Federal Court of Australia

Winn v Boss Lawyers Pty Ltd [2022] FCAFC 156

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for leave to amend the Notice of Appeal is dismissed.

2.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 3 February 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) (FCFCA) (first primary judge) made a sequestration order against the estate of Ms Julene Winn: Boss Lawyers v Winn [2022] FedCFamC2G 52.

2    The sequestration order was made in the absence of Ms Winn, a barrister, who had applied for an adjournment of the hearing. The first primary judge refused the adjournment including for reasons that there were no grounds upon which a sequestration order ought not be made and that a judgment debt relied upon by the petitioning creditor had not been paid.

3    On 4 February 2022, Ms Winn lodged an application under r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (General Federal Law Rules) to set aside the sequestration order (r 17.05(2)(a) application). That rule enables the Court to vary or set aside a judgment or order after it has been entered if it was made in the absence of a party.

4    On 10 February 2022, a Registrar of the FCFCA refused to accept the r 17.05(2)(a) application for filing (Registrar’s Decision). Further applications were lodged and rejected. On each occasion, a member of the FCFCA Registry advised Ms Winn to lodge an appeal against the decision of the first primary judge. In due course, Ms Winn sought to commence such an appeal but lodged the Notice of Appeal approximately 30 minutes late.

5    Prior to lodging the Notice of Appeal against the decision of the first primary judge, Ms Winn applied for a review of the Registrar’s Decision. A second judge of the FCFCA (second primary judge) dismissed that application: Winn v Registrar Morgan [2022] FedCFamC2G 252.

6    Ms Winn has commenced two proceedings in this Court.

7    In the first proceeding, QUD64/2022, she seeks an extension of time in which to commence an appeal from the decision of the first primary judge. By an order made on 2 August 2022, that extension was granted. Action QUD64/2022 will now be referred to as the first appeal. For the reasons given below, the first appeal will be dismissed.

8    In the second proceeding, QUD143/2022, Ms Winn appeals the decision of the second primary judge and seeks an order that the Registrar of the FCFCA be directed to accept the r 17.05(2)(a) application for filing (second appeal). Counsel for Ms Winn submitted that, if relief on the second appeal is granted, there would be an extant application before the FCFCA to set aside the sequestration order.

9    On the second appeal, Ms Winn applied to amend her Notice of Appeal and sought leave to adduce additional evidence. For the reasons given below, leave to amend will be refused. The additional evidence will be received for the purpose of providing a complete picture of Ms Winn’s dealings with the FCFCA in attempting to commence the r 17.05(2)(a) application.

10    We have concluded that the judgment of the second primary judge is affected by a series of errors. However, as explained below, Ms Winn should not be granted the relief sought on the second appeal. That appeal will also be dismissed.

Applicable rules

11    The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act) came into effect on 1 September 2021. From that date, the formerly named Federal Circuit Court of Australia (FCC) continued in existence as the Federal Circuit and Family Court of Australia (Division 2). On the same day, the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) were superseded by the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) and the Federal Circuit Court Rules 2001 (Cth) were repealed and replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). It is convenient to refer to the rules in force at relevant times as the Bankruptcy Rules and the General Federal Law Rules as the case may be.

Background

12    The factual background to, and procedural history of, the two proceedings are lengthy and intertwined. The salient features are set out below.

13    On 29 June 2020, the Official Receiver issued a bankruptcy notice, numbered BN250042 addressed to Ms Winn, pursuant to s 41 of the Bankruptcy Act 1966 (Cth). The bankruptcy notice recorded that Boss Lawyers Pty Ltd was the creditor, and that the debt claimed was $24,097.87, being the sum of amounts which Ms Winn had been ordered to pay to Boss Lawyers by the Court of Appeal of the Supreme Court of Queensland ($20,202.89) and the Magistrates Court of Queensland ($3,894.98).

14    On 10 February 2021, Boss Lawyers filed a creditor’s petition in the FCC, seeking the sequestration of Ms Winn’s estate pursuant to s 43 of the Bankruptcy Act.

15    On 16 March 2021, Ms Winn filed an application in the FCC seeking an order that the bankruptcy notice be set aside.

16    On 13 April 2021, Ms Winn filed a further application seeking an order that the petition be dismissed and declarations to the effect that the creditor’s petition was invalid and that it had not been served in accordance with rr 4.04 and 4.05 of the Bankruptcy Rules and r 6.06 of the General Federal Law Rules.

17    Ms Winn’s application to set aside the bankruptcy notice was dismissed by Judge Street on 18 May 2021: Winn v Boss Lawyers Pty Ltd [2021] FCCA 1067. Judge Street stated at [3] that:

The act of bankruptcy occurred … on 29 December 2020. The application in these proceedings was not commenced until 16 March 2021 which is out of time and means there is no jurisdiction to set aside the bankruptcy notice.

18    On 14 September 2021, the further application was dismissed by Judge Jarrett (as his Honour then was): Boss Lawyers Pty Ltd v Winn [2021] FedCFamC2G 44.

19    Ms Winn appealed from the decision of Judge Street and brought an application for leave to appeal from the decision of Judge Jarrett. Rares J dismissed both: Winn v Boss Lawyers Pty Ltd [2021] FCA 1652.

20    Ms Winn did not appear at the hearing before Rares J. She submits that on 17 January 2022, she filed applications to set aside the decision of Rares J pursuant to r 36.75(2)(a) of the Federal Court Rules 2011 (Cth), but these applications were not in the material before this Court on either appeal. Nor is there any evidence as to what transpired in relation to these applications.

21    The first primary judge set the creditor’s petition down for hearing on 21 January 2022. On that day, his Honour adjourned the hearing to 3 February 2022.

22    On 3 February 2022, Ms Winn did not attend the hearing before the first primary judge and his Honour made a sequestration order against her estate: Boss Lawyers v Winn [2022] FedCFamC2G 52.

23    On 4 February 2022, Ms Winn lodged the r 17.05(2)(a) application.

24    On 10 February 2022, a Registrar of the FCFCA made the Registrar’s Decision. The reasons for the decision appear beside the words “Registry Message” in what appears to be a computer generated document responding to Ms Winn’s lodgement. The “message” reads:

To appeal a decision of a Judge in the Federal Circuit and Family Court of Australia, a Form 121 should be filed in the Federal Court, within 28 days from the date the order was made.

25    Ms Winn re-lodged her r 17.05(2)(a) application three more times, on 10 February 2022, 16 February 2022 and 24 February 2022. It was rejected each time. The reasons given were, respectively:

(1)     “The National Duty Registrar has confirmed that a Notice of Appeal should be filed on the basis that you seek to set aside the decision of a judge”;

(2)    “After consideration by the National Duty Registrar, a Notice of Appeal should be filed instead of an Application in a Proceeding to reopen the matter. The Court invites you to e-lodge the appropriate document so that the matter can progress without any further delay. The Notice of Appeal should be lodged by 3 March 2022”. That email was sent by a Legal Case Manager of this Court;

(3)    “Rejected for the same reason as already outlined”.

26    On 22 February 2022 at 10:59am, Ms Winn sent an email to “Customer Service” at the FCFCA, complaining that her application had been wrongly rejected (then) three times by the National Duty Registrar.

27    On 22 February 2022 at 11:48am, “Customer Service” of the FCFCA sent an email to Ms Winn:

I refer to your email below and the number of emails you have sent to this email address in relation to your concerns regarding your applications you wish to lodge with the Court.

As you have previously been advised by the Queensland Registry on 21 and 22 February 2022, your documents have been sent to the National Judicial Registrar for consideration. You will be notified of any outcome once your application has been considered.

Insofar as your correspondence raises concerns that your applications have previously been rejected, I note that the decision of judges and registrars in relation to the filing of material or listing of matters cannot be addressed under the complaints procedure or by way of correspondence.

Allegations of errors by a judicial officer in the conduct of proceedings, including in relation to the application of the law or the rules of the Court, and decisions made can only be determined by way of the formal appeal process (for Judges) or the review process (for Registrars).

The form for the Application for Review can be found at the following link. A Supporting affidavit also needs to be filed: https://www.fcfcoa.gov.au/fl/forms/app-review

…

(emphasis added)

28    The link https://www.fcfcoa.gov.au/fl/forms/app-review is for a web page dealing with an application for review of an exercise of power by a Registrar within Division 1 (rather than Division 2) of the FCFCA. The form titled “Application For Review” included the following instructions:

Instructions

•    Use this form to make an application for review of an exercise of power by a Registrar.

•    An application must be made within 21 days after the order or decision is made.

29    On 23 February 2022, Ms Winn lodged for filing an application for review of the Registrar’s Decision using the “Application for Review” form provided to her via the link.

30    On 3 March 2022, at 4:59pm, Ms Winn lodged a Notice of Appeal in this Court against the decision of the first primary judge. Ms Winn’s evidence is that she was unable to lodge the Notice of Appeal before 4:30pm that day because internet services were not working or were very slow due to flooding in Brisbane.

31    On 7 March 2022, the Registry of this Court notified Ms Winn that her Notice of Appeal had been rejected. The Registry’s message to Ms Winn included:

In accordance with rule 2.25 as the notice of appeal has been received after 4:30pm on the 28th day, the appeal is out of time. You will need to file an application for extension of time.

32    On the same day, Ms Winn filed an application for an extension of time to appeal from the judgment of the first primary judge, together with an affidavit she made in support of that application. The application for an extension of time attached a draft Notice of Appeal with two proposed grounds of appeal.

33    On 17 March 2022, the second primary judge made an order that the application for review be determined on the papers and directed Ms Winn to file written submissions and any further material by 31 March 2022.

34    On 31 March 2022, Ms Winn filed a further affidavit and written submissions in support of her application for review. Those submissions included submissions that:

(1)    the exercise of power by which the Registrar’s Decision had been made was reviewable under s 256 of the FCFCA Act and r 21.03 of the General Federal Law Rules and must proceed by way of a hearing de novo (citing r 21.04(1) of the General Federal Law Rules); and

(2)    “The applicant filed the application for review within the time period stated on the mandatory form Application for Review and as informed to her by the registry. In the event that time is incorrect, the applicant seeks any necessary extension of time to file”.

35    On 8 April 2022, the second primary judge dismissed Ms Winn’s application for review: Winn v Registrar Morgan [2022] FedCFamC2G 252.

36    On 29 April 2022, Ms Winn commenced the second appeal by filing a Notice of Appeal against the decision of the second primary judge.

37    On 4 May 2022, Ms Winn filed an affidavit in the first appeal attaching a further proposed Notice of Appeal with 16 proposed grounds.

38    On 26 May 2022, Registrar Forbes made an order that the first appeal be listed in the August 2022 Full Court sittings with a half day estimate and further orders to the effect that: Ms Winn file and serve Parts A and B of the Appeal Book by 1 July 2022; Ms Winn file and serve an outline of submissions, chronology and list of materials to be included in Part C of the Appeal Book by no later than 20 business days before the hearing; the respondent file and serve an outline of submissions, chronology and list of materials to be included in Part C of the Appeal Book by no later than 15 business days before the hearing; Ms Winn to file and serve any submissions in reply no later than 10 business days before the hearing; and Ms Winn file and serve Part C of the Appeal Book no later than five days before the hearing.

39    On 6 June 2022, the first appeal was set down for hearing on 2 August 2022. As a result, the effect of the orders made by Registrar Forbes on 26 May 2022 was as follows:

(1)    Ms Winn was to file and serve Parts A and B of the Appeal Book by 1 July 2022;

(2)    Ms Winn was to file and serve an outline of submissions, chronology and list of materials to be included in Part C of the Appeal Book by no later than 5 July 2022;

(3)    the respondent was to file and serve an outline of submissions, chronology and list of materials to be included in Part C of the Appeal Book by no later than 12 July 2022;

(4)    Ms Winn was to file and serve any submissions in reply by no later than 19 July 2022; and

(5)    Ms Winn was to file and serve Part C of the Appeal Book by no later than 26 July 2022.

40    On 29 June 2022, Charlesworth J ordered that the first appeal and the second appeal be heard concurrently, with a combined hearing estimate of one day.

41    On 1 July 2022, Ms Winn lodged for filing Parts A and B of the proposed Appeal Book for the first appeal.

42    On 5 July 2022, Charlesworth J made orders in the first appeal relevantly to the effect that the Registrar reject for filing Parts A and B of the Appeal Book lodged for filing by Ms Winn on 1 July 2022; the time provided by r 36.52(1) of the Federal Court Rules be extended so that Ms Winn could make a request to the Queensland District Registry of this Court for assistance with the compilation and settling of the index to Part A and Part B of the Appeal Book and the time for the filing and service of Parts A and B of the Appeal Book be extended to 8 July 2022.

43    Ms Winn wrote to the Registry of this Court seeking the assistance of a Registrar in finalising the index and stating that the respondent had filed numerous documents which had not been served upon her.

44    The time for Ms Winn to file and serve her submissions in the first appeal passed without such submissions having been filed.

45    On 6 July 2022, Ms Winn wrote to the Registry of this Court indicating that she had obtained legal representation that day and stating that:

As the filing orders dependent on the finalised Appeal Index cannot be complied with, and I have only secured a solicitor today, it is necessary to request that the hearing date of 2 August 2022 be vacated and a new date be listed.

46    The date for Ms Winn to file and serve Parts A and B of the Appeal Book in the first appeal passed without those Parts of the Appeal Book having been filed.

47    On 12 July 2022, we made orders in the first appeal including orders that any lawyer retained by Ms Winn file and serve a Notice of Acting by 13 July 2022; that any application by any party to adjourn the hearing of the application was to be filed and served no later than by 5:00pm (AEST) on 21 July 2022; that such application was to be accompanied by an affidavit deposing to the facts relied upon; and that any such application be set down for hearing at 10:00am on 2 August 2022.

48    No Notice of Acting was filed within the time specified.

49    On 15 July 2022, Ms Winn lodged a Notice of Discontinuance in the first appeal.

50    On 18 July 2022:

(1)    Ms Winn withdrew her Notice of Discontinuance in the first appeal;

(2)    Ms Winn lodged an interlocutory application seeking leave to amend her Notice of Appeal in the second appeal; and

(3)    Mr Dixon of Stone Group Lawyers lodged a Notice of Acting in the second appeal.

51    On 19 July 2022, Parts A and B of the Appeal Book in the first appeal were prepared by the Registry of this Court. At 4:30pm on 20 July 2022, the Registry sent an email to the parties referring to Parts A and B of the Appeal Book and stating, incorrectly, that those Parts were attached to the email.

52    On 21 July 2022, Ms Winn lodged an interlocutory application for an adjournment of the first appeal until the second appeal had been heard and determined.

53    On 22 July 2022 at 10:30am, the Registry sent an email to the parties which attached Parts A and B of the Appeal Book the first appeal.

54    On 29 July 2022, Mr Dixon lodged a Notice of Acting on behalf of Ms Winn in the first appeal.

55    The two appeals were heard concurrently on 2 August 2022.

Applications in the first appeal

The application for an extension of time

56    As noted above, the first primary judge made the sequestration order on 3 February 2022. Any Notice of Appeal was to be filed within 28 days after that date: r 36.03 of the Federal Court Rules. By dint of r 2.25 of the Federal Court Rules, a document is taken to have been filed on a particular day if it is received by the Court by 4:30pm on that day. Thus, any Notice of Appeal was required to have been lodged by 4:30pm on 3 March 2022.

57    The Notice of Appeal was filed at 4:59pm on that day, that is, 29 minutes late. Ms Winn’s evidence is that she had difficulties with the internet connection with the Court on that day. In view of the shortness of the delay, the explanation provided by Ms Winn for that delay and the indication from the solicitor for Boss Lawyers that an extension of time was not opposed other than on the basis that the proposed grounds of appeal lacked merit, we granted the extension of time sought.

Adjournment application

58    At the hearing, counsel for Ms Winn moved on her interlocutory application dated 21 July 2022 for an adjournment.

59    Ms Winn’s reasons for seeking the adjournment were, in essence, that:

(1)    she had been unable to file Parts A and B of the Appeal Book because she did not have some documents filed but not served by the respondent;

(2)    the finalisation of the index to Parts A and B of the Appeal Book was a necessary step before Ms Winn’s submissions, her chronology and her list of materials to be included in Part C of the Appeal Book could be filed;

(3)    the index was not settled until 20 July 2022 (when this was done by the Registry);

(4)    there had been a further delay when the Registry’s email to the parties dated 20 July 2022 did not attach the settled index. The settled index was however attached to an email from the Registry dated 22 July 2022; and

(5)    as a result, it had not been possible to comply with the orders made for filing of Ms Winn’s submissions, chronology and list of materials to be included in Part C of the Appeal Book.

60    The application for an adjournment was opposed and we refused it. In oral reasons given shortly after the conclusion of argument on that application, we noted the following matters.

61    The Court’s discretion with respect to the application is broad but is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the Court to exercise the discretion in a manner which best promotes the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

62    Central to Ms Winn’s application was the proposition that the delay in finalisation of Parts A and B of the Appeal Book (which were initially due to be filed by Ms Winn on 1 July 2022; later due to be filed by her on 8 July 2022; and completed by the Registry on 20 or 22 July 2022) had prevented the preparation of her submissions, chronology and list of materials to be included in Part C of the Appeal Book (and consequently, the production of Part C).

63    That proposition was rejected for the following reasons.

64    First, Ms Winn’s submissions and chronology could have been prepared prior to the finalisation of Parts A and B of the Appeal Book. Whilst it would not have been possible to cross-reference the submissions and the chronology to the Appeal Book, it was open to Ms Winn to file and serve the submissions and the chronology without such cross-referencing, and to have filed supplementary versions of these documents with cross-referencing at a later time.

65    Secondly, to the extent that it was suggested that documents required for inclusion in the Appeal Book had been filed by the respondent in the FCFCA but not served upon Ms Winn, Ms Winn did not:

(1)    provide evidence of her attempts to obtain copies of those documents from the respondent;

(2)    explain why she did not seek, in her capacity as a party to the proceeding in the FCFCA, copies of those documents from the Registry of that Court as of right; or

(3)    apply to this Court for an order requiring the respondent to produce the documents.

66    Nor was it clear why the documents needed to be included in the Appeal Book in circumstances where the point to which they were directed was the failure of the respondent to serve those documents upon Ms Winn prior to the hearing before the first primary judge. The documents were not required in order to prove their non-service.

67    Thirdly, Parts A and B of the Appeal Book had been available to the parties since at least the morning of 22 July 2022. Despite this, Ms Winn failed to file her submissions and chronology. She also failed to file and serve a list of materials to be included in Part C of the Appeal Book.

68    Further, Ms Winn, as the appellant, was required by s 37N(1) of the Federal Court of Australia Act to conduct the proceeding in a way that is consistent with the overarching purpose, including compliance with the orders made by the Court. This was particularly so when Ms Winn is a barrister. For the reasons already discussed, she had not done so and no valid reason for non-compliance was proffered.

69    Another important factor in considering the application for an adjournment was the impact of an adjournment on the respondent, the Court and other litigants. As noted above, the first appeal was listed on 6 June 2022 for hearing on 2 August 2022 and since 29 June 2022 it had been listed for hearing together with the second appeal. Boss Lawyers was ready to proceed with the hearing of the first appeal.

70    The Court had allocated an appeal bench of three judges to hear both proceedings together on 2 August 2022. The obvious efficiencies inherent in that process would have been lost if the adjournment sought in the first appeal had been granted. This would also have had a flow-on effect to other litigants.

The application for leave to discontinue

71    After the lunchtime adjournment on 2 August 2022, counsel for Ms Winn made an oral application pursuant to r 36.73 of the Federal Court Rules for leave to discontinue the first appeal, the morning having been spent hearing the second appeal and the adjournment application.

72    The bases for the application were the lack of finality of the Appeal Book prior to 22 July 2022, the refusal of the application to adjourn the appeal (which application, as noted above, was based upon the lack of finality of the Appeal Book) and the absence of sufficient material from Ms Winn to prosecute the appeal with the requisite diligence.

73    The application was opposed by Boss Lawyers on the bases that:

(1)    if such leave was to be given, it would remain open to Ms Winn at a later time to seek leave to prosecute the appeal out of time and to achieve by such means the adjournment she had unsuccessfully sought earlier in the hearing;

(2)    Ms Winn had not offered an undertaking not to take such a course;

(3)    the making of an application to discontinue the first appeal following an unsuccessful application to adjourn that proceeding was inconsistent with the overarching purpose;

(4)    the debts underlying the creditor’s petition were several years old and Boss Lawyers was entitled to finality; and

(5)    the material before the Court demonstrated that Ms Winn has a history of seeking adjournments, rather than participating in hearings, for tactical purposes.

74    Rule 36.73 of the Federal Court Rules provides in so far as is presently relevant:

36.73      Discontinuance of appeal

(1)      An appellant may discontinue an appeal by filing a notice of discontinuance of the appeal, in accordance with Form 126:

(a)      without the Court’s leave—at any time before the hearing of the appeal; or

(b)      with the Court’s leave:

(i)      at the hearing; or

(ii)      after the hearing and before the judgment is pronounced or the order is made.

(2)      A notice of discontinuance has the effect of an order of the Court dismissing the appellant’s appeal.

…

(4)      An appellant who files a notice under subrule (1) must, unless the parties otherwise agree, pay the costs of each respondent.

75    As the notice of discontinuance was sought to be filed after the hearing of the appeal commenced, the leave of the Court was required. We refused the application for leave and indicated that our reasons for doing so would be included in these reasons.

76    Leave was refused for three reasons.

77    First, for the reasons set out at [61]–[70] above in respect of the adjournment application, we did not accept that the first appeal could not have been ready to be argued on 2 August 2022.

78    Secondly, the Court was ready to deal with the first appeal and had already prepared Parts A and B of the Appeal Book. The Court offered assistance to Ms Winn’s counsel to locate and collate any documents that Ms Winn claimed were necessary, and which she did not possess, for the purpose of Part C of the Appeal Book (and the appeal generally). This offer was made notwithstanding that Ms Winn had had ample time in which to do this herself.

79    Thirdly, it is reasonable to infer that Ms Winn’s intention was to await the outcome of the second appeal such that if that appeal was to succeed, she would then have on foot an extant application for review of the decision of Registrar’s Decision which (if successful) would result in her having an extant application under r 17.05(2)(a) of the General Federal Law Rules for an order that the sequestration order be set aside. It is also reasonable to infer that Ms Winn would in that event rely upon the multitude of arguments sought to be agitated by the 16 grounds of appeal before this Court to justify the setting aside of the sequestration order. Ms Winn did not demonstrate that the arguments sought to be raised on an application under r 17.05(2)(a) (assuming that procedure to be available) differed in any material respect from the arguments sought to be agitated on the first appeal. In dismissing the adjournment application, we concluded that Ms Winn had been afforded the opportunity to prepare and advance those arguments.

80    In all of the circumstances just described, the refusal of leave to discontinue the first appeal was the course that best promoted the overarching purpose. That is especially so having regard to the interests not only of the respondent in its capacity as a creditor but of all other persons asserting an interest in Ms Winn’s estate and resolution of the controversy concerning her status as a bankrupt more generally. Permitting Ms Winn to discontinue the first appeal would only serve to prolong the process by which that controversy might be finally resolved. It will be necessary to return to these considerations in determining whether the relief sought on the second appeal should be granted.

Resolution of the first appeal

81    As noted above, there are 16 grounds of appeal.

82    Ms Winn filed no written submissions in support of her appeal prior to the hearing and counsel for Ms Winn made no oral submissions in support of her grounds of appeal at the hearing. For this reason, and except in relation to the limited matters which were the subject of written submissions received after the hearing, we will treat the grounds of appeal as abandoned by her. If we are wrong in concluding that the grounds were abandoned, we would nonetheless reject them on the bases that Ms Winn did not take the Court to materials bearing on the grounds or make any submissions as to their significance. She has accordingly failed to discharge her onus in demonstrating that the judgment of the first primary judge was affected by any one of the appealable errors asserted in those grounds.

83    By written submissions filed on 19 August 2022 and updated on 22 August 2022, Ms Winn raised contentions which are said to relate to grounds 14(c), 14(d) and 14(e) of the Notice of Appeal. These submissions arose out of an inquiry by the Court directed to Boss Lawyers in connection with these grounds, submissions filed by Boss Lawyers in response to that query and a request by Ms Winn to file submissions in response (which was permitted by the Court).

84    Grounds 14(c), 14(d) and 14(e) of the Notice of Appeal alleged:

14.    The Court erred in making the order when:

…

(c)    the respondent had not filed an affidavit required by R 4.04 (1)(a), (2) and (3);

(d)    the respondent had not served the documents required by R 4.05 (c);

(e)    the respondent had not filed the affidavit required by R 4.06.

85    Rules 4.04, 4.05 and 4.06 of the Bankruptcy Rules are in the same terms as those in force when the creditor’s petition was first presented. They relevantly provided:

4.04    Creditor’s petition founded on failure to comply with bankruptcy notice etc.

(1)    If a creditor’s petition is founded on an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:

(a)    an affidavit stating:

(i)    that the records of the Court and the records of the Federal Court have been searched and no application in relation to the bankruptcy notice has been made; or

(ii)    that an application was made in the Court or in the Federal Court (as the case may be) for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or

(iii)    that an application was made in the Court or in the Federal Court (as the case may be) for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and

…

(3)    If an affidavit required by paragraph (1)(a) states that an application referred to in subparagraph (1)(a)(ii) or (iii) was made, a copy of the order finally deciding the application must be attached to the affidavit.

…

4.05    Documents to be served

Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor:

…

(c)    if applicable, a copy of the affidavits relating to the petition required by rule 4.04; and

…

4.06    Additional affidavits to be filed before hearing

(1)    Before the hearing of a creditor’s petition, the applicant creditor must comply with this rule.

(2)    The applicant creditor must file an affidavit that:

(a)    states that the documents required to be served under rule 4.05 have been served,

(b)    has attached to it a copy of the documents that were served and proof of service in relation to the documents.

…

86    By reference to the list of material relied upon by Boss Lawyers at the hearing before the first primary judge on 3 February 2022, it is correct to submit, as Ms Winn does, that there was non-compliance with r 4.04(1)(a) of the Bankruptcy Rules (and consequential non-compliance with rr 4.04(3), 4.05(c) and 4.06(2)). However, contrary to Ms Winn’s submission, the non-compliance does not lie in Boss Lawyers’ failure to conduct a search at or immediately prior to the hearing of the creditor’s petition on 3 February 2022.

87    On its express terms, r 4.04 prescribes material that is to “accompany” a creditor’s petition. Necessarily, the accompanying affidavit required to be filed under r 4.04(1)(a) is one that discloses the results of a search, the purpose of which is to inform the Court of the circumstances as they exist at the time that the petition is filed. It is to be recalled that Ms Winn’s application to set aside the bankruptcy notice was commenced on 16 March 2021, more than a month after the creditor’s petition was filed. Her application for declarations that the creditor’s petition was invalid was made later still on 13 April 2021. Neither of those proceedings could have been disclosed by a search conducted at the earlier time when the creditor’s petition was presented, and so could not have been disclosed in an affidavit accompanying the petition. Nor could such an affidavit have disclosed the fact that Ms Winn’s appeal and application for leave to appeal had been heard and dismissed by Rares J. Nor could such an affidavit have disclosed the fact that Ms Winn had filed an application for orders that the judgments of Rares J be set aside, assuming those applications to have been made 17 January 2022 as alleged by Ms Winn. Nothing in the particular rules referred to in grounds 14(c), (d) and (e) otherwise required the petitioning creditor to search for and bring to the attention of the first primary judge the existence of Ms Winn’s applications to set aside the judgments of Rares J. Notably, Ms Winn did not herself bring the applications to the attention of the first primary judge on 21 January 2022 as a basis for deferring the hearing of the petition, notwithstanding her assertion that they were filed four days prior.

88    The issue of Boss Lawyers’ non-compliance with r 4.04(1)(a) had been considered earlier by Judge Jarrett in Boss Lawyers Pty Ltd v Winn [2021] FedCFamC2G 44. The reasons for that decision included the following:

[23]    Finally, Ms Winn argues that the petitioning creditor did not file the affidavit required by FCC(B)R 4.04(1)(a)(i), (ii) or (iii) (usually referred to as the affidavit of search). She submits that the petition is invalidated by that failure. However, whilst Ms Winn is correct to say this rule has not been complied with. She is mistaken about the consequence.

[24]    Rule 4.04 required the petition to be accompanied by an affidavit which deposed to either that the Courts’ records had been searched and no application in relation to the bankruptcy notice had been found or an application to set aside an existing bankruptcy notice had been made and determined or an application for an order extending time for compliance with a bankruptcy notice had been made and finally decided.

[25]    I am inclined to consider that the failure to file such an affidavit is a defect to which s.306(1) of the Bankruptcy Act applies. …

89    Pausing there, s 306 Bankruptcy Act provides as follows:

Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.

90    The reasons of Judge Jarrett continued:

I think the failure to file the affidavit is a formal defect or an irregularity. The affidavit is required by the rules of practice and procedure. It is not a matter required by the Act as a condition precedent to the making of an order. Thus the failure to file the affidavit is a failure to comply with a matter of procedure rather than a failure to establish something which is made essential for the making of a sequestration order.

91    We respectfully agree with that analysis.

92    Nothing in the Bankruptcy Act requires that an affidavit of the kind referred to in r 4.04(1)(a) of the Bankruptcy Rules be filed as a requirement to enliven a court’s jurisdiction to make a sequestration order. As such, the failure by Boss Lawyers to comply with r 4.04(1)(a) (and consequential non-compliance with rr 4.04(3), 4.05(c) and 4.06(2)) was a defect that was formal in nature.

93    Judge Jarrett also determined that no substantial injustice had been caused to Ms Winn because of the non-compliance, stating that:

[27]    Nothing before me indicates that there has been any prejudice to Ms Winn flowing from the petitioning creditor’s failure to comply with FCC(B)R 4.04(1). She relies merely upon the non-compliance with the rule. Indeed, had the rule been met, an affidavit of search would have revealed no proceedings, either to set aside the relevant bankruptcy notice or for an extension of time within which to comply with its terms. Her application to set aside the bankruptcy notice was made after the creditor’s petition was presented and the day before the first court date.

[28]    Moreover, the hearing of the petition was adjourned so that the application to set aside the bankruptcy notice could be heard and determined. I do not consider that any substantial injustice has been caused by the omission.

94    After considering an alternative means of addressing the issue of non-compliance, Judge Jarrett concluded at [38] that:

I therefore consider that, pursuant to FCC(B)R 1.04 I am able to apply FCCR 1.06 to order that the requirements of FCC(B)R 4.04(1) be dispensed with. To the extent necessary I would so order, but I do not think it is necessary. It is sufficient to excuse the non-compliance under s.306(1) of the Bankruptcy Act.

95    We consider that the effect of his Honour’s reasons was to excuse the non-compliance by Boss Lawyers with r 4.04(1)(a) pursuant to s 306 of the Bankruptcy Act for the purposes of resolving Ms Winn’s application for declarations that the creditor’s petition was invalid. However, that excusal was not referred in the reasons of the first primary judge. To the contrary, his Honour made an unqualified finding (at [16]) that “the relevant Rules required to be complied with have been so complied with”. That finding was in error to the extent that it omitted reference to the absence of an affidavit accompanying the petition and meeting the requirements of r 4.04(1)(a). We nonetheless consider that the error results in no miscarriage of justice because an affidavit compliant with r 4.04(1)(a) would have disclosed no proceedings relating to the bankruptcy notice. Ms Winn does not contend otherwise. Rather, her contention is that any excusal by Judge Jarrett was ineffective as at 3 February 2022 because, by the time that the creditor’s petition came on for hearing before the first primary judge, the circumstances had changed. She submits that the applications to set aside the decision of Rares J had been filed between the hearing before Judge Jarrett and the hearing before the first primary judge on 3 February 2022 such that it could no longer be the case that no substantial injustice had been caused by the non-compliance. That conclusion is reached, she submits, because awareness of these applications might have caused the first primary judge to dismiss the petition or (at least) refuse to make the sequestration order. Underpinning these submissions is a contention that r 4.04(1)(a) imposes a continuing obligation on a petitioning creditor to conduct searches and file affidavits as to their results after the creditor’s petition is first filed through to the moment that it is determined.

96    Ms Winn’s submission must be rejected for two reasons.

97    First, as explained above, on their proper construction, the particular rules referred to in the relevant grounds of appeal do not impose a continuing obligation on the petitioning creditor to conduct searches and report their results in affidavits after the creditor’s petition is filed.

98    Secondly, in any event, Ms Winn has failed to demonstrate that a search conducted by Boss Lawyers on 3 February 2022 would have revealed the existence of the applications to set aside the orders of Rares J. Whether such a search would have revealed the existence of those applications (which are not themselves in evidence before us) is not known and cannot be assumed. Moreover, it has not been explained why Ms Winn was unable to bring the existence of her applications to set aside the judgments of Rares J to the attention of the first primary judge immediately upon their commencement. It was plainly within her power to do so. Whatever be her claimed medical conditions, if it was in her capacity to file the applications, it is reasonable to infer that it was in her capacity to inform the first primary judge about them. All of that only serves to reinforce our view that the affidavit required to be filed in accordance with r 4.04(1)(a) is one that speaks to the circumstances as they exist when the creditor’s petition is filed, and not at the time that the petition is heard. Once the petition is filed, it is open to the recipient of a bankruptcy notice to draw the Court’s attention to any proceeding relating to the notice that may subsequently be commenced. We can conceive of no policy considerations justifying the imposition of that ongoing burden on the petitioning creditor.

99    In the exercise of its appellate jurisdiction, this Court may give such judgment, or make such order as, in all the circumstances, it thinks fit, or it may refuse to make an order: Federal Court of Australia Act, s 28(1)(b).

100    Even if the relevant Bankruptcy Rules were construed in a way that imposed a continuing obligation on the petitioning creditor of the kind contended for, we are satisfied that s 306(1) of the Bankruptcy Act would be engaged in relation to the non-compliance and would refuse the relief sought on the first appeal. That is so irrespective of the true effect of the decision of Judge Jarrett. A similar approach was taken by the Full Court in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632 (Allsop CJ, Dowsett and Besanko JJ) at [108].

101    It follows that the appeal against the decision of the first primary judge should be dismissed, with costs.

The second appeal

102    Regrettably, both the Registrar’s Decision and the second primary judge’s purported exercise of power under s 256 involved a series of errors. Some of those errors find expression in the grounds of appeal but some do not.

The Registrar’s Decision

103    The power of a Registrar of the FCFCA to reject a document for filing is found in r 2.06 of the General Federal Law Rules. That rule provides:

A Registrar may refuse to accept a document for filing if:

(a)      the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or

(b)     the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or

(c)      the rules relating to the electronic filing of documents have not been complied with.

104    As mentioned earlier in these reasons, when Ms Winn first lodged the r 17.05(2)(a) application for filing, she received the following response:

To appeal a decision of a Judge in the Federal Circuit and Family Court of Australia, a Form 121 should be filed in the Federal Court, within 28 days from the date the order was made.

105    Similar reasons were given in subsequent emails sent on 16 and 22 February 2022 (see [25] above).

106    The reason given does not relate to any of the bases provided in r 2.06 for rejecting a document for filing. There is no reference to r 2.06 at all. In exercising the power under r 2.06, it is incumbent upon Registrars to exercise the power to reject a document for filing for a reason or reasons within the bounds of the rule and to provide such reason or reasons for doing so to the affected party. The affected party should at least be informed as to which of the limbs of the rule is said to be relied upon. Ms Winn’s complaints concerning the repeated rejection were answered with the longer response extracted above. As discussed below, that email further complicated matters by wrongly advising Ms Winn of her options for review of the Registrar’s Decision and (as identified below) the time by which such an application must be made.

107    The Registrar’s Decision (and the subsequent emails) proceeded on the premise that the only option available to Ms Winn was an appeal. For the reasons discussed below, not only is that premise substantively incorrect, the substantive issue was not one the Registrar was empowered to decide in the circumstances of the present case, whether in the purported exercise of the power conferred by r 2.06 or otherwise.

Ms Winn’s application for review

108    Ms Winn’s application for review of the Registrar’s Decision did not identify the basis upon which such review was sought. However, her submissions dated 31 March 2022 made clear that she sought review under s 256 of the FCFCA Act. That application was misconceived, for the reasons set out below.

109    The nature of the jurisdiction of the FCFCA to review decisions of Registrars of that Court depends upon whether the Registrar has exercised a delegated judicial power or an administrative power: see Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at 171 [36]. Only specified judicial powers may be delegated, and only decisions made in the exercise of such delegated powers may be the subject of review under s 256 of the FCFCA Act.

110    The delegated judicial powers are the subject of Rules of Court of the FCFCA made by the Chief Judge of the FCFCA pursuant to s 254 of the FCFCA Act. The Rules of Court are defined in s 7 of the FCFCA Act as meaning the Rules in relation to Divisions 1 and 2 of the FCFCA made under Chapters 3 and 4 of the FCFCA Act respectively.

111    For Division 1 of the FCFCA, the Rules of Court are the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Family Law Rules). Part 14.2 of, and Sch 4 to, the Family Law Rules concern the delegation of powers to Senior Judicial Registrars and Judicial Registrars. Rule 14.05 of the Family Law Rules provides that a party may apply for a review of such an exercise of power within 21 days after the order or decision is made. Division 1 has no application to Ms Winn’s case.

112    For Division 2 of the FCFCA, the Rules of Court are the General Federal Law Rules. Rule 21.01 of the General Federal Law Rules relevantly provides:

21.01    Delegation of powers to Registrars

(1)      For the purposes of subsection 254(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar (an approved Registrar) who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.

113    The table in r 21.01 identifies a series of legislative provisions in respect of which a power of the FCFCA mentioned in those provisions is delegated to Registrars of the FCFCA. Items 18 to 88 of the table concern provisions in the General Federal Law Rules. Critically, r 2.06 of the General Federal Law Rules, being the source of power purportedly exercised by the Registrar in this case, is not within the table in r 21.01.

114    It follows that the exercise of power by the Registrar under r 2.06 of the General Federal Law Rules was not an exercise of delegated judicial power reviewable under s 256 of the FCFCA Act. Rather, r 2.06 directly conferred upon the Registrar the power to make a decision of an administrative character. As such, the Registrar’s Decision was reviewable by the FCFCA (or this Court) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act): see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; (2010) 268 ALR 222 at [39]–[52] and the authorities there cited; Nyoni at [41]; and McDonald v Colbran [2019] FCA 1937 at [7], with respect to analogous provisions in the Federal Court Rules.

115    However, neither the application for review lodged on 23 February 2022 (or on earlier dates) nor Ms Winn’s submissions dated 31 March 2022 referred to the AD(JR) Act as a basis for review. To the contrary, Ms Winn’s submissions expressly referred to s 256 of the FCFCA Act and asserted that the proceeding was in the nature of a review de novo.

116    As discussed earlier in these reasons, the form used by Ms Winn was titled “Application for Review”. On the material before us, we are satisfied that Ms Winn was wrongly advised to use that form by a “Customer Service” representative of the Court. To the extent that the provision of advice was appropriate, Ms Winn ought to have been advised to use Form 66 to commence an application for review of the Registrar’s Decision under the AD(JR) Act.

117    Against that background, we now turn to consider the issues arising on the grounds of appeal.

Failure to deal with an application for an extension of time

118    The grounds of appeal relating to this topic are expressed as follows:

2.    The Court erred in finding, contrary to the evidence before the Court, that the appellant:

(i)    did not seek an extension of time, if necessary, to file the application for review;

(ii)    filed the application on 1 March 2022.

3.    The Court failed to take into consideration that the appellant complied with the time for filing that was:

(i)    informed by the Registry;

(ii)    stated on the Court Application for Review Form.

119    A proposed fourth ground of appeal alleges that the second primary judge:

4.    … erred in finding that the appellant's application filed on 23 February 2022 for review of registrars' administrative decision of 10 February 2022 is out of time.

120    At [13]–[14] of his Reasons, the second primary judge stated:

13     The Registrar made the decision to not accept the lodgement on 10 February 2022. According to the Rules, the Applicant was required to file this application by 17 February 2022. The applicant did not file this application until 1 March 2022 which was 14 days out of time.

14     There has been no application for an extension of time within which to file the application. This is fatal to the application and it is dismissed for this reason alone.

121    We have not overlooked that the link contained in the email sent by “Customer Service” from the Registry of the FCFCA to Ms Winn on 22 February 2022 was erroneous in that it suggested that a period of 21 days was applicable. Such a period is applicable where the Registrar’s decision has been made within Division 1 under the Family Law Rules (r 14.05) but not when made within Division 2 under the General Federal Law Rules (where the period is seven days: r 21.02(1)). The timeframe in which to file an application under s 256 of the FCFCA Act is fixed by reference to the General Federal Law Rules, not by reference to correspondence originating from the Registry or on the face of court forms.

122    Proceeding from the premise that s 256 of the FCFCA Act applied, his Honour was correct in finding that such an application had to be lodged within seven days of the Registrar’s Decision. This is the effect of r 21.02(1) of the General Federal Law Rules. Accordingly, Ms Winn will not be granted leave to rely on the fourth ground of appeal because it enjoys no reasonable prospects of success. Leave will also be refused on the additional bases discussed in connection with proposed grounds 5 and 6.

123    The second primary judge was correct in recognising the power of the FCFCA (conferred by r 21.02(2)) to extend time.

124    However, his Honour’s finding that there had been no application by Ms Winn to extend time is contrary to the statement in her submissions dated 31 March 2022: “In the event that time is incorrect, the applicant seeks any necessary extension of time to file”. Thus, his Honour failed to deal with an application for an extension and found, contrary to the facts, that no such application had been made.

125    It does not follow that the second appeal should be allowed. As explained above, the second primary judge failed to identify that the FCFCA did not have jurisdiction under s 256 of the FCFCA Act to conduct a de novo review of the Registrar’s Decision at all. An application purporting to invoke powers of review under s 256 ought to have been dismissed for that reason, whether or not it was made within the time specified in the rules governing such a review. We will return to this topic in considering the relief sought by Ms Winn on the second appeal.

Construction of r 17.05(2)(a) of the General Federal Law Rules

126    The first ground of appeal alleges that the second primary judge erred in concluding that an application cannot made under r 17.05(2)(a) of the General Federal Law Rules to set aside a sequestration order made in a party’s absence. The arguments underpinning that ground should be accepted.

127    In light of his finding that Ms Winn’s application had been filed out of time and that she had not sought an extension of time, the second primary judge considered it was unnecessary to go on to consider the application for review. His Honour nevertheless did so and held that the Registrar was correct to refuse to accept Ms Winn’s r 17.05(2)(a) application for filing.

128    The salient parts of the General Federal Law Rules which bear upon his Honour’s analysis are as follows:

13.04      When a party is in default

(1)      For the purposes of rule 13.05, an applicant is in default if the applicant fails to:

(a)      comply with an order of the Court in the proceeding; or

(b)      file and serve a document required under these Rules; or

(c)      produce a document as required by Part 14; or

(d)      do any act required to be done by these Rules; or

(e)      prosecute the proceeding with due diligence.

(2)      For the purposes of rule 13.05, a respondent is in default if the respondent:

(a)     has not satisfied the applicant’s claim; and

(b)      fails to:

(i)      give an address for service before the time for the respondent to give an address has expired; or

(ii)      file a response before the time for the respondent to file a response has expired; or

(iii)      comply with an order of the Court in the proceeding; or

(iv)      file and serve a document required under these Rules; or

(v)      produce a document as required by Part 14; or

(vi)      do any act required to be done by these Rules; or

(vii)      defend the proceeding with due diligence.

13.05      Orders on default

(1)      If an applicant is in default, the Court may order that:

(a)      the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

(b)      a step in the proceeding be taken within the time limited in the order; or

(c)      if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.

(2)      If a respondent is in default, the Court may:

(a)      order that a step in the proceeding be taken within the time limited in the order; or

(b)      if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:

(i)      the debt or liquidated damages; and

(ii)      if appropriate—costs; or

(c)      if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:

(i)      the applicant appears entitled to on the statement of claim; and

(ii)      the Court is satisfied it has power to grant; or

(d)      give judgment or make any other order against the respondent; or

(e)      make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

(3)      The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:

(a)      an affidavit, or affidavits, proving:

(i)      service of the application claiming judgment for the debt or liquidated damages; and

(ii)      that the respondent is in default; and

(b)      an affidavit for the debt or liquidated damages in accordance with the approved form.

(4)      Unless the Court otherwise orders, if a respondent to a cross-claim is in default:

(a)      a judgment or decision on any claim, question or issue in the proceeding on the originating process; or

(b)      any other cross-claim in the proceeding;

is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.

(5)      In subrule (4):

decision includes a decision by consent.

judgment includes a judgment by default or by consent.

(6)      The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.

13.06      Default of appearance of a party

(1)      If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following:

(a)      adjourn the hearing to a specific date or generally;

(b)      order that there is not to be any hearing, unless:

(i)      the proceeding is again set down for hearing; or

(ii)      any other steps that the Court or the Registrar directs are taken;

(c)      if the absent party is an applicant—dismiss the application;

(d)      if the absent party is a party who has made an interlocutory application or a cross-claim—dismiss the interlocutory application or cross-claim;

(e)      proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2)      If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.

…

17.05      Setting aside or varying judgments or orders

(1)      The Court or a Registrar may vary or set aside a judgment or order before it has been entered.

(2)      The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party;

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)     it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in the judgment or order; or

(h)    there is an error arising in the judgment or order from an accidental slip or omission.

(3)      This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order.

129    The second primary judge reasoned as follows:

21     As has been noted, on 3 February 2022, His Honour made the sequestration order. The Applicant did not attend.

22     What is clear is that His Honour Judge Egan engaged in the judicial process. His Honour did not simply make a default order. His Honour ascertained that all the preconditions for the making of a sequestration order, were fulfilled. Finally His Honour was satisfied that a sequestration order should be made.

23     What is also clear is that His Honour acted pursuant to r 13.06 (1) (e) of the Rules and proceeded with the hearing generally and determined the matter on the merits.

The Claims of the Applicant

24     The Applicant claims that, because she was not present, the judgment of His Honour can be set aside.

25     Rule 17.05(2)(a) says that the Court, or a registrar, may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. It really means “an order made because of the absence of a party”. The rule pertains to any judgement that was made by default. This is because r 13.06(2) allows a Court to make an order (if a party to a proceeding is absent from hearing) of the kind mentioned in r 13.05(1), (2) or (4). Rule 13.05(2)(d) allows the Court to “give judgement or make any other order against the respondent”.

26     If it were that His Honour Judge Egan had proceeded pursuant to r 13.06(2) and by r 13.05(2)(d), His Honour would have made a valid order but would not have undertaken the judicial task of assessing the merits of the application. The order would have been made because of the absence of a party. In such a case, r 17.05(2)(a) would apply.

27     But, in dealing with the matter pursuant to r 13.06(1)(e), the absence of the party did not mean that there was no consideration of the merits; it meant just the opposite. The fact that a party was not present, cannot detract from the intellectual judicial process that His Honour employed in coming to the decision he made. The order made was not an order made because of the absence of a party; it was an order made regardless of the absence (or presence) of a party.

28     If I accepted the argument of the applicant, it would be absurd for r 13.06(1)(e) to exist at all. It would mean that no judicial intellectual process or rigour could be given to a matter where a party did not appear. It would also allow a litigant to purposely evade a court date and, in effect, dictate when they will appear because any judgement against them can be set aside simply because they chose not to appear.

29     In summary, r 17.05(2)(a) does not apply to a decision that was made pursuant to r 13.06(1)(e).

30     A party who feels aggrieved at a decision made pursuant to r 13.06(1)(e), has their remedy in an appeal to an appellate court. That is the proper course for the Applicant; file a notice of appeal rather than the application that was filed.

31     For that reason, the Registrar was correct in refusing the lodgement. If this were a valid application for review, it would have been dismissed for that reason.

(emphasis added)

130    There are two errors in that analysis.

131    The first error follows from the erroneous assumption that the FCFCA had the power to conduct a de novo review the Registrar’s decision under s 256 of the FCFCA Act. Perhaps unsurprisingly, the reasons of the second primary judge contain no analysis of the conditions on the power conferred on the Registrar under r 2.06 and no consideration of the question as to whether the limits of the power were exceeded. That omission may be explained by Ms Winn’s submissions asserting her reliance on s 256 of the FCFCA Act.

132    Given the sorry history of dealings between the Registry of the FCFCA and Ms Winn with respect to her attempts to commence the r 17.05(2)(a) application, we consider it appropriate at this juncture to identify an error in the Registrar’s Decision that was not argued by Ms Winn on her application for review before the second primary judge and that did not find expression in her grounds of appeal. Identification of the error will go some way to explain why the relief sought by Ms Winn on the second appeal should not be granted notwithstanding that the contention in the first ground of appeal is to be accepted. It is also hoped that confirmation of the scope and nature of the power conferred by r 2.06 will go some way to improving the experience of litigants or potential litigants whose interests are affected by its exercise.

133    The Registrar’s power to refuse to accept a document for filing may only be exercised if the conditions specified in r 2.06 are met. In exercising the power, the Registrar is confined to the limited bases referred to in the rule.

134    It may be open to a Registrar in a particular case to refuse to accept an initiating process for filing if it constitutes an abuse of process, is frivolous or vexatious. A document might bear that character if it is founded on an argument concerning the interpretation of a statute or instrument that has no reasonable prospect of acceptance. Ms Winn’s r 17.05(2)(a) application did not bear that character. Whether a sequestration order made in the absence of a party might be set aside in the exercise of the discretion conferred under r 17.05(2)(a) involved a question of law warranting judicial consideration. The reasons for the Registrar’s Decision contain no reference to any decided cases on the question and this Court was taken to no decided cases on the point in the course of argument on the second appeal. The Registrar was wrong to reject an initiating process for filing based on the Registrar’s conclusion as to whether or not the proceeding sought to be commenced was incompetent. The question before the Registrar was not whether the construction of r 17.05(2)(a) asserted by Ms Winn was substantively correct: the correct question was whether the construction was reasonably arguable. There was no proper basis under r 2.06 to reject the r 17.05(2)(a) application for filing. We are reinforced in that conclusion by the failure of the Registrar to identify any such basis by reference to any one of the three conditions specified in the rule itself.

135    As we have mentioned, Ms Winn did not base her application for review of the Registrar’s Decision on any analysis of the kind just undertaken. Her grounds of appeal contain no contention that the second primary judge erred in misunderstanding the nature of the Registrar’s power or in failing to otherwise reason in the manner just identified. When this Full Court raised the question as to whether a review under s 256 of the FCFCA Act was available in respect of the Registrar’s Decision, Ms Winn made no application to amend the grounds of appeal. She advanced no argument to the effect that the second primary judge erred by failing to treat her application for review of the Registrar’s Decision as being in the nature of an application under the AD(JR) Act or by failing to identify that the Registrar’s Decision was beyond power in the sense described above. It was open to Ms Winn to seek leave to raise an argument not advanced in the proceeding at first instance, but she made no such application. Whether it would have been open and appropriate for the second primary judge to treat the application in that way is unnecessary to decide.

136    The second error concerns the construction of r 17.05(2)(a) of the General Federal Law Rules. That is the error alleged in the first ground of appeal. Again, we consider it appropriate to determine the argument notwithstanding our conclusion that the application for review under s 256 of the FCFCA Act was misconceived.

137    The second primary judge concluded that the rule was limited in its application to orders made because of the absence of a party; and as inapplicable when the judgment or order was made pursuant to r 13.06(1)(e) of the General Federal Law Rules. His Honour also held, consistently with the Registrar’s Decision, that the only remedy for a party aggrieved by a judgment or order made under r 13.06(1)(e) is an appeal (and thus that r 17.05(2)(a) is unavailable to such a party). That construction is erroneous for the following reasons.

138    First, the second primary judge at [25] construed r 17.05(2)(a) as requiring a causal nexus between the making of the judgment or order and the absence of the party. Such a construction finds no basis in the text of r 17.05(2), or rr 13.04 to 13.06, or elsewhere in the FCFCA Act or the General Federal Law Rules. Further, the concept of causation introduced by his Honour’s construction of r 17.05(2) creates unnecessary difficulties. How is a party seeking to set aside a judgment or order made in their absence to prove that their absence was causative of the making of that judgment or order? Is it sufficient to be a cause, or a substantial cause, a dominant cause, or must it be the sole cause?

139    Secondly, the second primary judge stated at [25] that r 17.05(2)(a) pertains to any judgment that was made by default. If, by this, his Honour was expressing the view that r 17.05(2)(a) was limited to situations where the absent party was not only absent but was also in default, we disagree. To satisfy r 17.05(2)(a), absence is sufficient and default is not necessary. Further, “default” is defined in r 13.04 in terms which do not require the absence of a party; and r 13.06 (despite its heading) contains a discretion which is enlivened by absence and not by default.

140    Thirdly, the second primary judge stated at [29] and [30] that r 17.05(2)(a) does not apply to a decision made under r 13.06(1)(e) and that a party aggrieved by a judgment or order made after the FCFCA or a Registrar proceeded under r 13.06(1)(e) has a remedy only by way of an appeal. We disagree. Rule 13.06(1)(e) provides that where a party is absent from a hearing, the FCFCA or a Registrar may proceed with the hearing generally or in relation to any claim for relief in the proceeding. There is nothing in the text of r 13.06(1)(e) or r 17.05(2) (or any other rule or the FCFCA Act) which suggests that where a judgment or order has been made after the FCFCA or a Registrar has proceeded under r 13.06(1)(e), an application under r 17.05(2) is unavailable. Similarly, there is no basis for the conclusion that the only redress that a party aggrieved by a judgment or order made after the FCFCA or a Registrar has proceeded under r 13.06(1)(e) is an appeal.

141    The second primary judge cited no authority supportive of any of the above aspects of his construction of r 17.05(2)(a). Our researches have disclosed no such authorities.

142    In our view, the correct construction of r 17.05(2) is as follows.

143    There are three necessary conditions which must exist to enliven the discretion contained within the rule, namely:

(1)    the existence of a judgment or order;

(2)    that judgment or order has been entered; and

(3)    at least one of sub-rules 17.05(2)(a)–(h) is satisfied.

144    In so far as the third necessary condition is concerned with r 17.05(2)(a), namely that the judgment or order “was made in the absence of a party”, that fact alone is sufficient to satisfy that condition. It is not necessary that the absence of a party be the cause of the making of the judgment or order, that the party be in default or that the FCFCA or Registrar has not proceeded under r 13.06(1)(e).

145    If all three necessary conditions exist, then the FCFCA or a Registrar of the FCFCA has a discretion to vary or set aside the judgment or order that has been entered. The discretion, once enlivened, is broad albeit it must be exercised judicially. The range of matters which may inform the exercise of the discretion in a particular case might include the matters identified by the second primary judge, namely whether the party relying upon r 17.05(2) is in default (within r 13.04); whether (where r 17.05(2)(a) is relied upon) the judgment or order was the result of their absence; whether the Court proceeded under r 13.06(1)(e); the availability of an appeal against the order made and the existence of any extant appeal. However, none of these factors provides any basis for altering the scope of the clearly expressed pre-conditions for the enlivenment of the discretion in r 17.05(2).

146    It follows that the first ground of appeal is established.

Proposed grounds 5 and 6

147    Proposed grounds 5 and 6 respectively allege that the second primary judge erred in failing to conduct an oral hearing of the application and in taking into account matters outside the scope of the application.

148    Proposed ground 5 is said to relate to grounds 2, 3 and proposed ground 4. It was submitted that the determination of the application for review on the papers deprived Ms Winn of the opportunity to make submissions concerning the effect of the correspondence sent to her by the Registry which (incorrectly) advised her to file the application within 21 days. Ms Winn’s submissions in support of proposed ground 6 were to the effect that the second primary judge erred in taking into account the reasons of the first primary judge for granting the sequestration order “rather than the decision of the Registrar in rejecting the application filed pursuant to r 17.05(2)(a)”.

149    Ms Winn should not be granted leave to introduce these proposed grounds. That is because they proceed from the false premise that the second primary judge had jurisdiction to entertain and determine an application under s 256 of the FCFCA Act. As we have identified above, the lack of jurisdiction to entertain the application, together with Ms Winn’s failure to rely on any other source of jurisdiction, necessitate the conclusion that the application for review was liable to be dismissed. Even if the arguments underpinning the proposed grounds were accepted, that acceptance could not sound in the relief sought on the appeal.

Relief sought on the second appeal

150    The only substantive order of the second primary judge was expressed as follows (dismissal order):

The application for review filed on 23 February 2022 be dismissed.

151    That is the order appealed from on the second appeal.

152    The dismissal order should not be set aside, notwithstanding the concatenation of errors identified in these reasons. As explained above, s 256 of the FCFCA Act did not confer jurisdiction on the FCFCA to review the Registrar’s Decision. Accordingly, if the application for review was to be remitted, the only proper outcome would be its dismissal. In that regard, it is significant that Ms Winn has put forward no basis upon which this Court might conclude that the application for review of the Registrar’s Decision ought to have been treated by the second primary judge as an application for review under the AD(JR) Act. It has not been argued that his Honour committed appealable error in failing to interpret the application in that way, nor was it argued that the second primary judge erred in failing to afford her an opportunity to amend the review application so as to invoke the jurisdiction of the FCFCA under the AD(JR) Act.

153    Ms Winn seeks an order that the Registrar of the FCFCA accept for filing the r 17.05(2)(a) application. That relief should only be granted if it is demonstrated that the dismissal order should be set aside and substituted. In the circumstances just described, the relief will not be granted notwithstanding the Registrar’s error (repeated by the second primary judge) in construing r 17.05(2)(a) of the General Federal Law Rules.

154    We consider there to be a further reason for refusing to grant Ms Winn the relief she seeks on the second appeal. As discussed above, Ms Winn was afforded a fair opportunity to make submissions in support of the 16 grounds of appeal in the first appeal by which she sought to have the sequestration order set aside. All of her grounds of appeal have been rejected, if not abandoned. If this Court were to make an order that the r 17.05(2)(a) application be accepted for filing, there would then be pending in the FCFCA an application agitating the same issues that Ms Winn either has relied upon or could have relied upon had she diligently prosecuted the first appeal. Her arguments on the second appeal have not identified any issue that might now be raised before the FCFCA on an application under r 17.05(2)(a) that has not been resolved by our rejection of the 16 grounds (or their abandonment) on the first appeal. Ms Winn should not now be permitted to agitate issues before the FCFCA that have been or could have been the subject of argument before this Full Court so as to resolve the controversy concerning her bankruptcy at the earliest opportunity. In light of the dismissal of the first appeal, we are satisfied that it would constitute an abuse of process to now permit Ms Winn to return to the FCFCA to do what she had every opportunity to do in prosecuting the first appeal.

155    It follows that the second appeal must be dismissed.

Associate:

Dated:    12 September 2022