AFSA advises that the Bankruptcy Amendment (Discharge from Bankruptcy) Act 2023 (Cth), came into force on Thursday 23 November 2023. See Bankruptcy Act amendment | Australian Financial Security Authority (afsa.gov.au)
Problems in the way statements of affairs have been “accepted” by the Official Receiver over many years will, it is said, be rectified by the Bankruptcy Amendment (Discharge from Bankruptcy) Act 2023.[1]
The Explanatory Memorandum explains at length how the Bill would amend the Bankruptcy Act 1966 to regularise and validate the administrative processes of AFSA as to when a statement of affairs is taken to have been accepted for the purposes of a debtor’s petition or as required in relation to a sequestration order.
Section 55(2) provides that a petition presented by a debtor under the section must be in accordance with the approved form and be accompanied by a statement of the debtor’s affairs and a copy of that statement. Assuming all is in order, section 55(4A) provides that where the OR accepts the petition, the OR must “endorse” the petition accordingly and upon that endorsement the debtor becomes a bankrupt. Under the new law, the Official Receiver will be required to either accept, or refuse to accept, a statement of affairs within 14 days of receiving it: s 57B. The criterion for acceptance or rejection is in/adequacy.
The administrative processes seem to have veered away from the law over a long period of time. AFSA says it became aware of this legal issue through a privately litigated court case which was settled in 2022, apparently by mediation. The effect of AFSA’s administrative processes not aligning with the Bankruptcy Act was that,
“when the filing (e.g. presentation or lodgement) date of a Statement of Affairs was different to the date AFSA accepted the Statement of Affairs, a person’s discharge date from bankruptcy was later than it should have been”.
The court case is not named but such issues were raised in Docherty v Porter[2021] FCA 1227 and Montgomery v Porter [2021] NSWSC 1378. Other problems may have existed for some time before.
Under previous law, the AAT was not satisfied that requests by the bankrupt to the Inspector-General to review a trustee’s notice of objection were “lodged” within time under then s 149K(3), saying that the Act “does not contain any provisions explaining what is meant by the word or how it is achieved“; noting also that “the trustee must “file” and not “lodge” a notice of objection”: Phillips and Inspector-General in Bankruptcy [2011] AATA 25.
Now, the word lodged is primarily used in bankruptcy in respect of the lodgment of a proof of debt by a creditor with the trustee, for example s 84, although a creditor may deliver or send one to a liquidator by post: Corp Reg 5.6.49.
There is a disclaimer on the NPII notifying users that AFSA says it is unable to ensure the accuracy of some of the fields on the NPII that relate to the date of discharge for some bankruptcies. The Amending Act will validate previous decisions that relied on dates recorded in the NPII relating to the filing of a Statement of Affairs. The Amending Act has retrospective effect to 1992.
Related issues
The interconnectedness of these various events and their timing exists throughout the Bankruptcy Act. This is illustrated in one case where, on 23 January 2003 the trustee filed a notice of objection to discharge, the details of which were recorded in the NPII on 24 January 2003. That objection, if effective on that date (s 149G), extended the date for the applicant’s automatic discharge to 24 January 2008. Whether the notice of objection was effective to achieve that result depended upon whether the objection was entered in the NPII before the time when the applicant was discharged from bankruptcy. That in turn depended upon whether his Statement of Affairs (SOA) was `filed’ with the trustee on 17 December 1999, when he filed only a copy, rather than on 24 January 2000, when he filed the original.
The Court held the SOA was filed on the earlier of those dates, 17 December 1999 even though only a copy, and he was discharged from bankruptcy before the objection was entered, hence the entry of the objection in the NPII could not operate to extend the date for discharge: see Cable v Pattison [2003] FCA 1499 (17 December 2003) (austlii.edu.au) paraphrasing [12].
Section 149G
How promptly documents are processed by AFSA and entered on the NPII is another issue. For example, and as AFSA advises, section 149G provides that an objection to discharge takes effect on the day that the details of the objection are registered on the NPII, although the objection must be filed at any time before the bankrupt is discharged: s 149B.[2] AFSA warns that an objection sent
“to the Official Receiver shortly before the bankrupt’s discharge date may not be entered in the NPII in time and will therefore be ineffective”.[3]
Hence trustees should allow sufficient time before discharge for the notice to be processed, even up to one week. Trustees are more likely to file objections in the last 3 months of a bankruptcy.
AFSA advises trustees to consider checking the NPII after filing an objection to discharge to ensure it has been placed on the NPII in time.
Section 184
AFSA has other obligations to enter information on the NPII which if not done can have consequences. Section 184 serves to release a trustee from liability in any estate after 7 years from the date on which the OR entered in the NPII the fact that the estate was “finalised”. The word finalised is not defined. Just as AFSA advises trustees to consider checking the NPII after filing an objection to discharge, trustees might also check the NPII to ensure it promptly records what they say is the date of finalisation of their estates.
Language
The Amending Act introduces new words and terms, or recycles existing ones. Consistency in meanings of words is important, certainly across the one area of law of insolvency and body of practitioners.
Presented, filed, lodged …
Now, in new s 57B only, ‘filed’ will mean ‘presented’, as well as ‘lodged or given’ but there is no other definition of filed, or lodged. File usually means file in court, being the word “traditionally used to describe the act or process of placing a document in the records of a court or registry”: see Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 at [16]; except under the Bankruptcy Act.
As to ‘lodged’, the Corporations Act requires liquidators to ‘lodge’ documents with ASIC, not file; and while a creditor must lodge a proof of debt with a bankruptcy trustee [s 84], they may deliver or post one to a liquidator: Corp Reg 5.6.49.
Making out, and more
Then there is ‘making out’ a statement of affairs or a ROCAP, (the word “made” including issued, given or published) and ‘furnishing’ or ‘giving’ a copy of a statement of affairs to the trustee but ‘submitting’ a ROCAP to a liquidator. Giving is defined in s 28A and 29 of the Acts Interpretation Act 1901.
Doing a thing
Most usefully, the new law will define doing a thing, where “do a thing” and “purport to do a thing”, include to make, or refuse to make, a decision, or exercise a power and so on, and to do, or refuse to do, anything else, or so purport to, in all cases.
No SOA filed
Of course if there is no statement of affairs filed, the person remains bankrupt. There were 4,853 such bankrupts at the end of June 2022.
The Bankruptcy Form
Finally, in other related areas, AFSA has been re-naming and creating administrative processes apparently through some purported simplification focus under s 6D. One example is the temporary debt protection form, under s 54A Bankruptcy Act: Re-naming rights of the bankruptcy regulator – Murrays Legal.
The Bankruptcy Form is another example.
In Thompson v Lane (Trustee) (No 3) [2022] FCA 128 (18 February 2022) (austlii.edu.au),[4] Justice Logan noted that AFSA had “evolved” the debtor’s petition and the related statement of affairs under s 55 into what he described as a composite document termed the “Bankruptcy Form”. The Judge was critical of the fact that while the long-standing form of debtor’s petition contained a statement that the debtor petitions for the purpose of becoming a bankrupt under s 55, the Bankruptcy Form instead
“contains the presumptuous statement, “I am voluntarily becoming bankrupt”. Yet further, it contains a presumptuous question, “What do you believe is / are the cause(s) of your insolvency?” without eliciting a prior admission of insolvency by reference to the position disclosed on the “statement of affairs” portion of the form”.
In the case before him, the Judge then noted that, the petition having been presented on 26 June 2020, the Bankruptcy Form was sent off to the office of AFSA in Adelaide and
“exactly what happened upon its receipt there is, on the evidence, something of a mystery. … All that can be determined on the evidence as to the fate of the Bankruptcy Form submitted to the AFSA is that, inferentially, it was accepted by an Official Receiver, because on 1 July 2021, Mr Lane was appointed by an Official Receiver as the trustee of Ms Thompson’s bankrupt estate”.
See “Voluntarily becoming bankrupt” – the new bankruptcy process – Murrays Legal
Also, in Soloman v Official Receiver in Bankruptcy, in the matter of Soloman [2023] FCA 1462, the bankrupt was informed by email that he was required to complete and return enclosed “the bankruptcy form” and was later sent a letter from AFSA to complete a statement of affairs form, and then a later call from AFSA that he needed to submit documents urgently or he could suffer criminal consequences. “Mr Soloman states that he was confused and agitated upon seeing the letter and was struggling with his emotional state and injuries”.
Perhaps wisely, the EM to the Bankruptcy Amendment (Discharge from Bankruptcy) Bill 2023 makes no reference to the Bankruptcy Form.
Legal certainty
The amendments effected by the Amending Act are said to be necessary to ‘provide legal certainty for all parties that engage with the bankruptcy system and who have acted in reliance on the dates contained within the NPII’.
Postscript: This is all rather complicated, perhaps too complicated. Best to see AFSA’s website for the details and the latest information on the Bankruptcy Amendment (Discharge from Bankruptcy) Act 2023: Bankruptcy Act amendment | Australian Financial Security Authority (afsa.gov.au)
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** Except that, as [2022] ALRC 139 reveals, section 761A provides that ‘lodge with ASIC’ means ‘lodge with ASIC in a prescribed form’ and regulation 1.0.05A prescribes that all references to ‘lodge with ASIC’ mean ‘lodge with ASIC in a prescribed form’. However, readers are often unaware that the term “lodged” is defined. To avoid this confusion, the Treasury Laws Amendment (2023 Law Improvement Package No. 1) Bill 2023 will repeal the definition of ‘lodge’ from the Chapter 7 dictionary and instead use the phrase ‘in a prescribed form’ wherever required.
[1] AFSA advises the Act is yet to commence: www.afsa.gov.au.
[2] Gleeson (Trustee), in the matter of Soong v Soong [2023] FedCFamC2G 819
[3] Objections to discharge from bankruptcy | Australian Financial Security Authority (afsa.gov.au)
[4] Appeal dismissed Thompson v Lane (Trustee) [2023] FCAFC 32 (10 March 2023) (austlii.edu.au)
