Federal Court of Australia

DOQ17 v Australian Financial Security Authority [2020] FCAFC 219

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 25 September 2019 is dismissed.

2.    The appellant is to pay the respondents’ costs of this appeal to be taxed failing agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    It is well-established that an appeal to this Court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) is an appeal by way of re-hearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [20] per Allsop J (as he then was) (Drummond and Mansfield JJ agreeing). Nonetheless, if no further evidence has been admitted on an appeal and if there has been no relevant change to the applicable law, this Court “can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker”: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [14] per Gleeson CJ, Gaudron and Hayne JJ (emphasis added; footnote omitted). In such circumstances, therefore, the sole issue in an appeal under s 24(1)(a) is whether there is a relevant error in the judgment from which the appeal is brought.

2    Consistent with this principle, r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) requires an appellant to state in his or her notice of appeal “briefly but specifically, the grounds relied on in support of the appeal”. As the Full Court explained in Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9] per Collier, Flick and Charlesworth JJ, this rule “serves to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal”.

3    DOQ17, a pseudonym for the individual appellant in this matter, has failed to meet this requirement in her notice of appeal. Her 20 grounds of appeal from the whole of the judgment of the primary judge (DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488) are replete with general assertions of error and irrelevancies with little, if any, attempt being made to identify the alleged errors, much less to explain why they are said to constitute errors. This state of affairs is compounded in DOQ17’s written submissions, many of which do not appear to correspond to her grounds of appeal.

4    In large part, these deficiencies are likely to stem from the fact that DOQ17 is self-represented in this appeal. The difficult balancing task which confronts an appeal court when this situation arises was the subject of the following observations by another Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [52]-[54]. There the Court said:

52    … “[a] frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”. In addition, litigants-in-person commonly fail to lodge documents in the correct form, observe court formalities and procedures, understand the significance of court processes, put the relevant evidence or law before the Court; and understand the role of the Court in adjudicating the matter.

53    However, whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator … Indeed, the Court must strike a fine balance between providing assistance to a litigant-in-person, and ensuring a fair trial for all parties …

54    The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent …

(Citations omitted)

THE GROUNDS OF APPEAL

5    Fortunately in this appeal, the Court has been greatly assisted in discharging this task by the sensible and practical approach that has been taken by the respondents, all of whom are legally represented. In their written submissions, they have applied a generous construction to DOQ17’s grounds of appeal and have attempted to identify the errors they consider she has sought to raise by them.

6    There are three groups of respondents in this appeal, each of whom had a different role in the proceeding before the primary judge: Australian Financial Security Authority (AFSA) and its employees and agent (the first to third respondents and the seventh respondent respectively, who we will refer to as “the AFSA respondents”); Ms Nash, a legal practitioner retained by the AFSA (the fourth respondent) and the Registrar General of New South Wales (the fifth respondent).

7    Unsurprisingly, some differences have emerged in their assessments of DOQ17’s grounds of appeal. There is also some overlap between this category and the other two mentioned below, particularly insofar as many of the grounds of appeal below demonstrate a misunderstanding by DOQ17 of the issue concerned. Nonetheless there appears to be a broad consensus that the following grounds of appeal are intended to allege the errors indicated:

[Ground of appeal 2 – an allegation of bias]

The learned trial judge was biased. Her Honour refused to recuse herself on a Disqualification Application. Her Honour allowed the Fourth Respondent in their Final Submissions to make a shameful, unsubstantiated and defamatory statement against the Appellant regarding the “Many unsubstantiated allegations of fraud” allegedly made by the Appellant. Her Honour allowed this allegation to pass without comment.

[Ground of appeal 4 – error in the treatment of the judgment of Taylor [SC] DCJ]

The learned trial judge in her decision failed to take into account a material consideration that being the Judgment of Taylor [SC] DCJ on summary dismissal applications filed by the First, Second, Third & Fourth Respondents. Little weight or credibility was given to His Honour’s Judgment of 16 May 2016.

[Grounds of appeal 6 and 7 – error in deciding whether the proceeding raised a constitutional matter]

6. The learned trial judge erred on decisions that claimed that the Respondents were prejudiced against when the Respondents were aware of those facts and/or pleadings from the outset of the claim. I refer to s 109 of the Australian Constitution Act.

7. The learned trial judge made statements at the substantive hearing that she would develop her reasons more fully in her written reasons for judgment as to why she could not allow the pleading regarding S109 Australian Constitution Act but has not done so.

[Ground of appeal 8 – error in the treatment of medical evidence]

The learned trial judge acted upon wrong principles. There was an inconsistency as to which medical reports Her Honour allowed to be accepted as evidence and what Her Honour raised as evidence in her decision.

[Ground of appeal 12 – error in the treatment of obligations under Schedule 4A of the Bankruptcy Regulations and Model Litigant Principles]

The learned trial judge’s decision was plainly unreasonable or unjust. Her Honour failed to give consideration to the fact that the relevant parties had breached their obligations under Schedule 4A of the Bankruptcy Regulations 1996 Division 2.2, being the performance standards of trustees or the Model Litigant Principles.

[Ground of appeal 13 – error in refusing an adjournment]

The learned trial judge failed to afford the Appellant procedural fairness denying the Appellant, an unrepresented litigant, an extension of time to prepare for the trial and also in regard to the First, Second, Third, Fifth and Seventh Respondents failing to comply with court orders requiring service of a list of authorities five (5) clear business days before the commencement of the hearing.

(Errors in original; numbering omitted)

8    The balance of DOQ17’s grounds of appeal fall into two categories. Those that involve an obvious misunderstanding by DOQ17 of the primary judge’s judgment and those that are too general to constitute valid grounds of appeal. All of these grounds of appeal will therefore be dismissed. The following grounds of appeal fall into the first category:

3.    The learned trial judge made serious allegations against the Appellant including that the Appellant’s pleadings, affidavit evidence and submissions were replete with scandalous allegations of serious misconduct and sinister motives which Her Honour did not specifically address or evidence. There is no reference to the sinister motives in the Judgment.

11.    The learned trial judge provided inadequate reasons for why the Appellant was not allowed to cross-examine the Respondents when she had earlier informed the Appellant that she could. Only the Appellant was cross-examined.

15.    The learned trial judge made no request for the Fourth Respondent to attend court and be cross-examined by Her Honour when it was disclosed to Her Honour by the Appellant that the Fourth Respondent had made conflicting statements during these proceedings and in her response to the Application for Removal to the High Court regarding the truth of a matter.

9    The reasons why these three grounds involve obvious misunderstandings by DOQ17 are as follows. First, as for ground of appeal 3, the expression “sinister motives” appears only once in the primary judgment, that is, in [5], as follows:

I should also make it clear at the outset that the applicant’s pleadings, affidavit evidence, and submissions were replete with scandalous allegations of serious misconduct and sinister motives against the respondents, their legal representatives, third parties such as the Commonwealth, and judicial officers. These were unfounded, irrelevant and ought not to have been made, as I said in my reasons in DOQ17 v Australian Financial Security Authority [2018] FCA 561 (DOQ (No 1)) at [35] with respect to allegations of a similar nature. As such, I have disregarded them.

(Emphasis added)

10    As the Registrar General correctly explained in his written outline of submissions:

Her Honour in paragraph [5] of the Judgment referred to the scandalous allegations of serious misconduct and sinister motives made by the Appellant against some of the respondents which her Honour indicated were irrelevant and would be disregarded. These appeal grounds appear to take that reference as “serious allegations against the Appellant” by her Honour, which is plainly incorrect.

(Emphasis added)

11    Secondly, the background to the issue to which grounds of appeal 11 and 15 are directed, and the reason why both of those grounds of appeal reflect an obvious misunderstanding on the part of DOQ17, is accurately explained by the AFSA respondents in their written outline of submissions as follows:

34.    The appellant complains that only she was cross-examined while the respondents were not.

35.    On 26 April 2018, the primary judge made orders which relevantly included (at order 9):

9.    On or before 4.00pm on 28 June 2018, any party who requires the deponent of a filed and served affidavit to attend for cross-examination at hearing, is to notify the party who served the affidavit, in writing, of that requirement.

36.    The appellant relied upon affidavit evidence (her affidavit of 26 February 2018). The respondents required her to be cross-examined, pursuant to order 9 made on 26 April 2018, and she ultimately was.

37.    By contrast, the respondents did not rely upon any affidavit evidence. There was therefore no affidavit upon which the appellant could seek to cross-examine. This was explained to the appellant by the respondents in a letter of 11 July 2018, then by the primary judge on 7 September 2018 (Primary Judgment at [22]-[23]) and again on 13 September 2018 (T100.35-44).

(Footnote omitted)

12    The following grounds of appeal fall into the second category. Their irrelevancy or failure to identify any particular appellable errors in the primary judgment is obvious from their terms:

 1.    The learned trial Judge’s decision is ‘plainly wrong’.

5.    The learned trial judge erred on many facts that changed the circumstances of the case and the applicable law. In one instance, regarding the removal date of a paper from the Fourth Respondent’s website.

9.    The learned trial judge’s decisions were out of proportion in view of the seriousness of the offences, being breaches of Federal Laws.

10.    The learned trial judge’s decision showed disregard for the submissions and case law of the Appellant.

14.    The learned trial judge has accepted none of the Appellant’s evidence on issues of credit despite the fact this matter has been before this Court and the District Court for many days.

16.    The learned trial judge dismisses the fact that the Appellant had obtained legal advice on the breach of s121 Family Law Act 1975 and regarding S109 of the Australian Constitution Act prior to commencing legal proceedings.

17.    The learned trial judge in her decision dismisses the fact that the Appellant endeavoured to resolve the breach of s121 Family Law Act 1975 by reporting the matter to those whose role it is to investigate the complaint.

18.    The learned trial judge denies the publication and dissemination of Court proceedings and confidential information.

19.    The learned trial judge denies that the Fourth Respondent’s conduct was unprofessional, unfair and in good faith.

 20.    The learned trial judge took into account irrelevant matters.

(Errors in original)

THE FACTUAL CONTEXT

13    Before addressing the remaining six grounds of appeal above (noting that grounds of appeal 6 and 7 are grouped as one), it is convenient to provide a summary of the factual background to this appeal. That is conveniently set out in the introductory paragraphs to the primary judgment as follows:

1    This matter has a long and complex history. The applicant, DOQ17 (Ms DOQ), seeks relief consequential on the disclosure of her name and identity in April 2012 by the Australian Financial Security Authority (AFSA), Mr Madden, Ms Czinner, and Ms Nash, the first to fourth respondents respectively, in attaching orders made by the Family Court on 19 August 2011 (the Family Court Orders) to a contract for the sale of land in the State of New South Wales (the property). The property was the former matrimonial home of which the applicant was part owner. Additional complaints are made against Ms Nash on the grounds that she published a “blog” on the ARITA website on 23 August 2011 (Exhibit A1 (Ex A1) at 230) and two continuing legal education papers, each of which also disclosed the applicant’s identity. By the Further Amended Statement of Claim (FASOC), Ms DOQ alleges that the disclosure of her identity by these acts contravened a pseudonym direction made under s 121 of the Family Law Act 1975 (Cth) (the Family Law Act) and breached various duties allegedly owed to her. Ms DOQ seeks damages based on various alleged causes of action for mental injury and distress.

2    AFSA (formerly known as the Insolvency Trustee Service of Australia (ITSA)) is an executive agency within the meaning of Part 9 of the Public Service Act 1999 (Cth). Its functions include supporting the Official Trustee in Bankruptcy in performing its statutory functions. Mr Madden and Ms Czinner were employees of AFSA at the relevant time. They were appointed as the statutory trustees for the sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW) by the Family Court Orders. Ms Nash was at all relevant times a legal practitioner entitled to practice under the Legal Profession Act 2004 (NSW). She was instructed to act on behalf of the Official Trustee in Bankruptcy and, by extension, on behalf of Mr Madden and Ms Czinner in their capacity as the statutory trustees for sale.

3    The applicant’s claims against the other respondents also relate to the disclosure of the applicant’s identity as part of the contract for sale. The fifth respondent, the Registrar-General of New South Wales, recorded the Family Court Orders vesting the property in the trustees for sale on the Register pursuant to s 86 of the Real Property Act 1900 (NSW) (RPA). The seventh respondent, Savice Pty Ltd trading as LJ Hooker Picton (LJ Hooker Picton), distributed the contract to which the Family Court Orders were attached to prospective buyers. I note that the proceedings were discontinued as against the then sixth defendant, the Australian Restructuring Insolvency and Turnaround Association (ARITA), on 14 February 2017, before the matter was transferred to this Court from the District Court.

(Emphasis in original)

GROUND OF APPEAL 2 – BIAS

14    Turning, then, to the first of the remaining six grounds of appeal above, the respondents have variously interpreted this ground of appeal to have raised an allegation of bias against the primary judge. This would appear to stem from the opening words of the ground of appeal itself. As well, in her written submissions, DOQ17 made several allegations against the primary judge including that: “[m]y credibility was attacked … by [the primary judge] in her Judgment”; “[t]he complexity of the case, and being unrepresented made me a ‘soft target’, and I was shown prejudice and bias by [the primary judge] in the Federal Court proceedings”; and “[t]he information related by [the primary judge] in points [sic] 104 & 105 (Pt A tab 17, 384 – 37) is irrelevant information and would only be revealed through accessing the Family Court Judgment. Her Honour has discussed this information to discredit me”.

15    In their written submissions, the AFSA respondents correctly summarised the principles relevant to establishing an allegation of bias. That is, in respect of an allegation of actual bias, “[a]uthority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required” (citing Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]). With respect to an allegation of apprehended bias, they pointed out that the test was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (citing Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]).

16    In rejecting this ground of appeal, it suffices to say that the vague and general allegations made by DOQ17 in this ground of appeal, and in her written submissions concerning it, do not come close to meeting either of the tests for bias set out above. To the contrary, there is not the slightest indication of bias in the considerate and respectful manner in which her Honour dealt with the various issues which DOQ17 raised before her, as reflected in her reasons for judgment and in those parts of the transcript of the hearing to which reference is made below.

GROUND OF APPEAL 4 – JUDGMENT OF TAYLOR SC DCJ

17    In this ground of appeal (see at [7] above), DOQ17 is critical of the primary judge’s failure to take account of the judgment of Taylor SC DCJ, without expressing precisely why that constitutes an error on her Honour’s part. That deficiency is compounded in DOQ17’s written submissions, where she sets out her concerns with respect to the primary judge’s treatment of that judgment in question and answer format as follows:

1.    WERE PROCEEDINGS AND EVIDENCE BEFORE TAYLOR [SC] DCJ & HIS JUDGMENT ON THE RESPONDENTS’ SUMMARY DISMISSAL APPLICATIONS GIVEN CREDIBILITY, STANDING AND WEIGHT IN THESE PROCEEDINGS?

 a)    No, despite their dismissal and costs awarded to me. No appeals were filed.

b)    [The primary judge] states (Pt A tab 17, 373 - 25 [83]) that “Taylor [SC] DCJ’s decision was interlocutory only” and gives no relevance to it. Taylor DCJ states that “the orders of the court are a part of the proceedings, perhaps the final part. To recite the orders is to recite a part of the proceedings”. (Pt B tab 1, V5 at 1461 [18])

c)    This would align with s73 of the Commonwealth of Australia Constitution Act 1900 which states that judgments, decrees, orders and sentences are decisions made in the exercise of judicial power. It is reiterated by French CJ in Momcilovic v The Queen [2011] HCA 34 at [101].

d)    [The primary judge] allowed the Respondents to make the same or additional submissions in the Federal Court proceedings (Pt A tab 17, 373 - 25 [83]) although they withdrew the Affidavit of Mr Olson of HWL Ebsworths (TB tab 1, Index) which included AFSA’s and the Trustees submissions in the District Court, so that I was not able to cross-examine. Her Honour however, would not allow me to draw on the evidence of the contents of documents produced or comments made (and recorded in transcripts) during the District Court hearings upon which the Respondents had relied.

(Emphasis and errors in original)

18    For their part, the AFSA respondents contended that the judgment of Taylor SC DCJ was not determinative of any issue before the primary judge. Ms Nash contended that the primary judge “dealt with the status of that decision, correctly, at [83]”.

19    Both of these contentions are correct. To explain why that is so, it is necessary to record some more details of the factual context to this appeal. As the primary judge pointed out at [81] of her reasons, the present proceeding was originally commenced in the District Court of New South Wales. The judgment of Taylor SC DCJ was delivered in that proceeding. At [82] of her reasons, the primary judge adopted the following passages from the judgment of the New South Wales Court of Appeal concerning an earlier stage of the District Court proceedings: D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50. These passages summarise the background to the summary dismissal application to which the judgment of Taylor SC DCJ related:

14. Before the applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).

15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.

16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:

In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.

17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).

18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).

20    The primary judge then expressed her views about the relevance of the judgment of Taylor SC DCJ in this proceeding in the following terms (at [83]):

No application for leave to appeal from the summary dismissal judgment was made by any of the parties. In this regard, contrary to the applicant’s submissions, the dismissal in part of the application for summary dismissal did not prevent the respondents from making submissions at trial on those issues which remained live: Applicant’s final submissions to the respondents’ final submissions at p. 64 [1]. Taylor [SC] DCJ’s decision was interlocutory only. It was limited to deciding what, if any, of the alleged causes of action raised by the applicant had sufficient prospects of success to warrant them proceeding to trial and did not decide that “there was a contravention of s 121 for the purpose of a civil cause of action”: cf Applicant’s written outline of submissions dated 10 September 2018 at [16]. As such, it was open to the respondents to make the same or additional submissions at the trial in support of their respective defences to the applicant’s claims.

(Emphasis in original)

21    No error is apparent in any of these observations. The primary judge was quite correct to observe that the respondents were not prevented by that judgment from making submissions at the trial of this proceeding where those issues remained alive. This ground of appeal is therefore unmeritorious.

GROUNDS OF APPEAL 6 AND 7 – CONSTITUTIONAL MATTER

22    While confused in their terms, these two grounds of appeal appear to allege error on the part of the primary judge, or an alleged failure to explain in her reasons why she refused to allow DOQ17 to raise a claim involving s 109 of the Commonwealth of Australia Constitution Act (Cth) (the Constitution) (see at [7] above). In her written submissions, DOQ17 addressed her concerns with respect to these grounds of appeal, again in question and answer format, as follows:

DID [THE PRIMARY JUDGE] DEVELOP HER REASONS MORE FULLY IN HER WRITTEN REASONS FOR JUDGMENT AS TO WHY SHE COULD NOT ALLOW S109 CHAPTER V, COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT TO BE RAISED AT THIS LATE STAGE? No, this is not evident in the Judgment.

a)    This issue of conflicting laws was raised in my originating Statement of Claim (Pt B, tab 1, V4 961 [7]) based on legal advice as stated to Taylor [SC] DCJ on 24 February 2016 (Pt B tab 1 V5, 1246-1247 [5…])

b)    Ms Nash claimed the requirement to attach the Family Court Orders to the Contract under s52A of the Conveyancing Act 1919 and s43 Real Property Act 1900 (NSW) . After being joined as a party, the NSW Registrar General relied on s86 Real Property Act 1900 (NSW) in its defence of uploading my Orders onto their public domain.

See Gummow J in Momcilovic v The Queen at [258]; and in [264] the point Dixon J made in The Kakariki (1937) 58 CLR at 630. Also Barwick CJ in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at [3] and Hayne J in Momcilovic v The Queen also at [354].

(Emphasis and errors in original)

23    The AFSA respondents described the background to this issue in their written submissions as follows:

23.    The appellant had on 28 August 2018 filed a “Statement of Issues” which purported to raise some eighty-eight issues/questions said to require resolution. On the first day of the hearing, 13 September 2018, during the course of the primary judge ruling on which issues did, and which did not, properly arise for determination, a question arose as to whether a constitutional issue was properly raised.

24.    In effect, the “issue” was whether there was an inconsistency between, on the one hand, s.121 of the [Family Law Act 1975 (Cth)] (a Commonwealth Act), which prohibited the publication of any account of any Family Court proceedings, and, on the other hand, s.86 of the Real Property Act 1900 (RP Act) (a NSW Act) which the appellant suggested “required” the Family Court Orders to be uploaded onto the register.

25.    The respondents opposed the appellant’s suggestion that any constitutional issue was legitimately raised. The respondents’ submissions in that regard are at T38.10-T44.36.

26.    Within that context, appeal ground 6 appears to be an assertion that the Court below erred in the exercise of its discretion to refuse what was in effect an amendment application seeking to raise an issue not pleaded. That being so, appellate intervention is only warranted in accordance with the well-known principles in House v The King (1936) 55 CLR 499 at 504-505. The appellant has not pointed to any error of that type.

27.    In any event, the fifth respondent (the Registrar-General) clarified that it did not contend that s.86 of the RP Act required the uploading of the Family Court Orders onto the Registry (merely that it was permitted) (T35.1-T36.10). As such, there was no inconsistency so as to potentially invalidate s.86 of the RP Act and the constitutional point fell away (T39.34-T40.10). The primary judge accepted that was so, indicating to the appellant that it was a point therefore in her favour (see T110.13-T112.47).

(Emphasis in original; footnotes omitted)

24    As appears above (at [23(27)]), the Registrar General is the party most directly affected by this issue. In his written submissions, he explained why this ground of appeal does not arise in this appeal as follows:

20    The Appellant sought to raise at hearing an issue concerning s.109 of the Constitution based on an assumption that the Registrar-General was contending that s.86 of the RPA required the Registrar-General to upload the Orders onto the Register. The argument which the Appellant sought to raise was that if the Registrar-General was required under state law (i.e. s.86 if the RPA) to upload the Orders, then that would be inconsistent with a law of the Commonwealth (being s.121(1) of the Family Law Act) which the Appellant contended prohibited any such uploading and would therefore be struck down as invalid under s.109 of the Constitution for being inconsistent with a Commonwealth law. However, the Registrar-General made it clear on the first day of the hearing that he did not so contend, from which her Honour correctly concluded that the s.109 point which the Appellant sought to raise fell away: see Transcript p.35 at lines 10-46.

21    In those circumstances, grounds 6 and 7 do not advance the Appellant’s appeal in any way.

(Emphasis in original)

25    Since the Registrar General made it clear that he did not wish to raise a contention with respect to the interaction between s 86 of the Real Property Act 1900 (NSW) and s 109 of the Constitution, the application of that provision of the Constitution plainly did not arise for consideration before the primary judge. Moreover, the primary judge carefully explained how this outcome was beneficial to DOQ17 on the second day of the hearing. First, (at T 110) her Honour said to DOQ17:

At the end of the day, the point, as I understand it, in your raising the section 109 issue was because you had a concern that the Registrar General was going to say we had the duty to upload the contract for sale onto the register. But … you say, well, that state law which imposed that duty on the Registrar General is invalid under section 109 of the Constitution because of an inconsistency. Now, that issue has effectively gone away because the Registrar General has conceded that he was not under a duty to upload the documents onto the register. So even leaving aside what Ms Amato submitted yesterday, the Registrar General’s concession has, in effect, meant that you have won that point anyway, without even having to rely upon the constitutional point…

(Emphasis added)

26    Then, a short time later (at T112), her Honour summed up the position as follows:

… the concessions that have now been made by the fourth respondent and by the Registrar General mean that the issue that Judge Taylor has raised and that was then picked up by you and the subject of argument on the amendment application doesn’t even need to be resolved because it’s effectively been resolved in your favour by the concessions.

(Emphasis added)

27    Grounds of appeal 6 and 7 are therefore devoid of merit.

GROUND OF APPEAL 8 – MEDICAL EVIDENCE

28    While this ground of appeal is expressed in general and vague terms (see at [7] above), the respondents have assumed that the reference to “medical reports” has raised an allegation of error in respect of the primary judge’s treatment of that distinct category of the evidence.

29    In her written submissions, under the heading “MEDICAL EVIDENCE”, DOQ17 made the following contentions:

a)    [The primary judge] refers to my medical evidence (Pt A tab 17, 413 – 66 [200, 201]) and ignores the fact that in Dr Teoh’s report dated 19 March 2018 (Pt B tab 1, V7, 1899) he states that he had read the report of Dr Uebergang my treating Psychologist (Pt B tab 1, V7, 1896) and his report refers to “complex legal issues relating to a breach of privacy and defamation” that I have had to deal with. Dr Teoh also states in (d) “She has been seeing a psychologist, and it would appear, based on the report that her depressive and anxiety symptoms have persisted” and in (f) “Her condition has stabilized, her condition has become chronic and has not improved significantly”.

b)    As Dr Teoh relies on Dr Uebergang’s diagnosis in his report, it should be seen as an annexure to Dr Teoh’s report and allowed as evidence in this case.

c)    [The primary judge] states (Pt A tab 17, 414 – 67 [203]) that the First to Third and Seventh Respondents did not dispute the evidence of Dr Teoh or Dr Crickitt (2 September, 2009 & 20 May 2013) (Pt B tab 1 V1, 19 & V3, 678) but relied upon their “expert evidence”. The Respondents filed no expert evidence.

d)    The fact is that Dr Crickitt’s reports were not tendered by me as “expert evidence”. His reports were prepared for my Workers’ Compensation Claim and filed in these proceedings in accordance with Order (3) of Taylor [SC] DCJ of 16 May 2016 (Pt B tab 1 V5, 1472). Dr Crickitt’s reports do not comply with the Federal Court rules (23.13) and were not raised at the trial. They also contain a “History”.

e)    The history taken from me by Dr Teoh and outlined in his report, was not allowed by [the primary judge] (Pt B tab 11, 92, 93) but in Scala & Scala [2019] FCCA 3456 [12] the history taken and outlined in the medical report was allowed. Is it dependent on the discretion of the Judge to accept or discard the history or are their rules that apply?

(Emphasis and errors in original)

30    The written submissions of the AFSA respondents on this issue were as follows:

28.    The appellant does not explain what particular principles the primary judge acted upon, or why she says they were wrong.

29.    The appellant claims there was “an inconsistency” as to which medical reports were accepted into evidence, and which were not. It is true that the primary judge rejected the tender of some reports sought to be relied upon by the appellant - the reports of Ms Angela Paresher and Dr Margaret Uebergang - on the ground they “were plainly inadmissible” for the reasons provided at the trial.

30.    On the other hand, the reports of Dr Brian Crickitt were admitted, and the reports of Dr Ben Teoh were also admitted (subject to a limitation under s.136 of the Evidence Act 1995 (Cth)).

31.    The appellant suggests, at AS [5(d)], that she did not intend to tender Dr Crickitt’s reports as “expert evidence” and that they did not comply with rule 23.13. That seems in turn to be a suggestion that Dr Crickitt’s reports should not have been admitted into evidence. If that is right, and the “inconsistency” sought to be revealed by the appellant is that the primary judge allowed the tender of Dr Crickitt’s reports where she ought to have rejected them (for the same or similar reasons to those that led to the rejection of Ms Paresher’s and Dr Uebergang’s reports), this would only serve to further undermine the state of the appellant’s expert evidence.

32.    The state of the evidence was that there was no evidence to establish that the respondents’ conduct had caused the appellant to suffer an anxiety disorder or any other recognised psychiatric symptoms. Dr Teoh’s evidence was that the appellant had been suffering from a pre-existing psychiatric condition at least as early as 7 February 2010, and there was no evidence that the respondents’ conduct had exacerbated that condition. Indeed, the appellant herself seems to refer to that pre-existing “psychological injury” at AS [9(a)]. Regardless of the so-called “inconsistency” referred to by the appellant, she does not seem to suggest that the primary judge’s findings at [200] or [201] are wrong.

(Emphasis in original; footnotes omitted)

31    The Registrar General made similar contentions in his submissions as follows:

22    Ground 8 asserts that the trial judge “acted upon wrong principles”, which are not identified, in respect of her medical evidence. The respondents did not lead any medical evidence. The Appellant’s own medical evidence disclosed that the Appellant had been diagnosed of a generalised anxiety disorder several years before the conduct which formed the basis of her claims in the proceedings: see Judgment at [200] and [203]. Her Honour found that there was no evidence that the conduct of any of the respondents exacerbated her condition: see Judgment at [201]. Accordingly, there could be no error in the trial judge’s conclusions, based on the only medical evidence in the proceedings, being the Appellant’s own medical evidence, which was insufficient to discharge her onus of establishing the elements of her claim.

23    In any event, in circumstances where no duty of care was found, any consideration of the medical evidence was of no consequence and cannot advance the Appellant’s appeal.

32    The apposite parts of the primary judgment to which reference is made in these contentions fall within section 10 of the judgment, which is headed “THE ALLEGED BREACHES OF DUTY OF CARE”. That section then includes five subsections as follows:

(a)    “10.1    Application of the Civil Liability Act as surrogate federal law by operation of s 79, Judiciary Act 1903 (Cth)”;

(b)    “10.2    Preconditions to the existence of a duty of care imposed by s 32(1), Civil Liability Act”;

(c)    “10.3    Causation provisions of the Civil Liability Act”;

(d)    “10.4    The cause of action in negligence as against the first, second, third, fourth and seventh respondents must fail”; and

(e)    “10.5    The cause of action in negligence against the Registrar-General must be dismissed”.

33    Further, section 10.4 above contains these three subsections:

(a)    “10.4.1    The risk of injury was not reasonably foreseeable”;

(b)    “10.4.2    The imposition of a duty of care upon Ms Nash would be inconsistent with fiduciary duties owed to the trustee in bankruptcy”; and

(c)    “10.4.3    In any event, there is no evidence that the respondents’ conduct caused or exacerbated the applicant’s mental disorder”.

34    The particular paragraphs to which reference is made above are contained in the last subsection – 10.4.3 of section 10.4. It is appropriate to set out the four paragraphs of that subsection of the judgment. They are:

200    Thirdly, there is no evidence that any of the respondents’ conduct caused the applicant to suffer a generalised anxiety disorder. In this regard, the applicant had been diagnosed by Dr Ben Teoh, a consultant & forensic psychiatrist, with the disorder (chronic adjustment disorder with anxious and depressed mood (DSM IV diagnostic criteria)) at least as early as 7 February 2010 in connection with a WorkCover claim and therefore several years before the alleged conduct (see Ex A1 at 23; CB tab 28 at 399). In his more detailed report dated 15 March 2010, Dr Teoh attributed the cause of the disorder to the applicant’s work as a teacher at a college, expressing the opinion that “her work has been a substantial contributing factor to her condition” (Ex A1 at 33; CB tab 29 at 404). That diagnosis was confirmed by Dr Teoh in his report dated 20 February 2011 (Ex A1 at 124; CB tab 30 at 408) in which he expressed the opinion that:

Her presentation is consistent with a diagnosis of a Chronic Adjustment Disorder with Anxious and Depressed Mood (DSM IV diagnostic criteria).

It is my opinion that her condition is caused by the employment at [the college].

201    Nor is there any evidence that the respondents’ conduct exacerbated her condition. The subsequent expert opinions of Dr Teoh do not link any psychiatric injury to the disclosure of the alleged confidential information. Thus, in his reports dated 19 February 2013 and 5 March 2013 Dr Teoh confirmed the prior diagnosis and its cause, and expressed the view that the applicant had suffered a permanent psychiatric impairment (Ex A1 at 663 and 671; CB tab 31 at 412 and tab 32 at 414). His report dated 12 March 2014 was to the same effect (CB tab 34 at 419). Dr Teoh’s evidence goes no higher than his report dated 19 March 2018 confirming his earlier diagnosis and advising that she presented with a complex history of psychosocial stressors over the years, referring to “unresolved issues in relation to the legal matters [earlier identified as the Family Court matter and in relation to breach of confidentiality and defamation], which is causing her significant emotional distress” (Ex A1 at 1901; CB tab 38 at 603).

202    Nor does Dr Crickitt’s expert evidence lend any support to the applicant’s case. In his report dated 7 November 2009, Dr Crickitt diagnosed the applicant as suffering from “Generalised Anxiety Disorder with Panic Disorder” and found that “[t]he Symptoms and diagnosis are entirely consistent with the history of work place difficulties and stresses. In her WorkCover Medical Certificate I certified that I believed her employment was a substantial contributing factor to her injury” (CB tab 27 at 397). Subsequently, in his report dated 20 May 2013, Dr Crickitt again diagnosed the applicant as suffering from “Anxiety Disorder with panic attacks and probable Posttraumatic Stress Disorder” and advised that in his opinion “[t]he diagnosis is consistent with her story of abuse while teaching at the school” (Ex A1 at 678; CB tab 33 at 418).

203    In this regard, contrary to the assumption underlying the applicant’s submissions, it was not for the respondents to lead medical evidence “to dispute Dr Teoh’s evidence, or any of the other medical evidence or the Applicant’s evidence” (Applicant’s final submissions in response to the respondents’ final submissions at p. 28 [111]-[112]). The onus lay upon the applicant to establish the elements of her cause of action in negligence. Furthermore, the first to third and seventh respondents did not dispute the evidence of Dr Teoh or Dr Crickitt. To the contrary, they relied upon their expert evidence as demonstrating that the applicant’s psychological condition pre-dated, and was neither caused nor exacerbated by, the respondents’ conduct (Closing submissions of the first to third and seventh respondents at [111]-[112]).

(Emphasis in original)

35    The paragraphs of the AFSA respondents’ closing submissions to which reference is made in the concluding words of [203] above were as follows:

111.    As to causation, there is no evidence that the conduct of the Respondents caused the applicant to suffer a generalized anxiety disorder.

112.    Rather the Applicant was diagnosed by Dr Ben Teoh with the disorder at least as early as 7 February 2010, being some years prior to the alleged conduct. Dr Teoh attributed the caused [sic] to the Applicant’s work as a teacher at Marion College (which the Applicant does not seem to dispute). There is no evidence that the Respondents’ conduct exacerbated the condition.

(Footnote omitted)

36    It is also important, for the purposes of disposing of this issue, to set out [38] of the primary judgment where her Honour described the medical evidence DOQ17 sought to tender:

Finally the applicant sought to rely upon medical evidence. The tender of the reports of Ms Angela Parasher and Dr Margaret Uebergang was refused on the ground that they were plainly inadmissible for reasons given at the hearing (T89.1-25, T92.25-33 respectively). The reports of Dr Brian Crickitt dated 7 November 2009 and 20 May 2013 were, however, received in evidence (Court Book (CB) tabs 27 and 33). The reports of Dr Ben Teoh dated 7 February 2010, 15 March 2010, 20 February 2011, 19 February 2013, 5 March 2013, 12 March 2014 and 19 March 2018 were also received in evidence (CB tabs 28-32, 34 and 38 respectively) subject to a limitation under s 136 of the Evidence Act 1995 (Cth) that any passages in those reports set out under the heading “History” are not to be taken as evidence of their truth (T94.18-24, 95.17-19).

37    Given the contents of [38] of the primary judgment, DOQ17’s attempts to rely upon the report of Dr Uebergang in her written submissions (see at [29(a) and (b)] above) must be rejected. For similar reasons, DOQ17’s contention with respect to Dr Crickitt’s report (see at [29(d)] above) must be rejected. Putting those contentions aside, there is nothing elsewhere in DOQ17’s written submissions to identify what the “inconsistency” mentioned in this ground of appeal is, or to explain why it gave rise to any appellable error by the primary judge in her treatment of the medical evidence at [200]-[203] of the primary judgment. Perhaps more importantly, no error is apparent in those four paragraphs of the judgment. Finally, and in any event, as the Registrar General correctly observed, “in circumstances where no duty of care was found, any consideration of the medical evidence was of no consequence and cannot advance the Appellant’s appeal”.

38    For these reasons, this ground of appeal also has no merit.

GROUND OF APPEAL 12 – OBLIGATIONS UNDER SCHEDULE 4A OF THE BANKRUPTCY REGULATIONS AND THE MODEL LITIGANT PRINCIPLES

39    This ground of appeal asserts that the primary judge’s decision was “plainly unreasonable or unjust” because of an unspecified obligation under Schedule 4A of the Bankruptcy Regulations 1996 (Cth) and the Model Litigant principles. In her written submissions, DOQ17 developed this ground of appeal in the following terms:

Vicarious liability

a)    In Pt A tab 17, 377 – 30 [sub-point (6)] [the primary judge] refers to vicarious liability raised by me in Issue 37. (Pt B tab 22, 9) It was Ms Berberian, Counsel for AFSA and the trustees who raised the issue with Taylor [SC] DCJ. (Pt B tab 1 V5, 1232 [32] and 1235 [35]). They were not prejudiced. I also refer to my Final Submissions Pt B tab 38, 15 [48] and Closing Submissions Pt B tab 42, 26 [105].

Model Litigant principals [sic – principles]

b)    In Pt A tab 17, 377 – 30 [sub-point (7)] [the primary judge] raises the Model Litigant principals [sic – principles] stating that they are not actionable. No, they are not by me but in the District Court Ms Berberian claimed her client, AFSA was a “model litigant” (Pt B tab 1, V5, 1252 [41]) and Taylor [SC] DCJ again refers to this in Pt B tab 1, V5, 1254 [7]. I also in my submissions filed 18 January 2016 (Pt B tab 1, V5 1129-1130 [2]) address, in detail, the breaches. See my Final Submissions Pt B tab 38, 10 [36-37].

See Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, 196.

I invite this Court to enforce and/or exact the higher standard that is expected of the Government and its employees and/or agents which have not been observed in this case and ignored by [the primary judge].

Bankruptcy Act 1966 and Practice Directions

c)    In Pt A tab 17, 421 – 74 [226] [the primary judge] states that I have not explained this contravention. This is false. I refer the Court to the FASOC (Pt A tab 2, 16-17 [10-12) and my Closing Submissions Pt B tab 42, 53 [59-60]

(Emphasis and errors in original)

40    The AFSA respondents made the following submissions with respect to this ground of appeal:

The appellant asserts that the primary judge “failed to give consideration to the fact that the relevant parties had breached their obligations under Schedule 4A of the Bankruptcy Regulations 1996 Division 2.2”. However, the primary judge had referred to the appellant’s assertion of a breach of the Bankruptcy Act 1966 (Cth) at Primary Judgment [226]. That allegation, along with other miscellaneous claims, were dismissed as “hopeless”, for the three reasons set out at [266]. The appellant does not, in the [notice of appeal], challenge the correctness of any of those three findings.

(Emphasis and errors in original)

41    For her part, Ms Nash submitted that:

21.    In the submissions, 14(a) refers to vicarious liability. Her Honour held that vicarious liability was not raised by the appellant’s pleadings: [91(6)]. The appellant does not attempt to demonstrate error on her Honour’s part, rather, saying that counsel for the first respondent in the District Court raised the issue. Nothing further need be said on the matter.

22.    The submissions at 14(b) appear[s] to accept, as her Honour held, that the model litigant principles are not actionable: [91(7)]. Rather, the appellant asks this Court to “enforce and/or exact [a] higher standard” from those bound by the principles. That is beyond the Court’s jurisdiction.

42    The relevant parts of the primary judgment which concern the matters raised by the contentions above are as follows:

91.    Bearing these matters in mind, I rejected the following issues identified in the applicant’s [statement of issues] as matters which the Court could or should decide in order to resolve the proceeding for the following specific reasons.

…

(6)    Nor is vicarious liability which is identified in issue 37 raised on the pleadings and, if it had been raised by the applicant’s pleadings, I accept the respondents’ submission that it is likely that they would have sought to lead evidence on the issue. As such, to permit the issue to be raised now would prejudice the respondents.

(7)    Issues 38 and 39 are beyond the scope of the pleadings. Furthermore, as counsel for Ms Nash submitted, the Model Litigant Principles constitute a direction made under s 55ZF of the Judiciary Act 1903 (Cth). Section 55ZG(2) of that Act makes it plain that a breach of a direction made under s 55ZF is not actionable.

…

226    The applicant also lists various other alleged causes of action in her FASOC, namely: (1) breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA) which was repealed on 1 January 2011; (2) breach of the Bankruptcy Act 1966 (Cth); and (3) breach of the Inspector General’s Practice Direction 14. The allegations are hopeless and must be dismissed. First, none of these allegations rises above bare assertion. Secondly, the first allegation is made against Ms Nash to whom the TPA did not apply for the reason that she is not a corporation. Thirdly, the manner in which the Bankruptcy Act 1966 (Cth) is said to been contravened so as to give rise to a civil cause of action sounding in damages is left completely unexplained, as is the alleged breach of the Practice Direction.

(Emphasis in original)

43    When regard is had to the various paragraphs of the primary judgment set out above, and without reiterating each in turn, it is clear that the respondents are correct in each of the contentions they have made above. It necessarily follows that DOQ17 has failed to demonstrate any appellable error in the primary judgment involving the issues of “Vicarious liability”, “Model Litigant principals [sic – principles]” and the “Bankruptcy Act 1966 and Practice Directions”. This ground of appeal also has no merit.

GROUND OF APPEAL 13 – REFUSAL OF ADJOURNMENT

44    This is, perhaps, the clearest allegation of error in DOQ17’s notice of appeal. Despite this, DOQ17 does not appear to have developed it in her written submissions.

45    The background to the adjournment application in question is summarised in the written submissions of the AFSA respondents as follows:

39.    The appellant had, on 10 August 2018, requested that the hearing be vacated. That application was heard on 7 September 2018, and was refused for the reasons given at Primary Judgment [30]-[33].

40.    Then, on the morning of the first day of the hearing, 13 September 2018, the appellant raised “an issue” which, she said, “might cause an adjournment of the matter” (T2.28-29). That “issue” was that she had only been served with the authorities of the first, second, third, fifth and seventh respondents the evening prior (order 16 made on 26 April 2018 had required each party to file and serve a list of authorities five business days prior to the hearing). The respondents explained (T3.8-T4.7) that they did not intend to refer to any authorities in opening, that the authorities had been made available to the appellant by email and in hard copy, and that those authorities which had been provided would be referred to in closing only. It was suggested that, in the interests of fairness and particularly given the appellant was self-represented, she might be given leave to address the authorities in written submissions after the trial. That is what ultimately occurred.

41.    The primary judge treated the appellant’s complaint as an adjournment application, but refused it on the basis that there would be no procedural unfairness to the appellant if she was allowed to file written submissions following the trial (T6.1-22) …

46    In his written submissions, the Registrar General provided the following details of the latter application:

27.    At the start of the hearing, the Appellant sought an adjournment of the hearing on the basis that she was provided with lists of authorities by the respondents the day before the hearing, which her Honour refused on the basis that any prejudice to the Appellant could be dealt by allowing the Appellant to respond to that material in written submissions after the hearing…

28.    At the conclusion of the hearing on 14 September 2018, directions were in fact made allowing the Appellant until 8 November to file her closing written submissions.

47    The reasons that the primary judge gave for rejecting DOQ17’s application for adjournment were as follows (at [30]-[33]):

30    As counsel for the first to third and seventh respondents submitted, the power of the Court to grant an adjournment is discretionary, to be exercised having regard to the objectives in s 37M of the Federal Court Act 1976 (Cth): Luck (FCAFC) at [42] (the Court). In Luck (FCAFC), the Court noted:

44.    In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).

31    The respondents submitted that, applying these principles, the Court should refuse the application for an adjournment. I agree. First, for the reasons set out above, the applicant has not identified a sufficient reason to warrant the grant of an adjournment. Secondly, the applicant has had more than a sufficient opportunity to formulate and finalise her application and to prepare for the hearing. While, as an aspect of the court’s duty to ensure that a trial is fair, the court must ensure that unrepresented litigants do not suffer disadvantage from exercising the recognised right to be self-represented, “the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties”: Hamod v New South Wales [2011] NSWCA 375 at [310] (emphasis added) (cited with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37] (Robertson J, with whose reasons Allsop CJ and Mortimer J agreed)). As Tracey J observed in Luck v University of Southern Queensland [2008] FCA 1582 at [9]:

Although the Court will, normally, be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions, the Court is also bound to have regard to the interests of respondents when determining whether or not to accede to further requests for time for preparation.

32    Thirdly, under s 37M of the Federal Court of Australia Act 1976 (Cth), the [Federal Court Rules 2011 (Cth)] must be applied in a way that best promotes the overarching purpose of facilitating the just resolution of disputes, relevantly, “as quickly, inexpensively and efficiently as possible”. Obligations are also imposed directly upon the parties to a civil proceeding to conduct the proceeding in a way that is consistent with this overarching purpose by s 37N. To accede to a further adjournment in all of the circumstances set out above would not, in my view, promote the overarching purpose.

33    Accordingly, I refused the applicant’s applications for an adjournment.

(Emphasis in original)

48    Aside from the fact that DOQ17 has not identified any particular error in the primary judge’s refusal of her adjournment application, no such error is apparent in the primary judge’s reasons for denying that application. Her Honour correctly identified the relevant principles and applied them to the circumstances of the application before her in an orthodox manner. Accordingly, this ground must also be rejected as unmeritorious.

CONCLUSION

49    For these reasons, none of DOQ17’s grounds of appeal has merit. Her notice of appeal filed 25 September 2019 must therefore be dismissed with costs.

50    Orders will be made accordingly.

Associate:    

Dated:    4 December 2020

SCHEDULE OF PARTIES