Federal Court of Australia

Bertram v Naudi [2026] FCAFC 40

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Costs are reserved pending publication of the Full Court’s reasons.

3.    Time within which to seek special leave to appeal does not commence to run until orders disposing of the question of costs (including, if appropriate, an order that there be no order as to costs) are made.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1    On 19 March 2026, we heard an appeal from an order made by a single judge of this court dismissing an application made by the appellant, a discharged bankrupt, pursuant to s 90-15 of sch 2, Insolvency Practice Schedule (Bankruptcy) of the Bankruptcy Act 1966 (Cth) (s 90-15), seeking an order that certain income contribution assessments made by the respondent, the trustee of his bankrupt estate, be set aside because they were “invalid, void and of no effect”.

2    The primary judge rejected a contention advanced by the trustee that this court has no jurisdiction to hear such an application. We concluded after the hearing of the appeal that the learned primary judge erred in doing so; made an order dismissing the appeal; and said that we would give our reasons later. These are those reasons.

3    Division 4B of Pt VI of the Bankruptcy Act requires bankrupts who derive income during their bankruptcy to pay contributions towards their estate (s 139J(a)). A bankrupt must pay these contributions if the income they derive during a “contribution assessment period” (or CAP) exceeds a threshold amount calculated under the Act (the “actual income threshold amount”) (ss 139K, 139P(1), 139Q(1), 139S). Each contribution assessment period lasts for one year, beginning on the date of the bankruptcy’s commencement, and then every anniversary thereafter (s 139K).

4    As soon as practicable after the commencement of each contribution assessment period, the trustee of the estate is to make an assessment of: the income that was derived, or is likely to be derived, during that period; the actual income threshold amount; and the contribution (if any) that the bankrupt is liable to pay in respect of that period (s 139W(1)).

5    Mr Bertram was made bankrupt on 16 December 2017. He was discharged from his bankruptcy on 23 December 2020.

6    In March 2021, the trustee issued three notices of income contribution assessment for periods during the course of Mr Bertram’s bankruptcy. Those assessments related to legal services that were provided to Mr Bertram, but paid for by a corporate entity controlled by his brother.

7    One contention advanced by the trustee before the primary judge, and pressed on appeal, was that the provisions of Div 4B of Pt VI of the Bankruptcy Act, which require decisions made by trustees to make assessments of the income that a bankrupt (including a discharged bankrupt) was likely to have derived or had derived during relevant periods to be reviewed first by the Inspector-General in Bankruptcy (the Inspector-General) and then by the Administrative Appeals Tribunal, constituted a code. And that s 90-15 did not permit a bankrupt dissatisfied with such an assessment to do an “end run” around that regime, and bring a proceeding directly in this court seeking to set aside the assessment.

8    The trustee also brought a cross-claim before the primary judge, claiming an entitlement to the sum of $178,401.76 based on a certificate issued to Mr Bertram on 18 March 2021, pursuant to s 139ZG of the Act, which reflected the total of the amounts of the unpaid CAP assessments.

9    The trustee agreed during the course of his cross-examination before the primary judge that the sum in the certificate was overstated, because it included an exempted benefit under s 136(1) as varied by cl 23 of sch 2 to the Bankruptcy Regulations 2021 (Cth), and that after making allowance for that benefit, the amount of the debt in fact due was $162,968.34.

10    The primary judge held that the trustee was entitled to judgment for that amount, together with pre-judgment interest, and made an order accordingly. He was correct to do so, and we did not disturb the order that his Honour made to that effect.

The bankrupt’s applications

The application to the Inspector-General

11    On 17 May 2021, Mr Bertram’s solicitors made a request for the purposes of s 139ZA(3) of the Bankruptcy Act for review of the decisions of the trustee to make the three relevant income contribution assessments (referred to as CAP 1, CAP 2 and CAP 3).

12    The request was in these terms:

Dear Inspector- General

Regulated Estate of David Morton Bertram, a former bankrupt: Written request under s139ZA (3) of the Bankruptcy Act 1966

We act for David Morton Bertram, who was discharged from bankruptcy on 24 December 2020.

The former trustee of the former bankrupt estate of Mr D M Bertram, Mr Robert William Naudi, gave notice on 18 March 2021 of a purported assessment for each of the years ended 15 December 2018 ('CAP 1'), 15 December 2019 ('CAP 2'), and 15 December 2020 ('CAP 3'). We attach a copy of the email purporting to give that written assessment.

Mr Bertram contends that each and all of the purported assessments is invalid and liable to [be] quashed by the Court. An application seeking, inter alia, that relief has been filed in the Federal Court of Australia this day, 17 March 2021. We attach a copy of that application together with a copy of the affidavit of Hamish John Gillis also dated 17 May 2021 which has been filed in support of the application.

With a full reservation of rights on behalf of Mr David Morton Bertram, and on the basis that the primary relief sought by Mr David Morton Bertram is that sought in the Federal Court of Australia, please treat this email, to the extent it may become necessary, as a request for the purposes of s 139ZA(3) of the Bankruptcy Act 1966 for a review of the decisions of the former trustee, Mr Naudi, to make an assessment in respect of each of CAP 1, CAP 2 and CAP 3.

Please confirm receipt of this email and let us know if you require anything further.

13    Mr Bertram’s solicitor deposed in an affidavit admitted into evidence before the primary judge that “[n]o response to that email, or any further communication, has been received from the Inspector-General”.

The Federal Court application

14    Also on 17 May 2021, the solicitors for Mr Bertram caused to be issued in this court a proceeding seeking to have each of the CAPs set aside on the grounds that they were invalid, void and of no effect pursuant to s 90-15. There was no relief claimed that the quantum of the assessed income in any of the CAP 1, CAP 2 or CAP 3 be varied.

The hearing before the primary judge

15    The proceeding was heard by the primary judge over two days in June 2022, and over a further seven days in May and June of 2023. His Honour delivered judgment on 25 October 2024. This appeal was commenced on 22 November 2024.

The reasons of the primary judge on the jurisdictional issue

16    In relation to the request made by Mr Bertram of the Inspector-General, the primary judge said this:

Internal review available

[33]    An internal review by the Inspector-General pursuant to s 139ZA of the Act was available to the applicant.

[34]    Section 139ZA provides for an administrative review by the Inspector-General in Bankruptcy of a trustee’s decision to make a CAP assessment. That right may be exercised either on the Inspector-General’s own initiative or upon request by a bankrupt, subject to the Inspector-General considering the reasons advanced by the bankrupt being sufficient to justify such a review. The Inspector-General’s review is itself subject to review by the Administrative Appeals Tribunal: s 139ZF.

[35]    The applicant contended further that these proceedings were brought by him because it was considered that any application for a review by the Inspector-General pursuant to s 139ZA would not resolve the question of the validity of the CAP assessments but assume their validity. It is not clear why that would be so.

[36]    In any event, on 17 May 2021, Mr Cudmore [Mr Bertram’s solicitor] sent an email to the Inspector-General advising that an application had been made to this Court on 17 March 2021 seeking relief and to the extent necessary, the email should be treated as a request for the purposes of s 139ZA(3) for a review of the decisions of Mr Naudi in making the CAP assessments.

17    His Honour then said (at [36]) that “[n]o response to the email had been received from the Inspector-General and no party submitted that anything of consequence arose from that exchange”.

18    The parties overlooked, and did not direct his Honour’s attention to, the fact that by operation of s 139ZE(6) of the Bankruptcy Act, precisely because there was no response to the s 139ZA(3) request for review, the Inspector-General was deemed as at 17 July 2021 to have both reviewed and confirmed the trustee’s decisions the subject of the 17 May 2021 request. So the decision of the Inspector-General not to respond to the request made of him was very much of consequence.

19    Having observed that there is no doubt that this court may review a decision of the Tribunal reviewing a decision of the Inspector-General following a review under s 139ZA pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), and having set out the terms of s 90-15 of sch 2 (which replaced s 178 and was in similar terms to it), his Honour observed as follows:

[40]    In Re Ellis, ex parte Jefferson and Stevenson [1995] FCA 81, Drummond J left open the question of whether under s 178 of the Act, the Court could review an income contribution assessment by a trustee. In an observation which is obiter, his Honour considered that as:

[A]n appeal lies to the Federal Court, on questions of law only, from the AAT under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth); it is therefore unlikely that, having enacted Div 4 B, the Legislature intended that there would co-exist with the power to review a trustee’s decision with respect to a contribution assessment vested in the Inspector-General and the AAT, power in the Court to review the trustees decision under s 178 on both fact and law.

[41]    With the greatest of respect to Drummond J, subsequent decisions of the Court are at odds with his Honour’s observations, and I am unable to agree with his Honour’s obiter observation.

20    His Honour then referred to a series of cases which repeated the undoubted proposition that s 90-15 confers very broad powers on this court. His Honour referred to what Deane J said in Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 at 186, namely that “[o]nce the matter is properly before the court, the court is, by the express words of s 178 empowered … to make such order in the matter as it thinks just and equitable”. See also to the same effect the other cases referred to by the primary judge at [42], [44] and [45]: Kelly (as joint and several liquidators of Halifax Investment Services Pty Ltd (in liq)) v LOO (No 8) [2020] FCA 533 at [51]; Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of Salim Mehajer [2020] FCA 924 at [21]; Re Dingle; Westpac Banking Corporation v Worrell (1993) 47 FCR 478, 485; Tinkler v Melluish [2017] FCA 52 at [18]-[22]; Miao v Michell [2015] FCA 22 at [31]; and Moore v Macks [2007] FCA 10 at [28].

21     Having referred to those cases his Honour concluded:

[46]    An application to the Court without utilising the mechanism of a review by the Inspector-General (and the AAT on an application for review from the Inspector-General’s review), is a matter which may be taken into account in the exercise of the discretion.

[47]    I am satisfied that the Court has jurisdiction to review the Trustee’s decision to issue CAP 1, 2 and 3 and that the Court in the exercise of its discretion under s 90-15 may make such orders as it considers just and equitable.

The application under s 90-15 should have been dismissed for want of jurisdiction

22    The learned primary judge erred in rejecting the contention advanced by the trustee that this court has no jurisdiction to review an income contribution assessment by a trustee pursuant to s 90-15, and should have dismissed the application in limine.

23    The cases cited by the primary judge at [42]-[45] are, with respect, beside the point because they do not address, and therefore do not answer, the question whether the court has jurisdiction to embark upon the exercise of the discretions conferred by s 90-15.

24    As we will explain, there are a host of textual reasons why Div 4B of the Bankruptcy Act constitutes a code applicable to review of assessment decisions. In short, the obiter view expressed by Drummond J in Re Ellis, ex parte Jefferson and Stevenson [1995] FCA 81 to that effect, with which the primary judge disagreed, is correct.

25    As Deane J said in Re Tyndall, the court is by the express words of s 178 (now s 90-15) empowered, among other things, to make such an order in the matter as it thinks just and equitable “once the matter is properly before the court” – and here, it was not properly before the court because the power to review the trustee’s decision with respect to the contribution assessments vested in the Inspector-General and the Tribunal.

26    We now turn to set out in more detail the relevant statutory provisions in the Bankruptcy Act.

The legislation

27    The role of the Inspector-General is described in s 11 and his functions are set out in s 12 of the Act. Relevantly, ss 11(1) and (2) provide:

11 Inspector-General in Bankruptcy

(1) For the purposes of this Act, there shall be an Inspector-General in Bankruptcy.

(2) The Inspector-General has:

(a) the general administration of this Act; and

(b) the other powers and other functions conferred or imposed on him or her by this Act.

28    Sections 12(1)(b)(i) and (ba)(i) provide:

12 Functions of Inspector-General

(1) The Inspector-General:

…

(b)    may make such inquiries and investigations as the Inspector-General thinks fit with respect to the administration of, or the conduct of a trustee (including a controlling trustee) in relation to:

(i) a bankruptcy; or

…

(ba)    may make such inquiries and investigations as the Inspector-General thinks fit with respect to so much of the conduct and examinable affairs of:

(i) a bankrupt; …

29    Division 4B of Pt VI is headed “Contribution by bankrupt and recovery of property”. The objects of the division are set out at ss 139J(a) and (b) and are “to require a bankrupt who derives income during the bankruptcy to pay contributions towards the bankrupt’s estate”; and “to enable the recovery of certain money and property for the benefit of the bankrupt’s estate”.

30    Section 139L contains a definition of “income” in relation to a bankrupt and includes “the value of a benefit that is provided in any circumstances by any person (the provider) to the bankrupt” (s 139L(1)(a)(v)(A)).

31    Subdivision D is headed “Liability of a bankrupt to pay contributions”.

32    Section 139P provides:

139P Liability of bankrupt to pay contribution

(1)     Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.

(2)     Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that period.

33    Section 139R provides that liability is not affected by any subsequent discharge from bankruptcy.

34    Section 139U compels a bankrupt no later than 21 days after the end of a CAP to provide particulars of his or her income. The penalty for failure is imprisonment for (up to) six months.

35    Subdivision F is headed “Assessment of income and contribution”. Section 139W provides:

139W Assessment of bankrupt’s income and contribution

(1)    As soon as practicable after the start of each contribution assessment period in relation to a bankrupt, the trustee is to make an assessment of the income that is likely to be derived, or was derived, by the bankrupt during that period, of the actual income threshold amount that is applicable in relation to the bankrupt when the assessment is made and of the contribution (if any) that the bankrupt is liable to pay in respect of that period under section 139S.

(2)    If at any time, whether during or after a contribution assessment period, any one or more of the following paragraphs applies or apply:

(a)    the trustee is satisfied that the income that is likely to be derived, or was derived, by the bankrupt during that period is or was greater or less than the amount of that income as assessed by the last preceding assessment in respect of that period;

(b)    the base income threshold amount increased or decreased after the making of the last preceding assessment in respect of that period and before the end of that period;

(c)    the trustee is satisfied that the number of the bankrupt’s dependants increased or decreased after the making of the last preceding assessment and before the end of that period;

the trustee is to make a fresh assessment of the income that is likely to be derived, or was derived, by the bankrupt during that period, of the actual income threshold amount that is applicable in relation to the bankrupt when the assessment is made and of the contribution (if any) that the bankrupt is liable to pay in respect of that period.

(3)    The powers of the trustee under subsection (2) may be exercised on the trustee’s own initiative or at the bankrupt’s request, but the trustee is not required to consider whether to exercise those powers at the bankrupt’s request unless the bankrupt satisfies the trustee that there are reasonable grounds for the trustee to do so.

(4)    As soon as practicable after the making of an assessment the trustee must give to the bankrupt written notice setting out particulars of the assessment and informing the bankrupt about the possibility of a variation under section 139T.

36    Section 139X provides:

139X Basis of assessments

(1)     In making an assessment of the income that is likely to be derived, or was derived, by a bankrupt during a contribution assessment period the trustee may have regard to any information provided by the bankrupt or any other information in the trustee’s possession.

(2)     If the trustee considers that any information provided by the bankrupt is or may be incorrect, the trustee may disregard that information and may make an assessment on the basis of what the trustee considers to be the correct information.

37    Subdivision G is entitled “Review of assessment”. Section 139ZA makes provisions for internal review of assessments, and provides:

(1)    The Inspector-General may review a decision of a trustee to make an assessment:

(a)    on the Inspector-General’s own initiative; or

(b)    if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review.

(2)    The Inspector-General must review such a decision if requested to do so by the Ombudsman.

(3)    A request by the bankrupt to the Inspector-General for the review of such a decision must:

(a)    be in writing and given to the Inspector-General not later than 60 days after the day on which the bankrupt is notified of the trustee’s assessment; and

(b)    be accompanied by:

(i)    a copy of the notice of assessment; and

(ii)    any documents on which the bankrupt relies in support of the request.

(4)     [Repealed]

(5)    Within 60 days after the request is received, the Inspector-General must:

(a)     decide whether to review the decision; and

(b)     if the Inspector-General decides to review the decision--make his or her decision on the review.

38    Section 139ZD is headed “Decision on review” and provides that on a review of a decision, the Inspector-General has all the powers of the trustee and may either: (a) confirm the decision; or (b) set aside the decision and make a fresh assessment under s 139W(2).

39    Section 139ZE deals with notification of a decision by the Inspector-General and provides:

139ZE Inspector-General to notify bankrupt and trustee of decision

(1)    If the Inspector-General:

(a)    reviews a decision; or

(b)    refuses a request by a bankrupt for a review of a decision;

the Inspector-General must give written notice, to the bankrupt and the trustee, of the Inspector-General’s decision on the review or on the request, as the case may be.

(2)    The notice must:

(a)    set out the decision; and

(b)    refer to the evidence or other material on which the decision was based; and

(c)    give the reasons for the decision.

(3)    In the case of a decision reviewing the trustee’s decision to make an assessment, the notice must also include a statement to the effect that, if the bankrupt or the trustee, is dissatisfied with the Inspector-General’s decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision.

(4)    In the case of a decision refusing a request to review the trustee’s decision to make an assessment, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General’s decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision.

(5)    A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision.

(6)    If, within 60 days after lodgment of a request by a bankrupt for the review of the trustee’s decision to make an assessment, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the trustee’s decision and confirmed it under paragraph 139ZD(a).

(7)    If the Inspector-General makes a fresh assessment, the Inspector-General must, as soon as practicable, give to the bankrupt written notice setting out particulars of the fresh assessment.

(8)    This Division, apart from this Subdivision, applies to an assessment made by the Inspector-General as if it had been made by the trustee under subsection 139W(2).

40    Section 139ZF provided that an application may be made to the Administrative Appeals Tribunal as follows:

139ZF Review of assessment decisions

An application may be made to the Administrative Appeals Tribunal for the review of:

(a)    a decision of the Inspector-General on the review of a decision by a trustee to make an assessment; or

(b)    a decision by the Inspector-General refusing a request to review a decision by a trustee to make an assessment.

41    Nowadays, such applications are, of course, made to the Administrative Review Tribunal and s 139ZF has since been amended accordingly.

42    Subdivision H is headed “When contribution payable”. Section 139ZG provided:

139ZG Payment of contribution

(1)    Subject to subsection 139ZI(3), a contribution that a person is liable to pay under subsection 139P(1) or 139Q(1) is payable at such time as the trustee determines or, if the trustee permits the contribution to be paid by instalments, at such times and in such amounts as the trustee determines.

(2)    The liability of a person to pay a contribution under subsection 139P(1) or 139Q(1) is not affected by:

(a)    the making of an application by the person to the trustee under subsection 139T(1); or     

(b)    the making by the person of a request to the Inspector General for a review of the decision of the trustee to make the assessment that gave rise to the liability; or     

(c)    the making of an application to the Administrative Appeals Tribunal for review of the decision of the Inspector General.

(3)    The total of any contributions or instalments that are not paid by the bankrupt is recoverable by the trustee as a debt due to the estate of the bankrupt.

(4)    The trustee may, in connection with proceedings to recover the debt:

(a)    sign a certificate setting out the nature and the amount of the debt; and

(b)    file the certificate in the court in which the proceedings have been instituted.

(5)    In such proceedings, the certificate is prima facie evidence of the existence of the debt and the amount of the debt.

43    For reasons that will be explained below, it is also relevant, for the purposes of understanding how the relevant provisions of Div 4B are properly to be construed, to have regard to some of the provisions contained in Subdiv HA, dealing with the separate issue of supervised accounts.

44    The objects of the “supervised account regime” set out in Subdiv HA are to improve the likelihood that a bankrupt will have sufficient money to pay contributions or instalments of contributions; to ensure that all monetary income received by the bankrupt is deposited to a single account (the supervised account); and to enable the trustee to supervise withdrawals from the account (s 139ZIA).

45    Section 139ZIN provides that “[t]he powers conferred on the Court under this Subdivision [Subdivision HA] are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise”.

46    Section 139ZIO is headed “Inspector-General may review trustee’s decision” and provides:

Reviewable decisions     

(1)    The Inspector General may review a reviewable decision:

(a)    on the Inspector General’s own initiative; or     

(b)    if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify doing so.

(2)    Subject to subsection (2A), the Inspector General must review a reviewable decision if requested to do so by the Ombudsman.

Interaction with Insolvency Practice Rules     

(2A)    The Inspector General may refuse to review a reviewable decision if the Court is exercising powers, under section 45-1, 90-5, 90-10 or 90-15 of Schedule 2, in relation to the decision.

(2B)    If:

(a)    the Inspector General is reviewing a reviewable decision; and     

(b)    the Court begins to exercise powers, under section 45-1, 90-5, 90-10 or 90-15 of Schedule 2, in relation to the decision;

the period referred to in subsection (5) of this section is extended by one day for each day during the period:

(c)    beginning when the Court begins to exercise powers as referred to in paragraph (b); and     

(d)    ending when the Court ceases to exercise those powers.

47    We turn now to the relevant provisions of sch 2, pt 3, div 90, upon which the primary judge relied in deciding that the court had jurisdiction to hear the application.

90‑15 Court may make orders in relation to estate administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate.

Orders on own initiative or on application

(2)    The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90‑20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the administration of the estate;

(b)    an order that a person cease to be the trustee of the estate;

(c)    an order that another person be appointed as the trustee of the estate;

(d)    an order in relation to the costs of an action (including court action) taken by the trustee of the estate or another person in relation to the administration of the estate;

(e)    an order in relation to any loss that the estate has sustained because of a breach of duty by the trustee;

(f)    an order in relation to remuneration, including an order requiring a person to repay to the estate of a regulated debtor, or the creditors of a regulated debtor, remuneration paid to the person as trustee.

Matters that may be taken into account

(4)    Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a)    whether the trustee has faithfully performed, or is faithfully performing, the trustee’s duties; and

(b)    whether an action or failure to act by the trustee is in compliance with this Act and the Insolvency Practice Rules; and

(c)    whether an action or failure to act by the trustee is in compliance with an order of the Court; and

(d)    whether the regulated debtor’s estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and

(e)    the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group.

Costs orders

(5)    Without limiting subsection (1), an order mentioned in paragraph (3)(d) in relation to the costs of an action may include an order that:

(a)    the trustee or another person is personally liable for some or all of those costs; and

(b)    the trustee or another person is not entitled to be reimbursed by the regulated debtor’s estate or creditors in relation to some or all of those costs.

Orders to make good loss sustained because of a breach of duty

(6)    Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that:

(a)    the trustee is personally liable to make good some or all of the loss; and

(b)    the trustee is not entitled to be reimbursed by the regulated debtor’s estate or creditors in relation to the amount made good.

Section does not limit Court’s powers

(7)    This section does not limit the Court’s powers under any other provision of this Act, or under any other law.

48    As the primary judge observed in his reasons at [39], s 90-15 of sch 2 replaced s 178 of the Act, which was a provision permitting the bankrupt, a creditor, or any other person affected by an act, omission or decision of a trustee to apply to the court, and the court to make such order in the matter as it thinks just and equitable. Accordingly, the scope of the power of s 90-15 is similar to the repealed s 178. See Frost v Sheahan [2009] FCAFC 20 at [8] (Ryan, Mansfield and Jagot JJ). As his Honour also observed, the decisions under the former s 178 are thus applicable to applications to review decisions under s 90-15.

49    Section 30 of the Bankruptcy Act makes provision for “General powers of Courts in bankruptcy”, as follows:

(1)    The Court:

(a)    has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and     

(b)    may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

(2)    The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.

(3)    If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action.

(4)     [Repealed]

(5)    Where:

(a)    a bankrupt, a debtor or any other person has failed to comply with an order or direction of a Registrar, or with a direction or requirement of an Official Receiver or trustee, under this Act; or     

(b)    a trustee has failed to comply with an order, direction or requirement of a Registrar, or with a requirement or request of the Inspector-General, under this Act;

the Court may, on the application of the Registrar, Official Receiver, trustee or Inspector-General, as the case requires:

(c)    order the person who has failed to comply with the order, direction, requirement or request, as the case may be, to comply with it; or     

(d)    if it thinks fit, make an immediate order for the committal to prison of that person.

(6)    The power conferred on the Court by subsection (5) is in addition to, and not in substitution for, any other right or remedy in respect of the failure to comply with the order, direction, requirement or request, as the case may be.

Consideration

50    As Gavan Duffy CJ and Dixon J said in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

51    Along similar lines, in R v Wallis (1949) 78 CLR 529 at 550 Dixon J observed:

But upon some matters the [Conciliation and Arbitration] Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done .should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd. v. Ward (1868) L.R. 3 Ex. 172, at p. 177 , Willes J. refers to “the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined.”

52    More recently, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 588-589 [57]-[59], Gummow and Hayne JJ summarised the relevant cases as follows:

[57]    Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 turned upon the powers of the Australian Film Development Corporation to make loans. Section 20 of the Australian Film Development Corporation Act 1970 (Cth) provided that the functions of the Corporation were to “encourage the making of Australian films and to encourage the distribution of Australian films both within and outside Australia”. Section 21(1)(a) of that Act provided that “without limiting the generality of the foregoing” the Corporation had power to make loans “to producers of Australian films”. The Corporation lent money to a borrower which was not a producer of Australian films “to assist in the production” of an Australian film. Mason J referred to Anthony Hordern and held that, but for the presence of the words “without limiting the generality of the foregoing” in s 21(1), the restrictions in that specific power to make loans would qualify the general power in s 20 ((1979) 141 CLR 672 at 678-680). However the presence of those words meant it was proper to regard s 21 as setting out particular examples of the general power in s 20. Again, the issue was one of construction of the two provisions in question.

[58]    Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 concerned the power of Victorian Conciliation and Arbitration Boards to refer certain matters to the Industrial Relations Commission. Section 44(4) of the Industrial Relations Act 1979 (Vic) provided that a Board seized of an “industrial dispute” might apply to the President for an order referring “the matter of the dispute” to the Commission for hearing and determination. However s 44(7) provided that, in respect of matters referred by the Board, the Commission was to have all the powers of the Board under s 34. That section included certain restrictions of a privative nature affecting the way in which questions in an industrial dispute concerning unfair dismissal could be determined. Section 37(8) of the Act empowered the Board to apply to the President for an order referring any “matter” before it to the Commission for hearing and determination. Although the meaning of industrial matter was broader than that of “industrial dispute”, there was no provision analogous to s 44(7) applicable in the case of referrals under s 37(8). Dawson J considered that s 44(4) excluded the more general s 37(8) where the industrial dispute concerned whether a dismissal was harsh, unjust or unreasonable ((1991) 172 CLR 167 at 180, 182-183). This was because, based upon a detailed consideration of the statutory history, it was proper to infer that the Commission was not intended to exercise a jurisdiction free from the limitations that would have been imposed upon the Board in determining a dispute of that kind.

[59]    Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power” (Anthony Hordern at 7), or are with respect to the same subject matter (R v Wallis at 550), or whether the general power encroaches upon the subject matter exhaustively governed by the special power (Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469). However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

(Citations omitted).

53    As the trustee submitted, there is a comprehensive and detailed regime in Subdiv G of Div 4B of the Bankruptcy Act for review of the trustee’s decision to make an assessment of the income derived by the bankrupt during a contribution assessment period, which evinces a legislative intention to cover the field. In other words, as a matter of statutory construction, the general power in s 90-15 does not extend to the regulation of those matters that are addressed by way of the specific provisions in Subdiv G of Div 4B of the Act.

54    As those specific provisions set out above make pellucidly clear, Parliament made detailed provision for review of a trustee’s assessment decision in Div 4B which are fundamentally inconsistent with the notion that a bankrupt, or a discharged bankrupt, would have untrammelled access in this court to challenge the trustee’s assessments on factual and legal grounds, rather than the limited review on questions of law provided for by s 44 of the (then) Administrative Appeals Act.

55    First, the Inspector-General may review a decision of a trustee to make an assessment on his own initiative, or if requested to do so by the bankrupt for reasons that appear to him to be sufficient to justify such a review (s 139ZA(1)).

56    Secondly, when a request is made by a bankrupt to conduct a review, the Inspector-General must, within 60 days after receiving the request decide whether to review the decision and if he decides to review it, make the decision on the review (s 139ZA(5)).

57    There are thus two separate decisions – a decision to review the trustee’s decision (s 139ZA(5)(a)) and a decision on the review of the trustee’s decision. The latter only arises if there is an earlier decision made to conduct the review, or the deeming provision in s 139ZE(6) applies (s 139ZA(5)(b)). See Inspector-General in Bankruptcy v Rutherfurd (Bankrupt) (2023) 297 FCR 535 at 544 [37].

58    Thirdly, it is only upon a decision being made to review the decision under s 139ZA(5)(a) that a further decision is required to be made on the review under s 139ZA(5)(b). See Rutherfurd at 536-537 [12]. And where the Inspector-General receives a request from the bankrupt to review a decision of a trustee and refuses that request pursuant to s 139ZA(5)(a), the Inspector-General does not have the power to make a fresh assessment because such powers are only conferred when the Inspector-General has decided to conduct a review. See Rutherfurd at 543-544 [35].

59    The Full Court in Rutherfurd held that where the Tribunal is asked to review a decision by the Inspector-General refusing a request to review a decision by the trustee, that did not confer upon the Tribunal the power to make a fresh assessment. Parliament’s intention was that the character of the Inspector-General’s decision (a refusal to review, or a decision to review and determine to confirm or set aside and remake the trustee’s decision) determined the Tribunal’s powers on a review of that decision. See Rutherfurd at 544-545 [43] and 545 [45].

60    Critically, as the trustee submitted, “[t]hese detailed provisions would be entirely outflanked were s 90-15 to permit an inconsistent, and unconstrained, exercise of power by the Court”.

61    Fourthly, the Inspector-General may only review a decision of the trustee to make an assessment upon a request by the bankrupt “for reasons that appear to [him] to be sufficient to justify a review” (s 139ZA(1)(b)). That “legislative gateway” as counsel for the trustee accurately described it is obviously inconsistent with the type of review conducted by a court exercising powers under s 90-15 or s 30.

62    Fifthly, the time limit requirements provided for in Subdiv G have no role to play in court proceedings brought under those provisions, namely the obligation on the bankrupt to request a review not later than 60 days after he is notified of the trustee’s assessment (s 139ZA(3)(a)) and the Inspector-General’s obligation to make a decision whether to review and if so to review within 60 days (s 139ZA(5)).

63    Sixthly, the provisions set out above dealing with the supervised accounts regime stand in stark contrast to review of assessment provisions in Subdiv G. In those provisions, Parliament has directed its attention to how they might work in tandem with s 90-15 (among other provisions). As counsel for the trustee submitted, and we agree:

[C]ontextually, there is a clear contrast between the provisions pertaining to a review of an income assessment (Subdivision G of Division 4B) with those pertaining to reviewable decisions of the trustee concerning the supervised bank account regime (Subdivision HA of Division 4B). In the latter case, a “reviewable decision” as defined in s 139ZIB may be reviewed by the Inspector-General (s 139ZIO), but the interaction with 90-15 is expressly regulated. There, under s 139ZIO(2A) the Inspector-General may refuse to review a reviewable decision if the Court is exercising powers, under section 45-1, 90-5, 90-10 or 90-15 of Schedule 2, in relation to the decision. Further, under s 139ZIO(2B), if the Inspector-General is reviewing a “reviewable decision” and the Court begins to exercise powers, under section 45-1, 90-5, 90-10 or 90-15 of Schedule 2, in relation to the decision, the time within which the Inspector-General must make the decision under s 139ZIO(5) is extended commensurately. Thus, [P]arliament there expressly regulated what would have otherwise been the inconsistency between the administrative review and the Court review.

The absence of such provisions in Subdivision G of Division 4B militates in favour of a construction that eschews any co-existence between the alternative procedures.

64    Seventhly, as counsel for the trustee also submitted, purposively, there are good reasons to give primacy to the merits review by the Inspector-General, rather than the use of the court procedure under s 90-15, because it removes the cost burden upon a trustee from the need to defend their decisions, and makes the party to any review decisions a Commonwealth funded litigant, the Inspector-General. And the existence of a merits review, coupled with a further merits review in the Tribunal, reflect a legislative intention to remove lengthy fact intensive inquiries (of the type conducted by the primary judge) from the court.

65    Finally, it warrants emphasis in this case that because the Inspector-General did not respond to the 17 May 2021 request for review made under s 139ZA(3), he was deemed to have both reviewed and confirmed the trustee’s decision on 17 July 2021, by operation of s 139ZE(6) (“[i]f, within 60 days after lodgement of a request by a bankrupt for the review of the trustee’s decision to make an assessment, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the trustee’s decision and confirmed it under paragraph 139ZD(a)”). As counsel for the trustee submitted:

[T]hat the decision might be taken to be confirmed midstream while there’s otherwise the impugning of the decision in the court, a regime that would bespeak an inconsistency that Parliament wouldn’t likely have intended. But accepting for the moment that there might only be some cases where the bankrupt chooses to adopt not just the court process, but to also adopt the administrative process concurrently …

That style of coexistence could not be countenanced in an Anthony Hordern sense because of the very consequence that the decision is liable to be either confirmed or varied; in each instance, rendering the court process attaching to something that is no longer the relevant operative decision. So, in our respectful submission, it again points to the general not being available … where … there is the very meaningful prospect of inconsistency arising under the statutory regime from what the court does on the one hand and what the … Inspector-General does on the other hand.

That is, how is it, we ask rhetorically, that it could be contemplated that the court is midstream through a review of the trustee’s decision while at the same time it has been either varied …under 139ZDB, which is conferring on the Inspector-General the ability to make a fresh assessment in lieu of the trustee’s assessment, or, alternatively, having confirmed it, potentially on different materials because the Inspector-General is not confined to the materials before the trustee. And then one further step on, the Administrative Appeals Tribunal undertaking a full merits review is not confined to the materials before the trustee or the Inspector-General, but is entitled to a merits review on all the information available at the relevant date. That all bespeaks the artificiality of a coexistence contemplating the court engaging with a decision that is liable to be materially overtaken.

66    With respect, we entirely agree.

67    We have set out above the terms of s 30 of the Bankruptcy Act. It was common ground that s 30 did not add anything to the jurisdictional issue.

The cross-claim

68    As we said earlier, the primary judge found that the trustee was entitled on his cross-claim to judgment for the sum of $162,968.34, together with pre-judgment interest, and an order was made to that effect. As we noted at the conclusion of the hearing of the appeal, that order remains in effect, because it is an order for payment of a debt, unaffected by the jurisdictional issue.

69    Counsel for Mr Bertram faintly contended that the bringing of the counterclaim by the trustee in some fashion or another provided a “hook” for jurisdiction that would not otherwise exist. That claim was founded on the provisions contained in Subdiv H set out above, which provide that unpaid contributions are recoverable by the trustee as a debt due to the estate of the bankrupt and that a certificate signed by the trustee setting out the nature and amount of the debt filed in court is prima facie evidence of the debt and the amount of it (ss 139ZG(3) and (4)). But as we have already noted that claim is a separate and distinct one, and has nothing to do with the specific, codified provisions governing review of income assessments.

70    Counsel for Mr Bertram also submitted that the claim for the debt was flawed because of the concession made by the trustee that a slightly lesser sum was in fact owed, and that he was obliged to issue a fresh assessment pursuant to s 139ZD(b) reflecting the reduced sum, and a fresh certificate, and that his failure to do so was fatal to the debt claim. That proposition is untenable.

71    First, a certificate issued under s 139ZG is merely prima facie evidence of the amount owing, and it is not a mandatory requirement in a debt proceeding (“The trustee may sign and file …”).

72    Secondly, the concession made by the trustee meant that the actual evidence of the amount owing was the amount ordered by the primary judge to be paid. It is impossible to imagine that Parliament could have intended such an artificial approach as that propounded by counsel for Mr Bertram, which envisaged that the trial of the proceeding would be interrupted to enable the trustee to produce another piece of paper as mere prima facie proof of the amount owing. It is, quite apart from anything else, wholly inconsistent with long standing obligations of courts and litigants to conduct proceedings expeditiously.

73    Thirdly, counsel’s proposition is additionally untenable on the facts of this case because other than the amount by which the debt initially claimed was reduced, Mr Bertram did not seek to challenge how the amount claimed was made up or calculated. See the reasons of the primary judge at [237] (“[The] issue … [of] quantum … is not a matter the applicant puts in issue in this application”).

Disposition and costs

74    For those reasons, we dismissed the appeal at the conclusion of oral argument, and left extant the order of the primary judge that there be judgment on the trustee’s cross-claim in the amount of $162,968.34, plus pre-judgment interest to be calculated.

75    Counsel should now confer on the issue of costs, and if they are unable to agree, the parties have leave to file written submissions, not exceeding three pages, within 14 days. Any outstanding issue of costs will be dealt with on the papers.

Associate:

Dated:    9 April 2026