Those of a certain vintage with an interest in bankruptcy may remember New Directions in Bankruptcy, a publication of the then bankruptcy regulator ITSA from 1989 to 2004. It came out quarterly in hard copy and contained articles both from the regulator and lawyers and trustees and others interested.
AustLII has now uploaded all of the issues of NDB from 1989 to 2004. While not a formal academic publication it contains many useful analyses of the law in relation to certain cases or law reform issues or issues raised by trustees.
Comfortingly or alarmingly, many of these remain live issues today – proceeds of crime, travel overseas, objections to discharge, creditors meetings, debt agreements and more.
Bankrupt Law
I contributed to NDB with some articles but in particular with a regular column entitled Bankrupt Law, the title taken from a textbook referred to by Justice Finkelstein in a corporate insolvency matter[1] – Shelford’s Bankrupt Law, the 2nd ed of 1854 – my perverse point being that I would cover current law, not 19th C antiquities.
Issues covered were the latest cases, statistics and law reform.
Bankrupt Word
I also wrote a regular column entitled Bankrupt Word giving some analyses to the interesting words that were used in bankruptcy:
- bankruptcy itself was one (bankrumpting or bankruptism were once options);
- sequestration (as opposed to sequestrectomy); and
- intitulation (recording its final disappearance from any Commonwealth law).[2]
One article in particular
Among many technical articles, an insightful piece was written by the then Official Receiver,[3] – “The right balance almost impossible!” – saying that the balance that a trustee must maintain
“continues to be elusive and at times a bankruptcy trustee becomes more of a social conscience than an insolvency practitioner”.
He gave three examples.
One, a young man with a good job in the building industry who suffered a severe and permanent injury, with unemployment and medical bills then leading to an unwanted bankruptcy.
Two, an elderly woman with a mental illness, who became bankrupt for non-payment of strata levies on her home unit. The trustee was confronted with the unit’s interior painted pink, along with blue and yellow, the cupboards filled with
“an endless supply of pink writing paper, all in original wrapping, 20 umbrellas (all plastic and pink in colour), and plastic shoes all pink and unused”.
And three, a businessman who over a period of 20 years worked on “how to avoid his obligations to creditors, to minimise tax and also to avoid ownership of assets”, through trusts and various corporate structures.
The Official Receiver concluded:
“Insolvency is a human issue not just a legislative problem and, when dealing with humanity, one can only expect the unexpected. It is the versatility and flexibility of practitioners and trustees that achieve the desired results; nearly everything else is a barrier”.
Citings
NDB was cited at times in law reports.[4] In Mathers v Commonwealth,[5] where I appeared for the Commonwealth on a test case, Justice Heerey, in dismissing my argument, quoted words from my article in NDB “Penalties and Fines in Bankruptcy”[6] against me.
[No doubt alarmed by my appearing, alone, the client on call, the other side fronted up with at least 6 people: a QC and a junior, 2 or so lawyers, and 2 or so staff …].
The NDB closed in 2004, as I recall because new management considered it was not an appropriate effort to be made by a government regulator.
ITSA Bankruptcy Congresses
Many will also remember the regular ITSA Bankruptcy Congresses held each year to great acclaim and high attendance, with significant ministerial, judicial, legal and practitioner presenters. The 4th congress in 2002 featured Mr Mark Korda, Justice Catherine Branson, Professor Julian Disney and other luminaries. The Congresses are reported throughout the various issues of the NDB. A paper presented at the 6th congress was recently cited in the AAT.[7]
The Congresses also suffered the same fate as NDB.
AustLII
The Austlii link is here: New Directions in Bankruptcy
AustLII is to be commended for bringing the 15 years of NDB on line.
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[1] Korda, in the matter of Stockford Limited (Subject to DOCA) [2004] FCA 1682
[2] Bankrupt Word Re: Intitulation (1997) 6(2) New Directions in Bankruptcy 28
[3] Caddy, G — “The Right Balance Almost Impossible!” [1999] NewDirBkrpt 7; (1999) 8(1) New Directions in Bankruptcy 21 [20%]
[4] Farmakis v Lo Pilato (Trustee) [2023] FCA 1611; Australian Winch and Haulage Co Pty Ltd v SDRO [2005] NSWSC 423; FWO v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242.
[5] [2004] FCA 217
[6] (2004) 14(1) New Directions in Bankruptcy 15
[7] Jack and Inspector-General in Bankruptcy [2022] AATA 2908
