ARTA|2025-11-24|Before: Deputy President P

The application of s 84 has the following effect:

(a) The Official Trustee may elect to continue the application for review and make an application to the Tribunal to do so under s 84(2) of the ART Act; > > (b) If the Official Trustee applies to continue with the review application, the Tribunal may make appropriate orders under s 84(3); > > (c) The Official Trustee may elect to discontinue the application for review or take no action within the three month period ending on 9 December 2025 in which case the Tribunal may dismiss the application for review under s 84(4).

As stated earlier in these reasons, s 84 of the ART Act and of the should be interpreted harmoniously. Where the action in is an application for review, if the trustee wishes to prosecute the application, they would be required by s 84(2) of the ART Act to apply to the Tribunal within three months to continue with the application and, if so, the Tribunal would make appropriate orders under s 84(3). I note that of the says that if the trustee does not make an election within 28 days, they will be deemed to have abandoned the action, but the Official Trustee in this case has taken the approach that they have three months within which to decide whether to prosecute the application for review because of the operation of s 84(4)(b) of the ART Act. Despite the reference to 28 days in of the , I consider the Official Trustee's approach to be correct and that s 84(4)(b) of the ART Act should be given primacy and is the operative provision. The deeming provision in of the would be read subject to the longer period of three months applying pursuant to s 84(4)(b) of the ART Act.

Pursuant to s 84(1)(b) of the ART Act, the Tribunal considers that the Applicants cannot continue with their application for review dated 28 March 2025.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

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[1] Documents lodged pursuant to s 23 of the ART Act, sequentially numbered from T1-T8 (T-Documents): T2, 45.

[2] I note that whilst the Respondent has sought a dismissal. The Tribunal at this stage is only considering under s 84(1)(b) of the ART Act whether the Applicants cannot continue with their application for review.

[3] The Applicants' Written Outline of Submissions dated 3 November 2025 at [9].

[4] The Applicants' Written Outline of Submissions dated 3 November 2025 at [10].

[6] Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 130-131.

[8] Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 599.

[15] Cook v Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 at [25] per Deputy President Hack; see also Deputy President Forgie in Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720 at [43] and [44].

[17] Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720 at [107].

[25] Cook v Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 at [25] per Deputy President Hack.

[26] Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720 at [107] and the Tribunal decisions cited at [83] to [106]. See also Nugawela v Federal Commissioner of Taxation [2018] AATA 979 at [54].

[27] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1988) 194 CLR 355 at [70]. See also at [78].

[28] Subject to application of s 60(4) of the Bankruptcy Act.

[29] [2007] FCA 1977 at [22] referring to Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 721; Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115 at 119; and Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [44]-[45]. See also Garrett v Federal Commissioner of Taxation [2015] FCA 665 at [38] - [39].

[30] The Applicants' Written Outline of Submissions dated 3 November 2025 at [7].

[33] The bankruptcy orders were made on 27 August 2025 and the Tribunal was notified on 9 September 2025.

Review Tribunal Act 2024

Court and Federal Circuit and Family Court Regulations 2022

Security (Administration) Act 1999

Disability Insurance Scheme Act 2013

Rehabilitation and Compensation Act 1988

Kuksal and Federal Court of Australia (Practice and procedure) [2025] ARTA 2594 (24 November 2025)

Boensch v Pascoe [2007] FCA 1977

Cook v Secretary, Department of Employment and Workplace Relations [2007] AATA 1690

Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713

Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115

Garrett v Federal Commissioner of Taxation [2015] FCA 665

Nugawela v Deputy Commissioner of Taxation [2018] FCA 1457

Nugawela v Federal Commissioner of Taxation [2018] AATA 979

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1988) 194 CLR 355

Rana v Musolino [2009] FCA 1050

Rogers v Asset Loan Co Pty Ltd [2006] FCA 434

Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720

[25] This latter constructional choice finds little support in Cummings 185 CLR 124 or Sarkis v Moussa [2012] NSWCA 136; 262 FLR 359, both which gave a broad interpretation to the words "action" and "proceeding". Furthermore, the reasoning in Re Lofthouse [2001] FCA 25; 107 FCR 151 and Duckworth [2012] WASC 30; 261 FLR 185 (approved in Fletcher v Westpac [2012] WASCA 154) is inconsistent with the existence of such an implied limitation.

Kuksal and Federal Court of Australia (Practice and procedure) [2025] ARTA 2594 (24 November 2025)

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Kuksal and Federal Court of Australia (Practice and procedure) [2025] ARTA 2594 (24 November 2025)