Rutherfurd (Bankrupt) v Inspector-General in Bankruptcy

1. A writ of certiorari issue bringing the decision of the second respondent in proceeding 2021/0664 dated 8 March 2022 (Decision) into this Court and quashing it.
2. A writ of mandamus issue directing the second respondent to re-determine the Decision according to law.
3. The first respondent pay the applicant's costs in respect of this proceeding and in QUD109/2022, to be fixed in a lump-sum by a registrar if not agreed, save in respect of the costs of and incidental to the written submissions in respect of the competency of the appeal under s 44 of the Administrative Appeals Act 1975 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 These proceedings raise a short point of bankruptcy law and practice and, in my view, a difficult one. I have been much assisted in the resolution of the point by the careful and concise submissions of Mr Russell of counsel for the bankrupt and Mr Swan of counsel for the Inspector-General in Bankruptcy (Inspector-General). 2 The point at issue concerns the extent of the review jurisdiction in respect of decisions of the Inspector-General concerning a decision of a bankruptcy trustee to make an assessment of a bankrupt's income and contribution under Subdiv F of Div 4B of Pt VI of the Bankruptcy Act 1966 (Cth) (the Act). 3 The provision for review of assessments by a trustee by the Inspector-General and the Administrative Appeals Tribunal (Tribunal) is made by Subdiv G of Div 4B of Pt VI of the Act. The point at issue between the parties is such that it is necessary to set out the whole of Subdiv G: SECT 139ZA Internal review of assessment (1) The Inspector-General may review a decision of a trustee to make an assessment: (a) on the Inspector-General's own initiative; or (b) if requested to do so by the bankrupt for reasons that appear to the Inspector-General to be sufficient to justify such a review. (2) The Inspector-General must review such a decision if requested to do so by the Ombudsman. (3) A request by the bankrupt to the Inspector-General for the review of such a decision must: (a) be in writing and given to the Inspector-General not later than 60 days after the day on which the bankrupt is notified of the trustee's assessment; and (b) be accompanied by: (i) a copy of the notice of assessment; and (ii) any documents on which the bankrupt relies in support of the request. (5) Within 60 days after the request is received, the Inspector-General must: (a) decide whether to review the decision; and (b) if the Inspector-General decides to review the decision - make his or her decision on the review. SECT 139ZC Inspector-General may request further information (1) For the purposes of the exercise of powers under this Subdivision, the Inspector-General may: (a) ask the bankrupt to provide such further information, either orally or in writing, in support of the request as the Inspector-General specifies; and (b) ask the trustee to provide such information, either orally or in writing, about the decision to make the assessment and the reasons for the decision as the Inspector-General specifies. (2) If any information is provided orally, the Inspector-General must record it in writing. SECT 139ZD Decision on review On a review of a decision, the Inspector-General has all the powers of the trustee and may either: (a) confirm the decision; or (b) set aside the decision and make a fresh assessment under subsection 139W(2). SECT 139ZE Inspector-General to notify bankrupt and trustee of decision (1) If the Inspector-General: (a) reviews a decision; or (b) refuses a request by a bankrupt for a review of a decision; the Inspector-General must give written notice, to the bankrupt and the trustee, of the Inspector-General's decision on the review or on the request, as the case may be. (2) The notice must: (a) set out the decision; and (b) refer to the evidence or other material on which the decision was based; and (c) give the reasons for the decision. (3) In the case of a decision reviewing the trustee's decision to make an assessment, the notice must also include a statement to the effect that, if the bankrupt or the trustee, is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for review of the decision. (4) In the case of a decision refusing a request to review the trustee's decision to make an assessment, the notice to the bankrupt must also include a statement to the effect that, if the bankrupt is dissatisfied with the Inspector-General's decision, application may, subject to the Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals Tribunal for a review of the decision. (5) A contravention of subsection (3) or (4) in relation to a decision does not affect the validity of the decision. (6) If, within 60 days after lodgment of a request by a bankrupt for the review of the trustee's decision to make an assessment, the Inspector-General has not given written notice to the bankrupt of his or her decision in accordance with subsection (1), the Inspector-General is taken to have reviewed the trustee's decision and confirmed it under paragraph 139ZD(a). (7) If the Inspector-General makes a fresh assessment, the Inspector-General must, as soon as practicable, give to the bankrupt written notice setting out particulars of the fresh assessment. (8) This Division, apart from this Subdivision, applies to an assessment made by the Inspector-General as if it had been made by the trustee under subsection 139W(2). 4 The factual background to the point at issue was nicely summarised in the Tribunal (Member Reitano) in this way at [3] - [6]: 3. On 18 September 2020 the trustee issued notices of income contribution assessment to David Rutherfurd (Mr Rutherfurd) under s.139W(4) of the Bankruptcy Act 1966 (Cth) (Act). The notices of income contribution assessment concerned the income contribution assessment that the trustee had made for the first four years of Mr Rutherfurd's bankruptcy. The basis of the assessment is immaterial for present purposes. 4. On 13 November 2020 Mr Rutherfurd asked the Inspector-General to review the trustees income contribution assessment under the facility to do so in s.139ZA of the Act. 5. On 12 January 2021 the Inspector-General decided not to review the trustee's income contribution assessment. The Inspector-General's reason for that decision was because there were insufficient reasons to justify a review pursuant to s.139ZA(1 )(b) of the Act. 6. On 8 February 2021 David Rutherfurd (Mr Rutherfurd) applied for a review of a decision of the Inspector-General refusing to conduct a review of an income contribution assessment which had been made by the trustee. 5 As the Tribunal recites, the bankrupt and the Inspector-General agreed that the Tribunal should answer the following question as a preliminary matter at [7]: Where the Applicant has requested the Respondent, being Inspector-General in Bankruptcy (the IG) review a decision of the Trustee to make an "assessment" within the meaning of 139ZA(1)(b) the Act (Trustee's decision), but the IG has decided not to review the Trustee's decision within the meaning of section 139ZA(5) (IG's decision), does the Tribunal nevertheless have jurisdiction to carry out a review of the Trustee's decision if it were to determine that the IG's decision should be 'set aside' as sought in the Applicant's application? 6 It should be noted that, in the course of the hearing before the Tribunal, the parties agreed that the question at issue should be changed so that the word "jurisdiction" was replaced by the word "power". That, as the Tribunal recites at [8], was a consequence of a recognition, voiced to the Tribunal, that the fact of the Inspector-General's decision and the making of a competent application for review was sufficient to give the Tribunal authority to deal with the matter. The Tribunal answered that question on 8 March 2022 by concluding that (at [34]): The Tribunal does not have power to make a fresh income contribution assessment when reviewing a decision by the Inspector-General in Bankruptcy refusing to review a trustee's income contribution assessment. 7 The reasons which the Tribunal gave for so answering the question corresponded with the submissions made by the Inspector-General as to the true construction of s 139ZF of the Act and other provisions within Subdiv G. For that reason, I do not separately refer to the Tribunal's reasons. The nature of the Tribunal's reasoning process will be apparent enough from the reference made to the submissions of the Inspector-General.

the objection to competency 8 The Inspector-General was initially disposed to object to the competency of the initial means by which the bankrupt sought to challenge the Tribunal's decision. The initial means was an appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The point raised was whether, given the preliminary nature of the answer provided by the Tribunal to the agreed question, there was a decision for the purposes of an invocation of this Court's statutory appeal jurisdiction conferred by s 44 of the AAT Act. 9 Recognising that there may be a jurisdictional issue raised by the Inspector-General's foreshadowed objection, the bankrupt, for his part, instituted proceedings for the judicial review of the Inspector-General's decision under either or each of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). In turn, recognising that, on any view, the Tribunal's decision was amenable to such judicial review, the question of competency was not pressed by the Inspector-General. 10 The root authority in relation to such competency controversies in relation to appeals under s 44 is Director-General of Social Services v Chaney (1989) 47 FLR 80 (Chaney). In that case, at 103, Deane J stated and there is a passage that commences: The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s. 44 (1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s. 43 of the Act. The qualifications referred to are an appeal pursuant to s. 44 (2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given. 11 Later in that case, his Honour stated, at 104: The position would, of course, have been different if the ruling had gone the other way and the Tribunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would have effectively disposed of the proceeding before it. 12 There are numerous later authorities concerning the type of decision amenable to the statutory appeal for which s 44 of the AAT Act provides. These are helpfully collected by Besanko J in MDXJ v Secretary, Department of Social Services [2019] FCA 2163, at [15] - [26]. It is not necessary in the present case to reach any concluded view as to competency, given the existence of judicial review proceedings and the position taken by the parties. I do nothing more than observe that it is by no means clear to me that the qualification voiced by Deane J in Chaney, at 104, is inapplicable in relation to the proceeding as originally constituted only as a s 44 appeal.

the CENTRAL issue For determination 13 The resolution of the controversy concerning the Tribunal's jurisdiction in the present matter is wholly a question of statutory construction. It is, therefore, salutary to recall the emphatic direction given by the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, at [39] that the task of statutory construction must begin and end with consideration of the text, read in context; see also the later reminder as to this offered in Thiess v Collector of Customs (2014) 250 CLR 664, at [22]. 14 Commencing with the text of the conferral of review jurisdiction as found in s 139ZF, at least if that section is read in isolation, tends immediately to support a construction as promoted by the Inspector-General. And that is so if one progresses, as one must, to read s 139ZF of the Act in context. Reading in context takes one to s 139ZA, which confers a review function on the Inspector-General. In this case, the Inspector-General's review function was that found in s 139ZA(1)(b). In turn, progressing further in context, the powers of confirmation or setting aside and making a fresh assessment under s 139W(2) of the Act as found in s 139ZD are engaged only if the Inspector-General progresses with a review. 15 Yet, further, the notification obligation found in s 139ZE has a bifurcation in s 139ZE(1) as between reviews and refusing a request by a bankruptcy for a review of a decision. That in turn, so it was submitted, is a precursor to, and engages with the alternative, so it was submitted, posited in the conferral review jurisdiction found in s 139ZF, that the review was confined to, in this instance, the refusal by the Inspector-General of the request for review was said to follow from the disjunctive nature of the word "or" found in s 139ZF. That particular construction was challenged as it had been promoted before the Tribunal on behalf of the bankrupt. 16 It was submitted that the Tribunal's jurisdiction was in keeping with the very nature of the jurisdiction exercised by the Tribunal to stand in the shoes of the Inspector-General. Those shoes, it was submitted, were not just found in s 139ZA(1)(b) but found in a way which placed the Tribunal in the position of having the ability to make its own decision as to whether to conduct a review or refuse to conduct a review. It was also put in support of this that the word "or" as it appears in s 139ZF did not necessarily create a disjunct. Rather, it was submitted that this is one of those cases where as a matter of construction the use of "or" created a conjunct. That conjunct, in turn, was submitted to be symmetrical with the power to be exercised in place of the Inspector-General under s 139ZA(1), which was a power to do one thing or the other, to review or refuse to review. 17 Each of the parties correctly emphasised the importance of identifying the particular decision which fell for review by the Tribunal. Section 25 of the AAT Act envisages that particular statutes may confer a review jurisdiction on the Tribunal. Section 139ZF of the Act is one such statute. When such a review jurisdiction is conferred, the nature of that review in the ordinary course is that for which s 43 of the AAT Act provides. 18 The nature of that type of jurisdiction is no new subject. Its origins are to be found in the advice of the Judicial Committee of the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co), at 544 - 545. In that case, the Judicial Committee upheld the constitutional propriety of the Taxation Board of Review, established as a replacement for the earlier and invalidly constituted Taxation Board of Appeal. The Judicial Committee observed that the Board of Reviews was in the nature of administrative machinery and that it was not exercising judicial power but rather merely in the same position as, in that instance, the Commissioner of Taxation himself. 19 It was that model which commended itself to Parliament when the AAT Act was enacted. It was taken up in s 43 of the AAT Act. Referring to that provision and Shell Co in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 419. Bowen CJ and Deane J stated: The question for the determination of the tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the tribunal is whether the decision was the correct or preferable one on the material before the tribunal. 20 That conception of s 43 was cited with approval in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) and, latterly, in the joint judgment in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430, at [50]. 21 Shi also has a particular importance for observations made by Kiefel J, (as the Chief Justice then was), about the need to identify with precision by reference to the statute concerned the particular decision which falls for review by the Tribunal in a given case. The observations were made in a dissenting judgment but the dissent was on a subsidiary issue and, in my view, in no way detract from the correctness of the point made by Kiefel J at [132] - [134]: 132 The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function. The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review. Section 25 of the AAT Act, together with s 306 of the Migration Act, provides that authority with respect to a decision under s 303(1) of the Migration Act. Section 25(4) of the AAT Act limits the Tribunal's powers to a review of that decision. 133 Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal's purpose, of reviewing the decision in question. As Sheppard J said in Secretary to the Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review. 134 Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is "merely to do over again … what the Commissioner did in making the assessment", within the limits of the taxpayer's objection. [footnote references omitted] 22 The heading to s 139ZA might, with respect, be apt to mislead. That is because of the function of the Inspector-General is described as one of "internal review". 23 It is by no means unknown in relation to the exercise by the Veterans' Review Board of particular review jurisdictions for there to be an intermediate form of merits review of a decision made by a primary decision-maker. The jurisdiction exercised by the Veterans' Review Board under the Veterans' Entitlements Act 1986 (Cth) offers an example of intermediate review earlier in time. There was scope for internal review of decisions within the Department of Social Services before the establishment of the then Social Security Appeals Tribunal. A decision made by the Commissioner of Taxation in respect of an objection prior to its proceeding by choice to the Tribunal rather than this Court's original jurisdiction offers a classic example of a form of internal review. But the Inspector-General is in no way an official within the office of any trustee in bankruptcy. The Inspector-General has an overarching role in relation to bankruptcy administration in Australia. 24 In truth, review by the Inspector-General under s 139ZA(1) is a form of primary, external merits review in respect of which provision is made by s 139ZF for further external merits review by the AAT. However that may be, the point of mentioning this is to acknowledge a submission made on behalf of the bankrupt as to affinities which were to be found between the present case and observations made by the Tribunal in a decision in which the then president Davies J presided, namely, Re Gee v Director-General of Social Services (1981) 58 FLR 347. The Tribunal's decision in that case is not, of course, binding, although any pronouncement by Davies J in relation to the nature of the Tribunal's review jurisdiction carries with it particular weight. His Honour stated at 357 - 358: It is a necessary inference from the Administrative Appeals Tribunal Act that the function of the Tribunal is to review on the merits decisions which affect a person's interest. See per Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68, and Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 23. It is inconsistent with the tenor of the Act that the Tribunal should concern itself not with an operative decision which affects a person's rights but merely with a decision which has simply affirmed or varied the operative decision. Moreover, if the respondent's arguments were correct, the Administrative Appeals Tribunal would not be able effectively to use the power conferred by s 43 of its Act to set aside the decision under review and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. If the only decision which could be set aside were a decision under ss 14 or 15 of the Social Services Act, an applicant to this Tribunal would be precluded from again coming to the Tribunal should he or she be dissatisfied with the decision made after remission. …Nor, if the respondent's contention be correct, could the Tribunal exercise its power under s 41 of the Administrative Appeals Tribunal Act to suspend the operation of the subject decision for, in that event, the decision under review would not be the operative decision. … In our view, therefore, the decision which is the subject of the review is the operative decision which affects the claimant's or pensioner's rights. The administrative Appeals Tribunal is not involved in an exercise of reviewing on the merits the Director-General's affirmation or variation of that decision. The regulations may give that particular form to the review, but the essence of the review in relation to decisions made under the Social Services Act is the same as it is in other jurisdictions conferred upon the Administrative Appeals Tribunal, namely, whether the decision which has affected the rights of the applicant was the correct or preferable decision, not whether a decision which reconsidered such decision was the correct or preferable one. As Brennan J said in relation to a review by a Taxation Board of Review, the expression used for the conferral of the authority to review is "form only". 25 Of course, those observations, while made in relation s 43 of the Act, were made in relation to a different statutory regime. Nonetheless, the very establishment of the Tribunal was in a reform measure in Australian public law and an approach to statutory construction where competing views are open which affords a breadth rather than constriction of external merits review is, in my view, preferable. 26 In my view, there are truly competing, not confected, questions of statutory construction at large textually in the present case. The construction promoted for the Inspector-General is certainly open texturally. However, it carries with it the prospect of a bankrupt dissatisfied with a trustee's income contribution assessment being refused review by the Inspector-General but then successfully reviewing that refusal and, in turn, seeing the case remitted to the Inspector-General who may, perhaps, make a decision on the merits which is not to the bankrupt's liking which would, in turn, enliven if the Inspector-General's construction be correct, a later ability to review on the merits the decision by the Inspector-General in respect of income contribution assessment. 27 Parliament-envisaged expedition rather than elongation of an insolvency administration. In relation to income contribution, it is evident from s 139ZA(3)(a), insofar as the making of a decision by the Inspector-General responsive to a request to conduct a review made by a bankrupt, the Tribunal is not under such a constraint perforce of s 139ZF. In the present case, there was a lapse of some 12 months between the making by the Inspector-General of a decision in accordance with the statutory timeframe and when the Tribunal made its decision in respect of the preliminary issue, and I am in no way critical of the Tribunal, generally, or the member who constituted the Tribunal in respect of that delay. There may well have been good reasons for it lying in the amount of material before the Tribunal and the sheer number of cases which these days are consigned to and instituted in the Tribunal. 28 However that may be, there is, in prospect, if the Inspector-General's construction be correct, elongation of uncertain length in insolvency administration by a potentially elongated review in succession process. As against that, it is textually possible, and preferentially in my view, to read or as it appears in s 139ZF as a conjunct rather than a disjunct. There are many cases in which "or" has been found to have such a meaning in legal drafting. One such case, which acknowledged that "or" could carry, and had been regarded as carrying, such a meaning, is one to which I was referred by Mr Russell, namely RF Brown & Co Limited v TJ Harrison (1927) 137 LT 549; [1927] All ER Rep 195. In that case, at All ER 201, Banks LJ, with whom Atkin and Lawrence LJJ agreed, stated "It is doing no injustice either to the draftsman or the language to use the word 'or' conjunctively and not disjunctively; there is abundant authority for doing that". 29 It seems to me that it is quite imperative on the Court to do it in this case. Expressing concurrence, Atkin LJ stated at 203 - 204: I disagree with the learned judge in his view that the word "or" can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from a collation of the words that it is meant in a conjunctive sense. And, certainly, where the use of the word as a disjunctive leads to repugnance or absurdity, it is quite within the ordinary principles of construction adopted by the court to give the word a conjunctive use. 30 Giving "or" a conjunctive use in s 139ZF makes it an example, in my view, of a hendiadys, an exemplification of the expression of a single complex idea by two words usually connected by the word "and"; see in this regard Victims Compensation Fund Corporation v Brown (2003) 77 ALR 1797, at [34], Heydon J. 31 So construing s 139ZF is symmetrical with s 139ZA(1)(b). That allows the Inspector-General to decide one way or the other whether to conduct a review. If the Inspector-General decides to conduct a review, no further conferral of statutory function is necessary. All that happens is that in that review, the powers specified in s 139ZD may be exercised. Construing s 139ZF so as to put the Tribunal in the place of the Inspector-General enables the Tribunal to decide for itself whether or not to conduct a review and, if so, to proceed on that review and if it decides to conduct a review, to proceed forthwith on that review. That construction presents the singular advantage of truncating times for insolvency administration and controversy resolution. 32 For these reasons, then, and with respect, I depart from the Tribunal's construction of the Act and thus the answer given by the Tribunal. In lieu thereof, the Tribunal was empowered, in my view, to decide for itself whether to conduct a review as requested by the bankrupt and, if so disposed to conduct a review, to do so. I would, therefore, bring up the Tribunal's decision to be quashed and direct that a mandamus issue. 33 I should add that the Tribunal was, albeit more belatedly than one might expect, given notice of the judicial review proceeding and signified, with respect appropriately and unsurprisingly, that it would abide the order of the Court. I record the appreciation of the Court for the assistance provided in the interests of justice by the Australian Government Solicitor in ensuring that the Tribunal was made aware of the hearing today. There were reasons probably referable to an unfortunate and lengthy indisposition of the bankrupt's solicitors why that task was not, as it should have been, earlier undertaken by the solicitors for the bankrupt.

COSTS 34 As to costs, it was always a nice point as to whether or not the s 44 appeal was competent. One does not on a costs issue decide a point that was unnecessary to decide substantively. That it was rendered unnecessary was the product of prudent recognition by the bankrupt of the prospect that it just might not be competent and that this would be remedied in terms of committing the substantive legal issues to be ventilated by filing judicial review proceedings. So doing did, however, render unnecessary costs in respect of the subject of the competency of the s 44 appeal. 35 Overall, the bankrupt has succeeded, but, in my view, it would overcompensate the bankrupt in respect of that forensic success to visit upon the Inspector-General the costs of submissions in writing in relation to the question of competency. The orders that I make will, therefore, include this order in respect of costs: the respondent Inspector-General pay the applicant's costs in respect of each proceeding to be fixed in a lump-sum by a registrar if not agreed save, and except for costs of an incidental to written submissions on the subject of the competence of the appeal under s 44 of the AAT Act. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.