Federal Court of Australia

Farmakis v Lo Pilato (Trustee) [2023] FCA 1611

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 5 May 2022 be dismissed.

2.    The applicant pay the costs of the respondent of and incidental to the originating application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

OVERVIEW

1    This is an application by Ms Susan Farmakis for declaratory relief that the notice of objection to her discharge from bankruptcy dated 15 April 2021 (Notice of Objection) is invalid and of no force and effect and that she was therefore discharged from bankruptcy on 22 October 2021 pursuant to s 149 of the Bankruptcy Act 1966 (Cth) (the Act).

2    Ms Farmakis also seeks a related order that the Official Receiver enter into the records of, or alternatively, amend the information in, the National Personal Insolvency Index that Ms Farmakis was discharged from bankruptcy on 22 October 2021.

3    Although several peripheral issues were raised by the parties’ written submissions, including issues concerning the Court’s jurisdiction and discretion, by the conclusion of the hearing the parties had agreed that the only issue which arises for determination is whether the Trustee’s notice of objection is invalid.

4    For the reasons which follow, the notice of objection is not invalid.

BACKGROUND

5    On 22 October 2018, Ms Farmakis became bankrupt on the presentation of a debtor’s petition. The respondent (the Trustee) was appointed as her trustee in bankruptcy on the same date.

6    In the ordinary course, Ms Farmakis would have been discharged from bankruptcy by operation of law on 22 October 2021, being three years from the date on which the debtor’s petition was accepted by the Official Receiver: see s 149(1)(b) of the Act.

7    However, on 15 April 2021, the Trustee filed the Notice of Objection. The Notice of Objection recorded the Trustee’s ground of objection as follows:

S149D(1) (d) the bankrupt when requested in writing by the trustee to provide written information about the bankrupts property, income or expected income, failed to comply with the request

(errors in original)

8    In the section of the Notice of Objection which stated “[r]efer to the evidence or other material that in the opinion of the trustee establishes the ground”, the following information was provided:

-    The Bankrupt on 27 October 2020 provided their income contribution questionnaire.

-    Nathan Burgess of this office sent a email to the Bankrupt on 9 February 2021, requesting additional information relating to the Bankrupts income. The request was for:

•    Employment contracts held since the date of Bankruptcy;

•    Any commissions or bonuses that were paid or eligible for during bankruptcy and/or may be eligible for going forward.

-    With no response, Nicholas Campbell of this office wrote to the Bankrupt on 24 March 2021 requesting the information be urgently provided. It was at this time the bankrupt was warned that non compliance would result in the Trustee lodging an objection to their discharge from bankruptcy for a period of five (5) years. No response has been provided, nor has the Bankrupt attempted to contact my office.

(errors in original)

9    Under the Act, Ms Farmakis had until 14 June 2021 to seek a review by the Inspector-General (s 149K) or the Administrative Appeals Tribunal (the Tribunal) (s 149Q) of the Trustee’s decision to file the Notice of Objection. She did not do so.

10    On 5 April 2022, Ms Farmakis filed this originating application seeking to challenge the validity of the Notice of Objection. Ms Farmakis asserts that the Notice of Objection did not comply with the requirement contained in s 149C(1)(b) of the Act.

MATERIAL RELIED UPON

11    Ms Farmakis relied upon an affidavit of her solicitor, Mr Jonathon Laws, filed on 5 May 2022.

12    The Trustee filed two affidavits on 22 July and 28 September 2022.

13    Ms Farmakis objected to a number of parts of the Trustee’s two affidavits on the grounds of relevancy and inadmissible opinion evidence. The majority of the material objected to related to the past events in the bankruptcy of Ms Farmakis and the Trustee’s attempts to obtain information from her.

14    For reasons explained below, due to the basis on which this application was brought (namely, being limited to the validity of the Notice of Objection), that material is not relevant to the determination of this application.

LEGISLATIVE PROVISIONS

15    It is useful to briefly consider the role of a notice of objection in the procedure for discharge contained in Division 2 of Part VII of the Act.

16    Section 149A of the Act has the effect that, if an objection to the discharge of a bankrupt has taken effect, then, unless the objection is withdrawn or cancelled, the discharge will not take effect at the end of the three years from the date the debtor’s petition was accepted as it would otherwise under s 149(1)(b).

17    In this case, assuming it is valid, the Notice of Objection had the effect of extending the discharge of Ms Farmakis’ bankruptcy to a period of eight years from the date the debtor’s petition was presented: s 149A(2)(a)(i).

18    Section 149B of the Act provides for the making of a notice of objection:

(1)     Subject to the following provisions of this Subdivision, at any time before a bankrupt is discharged from bankruptcy under section 149, the trustee may file with the Official Receiver a written notice of objection to the discharge.

(2)     The trustee of a bankrupt’s estate must file a notice of objection to the discharge if the trustee believes:

(a)     that doing so will help make the bankrupt discharge a duty that the bankrupt has not discharged; and

(b)     that there is no other way for the trustee to induce the bankrupt to discharge any duties that the bankrupt has not discharged.

19    The requirements for the form of a notice of objection are provided by s 149C of the Act:

(1)     A notice of objection must:

(a)     set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and

(b)     refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds; and

(c)     state the reasons of the trustee for objecting to the discharge on that ground or those grounds.

(1A)     Paragraph (1)(c) does not apply to a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).

(2)     A notice of objection is not invalid merely because it does not state the ground or grounds of objection precisely as set out in subsection 149D(1) provided that the ground or grounds can reasonably be identified from the terms of the notice.

20    Section 148D(1)(d) is one of the provisions to which s 149C(1A) refers, meaning that the requirement to state the reasons for objecting to the discharge does not apply. Whilst there may be no obligation to state the reasons in the Notice of Objection, this does not remove the necessity for the Trustee to have had reasons to issue the Notice of Objection: Duckworth v Field [2023] FCA 801 (Duckworth) at [41] (per Banks-Smith J).

21    Section 149D of the Act provides the grounds on which an objection can be taken, including relevantly in this case:

(1)     The grounds of objection that may be set out in a notice of objection 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;

…

22    Section 149F of the Act outlines certain requirements relating to the need to give a copy of the notice of objection to the bankrupt to enable them (or to inform them of their ability) to apply for a review of the objection.

23    Section 139U of the Act concerns a bankrupt’s obligations to provide evidence of income to the trustee, and provides:

(1)    A bankrupt must, as soon as practicable, and in any event not later than 21 days, after the end of a contribution assessment period, give to the trustee:

(a)    a statement:

(i)    setting out particulars of all the income that was derived by the bankrupt during that contribution assessment period; and

(ia)    setting out particulars of all the income that was derived by each dependant of the bankrupt during that contribution assessment period; and

(ii)    indicating what income (if any) the bankrupt expects to derive during the next contribution assessment period; and

(iii)    indicating what income (if any) the bankrupt expects each dependant of the bankrupt to derive during the next contribution assessment period; and

(b)    such books evidencing the derivation of the income referred to in subparagraph (a)(i) as are in the possession of the bankrupt or the bankrupt can readily obtain.

Penalty: Imprisonment for 6 months.

(2)    The particulars that a bankrupt is required to include in a statement given to the trustee under subparagraphs (1)(a)(i) and (ia) are all the particulars that are known to the bankrupt and any particulars that the bankrupt can readily obtain.

(3)    Without limiting the generality of paragraph (1)(b), the books that a bankrupt is required to give to the trustee under that paragraph in respect of a contribution assessment period include:

(a)    if the bankrupt received from his or her employer one or more pay slips or other documents evidencing salary or wages paid to him or her by that employer during that period--that document or each of those documents; and

(b)    any copy of a group certificate or payment summary (within the meaning of section 16-170 in Schedule 1 to the Taxation Administration Act 1953) in the possession of the bankrupt that relates in whole or in part to that period; and

(c)    any statement provided to the bankrupt by an ADI or other financial institution that shows periodic payments made during that period to an account kept by the bankrupt (either alone or jointly with any other person) with that institution; and

(d)    any notice of assessment issued to the bankrupt under the Income Tax Assessment Act 1936 in respect of a year of income in which that period is included; and

(e)    if the bankrupt is in receipt of a pension, allowance or other benefit under a law of the Commonwealth, of a State or of a Territory - any letter or other document sent or given to the bankrupt by the Department or authority that administers the legislation or scheme under which the benefit is provided.

24    Section 139V of the Act gives the trustee further power to require a bankrupt to provide further evidence in certain circumstances:

If the trustee has reasonable grounds to suspect that:

(a)    any particulars set out in the statement given by the bankrupt under subsection 139U(1) are false or misleading in a material respect; or

(b)    any material particulars have been omitted from that statement;

then, for the purpose of enabling the trustee to decide whether the particulars set out in the statement are correct, the trustee, by written notice given to the bankrupt, may require the bankrupt to give to the trustee within a specified period of not less than 14 days such information or books as are specified in the notice.

THE BASIS FOR THIS APPLICATION

25    In making this application, Ms Farmakis relied on the powers conferred upon the Court under s 30 of the Act and/or s 90-15 of the Insolvency Practice Schedule (Bankruptcy) (IPS), being Schedule 2 to the Act.

26    Section 30 of the Act relevantly provides that:

General powers of Courts in bankruptcy

(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.

27    Section 30(1) of the Act gives the Court power to declare that a notice of objection under s 149B is invalid: see Duckworth at [53]; Smith v Trustee of the Property of Richard John Smith [2023] FCA 300 (Smith) (per Collier J).

28    Section 90-15 of the IPS also gives the Court power to make the orders sought by Ms Farmakis: Duckworth at [53].

29    Relevantly, s 90-15 of the IPS provides:

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;

…

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

…

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.

30    Section 178 of the Act, which was repealed when the IPS was enacted, provided that:

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.

31    The authorities with respect to s 178 of the Act continue to guide the exercise of the Court’s jurisdiction under s 90-15 of the IPS: Duckworth at [49]-[51].

32    Ms Farmakis has standing to seek orders under s 90-15 as s 90-20 provides that a person with a financial interest in the administration of a regulated debtor’s estate may apply for an order under s 90-15. Pursuant to the definition in s 5-30 of a “financial interest”, it is clear that Ms Farmakis, as the bankrupt, has a financial interest in the estate: Duckworth at [52]; Frigger v Trenfield [2019] FCA 1746 at [12] (per Jackson J).

THE NOTICE OF OBJECTION

Applicable principles

33    By this application, Ms Farmakis contended that the Notice of Objection was invalid.

34    It is significant to note that Ms Farmakis is not seeking a review of the Trustee’s decision to make the objection “on the merits”: see ss 149K, 149N of the Act. On a review under s 149K, for example, the decision would be liable to be cancelled if the Inspector-General was 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 …

35    Further, this is not an application to review a decision by a trustee to refuse to withdraw a notice of objection: cf Duckworth at [45].

36    There was some confusion in this regard at the hearing before me, mostly on the part of the Trustee, whose affidavit material and submissions were directed to delays by Ms Farmakis and the merits of the Trustee’s actions, rather than to the validity of the Notice of Objection itself. This included submissions in respect of the time limits specified in r 90-80 of the Insolvency Practice Rules (Bankruptcy) 2016 (Cth), which only apply to reviews under Division 90 of those Rules by the Inspector-General.

37    As mentioned above, it later became clear at the hearing that the question to be determined was limited to the validity of the Notice of Objection itself (by reference to the requirements of a notice of objection contained in s 149C of the Act). As was noted by counsel for the Trustee at the hearing, “the question turns or falls on the four corners of the notice”.

38    So much was held in Prentice v Wood (2002) 119 FCR 296; [2002] FCA 214 (Prentice), where the Full Court (Spender, Hely and Conti JJ) stated at [17]:

Whether a notice complies with s 149C should be apparent on the face of the notice. There is no occasion prior to any review of the Notice of Objection to examine the correctness or sufficiency of the material which the Trustee has identified as being the material which establishes the ground relied upon as that does not bear upon the validity of the notice.

39    It has been recognised that the power to object to the discharge of a bankrupt is “great”: Van Reseema v Official Receiver in Bankruptcy (1983) 50 ALR 253 at 258 (per Sweeney J, Sheppard J agreeing); Re Hall (1994) 14 ACSR 488 (Re Hall) at 491 (per Branson J); Prentice at [19]; Frost v Sheahan (as trustee of the bankrupt estate of Frost) (2008) 249 ALR 538; [2008] FCA 1073 at [35] (per Besanko J) (affirmed on appeal: Frost v Sheahan (Trustee) [2009] FCAFC 20 (per Ryan, Mansfield and Jagot JJ).

40    The requirements of s 149C are to be construed in that context: Re Hall at 491.

Consideration

41    As noted above, s 149C(1) of the Act provides that a notice of objection must:

(a)     set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and

(b)     refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds; and

(c)     state the reasons of the trustee for objecting to the discharge on that ground or those grounds.

42    As the ground relied upon in the Notice of Objection was under s 149D(1)(d), only the requirements in s 149C(1)(a) and (b) are applicable: see s 149C(1A) of the Act.

43    The intention of the requirements under s 149C was explained by Branson J in Re Hall (at 491) as follows:

I consider that s 149C is intended to give a bankrupt a comparable entitlement to be fully informed by a notice of objection to discharge from bankruptcy as to the bases upon which such notice has been filed. He or she must determine whether to take the matter further, and if so whether to make representations to the trustee or Official Receiver, seek an internal review by the Inspector-General or an external review by the Administrative Appeals Tribunal or proceed in an appropriate court of law.

See also Smith at [44].

44    Her Honour further noted (at 492):

The notice of objection should put the bankrupt in a position where he or she can identify, and if necessary search out, the evidence or other material relied upon for the purpose of the objection. Only if the bankrupt is in a position to do this can he or she sensibly determine:

(a)    whether to make representations to the party who filed the notice of objection concerning such evidence or the use made of it;

(b)    whether it would be appropriate to seek a review to allow the accuracy of such evidence or other material to be challenged;

(c)    whether, on any review, the weight accorded to such evidence or other material should be questioned;

(d)    whether there may be answering evidence or material which might fruitfully be sought out for the purposes of any review.

45    Ms Farmakis did not make any submission, nor adduce any evidence, to suggest that the Notice of Objection did not provide her with sufficient information to make an informed decision with respect to the above matters.

Section 149C(1)(a) – the grounds of objection

46    As noted above, the Notice of Objection under the heading “Grounds” noted the following:

S149D(1) (d) the bankrupt when requested in writing by the trustee to provide written information about the bankrupts property, income or expected income, failed to comply with the request

(errors in original)

47    This clearly set out which ground under s 149D(1) the Trustee relied upon. It could not be said that Ms Farmakis was left in any doubt as to which ground was relied upon, and no submission to the contrary was made.

Section 149C(1)(b) – references to evidence

48    Section 149C(1)(b) requires a notice of objection to “refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds”. There is no requirement to “set out” such evidence or material; the requirement is only to refer to it: Re Hall at 491.

49    As stated in Prentice (at [16]), if the notice refers to that material, then s 149C(1)(b) will have been complied with “even though it may subsequently emerge that the evidence or other material particularised did not exist, or for some other reason was insufficient or ineffective to establish the ground relied upon” (emphasis added).

50    The evidence referred to in the Notice of Objection is set out above. In summary, it referred to the income contribution questionnaire provided by Ms Farmakis on 27 October 2020, the subsequent email sent by a member of the Trustee’s office to Ms Farmakis on 9 February 2021 “requesting additional information relating to [Ms Farmakis’s] income” (the 9 February Email), the fact that Ms Farmakis did not respond to the 9 February Email, and the follow up request sent on 24 March 2021 which noted that “No response has been provided, nor has the Bankrupt attempted to contact my office”.

51    These requests for information were made pursuant to ss 139U and 139V of the Act. The entitlement of the Trustee to seek this information was not contested by Ms Farmakis.

52    Ms Farmakis contended that the Notice of Objection failed to comply with s 149C(1)(b) as the evidence referred to did not establish the ground of objection relied upon under s 149D(1)(d). In particular, it was contended that the “evidence” contained in the Notice of Objection did not refer to a request by the Trustee that the additional information be provided by way of “written information”. That, it was submitted, was an essential element of a valid ground of objection under s 149D(1)(d) and the Trustee’s alleged failure to do so made the Notice of Objection invalid.

53    On its face, the Notice of Objection refers to the evidence or material which could make out a ground of objection under s 149D(1)(d). It was not necessary for the Trustee to specifically identify that this evidence amounted to a request for “written information”. It is self-evident in the context of the ground relied upon that the evidence referred to is believed to amount to a request for written information that satisfies s 149D(1)(d).

54    In my view, without going behind the face of the notice and undertaking a merits review (which is impermissible), it is impossible to say that the evidence referred to in the notice could not, in the Trustee’s opinion, support the ground in s 149D(1)(d).

55    Further, as counsel for the Trustee submitted, the evidence referred to is in a different category from what was considered in Re Hall, and it can be seen by reference to what the Full Court stated in Prentice, that even where facts are stated entirely wrongly, there can still be a statement of evidence which satisfies s 149C(1)(b).

56    Contrary to the submission made by Ms Farmakis, it does not matter, for the purposes of determining the validity of the Notice of Objection, whether the evidence referred to in the Notice of Objection (and specifically the 9 February Email) actually amounted to a request by the Trustee for “written information”. Such an issue goes to whether the Trustee, in fact, had a valid ground of objection under s 149D(1)(d), which does not arise on an application limited to the validity of the Notice of Objection.

57    It was open for Ms Farmakis to seek a review of the Trustee’s decision to issue the Notice of Objection on the basis that the request for information relied upon was not a request for “written information”. If the reviewing authority was satisfied that the request was not one for “written information”, and therefore did not support the s 149D(1)(d) ground, it could have cancelled the objection. Ms Farmakis elected not to do that: see Prentice (at [18]).

58    In Prentice (at [18]), the Full Federal Court explained that position in the context of the notice they were considering as follows:

However, the fact that the Trustee referred to assessments which were never made as establishing the ground on which the notice was based is not a factor which goes to the validity of the notice. Whether the reviewing authority would be satisfied that there was insufficient evidence to support the ground of objection if the true facts were established is a different question.

59    For these reasons, Ms Farmakis has failed to demonstrate that the Notice of Objection is invalid for non-compliance with s 149C(1)(b).

60    In light of this conclusion, the question of whether the 9 February Email request did in fact fulfil the requirements of s 149D(1)(d) does not arise. Accordingly, it is not necessary to explore the meaning of “written information” as that term is used in s 149D(1)(d).

61    However, in deference to the parties’ submissions, and in the event that my conclusion in that regard is wrong, my view is that the 9 February Email nonetheless fulfilled the requirements of s 149D(1)(d) for the reasons expressed below.

Request for “written information” under s 149D(1)(d)

62    It is convenient to restate s 149D(1)(d), which provides:

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.

(emphasis added)

63    There are four elements to this ground:

(a)    there is a request in writing to the bankrupt by the trustee;

(b)    the request to the bankrupt is to provide written information;

(c)    the request is to provide information about the bankrupt’s property, income or expected income; and

(d)    the bankrupt fails to comply with the request.

See Australian Bankruptcy Law and Practice (online) at [149D.1.80].

64    It is not in dispute that a request in writing was made. Ms Farmakis’ contentions focused on the second element only.

65    The crux of the argument advanced on behalf of Ms Farmakis is that the 9 February Email did not satisfy the requirements of 149D(1)(d) as it did not explicitly request “written” information, and instead only requested the provision of “information”.

The meaning of “written information”

66    The phrase “written information” is not defined in the Act.

67    The extrinsic materials surrounding the initial enactment of s 149D in 1992 provide no clear answer to the manner in which s 149D(1)(d) should be interpreted. However, the purpose of the section provides some guidance.

68    In particular, it has been said that the grounds referred to in s 149D(1) are intended, in a broad sense, to encourage bankrupts to cooperate with their trustees: Wharton v Official Receiver in Bankruptcy (2001) 107 FCR 28; [2001] FCA 96 (Wharton) at [10] (per Weinberg J).

69    In Frost v Sheahan (trustee of the bankrupt estate of Frost) (2005) 220 ALR 733; [2005] FCA 1014, Lander J similarly stated the following (at [46]-[49]):

The purpose of the objection procedure is to provide the trustee with a power by which he can induce the bankrupt to act in accordance with the bankrupt’s obligations.

The trustee should not use the power for the purpose of punishing the bankrupt for acts taken by the bankrupt which cannot be rectified. Rather, the power should be used for the purpose of persuading the bankrupt to discharge the bankrupt’s duties under the Act.

It is a power, however, which must be used sparingly and for the purpose of protecting the interests of creditors and in generally advancing the administration of the estate of the bankrupt.

In a sense, it is a power of last resort when no other form of persuasion will assist to remind the bankrupt of the bankrupt’s obligations.

70    The importance of requiring a bankrupt to comply with these requests from the trustee was acknowledged by Banks-Smith J in Duckworth (at [61]) as follows:

In coming to this view I acknowledge the fundamental importance to creditors of the bankruptcy regime and a trustee’s power of investigation: it is important that the whole of the bankrupt’s estate be identified so as to be made available to the bankrupt’s creditors, and the Bankruptcy Act contemplates that the bankrupt who derives income during the bankruptcy pay a contribution towards the bankrupt’s estate.

71    It has been observed that, prior to the enactment of the amendments which introduced s 149D, trustees had often found it difficult to maintain objections. The reasons varied. Some trustees had found it difficult to differentiate clearly between the grounds of an objection and the reason for filing the objection. Moreover, on occasion, a bankrupt’s challenge to an objection had been upheld simply because either during a hearing, or just before it occurred, the bankrupt eventually had supplied information long sought by the trustee, the non-supply of which had formed the basis of the objection. Such decisions had been thought to undermine the prime purpose of the objection regime, which was to induce a bankrupt to co-operate, promptly, with his or her trustee: see Costello, ‘Bankruptcy Reforms Package’ (2001) 11 New Directions in Bankruptcy 17; Hogan-Doran, ‘Bankruptcy: Tightening up on Bankruptcy — no more easy outs’ (2003) 41 Law Society Journal 58.

72    The Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2002 (Cth) stated that one of the objects of the Bill was to:

strengthen the objection-to-discharge provisions of the Bankruptcy Act 1966 (the Act) by making it easier for trustees to lodge objections to a person’s discharge from bankruptcy and harder for bankrupts to sustain challenges to objections.

73    This reinforces the clear purpose of s 149D(1)(d).

74    It appears that the meaning to be accorded to that term in s 149D(1)(d) has only been considered once in any detail in the decision of Jones and Inspector-General in Bankruptcy [2018] AATA 3260 (Jones). This is a decision of the Administrative Appeals Tribunal and is therefore not binding on this Court.

75    Jones relevantly concerned the merits review of a trustee’s decision to object to discharge under s 149D(1)(d) of the Act. The Tribunal found at [49] that:

•    Section 149D(1)(d) refers to a request “to provide written information”. Taken literally, that could mean that the information requested has to be written information, that is information in already written form. Assuming, however, that that is not the intention of the legislation but rather the intention is that the information to be provided by the bankrupt must be provided in writing, the requirement is that the request must specify that that information sought has to be provided in writing.

(emphasis added)

76    That conclusion was reached with the principles of statutory construction in mind that “all words should be given meaning and effect [and] courts are not at liberty to treat any word or sentence as superfluous or meaningless” (at [38]). There was not any consideration of context or purpose in the Tribunal’s analysis.

77    The phrase “written information” is not to be found in any legal dictionary.

78    The dictionary definitions of each word, however, offer some assistance. As discussed by Weinberg J in Wharton (at [64]-[66]), the word “information” is capable of different shades of meaning, depending on the context. In particular, the Macquarie Dictionary (6th ed, 2013) defines the word as:

1. knowledge communicated or received concerning some fact or circumstances; news: … 2. knowledge in various subjects, however acquired.

(bold in original)

whilst the Oxford English Dictionary (2nd ed, 1989) includes among its definitions:

3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told.

79    The Macquarie Dictionary defines “write” (and its past tense, “written”) in various different ways:

1. to trace or form (characters, letters, words, etc.) on the surface of some material, as with a pen, pencil, or other instrument or means; inscribe. 2. to express or communicate in writing; give a written account of. 3. to fill in the blank spaces of (a form, etc.) with writing: to write a cheque. 4. to execute or produce by setting down words, etc.: to write two copies of a letter. 5. to compose and produce in words or characters duly set down: to write a letter to a friend. 6. to produce as author or composer. 7. to trace significant characters on, or mark or cover with writing … 10. (of a computer) to copy (information) from its primary storage area to a secondary device such as a magnetic tape or disk … 14. to express ideas in writing …

(bold and italics in original)

80    Taking the above definition and the plain meaning of the term into account, “written information” must mean any information provided in writing, for example, in a completed form, by post, email, text, or other electronic communication.

81    There is no reason to read down those words as encompassing only information which is already contained in written form, or which is actually “written” (printed or by hand).

82    Consistent with the purpose for these provisions as set out above, in my view, when assessing whether a request is one for “written information”, the request must be taken in context. For example, if the request attaches a form which requires the completion of information (to be inserted into the form) to be returned, it is a request for written information. If a request is for a contractual document to be provided, it is a request for written information. It is not appropriate to construe the legislation as imposing a blanket-form rule which requires each request to explicitly state that the trustee is requesting written information from the bankrupt. Such a construction would be unduly narrow and be capable of producing absurd results – in this case, the result being that the request given by the Trustee in this case could not amount to a request for the purposes of s 149D(1)(d) simply because the expression “written information” was not included.

83    This interpretation is consistent with previous decisions that the provision of a questionnaire containing blank spaces for completion by the bankrupt amounts to a request for written information: see, for example, Wharton; Re Rimanic and Inspector-General in Bankruptcy (2010) 119 ALD 381; [2010] AATA 875 at [39].

84    There is no justification as to why the Court should read the provision as narrowly as submitted by Ms Farmakis. Although the Court must have regard to the words used in the statute, it is equally important that, in construing the relevant provision, the Court gives effect to the relevant legislative purpose and the context and form in which the request is made.

85    I therefore reject the narrow construction of s 149D(1)(d) advanced by Ms Farmakis and accept the submission made on behalf of the Trustee that “the proper approach is to determine whether the relevant request on a proper interpretation or fair reading, requires provision of written information”.

Was the request in this case one for “written information”?

86    As mentioned above, in the evidence supporting the ground for objection, the Trustee relied upon the following as supporting his objection under the s 149D(1)(d) ground:

(a)    a completed income contribution questionnaire provided by Ms Farmakis to the Trustee on 27 October 2020;

(b)    the 9 February Email “requesting additional information relating to [Ms Farmakis’] income”;

(c)    Ms Farmakis’ lack of response to the 9 February Email; and

(d)    a follow-up email/letter sent by a member of the Trustee’s office to Ms Farmakis on 24 March 2021.

87    The genesis of these documents was an initial request sent by the Trustee’s office to Ms Farmakis on 15 September 2020 for her completion of an income contribution questionnaire for the period 22 October 2019 to 21 October 2020. That itself was undoubtedly a request from the Trustee for Ms Farmakis to provide written information.

88    Ms Farmakis provided the written information by returning the questionnaire on 27 October 2020. Certain parts were incomplete and Ms Farmakis advised (among other things) that certain further information would be forthcoming. No further information was forthcoming.

89    A member of the Trustee’s office sent the 9 February Email which relevantly stated:

I refer to your income information provided in a letter dated 27 October 2020.

Could you please provide the following information in this respect:

•    Employment contracts held since you were made Bankrupt;

•    Any commissions or bonuses that you were paid or eligible for during your bankruptcy and/or may be eligible for going forward.

90    This was a request for information spanning across a wider period than that specified in the questionnaire. The request was in writing, expressly referred to Ms Farmakis’ earlier written response, and in that regard must be viewed in the context of the initial information request and the species of information (namely, written) provided by Ms Farmakis in her initial response. A fair reading of this request in context leads to the conclusion that the information was to be provided in written form.

91    The 9 February Email also requested Ms Farmakis provide copies of any employment contracts she held. The request for a “copy” is clearly a request for written information. The Trustee complied with the requirements of s 149D(1)(d). Whether such contracts existed in fact is not relevant to this question. If there was a dispute about the adequacy of the response and any resulting action by the Trustee (for example, if there were no written contracts and no response was provided by Ms Farmakis for that reason,) that could have been resolved under the merit review process provided for in the Act.

92    Further, the follow-up email dated 24 March 2021 again referred to the income contribution questionnaire and the 9 February Email. It then stated:

I note that you have not responded to this email.

You are hereby instructed to provide me the following information in this respect:

•    Employment contracts held since you were made Bankrupt;

•    Any commissions or bonuses that you were paid or eligible for during your bankruptcy and/or may be eligible for going forward.

…

93    Again, in the context of the correspondence, it is clear that Ms Farmakis was required to provide the named information in writing, which would include by email. Indeed, the reference to her failure to respond to the 9 February Email indicates that she was required to provide a written response.

94    In my view, the correspondence sent by the Trustee required the provision of written information (in its various forms) such that it fulfilled the requirements of s 149D(1)(d).

DISPOSITION

95    For the reasons given above, the Notice of Objection is not invalid for a failure to comply with s 149C(1)(b). The Notice adequately sets out the evidence or material which, in the Trustee’s opinion, established his ground for objection under s 149D(1)(d).

96    Whether that evidence or material, in fact, supported the ground is beside the point. However, in any event, I have found that the relevant request for information on 9 February 2021 fulfilled the requirements of s 149D(1)(d).

Associate:    

Dated:    15 December 2023