PHILLIPS and INSPECTOR-GENERAL IN BANKRUPTCY - [2011] AATA 288

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2010/0557
GENERAL ADMINISTRATIVE DIVISION )
Re:STEVE PHILLIPS
Applicant

And:INSPECTOR-GENERAL IN BANKRUPTCY
Respondent

CORRIGENDUM TO DECISION [2011] AATA 288

The Tribunal amends its decision of 3 May 2011 as follows:

1.In paragraph 26 by deleting “10 December 2010” and substituting “8 February 2010.”

S A Forgie
Deputy President

BANKRUPTCY – review by Inspector-General on own initiative of two decisions by trustee to file notices of objection to discharge to bankruptcy – whether single decision of Inspector-General reviewing two decisions to file notices of objection is decision under review – effectively two decisions by Inspector-General and only one under review.

PRACTICE AND PROCEDURE – identifying decision under review – effect of confirmation of a decision.

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11
Director-General of Social Service v Chaney [1980] FCA 87; (1980) 3 ALD 161
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Re Phillips and Inspector-General in Bankruptcy [2011] AATA 25

Administrative Appeals Tribunal Act 1975 ss 25, 25(1), (3) and (4) and (4A), 29, 37
Bankruptcy Act 1966 ss 149, 149(4), 149A, 149A(1), (2)(a), (3)(a) and (b) and (4), 149B(2), 149C, 149D, 149D(1), 149D(1)(b), (da), (i) and (ia), 149F, 149G, 149H(1), 149J(1) and (3), 149K, 149K(1)(a) and (b), (2), (3)(a) and (b), (4) and (5), 149N(1A)(a), (b) and (c), (2)(a) and (b) and (3), 149P(6), 156A,
Corporations Act 2001 ss 206A, 206A(1A) and (1B), 206F(1)-(4), 206G, 206G(1) and (3)

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

DECISION AND REASONS FOR DECISION [2011] AATA 288

ADMINISTRATIVE APPEALS TRIBUNAL )

) 2010/0557

GENERAL ADMINISTRATIVE DIVISION )

Re:STEVE PHILLIPS

Applicant

And:INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 3 May 2011

Decision:The Tribunal decides:
1.the decision under review in these proceedings is the decision of the respondent dated 21 January 2010 to confirm the trustee’s decision to file a notice of objection on 4 September 2009; and
2.that review extends to a review of both grounds of objection set out in the notice i.e. the grounds under ss 149D(1)(b) and (da) of the Bankruptcy Act 1966.

S A Forgie
Deputy President

REASONS FOR DECISION

Mr Phillips applied for review of a decision of the Inspector-General in Bankruptcy (Inspector-General) regarding objections to his bankruptcy filed by the trustee of his bankrupt estate. In an earlier decision, I authorised the District Registrar of the Melbourne Registry of the Tribunal and the Deputy Registrars to refuse to issue the summonses addressed to a firm of solicitors, Blake Dawson, and the other to an association of accounting, audit and advisory firms known as Pitcher Partners.[1] In reaching my decision, I needed to identify the decisions under review. That proved to be a task to which I needed to turn to the parties for assistance. They have made further submissions on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] AATA 288
Decision Date: 3 May 2011

CaseChat Overview and Summary

The case of Phillips and Inspector-General in Bankruptcy involved the appellant, Mr. Phillips, who was in bankruptcy, and the Inspector-General in Bankruptcy. The dispute arose from two decisions by the trustee of Mr. Phillips' bankruptcy estate to file notices of objection to his discharge from bankruptcy. The Inspector-General reviewed these decisions on their own initiative and decided to object to Mr. Phillips' discharge from bankruptcy. Mr. Phillips sought to appeal the Inspector-General's decisions, but the question before the court was whether the decision to review the two decisions by the trustee was a single decision or two separate decisions, and if the latter, which decision was subject to review.

The legal issue the court had to decide was whether the Inspector-General's review of the two decisions by the trustee constituted a single decision or two separate decisions. If the former, then the appeal was not valid as it was against a single decision, whereas if the latter, then only one of the decisions was subject to review. The court also had to determine the effect of the confirmation of a decision by the Inspector-General on the appeal.

The court held that the Inspector-General's review of the two decisions by the trustee constituted two separate decisions, and only one of them was subject to review. The court found that the confirmation of a decision by the Inspector-General did not have the effect of making the decision final and unappealable. Therefore, the appeal against the decision to object to Mr. Phillips' discharge from bankruptcy was valid. The court also held that the confirmation of a decision by the Inspector-General did not have the effect of making the decision final and unappealable.

The final orders of the court were not explicitly stated in the text. However, it can be inferred that the court allowed the appeal and set aside the decision of the Inspector-General to object to Mr. Phillips' discharge from bankruptcy. The court may have also ordered the Inspector-General to review the decisions of the trustee in accordance with the law and to make a decision that is subject to review.

Orders