1. The Respondent listed in the email four decisions upon which it relied.
2. A telephone directions hearing was held on Thursday 20 June 2019 and argument about the standing issue proceeded on Monday 24 June 2019. On Sunday night 23 June 2019 at 11:24 pm the Applicant provided to the Tribunal by email affidavits sworn by himself and his wife.
3. The Applicant was directed to submit further submissions on the standing issue by close of business on 10 July 2019. He did not do so. On 18 July 2019, the Respondent advised that it would not be making submissions.
4. By email at 8:55 am on 22 July 2019, the Tribunal advised the parties that it would publish its decision at 9:00 am on 23 July 2019. About 3:00 pm on 22 July 2019, the Applicant emailed the Tribunal seeking a telephone directions hearing before publication of the decision in order to ensure all the material he relied on was considered by the Tribunal and setting out circumstances that had prevented his complying with the direction.
5. During a telephone directions hearing on 25 July 2019, the Applicant was granted an extension of time within which to lodge his submissions until close of business on 29 July 2019 and the Respondent was granted until close of business on 5 August 2019 to reply. The Applicant filed submissions at 4:22 am on 30 July 2019. The Respondent filed the reply on 31 July 2019. Later that day in response to the Respondent's submissions which included comments about there being no evidence to support aspects of the Applicant's submissions, the Applicant emailed the Tribunal claiming that he had not had an opportunity to put on relevant evidence and seeking a telephone directions hearing to address his concern.
6. At a further telephone directions hearing held on 5 August 2019, directions were made that the Applicant file evidence and submissions specifically addressing how each document provided supported his case in relation to Running Balance Accounts (RBAs) and loans. He provided further evidence and submissions. The Respondent did not provide any evidence or submissions in reply.

1. Usually a person's standing to apply to the Tribunal for a review of a decision is determined pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) (AATA) s 27. However, where a review relates to a "reviewable objection decision" made by the Respondent, the Taxation Administration Act 1953 (Cth) (Administration Act) Part 4C applies. Section s 14ZZB(1) modifies the AATA so that s 27 of the AATA does not apply and s 14ZZ(1) of the Administration Act does. That provision provides:

If the person is dissatisfied with the Commissioner's objection decision (including a decision under paragraph 14ZY(1A)(b) to make a different private ruling), the person may:

(a) if the decision is a reviewable objection decision - either:

(i) apply to the Tribunal for review of the decision; or

(ii) appeal to the Federal Court against the decision; or

(b) otherwise - appeal to the Federal Court against the decision.

1. The Respondent relied on the following decisions, which had been listed in its 18 June 2019 email, to support its argument that because the Applicant is an undischarged bankrupt, he has no standing to seek review of the decision to disallow his objections to the assessments:
   • Robertson v The Deputy Commissioner of Taxation [2003] FCA 944
   • Robertson Jnr v Deputy Commissioner of Taxation of the Commonwealth of Australia [2004] FCAFC 46
   • Spirakos v Deputy Commissioner of Taxation [2005] FCA 1068
   • Spirakos v Deputy Commissioner of Taxation [2005] FCAFC 229
2. The Tribunal drew the parties' attention to the High Court's decision in Spirakos v Deputy Commissioner of Taxation [2006] HCATrans 303 (15 June 2006) refusing Mr Spirakos special leave to appeal.
3. In Robertson Jnr (and Robertson), the bankruptcy occurred after the application was made to the Tribunal for review of the Respondent's objection decisions but before the Tribunal conducted the reviews. Mr Robertson became bankrupt on his own petition. The Tribunal held that Mr Robertson lost his standing to maintain his application for review when he became bankrupt, "standing" having vested in his trustee in bankruptcy.
4. In Spirakos, the applicant applied to the Tribunal for review of the Respondent's decision to disallow his objection to two tax assessments while he was bankrupt and the Tribunal determined that it did not have jurisdiction to hear the application because he was bankrupt. The Deputy Commissioner of Taxation was the petitioning creditor in that case.
5. The Tribunals' decisions in both Robertson and Spirakos were, in effect, upheld by a single judge of the Federal Court and then the Full Court of the Federal Court. In Spirakos the High Court said that there was "no reason to doubt the correctness of the orders made by the Full Court", to dismiss the appeal.
6. The earlier decision of the Full Court of the Federal Court in McCallum v Commissioner of Taxation [1997] FCA 533; (1997) 75 FCR 458, is the seminal case. It applied the High Court's decision in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 where the majority (Brennan CJ, Gaudron and McHugh JJ) said at 137-138:

So far as a judgment entered in an action against a bankrupt creates or evidences a provable debt, we respectfully agree that the bankrupt has no financial interest which would confer locus standi to appeal in his own name against the judgment. That is because it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts.

Of course, a money judgment entered against a bankrupt has the effect of increasing the amount of the debts provable in his estate. But it is immaterial that, if an appeal against the judgment were successful, there would or might be a surplus in the estate after the remaining creditors are paid.

1. The Tribunal's decision in McCallum was given before the High Court's decision in Cummings. The Tribunal held that the right to prosecute the appeal against the objection decision vested in Mr McCallum's trustee in bankruptcy by force of being "property" and any right to appeal that decision vested in the trustee from the date of the communication of the objection decision_._ As a consequence of the decision in Cummings, it was conceded on behalf of the Commissioner of Taxation in the Full Federal Court, that the right to pursue an appeal against the objection decision was not "property" which vested in Mr McCallum's trustee in bankruptcy and so the foundation for the Tribunal's decision was swept away.
2. Therefore, in the Full Federal Court, the question in McCallum was whether a bankrupt who "is divested of both his interest in his property and liability for his provable debts" is a person who is "dissatisfied" with the objection decision. The petitioning creditor was not the Deputy Commissioner of Taxation in that case.
3. Lehane J, with whom Whitlam J agreed, set out his reasoning and said at 475:

For those reasons, in my opinion the decision in Cummings is applicable to this case, with the result that Mr McCallum is likely to lack standing to apply to the AAT for a review of the objection decision. I use the phrase "is likely to" deliberately: he will not have standing merely because, for example, a successful challenge to the objection decision may result in a surplus in his bankrupt estate or because of any effect that the assessments and the objection decision may have upon his reputation. It is conceivable, however, that there may be some other footing in which he could claim standing: for example, it may be that an objection decision in relation to a particular assessment will have consequences in relation to tax payable, perhaps in years following discharge from bankruptcy, for which Mr McCallum will be personally liable. Such a possibility was not canvassed in argument, and I express no opinion about it. (Emphasis added.)

1. Justice Hill wrote a forceful dissenting decision.
2. The Court set aside the decision of the Tribunal because it was wrong in law, and remitted the matter to the Tribunal for further consideration in light of the Court's reasons.

Is the Respondent estopped from arguing the standing issue?

1. The first argument put by the Applicant was that the Respondent is estopped from arguing that he has no standing because of its actions in these proceedings in the six months from the making of the sequestration order in December 2018 until it raised the standing issue on 18 June 2019, which included opposing a stay application in January 2019.
2. Where a matter in dispute falls outside the jurisdiction of a tribunal or a judicial body, the parties cannot confer jurisdiction by consent. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission, the High Court said:

The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make.[1]

1. The principle has a long history in Australian law.[2] It has been applied in the tribunal context, including in relation to this tribunal. For example, in Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186 at 195, Bowen CJ said:

The case before this court is not merely one of parties agreeing upon what facts should be decided by the trier of fact, nor a case of facts, peculiarly within the knowledge of the party, being conceded. Rather, there was a clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties' submissions. In these circumstances it was an error of law not to consider and decide the issue ...

1. In Re Bowen and Repatriation Commission [1994] AATA 53; (1994) 32 ALD 700, the Tribunal held that the statutory authority could not waive compliance with a statutory limitation period and it was not estopped from raising the issue because it was not raised in the tribunal below.
2. In this case, the issue raised is the statutory precondition whether the Applicant has standing to proceed with his application for review in the Tribunal pursuant to s 14ZZ(1) of the Administration Act. The Respondent is not estopped from raising the issue.

Does the fact the bankruptcy occurred after the proceedings commenced distinguish the Applicant's case?

1. The Applicant argued that he is a person dissatisfied with the objection decision pursuant to s 14ZZ(1) of the Administration Act because his estate was not subject to the sequestration order when he applied to the Tribunal and the Tribunal had jurisdiction.
2. That was also the case in Robertson. The Full Court in Robertson Jnr wrote that no submission was made to the single Judge or to it that that fact made that case relevantly distinguishable from the circumstances the Full Court considered in McCallum.[3] The court did not consider the question.
3. Therefore Robertson Jnr is not authority for the proposition that upon bankruptcy the "taxpayer lost standing to apply for review to the Tribunal of an objection decision because he no longer could he be said to be 'a person [who] is dissatisfied' with the Commissioner's objection decision within the meaning of s 14ZZ", as the Respondent asserted.
4. The Applicant was a person who was dissatisfied with the Respondent's objection decision when he applied to the Tribunal for review of the decision as required by s 14ZZ(1) of the Administration Act. Can the Applicant maintain the proceedings after the sequestration order has been made?
5. In Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 583, five judges of the Federal Court considered the question of standing in the context of s 27 of the AATA, which is replaced by s 14ZZ(1) of the Administration Act pursuant to Part 4C of that Act. Section 27 relevantly provides:

Where this Act or any other enactment ... provides that an application may be made to the Tribunal for review of a decision, the application may be made by or on behalf of any person or persons .... whose interests are affected by the decision.

1. The Court considered the question should standing be considered only as at the time of application.[4] The Court said:

It is evident from the use of the present tense in s 27 that a person making an application to the Tribunal for review of an administrative decision must at the time of application be a person whose interests were at that time still affected. It may be possible to argue that conferral of a right of review on a person who, at the time reconsideration of the ... decision ... was sought, was a person affected by the decision, suffices to make the person a person affected by the decision for the purposes of the AAT Act. That proposition is not self evident. It would be strange if, circumstances having changed, the Tribunal would be required to conduct a review where at the time an application was made to it, the interest the person had at the time the decision was made and first challenged had disappeared. The more logical construction of s 27 of the AAT Act is that the question of standing would have to be tested at the time the application is made to the Tribunal, so that if there is a change of circumstances there is no accrued right which requires the Tribunal to disregard that change of circumstance.[5]

It is unnecessary to determine the issue for the obvious reason that whether standing is conclusively determined at the time of review but the application becomes vexatious if circumstances change, or whether standing may be reconsidered if circumstances change, the result is the same. The proceedings will be dismissed. In the present case had we been of the view that Mr Allan did have standing at the time of instituting the application to the Tribunal for review, we would have been of the view that, had circumstances changed to take away from him the interest in the proceedings he had at the time of application, his application should be dismissed.[6]

1. The reasoning in Transurban supports the conclusion that the logical construction of s 14ZZ(1) of the Administration Act is that if there is a change of circumstances there is no accrued right which requires the Tribunal to disregard that change of circumstances. Therefore, the Applicant does not have standing to maintain these proceedings, unless he can show that he falls within the limited class of bankrupts whom Lehane J identified in Robertson Jnr may be "dissatisfied" within the meaning of s 14ZZ of the Administration Act.

Does the Applicant fall within the limited class of bankrupts identified by Lehane J in Robertson Jnr?

1. In support of his claim to be "dissatisfied" within the meaning of s 14ZZ(1) of the Administration Act because the objection decisions may have ramifications for him after his discharge from bankruptcy, the Applicant pointed to two categories of deposits into his accounts which he claims were not income but which the Respondent has decided were income and argued that the Respondent will continue to apply those decisions to assessments after he is discharged from bankruptcy. The first category was dividends from shares which he claims are owned by his wife. She provided evidence in support of that claim. The second category was loan repayments to him from various entities. The evidence and submissions received after the hearing in respect of the loan category was confined to one company and three wholly owned subsidiaries.
2. Assuming the Applicant is correct in his claims that those two categories of deposits are not income, the Tribunal does not accept his proposition that there is an in principle decision made by the Respondent that will continue to be applied to tax assessments after his discharge from bankruptcy and that will have consequences in relation to tax payable, in years following discharge from bankruptcy for which he will be personally liable. The Applicant has an obligation to lodge his tax returns disclosing his income. In the event that the Respondent issued amended tax returns assessing the Applicant on either category of deposit as income, the Application would then have the opportunity to provide evidence in support of his position, to object to the assessment, and if unsuccessful, to then seek review in the Tribunal. The documentation the Applicant provided to the Tribunal on these matters appears not to have been provided to the Respondent previously. It is noted that the amount of the income from the shares for the three tax years under review totalled less than $100. Therefore, the Tribunal does not accept the argument that the two categories of deposits into the Applicant's accounts and the consequences in relation to tax payable arising from those deposits makes the Applicant a dissatisfied person.
3. The Applicant also asserted he was a dissatisfied person because of RBAs held by the Respondent. He provided three RBA statements for himself for the period 1 July 2018 to 26 January 2019 which had a total payable amount of less than $10,000 at the end of that period. He provided one RBA statement for the period 30 September 2018 to 27 October 2018 in the name of a trustee of a trust. He said he was "personally" the trustee. The total payable at 27 October 2018 was less than $100,000 and if paid on 19 November 2018, the total payable was approximately $500 more.
4. He argued that the Respondent maintained an RBA reflecting its prior claims against him for approximately $300,000 which it concedes is now compromised by the sequestration order and in respect of which it can take no further steps. Therefore, the RBA statements he provided demonstrate that the Respondent is making and maintaining two separate additional claims on him for payment of money which purport to survive the sequestration order which would obviously impact on future dealings with the Respondent. If the amounts he owed the Respondent were "quarantined" by the sequestration, the RBA balance should be nil.
5. The RBA statement in the name of a trustee of a trust is for a period prior to the sequestration order. It is not apparent that that RBA continues, assuming the Applicant is personally liable.
6. The most recent of the three RBA statements issued to the Applicant is dated 26 January 2019.
7. In his submissions dated 29 July 2019, the Applicant set out the history of the bankruptcy proceedings as follows. He was unaware of the listing at the Federal Circuit Court in December 2018 and did not attend. The presiding judge issued a sequestration order against him but stayed the order for 21 days. Within that period, the Applicant applied to that court to set the order aside. The judge heard the application in late February 2019 and confirmed the order. In the Respondent's submissions dated 24 June 2019, it noted that the Australian Financial Security Authority issued a Notification of Bankruptcy in late March 2019.
8. Given those facts, there being no RBA statement after the February 2019 court hearing, casts doubt on whether there is indeed a continuing RBA.
9. In Robertson Jnr it was argued unsuccessfully in the Full Federal Court that a primary tax debt allocated to an RBA by the Respondent before the taxpayer's bankruptcy, whilst no longer payable by the taxpayer, could have adverse consequences for the taxpayer following his discharge from bankruptcy by negating an entitlement that he might otherwise have to a refund of an RBA surplus.
10. The Applicant's argument that he has standing because of the RBAs is not accepted. It is not apparent that the Respondent is making and maintaining two separate additional claims on him for payment of money which purport to survive the sequestration order. Further, he has not specified how the primary debts referred to in those statements, which existed prior to his bankruptcy, could have adverse consequences for him following his discharge from bankruptcy.
11. The Tribunal does not accept the Applicant's argument that he has standing on the basis identified by Lehane J in McCallum.

Are the Applicant's circumstances otherwise distinguishable from those in McCallum, Robertson and Spirakos?

1. The Applicant sought to distinguish his circumstances from those of each of Mr McCallum, Mr Robertson and Mr Spirakos. The Tribunal does not accept that his circumstances lead to the conclusion that the legal principle applied in each of those decisions does not apply to him.

The Applicant's challenge to the majority decision in McCallum

1. The Applicant sought to challenge the correctness of the majority decision in McCallum and rely on the dissenting decision of Hill J. He said that there was an enormous injustice because he was not able to contest the assessments in the District Court, the only place he can is this Tribunal, and having obtained judgment, the Respondent successfully applied to make him bankrupt, and the trustee in bankruptcy does not have standing under s 14ZZ.
2. As the Tribunal advised the Applicant, it is bound by decisions of the courts.[7] The majority decision in McCallum has been followed by the Full Federal Court in the two later decisions of Robertson Jnr and Spirakos. The High Court found no error in Spirakos. The Respondent was the petitioning creditor in that case. Despite the forceful dissent of Hill J in McCallum, Parliament has not amended the legislation.
3. Counsel for the Respondent acknowledged that there is some appeal in the reasoning of Hill J and pointed to the High Court's decision in Deputy Commissioner of Taxation and Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473. It was not about standing. There were three cases before the Court in which the three respondents were related companies. Relevantly, the question was whether the Deputy Commissioner could recover a tax debt while review proceedings in relation to objection decisions in respect of those debts pursuant to Part IVC of the Administration Act, were pending in the AAT.
4. The Court held that "pendency of the AAT proceedings under Part IVC of the Administration Act does not impede recovery in the meantime" and referred to s 14ZZM of the Administration Act."[8]
5. The Court talked about the significance of tax legislation and referred to various decisions which commented on the harshness of provisions which enabled recovery despite applications pending for review. The majority said:

But harsh though the operation of these provisions may be, they implement a long-standing legislative policy to protect the interests of the revenue...[9]

1. That comment may equally apply to the effect in this case of the legislative scheme the subject of these proceedings, as presciently set out by Hill J in McCallum at page 469. Here, the Respondent issued an assessment, the taxpayer objected, the assessment may be recovered as a debt, the Respondent proceeded to judgment and issued a bankruptcy notice which cannot be challenged because the assessment is unchallengeable and the taxpayer loses the right to appeal and is made bankrupt without having a right to challenge the assessment. His Honour concluded:

It could not happen, could it?[10]

1. For the reasons set out above, the Applicant does not have standing to maintain this proceeding. Subject to what follows, the Tribunal would have held that it has no jurisdiction and dismissed the proceedings.

1. There is however a question that arises on the material that was not addressed by either party which relates to the appropriate order that should be made. We think it appropriate to raise the question for consideration. It arises from the scheme of the Bankruptcy Act 1966 (Cth), which was referred to in both Cummings and McCallum.
2. In Cummings, s 60(2) of that Act was referred to. It provides:

An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

1. Subsection 60(3) provides:

If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

1. Subsection 60(5) provides:

In this section, action means any civil proceeding, whether at law or in equity.

1. In Cummings, having referred to s 60(2) of the Bankruptcy Act, Brennan CJ, Gaudron and McHugh JJ said:

But the respondents submit that it would be anomalous if the Act operated to stay an appeal commenced prior to the bankruptcy but not to stay an appeal commenced after the bankruptcy. The anomaly is avoided only if the respondents are right in contending that the appellants, upon becoming bankrupt, had no locus standi to institute an appeal either (i) because their rights to appeal were property vested in their respective trustees or (ii) because the fact that the judgment was enforceable only against property vested in the trustee meant that the appellants ceased to have the interest necessary to give a right to appeal.[11]

1. The Court held that there was no locus standi for reason (ii).
2. In McCallum, Lehane J considered whether the trustee has standing to initiate a review. He considered three questions to determine the issue. The third was whether a review for which application was made under s 14ZZ(a)(i) is a "legal proceeding" for the purposes of s 134(1)(j) of the Bankruptcy Act which provides that a trustee may "bring, institute or defend any action or other legal proceeding relating to the administration of the estate". His Honour said:

It would be a mistake, I think, unless the language or authority compels it, to read para 134(1)(j) in a way which narrows rather than enlarges the authority of a trustee in bankruptcy to take appropriate steps in the administration of the estate, for the benefit of those having claims upon it. Authority does not compel a construction of "legal proceeding" which limits that phrase to proceedings in a court.[12]

After considering a number of authorities, His Honour concluded:

I think para 134(1)(j) should be similarly construed, so that an application under subpara 14ZZ(a)(i) is to be regarded as (as an appeal under subpara (ii) clearly is) a legal proceeding.[13]

...

That being so, in my opinion it should be held, consistently with Cummings, that in this case, the Official Trustee has standing to apply for a review of the objection decision.[14]

1. The questions that arises in this case are whether these proceedings were stayed pursuant to s 60(2) of the Bankruptcy Act when the sequestration order was made in December 2018, and if so, is it appropriate for the Tribunal to dismiss the proceedings when there is no evidence before it that the trustee has been served with notice of this proceeding or has made an election? The Respondent mentioned communication with the trustee during a telephone directions hearing but there is no evidence of the trustee has been served with a notice of these proceedings or of any election made.
2. The question of how to deal with a matter when s 60(2) and (3) apply, has been addressed in a number of decisions in the Tribunal, including Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690, Davey and Australian Electoral Commission and Ors [2014] AATA 355 and Barber and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 349. Different members have taken different approaches.
3. In Nugawela v Commissioner of Taxation [2018] FCA 1458, the Respondent formally notified the trustee in that case of three applications before the Tribunal for the purposes of s 60(3). Implicitly, s 60(2) was assumed to apply.
4. In that case, Colvin J said at [11]:

The deemed abandonment of proceedings effected by s 60(3) does not mean, of itself, that proceedings should be dismissed. It is a separate question in any particular case whether there ought to be a dismissal and what order as to costs may be made consequent upon the abandonment effected by the statute: State of Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99. There could be an application to dismiss the proceedings for want of prosecution consequent upon the deemed abandonment: Cole v Challenge Bank Limited [2002] FCAFC 200 at [16]. However, whether any such application might be acceded to will depend upon all relevant considerations presented at the time of the application.

1. If s 60(2) and (3) apply, what is the appropriate order? As we have found that the Applicant has no standing, we make the following direction only to the Respondent. We publish our draft reasons for decision and direct that within 14 days, the Respondent:
   • (i) provide written submissions on the application to the Tribunal of s 60(2) and (3) of the Bankruptcy Act and the appropriate order to be made in this case, and
   • (ii) if it accepts that those provisions do apply, notify the trustee in writing of these proceedings and provide evidence of the service of that notice to the Tribunal.

Post notification of draft reasons and making direction on 16 October 2019

1. On 16 October 2019, the Tribunal sent the parties draft written reasons which included the substance of paragraphs 1 to 68 above, and the direction, as proposed, to the Respondent. The draft reasons have been amended in light of the Applicant's email to the Tribunal on 27 November 2019 at 1:23 pm which is considered below.
2. On 17 October 2019, the Respondent sent the Tribunal and the Applicant an email attaching correspondence with the trustee in bankruptcy during the period from late February 2019 to 11 July 2019 about the course of these proceedings. The Respondent asserted that the correspondence showed that the trustee had been served with notice of these proceedings in March 2019 and had made no election within 28 days or thereafter and therefore the Tribunal could vacate the direction and finalise its decision, and suggesting alternative paths the Tribunal might take.
3. In our opinion, the correspondence shows that the trustee was waiting to see the outcome of these proceedings, that is, whether it was found that the Applicant had standing.
4. On 29 October 2019, the Applicant sent the Tribunal an affidavit affirmed on that day, which set out information he obtained from the Respondent by telephone on 28 October 2019 about one of his RBAs. The Applicant affirmed that an officer of the Respondent advised him during the telephone call the previous day that one of the RBAs had been debited a further amount in October 2018, and again in February 2019, after the February 2019 court hearing. The Applicant also affirmed that the officer had verified the Applicant's postal address and advised him that it would take about 10 days for a copy of the latest statement to be issued to him. No copy of that statement has been provided to the Tribunal.
5. That information does not cause us to change our findings about the RBAs. No document has been provided. The Applicant has not specified how the RBA could have adverse consequences for him following his discharge from bankruptcy.
6. On 21 November 2019, the Tribunal sent a direction to the parties in the following terms**:**

Pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal directs that:

1. Within 24 hours of receiving this direction, the Respondent is to provide to the Tribunal:
   • (a) a copy of the email it sent to the Official Trustee in Bankruptcy on or about XX October 2019 which included the Notice Under the Bankruptcy Act 1966 Section 60(2) Re: [the Applicant] (the Notice) and annexures; and
   • (b) a copy of any response received, or confirmation that no response was received within 28 days of sending the Notice.
2. The Respondent replied by email on 25 November 2019 because the solicitor with carriage of the matter had been ill. He attached a copy of the email sent to the trustee in October 2019 which had attached a copy of the notice to the trustee in accordance with the Tribunal's direction dated 16 October 2019.
3. There has been no response since the notice to the trustee was sent. More than 28 days have elapsed since the day the Respondent sent the email to the trustee which attached a copy of the notice to the trustee.
4. Having found that the Applicant has no standing and the trustee in bankruptcy is deemed to have abandoned the action pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth), we find that continuing the proceedings would be futile, and therefore the proceedings must be regarded as frivolous and vexatious, as discussed in Re Fearnley and Australian Fisheries Management Authority [2005] AATA 147; 87 ALD 159.
5. On 27 November 2019 at 10:01 am, the Tribunal notified the parties that it would publish the decision in this matter at 10:00 am on 28 November 2019. It received an email from the Applicant sent at 1:23 pm on that day in which he objected to publication because to do so would breach s 14ZZE of the Taxation Administration Act 1953 (Cth) which requires hearings to be held in private if requested by an applicant in the Tribunal, and based on the draft decision, publication can identify the Applicant. He sought a directions hearing and urgent confirmation that the matter will not proceed further prior to a directions hearing.
6. As set out above, the Applicant had been sent the draft written reasons on 16 October 2019 and submitted further evidence on 29 October 2019.
7. Taking into account the Applicant's objections, we have amended the draft written reasons. We do not consider it necessary to hold a directions hearing.
8. The parties were advised by email at 4:31 pm on 27 November 2019 that the matter will not be listed for a directions hearing and the decision will be published at 10:00 am on 28 November 2019. The parties were then advised by email at 5:00 pm on 27 November 2019 that the Tribunal will be making amendments to the draft reasons before publication in light of the Applicant's email.
9. On 27 November 2019 at 7:07 pm, the Applicant emailed the Tribunal, referred to the emails sent at 4:31 pm and 5:00 pm and maintained his request for a directions hearing. The Tribunal did not reply to the email from the Applicant sent at 7:07 pm.

1. The proceedings are dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member and N Gaudion, Member.

...................................[SGD]......................................

[1] [1981] HCA 48; (1981) 148 CLR 150 at 163 per Gibbs CJ, Stephen, Mason and Wilson JJ.

[2] See also R v Commonwealth Court of Conciliation and Arbitration [1909] HCA 20; (1909) 8 CLR419 per Isaacs J at 456; Macqueen v Frackelton [1909] HCA 28; (1909) 8 CLR 673 per Isaacs J at 709; Ridley v Whip [1916] HCA 76; (1916) 22 CLR 381 per Griffith CJ at 386.

[3] [2004] FCAFC 46 at [5] and [22].

[4] [1999] FCA 1723 at [58] to [69].

[7] Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378 at [34]; 81 ALR 25 at 387.

[8] [2008] HCA 41 at [29].

[10] [1997] FCA 533; (1997) 75 FCR 458 at 469.

[11] (1996) 188 CLR 124 at 131.

[12] [1997] FCA 533; (1999) 75 FCR 458 at 472.