Phillips v Inspector-General in Bankruptcy

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FEDERAL COURT OF AUSTRALIA

Phillips v Inspector‑General in Bankruptcy [2011] FCA 612

Citation: Phillips v Inspector‑General in Bankruptcy [2011] FCA 612
Appeal from: Phillips and Inspector‑General in Bankruptcy [2011] AATA 25
Parties: STEVE PHILLIPS v INSPECTOR-GENERAL IN BANKRUPTCY
File number: VID 120 of 2011
Judge: DODDS-STREETON J
Date of judgment: 3 June 2011
Catchwords: ADMINISTRATIVE LAW – application to strike out appeal for want of jurisdiction – Whether decision of Administrative Appeals Tribunal not to issue summonses is a decision susceptible to appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Whether appeal reveals a question of law – Whether appeal should be dismissed because no reasonable prospects of success
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 40(1A), 44(1)
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Federal Court Rules O 20 r 5
Cases cited:

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 cited
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Comcare v Etheridge (2006) 149 FCR 522 cited
Cosco Holdings Pty Ltd v Commissioner for Taxation (1997) 37 ATR 432 not followed
Director-General of Social Services v Chaney (1980) 3 ALD 161 cited
Geographical Indications Committee v The Honourable Justice O’Connor and Others (2000) 64 ALD 325 cited
Hoe v Manningham City Council [2011] VSC 37 cited
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 cited
Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 cited

Kowalski v Repatriation Commission (2009) 259 ALR 444 cited

Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 cited
TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 cited
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 referred to
Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 cited
Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241 cited
Date of hearing: 17 May 2011
Date of last submissions: 17 May 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 65
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Ms F Spencer of Blake Dawson

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 120 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

STEVE PHILLIPS
Applicant
AND:

INSPECTOR-GENERAL IN BANKRUPTCY
Respondent

JUDGE:

DODDS-STREETON J

DATE OF ORDER:

3 JUNE 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal made by notice of appeal dated 21 January 2011 be dismissed.

2.The appellant pay the respondent’s costs of and incidental to the notice of appeal dated 21 January 2011 and the notice of motion dated 10 March 2011 on a party/party basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID…

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Details
Case
[2011] FCA 612
Decision Date

CaseChat Overview and Summary

In the case of Phillips v Inspector-General in Bankruptcy, the applicant, Mr. Phillips, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) which had refused to issue summonses in the course of an ongoing review of his bankruptcy. The appeal raised numerous issues, primarily focusing on alleged conspiracies and undue pressure exerted by the Trustees and the Inspector-General’s Office. The central question before the court was whether the AAT’s decision not to issue summonses constituted a decision susceptible to appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), and if the appeal raised a question of law warranting further consideration.

The court examined the grounds of appeal, which included allegations of breaches of section 64ZBA of the Bankruptcy Act, undue pressure applied to Mr. Phillips, and claims regarding the funding of the Trustees. The court also considered the procedural context, including the issuance of summonses and the relevance of certain documents and affidavits. The court noted that the Tribunal had correctly interpreted its powers under section 40(1A) of the AAT Act, and that the power to issue a summons was confined to purposes directly related to the hearing of the case. The court found that the Tribunal had properly exercised its discretion, given that the summonses sought information beyond the scope of the pending review.

The court held that the appeal did not reveal a question of law that warranted further consideration. The court concluded that the appeal lacked reasonable prospects of success and dismissed it. The court ordered that the appeal be dismissed and that Mr. Phillips pay the costs of the appeal and the underlying motion on a party/party basis.

Orders

Orders of the court

1. The appeal made by notice of appeal dated 21 January 2011 be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the notice of appeal dated 21 January 2011 and the notice of motion dated 10 March 2011 on a party/party basis.

Note:

Background

Background to the litigation

The grounds of appeal are numerous, prolix and sometimes expressed in an argumentative or extravagant style. Shortly stated, they are as follows:a) The Inspector General’s Office conspiring with Mr. Yeo and Pitcher Partners (“Trustees”) Breached Section 64ZBA of the Act to obtain financial benefit and gain in addition to applying undue pressure to attempt to carry out another Oral Examination, via AAT…b) The Trustees have applied undue pressure to the Applicant who is an “Unemployed Cancer Sufferer and Survivor of Multiple Surgeries to Remove Cancer effected Organs”, in an attempt to obtain a financial benefit and gain to recover unauthorised and improper expenses they have breach of the Act…c) The Applicant should have been discharged from his bankruptcy on or about August / September 2009. The Applicant has been unemployed and on a Disability Pension since February / March 2009 (which is the Applicant’s only source of income).d) The Applicant has a right to know who is funding the Trustees in the light of the fact that the Creditors have rejected all requests for remuneration submitted after the event by the Trustees for remuneration as required under Section 64ZBA of the Act.e) The Trustees made admissions that they intend to make the Applicant liable for those remunerations improperly incurred by the Trustees, hence they have an ulterior motive in their Application to extend the Applicant’s bankruptcy, which is to apply undue pressure.f) Whilst the Applicant was being cross examined by the Respondent’s Solicitor Blake Dawson Lawyers (Ms Spencer), material was tabled that was not contained in the “T” Documents…g) The Inspector General’s Office tabled an Affidavit of Mr. Andrew Reginald Yeo sworn 31 May 2010. Mr Yeo states, in his affidavit, that documents exhibited were provided by Mr. Zygmunt Zayler (“Zayler”) in matters issued in the County Court by the Applicants former employer against Zayler, and his companies for money’s owed on or about March / April 2009 and the contracts were repudiated and it was premeditated to avoid payment and obtain financial benefit and gain as confirmed in Zayler’s own signed statement tabled to the Applicant…h) The summonses issued by the Applicant on 16 December 2010 may reveal further evidence in the matter before the AAT, which could be vital to the Applicant’s case.i) The Applicant would be prejudiced by being denied discovery of such documents.BACKGROUND The background to the notice of motion and appeal is as follows. On 28 August 2006, Riethmuller FM made a sequestration order against the estate of Mr Phillips under s 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) on being satisfied as to the matters specified in s 52 of the Act and the circumstances stated in s 44 of the Act. By s 149 of the Act, Mr Phillips would be discharged at the end of the three year period from the date on which he filed his statement of affairs, subject to s 149A of the Act, which provides for an extension (the length of which is governed by s 149A(2)) of the bankruptcy if an objection to discharge has taken effect in accordance with s 149G of the Act and has not been withdrawn or cancelled.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There was no evidence to contradict, and Mr Phillips did not dispute, Ms Spencer’s account of the above matters.Tribunal’s reasons for decision refusing to issue summonses The Tribunal referred to and discussed the power to issue a summons conferred by s 40(1A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), which relevantly states:Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:(a) to give evidence; or(b)to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or(c)to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons. The summons addressed to Pitcher Partners required it to:1.Provide copies of all records documents Banking details & Identify the party and/or parties funding Pitcher Partners [o]n going investigation into the affairs of Steve Phillips. 2.Provide copies of all records documents Banking details & identify the party and/or parties funding Pitcher Partners on going investigation into the affairs of Beijing Garden resort Pty Ltd.3Provide copies of all records documents Banking details & identify the…party and/or parties funding Pitcher Partners on going investigation into the affairs of Phoenix International Group Pty Ltd. The summons to Blake Dawson was in similar terms, but additionally required it to “[p]rovide copies of all records documents to and from Blake Dawson and Pitcher Partners and the Trustee”. The Tribunal observed that in Cosco Holdings Pty Ltd v Commissioner for Taxation (1997) 37 ATR 432 (“Cosco Holdings”), Spender J approved the Tribunal’s application of the principles governing the curial issue of subpoenas duces tecum to the production of documents under the AAT Act. The Tribunal noted that a summons was, like a subpoena, a tool used for the invasion of rights of a stranger, which should be used with great care and only for a statutorily authorised purpose. The Tribunal’s power to issue a summons at the request of a party under s 40(1A) of the AAT Act was specifically conferred “for the purposes of a hearing before the Tribunal” or for the purposes of a directions hearing or of an alternative dispute resolution process. The Tribunal concluded (at [10]) that in the case before it, the power to summons a person under s 40(1A) could be used only “for the purposes of listening to and coming to a decision on Mr Phillips’ application for review of the Inspector-General’s decision”. The Tribunal discussed the principles and authorities relevant to determining whether the statutory power to issue a summons was, in a particular case, being exercised “for the purposes of the hearing”. The Tribunal referred, in that context, to Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 (“Arnotts”). In Arnotts, Beaumont J recognised that in determining whether the issue of a subpoena would be used for a legitimate forensic purpose, the relevant inquiry was not limited to the true purpose of the party seeking to issue the subpoena, but extended to the apparent (adjectival) relevance of the material sought to the issues in the principal proceeding (viewed from the standpoint of the party seeking that the subpoena be issued), and whether the subpoena were (viewed from the standpoint of the addressee) seriously and unfairly burdensome and prejudicial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.