Bertram v Naudi

Affidavits read 6 The respondent reads: (a) The first Rowley affidavit; and (b) The affidavit of Luke John Charlton Rowley, and annexures thereto, sworn and filed on 15 December 2021 ("second Rowley affidavit"). 7 The applicant reads: (a) The affidavit of Hamish John Gillis, and the annexures thereto, sworn and filed on 17 May 2021 ("first Gillis affidavit"); (b) The third affidavit of Hamish John Gillis, and the annexures thereto, sworn 15 October 2021, but filed 15 December 2021 ("third Gillis affidavit"); and (c) The fourth affidavit of Hamish John Gillis, and the annexures thereto, sworn and filed on 20 March 2022 ("fourth Gillis affidavit").

Background and overview of the pleadings 8 The applicant was declared bankrupt on 16 December 2017 and was discharged from bankruptcy on 23 December 2020 by reason of the operation of s 149 of the Bankruptcy Act 1966 (Cth) ("Act"). 9 The respondent is a registered trustee in bankruptcy and as from 21 December 2018 until the applicant's discharge from bankruptcy, was the trustee of his estate. 10 Pursuant to Division 4B of Part VI of the Act, there were three contribution assessment periods during the course of the applicant's bankruptcy. The first ran from 16 December 2017 to 15 December 2018 ("CAP 1"); the second from 16 December 2018 to 15 December 2019 ("CAP 2"); and the third from 16 December 2019 to 15 December 2020 ("CAP 3"). 11 In the course of the applicant's bankruptcy, a dispute arose between the respondent, the applicant, and other parties concerning the examination of various individuals in relation to the applicant's bankruptcy, in particular the applicant's brother, Richard Bertram ("Richard") and the applicant's mother, Ms Chaya Bertram ("Ms Bertram"): Amended statement of claim ("ASoC") [4]-[11]. 12 The dispute was settled ("Settlement"). It is not in dispute that as a part of the Settlement, examination summonses addressed to the applicant, Richard, Ms Bertram and a Partner of CCK Lawyers ("CCK"), Mr James Cudmore ("Mr Cudmore"), who was retained to act for the applicant in relation to the applicant's bankruptcy, would be set aside. It was a further term of the Settlement that the respondent would not object under s 149B of the Act to the discharge of the applicant from bankruptcy on 17 December 2020. 13 Under the terms of the Settlement, CCK was to provide copies of invoices and an electronic file comprising a Microsoft Excel spreadsheet, defined in the pleading as "the CCK spreadsheet", which set out by reference to dates, narrative description and other data, time entries for work performed by CCK for each of the applicant, Richard, Ms Bertram and Darisha Holdings Pty Limited ("Darisha"), a company controlled by Richard: ASoC [10]. 14 The applicant alleges that in compliance with the Settlement, the CCK spreadsheet was provided to the respondent under cover of a letter from CCK dated 7 December 2020: ASoC [10]. 15 The applicant alleges that the conditions of the Settlement were satisfied such that on 18 December 2020 White J discharged examination orders addressed to the applicant, Richard, Ms Bertram and Mr Cudmore, and on 23 December 2020 the respondent withdrew a notice of objection to the discharge of the applicant's bankruptcy pursuant to s 149J of the Act: ASoC [11]. 16 The respondent alleges that contrary to the Settlement, the applicant has failed to provide the respondent with documents in respect of three CCK files being Nos. 262261-1; 262261-2 and 261864-1: Third amended defence ("Defence") [9]-[11]. In particular, the respondent alleges that under the terms of the Settlement, he was to be provided with various documents to enable him to calculate or otherwise assess benefits received by the applicant during the period of his bankruptcy, together with any direct or indirect benefit provided by Richard, Ms Bertram, or Darisha, but that has not occurred: Defence [10.3.1], [10.3.4]. 17 It is not in dispute that: (a) On 18 March 2021, the respondent wrote a letter to the applicant informing him that pursuant to s 139W of the Act, he had made a revised assessment of the applicant's income for CAP 1, CAP 2 and CAP 3 in the amounts of $23,804.75, $86,480.67 and $131,134 respectively: ASoC [12]-[20]; (b) On 18 March 2021, the respondent sent to the applicant a certificate signed by the respondent and dated 18 March 2021 to the effect that the applicant was, by reference to the respondent's assessment dated 18 March 2021, liable to pay under s 139W(1) or (2) of the Act, the amount of $178,401.76: ASoC [22]; and (c) On 16 April 2021, the respondent caused to be issued a notice, described by the applicant as "purportedly" given under s 77A of the Act to Exencion Advisory Pty Ltd, seeking access to books of that company as an associated entity of the applicant: ASoC [36]. 18 The applicant alleges that each of the revised assessments for CAP 1, CAP 2 and CAP 3 are invalid, void and of no effect, and do not operate so as to impose any liability on the applicant to make any contribution payment to the respondent under Division 4B of Part VI of the Act, or at all: ASoC [35]. 19 The applicant alleges further that the respondent was not authorised to issue the s 77A notice: ASoC [38]-[39].

The pleadings 20 The applicant's pleaded case is that: (a) In issuing the revised CAP 1, CAP 2 and CAP 3 assessments, the respondent could not have been satisfied for the purposes of s 139W(2) that the applicant had derived income within the meaning of s 139L(1)(a)(v) of the Act: ASoC [24]; (b) In issuing the revised CAP 1, CAP 2 and CAP 3 assessments, the respondent could not have been satisfied for the purposes of s 139W(2) that the applicant had derived a non-cash benefit, being legal services provided to the applicant, with such benefit being treated as income pursuant to s 139L(1)(a)(v) or (vi) of the Act: ASoC [24] - [26]; (c) The respondent knew or ought to have known by reference to all of the data set out in the CCK spreadsheet that not all the work done by CCK had been charged to any person or invoiced by CCK such that the respondent could not have been satisfied that any amount of money had been paid to the applicant or at his direction: ASoC [27]; (d) As a consequence of the matters set out above, the revised CAP 1, CAP 2 and CAP 3 assessments are invalid, void and of no effect: ASoC [28]; and (e) Further or in the alternative, the revised CAP 1, CAP 2 and CAP 3 assessments did not comply with the requirements of s 139W(4) of the Act such that it was not possible for the applicant to be in a position to exercise any rights to challenge or seek a review of the revised CAP 1, CAP 2 and CAP 3 assessments whether under s 139ZA of the Act or otherwise. 21 The applicant alleges further a failure by the respondent to comply with various insolvency practice rules before alleging it is further a want of good faith on the part of the respondent: ASoC [30] - [31]. 22 The applicant then pleads two further matters against the respondent: (a) The first is that no benefit was provided to the applicant in connection with legal services provided by CCK: ASoC [32] - [33]; and (b) The second is that the revised assessments were not issued in accordance with the requirements of the Act: ASoC [34] - [35].

The interlocutory application 23 When the interlocutory application was called on for argument, Ms Walker of Counsel, who appeared for the respondent, provided to the Court draft minutes of order, dated 23 March 2022, identifying a limited number of documents the respondent now seeks. Those draft minutes record: 1. The applicant give discovery of each of the documents (including without limitation all work papers, memoranda, electronic records and records from time recording software) of the following: 1.1 Any records of credits and debits to the CCK Lawyers trust account made by, for or behalf of any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd in relation to CCK File no 262261-2 and/or 261864-1. 1.2 Any communication between CCK and any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd requesting payment of fees, costs or disbursements in relation to CCK File no 262261-2 and/or 261864-1. 1.3 Any communication between any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd relating to the payment of fees, costs or disbursements incurred or to be incurred under the terms of engagement of CCK Lawyers by any of Richard Bertram, Cheya Bertram, David Bertram or Darisha Holdings Pty Ltd in relation to CCK File no 262261-2 and/or 261864-1 (the Retainers). 1.4 Any document recording any payment made by Richard Bertram, Cheya Bertram or Darisha Holdings Pty Ltd for or on behalf of David Bertram in respect of legal fees. 1.5 Any document recording any attempts made by David Bertram to obtain legal aid or unpaid legal assistance. 24 It is evident from the draft minutes of order that the respondent seeks standard discovery by the applicant of a limited category of documents. 25 The draft minutes of order are directed to the applicant. In so far as any of the orders refer to documents held by CCK, that is limited to documents it holds for the applicant in its capacity as solicitor.

Principles 26 In this Court, a party must not give discovery unless the Court has made an order for discovery: FCR 20.12. Further, a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceedings as quickly, inexpensively and efficiently as possible: FCR 20.11. The rules reflect the overarching purpose of the civil practice and procedure provisions pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"): Construction, Forestry, Mining and Energy Union v BMP Coal Pty Ltd (No 2) [2011] FCA 1396 [21]. 27 In the event the Court orders that a party give standard discovery: FCR 20.14(1), such an order requires a party to discover documents: (a) that are directly relevant to the issues raised by the pleadings or the affidavits; and (b) of which, after reasonable search, the party is aware; and (c) that are, or have been, in the party's control. 28 FCR 20.14(2) sets out the requirements for direct relevance for the purposes of FCR 20.14(1)(a). It provides that: (2) For paragraph (1)(a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party's own case; (c) the documents support another party's case; (d) the documents adversely affect another party's case.

The applicant's submissions 29 The applicant filed comprehensive written submissions identifying five grounds upon which the discovery sought should not be ordered: (a) The documents are not relevant to the exercise of the discretion; (b) The documents are not sufficiently probative of any matter that could be upon the Court's discretion; (c) The respondent already has many of the documents he now seeks; (d) A discovery order would operate oppressively; and (e) The respondent previously gave up his statutory entitlement to seek documents.

The documents are not relevant to the exercise of the discretion 30 The applicant's first ground is that the central issue in the proceedings requires the Court to consider what the respondent has done, not what he might have done. In particular, the issue is whether the respondent has done what was authorised by s 139W of the Act. The applicant refers to the statement by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1994] HCA 42; (1944) 69 CLR 407 at 430-432: Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power. … … It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 31 The applicant also refers to Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 6; (1949) 78 CLR 353, 360 (Dixon J). So too see Gedeon v Commissioner of the New South Wales Crime Commission and Ors [2008] HCA 43; (2008) 236 CLR 120, 139 [43]-[44]. 32 So it is that the applicant submits that the Court's discretion to grant relief depends on whether the applicant is able to satisfy the Court that the respondent did not have the necessary state of mind required by s 139W of the Act. On that basis, the applicant submits that the documents sought by the respondent are not relevant. 33 I do not accept that submission. 34 Whereas, it is the case that the applicant alleges the respondent could not have formed the required sate of satisfaction in s 139W(2)(a) or (c), the pleading goes further than that. In particular: ASoC [32] - [33] pleads: 32. Further and in the alternative, none of the amounts set out as 'Non-cash benefit (legal) in each and all of: 32.1 the Purported Revised CAP 1 Assessment; 32.2 the Purported Revised CAP 2 Assessment; and, or, 32.3 the Purported Revised CAP 3 Assessment; was a benefit, or a benefit of any value within the meaning of subsection 139L(1)(a)(v) provided to Mr Bertram by any other person for the purposes of subsection 139L(1)(a)(v) because: 32.4 the legal services which were the subject of the amounts of work in progress set out in the CCK Spreadsheet and the Naudi Spreadsheet were performed for the purpose of vindicating and protecting the vested rights of Mr Bertram, Mr Richard Bertram, Mrs Chaya Bertram and Darisha Holdings Pty Limited; and 32.5 the vindication and protection of a pre-existing right is not a benefit to the holder of that right; and, or, 32.6 the vindication and protection of a pre-existing right is not a benefit of any value within the meaning of subsection 139L(1)(a)(v) to the holder of that right. 33 Further, and in the alternative: … 33.6 to the extent that Mr Bertram has (contrary to his case) received any benefit, or the value of any benefit, by reason of his having had legal advice and representation from CCK Lawyers, then: 33.6.1 that benefit is not a benefit within the meaning of subsection 139L(1)(a)(v); and, or, 33.6.2 subsection 139L(1)(a)(v) and subsection 139W(2) do not operate so as to impose on Mr Bertram a liability to make any contribution under Part 48 of Division VI of the Bankruptcy Act for any of the amounts described as 'Non­ cash benefits (legal)' in each of the Purported Revised CAP 1 Assessment, the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment. 35 The pleading continues at ASoC [34]: 34. Further and in the alternative, to the extent that Mr Bertram has (contrary to his case) received any benefit, or the value of any benefit within the meaning of subsection139L(1)(a)(v), then: 34.1 Pursuant to subsection 139L(1)(a)(v) of the Bankruptcy Act, the value of the benefit or benefits represented by the data in the CCK Spreadsheet and the Naudi Spreadsheet is to be worked out in accordance with the provisions of the Fringe Benefits Assessments Act 1986 as in force on 1 July 1992 ('FBT Act') but subject to any modifications made by the regulations under the Bankruptcy Act as applicable during CAP 1, CAP 2 and CAP 3, being the Bankruptcy Regulations 1996 (now repealed) ('the Bankruptcy Regulations'); 34.2 The legal services referable to the CCK Spreadsheet and the Naudi Spreadsheet, to the extent (contrary to the case of Mr Bertram) that they record any benefit to Mr Bertram, are residual benefits within the meaning of section 45 of the FBT Act; 34.3 Section 50 of the FBT Act sets out a means for working out the 'taxable value' of a 'residual fringe benefit' under the FBT Act and the Bankruptcy Regulations modify the provisions of section 50 for the purposes of subsection 139L(1)(a)(v) of the Bankruptcy Act such that the value of a residual fringe benefit in relation to each of CAP 1, CAP 2 AND CAP 3 is the cost to the provider of providing that benefit reduced by the amount of the recipient's contribution such that: 34.3.1 The recipient of the benefit is Mr Bertram; 34.3.2 The provider of the benefit is CCK Lawyers (and not any other person); 34.3.3 No other person had, during CAP 1, CAP 2 and CAP 3 paid CCK Lawyers for any benefit provided by CCK Lawyers to Mr Bertram; and 34.3.4 The value of the benefit so provided by CCK Lawyers in relation to CAP 1, CAP 2 and CAP 3 is the cost to CCK Lawyers in providing that benefit; and 34.3.5 The value of the benefit so provided by CCK Lawyers in relation to CAP 1, CAP 2 and CAP 3 is not the amount or amounts which CCK Lawyers may have, but did not, charge for the provision of that benefit; 34.4 Mr Naudi did not, in relation to each of the Purported Revised CAP 1 Assessment, the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment work out the value of the benefit represented by the 'Non-cash benefit (legal)' in accordance with the requirements of subsection 139L(1)(a)(v); 34.5 Mr Naudi did not, in relation to each of the Purported Revised CAP 1 Assessment the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment attempt to work out the value of the benefit represented by the 'Non-cash benefit (legal) in accordance with the requirements of subsection 139L(1)(a)(v); 34.6 Mr Naudi did not, in relation to each of the Purported Revised CAP 1 Assessment, the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment attend to his duties as trustee and under the Bankruptcy Act; 34.7 Mr Naudi did not, in relation to each of the Purported Revised CAP 1 Assessment, the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment act in good faith; and 34.8 Mr Naudi did not, in relation to each of the purported Revised CAP 1 Assessment, the Purported Revised CAP 2 Assessment and, or, the Purported Revised CAP 3 Assessment satisfy himself to the degree, standard, character and nature required as pleaded in paragraph 12A herein. 36 FCR 20.14(1) provides that if the court orders a party to make standard discovery, the party must give discovery of documents that, amongst other things, are directly relevant to the issues raised by the pleadings. 37 It is readily apparent from the paragraphs of the pleading I have set out above, that the issues in this matter also entail whether a benefit, or a benefit of any value within the meaning of subs 139L(1)(a)(v) of the Act, was provided to the applicant in connection with legal services and if so, to the extent that the applicant has received a benefit, or the value of any benefit, within the meaning of subs 139L(1)(a)(v) of the Act, how that benefit or the value of that benefit is to be calculated. 38 The matters raised in these paragraphs involve a factual enquiry. I acknowledge the submissions of Mr McDonald SC, senior counsel for the applicant, that the applicant did not intend to plead factual issues in these paragraphs but nonetheless, in my view they do so. 39 The documents the respondent seeks are documents which go to the benefit, or the value of any benefit, which may have been received by the applicant.

The documents are not sufficiently probative of any matter that could bear upon the Court's discretion 40 The second ground advanced by the applicant in opposition to the application is that the documents are not sufficiently probative of any matter that could bear upon the Court's exercise of its discretion. In seeking to make good this submission, the applicant delves into the merits of the matter and makes a series of submissions as to the effect of material that has already been provided to the respondent. It may well be that the applicant is correct but that is a matter that will have to await trial. 41 I consider that the documents the respondent seeks are relevant to the factual enquiry raised on the pleadings. Their probative value is a matter that will have to await trial but their description is such that not only do they appear to be relevant to the matters raised on the pleadings by the applicant, it cannot be said at this stage that they have no probative value. 42 Accordingly, I do not accept this submission.

Mr Naudi already has many of the documents that he now seeks 43 The third ground relied upon by the applicant is that on the basis of the fourth Gillis affidavit, even if discovery is made, it is likely to be far less fruitful than Mr Naudi appears to apprehend. 44 That may well be the case, I simply do not know. Nonetheless, that is not a basis upon which an order for discovery of these limited categories of documents should not be made. 45 Accordingly, I do not accept this submission.

A discovery order would operate oppressively 46 The fourth ground is that the order sought is oppressive. 47 I do not accept this submission for the following reasons. 48 The applicant refers to the fourth Gillis affidavit and submits that the categories of discovery sought are very broad, are protected by legal professional privilege, and will require extensive searching and compiling of documents related to the internal practice management of CCK. 49 As to the first point, that the categories of discovery sought as originally framed are broad. It was against that breadth of discovery that the applicant prepared written submissions. The orders now sought by the respondent do not appear to me to be particularly broad. 50 The second point is that the documents are protected by legal professional privilege. That is unlikely to be the case for every document but to the extent it does apply, that does not mean that the document should not be discovered. The privilege applies to protect the privilege holder from the obligation to produce a document. 51 The third point is that discovery of the documents will require extensive searching and compiling of documents. As with the first point, I do not accept that that is the case. It seems to me that the request for discovery is now focused and should not require a great deal of searching and compilation.

Mr Naudi previously gave up his statutory entitlement to seek the documents 52 The fifth and final ground is that by Mr Naudi agreeing to withdraw his objection to the discharge of the applicant from bankruptcy, he had admitted tacitly that there was no utility in conducting further investigations. The applicant submits that either Mr Naudi had sufficient information to be satisfied for the purposes of s 139W(2), or he did not. Since he withdrew his objection, it is now not open for Mr Naudi to complain about not receiving the documents which were to be provided in accordance with the settlement agreement. 53 Whether that is right or not, the applicant chose to issue these proceedings and by his pleading, has put in issue factual matters for the consideration of the Court. With respect, the applicant cannot be seen to complain about the issuing of the Revised CAP 1, CAP 2 and CAP 3 Assessments, raise factual matters in his pleading, and then argue against the making of a discovery order for documents which, on their face, are relevant on the pleadings. 54 For these reasons, I do not accept this submission.

Conclusion 55 I am satisfied that the respondent is entitled to an order for discovery in the terms it now seeks. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.