Taking into consideration that the Faggot Mathew Osborne is advising trustees and senior management that S134 gives them the discretion to fuck over the bankruptcy Act and any one who complains.
This is how ITSA protect systemic corrupt conduct.
While ITSA Regulation deals with complaints against the Official Trustee it does not handle complaints against the services provided by other areas of ITSA. What a lot of shit..........................according to the IGPS 10.1 Regulation protects abuse of power and neglect of duty by ITSA and trustees..... how fucking funny!!!!!!!!!!!!!!
ITSA has also decided that decisions by ITSA or trustees in exercising discretion is outside Bankruptcy Regulations juristriction even twhen there is clear evidence of systemic corrupt conduct. ITSA has decided that that this is not a BREACH OF LAW.This allow them to fuck everything over.
ITSA has also decided that complaints to them
assessed against the criteria in Inspector General
Practice Statement 10.1 as warranting a full investigation into the issues raised. The findings in
these investigations did not disclose formal breaches of the law. It should also be noted that it is not
unusual to receive complaints given the challenging nature of registered trustee work which often
result from aggrieved debtors and creditors not being fully aware of their duties and obligations to
INSPECTOR-GENERAL PRACTICE STATEMENT NO 10.1
Complaint handling process for complaints against bankruptcy trustees and debt agreement administrators
Release Date: 1 December 2010
ii
Contents Page no
INTRODUCTION...................................................................................................1
REVIEWING PRACTITIONER’S DECISIONS.....................................................1
WHO CAN COMPLAIN TO ITSA REGULATION................................................2
RECEIPT OF COMPLAINTS................................................................................2
HOW ITSA REGULATION WILL HANDLE THE MATTER.................................3
Confidentiality and Privacy Act.........................................................................................3
Resolution without investigation........................................................................................3
Assistance in investigation.................................................................................................3
WHAT OUTCOME A COMPLAINANT MAY EXPECT........................................4
ALTERNATIVE DISPUTE RESOLUTION & MEDIATION...................................5
SERVICE STANDARDS.......................................................................................6
COSTS RELATING TO A COMPLAINT...............................................................6
FEEDBACK ON ITSA REGULATION SERVICES...............................................7
Table 1 - Types of complaint outcomes...........................................................................7
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IGPS 10.1 Complaint handling process
Introduction
1.
ITSA's independent Regulation business line fulfils the Inspector-General in Bankruptcy's statutory responsibilities as a regulator under the Bankruptcy Act 1966 of maintaining high national standards of personal insolvency practice and procedure. It does this by:
Administering a registration scheme to ensure that only suitably qualified persons are licensed to practice as private sector bankruptcy trustees and debt agreement administrators;
Monitoring the standard of bankruptcy trustees and debt agreement administrators and their administrations through a targeted program of inspections of systems and practices;
Investigating complaints made by creditors or debtors against registered trustees, debt agreement administrators and solicitor controlling trustees;
Conducting statutory reviews of some bankruptcy trustee’s decisions at the request of bankrupts; and
Working with bankruptcy trustees and debt agreement administrators to improve Bankruptcy Act knowledge and practice.
2.
This document seeks to clarify and give greater transparency in relation to ITSA Regulation’s role in investigating complaints made by creditors or debtors against registered trustees, debt agreement administrators, debtors or solicitors who act as controlling trustees under Part X (10) of the Bankruptcy Act. It offers greater guidance to ITSA’s stakeholders and confirms the practical approach that ITSA Regulation will take when handling complaints and the basis of its decision making processes.
3.
This policy document needs to be read alongside the ITSA Fact Sheet titled "Resolving Complaints about Trustees and Administrators."
Reviewing practitioner’s decisions
4.
It must be stressed from the outset that not all matters of concern raised, relating to regulated practitioners or their administrations, can be resolved by ITSA Regulation. ITSA Regulation has broad inquiry powers and if breaches of the law, improper use of power or non performance of a duty are identified it can request remedial action be taken and can take disciplinary action relating to the practitioner.
5.
However ITSA Regulation does not have the power in many cases to direct a practitioner on how they should decide or action they need to take, so on occasions ITSA Regulation may not be able to achieve the outcome a complainant seeks or expects. This will be the case particularly where the practitioner has exercised discretionary decision making powers and has operated legally in the exercise of discretion provided under the Bankruptcy Act, albeit to the complainant’s disadvantage. In such instances alternative remedies may be available. A number of scenarios are shown in Table 1 at the end of this policy document to guide people in likely outcomes they can expect.
6.
Complainants concerned with decisions made by trustees: (a) extending the period of bankruptcy:
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IGPS 10.1 Complaint handling process
(b) regarding income assessments that give rise to a liability of a bankrupt to pay contributions to the trustee; or, (c) in the case of registered trustees, regarding claims for remuneration have a legal right of review of those decisions by the Inspector-General. Please refer to the ITSA Fact Sheet titled “Can I Appeal?: Review and appeal of trustee and administrator decisions” for information.
7.
In the case of a complainant’s right to request an Inspector-General review of a registered trustee’s decision to withdraw, or to propose to withdraw, funds from the estate to pay the trustee’s remuneration (paragraph 6(c) above), it should be noted that several conditions need to be met before an application for review is accepted. Further information on the remuneration review process is contained in Inspector-General Practice Statement 16 on ITSA’s website.
Who can complain to ITSA Regulation
8.
Usually it will be a debtor, bankrupt or a creditor who will contact ITSA Regulation if they have concerns or a complaint regarding an administration handled by, or the conduct of:
Registered trustees;
The Official Trustee (a statutory office contained within ITSA);
Solicitors who act as controlling trustees;
Debt Agreement Administrators, both registered and unregistered; and/or
Debtors or bankrupts.
9.
Other parties affected by practitioner’s actions or decisions may also complain and complaints can also be referred to ITSA Regulation from ITSA’s Debt Agreement Service, the Commonwealth Ombudsman, the Inspector-General or the Attorney-General.
10.
People are encouraged to firstly attempt to resolve issues of concern with the practitioner and if not resolved to then contact ITSA Regulation.
11.
While ITSA Regulation deals with complaints against the Official Trustee it does not handle complaints against the services provided by other areas of ITSA.
Receipt of complaints
12.
Enquiries and complaints can be made to ITSA Regulation by telephone (on 1300 364 785), post, facsimile, e-mail, in person or through the ITSA internet contact e-mail. The matters raised are dealt with by the ITSA Regulation office nearest the state or territory where the trustee or administrator is located.
13.
Verbal complaints may be able to be dealt with without the need to put the complaint in writing. However, if on initial inquiry ITSA Regulation decides the issues are serious enough to warrant further investigation it may need more particulars and details in writing and may also request documentation substantiating any allegations.
14.
When complaints are made in writing or if following a telephone discussion ITSA Regulation seeks further particulars in writing ITSA Regulation will endeavour to
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IGPS 10.1 Complaint handling process
acknowledge the complaint in writing within 7 days and will also enclose a copy of ITSA Fact Sheet entitled "Resolving Complaints about Trustees and Administrators."
How ITSA Regulation will handle the matter
15.
All complaints received are treated seriously and all complainants and those against whom the complaint is made will be treated professionally, courteously, with dignity and respect. If at any time you believe this has not occurred please ask to speak to the manager of the ITSA Regulation inspector you were dealing with. ITSA welcomes feedback relating to its services.
Confidentiality and Privacy Act
16.
In the interests of natural justice the person against whom the complaint is made will be provided with details of the issues raised, subject to the requirements of the Privacy Act relating to the use and disclosure of personal information.
17.
In those cases where the complaint is in writing, ITSA Regulation will seek the consent of the author before copies of the correspondence is provided to other parties involved.
18.
ITSA Regulation will provide the name of the complainant to the party against whom the complaint is made only if the complainant agrees but can provide details for law enforcement purposes to law enforcement agencies.
19.
If ITSA Regulation requests that the trustee or administrator provides a written response to the issues raised, a copy of the trustee’s or administrator’s specific response to ITSA Regulation will not be provided to the complainant without the trustee’s or administrator’s permission. However ITSA Regulation will advise the complainant of details of the response in its findings.
Resolution without investigation
20.
ITSA Regulation will quickly review the issues raised. If the complaint is outside of ITSA Regulation’s jurisdiction or power ITSA Regulation will advise the alternative options available to the complainant and take no further action. Sometimes ITSA Regulation may be able to assist quickly without the need for further investigation, for example by provision of information. Enquiries can be finalised during the initial telephone conversation or shortly afterwards by providing complainants with information or alternatives.
21.
Similarly ITSA Regulation will usually quickly make initial contact with the person against whom the complaint has been made to ascertain their comments on issues raised. In some cases this may result in the trustee or administrator taking quick action to address issues raised and no further enquiry or action is needed.
Assistance in investigation
22.
If after initial assessment and inquiry, ITSA Regulation decides there is substance to the complaint and that the issues are within its power of inquiry, it will initiate a more detailed investigation. In these cases it is important that ITSA Regulation be provided
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IGPS 10.1 Complaint handling process
comprehensive details and evidence both by the complainant and by the bankruptcy trustees or administrators.
23.
ITSA Regulation expects that practitioners will provide access to all administration records and will promptly provide information needed to respond to complaints and will promptly address matters highlighted in our findings. Similarly ITSA Regulation expects complainants, when requested, will provide specific details in writing with substantiating documents and in a timely manner.
What outcome a complainant may expect
24.
It is important to distinguish issues of concern where ITSA Regulation are unable to become involved or where ITSA Regulation does not have the power to facilitate an appropriate outcome.
25.
ITSA Regulation will initially focus its inquiry on whether there have been breaches of the law and the standards expected of trustees and administrators. This includes cases where a power or discretion exercised is in breach of their fiduciary duties, such as would be the case if the action did not demonstrate impartiality, was without due care or negligent.
26.
ITSA Regulation may find that the action taken by the practitioner is lawful, appropriate or reasonable in the circumstances. In such cases the complaint will be classified as not justified. ITSA Regulation will not require the practitioner to take any remedial action, will advise the parties of its findings and take no further action. All complaints are recorded and analysed, with trends reported and feedback provided to practitioners.
27.
Action taken or decisions made by the trustee or administrator in exercising a discretionary power or performing a required duty, are usually outside of ITSA Regulation’s jurisdiction. Similarly the action taken may not be considered to be in breach of the law. In these cases the complainant will be informed of other options that remain available including negotiated settlement and legal action. Some specific examples and options are listed in Table 1.
28.
ITSA Regulation may determine that some or all of the action taken by the practitioner is in conflict with their fiduciary duties, the legislation or standards required. These types of complaints will be classified as justified. ITSA Regulation may:
request the practitioner takes remedial action if possible of being remedied; and/or
counsel the practitioner; and/or
prepare a formal report pursuant to subsection 12(1B) on the results of the investigations and may provide a copy of the report to the creditors, the debtor or to other disciplinary bodies or relevant professional association; and/or
if the breaches identified are serious enough consider disciplinary action or legal action against the practitioner.
29.
There may be some instances where ITSA Regulation finds the practitioner has breached the legislation or standards but may not be capable of reversing action taken or is unwilling to do so. Whilst ITSA Regulation can examine whether the practitioner should remain registered to practice this is not the outcome often sought by the complainant. With the exception of statutory reviews of decisions relating to objections, income and
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IGPS 10.1 Complaint handling process
contribution assessments, and registered trustee remuneration claims mentioned earlier, ITSA Regulation cannot order a practitioner to change a decision or take other action. Only a court has this power.
30.
In such cases ITSA Regulation will advise the complainant of the legal options available and consider whether to take legal or disciplinary action itself. Also see section on legal remedies below.
Alternative dispute resolution & mediation
31.
Whilst ITSA Regulation inspectors are not qualified mediators they are independent, experienced in negotiation and well versed in the practical application of the Bankruptcy Act.
32.
ITSA Regulation will intervene in disputes when it identifies appropriate situations where having an independent party facilitating a negotiation process may assist with speedier settlement of issues, with the aim of reducing the costs of ongoing complaints and litigation that quite often follow. Some examples are listed below.
(i)
Breakdown of relationship and communication between a debtor or creditor and the practitioner which often has the potential to escalate, increasing costs.
(ii)
Disputes involving property where both parties indicate a willingness to resolve the dispute by negotiation.
(iii)
Claims of over-charging or over-servicing with respect to a practitioner’s remuneration. (a) If the complaint relates to a bankruptcy that commenced, a personal insolvency agreement that was executed, or a controlling trustee authority that was signed on or after 1 December 2010, ITSA Regulation will inform complainants of their right to apply to the Inspector-General for a review of the registered trustee’s remuneration claim (further information on the review process is contained in Inspector-General Practice Statement No 16): (b) If the complaint relates to a bankruptcy that commenced, a personal insolvency agreement that was executed, or a controlling trustee authority that was signed prior to 1 December 2010, complainants will be advised of their right to seek a taxation of the trustee’s remuneration claim. In addition, ITSA Regulation can request the trustee to reduce his/her fees where those fees do not comply with the Bankruptcy Act requirements and may also be able to facilitate a negotiated reduction in the amount being claimed where, for example, the amount charged whilst legally incurred and supported by records, appears high when assessed against the complexity of the estate.
(iv)
The estate appears to have a sizeable surplus of assets over liabilities and there is little incentive for the practitioner to speedily finalise matters.
33.
Negotiated settlements are only an option available if both parties agree and both are willing to compromise.
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IGPS 10.1 Complaint handling process
Service standards
34.
ITSA Regulation aims to complete investigations within 28 days of receiving all relevant information, and will respond to the complainant on our findings and advise what action they or the Inspector-General may take.
35.
Where a complaint takes longer than 28 days to finalise, the complainant will be given an interim report on the progress of the complaint every 28 days.
36.
The complainant will be provided with a written response and a copy of that response is given to the trustee or administrator. ITSA Regulation aims to complete this within 60 days of receipt of the complaint.
Costs relating to a complaint
37.
ITSA Regulation does not charge for handling complaints against trustees and administrators.
38.
Registered trustees are generally entitled to charge for the time reasonably spent on a particular administration. In respect to time spent dealing with ITSA Regulation, the Inspector-General supports the Insolvency Practitioner Association code of conduct in respect to whether a trustee should charge for time spent relating to dealing with ITSA Regulation on a complaint, which states:
“A practitioner should not claim remuneration for the time spent:
communicating with regulators concerning complaints about the Practitioner or the conduct of a particular administration, except where the complaint is spurious
on regular surveillance, professional audits or inspection of files, or peer reviews or
unsuccessfully defending a breach of the law or this code”
39.
In respect to what is considered spurious, ITSA Regulation will advise parties when it is considered appropriate for a trustee to charge for their time.
40.
By way of example: ITSA Regulation completes its enquiries and decides that a matter is not justified and no further action is required. The complainant may not accept the outcome and may seek further enquiries on the same issues. ITSA Regulation will firstly be responsible for deciding whether the trustee needs to be further queried at additional expense or not. Generally ITSA Regulation will attempt to minimise any unnecessary expense and not re-raise matters previously examined. However should further trustee involvement be necessary, it would most likely give rise to a decision that the trustee is entitled to be remunerated from the estate for the additional work involved in responding.
41.
Should new issues be raised by the same complainant then ITSA Regulation will handle the matter as a new complaint and it is ITSA Regulation’s expectation that in responding to new queries the trustee will not attempt to charge the estate for time spent responding to ITSA Regulation.
42.
It is also the Inspector-General’s expectation that the time and costs associated with a practitioner taking any remedial action in respect to an error made will not to be charged to the estate or administration.
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IGPS 10.1 Complaint handling process
Feedback on ITSA Regulation services
43.
ITSA Regulation endeavours to maintain high standards and to model best practice in the way it deals with complaints. To this end, contentious or complex complaints and those chosen at random from time to time are subject to peer and management review.
44.
We are grateful to receive feedback from any stakeholder about the level of service they receive from ITSA Regulation throughout the complaint investigation period. Your feedback will improve the service we provide. Please provide your feedback to the Business Manager ITSA Regulation in your local region or if you continue to be dissatisfied to the National Manager ITSA Regulation and Enforcement.
Table 1
The types of outcomes that may result from an inquiry or complaint to ITSA Regulation:
Nature & Type of Outcome
1
A person who has been made bankrupt by sequestration order complains as they believe there has been a miscarriage of justice and they should not have been made bankrupt.
ITSA Regulation does not have the power to determine if a sequestration order has been validly made. In such a case it is likely ITSA Regulation will refer the bankrupt to other possible avenues including an application to court under either sections 153B or 178 of the Act.
2
A bankrupt or trustee complains about the content or operation of the Bankruptcy Act. For example, a bankrupt may believe that a 3 year period for bankruptcy is too long and she should only be bankrupt for 1 year.
ITSA Regulation will refer suggestions to improve the operation of the Act to the Attorney-General’s Department (via ITSA’s Legal & Executive Support unit) for consideration.
3
A debtor complains that whilst they have finished the payments set out in their debt agreement, their debt agreement administrator is asking for more money to pay additional creditors and their extra fees.
ITSA Regulation would ascertain whether any breaches of the law have taken place. If the debt agreement has been complied with and the administrator is seeking additional funds outside the agreement then it is likely that ITSA Regulation would inform the administrator that they have no legal basis for requesting further payments and should provide the debtor with confirmation and release. ITSA Regulation would also examine whether this has been a regular issue with the administrator and if so would consider counselling or disciplinary action.
4
A person complains regarding property and assets claimed by a trustee and the way a trustee has treated same.
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IGPS 10.1 Complaint handling process
ITSA Regulation will look to see if breaches of law or standards have occurred. If none occurred, ITSA Regulation has no power to direct a trustee in how they should exercise their power, discretion or commercial judgment relating to property claimed. In these cases complainants will be advised of the alternative remedies available to challenge a decision of a trustee regarding property. This may include application to the Court but could involve alternative dispute resolution covered in detail elsewhere in this document.
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IGPS 10.1 Complaint handling process
Nature & Type of Outcome
5
A person complains as the practitioner appears to be showing bias, and is taking a heavy handed approach.
ITSA Regulation will ascertain if the practitioner is in breach of the requirement to act impartially without conflict of interest and in accordance with the legislative standards required. If ITSA Regulation decides there is a conflict and the law or standards have been breached there are several options available depending on the seriousness of the issue and the practitioner’s willingness to remedy same. ITSA Regulation may counsel the practitioner, ask the practitioner to voluntarily arrange a replacement or may take legal action seeking orders to that effect and may commence disciplinary action concerning their registration.
5.
A debtor complains that the practitioner is not responding to requests for information.
There is specific legislation requiring provision of information and responding to reasonable requests for same. ITSA Regulation will examine whether this legislation has been complied with. If not, ITSA Regulation will request that the practitioner addresses the requests properly.
6.
A creditor complains that a trustee has not properly investigated the financial affairs and property dealings of the bankrupt and had acted for the bankrupt prior to bankruptcy in attempting to negotiate a settlement.
As in example 4 ITSA Regulation will ascertain if there practitioner is in breach of the requirement to act impartially without conflict of interest and in accordance with the legislative standards required.
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