she would like to attend the occasion on 26 November. She notes in the letter dated 8 November 2004 to the respondent that,
“the RSVP was on 5 November and I was unable to do so until I was sure I could obtain my passport for travel”.
The letter otherwise refers to the intention to travel on what is described as an agent's airfare. I take that to mean in the circumstances a fare at a considerably reduced price to the fare that might otherwise be available to the travelling public. The letter to which I have referred which was annexed to the affidavit of the applicant and dated 8 November 2004 was the subject of a response from the trustee by letter dated 10 November 2004. It is that letter which constitutes the decision in this matter which is the subject of the application.
In his letter the respondent states:
“I have considered the information contained in your letter and I have decided that the purpose of his travel does not fall into the acceptable categories, being neither for compassionate reasons nor for your income earning. I therefore refuse the application to travel overseas.
In any event I am unable to grant permission for you to travel until you have filed your Statement of Affairs with the Official Receiver, which has not been done to date. In addition, I also require you to provide me with a copy of your Statement of Affairs that you file with the Official Receiver”.
The letter quite appropriately points out that pursuant to s.178 of the Act the applicant may appeal the decision to the court.
It needs to be remembered that the trustee acting in these circumstances has a duty to properly administer the estate of the bankrupt person and that includes taking into account the interests of all concerned parties including creditors. The provision of a statement of affairs is an essential ingredient and part of that process.
In the affidavit of Mr Pattison which is sworn this day he refers to the request for a statement of affairs and notes that it was ultimately provided after requests at or about the time when it was indicated that the passport would be refused if the statement of affairs was not provided. It has now, I am satisfied, been provided but only in recent times.
It is submitted on behalf of the respondent that in considering whether or not the court should make an order in favour of the applicant reviewing the decision under s.178 of the Bankruptcy Act I should have regard to the principles set out in the matter of Re Wheeler; Ex parte Wheeler v House (1994) 54 FCR 166 at 170 which I previously applied in Casella v Prentice [2002] FMCA 48. It is sufficient to note that in Re Wheeler the principle set out in that case is that the court should interfere with a trustee's exercise of discretion only if it was shown by the applicant that the impugned conduct of the trustee was incorrect or that other conduct was or would be preferable and that justice and equity require the court's intervention.
In my view, having regard to the affidavit material filed for and on behalf of the applicant, it is clear that there is a social benefit perceived by the applicant in undertaking a journey. It is noted that there are no particulars of the journey provided as no airfare has been booked and therefore there is no formal itinerary. However, it is asserted by the applicant that the purpose of the journey is to attend a wedding and to in part provide her with some degree of opportunity to recuperate from illnesses from which she is currently suffering and to otherwise provide her with an opportunity for relaxation. She intends, according to her submissions, to travel for a short period of time and to return within approximately five days and strenuously denies any suggestion that she may not return at all.
It is not necessary for me to consider whether or not the applicant intends to return or not, but for the present purposes I am prepared to accept that she has the current intention of returning to Australia. The more important issue is whether or not the declared purpose for travel is a purpose which would overcome the objections to the travel and the basis upon which the objections are made as set out in the affidavit of Mr Pattison.
In my view, applying the authority to which I have referred of Re Wheeler and having regard to the reasons for refusal, it seems to me that it is inappropriate in this case for the court to intervene in the matter or to otherwise review favourably for the applicant the decision made by the trustee. I am not satisfied on the material before me that justice and equity require the court's intervention. It is my conclusion that the purpose of the trip is a social purpose to attend a wedding of a friend. It further seems to me that realistically the trip would have in fact perhaps a secondary benefit which could otherwise be obtained by the applicant remaining in this country.
Given the statement of affairs has only been recently completed despite there being requests for it earlier in the year as far back as June 2004 and only filed on 23 November 2004, it is my view that in the circumstances applying the authorities to which I have referred

I should refuse the application.
Accordingly I make the following orders:
(1)The application be dismissed.
(2)The applicant pay the respondent's costs including reserved costs, if any pursuant to order 62 of the Federal Court Rules to be paid out of the estate of the applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 November 2004