Re Ansett, R.G. v Ex parte Pattison, P.A.

[1994] FCA 998

because it is simply not practicable, in the sense of not

possible, to make them any earlier. The matter does appear a

complex one, and there has been delay awaiting the decision of

the AAT I see no reason on the material provided to conclude

that there is an arguable case that the trustee has, or will,

act perversely, or deliberately delay the assessments so as to

cause prejudice to the debtor.

As to para 3, sub-paras (a) to (e) inclusive really seem to involve a sterile inquiry as to why the trustee made certain decisions when those decisions have been the subject of a review and appeal process. The decisions have been reconsidered on their merits as the Act requires, and no useful purpose would, to my mind, be served by an inquiry as to why they were made in the first place. Paras 3(f) to (h) are concerned with the 1993 assessments and the, as yet unmade, 1994 and 1995 assessments. For the reasons already mentioned in relation to paragraphs 1 and 2, I do not think an inquiry into them is appropriate.

As to para 4, I think this is covered by what I have already said about the time the trustee has taken to make the existing amendments, or as to making the assessments for the 1994 period, which I note according to para 6 of the affidavit of the trustee's solicitor, M r Agardy, will be completed shortly. I treat that as a serious statement made on oath to the court, and I expect that promise will be kept.

As to para 5, it does seem to me that the .jurisdiction to make declarations conferred by S 178 is not necessarily excluded by specific administrative review provisions. The point was left open by the Full Court in McGoldrick v The Official Trustee

(unreported, Branson J, 9 September 1994) seems to proceed

implicitly on the assumption that the jurisdiction remains. I

do not think the decision relied on by the trustee n Moore v

(1993) 119 ALR 253 at 259. However, the decision in Re Hall, to a different conclusion. This is not a case where the plaintiff sues in two different courts for the same relief. That is so for a number of reasons. First, the debtor was not the moving party in the AAT appeal, and, secondly, the AAT, of course, is not a court and does not have the jurisdiction conferred by s 178. In particular, I was told that the application under para 5 is confined to an attack on the trustee's notice of objection to discharge made on grounds of formal invalidity. Relief of a declaratory nature could not be granted by the AAT, and therefore there will be no overlap.

I was told that the debtor did not intend to pursue in this Court the argument that the decision of the AAT in February 1994 reducing the initial assessment of itself made the notice of objection invalid. That is a matter that will be pursued in the AAT, as will the more general arguments on the merits applicable to administrative review.

So I will make orders striking out the paragraphs of the

application dated 3 November 1994, other than para 5.

I certify that this and the

preceding 3 (three) pages

are a true copy of the

reasons for judgment of his

Honour M r Justice Heerey.

ADDearances

Counsel for the official trustee: T Murphy

Solicitor for the official trustee: Cornwall Stodart

Counsel for the bankrupt:	W T Bigmore QC
Solicitor for the bankrupt:	Smith and Emmerton
Date of hearing:	30 November 1994