FEDERAL COURT OF AUSTRALIA

Combe v Inspector General in Bankruptcy [2005] FCA 1101

BANKRUPTCY – Decision by trustee not to withdraw notice of opposition to discharge from bankruptcy – appeal from the Administrative Appeals Tribunal – special ground under s 149D Bankruptcy Act 1996 (Cth) – no reasonable excuse – ‘questions of law’ – applies principles in Birdseye v Australian Securities and Investments Commission (2003) FCAFC 232; 76 ALD 321– whether the entitlement to legal representation under s 81(7) Bankruptcy Act 1996 (Cth) applies to Pt VII, Div 2B, Div 2CBankruptcy Act 1996 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 10

Bankruptcy Act 1966 (Cth) ss 77, 81(7), 149, 149A, 149B, 149D, 149K, 149J, 149N, 153A, 153B, 178

Federal Court Rules Order 53

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Australian Telecommunications Corporations v Lambroglou (1990) 12 AAR 515 applied

Birdseye v Australian Securities and Investments Commission (2003) FCAFC 232; 76 ALD 321 applied

Combe v Pascoe (2004) FCA 725 referred to

Duncan v Fayle (2004) 138 FCR 510 applied

Peczalski v Comcare (1999) FCA 366; 85 ALD 697 referred to

Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 referred to

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 referred to

TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1998) 82 ALR 175 applied

FAYE DIANE COMBE v INSPECTOR GENERAL IN BANKRUPTCY

NSD65 OF 2005

BENNETT J

11 AUGUST 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 13 December 2004 affirming the decision of the respondent (‘the Inspector-General’) to confirm a notice of objection to the discharge from bankruptcy of the applicant (‘Ms Combe’).  The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), which provides for an appeal on a question of law from a decision of the Tribunal.

Factual Background

2                     Ms Combe was made bankrupt on a sequestration order issued under the Bankruptcy Act 1966 (Cth) (‘the Act’) on 15 October 2002.  Mr Scott Pascoe, a registered trustee in bankruptcy (‘the trustee’), was appointed the trustee of the bankrupt estate. 

3                     In the normal course, Ms Combe would be discharged from bankruptcy on 14 November 2005.  However, in October 2003, the trustee filed three objections to discharge.  The effect of such notice of objection is to extend the period of bankruptcy, in this case to 14 November 2010.  One of these objections (‘the notice’) was filed on 23 October 2003.  The grounds in the notice were that Ms Combe failed to provide information to the trustee pursuant to s 149D(1)(d) of the Act.  The trustee contended that, when requested in writing by him to provide written information about her property, Ms Combe failed to comply with the request.

4                     On 9 December 2003, Ms Combe applied to the Inspector-General pursuant to s 149K(1)(b) of the Act for a review of the trustee’s decision to file the three notices of objection.  The Inspector-General confirmed the notice and cancelled the two other objections, which are not now relevant.  On 22 March 2004 Ms Combe applied to the Tribunal under s 149Q(b) of the Act to review the Inspector-General’s decision in respect of the notice.

5                     On 13 December 2004 the Tribunal affirmed the Inspector-General’s decision.

The relevant legislative scheme

6                     Section 149 of the Act provides that the bankrupt is, by force of that section, discharged from bankruptcy at the end of a period of three years from the date on which the bankrupt filed his or her statement of affairs.  Section 149 is read subject to the filing of an objection to discharge by the trustee pursuant to s 149B.  Section 149B provides that a trustee must file a notice of objection if the trustee believes that doing so will help make the bankrupt discharge a duty and that there is no other way for the trustee to induce the bankrupt to do so.  A bankrupt’s duties are listed under s 77 of the Act.  Relevantly, these include:

‘(1)      A bankrupt shall, unless excused by the trustee or prevented by illness or other sufficient cause:

            …

(ba)      give such information about any of the bankrupt’s conduct and examinable affairs as the trustee requires; and

…

(g)   aid to the utmost of his or her power in the administration of his or her estate.’

7                     Section 149A(1) provides that a bankruptcy will be extended when an objection to discharge is filed by the trustee, ‘unless the objection is withdrawn or cancelled’.

8                     Section 149D sets out the grounds of objection that may be taken, which include that set out, in s 149D(1)(d):

‘(1)      The grounds of objection that may be set out in a notice of motion are as follows:

…

(d)        the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request;…’

9                     Section 149K makes provision for internal review by the Inspector-General of a trustee’s decision to file a notice of objection.

10                  Section 149N sets out the powers of the Inspector-General on review.  The section is in the following terms:

‘(1)      On a review of a decision, if the Inspector-General is satisfied that:

(a)        the ground or grounds on which the objection was made was not a ground or were not grounds specified in subsection 149D(1); or

(b)        there is insufficient evidence to support the existence of the ground or grounds of objection; or

(c)        the reasons given for objecting on that ground or those grounds do not justify the making of the objection; or

(d)               a previous objection that was made on that ground or those grounds, or on grounds that included that ground or those grounds, was cancelled;

            the Inspector-General must cancel the objection.

(1A)     An objection must not be cancelled under subsection (1) if:

            (a)        the objection specifies at least one special ground; and

(b)               there is sufficient evidence to support the existence of at least one special ground specified in the objection; and

(c)                the bankrupt fails to establish that the bankrupt had a reasonable excuse for the conduct or failure that constituted the special ground.

For this purpose, special ground means a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (k) or (ma).  (emphasis added)

(1B)     In applying subsection (1A), no notice is to be taken of any conduct of the bankrupt after the time when the ground concerned first commenced to exist.

(2)       The cancellation does not take effect until:

(a)               the end of the period within which an application may be made to the Administrative Appeals Tribunal for the review of the decision of the Inspector-General; or

(b)               if such an application is made—the decision of the Tribunal is given.

(3)       If the Inspector-General is not satisfied as mentioned in subsection (1), the Inspector-General must confirm the decision.’

11                  As the Explanatory Memorandum to the Act explains ‘special grounds are directed at deliberate actions by the bankrupt to defeat creditors or to hinder the trustee’s administration’.  The trustee has relied on s 149D(1)(d), a special ground as specified in s 149N(1A).  Accordingly, the Inspector-General is expressly precluded from taking notice of any conduct of Ms Combe after the time when the ground concerned first commenced to exist.

12                  The Administrative Appeals Tribunal Amendment Act No.38 2005 (‘the Amendment Act’) amended s 44 of the AAT Act to add subsections (7) to (10).  By these amendments, the Federal Court may now make findings of fact.  The amendments to s 44 of the AAT Act do not, however, apply to this appeal which was instituted on 14 January 2005, before the commencement of the Amendment Act on 16 May 2005.

The proceedings before the Tribunal

13                  The Tribunal noted that the notice raised a special ground within the meaning of s 149N(1A) and that it must not be cancelled if there is sufficient evidence to support the special ground and if Ms Combe fails to establish that she had a reasonable excuse.  The issue before the Tribunal as identified in [7] of its reasons was; ‘whether there is evidence to support [a] special ground and whether Ms Combe has a reasonable excuse’.

14                  The Tribunal noted that certain facts were not in dispute, in particular:

·         The trustee wrote to Ms Combe on 22 November 2002 requesting her to provide certain documents.

·         Certain of those documents were not received by the trustee until August 2003.

·         Ms Combe located the documents in late January 2003, after attempting to track down her former solicitors.

·         On 10 July 2003 the trustee issued a Demand on Mr Farrar, Ms Combe’s solicitor, for the documents.  This followed a telephone conversation between the trustee and Mr Farrar in which Mr Farrar advised he had copies of a discharge of mortgage and a transfer.

·         On 11 July 2003 the trustee wrote to Ms Combe again demanding delivery of the original documentation by 22 July 2003. A further demand was made on 24 July 2003.

·         On 8 August 2003 the trustee received the originals from Mr Farrar who had in turn received those originals from Ms Combe on 6 or 7 August 2003.

15                  The Tribunal concluded that these facts supported the existence of the ground on which the notice was lodged, that is that Ms Combe, when requested in writing by the trustee to provide written information about her property, failed to comply with the request.

16                  The Tribunal then turned to consider whether Ms Combe had a reasonable excuse for failing to provide the documents.  The Tribunal decided this issue on the facts, referring to Ms Combe’s written submissions to the Tribunal and to witness statements, in particular, the evidence of the trustee, Ms Combe and Mr Farrar.  The Tribunal concluded at [16] that ‘the excuse put forward by Ms Combe as to why, in the face of clear and repeated requests from the trustee, she did not provide the documents, is not, in the circumstances, reasonable.  She appears to have been intent on keeping the documents for her own purposes associated with the proposed loan from Ms Bechara.’  That is, the Tribunal did not consider that Ms Combe had a reasonable excuse for failing to provide the documents to the trustee.  The Tribunal concluded that the objection must not be cancelled and held, in accordance with the wording of s 149N(1A):

‘It follows that, in the absence of a reasonable excuse, and where there is evidence that Ms Combe failed, when requested in writing, to provide written information about her property, the objection must not be cancelled.’

Ms Combe’s notice of appeal

17                  Section 44 of the AAT Act authorises a party to a proceeding before the Tribunal to appeal to this Court on a question of law from a decision of the Tribunal.  Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect to such appeals.  In Birdseye v Australian Securities and Investments Commission (2003) FCAFC 232; 76 ALD 321 (‘Birdseye’) at [11] and [16], Branson and Stone JJ expressed agreement with the observation of Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that: ‘The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself…’.

18                  Further, at [18]:

‘In our view, 0 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

19                  In Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 (‘ASIC v Saxby Bridge’), Branson J (in dissent, with Jacobson and Bennett JJ concurring on this aspect) stated similar principles.

20                  An amended notice of appeal (‘the amended notice of appeal’), filed by Ms Combe on 18 March 2005, purports to identify ten questions of law.  The amended notice of appeal does not, in my view, comply with the requirements of s 44(1) of the AAT Act and O 53 r 3(2).  These “questions of law” are not stated with precision as pure questions of law.  Some of the questions assume the existence of legal duties or obligations or address questions of fact.  Merely to assert that the Tribunal has erred in law in making a particular finding is not to state a question of law.  In Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527, Ryan J said: ‘If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law’.

21                  The amended notice of appeal does not raise questions of law in accordance with the principles discussed above.

22                  Ms Combe seeks an order setting aside the decision of the Tribunal.  She also seeks an order that the Court ‘discharge or annul the bankruptcy as all debts have been paid and a surplus of assets exists in the possession of the Trustee in Bankruptcy’.  Such an order is not within the power of the Court.  A discharge of bankruptcy occurs upon the passing of time, in accordance with s 149 of the Act.  Usually, an annulment of bankruptcy on the payment of all debts may occur administratively without the intervention of the Court (s 153A of the Act).  Pursuant to s 153B of the Act the Court can order the annulment of the bankruptcy if it is satisfied that the sequestration order ought not to have been made or, in the case of a debtor’s petition,the Court can order that the petition ought not to have been presented or accepted by the Official Receiver.  No foundation for an order under s 153B has been established.

23                  The ground of appeal in the amended notice of appeal is ‘the continuance of the object to discharge cannot advance any public interest in the due administration of the affairs of the bankrupt’.  The particulars of the ground are:

‘(a)      Delays in handing over the certificate of title to the bankrupt’s home were based on bona fide disputations between the bankrupt and the Trustee and were not an attempt to deny due control of the bankrupt’s assets by the Trustee.

 (b)      The delay did not affect the Trustee’s administration in any significant degree or for any significant period.

24                   (c)       The documentation required by the Trustee was provided more than 12 months ago. There are no further assets to be realised and a surplus exists in the Trustee’s possession.

 (d)      The Trustee was not required to invoke special powers to obtain the necessary documents.

 (e)       There is no suggestion that at any time the bankrupt failed to disclose assets or to mislead the Trustee in any way.

 (f)       There is no further aid that the bankrupt can provide to assist in the due administration of the estate nor has she acquired any additional property since the filing of her affairs.

 (g)      In the circumstances of the case public confidence in the due administration of the affairs of the bankrupt cannot be adversely affected by her immediate discharge from bankruptcy.

 (h)      In the circumstances of the case extension of disability is against the public interest in the full administration of full citizen capacity, earning capacity of the bankrupt and increasing likelihood of her reduced dependence on social security assistance.

 (i)       The circumstances of the case lead to an inference that the continuance of disability could only be justified as a form of punishment rather than as a decision capable of ensuring due administration of the bankrupt’s estate or bankruptcy generally.’

25                  The particulars refer to factual matters, many of which did not seem to have been referred to in the Tribunal’s reasons and do not seem to be relevant to the Tribunal’s decision or the application of ss 149(D)(1)(d) or s 149N of the Act.  No notice is to be taken of any conduct of Ms Combe after the time when the ground concerned first commenced to exist (Section 149N(1B) of the Act).  Therefore, some of the factual matters referred to, such as in particular (f); ‘There is no further aid that the bankrupt can provide to assist in the due administration of the estate nor has she acquired any additional property since the filing of her affairs’should not have been addressed by the Tribunal, and were not addressed. 

26                  There was no dispute before the Tribunal that the facts supported the conclusion that special ground s 149D(1)(d) existed.  The ground of the appeal and the particulars may be relevant to the extent that the Tribunal was entitled to have regard to any reasonable excuse of the bankrupt in failing to respond to the trustee (s 149N(1A)(c)).  From [10] to [17] of the Tribunal’s decision, it is apparent that the Tribunal had due regard to the evidence before it in deciding that no reasonable excuse was available.  Ms Combe’s submissions on the appeal further elucidated allegations of the trustee’s misconduct but nothing in her submissions or in other material before me suggest that the Tribunal fell into error in concluding that Ms Combe had no reasonable excuse for failing to respond to the trustee’s request.

27                  The Tribunal’s findings in relation to “reasonable excuse” were open to the Tribunal on the material before it and were within its jurisdiction.  There is no error of law apparent in the Tribunal’s reasons.

28                  Ms Combe appeared unrepresented at the hearing of the appeal, although she was legally represented at one stage after these proceedings commenced.  I turn to consider the “questions of law” as stated in the amended notice of appeal.

Question 1:  Whether the Tribunal has taken into account the duties of the Trustee under s 19 Bankruptcy Act 1966, in particular Section 19 (1) (b) (f) (j) (k), the Trustee’s duty to not incur any unnecessary costs for the bankrupt’s estate, and his failure to do so by refusing to act on an agreement with the bankrupt and her solicitor to annul the bankruptcy by way of paying off the debt once the bankrupt was advised of the final ‘Payout Amount’ as per the agreement made in February / March 2003, which annulled the need to produce the Certificate of Title of the property to the Trustee.

Question 2:  Whether the Tribunal had considered the Bankrupts complete candour in her communications with the Trustee especially in her attempts to expedite the payments to the creditors as required under the Bankruptcy Act 1966 and the Trustee’s refusal to accept the payments to annul the bankruptcy.

Question 3:  Whether the Tribunal failed to take into account that the Trustee was in breach of s 167 of the Bankruptcy Act 1966 by his failure to obtain the Bills of Costs of the petitioning creditor and other creditors who were obliged under Section 45 of the Legal Profession Regulation 2002 to supply Bills of Costs in proper detailed and taxable form prior to the official recognition of the petitioning creditor’s claims and payment thereof by the Trustee, in order to annul the bankruptcy.

Question 4:  Whether the Tribunal failed to consider whether, under s 190A (f) of the Bankruptcy Act 1966, the Trustee failed to make ‘appropriate inquiries and investigations in connection with the debtors property and examinable affairs’ that were in the possession and control of the petitioning creditor prior to objection to discharge of bankruptcy, as is required under Section 77A of the Legal Profession Regulation 2002.

29                  These questions address the conduct of the trustee.  The Tribunal has no power generally to review the conduct of the trustee.  The Tribunal stands in the shoes of Inspector-General whose powers are set out in s 149N ([10] above).  Therefore, questions 1 to 4 of the amended notice of appeal are matters that were not within the power of the Tribunal to review, nor were they matters considered by or determined by the Tribunal in its reasons.  To the extent that the matters were factual disputes before the Tribunal, disputes on the evidence are not matters of review by this Court.  The trustee’s conduct is relevant to the extent that the Tribunal was entitled to have regard to any reasonable excuse of the bankrupt in failing to respond to the trustee (s 149N(1A)(c) of the Act).  This was discussed above at [23].

30                  Ms Combe contends in [30] to [34] of her written submissions that she had a reasonable excuse under s 149N(1A)(c) of the Act not to hand over the documents because her solicitor needed them to complete a loan application.  She contends that the question whether there is any evidence that the ‘trustee (or his agents) agreed to annul the bankruptcy by way of allowing a loan to be raised’ is a question of law, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.  Whether there is no evidence of a particular fact can be a question of law.  However, there was evidence about the loan and the fact that, despite the proposed loan, the trustee continued to seek compliance with his request.  The Tribunal dealt with that evidence in its decision at [13] to [16].  No error of law is established in these questions.

Question 5:  Whether the Tribunal failed to take into consideration that the bankrupt was a disabled person, living on a Disability Support Pension, at the time of the hearings and review of the Objection to Discharge by the Inspector-General in Bankruptcy, and was unable to obtain legal help or representation which is in breach of the s 81(7) of the Bankruptcy Act 1966 which constituted a denial of natural justice or procedural fairness.

31                  On one reading, the question of law that Question 5 intends to raise could be whether the entitlement to legal representation under s 81(7) of the Act applies to Part VII, Division 2B, Division 2Cof the Act.  Although, for the reasons given above in [17] to [25], I consider that this question is inappropriately formulated, I will address it.  The issue of lack of representation was not referred to in the Tribunal’s reasons and does not seem to have been raised before it.

32                  Section 81(7) of the Act provides:

‘(7)      A person summoned to attend before the Court, the Registrar or a magistrate for examination under this section is entitled to be represented, on his or her examination, by counsel or a solicitor, who may re‑examine him or her after his or her examination.’

            (emphasis added)

33                  Section 81(7) of the Act applies to examinations before the Court or the Registrar in relation to the bankruptcy.  Section 81(7) provides entitlement to representation to those summoned for examination under s 81.It does not extend to provide a statutory entitlement to representation generally, nor does an inability on the part of the person examined to obtain legal representation amount to a breach of the section.

34                  Ms Combe’s submissions on Question 5 suggest that she intended to raise an issue of procedural fairness.  The discussion by Ms Combe of her Disability Support Pension in [9] and [10] of her written submissions in reply filed on 10 May 2005 suggest that, by Question 5, she intends to raise some other unformulated question of law.  Ms Combe asserts that the Tribunal ignored the evident fact that she was ill, which she submits amounted to a reasonable excuse for her failure to respond to the trustee pursuant to s 149N(1A)(c).  That is not covered, in my view, by the wording of Question 5.  It is difficult to hazard a guess as to what Ms Combe is arguing.  What is clear is that Question 5 is not stated as a question of law and does not raise a question of law.

35                  To the extent that this question asserts a denial of procedural fairness based upon s 81(7) of the Act, that section is of no application.  No other basis for a denial of procedural fairness by reason of lack of legal representation is made out.

Question 6:  Whether the Tribunal failed to consider that the bankrupt’s legal paper and papers were seized by the Trustee prior to the lodgement of the ‘Objection to Discharge of Bankruptcy’ causing the unrepresented bankrupt to be unable to understand the dealings with the Trustee and unable to present relevant evidence before the Inspector-General.

36                  Mr Murray, who appears for the Inspector-General, contends that Question 6 is not a question of law.  Certainly, it contains a number of unproved factual assumptions.  Ms Combe possibly intended to call into question whether the Tribunal failed to comply with an obligation to give proper consideration to the evidence and other material before it.  So understood, the question is not stated in a way which complies with the requirements of O 53 r 3(2) of the Federal Court Rules.  Further, the factual basis in the question, extending to the alleged failure on the part of the Tribunal, was not raised before the Tribunal or, indeed, before me.  To the extent that it seeks to raise some issue of procedural unfairness, none is established.

Question 7:  Whether the Tribunal took into consideration s 30(5)(b) of the Bankruptcy Act 1966 ‘by failing to inform the Inspector-General in Bankruptcy of Conti J’s directions in transcript before the Federal Court of Australia on 3 June 2004, cease to object to the discharge of bankruptcy before the Administrative Appeals Tribunal’.

37                  Question 7 does not raise a question of law.

38                  The decision of Conti J in Combe v Pascoe (2004) FCA 725 is irrelevant for the purposes of this application even though Ms Combe was a party to those proceedings.  In her submissions at [17] Ms Combe asserts that his Honour directed that the ‘trustee discontinue his objection to discharge the bankruptcy’ and that, by not acting on his Honour’s directions, the trustee breached the Act and also the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ‘ADJR Act’).

39                  On 22 December 2003, Ms Combe had filed a notice of appeal against the judgment of Raphael FM given on 2 December 2003, whereby his Honour ordered Ms Combe, upon the application of the trustee, to vacate a property comprising an asset of her bankrupt estate.  On 12 February 2004 Conti J refused an application for a stay of the order to vacate the property.  On 3 June 2004 his Honour dismissed the remaining grounds of Ms Combe’s appeal, concerning an ongoing dispute with her creditor, Mr Ziade.

40                  Conti J did not direct the trustee to discontinue his objection to discharge the bankruptcy.  The trustee’s objection to discharge the bankruptcy was not an issue before his Honour.  At [11] Conti J says:

‘…the interests of justice clearly require the completion of the winding up of the bankrupt estate of Ms Combe takes place without further delay, so that she can pursue her complaints and claims against Mr Ziade without the intervention of her trustee in bankruptcy.’

41                  His Honour’s comments may indicate a preference for expediency but they do not require the trustee to abstain in future from objecting to the discharge of bankruptcy, nor did his Honour have the power to make such an order. 

Question 8:  Whether in terms of the Administrative Decisions (Judicial Review) Act 1977 section 6(1)(e) the making of the decision of the bankrupt’s trustee to extend the period of Bankruptcy as affirmed by the Tribunal was an improper exercise of power conferred by the enactment in pursuance of which the decision purported to have been made namely s 149J and s 178 of the Bankruptcy Act 1966.

42                  Section 149 J of the Act provides:

‘(1)      If at any time before a bankrupt is discharged the trustee withdraws the objection, the trustee must give the Official Receiver a notice of the withdrawal of the objection and give the bankrupt a copy of the notice.

 (2)      The withdrawal takes effect at the beginning of the day when details of a notice under subsection (1) are entered in the National Personal Insolvency Index.’

43                  Section 149J of the Act is irrelevant to this appeal and to the Tribunal’s decision.  Indeed, the Tribunal made no reference to s 149J of the Act.  The Inspector-General, not the trustee, cancelled the two other objections and sent a copy of the notice of withdrawal to Ms Combe, the Official Receiver and the trustee.  The notice, which is the subject of this appeal, has not been cancelled by the trustee and s 149J of the Act does not apply.

44                  Section 178 of the Act provides:

‘(1)If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.

 (2)       The application must be made not later than 60 days after the day on which the person became aware of the trustee’s act, omission or decision.’

45                  Question 8 is of the nature of an issue that would be reviewed under s 178 of the Act on application to the Court.  This is an appeal pursuant to s 44(1) of the AAT Act.  The subject matter of this appeal is the decision of the Inspector-General to affirm that of the Trustee.  In any event, the “application” was made more than 60 days after the day Ms Combe became aware of the Trustee’s objection.  Section 178 of the Act does not apply.

46                  To the extent that the amended notice of appeal and Ms Combe’s submissions raise the Court’s jurisdiction under the ADJR Act, Mr Murray submits that they should be dismissed.  The Inspector-General does not argue that the proceedings are frivolous or vexatious but submits that Ms Combe’s case can be and should be dealt with under s 44 of the AAT act, such that s 10(2)(b)(ii) of the ADJR Act should not be applied.  Ms Combe in her submissions in reply submits that the ADJR Act should be applied and that s 10 of the ADJR Act provides rights of review conferred by that Act which are additional to and not in derogation of her right to seek review.

47                  Section 10(2)(b)(ii) of the ADJR Act provides discretion to decline relief where:

‘(ii)      adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.’

48                  In Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 Davies J said that:

‘As s44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted.  An application brought under s5 of the ADJR Act, when an appeal under s44 of the AAT Act is available, should be dismissed as of course.’

49                  That view has subsequently been modified: see Finn J in Peczalski v Comcare (1999) FCA 366; 85 ALD 697.  In Duncan v Fayle (2004) 138 FCR 510 at 519 French J said that s 10:

‘…make[s] clear that the rights conferred by s5 are ‘additional.’  The discretion to decline relief under s10 is a discretion.  It is not to be fettered by judge made rules, albeit its exercise in particular classes of case may be informed by common approaches and considerations.  Being a discretion it is, in my opinion, inappropriate to apply it proleptically to strike out an application under the ADJR Act as frivolous or vexatious on its face by reason only of the availability of an alternative mechanism for review.’

50                  The issue raised by the notice was narrow in compass.  This, in turn, affected the evidence relevant to that issue.  Mr Murray opposes the matter being dealt with under the ADJR Act.  The factual basis for the application of the ADJR Act and the issues sought to be ventilated by Ms Combe simply have not been dealt with by the Tribunal or, indeed, before me.  In my opinion the proper course is by way of appeal under s 44 of the Act, which makes adequate provision for a review of the decision of the Tribunal which, in turn, reviewed the decision of the Inspector-General and not by review under the ADJR Act.  I decline relief under the ADJR Act.

Question 9:  The respondent (on behalf of the Trustee in Bankruptcy) has used the bankruptcy legislation to punish the bankrupt for trying to pay out the bankruptcy by way of paying cash.

51                  Question 9 is not a question of law.  As discussed above, s 149D sets out the grounds of objection that may be taken.  Punishment of the bankrupt, of itself, is not a lawful reason to support an objection to the discharge of bankruptcy and, in any event, there is no basis for such a conclusion.  Further, a failure to consider whether the notice was aimed to punish the bankrupt is not an error of law.  It was not raised before me or the Tribunal.  The Tribunal found that Ms Combe failed to comply with the request in writing by the trustee to provide written information about her property.  Accordingly, the Tribunal applied s 149N(1A) and held that the objection is based on a special ground pursuant to s 149D (1)(d) and must not be cancelled.

Question 10:  Whether having regard to the matters referred to above and having regard to the Trustee’s unexplained behaviour in demanding surrender of the documents of title of a house owned by the Bankrupt but already indicated and repeatedly indicated to the Trustee as proposed security for a personal advance to the Trustee readily available of any amount necessary to pay all creditors and claimants in full and to complete all steps necessary for administration of the appellants bankruptcy without delay and without complication, any delay in complying with the Trustee’s unexplained demand for surrender of the documents can be accepted as a reasonable reason or excuse especially having regard to the Bankrupt’s complete candour and truthfulness in all communications with the Trustee and complete absence of any suggestion that the Bankrupt at any time was seeking to hide or fail to disclose all assets available to the Bankrupt.

52                  Ms Combe asserts that the Trustee’s behaviour and her own behaviour amounted to a reasonable excuse for her failure to respond to the trustee pursuant to s 149N(1A)(c).  Question 10 deals with questions of fact and contains numerous assumptions of fact, such as ‘the Trustee’s unexplained behaviour.’  It has not raised a question of law, let alone a question of law formulated in accordance with the principles discussed above.

Procedural Fairness

53                  Ms Combe appears to raise issues of procedural fairness in her submissions and in her response to the Inspector-General’s submissions.  Question 5 obliquely refers to a denial of procedural fairness in relation to an issue different from those raised in the submissions.  Procedural fairness was not otherwise raised in the amended notice of appeal.

54                  In Ms Combe’s written submissions and in her written submissions in reply, she asserts that she was not given a reasonable opportunity to inspect documents prior to the hearing and that this amounted to a denial of procedural fairness.  Ms Combe contends that she was not made aware of the “proposed legislative changes”’ or the Explanatory Memorandum of the Bankruptcy Legislation Amendment Bill 2002 (Cth) during the course of the reviews of the Inspector-General or the hearing before the Tribunal.  With respect to the hearing before the Tribunal, she states that Mr Murray did not produce the document “Statement of Facts Issues and Contentions of the Inspector-General” until the day of the Tribunal hearing, that Mr Murray failed to advise Ms Combe’s witness of his need to cross-examine her until minutes before the cross-examination and that the Inspector-General failed to produce certain documents.  These issues were not raised before the Tribunal.  Moreover, Ms Combe did not apply for an adjournment of the Tribunal hearing in order to inspect the documents.

55                  Ms Combe’s contention that there was a denial of procedural fairness was not made out.

Conclusion

56                  The Tribunal was dealing with a straightforward issue, whether there was evidence to support a special ground within the meaning of s 149N(1A) and whether Ms Combe had a reasonable excuse for failure to comply.  It dealt with that issue.  That was the issue before the Tribunal and the subject of this appeal.  Ms Combe has, in this appeal from the Tribunal’s decision, raised numerous factual issues and contentions that have not previously been raised and which have no proved factual basis.  It is difficult for a litigant in person to present an appeal such as this and allowances can be made for lack of knowledge of procedural matters.  However, the case must still be considered properly according to law, which includes consideration of an application of the relevant statutory provisions.

57                  No error of law has been established.  The appeal is dismissed with costs.

Associate:

Dated:              11 August 2005

The Applicant appeared in person