Tribe, John (2015) Discretion and the termination of bankruptcy orders other than through discharge – a superfluous smörgåsbord? In: Society of Legal Scholars (SLS) Annual Conference 2015: Law’s Subjects: Subject to Law; 1-4 Sep 2015, York, U.K.. (Unpublished)

Abstract

This paper critically examines how a bankruptcy order may be re-examined and potentially brought to an end through seven separate and distinct procedures other than discharge. The alternative procedures are; appeal, rescission, annulment, reviewing, varying, recall and rehearing. The paper examines how the exercise of discretion within several of these re-examination procedures is exercised and whether or not this discretion has been exercised in a consistent and thorough way across the authorities. It is argued that the seven routes provide different but overlapping avenues to disturb the original bankruptcy order. In providing for seven different types of method by which a bankruptcy order can be re-examined the Legislature and courts have been the victims of history and practice. There is no consistency of principle between the procedures or collectively as a group for re-examining the original order. Different purposes and functions and performed by the procedures but with no clear rationale as to how they interrelate or co-exist. The discretionary elements give rise to uncertainty and the plethora of procedures is confusing. The exercise of discretion has also been applied inconsistently, leading in some cases to the wrong re-examination procedure being used to bring bankruptcies to an end prior to discharge. By examining discretion and legal certainty this paper seeks to rationalize the deployment of discretion within the bankruptcy jurisdiction. Modern practice does not need seven procedures. Instead a rationalization should occur to reduce what is a superfluous smörgåsbord of options in bankruptcy law.

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