Federal Court of Australia

Van Eps v Child Support Registrar [2024] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    In respect of the appeal against the judgment of Collier J delivered on 11 September 2023:

(a)    The appellant have leave to appeal.

(b)    The appeal be dismissed.

(c)    The appellant pay the respondent’s costs of the appeal.

2.    In respect of the appeal against the judgment of Meagher J delivered on 5 October 2023:

(a)    The appeal be dismissed.

(b)    The appellant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Peter Van Eps, appeals from two related judgments of single judges of this Court. The first is the judgment of Collier J in Van Eps v Child Support Registrar [2023] FCA 1068. The second is the judgment of Meagher J in Van Eps v Child Support Registrar (No 2) [2023] FCA 1204.

2    The appeals concern a proceeding in which Mr Van Eps applied for an order that a Bankruptcy Notice issued against him be set aside.

3    The matter was set down before Collier J for the hearing of a separate question as to whether the application was filed within the time limit under s 41(7) of the Bankruptcy Act 1966 (Cth). On the morning of the hearing, Mr Van Eps made an oral application for an adjournment, but that application was refused. Her Honour proceeded with the hearing and later made the following declaration:

The application lodged electronically by Peter Van Eps at 3.33pm on 25 April 2023 was not filed before the expiration of the time fixed for compliance with Bankruptcy Notice Number BN 259346 for the purposes of s 41(7) of the Bankruptcy Act 1966 (Cth).

4    Mr Van Eps has appealed from the whole of the judgment of Collier J, challenging both the declaration and the refusal of his application for an adjournment.

5    The respondent subsequently applied for orders dismissing Mr Van Eps’ application to set aside the Bankruptcy Notice. That application was listed for hearing before Meagher J.

6    At the commencement of the hearing before Meagher J, Mr Van Eps applied for an adjournment of the proceeding until after his appeal against Collier J’s judgment had been determined, but that application was rejected. Her Honour then dismissed the application to set aside the Bankruptcy Notice on the basis that the application was incompetent.

7    Mr Van Eps has also appealed from the judgment of Meagher J. He has not contested the respondent’s submission that if his appeal against the judgment of Collier J fails, then so too must his appeal against the judgment of Meagher J.

8    At the commencement of the hearing of the appeals, Mr Van Eps applied for an adjournment, which was refused. We will provide our reasons for refusing the adjournment before considering the merits of the appeals.

The application for an adjournment

9    It is relevant to note that although Mr Van Eps was self-represented in the proceedings at first instance and in the appeals, he is a barrister in practice at the Queensland Bar.

10    On 5 March 2024, the parties were notified that the appeals had been set down for hearing on Monday, 20 May 2024.

11    On Thursday, 16 May 2024 at 10.15 pm, Mr Van Eps sent an email to the Court, saying:

I am currently unwell and have tested positive for COVID. I am isolating per Queensland Health advice. Please refer to my medical certificate attached.

In the circumstances, I am unable to comply with orders 3, 4 and 5 of the Orders and will be unable to proceed with the Hearing on Monday.

I respectfully request the Hearing be delisted to a future date that is suitable to the Court and the parties.

12    The accompanying medical certificate was dated 16 May 2024 and stated:

Mr Peter Van Eps has a medical condition and will be unfit for work from 16/05/2024 to 21/05/2024 inclusive.

13    The respondent informed the Court that it opposed any adjournment, but that it would accede to the hearing proceeding via audiovisual link and was willing to take over Mr Van Eps’ responsibility for preparation of a bundle of authorities.

14    Mr Van Eps responded, saying:

As stated in my earlier email, I am unwell. I am also isolated at home where I don’t have the resources to prepare submissions in reply or a list of authorities or appear at the hearing. I received the respondent’s outline of submissions on Wednesday evening at 5.27 pm after I had gone home sick. They contain comprehensive submissions referencing a significant amount of authority that I am not able, in the circumstances of being at home without resources, to reply to.

15    At the direction of the Court, the Registry wrote to the parties saying that:

Their Honours are not minded to grant an adjournment at present, given the inadequacy of the medical certificate provided. In particular, the certificate does not indicate the nature of the illness, nor the extent to which it may prevent the appellant from properly presenting his case.

The appellant may reopen his application for an adjournment at the commencement of the hearing if he so wishes.

However, their Honours will allow the appellant to appear by MS Teams. The Teams link is set out below.

…

The Full Court also vacates order 4 of the orders made on 30 April 2024 (as varied by order 3 of the orders dated 9 May 2024) made in each matter and notes that the appellant may deliver his submissions in reply orally.

The Full Court asks that the respondent file and serve a bundle of authorities that includes the authorities relied on by both parties as soon as possible.

In the meantime, it may be noted that the authorities should be available on Austlii.

16    Mr Van Eps appeared at the hearing of the appeals via MS Teams on 20 May 2024. He renewed his application for an adjournment, having produced another medical certificate dated 17 May 2024, which stated:

Mr Peter Van Eps has a medical condition (COVID-19) and will be unfit for work from 16/05/2024 to 21/05/2024 inclusive. He also has an unknown recurrent eye condition and has been advised to see an Optometrist or Ophthalmologist for assistance with diagnosis and management of this condition.

17    A party has no entitlement to an adjournment. In Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 (Dahdah), the Full Court observed:

166    The Court has power to grant an adjournment of an appeal under r 1.32 of the Federal Court Rules 2011 (Cth). That power is to be exercised 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: s 37M of the Federal Court of Australia Act 1976 (Cth); Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42] (Collier, Griffiths and Mortimer JJ). The overarching purpose includes as objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. As the Full Court (Katzmann, Derrington and Anastassiou JJ) explained by reference to s 37M in Alhalek v Quintiliani trading as Kells Lawyers [2021] FCAFC 139 at [26] (Katzmann, Derrington and Anastassiou JJ), no litigant has an entitlement to an adjournment for the obvious reason that the business of the Court must be managed with the objective of efficient organisation in the interests of all litigants that come before the Court. Similarly, in Gabrielle v Abood (No 2) [2023] NSWCA 28, Bell CJ (Kirk and Adamson JJA agreeing) stated at [6], in connection with applications for adjournments of hearings of appeals in the Court of Appeal of the Supreme Court of New South Wales:

… When matters are set down in this Court there is an expectation that they will be heard on the day on which they are set down. Matters are set down having regard to the demands of the Court, including other cases and litigants, and it is a significant and inefficient waste of Court resources where matters are required to be adjourned. That is not to say that in a sufficiently meritorious case, adjournment applications will not be entertained but they are typically only entertained and granted where there are cogent reasons for doing so.

167    The views expressed by Bell CJ are equally applicable in this Court. Further, the inefficiencies and waste of Court resources which flow from such adjournments may be greater in this Court when members of the Court travel from other States to sit at a hearing.

18    Accordingly, the starting point is an expectation that an appeal should proceed on the date on which it is listed. It was for Mr Van Eps to demonstrate adequate reasons for departure from that position.

19    Mr Van Eps’ latest application for an adjournment cannot be considered in isolation from his earlier conduct of the appeals. On 26 April 2024, the respondent wrote to the Court drawing attention to Mr Van Eps’ ongoing failure to comply with directions made on 12 March 2024 despite the respondent’s repeated requests. On 29 April 2024, Mr Van Eps responded by saying:

I have been on sick leave over the last few weeks, a matter to which the respondent is aware. Today is really the first day back from leave and, accordingly, I will require an extension to the times for provision of material…

20    On 1 May 2024, at the direction of the Court, the Registry wrote to the parties saying:

The Court has decided to grant the extension of time, in accordance with the attached orders. In future, it should not be assumed that extensions of time will be granted in the absence of appropriate medical or other evidence.

21    On 7 May 2024, Mr Van Eps again sought an extension of time, saying:

I require some additional time until this Friday to file and serve my outline of submissions and chronology of relevant events. This is because I am still recovering from a recent bout of illness and dealing with other work commitments.

22    The Registry wrote to the parties informing them that:

Justice Rangiah is not satisfied that the appellant has provided an adequate reason for seeking a further extension of the time to comply with the orders of the Court.

Nevertheless, his Honour will grant the appellant an extension until 4 pm on 10 May 2024 in an attempt to ensure that the hearing date for the appeal is maintained.

23    Mr Van Eps was specifically warned of the necessity for adequate medical and other evidence when seeking departure from the orders of the Court. In addition, Mr Van Eps, as a practicing barrister, can be taken to have knowledge of the practices and procedures of courts, including that any application must be supported by adequate evidence.

24    Mr Van Eps asserted that he had been bed-ridden with COVID-19 for four days and had an eye condition which rendered him unable to prepare and present his case. However, the evidence in support of his application for an adjournment was quite inadequate.

25    It can be accepted that at the time of the hearing, Mr Van Eps had COVID-19 and an “unknown recurrent eye condition”. However, the medical certificate of 17 May 2024 merely stated that the consequence was that he “will be unfit for work”. A medical certificate which does not indicate whether the diagnosed medical condition would prevent the appellant from preparing for, and participating effectively in, a hearing is of limited worth in determining an adjournment application: cf Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]–[50]; Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34]. In this case, the medical certificate did not indicate that Mr Van Eps was unable to attend to the effective preparation and presentation of his case.

26    It may be observed that Mr Van Eps was able to attend to obtaining medical certificates during his convalescence and to make short written submissions in support of an adjournment, and so demonstrated some ability to attend to the appeal proceedings. Further, Mr Van Eps demonstrated an ability to make oral submissions as to why an adjournment should be granted, although he claimed to be unable to make submissions about the merits of his appeal.

27    It was also apparent that Mr Van Eps had completed a substantial part of his preparation for the appeals by preparing and filing his written submissions before his diagnosis with COVID-19 on 16 May 2024. The fact that the Court had his written submissions was also relevant to the extent of any prejudice he might suffer by refusal of an adjournment.

28    There were steps taken to minimise any prejudice to Mr Van Eps as a result of his medical conditions. The Court allowed him to appear via MS Teams. The respondent relieved Mr Van Eps from the task of compiling the authorities and provided him with a copy of the authorities. The Court also permitted Mr Van Eps to provide written submissions in reply within three weeks after the hearing.

29    There would have been prejudice to the respondent if the adjournment were granted since it would have been put to the trouble and expense of a further hearing in circumstances where its costs might not be able to be recovered: cf Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [99].

30    Further, a Full Court had been convened for the hearing of the appeal. Two members of the Court travelled to Brisbane from interstate for the hearing: cf Dahdah at [167]. The day would have been wasted if an adjournment had been granted, and another day would have had to be found. The public interest in the most efficient use of court resources is a relevant and significant factor: Sali v SPC Ltd (1993) 116 ALR 625 at 629; Dahdah at [166].

31    As was observed in Gabrielle v Abood (No 2) [2023] NSWCA 28 at [6], an application for an adjournment of an appeal is, “typically only entertained and granted where there are cogent reasons for doing so”. The reasons offered by Mr Van Eps for seeking an adjournment were inadequate, particularly when compared to the prejudice that would be caused to the respondent and the wastage of public resources.

32    Accordingly, Mr Van Eps’ application for an adjournment of the appeals was dismissed.

The proceeding before Collier J

33    The hearing set down before Collier J (the primary judge) was, “a preliminary hearing as to whether the application was filed within the time required under section 41(7) of the Bankruptcy Act 1966 (Cth)”.

34    Section 41 of the Bankruptcy Act 1966 provides, relevantly:

41    Bankruptcy notices

(1)    An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a)    a final judgment or final order that:

(i)    is of the kind described in paragraph 40(1)(g); and

(ii)    is for an amount of at least the statutory minimum; or

…

(7)    Where, before the expiration of the time fixed for compliance with a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.

(Underlining added.)

35    The primary judge observed that on 29 March 2023, the Bankruptcy Notice had been issued by the Official Receiver in relation to total debts of $87,343.74 owing by Mr Van Eps to the respondent, the Child Support Registrar. The Bankruptcy Notice required compliance within 21 days after service of the Bankruptcy Notice.

36    On a date in early April 2023, a process server had personally served Mr Van Eps with the Bankruptcy Notice at his place of business at Level 7 of the Inns of Court at 107 North Quay in Brisbane. The dispute before the primary judge concerned the date of service.

37    In an affidavit accompanying the Originating Application, Mr Van Eps deposed that, “[t]he Notice was served on me personally by a process server on 5 April 2023”.

38    On 10 May 2023 a Judicial Registrar made procedural orders including that:

1.    The respondent is to file and serve any further affidavits intended to be relied upon by 4.00 pm on 19 May 2023.

2.    The applicant is to file and serve any affidavit in response by 4.00 pm on 26 May 2023.

39    The matter was set down for hearing before the primary judge on 29 August 2023.

40    On 19 May 2023, the respondent filed an affidavit of service of Christopher Allen Mayfield (a process server) sworn on 18 May 2023. Mr Mayfield deposed that he served the Bankruptcy Notice on Mr Van Eps on 3 April 2023 at Level 7, 107 North Quay, Brisbane. He deposed that he knocked on a door and it was opened by a person whom he recognised by Mr Van Eps from a previous dealing. Mr Mayfield deposed that he asked, “Are you Peter Douglas Van Eps the person named in this Document?”, indicating the Bankruptcy Notice in his hand. The person replied “Yes”, and Mr Mayfield handed him the Bankruptcy Notice.

41    Mr Mayfield deposed that it is his practice to take a photograph of the place of service once service has been effected, with each photograph being date and time stamped and marked with the geolocation. He deposed that once he had handed Mr Van Eps the Bankruptcy Notice, he took a photograph of the door that Mr Van Eps had opened. Mr Mayfield annexed a copy of the photograph which was electronically date and time stamped, “Monday · 3 April 2023 · 1:23 pm”, apparently through an Apple iPhone application. It was also electronically marked with a map apparently showing where the photograph was taken, namely in the vicinity of North Quay.

42    On 16 August 2023, about three months outside the time allowed under the orders of the Judicial Registrar, the respondent filed a further affidavit of Mr Mayfield sworn on 11 August 2023. Mr Mayfield annexed a clearer copy of the photograph annexed to his earlier affidavit. He deposed that his daily movements were tracked through the Google Maps application on his iPhone and annexed a copy of the Google Maps timeline extracted from his phone for 3 April 2023 at 1.20 pm showing his walking route from his car to Mr Van Eps’ chambers and back. He also deposed that he had not performed any process serving in the Brisbane CBD on 5 April 2023 (the date on which Mr Van Eps asserted he had been served).

43    On 17 August 2023, the respondent filed an affidavit of Adriana Cartier, an office manager employed at the same firm as Mr Mayfield, sworn on 14 June 2023. She deposed that she had ascertained from a database that on 4 April 2023, Mr Mayfield had uploaded a report indicating that Mr Mayfield had served Mr Van Eps at 1.20 pm on 3 April 2023. Ms Cartier annexed the report.

44    At the commencement of the hearing before the primary judge on 29 August 2023, Mr Van Eps applied for an adjournment on the basis of the late service of the second affidavit of Mr Mayfield and the affidavit of Ms Cartier in breach of the Judicial Registrar’s orders. Mr Van Eps argued that Mr Mayfield’s second affidavit included new material, namely phone data indicating his location on 5 April 2023. Mr Van Eps submitted that he had not had the opportunity to file an affidavit in response, nor to test the evidence.

45    The primary judge refused the application for an adjournment. Her Honour later produced reasons for judgment dealing with both the adjournment application and the substantive application. Her Honour gave the following reasons for refusing the adjournment:

•    There was no reason for me to infer that the respondent had filed the Late Affidavits “deliberately late” to prejudice the ability of the applicant to address the issue before the Court. The applicant had more than a week to file evidence in reply should he have chosen to do so;

•    The applicant did not file an application for adjournment until the hearing itself;

•    Contrary to the submission of the applicant, I consider that there would be no utility in requiring the production of Mr Mayfield’s mobile phone or cross-examination of Mr Mayfield concerning the contents of that mobile phone. The material reproduced from the mobile phone spoke for itself at this interlocutory stage;

•    Notwithstanding the submission of the applicant concerning the lateness of the filing of the Late Affidavits, no responsive evidence had been filed by the applicant in compliance the amended orders made by the Judicial Registrar, and notwithstanding the earlier filing of an affidavit of Mr Mayfield by the respondent in accordance with those orders;

•    I was not persuaded that the applicant was prejudiced by the timing of the filing of the Late Affidavits, noting that they included limited new material; and

•    The Court was in a position to consider and determine the limited issue before it on the basis of the filed evidence and the submissions of the parties.

46    Her Honour went on to specifically observe that the further affidavit of Mr Mayfield and the affidavit of Ms Cartier had probative value.

47    The primary judge then turned to the merits of the preliminary question which asked whether the application was filed within the time required under s 41(7) of the Bankruptcy Act 1966. It may be noted that none of the witnesses were required for cross-examination.

48    Her Honour was satisfied that Mr Van Eps had been served with the Bankruptcy Notice on 3 April 2023. Her Honour preferred the evidence of Mr Mayfield and Ms Cartier to that of Mr Van Eps. Her Honour noted that Mr Van Eps’ only relevant evidence was his statement that, “The Notice was served on me personally by a process server on 5 April 2023”. Otherwise, Mr Van Eps had provided no evidence rebutting the evidence of Mr Mayfield. Her Honour considered that in view of Mr Mayfield’s detailed evidence, the photographic evidence and the geolocation information and the evidence of his report having been uploaded on 4 April 2023, it should be accepted that service occurred on 3 April 2023.

49    Her Honour found that Mr Van Eps was taken under r 2.25 of the Federal Court Rules 2011 (Cth) to have filed his application to set aside the Bankruptcy Notice on 26 April 2023.

50    The primary judge held that a failure to comply with s 41(7) of the Bankruptcy Act 1966 is not a procedural irregularity capable of cure, and is fatal to jurisdiction, referring to Nugawela v Deputy Commissioner of Taxation [2016] FCA 578 at [39] and Re Shaddock; Shaddock v Commonwealth Bank of Australia (unreported, Federal Court of Australia, Goldberg J, 9 April 1998) at [39]. Her Honour also held that if an application is not filed within the time stipulated in s 41(7), the Court’s power to extend time is not enlivened, citing Di Gregorio v Lumi Financial Pty Ltd [2022] FCA 94 at [5].

51    The primary judge noted that it was not in dispute that the time for Mr Van Eps to comply with or serve an application to set aside the Bankruptcy Notice was, “within 21 days after service”. Her Honour found, by reference to s 36(1) of the Acts Interpretation Act 1901 (Cth), that any application to set aside the Bankruptcy Notice was required to be filed by 24 April 2023.

52    The primary judge held that the application to set aside the Bankruptcy Notice had not been filed before the expiration of the time fixed for compliance for the purposes of s 41(7) of the Bankruptcy Act 1966 and that the Court had no jurisdiction to extend time for compliance.

53    Her Honour declared that the application lodged electronically at 3.33 pm on 25 April 2023 was not filed before the expiration of the time fixed for compliance with the Bankruptcy Notice for the purposes of s 41(7) of the Bankruptcy Act 1966.

54    It may be noted that as the matter had only been listed for the hearing of the separate question, her Honour did not go on to dismiss the application to set aside the Bankruptcy Notice.

The grounds of appeal against the judgment of Collier J

55    Mr Van Eps’ Notice of Appeal sets out the following grounds:

1.    The learned primary judge erred in refusing the oral application made by the appellant for adjournment on 29 August 2023.

(a)    The learned primary judge erred in finding that the filing and service of the affidavit of Christopher Allen Mayfield (Mr Mayfiled) [sic] filed 16 August 2023 and the affidavit of Adriana Cartier filed 17 August 2023 (Late Affidavits) was not deliberately late.

(b)    The learned primary judge erred in finding that the appellant was not prejudiced by the timing and filing and service of the Late Affidavits.

(c)    The learned primary judge erred by placing the onus on the appellant to demonstrate prejudice from the filing and service of the Late Affidavits, rather than the respondent as the party breaching the amended orders of Judicial Registrar Schmidt dated 10 May 2023 (Amended Orders) as to why the Late Affidavits would not cause prejudice to the appellant.

(d)    The learned primary judge erred in finding that the Late Affidavits were material to which the court could properly have regard.

2.    The learned primary judge erred in having regard to the Late Affidavits in the absence of an application by the respondent for leave to file and serve the Late Affidavits.

3.    The learned primary judge erred in finding that the application lodged electronically by the appellant at 3:33pm on 25 April 2023 (Application) was not filed before the expiration of the time fixed for compliance with Bankruptcy Notice Number SN 259346 (Bankruptcy Notice) for the purposes of s41 (7) of the Bankruptcy Act 1966 (Cth).

4.    The learned primary judge erred by failing to consider the appellant's submission that the application should not be heard in a piecemeal way but should be heard and determined within the full context of its merits.

5.    The learned primary judge erred by failing to consider the appellant's submission that the respondent, as a model litigant, should not rely on a technical defence.

6.    The learned primary judge erred by failing to consider the appellant's submission that the Court should adopt a benevolent construction of the appellant's affidavit filed 25 April 2023 that would favour the appellant's evidence over that of the respondent.

7.    The learned primary judge erred in finding that “no reason has been advanced for me to doubt the veracity of that evidence”, referring to the evidence of Mr Mayfield, in circumstances where the appellant was denied the opportunity to file material responsive to the Late Affidavits.

8.    In the premises of the grounds of this appeal, the learned primary judge erred in ordering the appellant pay the costs of the respondent of and incidental to the hearing of 29 August 2023, such costs to be taxed if not otherwise agreed.

56    Mr Van Eps has expressly abandoned the fourth ground.

A preliminary issue

57    The respondent submits that a preliminary issue arises as to whether the orders of the primary judge are final or interlocutory. The respondent argues that they are interlocutory, with the consequence that Mr Van Eps requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

58    Under s 24(1) of the Federal Court of Australia Act 1976, the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court. Section 24(1A) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal.

59    In N & E Bowder Pty Ltd v Australian Keg Co Pty Ltd (2014) 220 FCR 166, Rangiah J observed at [8] that there is a division of authority in this Court as to whether a declaration made in respect of a separate issue which does not dispose of the whole proceeding is interlocutory or final. It is unnecessary to resolve this division because, even upon an assumption that leave to appeal is required, leave should be granted. The declaration made by the primary judge has the practical operation of finally determining the rights of the parties, and the refusal of the adjournment is attended with sufficient doubt to warrant a grant of leave: see Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400.

Consideration of the appeal against the judgment of Collier J

60    In Mr Van Eps’ written submissions, he groups certain grounds together and deals with the grounds in a particular order. It is convenient to adopt the same grouping and to consider the grounds in the same order.

The first, second and seventh grounds

61    Mr Van Eps’ first ground of appeal challenges the refusal by the primary judge to grant an adjournment on the basis of the late service of the affidavit of Mr Mayfield sworn on 11 August 2023 and the affidavit of Ms Cartier (the Late Affidavits), while the second and seventh grounds challenge her Honour’s admission into evidence and use of those affidavits.

62    The first ground, as set out in the Notice of Appeal, has four aspects, namely that the primary judge erred in: (a) finding that the filing and service of the Late Affidavits was not deliberately late; (b) finding that Mr Van Eps was not prejudiced; (c) placing an onus on Mr Van Eps to demonstrate prejudice rather than on the respondent (as the party breaching the orders) to show why the Late Affidavits would not cause prejudice to Mr Van Eps; and (d) in finding the Court could properly have regard to the late affidavits.

63    Mr Van Eps submits that the respondent failed to provide any explanation as to why the Late Affidavits were served outside the time required by the Judicial Registrar’s orders. Ms Cartier’s affidavit was not served until 12 days before the hearing despite having been sworn a month earlier and Mr Mayfield’s affidavit of 11 August 2023 was served some five days after it was sworn. Mr Van Eps submits that in these circumstances, a “deliberate intent” to prejudice his ability to address the issue before the Court must be inferred, and the primary judge erred in finding to the contrary.

64    Mr Van Eps also submits that justice would have been served by granting an adjournment because the late affidavits dealt with the competing claims of the parties concerning the primary issue of the date of service of the Bankruptcy Notice. He submits that once it was accepted that the affidavits had significant probative value, time should have been given to investigate the material, entitling him to an adjournment and an opportunity to consider and respond to the material. He submits that there was no evidence that the grant of an adjournment would stifle the respondent’s case nor that it would otherwise be prejudiced. Mr Van Eps submits that the primary judge failed to properly consider the “relative prejudice” to the parties because she failed to consider his capacity to respond to the Late Affidavits within the one week he had and, in addition, whether a short adjournment could be accommodated. He submits that the respondent benefitted from its own dilatoriness and that any prejudice was self-inflicted.

65    Mr Van Eps’ arguments seem substantially directed to inviting the Court to determine that the primary judge ought to have granted an adjournment. However, as Deane J explained in Squire v Rogers (1979) 39 FLR 106 at 113–114:

The question whether an application for an adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances. A court of appeal will not, as a general rule, interfere with the decision of a judge at first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal … and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.

(Citations omitted.)

[See also Sali v SPC Ltd (1993) 116 ALR 625 at 629].

66    In House v R (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ explained at 504–505 that, “[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course”. Contrary to Mr Van Eps’ contention, an appellate court cannot set aside a discretionary judgment merely on the basis that its members consider that a different decision ought to have been made at first instance.

67    Mr Van Eps argues that the primary judge erred by placing the onus on him to demonstrate prejudice from the late service of the Late Affidavits, rather than placing an onus on the respondent to demonstrate why it should be indulged by being permitted to rely on the material filed in breach of the orders. He also seems to argue that the exercise of the discretion miscarried because the refusal of the adjournment was unreasonable. He can also be taken to submit that he was denied procedural fairness.

68    In Luck v Chief Executive Officer of Centrelink, the Full Court held at [42]:

In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act…

69    Mr Van Eps argues that the primary judge erred in finding that the late service of the Late Affidavits was not done with the intention of prejudicing his ability to address the issues before the Court.

70    The late filing and service of the Late Affidavits did not, without more, demonstrate such an intention. It is true that the respondent failed to provide any direct explanation as to why they were not filed and served within the time allowed in the orders of the Judicial Registrar, despite the affidavit of Ms Cartier having been sworn some substantial time before it was served. Ordinarily, an explanation for why the affidavits were served out of time would be expected. However, the primary judge took into account that the failure to provide an explanation occurred in a context where Mr Van Eps had only made his application for an adjournment orally at the commencement of the trial, having only notified the respondent the day before. The fact that the Late Affidavits were filed 12 and 13 days prior to the hearing was inconsistent with the proposition contended for by Mr Van Eps that the respondent had served the affidavits “deliberately late”. The conclusion of the primary judge that there was no reason to infer the respondent had filed the affidavits “deliberately late” was plainly open and was not unreasonable.

71    Mr Van Eps next argues that the primary judge erred by failing to take into account the “relative prejudice” of the parties. The primary judge, “was not persuaded that the applicant was prejudiced by the timing of the filing of the Late Affidavits, noting that they included limited new material”. The Late Affidavits were filed 12 and 13 days before the hearing, providing Mr Van Eps with an opportunity to investigate their contents and provide responsive evidence. The primary judge’s finding that the Late Affidavits included “limited new material” was accurate, since Mr Mayfield’s affidavit largely elaborated upon the contents of his previous affidavit. The particular new material that Mr Van Eps complained of was Mr Mayfield’s evidence that he had performed no process serving in the Brisbane CBD on 5 April 2023.

72    Mr Van Eps did not explain what investigations he had made since he had been served with the Late Affidavits, nor what investigations he might make that could plausibly affect the evidence. A relevant contextual factor was that, despite having had over three months to do so, Mr Van Eps had made no attempt to address Mr Mayfield’s affidavit filed on 19 May 2023 in which he deposed to having served Mr Van Eps on 3 April 2023, giving a detailed explanation of the manner of service and annexing corroborative material. Neither had Mr Van Eps notified the respondent under r 29.09 of the Federal Court Rules 2011 of any intention to cross-examine Mr Mayfield and Ms Cartier. In these circumstances, the conclusion of the primary judge that Mr Van Eps had not demonstrated prejudice resulting from the late material was plainly open and has not been demonstrated to be unreasonable.

73    The primary judge did not make any finding that the respondent would suffer prejudice if the adjournment were granted. However, Mr Van Eps’ submission that her Honour failed to consider the “relative prejudice” between the parties overlooks the entitlement of the primary judge to take into account the public interest in the efficient disposal of the Court’s workload. In that regard, her Honour observed that the Court was in a position to consider and determine the issue before the Court. There was no error in the primary judge taking such an approach.

74    Mr Van Eps submits that the primary judge erred in placing an onus on him to demonstrate that he would suffer prejudice, rather than on the respondent (as the party breaching the orders) to show why the use of the Late Affidavits would not cause him prejudice. The application for an adjournment proceeded without formal evidence (as is not uncommon with an oral application for an adjournment) because there was no dispute about the primary facts, including that the Late Affidavits were filed and served 12 and 13 days before the hearing and well outside the time provided for in the orders of the Judicial Registrar. In the absence of any objection from the respondent, Mr Van Eps’ submissions were, in effect, treated by the primary judge as his evidence.

75    As has already been mentioned, in Gabrielle v Abood (No 2), Bell CJ observed that an application for an adjournment is, “typically only entertained and granted where there are cogent reasons for doing so”. The primary judge’s decision depended substantially upon an assessment of Mr Van Eps’ submission that he was prejudiced by the late service. Since Mr Van Eps asserted he was prejudiced, it was necessary for him to at least provide an explanation of how he was prejudiced. Mr Van Eps was unable to do so to the satisfaction of the primary judge. There was no error in her Honour’s approach.

76    The final aspect of Mr Van Eps’ first ground asserts that the primary judge erred in finding that the Court could properly have regard to the Late Affidavits. This appears to be a ground that the primary judge’s refusal of an adjournment was unreasonable in all the circumstances.

77    Mr Van Eps had more than a week to file responsive evidence but had not done so, nor did he explain why he had not done so, nor the nature of any investigations he might usefully undertake or evidence he might plausibly produce if an adjournment were granted. Further, in the three months since Mr Mayfield’s affidavit of 18 May 2023 was filed giving a detailed explanation of how and when service had taken place, Mr Van Eps had not taken the opportunity to file any affidavit in response. Mr Mayfield’s second affidavit was substantially an elaboration of the evidence in his 18 May 2023 affidavit.

78    The fact that the respondent had provided no explanation for its delay was relevant, but it was only one of several factors involved. The primary judge inferred that the absence of an explanation was influenced by the limited notice of the application for an adjournment. Moreover, Mr Van Eps was not objecting to the use of the Late Affidavits, but seeking an adjournment so he could investigate and respond to them. It was open to the primary judge to consider that absence of an explanation by the respondent for the late service assumed less significance for the adjournment application than an explanation by Mr Van Eps as to how he was prejudiced by the late service.

79    In these circumstances, the conclusion that Mr Van Eps had not demonstrated sufficient prejudice to warrant an adjournment was available. The primary judge’s refusal of the adjournment was not unreasonable.

80    A refusal to grant an adjournment may result in a denial of procedural fairness. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, Gaudron and Gummow JJ observed at [40]:

Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.

(Footnotes omitted.)

81    However, having regard to the considerations discussed above in respect of Mr Van Eps’ grounds of unreasonableness, it cannot be accepted that he was denied a reasonable opportunity to present his case by the refusal of an adjournment. He was provided with a reasonable opportunity to present his case. Mr Van Eps was not denied procedural fairness.

82    Mr Van Eps’ second and seventh grounds deal with the substantive issue before the primary judge, rather than the refusal of an adjournment. The seventh ground asserts that:

The learned primary judge erred in finding that “no reason has been advanced for me to doubt the veracity of that evidence”, referring to the evidence of Mr Mayfield, in circumstances where the appellant was denied the opportunity to file material responsive to the Late Affidavits.

83    An initial problem with this ground is its reliance upon the false premise that Mr Van Eps was “denied the opportunity to file material”, when the primary judge’s finding was instead that Mr Van Eps had failed to take the opportunity to file responsive material. As the premise is not established, the ground must fail.

84    Mr Van Eps’ second ground asserts that:

The learned primary judge erred in having regard to the Late Affidavits in the absence of an application by the respondent for leave to file and serve the Late Affidavits.

85    Mr Van Eps’ submissions do not address the second ground. In any event, there is no evidence or even any assertion that he objected to the Late Affidavits being read. The transcript of the hearing before the primary judge is not before the Full Court. As has been discussed, Mr Van Eps applied for an adjournment in order to investigate and respond to the Late Affidavits, but there is nothing to indicate that he then objected to their use after his application for adjournment was refused. In these circumstances, the second ground cannot succeed.

The fifth ground

86    Mr Van Eps’ fifth ground asserts that the primary judge erred by failing to consider his submission that the respondent, as a model litigant, should not rely on a technical defence.

87    As the Full Court explained in Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114 at [56], the model litigant obligations are contained in para 2 of Appendix B to the Legal Services Directions 2017 (Cth), an instrument made by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth). They are expressed as a single obligation of the Commonwealth and Commonwealth agencies, “to behave as model litigants in the conduct of litigation” (para 1).  Note 2 to para 2 relevantly provides that, “[i]n essence, being a model litigant requires that the Commonwealth and Commonwealth agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards”.

88    The respondent accepts that it is bound by the model litigant obligations, but denies any non-compliance and submits that, in any event, Mr Van Eps is not entitled to rely upon any non-compliance.

89    Section 55ZG of the Judiciary Act 1903 relevantly provides that compliance with a Legal Services Direction is not enforceable except by, or on the application of, the Attorney-General (subs (2)), and that “the issue of non-compliance may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth” (subs (3)). These provisions make it clear that Mr Van Eps is not entitled to rely upon any non-compliance by the respondent with its model litigant obligations as a ground of appeal.

The third and sixth grounds

90    Mr Van Eps’ third ground asserts that the primary judge erred in finding that the application to set aside the Bankruptcy Notice was not filed before the expiration of the time fixed for compliance for the purposes of s 41(7) of the Bankruptcy Act 1966.

91    Mr Van Eps’ sixth ground asserts error in the primary judge’s failure to consider a submission that a benevolent construction of his affidavit, which would favour accepting his evidence over that of Mr Mayfield, should be adopted.

92    In support of these grounds, Mr Van Eps submits that the respondent’s evidence should not have been favoured by the learned primary judge when Mr Van Eps had deposed that he was served on 5 April 2023. He submits that this satisfied r 3.02 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules), and there is no requirement under the Bankruptcy Rules to “embellish service information”. He also submits that authority supports an approach that courts should adopt a benevolent construction to the initial affidavit. Mr Van Eps observes that this submission was noted in the primary judge’s reasons but was not addressed by her Honour.

93    Mr Van Eps had deposed that, “The Notice was served on me personally by a process server on 5 April 2023”. It is true that Mr Van Eps complied with r 3.02(1) of the Bankruptcy Rules, which provides that, “[a]n application to set aside a bankruptcy notice under the Bankruptcy Act must be accompanied by an affidavit stating: (a) the grounds in support of the application; and (b) the date when the bankruptcy notice was served on the applicant”.

94    However, contrary to the submission Mr Van Eps appears to be making, r 3.02(1) of the Bankruptcy Rules does not create some statutory form of irrefutable proof that the deponent was in fact served on the date on which he deposes it was served. The respondent was entitled to dispute the asserted date of service.

95    The primary judge was not bound to accept Mr Van Eps’ evidence. Quite peculiarly in a case where there was a direct conflict between the evidence of two deponents, neither was required for cross-examination. In these circumstances, her Honour could only determine the question of when Mr Van Eps was served by an assessment of the competing affidavits. Mr Mayfield’s evidence was supported by the date and time stamp and map location on the photograph he had taken and by the evidence of Ms Cartier that Mr Mayfield had uploaded his service report on 4 April 2023. Mr Van Eps has not demonstrated any error in her Honour’s finding that he was served on 3 April 2023.

96    In support of his submission that the primary judge ought to have adopted a “benevolent construction” of his affidavit, and ought to have thereby accepted his evidence as to the date of service, Mr Van Eps relies on Eastick v Australia and New Zealand Banking Group Ltd (1981) 53 FLR 91 at 93–94. In that case, the Full Court was concerned with the adequacy of an affidavit for the purposes of s 41(7) of the Bankruptcy Act 1966 which, at that time, required that, “before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has filed with the Registrar an affidavit to the effect that he has such a counter-claim, set-off or cross demand as is referred to in s [40 (1) (g)]”. The Full Court quoted with approval the following passages from Re Brink; Ex parte Commercial Banking Company of Sydney (1980) 44 FLR 135, where Lockhart J held:

It is as well to remember that the initial affidavit has to be filed within a limited time, namely, the number of days after service of the bankruptcy notice upon the debtor fixed by the Registrar. These times are fixed by him without any knowledge on his part of the possibility of a counterclaim, set-off or cross demand being propounded by the debtor. In many cases it is difficult, if not impossible, for the debtor to present more than a mere outline of his case in the time available.

…

The fact that it is within the power of the court to determine when the hearing of a matter under s. 41 (7) will take place, and thus the length of the extension of time to comply with the requirements of the bankruptcy notice; and the difficulty, if not impossibility in some cases, of the initial affidavit being anything other than a mere outline of the debtor's case due to the temporal constraints imposed by the notice, all point to the conclusion that the courts should adopt a benevolent construction to the initial affidavit.

97    The context of the present case is quite different. There is no assertion that Mr Van Eps’ affidavit failed to comply with r 3.02(1) of the Bankruptcy Rules. If it were necessary to determine whether there had been compliance, it might have been appropriate to apply a “benevolent construction” to his affidavit. However, there was no question of compliance with any rule or construction of the affidavit.

98    Rule 3.02(1) of the Bankruptcy Rules did not operate to prevent Mr Van Eps from filing a further affidavit in response to the affidavits of Mr Mayfield. The primary judge was required to resolve a factual dispute between the deponents of competing affidavits concerning the date of service of the Bankruptcy Notice. The principle of “benevolent construction” had no application to the determination of which of the competing affidavits to accept.

A possible further ground

99    Mr Van Eps asserts in his written submissions under the heading “Disposition”:

It is respectfully submitted that the Court should reconsider the authorities denying jurisdiction to extend time for compliance with a bankruptcy notice in the absence of strict compliance in favour of the Court exercising its inherent jurisdiction to extend time in appropriate circumstances and thereby assess the merits of an application to set aside.

100    That submission does not reflect any ground of appeal in Mr Van Eps’ Notice of Appeal. Mr Van Eps did not seek leave to amend his Notice of Appeal. Nor did he advance any submissions as to why the Court should reconsider the relevant authorities. In these circumstances, the argument will not be considered.

Conclusion in respect of the appeal against the judgment of Collier J

101    Mr Van Eps has not established any of his grounds of appeal against the judgment of Collier J. The appeal will be dismissed with costs.

The appeal against the judgment of Meagher J

102    At the hearing before Meagher J, Mr Van Eps sought an adjournment of the proceeding to a date to be fixed pending determination of the appeal, submitting that to dismiss the proceeding would render the appeal futile. He also submitted that he was unable to seek a stay as the declaration made by Collier J was not amenable to a stay of execution.

103    Justice Meagher refused the application for an adjournment. Her Honour also held that the proceeding was incompetent as the Court has no jurisdiction to set aside the Bankruptcy Notice.

104    Mr Van Eps has not contested the respondent’s submission that if the appeal against the judgment of Collier J is dismissed, the appeal against the judgment of Meagher J must also be dismissed.

105    Accordingly, that appeal will also be dismissed with costs.

Associate:    

Dated:    26 September 2024