Rutherford (Bankrupt) v Inspector-General in Bankruptcy

Case [2022] FCA 1469


FEDERAL COURT OF AUSTRALIA

Rutherford (Bankrupt) v Inspector-General in Bankruptcy [2022] FCA 1469  

File numbers: QUD 109 of 2022
QUD 252 of 2022
Judgment of: LOGAN J
Date of judgment: 11 November 2022
Catchwords: BANKRUPTCY AND INSOLVENCY – Inspector-General in Bankruptcy’s power of review regarding decision of a trustee to make assessment of a bankrupt’s income and contribution under Pt VI, Div 4B, Subdiv G of the Bankruptcy Act 1966 (Cth) – power of Administrative Appeals Tribunal to review decision of Inspector-General under s 139ZF of the Bankruptcy Act 1966 (Cth) – where Inspector-General decides to refuse to review of a decision by a trustee to make an assessment – whether Tribunal may proceed to review decision by a trustee where the Tribunal upholds a review of the Inspector-General’s decision to refuse a request to review the trustee’s decision – where s 139ZF(a) and (b) of the Bankruptcy Act 1966 (Cth) are conjunctive – held: Tribunal has power under s 139ZF of the Bankruptcy Act 1966 (Cth) to decide for itself whether to conduct a review requested by a bankrupt, and, if so disposed to conduct a review, to do so
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43, 44

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Bankruptcy Act 1966 (Cth) ss 139W, 139ZA, 139ZC, 139ZD, 139ZE, 139ZF, Pt VI

Judiciary Act 1903 (Cth) s 39B

Veterans’ Entitlements Act 1986 (Cth)

Cases cited:

Director-General of Social Services v Chaney (1989) 47 FLR 80

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

MDXJ v Secretary, Department of Social Services [2019] FCA 2163

Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430

Re Gee v Director-General of Social Services (1981) 58 FLR 347

RF Brown & Co Limited v TJ Harrison (1927) 137 LT 549

Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Thiess v Collector of Customs (2014) 250 CLR 664

Victims Compensation Fund Corporation v Brown (2003) 77 ALR 1797

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 35
Date of hearing: 11 November 2022
Counsel for the Applicant: Mr SC Russell
Solicitor for the Applicant: Conrad Law
Counsel for the Respondent: Mr N Swan
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

QUD 109 of 2022
BETWEEN:

DAVID SAMUEL IVAN RUTHERFORD (A BANKRUPT)

Applicant

AND:

INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

11 NOVEMBER 2022

THE COURT ORDERS THAT:

1.As a consequence of the orders made in proceeding QUD 252 of 2022, this proceeding be dismissed, with costs as provided for in the orders of 11 November 2022 in proceeding QUD 252 of 2022.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

QUD 252 of 2022

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Details
AGLC
Rutherford (Bankrupt) v Inspector-General in Bankruptcy [2022] FCA 1469
Case
[2022] FCA 1469
Decision Date

CaseChat Overview and Summary

The case of Rutherford (Bankrupt) v Inspector-General in Bankruptcy involved a dispute between a bankrupt and the Inspector-General in Bankruptcy regarding the review of a decision made by a trustee. The matter was brought before the court by an application for judicial review of a decision made by the Inspector-General in Bankruptcy not to review a decision by the trustee to make an assessment of the bankrupt’s income and contribution under the Bankruptcy Act 1966 (Cth). The court was required to determine whether the Administrative Appeals Tribunal had the power to review the Inspector-General’s decision to refuse to review the trustee’s decision, and whether the Tribunal could proceed to review the trustee’s decision if it upheld a review of the Inspector-General’s decision.

The court held that the Administrative Appeals Tribunal had the power under section 139ZF of the Bankruptcy Act 1966 (Cth) to decide for itself whether to conduct a review of a decision by a trustee and, if so disposed, to do so. The court found that the words ‘may review’ in section 139ZF(a) and (b) of the Bankruptcy Act 1966 (Cth) are conjunctive, meaning that the Tribunal must consider both whether it is appropriate to review the decision and whether it is disposed to do so. The court found that the Inspector-General’s decision to refuse to review the trustee’s decision was not beyond the scope of the Tribunal’s review powers, and that the Tribunal could proceed to review the trustee’s decision if it was so disposed.

The court issued a writ of certiorari to bring the Inspector-General’s decision into the court and quash it, and a writ of mandamus to direct the Inspector-General to re-determine the decision according to law. The court also ordered that the first respondent pay the applicant’s costs in respect of the proceeding and in QUD109/2022, to be fixed in a lump-sum by a registrar if not agreed, save in respect of the costs of and incidental to the written submissions in respect of the competency of the appeal under section 44 of the Administrative Appeals Act 1975 (Cth).

Orders

Orders of the court

1. A writ of certiorari issue bringing the decision of the second respondent in proceeding 2021/0664 dated 8 March 2022 (Decision) into this Court and quashing it.

2. A writ of mandamus issue directing the second respondent to re-determine the Decision according to law.

3. The first respondent pay the applicant’s costs in respect of this proceeding and in QUD109/2022, to be fixed in a lump-sum by a registrar if not agreed, save in respect of the costs of and incidental to the written submissions in respect of the competency of the appeal under s 44 of the Administrative Appeals Act 1975 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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