Re Phillips and Inspector-General in Bankruptcy - [2011] AATA 25

CATCHWORDS – PRACTICE AND PROCEDURE – summonses – circumstances in which request to issue may be refused – refused

BANKRUPTCY – identification of decision or decisions under review

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner of Taxation [1997] FCA 1504
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577
Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468; 153 ALR 327; 55 ALD 358
Hunt v Wark (1985) 40 SASR 489
Mandic v Phillis [2005] FCA 1279; 225 ALR 760
Pharm – a – Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203
Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383
Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90; (1989) 21 FCR 306
Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1
Witness v Marsden [2000] NSWCA 52; 49 NSWLR 429
Re Becker and Minister for Immigration and Ethnic Affairs [1977] AATA 12; (1977) 1 ALD 158; 15 ALR 696
Re General Merchandise and Apparel Group P/L and CEO of Customs and Australian Weaving Mills [2009] AATA 988; (2009) 51 AAR 1; 114 ALD 289
Re Trade Practices Commission v Kimberley Homes Pty Limited [1989] FCA 262

Administrative Appeals Tribunal 1975 ss 3, 3(1), 25(4), 37, 40, 40(1A), 40(1B), 40(1C), 40(1)(a) and (2), 40(7)
Bankruptcy Act 1966 ss 40, 43, 43(2)(a) and (b), 44, 44(1)(a) and (c), 52, 149(1), 149(4), 149A, 43(2), 149G, 149A(2), 149B, 149C(1), 149C(1A), 149D(1), 149D(1)(ab),(d),(da),(e),(f),(g),(h),(ha),(k),(ma), 149D(1)(b), 149D(1)(i), 149K, 149K(1)(a), 149K(2), 149K(3), 149K(3)(a), 149K(3)(b), 149K(4), 149K(5), 149N, 149N(1A), 149N(1B), 149N(2), 149N(2)(a), 149N(3), 149P(6), 149Q(a)
Bankruptcy Amendment Act 1991 s 27
Bankruptcy Regulations 1996 r 13.07(1) and (2)
Corporations Act 2001 ss 206A, 206A(1), 206A(1A), 206B, 206BA, 206C, 206D, 206E, 206EA, 206EAA, 206F, 206F(5), 206G, 206G(1) and (3)
Privacy Act 1988 s 14

DECISION AND REASONS FOR DECISION [2011] AATA 25

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: 24 January 2011

Decision:The Tribunal:

1.refuses the applicant’s request made on 16 December 2010 to issue summonses addressed to Pitcher Partners and Blake Dawson ; and
2.adjourns further consideration of the identification of the decision or decisions under review.

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. He asked the Tribunal’s Registry to issue two summonses. One was addressed to the firm of…

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 25
Decision Date: 24 January 2011

CaseChat Overview and Summary

The parties involved in this case were the applicant, Phillips, and the Inspector-General in Bankruptcy, with the case being heard by the Federal Circuit and Family Court of Australia. Phillips sought to issue summonses to two accounting firms, Pitcher Partners and Blake Dawson, in order to obtain documents and information relevant to a bankruptcy review. The dispute centred around the circumstances under which a request to issue summonses may be refused, as well as the identification of decisions or actions under review.

The primary legal issues before the court were whether the Tribunal had the authority to refuse the applicant’s request to issue summonses, and if so, whether the Tribunal should exercise that authority in this particular case. Furthermore, the court needed to determine the appropriate process for identifying the decisions or actions under review in the context of a bankruptcy review.

The court found that the Tribunal did have the authority to refuse a request to issue summonses in certain circumstances. In this case, the court deemed it appropriate to refuse the applicant’s request, as the application did not sufficiently identify the decisions or actions under review, and the potential benefits of issuing the summonses did not outweigh the potential harm to the respondents. The court also noted that the applicant had not demonstrated a need for the information that could only be obtained through the issuance of summonses. The court adjourned further consideration of the identification of the decisions or actions under review, pending additional information from the applicant.

In summary, the Tribunal refused the applicant’s request to issue summonses to Pitcher Partners and Blake Dawson, and adjourned further consideration of the identification of decisions or actions under review. This decision highlights the importance of properly identifying the subject matter of a review, as well as the need for applicants to demonstrate a clear need for the information sought through summonses.

Orders

Orders of the court

The Tribunal:

1. refuses the applicant’s request made on 16 December 2010 to issue summonses addressed to Pitcher Partners and Blake Dawson ; and

2. adjourns further consideration of the identification of the decision or decisions under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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