The reinstatement claim
44 As noted above:
(a) the reinstatement claim is potentially viable only to the extent that it is understood, in substance, as an application for orders setting aside the termination decision on grounds of bias and/or improper purpose; and
(b) I consider that it should be understood in that way.
45 The first question that arises is whether the reinstatement claim suffers the same fate, pursuant to the Bankruptcy Act, as the compensation claim.
46 It is clear that the reinstatement claim does not involve any "claim for damages or compensation", and therefore does not engage s 116(2)(g) of the Bankruptcy Act. The question is whether the claim constitutes "property that belonged to, or was vested in" Mr Perez (s 116(1)(a)) or the "capacity to exercise, and to take proceedings for exercising [power] in, over or in respect of property as might have been exercised by [Mr Perez] for [his] own benefit" (s 116(1)(b)).
47 The underlying rights with which the reinstatement claim is concerned are Mr Perez's right to remain registered as a tax agent under the Tax Agents Act and the statutory rights and privileges attaching to that status. That is because the substance of the claim must necessarily be that the termination decision is affected by jurisdictional error and therefore, in legal terms, a nullity. The relief that would be granted if the claim succeeded (writs of prohibition and/or certiorari, and potentially a declaration of invalidity) would authoritatively establish the legal ineffectiveness of the termination decision, thus confirming the continued existence of the underlying rights which it purported to terminate.
48 These rights (if they exist) might possibly be characterised as "property" for some purposes. However, they are rights conferred by statute on Mr Perez - consequent and conditional upon satisfaction that he met relevant criteria - and not in their nature capable of "vesting" in the trustee in bankruptcy or becoming "divisible" among Mr Perez's creditors. They are not within the general conception of property set out by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247-1248 (a formulation quoted by Justices of the High Court: eg R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342 (Mason J); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 165 (Brennan J); ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; 240 CLR 140 at [197] (Heydon J)), as follows:
Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.
(Emphasis added.)
49 In my view, therefore, the underlying rights with which the reinstatement claim is concerned are not part of the "property" that becomes divisible under s 116(1)(a) of the Bankruptcy Act and thus not part of "the property of the bankrupt" that vests under s 58(1). The proposition that a statutory licence or status held by a bankrupt person vests in their trustee and becomes divisible among creditors need only be stated in order to be dismissed.
50 The conclusion reached in the previous paragraph makes it difficult to identify the right being exercised by Mr Perez in bringing the reinstatement claim as either a form of "property" (s 116(1)(a)) or a right to "take proceedings for exercising … powers in, over or in respect of property" (s 116(1)(b)). Two further points should be made here. One is that Mr Perez possesses the "capacity" to "take proceedings" in respect of the termination decision only in the sense that he has standing to seek the relevant public law relief. In theory at least, there could be other persons who also have standing. This is not a right personal to him. Similarly, the relief granted would enforce limits on the statutory power of the Board, and only indirectly vindicate private rights of Mr Perez (cf Health Insurance Commission v Peverill (1994) 179 CLR 226 at 241-243 (Brennan J)). The other point is that the potential forms of relief (writs of prohibition and/or certiorari, declarations and/or injunctions) are discretionary. The right to "take proceedings" therefore does not have a definite content in the sense that a court will necessarily grant relief to vindicate the underlying rights if they are made out. It is different in that way from, for example, a right to take proceedings for damages for breach of contract or negligence.
51 For these reasons, I am not satisfied that the Bankruptcy Act prevents Mr Perez from advancing the reinstatement claim.
52 The content of proposed declarations (4) to (6), set out at [17] above, indicates grounds on which the reinstatement claim might at least potentially be advanced. They foreshadow submissions that the termination decision was vitiated by actual bias or a reasonable apprehension of bias on the part of the Board itself or officers assisting it, and that the decision was made for an improper or extraneous purpose ("the intention of creating harm using the power of the public office, so they can united [sic] in obtaining a benefit dishonestly"). The reference to damages in this context is confusing, since damages clearly are not available as a remedy for the errors here alleged. However, it does not alter the fact that the allegations made in this part of the amended cross-claim would, if made out on the facts, provide a basis upon which the termination decision could be set aside.
53 The cross-respondents have led evidence establishing a course of communications between the Board and Mr Perez, and submit that there is nothing in the material currently before the Court to indicate any bias. This is true; however, the evidence does not negative the existence of bias, or of a basis upon which a fair minded observer might apprehend that the Board had a closed mind. It only establishes that Mr Perez was given a proper opportunity to make submissions and his submissions were considered. Mr Perez has not led any evidence that points persuasively to the existence of bias (or a basis for apprehending bias), or an improper purpose, but the time has not yet come for him to meet the onus of proof that he bears in that regard. I do not think it is possible, at this stage, to hold that the reinstatement claim has no reasonable prospect of success for evidentiary reasons. Indeed, it is difficult to see how evidence from the respondents, in a case where bias is alleged, could disprove the allegation to the standard required for summary dismissal.
54 A further potential hurdle facing the reinstatement claim is that, if it is understood as an application to set aside the termination decision (as I think it must be), it has been brought very late. Complaints concerning the termination decision were first raised in Mr Perez's original cross-claim, filed in December 2022 (more than three years after the decision), and do not seem to have solidified into any claim for relief in connection with that decision until the amended cross-claim was filed. Long delay in bringing a claim for relief under s 39B of the Judiciary Act is a discretionary consideration that may lead the Court to refuse relief (Daley v Child Support Registrar [2020] FCAFC 161 at [43] (Flick, Perry and Markovic JJ)). However, there is no formal limitation period (other than for claims in respect of migration decisions), and Mr Perez is therefore not in the position of needing to obtain an extension of time in order to advance the claim. The cross-respondents may yet submit that relief in respect of the termination decision should be refused in the exercise of the Court's discretion as a consequence of delay; however, they have not yet done so, and Mr Perez has therefore not been required to adduce evidence explaining the delay.
55 I am therefore not persuaded that the cross-claim should be summarily dismissed in so far as it seeks relief in respect of the termination decision.