Section 178 claims
20 Even assuming, without deciding, that Mr Reaper's applications seek to complain of "acts, omissions or decisions" of the trustee in bankruptcy, within the meaning of s 178(1) of the Act, nothing in any of the materials on which he relies suggests that the applicant seeks to complain about "acts, omissions or decisions" of which he became aware within 60 days of the applications being made. In fact, almost all of the facts upon which he seeks to rely, to the extent that they are comprehensible, relate to events that happened between 2012 and 2014. The exceptions are the following paragraphs in the applicant's affidavit affirmed on 27 January 2017 and filed in VID73/2017, which reads as follows:
35. As I understand it, [the proof of debt lodged with the trustee in bankruptcy on 6 September 2013] replaced [the proof of debt lodged with the trustee in bankruptcy on 24 April 2013]. The [Deputy Commissioner of Taxation] in lodging [the proof of debt lodged with the trustee in bankruptcy on 6 September 2013] rendered [the proof of debt lodged with the trustee in bankruptcy on 24 April 2013] obsolete. To clarify, on 24 July 2016 I contacted the [Australian Taxation Office].
36. In response, on 2 September 2016 the [Australian Taxation Office] sent to me a letter informing that it has withdrawn its no claim letter and re-raised the balance of the [Director Penalty Notice] being $19,064.89.
37. In reply, on 14 September 2016 I lodged a complaint with the Inspector-General of Taxation:
(a) Ultimately, the outcome of the Commonwealth Ombudsman was upheld; and
(b) The [Australian Taxation Office] issued fresh no claim letters to the trustee on 8 November 2016.
(c) No progress was made concerning the application [Deputy Commissioner of Taxation] proof of debt.
38. I state that the [Australian Taxation Office] no claim letters issued to the trustee brought to his attention that he is associating himself with documents he knows, or ought reasonably to know, are false or misleading.
21 Paragraph 38 of the applicant's affidavit affirmed on 27 January 2017 could be read as making a complaint about matters within the terms of s 178 of the Act. However, that would be a generous reading of the affidavit.
22 In any event, at the hearing on 24 March 2017 and at the hearing of the summary judgment applications on 19 May 2017, I raised the question of the application of s 178(2) with the applicant (who represented himself on both occasions). I asked him if he had any explanation for the delay in bringing the applications.
23 At the hearing on 19 May 2017, Mr Reaper said this by way of explanation:
I will just point out, your Honour, that a lot of those documents that I rely on or the matters that I've become aware of, I've never been given a copy or been notified of the outcome of those matters. The last document I really received from the trustee was a 60-day report to creditors. I never received a document after that concerning whether the trustees - the outcome of that 60-day report. That's really all I have on those matters, your Honour.
24 I do not regard that, or anything else that the applicant has said, as constituting a comprehensible explanation for delay.
25 The Court has a discretion to extend the time prescribed by s 178(2) of the Act: see s 33(1)(c) of the Act; and Kerr (Trustee), in the matter of Cross (Bankrupt) v Bechara [2015] FCA 284 at [44]-[46] per Jagot J.
26 Absent any explanation for the delay, however, there is no basis for exercising that discretion in the circumstances of these applications. I would also decline to exercise any discretion to permit the complaints identified in the affidavits filed in support of these applications because they are largely incomprehensible.
27 To the extent that the applicant seeks relief in respect of an alleged breach of the trustee's duties under s 19 of the Act, that claim relies on the application for relief under s 178. For reasons already expressed, neither claim can succeed.