Federal Court of Australia

McEwan v Official Trustee in Bankruptcy [2026] FCAFC 132

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

A.    Introduction

1    The appellant, Ms McEwan, appeals from orders made by a judge of this Court dismissing her application for various orders concerning a Notice of Objection to the discharge of her bankruptcy.

2    The primary judge published his reasons for dismissing that application as McEwan v Official Trustee in Bankruptcy [2025] FCA 162 (primary judgment or J).

3    For the reasons set out below, the appeal must be dismissed.

B.    Background

4    On 26 November 2019, a sequestration order was made under s 52 of the Bankruptcy Act 1966 (Cth) against the estate of Ms McEwan. Mr Andrew Heers and Mr Mark Pearce of Pearce & Heers (former trustees) were appointed as the trustees of that bankrupt estate (J[1] and [2]): see Pulitano v Van Eps (No 2) [2019] FCCA 3908.

5    On 3 August 2021, Mr Heers wrote to Ms McEwan, notifying her of assessments made of her liability for income contributions for the years ending 25 November 2020 and 25 November 2021 (CAP1 and CAP2 respectively). That letter contained a detailed explanation of how the assessed figures had been derived, including by taking into account moneys transferred into Ms McEwan’s bank accounts (J[18] and [19]).

6    On the same day, Ms McEwan responded by email. Her response relevantly included an assertion that “[a]ny money transferred into a joint account does not mean it is my income” (italic emphasis in original).

7    On 6 August 2021, Mr Gavin Ferris of Pearce & Heers replied, stating that the particulars of how Ms McEwan’s income had been determined were set out in the letter dated 3 August 2021 and that, as she had “provided no evidence to the contrary”, the assessments remained unchanged. The attachments to the email from Mr Ferris included:

A spreadsheet summarising the transactions that we have included in the assessment of your income. This spreadsheet comprises transactions from two bank accounts, neither of which are the company’s and are instead in bank accounts held in your name”.

8    The attached spreadsheet recorded, inter alia, amounts received into two accounts including approximately $150,000 from “Bionaturals”, a company associated with Ms McEwan.

9    On 28 October 2021, Mr Heers wrote to Ms McEwan as follows:

So that I can assess your income and in accordance with Section 77 of the Bankruptcy Act 1966 (Cth) I direct you to provide me with originals of or copies of the following by 16 December 2021:

1.     Bank statements for all bank accounts which you have held for the period 26 November 2020 to 25 November 2021.

2.     Your Income Tax Return for the financial year ended 30 June 2021.

3.     All Notices of Assessment which you have received from the Australian Taxation Office for the financial year ending 30 June 2021.

4.     A copy of your employment contract for your current position (if currently employed).

5.     All pay-slips you received for the period 26 November 2020 to 25 November 2021.

6.     A list of payments you have personally received from any of your related entities during the period 26 November 2020 to 25 November 2021, including but not limited to the following related entities:

a)     Arana Biotechnology Pty Ltd;

b)     Astra Nobel Pty Ltd;

c)     Bionaturals Pty Ltd (formerly Apagein Holdings Pty Ltd);

d)     Bionaturals Holdings Pty Ltd;

e)     Carb Starver Pty Ltd;

f)     Shastra Healthcare Pty Ltd;

g)     Stockingham Pty Ltd;

h)     Van Eps Family Trust; and

i)     Venika Biotech Pty Ltd.

7.     Notices or statements from Services Australia detailing the social welfare payments you received during the period 26 November 2020 to 25 November 2021.

In accordance with Section 77 of the Bankruptcy Act 1966 (Cth) I also direct you to complete the enclosed Income Questionnaire in respect of the second income contribution assessment period of your bankruptcy and return it to me by 16 December 2021.

…

(bold and italic emphasis in original; underline emphasis added)

10    On 24 January 2022, the former trustees gave the Notice of Objection, together with a second notice of objection (which relied upon s 149D(1)(f) of the Bankruptcy Act and concerned a failure by Ms McEwan to pay an income contribution liability as notified in the 3 August 2021 letter) (J[3]).

11    The Notice of Objection included:

I, Andrew John Heers of Pearce & Heers Insolvency Accountants, Level 12, 127 Creek Street, Brisbane in the State of Queensland, joint and several Trustee of the bankrupt estate of Julie Anne-Marie Van Eps, object to the discharge from bankruptcy of Julie Anne-Marie Van Eps by force of Section 149B of the Bankruptcy Act 1966 (Cth) (“the Act”), as follows:

1.    Pursuant to Section 149C(l)(a), I advise that the grounds for my objection are:

a)    Section 149D(1)(d) - the bankrupt, when requested in writing by the Trustee to provide written information about their property, income or expected income, failed to comply with the request.

b)    Section 149D(1)(e) - the bankrupt failed to disclose any particulars of income or expected income as required by a provision of the Act referred to in Section 6A(1) or by Section 139U of the Act.

2.    Pursuant to Section 149C(1)(b) of the Act, I advise that the evidence or material to establish the grounds of my objection are:

a)    On 28 October 2021, I wrote to the bankrupt and requested that she provide me with the following so that I could assess her income (“the Requested Income Information”):

i)    An income questionnaire.

ii)    Bank statements for all bank accounts which the bankrupt held for the period 26 November 2020 to 25 November 2021.

iii)    The bankrupt’s Income Tax Return for the financial year ended 30 June 2021.

iv)    All Notices of Assessment which the bankrupt received from the Australian Taxation Office for the financial year ending 30 June 2021.

v)    A copy of the bankrupt’s employment contract for the bankrupt’s current position (if currently employed).

vi)    All pay-slips the bankrupt received for the period 26 November 2020 to 25 November 2021.

vii)    A list of payments the bankrupt received from any of her related entities during the period 26 November 2020 to 25 November 2021, including but not limited to the following related entities:

•    Arana Biotechnology Pty Ltd;

•    Astra Nobel Pty Ltd;

•    Bionaturals Pty Ltd (formerly Apagein Holdings Pty Ltd);

•    Bionaturals Holdings Pty Ltd;

•    Carb Starver Pty Ltd;

•    Shastra Healthcare Pty Ltd;

•    Stockingham Pty Ltd;

•    Van Eps Family Trust- and

•    Venika Biotech Pty Ltd.

viii)    Notices or statements from Services Australia detailing social welfare payments the bankrupt received during the period 26 November 2020 to 25 November 2021.

b)    The bankrupt failed to provide the Requested Income Information.

c)    On 16 December 2021, Johanna Bond of my office wrote to the bankrupt to follow up on my request to provide me with the Requested Income Information.

d)    The bankrupt failed to provide the Requested Income Information.

This objection has the effect of extending the bankruptcy to a period of eight (8) years from the prescribed date.

(bold and italic emphasis in original)

12    As stated in the Notice of Objection, the filing of that Notice had the effect of extending the period of Ms McEwan’s bankruptcy from three years to eight years: see s 149 of the Bankruptcy Act. This extension was the result of the operation of s 149A of the Bankruptcy Act (see [21] below).

13    On 10 June 2022, Ms McEwan sent an email to the former trustees in the following terms (as written) (J[25]):

Please find attached income assessment and bank statements.

You were already advised:

1.    I have not been earning an income;

2.    I have not been a director of any of the companies referred to in your letter;

3.    Most of companies listed except are no longer active (deregistered) which you would be able to confirm, not sure why you even included these in your letter;

4.    Apagein Biotech has never traded ever;

5.    I have no control over Bionaturals, the company has not been trading for a very long time and does not earn an income.

Please now reverse the further five years for the bankruptcy, it is inappropriate and malicious. As previously advised, due to the conduct of your clients and the ATO, there is no money…

14    On 13 June 2022, the former trustees responded as follows, attaching a copy of the 28 October 2021 letter (see [9] above) (J[26]):

I note the following:

1.    My letter (attached) requested copies of bank statements for all bank accounts you have held for the period from 26 November 2020 to 25 November 2021. So far you have only provided me with statements for Westpac account number [number redacted] for the period from 8/06/2021 onwards. You have not provided me with any statements for your Westpac account number [number redacted] or any other bank accounts you may hold, whether it be solely or jointly.

2.    My letter asks for you to include a list of payments you have personally received from any of your related entities from 26 November 2020 to 25 November 2021. I included a number of entities as examples of entities that we have identified that you are related to, however as set out in my letter this is not intended to be an exhaustive list. I included those entities regardless of whether they are deregistered or not trading. If you have not received any payments from them as a result of them not trading and/or being deregistered, nothing further is required with respect to this particular request. Where you have received payments from any of your related entities, please provide me with a list of all payments.

3.    Seeing as we are now almost 8 months on from the date my letter was sent, I request that all outstanding information is produced from 26 November 2020 to today and does not cease at 25 November 2021 as previously stated.

To summarise, and for your ease of compliance, the following information remains outstanding:

1.    Bank statements from 26 November 2020 to 8 June 2021 for Westpac account number [number redacted].

2.    Bank statements from 26 November 2020 to date for Westpac account number [number redacted].

3.    Bank statements from 26 November 2020 to date for any other bank accounts you may hold, including bank accounts you hold solely or jointly.

4.    A list of payments you have personally received from any of your related entities, including but not limited to the entities set out in my attached letter, for the period from 26 November 2020 to date.

5.     Notices or statements from Services Australia detailing the social welfare payments you received during the period from 26 November 2020 to date.

(bold emphasis in original; underline emphasis added)

15    On 7 July 2022, the former trustees were replaced as trustees of Ms McEwan’s bankrupt estate by the Official Trustee in Bankruptcy (J[2]).

16    There followed considerable correspondence between the Australian Financial Security Authority (AFSA) on behalf of the Official Trustee, and Ms McEwan. That correspondence included:

(1)    an email sent on 4 November 2022 from Ms Michelle Tilke of AFSA to Ms McEwan which relevantly stated in relation to the Notice of Objection:

Notice 1: Sections 149D(1)(d) and 149D(1)(e)

I understand that Pearce & Heers has clarified with you the information that remains outstanding (attached).

Upon review, the Official Trustee requires you to provide the following:

1.    Bank statements from 26 November 2020 to date for any other bank accounts you may hold, including bank accounts you hold solely or jointly

2.    A list of payments you have personally received from any of your related entities, including but not limited to the entities set out in Pearce & Heers' letter (attached), for the period from 26 November 2020 to date

3.    Notices or statements from Services Australia detailing the social welfare payments you received during the period from 26 November 2020 to date

I note in our telephone conversation yesterday you stated you believed that you had supplied this information to Pearce & Heers. However the Official Trustee has not been able to find these documents in the file provided.

…

(bold, italic and underline emphasis in original);

(2)    a letter dated 5 October 2023 from Mr Scott Guthrie of Thomson Geer, which firm was acting on behalf of the Official Trustee, to Ms McEwan in which he indicated that the Official Trustee was open to considering whether it ought to review the income and contribution assessments made on 3 August 2021 if Ms McEwan provided outstanding information including the list of payments sought in the 28 October 2021 letter;

(3)    a letter dated 15 April 2024 from Ms Cecilia Mu of AFSA to Ms McEwan which relevantly stated (the initial bold paragraph reproduces a request that had been made by Ms McEwan in a letter dated 26 March 2024):

1.    An explanation, with precision, how the Objection Notices filed by Mr Heers are valid, and an explanation of the legislative intention of lodging the objections, when:

•    the failure to provide information was 5 weeks late, and 

•    the excel spreadsheet created by Mr Heers to determine Ms McEwan’s contributions liability is “defective because the legislation does not support those transactions”.

The OT has previously provided this information to you (section 70‐17(2)(e) of the Insolvency Practice Rules (Bankruptcy) 2016).

Mr Heers lodged two Notices of Objection to Discharge on 24 January 2022. Mr Heers objected to your discharge from bankruptcy based on the following grounds:

•    section 149D(1)(d) – failed to provide information to trustee. (Objection One)

•    section 149D(1)(e) – failed to disclose any particulars of income. (Objection One)

•    section 149D(1)(f) – failed to pay mandatory contributions. (Objection Two)

An excel spreadsheet summarising the transactions included in the assessment of your income was previously provided to you by Mr Heers.

On 4 November 2022, Michelle Tilke, (former) Assistant Director of Estate Administration at AFSA sent an email to you setting out the bases upon which the OT understood Mr Heers lodged the Notices. A copy of this email is attached. The email advises that in respect of Objection One, Mr Heers required the following information from you:

•    Bank statements from 26 November 2020 to date for any other bank accounts you may hold, including bank accounts you hold solely or jointly.

•    A list of payments you have personally received from any of your related entities, including but not limited to the entities set out in Pearce & Heers’ letter (a copy is attached), for the period from 26 November 2020 to date.

•    Notices or statements from Services Australia detailing the social welfare payments you received during the period from 26 November 2020 to date.

I acknowledge that you contend that you supplied this information to Pearce & Heers, however there is no record of these documents in the file provided by Mr Heers. As such, the OT considers that Objection One was valid when it was lodged on 24 January 2022.

It is noted that you subsequently provided some, but not all, of the information required by Mr Heers to the OT. As such the requirement to provide the above material remains outstanding.

On this basis, the OT has formed the view that the grounds for objection as identified by Mr Heers have not been fully addressed and there is no basis to review or withdraw Objection One or otherwise doubt its validity.

The balance of the outstanding material specified in this correspondence must be provided to the OT before this position can be reviewed.

…

The OT would be open to reassessing Mr Heers’ income contribution assessment if you provide the following documents:

•    Bank statements from 26 November 2020 to date for any other bank accounts you may hold, including bank accounts you hold solely or jointly.

•    A list of payments you have personally received from any of your related entities, including but not limited to the entities set out in Pearce & Heers’ letter (a copy is attached), for the period from 26 November 2020 to date.

•    Notices or statements from Services Australia detailing the social welfare payments you received during the period from 26 November 2020 to date.

(bold and italic emphasis in original; underline emphasis added);

(4)    a letter dated 28 May 2024 from Ms Mu to Ms McEwan which relevantly stated (the initial bold paragraph reproduces a request that had been made by Ms McEwan in an email dated 6 May 2024):

2.    Explain to me why the OT requests information that I do not have, therefore cannot provide. I refer to Ms Tilke’s email of 4 November 2022. See my response. I do not have any ‘other’ bank accounts, I do not know what the OT is referring to. This has gone on now for two and a half years, I cannot understand what it is that the OT is seeking.

I refer to the letter of Thomson Geer dated 5 October 2023, which sets out the information and documentation required by the OT, and which demonstrates that the provision of balance of information remains outstanding (Mr Guthrie’s letter). A copy of this document is attached.

On 4 November 2022, Michelle Tilke, (former) Assistant Director of Estate Administration at AFSA sent an email to you setting out the bases upon which the OT understood Mr Heers lodged the Notices. A copy of this email is attached.

It is noted that you subsequently provided some, but not all, of the information required by Mr Heers to the OT. The OT notes the following material remains outstanding:

•    Westpac Bank statement account number [redacted] from 26 November 2020 to date.

•    Westpac Bank statement account number [redacted] from 26 November 2020 to date.

•    Bank statements from 26 November 2020 to date for any other bank accounts you may hold, including bank accounts you hold solely or jointly.

•    A list of payments you have personally received from any of your related entities, including but not limited to the entities set out in Pearce & Heers’ letter dated 24 January 2022 (a copy is attached), for the period from 26 November 2020 to date.

•    Centrelink statement for year 2023.

The balance of the outstanding material specified in this correspondence must be provided to the OT before this position can be reviewed.

(bold emphasis in original; underline emphasis added);

(5)    an email sent on 30 June 2024 from Ms McEwan to Ms Mu in which Ms McEwan provided bank statements that had been requested in the 28 October 2021 letter;

(6)    a letter dated 9 August 2024 from Ms Mu to Ms McEwan (the bold text reproduces a request that had been made by Ms McEwan in a previous communication):

1.    What information that remains outstanding

I refer to the correspondence issued by the OT on 28 May 2024. In that letter, the OT provided a list of the information and documentation which remained outstanding. I acknowledge that you have since supplied the outstanding bank statement information, and Centrelink statement. Thank you for that.

As such, the only information and documentation which remains outstanding is the list of payments you have received from your related entities.

I understand you contend that you have not received such payments. However, there have been deposits made in bank accounts held in your name, in particular, the accounts numbered [redacted, being the two accounts mentioned at [8] above], which indicates deposits appearing to originate from BioNaturals. It is noted that BioNaturals is one of your related entities.

Please provide the list of payments you have received from your related entities. Once this information is received, the OT will be able to review its position in respect of the Notice of Objection lodged in your bankrupt estate for failing to provide information under sections 149D(1)(d) and (e) of the Act.

It is noted however, that in order to discharge you from your bankruptcy, both of the objections lodged in your bankrupt estate must be set aside or withdrawn.

(bold emphasis in original; underline emphasis added); and

(7)    assertions by Ms McEwan that she had complied with the requests for information and that Ms Tilke was satisfied in November 2022 that this had occurred, including because she told Ms Tilke that she had not received any payments from any related entities.

17    On 20 May 2024, Ms McEwan commenced the proceeding before the primary judge. The application in that proceeding sought relief with respect to both: (1) the Notice of Objection; and (2) the second notice of objection. However, Ms McEwan subsequently discontinued the proceeding in so far as it related to the second notice of objection, and ultimately relied on a further amended application filed on 24 January 2025 which concerned only the Notice of Objection.

18    The hearing before the primary judge took place on 10 and 11 February 2025. At that hearing, Ms McEwan contended in summary that the Notice of Objection: (1) was invalid; or (2) should be ordered to be withdrawn: (J[3]).

19    Before addressing the primary judge’s reasons for rejecting those contentions, it is convenient first to describe the legislative framework that governed Ms McEwan’s application.

C.    The legislative framework

C.1    Provisions relevant to the validity of a notice of objection to discharge

20    The usual position is that a term of bankruptcy is three years. In this regard, s 149 of the Bankruptcy Act provides in so far as is presently relevant:

149     Automatic discharge

(1)     A bankrupt is discharged from bankruptcy, by force of this subsection, at the end of the period of 3 years from whichever of the following dates is applicable:

(a)     for a bankruptcy because of a sequestration order—the date the statement of the bankrupt’s affairs accepted under subsection 57B(1) was filed;

...

(2)     Subsection (1) applies subject to section 149A (objection to discharge of bankruptcy).

21    Section 149A provides, in so far as is presently relevant:

149A     Bankruptcy extended when objection made

(1)     If an objection to the discharge of a bankrupt has taken effect in accordance with section 149G, then, unless the objection is withdrawn or cancelled, the bankrupt is taken to be discharged by force of subsection 149(1) at the end of the prescribed number of years from the prescribed date.

(2)     For the purposes of subsection (1):

(a)     the prescribed number of years is:

(i)     if the objection was made on a ground, or on grounds that included a ground, referred to in paragraph 149D(1)(ab), (ac), (ad), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma)—8 years; or

(ii)    in any other case—5 years; and

(b)     the prescribed date is:

(i)     if the objection was made on a ground, or on grounds that included a ground, referred to in paragraph 149D(1)(a) or (h)—the date on which the bankrupt returned to Australia; or

(ii)     in any other case—the date applicable under whichever of paragraph 149(1)(a), (b) or (c) applies.

...

22    The Notice of Objection purported to be a notice under s 149B of the Bankruptcy Act, which provides:

149B      Objection to discharge

(1)     Subject to the following provisions of this Subdivision, at any time before a bankrupt is discharged from bankruptcy under section 149, the trustee may file with the Official Receiver a written notice of objection to the discharge.

(2)     The trustee of a bankrupt’s estate must file a notice of objection to the discharge if the trustee believes:

(a)     that doing so will help make the bankrupt discharge a duty that the bankrupt has not discharged; and

(b)     that there is no other way for the trustee to induce the bankrupt to discharge any duties that the bankrupt has not discharged.

23    Relatedly, ss 149C and 149D of the Bankruptcy Act provide:

149C      Form of notice of objection

(1)     A notice of objection must:

(a)     set out the ground or each of the grounds of objection, being a ground or grounds set out in subsection 149D(1) but not being a ground or grounds of a previous objection to the discharge that was cancelled; and

(b)     refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of those grounds; and

(c)     state the reasons of the trustee for objecting to the discharge on that ground or those grounds.

(1A)     Paragraph (1)(c) does not apply to a ground specified in paragraph 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma).

(2)     A notice of objection is not invalid merely because it does not state the ground or grounds of objection precisely as set out in subsection 149D(1) provided that the ground or grounds can reasonably be identified from the terms of the notice.

149D      Grounds of objection

(1)     The grounds of objection that may be set out in a notice of objection are as follows:

(a)     the bankrupt has, whether before, on or after the date of the bankruptcy, left Australia and has not returned to Australia;

(aa)     any transfer is void against the trustee in the bankruptcy because of section 120 or 122;

(ab)     any transfer is void against the trustee in the bankruptcy because of section 121;

(ac)     any transfer is void against the trustee in the bankruptcy because of section 128B;

(ad)     any transfer is void against the trustee in the bankruptcy because of section 128C;

(b)     after the date of the bankruptcy, the bankrupt contravened section 206A of the Corporations Act 2001 (disqualification from managing corporations);

(c)     after the date of the bankruptcy the bankrupt engaged in misleading conduct in relation to a person in respect of an amount that, or amounts the total of which, exceeded $3,000;

(d)     the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with the request;

(da)     after the date of the bankruptcy, the bankrupt intentionally provided false or misleading information to the trustee;

(e)     the bankrupt failed to disclose any particulars of income or expected income as required by a provision of this Act referred to in subsection 6A(1) or by section 139U;

(f)     the bankrupt failed to pay to the trustee an amount that the bankrupt was liable to pay under section 139ZG;

(g)     at any time during the period of 5 years immediately before the commencement of the bankruptcy, or at any time during the bankruptcy, the bankrupt:

(i)     spent money but failed to explain adequately to the trustee the purpose for which the money was spent; or

(ii)     disposed of property but failed to explain adequately to the trustee why no money was received as a result of the disposal or what the bankrupt did with the money received as a result of the disposal;

(h)     while the bankrupt was absent from Australia he or she was requested by the trustee to return to Australia by a particular date or within a particular period but the bankrupt failed to return by that date or within that period;

(ha)     the bankrupt intentionally failed to disclose to the trustee a liability of the bankrupt that existed at the date of the bankruptcy;

(i)     the bankrupt has failed, whether intentionally or not, to disclose to the trustee a liability of the bankrupt that existed at the date of the bankruptcy;

(ia)     the bankrupt failed to comply with subparagraph 77(1)(a)(ii);

(j)     the bankrupt failed to comply with paragraph 77(1)(bb) or (bc) or subsection 80(1);

(k)     the bankrupt refused or failed to sign a document after being lawfully required by the trustee to sign that document;

(l)     the bankrupt failed to attend a meeting of his or her creditors without having first obtained written approval of the trustee not to attend or without having given to the trustee a reasonable explanation for the failure;

(m)     the bankrupt failed to attend an interview or examination for the purposes of this Act without having given a reasonable explanation to the trustee for the failure;

(ma)     the bankrupt intentionally failed to disclose to the trustee the bankrupt’s beneficial interest in any property;

(n)     the bankrupt failed, whether intentionally or not, to disclose to the trustee the bankrupt’s beneficial interest in any property.

C.2    Provisions relevant to the making of an order for the withdrawal of a notice of objection

24    Section 30 of the Bankruptcy Act provides in so far as is presently relevant:

30     General powers of Courts in bankruptcy

(1)     The Court:

(a)     has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b)     may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

…

25    Section 90-15 of the Insolvency Practice Schedule (Bankruptcy) (IPS), being Schedule 2 to the Bankruptcy Act, provides in so far as is presently relevant:

90-15     Court may make orders in relation to estate administration

Court may make orders

(1)     The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate.

…

Section does not limit Court’s powers

(7)     This section does not limit the Court’s powers under any other provision of this Act, or under any other law.

D.    The reasons of the primary judge

26    We turn now to the reasons of the primary judge, which were delivered ex tempore at the conclusion of the hearing.

27    His Honour addressed each of the issues for determination, namely whether the Court should: (1) declare that the Notice of Objection was invalid and of no force and effect; or (2) require the Official Trustee to withdraw the Notice of Objection.

D.1    Challenge to the validity of the Notice of Objection

28    In considering the validity of the Notice of Objection, the primary judge applied the approach taken by the Full Court of this Court (Spender, Hely and Conti JJ) in Prentice v Wood [2002] FCA 214; (2002) 119 FCR 296, namely that the validity of a notice of objection is to be determined by reference to what appears on the face of that notice (J[8] to [11]).

29    As to s 149C(1)(a) and (b), the primary judge was satisfied that the Notice of Objection set out grounds in s 149D(1) of the Bankruptcy Act, namely s 149D(1)(d) and (e), and referred to the evidence or other material that, in the opinion of the trustee, established each of those grounds (J[9] to [11]). The requirement in s 149C(1)(c) did not apply because of the operation of s 149C(1A) in circumstances where the Notice of Objection identified the grounds of objection as non-compliance with s 149D(1)(d) and (e) (J[9]).

30    Thus, the primary judge was satisfied that the Notice of Objection was valid.

D.2    Application for an order for the withdrawal of the notice of objection

31    The primary judge addressed the question whether or not to order the withdrawal of the Notice of Objection at J[12] to [42].

32    His Honour noted that the availability of merits review of the decision to file the Notice of Objection – by the Inspector-General in Bankruptcy and the (then) Administrative Appeals Tribunal – provided the Court with a discretionary reason not to consider whether to order the withdrawal of the Notice of Objection (J[12] to [15]). Nevertheless, his Honour went on to consider whether to order such a withdrawal. His Honour noted that, while there was power under s 30 of the Bankruptcy Act to order the withdrawal of the Notice of Objection, he preferred to ground the existence of such a power in s 90–15 of the IPS (J[31]).

33    The primary judge commenced his consideration of this question by reference to the 3 August 2021 letter (J[18] to [19]).

34    His Honour then noted that in the 28 October 2021 letter Mr Heers had written to Ms McEwan and requested “exactly the information set out in the [N]otice of [O]bjection” (J[20]).

35    The primary judge described himself as “well satisfied, on the evidence, that there was occasion for the making of the request for the information by the former trustees by letter of 28 October 2021” (J[21]). His Honour stated that it was “apparent enough from the trustee’s letter of 3 August 2021 that that information request was directly keyed to the period termed CAP2, and further, that in respect of that period and at that time, the then trustees were operating against what one might term an information deficit in terms of particularity of what may constitute income under s 139L of the Act” (J[21]).

36    The primary judge also found that despite extensive correspondence, Ms McEwan had not given the former trustees or the Official Trustee a meaningful response to the request for a list of payments in paragraph 6 of the 28 October 2021 letter – which paragraph had been reproduced as paragraph 2(a)(vii) of the Notice of Objection (J[23]). His Honour also noted Ms McEwan’s explanation for not having provided that list of payments as being that: (1) she understood the request to be a request detailing income; and (2) she had no income (J[28]). His Honour did not accept that explanation, noting that the decision as to whether particular payments constituted income within the meaning of s 139L of the Bankruptcy Act was one for the trustees and not for Ms McEwan; and that Ms McEwan was obliged to provide the information sought to her bankruptcy trustee (J[28] and [29]). His Honour found that the stance taken by Ms McEwan to a “readily comprehensible request made as far back as 28 October 2021” was not reasonably open (J[33]).

37    His Honour also noted with respect to Ms McEwan’s failure to provide the list of payments that, notwithstanding Ms McEwan’s assertions concerning a conflict of interest on the part of the former trustees, “those trustees made, in my view, a perfectly reasonable and understandable request for information on 28 October 2021”, and “[f]urther, and more importantly, having succeeded the administration of her bankrupt estate, it is obvious from the evidence that the Official Trustee considered afresh and in good faith whether or not the information request should be pressed and whether or not it had been complied with” (J[23] and [24]).

38    The primary judge was ultimately not persuaded that it was appropriate to make an order for the withdrawal of the Notice of Objection. His Honour considered that the maintenance of the objection was utile to the administration of Ms McEwan’s bankrupt estate in circumstances where, because of Ms McEwan’s refusals to provide information, the trustees were operating in an “information deficit” in relation to whether to re-assess Ms McEwan’s income contribution (J[32], [35], [36]). His Honour also expressed the view that Ms McEwan had been her own worst enemy in her dealings with her trustees (J[32]).

39    His Honour also noted that Ms McEwan’s bankruptcy was to continue in any event by reason of the second notice of objection (J[37]).

D.3    Costs

40    The primary judge ordered that costs follow the event. In reaching this conclusion, his Honour did not accept Ms McEwan’s submission that there had been disentitling conduct on the part of her trustees in failing to assist her to understand her obligations particularly with respect to the request for information directed to her. His Honour found no default on the part of the trustees and praised each of them for their efforts in endeavouring to have Ms McEwan understand the nature and extent of what was required in terms of a response in respect of the information requested (J[39] to [43]).

E.    Events subsequent to the delivery of the judgment below

41    At 10:25 pm on 11 February 2025, being the day on which his Honour had delivered his ex tempore reasons for judgment, Ms McEwan provided a list of payments to the Official Trustee, which she characterised as a list of “deposits” made into bank accounts owned by her from related entities.

42    On 7 March 2025, the primary judge published the primary judgment. Ms McEwan acknowledged at the hearing of this appeal that she did not at that stage seek orders relating to suppression or non-publication.

43    On 11 March 2025, Ms McEwan filed a notice of appeal from the judgment of the primary judge. That notice, which set out 30 grounds of appeal, has since been superseded by successive amended and further amended notices of appeal. In addition to seeking to set aside the orders of the primary judge and to set aside, withdraw or cancel the Notice of Objection, Ms McEwan also sought orders for the redaction of personal information and details from the 3 August 2021 letter as reproduced in the reasons for judgment, and suppression orders in relation to certain evidence from the proceedings below.

44    On 30 June 2025, Ms McEwan filed an interlocutory application in the appeal proceeding, seeking a “temporary non-publication order” in relation to the primary judge’s decision and for the reasons for judgment to be “anonymised” until the hearing and determination of the appeal. In support of her interlocutory application, Ms McEwan relied on an affidavit affirmed by her on 28 July 2025.

45    The interlocutory application was dismissed by Burley J on 15 August 2025: McEwan v Official Trustee in Bankruptcy [2025] FCA 978. His Honour was not satisfied that the non-publication order sought by Ms McEwan was necessary to prevent prejudice to the administration of justice or to protect the safety of any person within the meaning of s 37AG(1)(a) or (c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Among other things, Burley J took into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE of the FCA Act). In so far as the publication of matters that Ms McEwan regarded as private was “a matter of personal inconvenience” to her, that did not rise to the level required by the authorities to warrant the suppression order being made: at [17]. Further, in circumstances where the proceedings were heard in open court and the judgment had been publicly available for some time, Burley J considered that there was “a serious question as to the utility of any orders being made”: at [18].

46    On 18 August 2025, Ms McEwan filed an interlocutory application to set aside the judgment and orders of Burley J, and for suppression or non-publication orders in relation to the judgments of both Burley J and the primary judge. Ms McEwan sought to invoke r 39.05 of the Federal Court Rules 2011 (Cth), which confers power on the Court to vary or set aside an interlocutory judgment or order after it has been entered.

47    On 13 November 2025, the further interlocutory application was dismissed by Hespe J: McEwan v Official Trustee in Bankruptcy (No 2) [2025] FCA 1392. Her Honour noted that the power under r 39.05 cannot be invoked to undermine the principle of finality of litigation, nor as a substitute for an appeal, nor to circumvent a limitation on the Court’s appellate jurisdiction: at [41]. In that regard, as the orders made by Burley J involved an exercise of appellate jurisdiction, they could not be the subject of an appeal in this Court: at [45]. In dismissing the application, Hespe J stressed that r 39.05 could not be used to relitigate issues that had been determined: at [49]. After canvassing various additional arguments on which Ms McEwan had relied, Hespe J concluded that Ms McEwan had not demonstrated that any new circumstance had arisen which warranted the setting aside of the orders made on 15 August 2025 (dismissing the interlocutory application filed on 30 June 2025), and was not satisfied that it was in the interests of justice for those orders to be set aside or varied: at [55].

48    Finally, on 24 February 2026, the Official Trustee notified Ms McEwan that the Notice of Objection was withdrawn.

F.    The grounds of appeal

49    We turn now to Ms McEwan’s grounds of appeal.

50    The appeal was argued by reference to a second further amended notice of appeal. That notice of appeal contains 12 grounds. It is convenient to consider the grounds in the following groups.

F.1    Denial of procedural fairness (Grounds 1 and 2)

51    Ms McEwan contends that she was denied procedural fairness:

(1)    “to object to evidence at the commencement of the hearing” before the primary judge; and

(2)    “to cross-examine Mr Giacco [the solicitor for the respondents] on his affidavit”.

52    In support of these grounds of appeal, Ms McEwan submits that she was “deprived of a fair opportunity to challenge the respondents’ case” as the result of the primary judge’s refusal to determine her objections to the respondents’ affidavit evidence, and to permit her to cross-examine Mr Giacco on those matters. Ms McEwan submits that the rulings made by the primary judge “concerned live and material issues, namely the trustee’s compliance with the [Bankruptcy] Act and the factual basis for the objection to discharge”.

F.1.1    Opportunity to object to respondents’ evidence

53    Towards the start of the first day of hearing on 10 February 2025, Ms McEwan indicated that she objected to some of the exhibits contained in the court book, which she submitted were no longer relevant due to the “narrowing” of the case as a result of the discontinuance of her challenge to the second notice of objection (concerning the income contribution liability). Ms McEwan also stated that she objected to some paragraphs in the affidavits on which the respondents relied.

54    The following exchange took place between Ms McEwan and the primary judge:

HIS HONOUR: Well, there are two ways, at least, of going about what to do about your objections. I can deal with them now, and one by one. Or, if it’s not going to prejudice, the cross-examination and re-examination – I could just hear the oral evidence under cross-examination and re-examination, if any, of particular witnesses. It sounds like that will be all of the evidence in the case. And then I can just hear submissions, which would also include which parts of which affidavits shouldn’t be acted on, in conjunction with your submissions about why I should grant the relief that you claim. Which course do you want me to take?

MS McEWAN: Well, I would prefer – or could there potentially be a third course? Could there be potentially a third course? Would be, because I’ve circulated the document, that if we could confer, maybe it could save a lot of wasted time, instead of going through document by document. I’m just looking at what is the easiest and quickest way to resolve something. And potentially, if we would discuss and say, “Yes, we agree on that.” Narrow that issue, as well as objections to evidence, so what we deal with then, we’re not dealing with every single document. Because there are quite a lot.

HIS HONOUR: Yes. The only little fly in the ointment might be, I understand, that the link to Sydney is only available this morning. That in turn looks to be a consequence of when the notice was given, which in turn impacted upon booking a video link facility.

MS McEWAN: I see.

HIS HONOUR: So - - -

MS McEWAN: Is your Honour saying we just deal with Mr Ng first, and then we just deal with his evidence and the cross-examination? Just narrow that first?

HIS HONOUR: It’s probably better to hear the cross-examination.

MS McEWAN: Of Mr Ng?

HIS HONOUR: But I’ve got to hear from what Mr - - -

MS McEWAN: Okay. I’m happy with that.

HIS HONOUR: - - - McMillan wants to put me about that. Mr Ng is one. Is there anyone else?

MS McEWAN: Yes. Mr Giacco is here. He’s giving evidence.

HIS HONOUR: So it’s only Mr Ng who’s remote?

MS McEWAN: That is correct.

HIS HONOUR: Is that right? All right.

MS McEWAN: Yes.

55    Counsel for the respondents told the primary judge that “from the respondents’ perspective, we’re content for the court to approach the objections after having heard the evidence in the course of submissions”, noting that this would not prejudice the cross-examination from the respondents’ perspective. Accordingly, the respondents did not object to “interposing” the cross-examination of Mr Ng to enable his evidence to be given remotely while the video-link was available.

56    After further discussion, the primary judge indicated:

HIS HONOUR: - - - … what I propose to do, then, it having been identified as to what the maximum nature and extent of the evidence is, is just to work through cross-examination of particular witnesses. And that’s subject to such just objection as either you or the trustees may have to the relevance of any of the evidence, affidavit or oral, having regard to the nature of a jurisdiction which you’ve sought to have exercised. And it seems to me, in the interests of justice, having heard from the trustee’s counsel, to interpose Mr Ng for no better or worse reason than availability, as I understand it, of the video link to Sydney, which is just this morning, it being required for other court-related purposes in another case on and from 2 pm. So, what I am prepared to do is, is to stand the case down for 10 minutes to allow you just to gather your thoughts - - -

MS McEWAN: Thank you.

HIS HONOUR: - - - with respect to your cross-examination of Mr Ng.

57    At the commencement of her cross-examination of Mr Ng, Ms McEwan raised the subject of her objections to evidence in his affidavit on which she said the respondents would not be relying. When the primary judge informed Ms McEwan that this was “more a question for counsel in submissions”, Ms McEwan stated:

Okay. All right. Thank you, your Honour. I just, again, want to place on record I have circulated objections to evidence, and the various documents contained in these affidavits. But we will deal with the questions and the documents that I put to Mr Ng. …

58    There followed an extensive cross-examination, and a brief re-examination, of Mr Ng, before Ms McEwan entered the witness box to give evidence. Ms McEwan was then cross-examined. In the course of her cross-examination, Ms McEwan objected to a number of questions that were put to her by counsel for the respondents, on the ground that the question was not relevant to the proceedings, or was said to involve hearsay. Those questions principally concerned Ms McEwan’s income assessments and her liability for income contribution payments in respect of CAP1 and CAP2, including the 3 August 2021 letter. Ms McEwan referred to her discontinuance of the proceeding in so far as it related to the second notice of objection, and disputed the relevance of questions about her income assessments or contribution liability. Thus, she objected that “what you’re trying to do is have an application, cross-examination on something that has been discontinued to place into evidence what I withdrew because it’s no longer before the court”.

59    The primary judge overruled Ms McEwan’s objections and allowed the questions. The tenor of his Honour’s ruling is apparent from the following observation, in the context of the email dated 6 August 2021 referred to at [7] and [8] above that had been put to Ms McEwan:

HIS HONOUR: I’ve overruled the objection, and that’s because it seems to me that whilst this email undoubtedly relates to a subject in respect of which you’ve discontinued, it also may relate to a subject which you haven’t, which is occasion or otherwise for the maintenance of an objection to discharge, based on an absence of response. That’s the basis of the question line, is it not - - -

MR McMILLAN: Yes, it is, your Honour

60    As the primary judge endeavoured to explain to Ms McEwan:

HIS HONOUR: - - - all that remains at issue after your discontinuance is the challenge you’ve made to particular notices of objection, which in turn relate to alleged, as per the notices, failures to respond to requests for information. All you’ve been asked in turn is, as at August 2021, you were aware, having regard to the spreadsheet attached to the email which you’ve admitted you received, that the trustee was interested in receiving information from you about payments which had come in to nominated accounts on that spreadsheet from Apagein Holdings Proprietary Limited. That was the question, Mr McMillan?

MR McMILLAN: That was the question. Yes, your Honour.

HIS HONOUR: So - - -?---And I have no problem with that.

- - - the question is, as at August ’21, you were aware the trustee was interested in payments – receiving information about payments coming in from Apagein Holdings Proprietary Limited, were you not?---Yes, I was, your Honour.

61    The primary judge similarly overruled Ms McEwan’s objection to questions put to her about various bank statements that recorded payments made by Apagein Holdings Proprietary Limited.

62    It does not appear that there was any formal ruling by the primary judge on the objections that had been raised or foreshadowed by Ms McEwan on the morning of 10 February 2025 in relation to the respondents’ affidavit evidence.

63    In such circumstances, Ms McEwan submitted that she was denied procedural fairness by the failure to deal with her objections to evidence on which the respondents relied. Ms McEwan relevantly submitted:

The transcript demonstrates that the appellant sought to have her written objections to the respondents’ affidavit evidence determined before the evidence was received. She expressly relied upon the Evidence Act and submitted that, in fairness, the admissibility of the impugned evidence should first be determined. The objections concerned evidence that was subsequently relied upon by the respondents in support of the continued validity of the objection to discharge.

64    However, as the respondents submitted, Ms McEwan had acceded to the deferral of her objections to the respondents’ affidavit material so that Mr Ng could give oral evidence by video-link on the first day of the hearing. Ms McEwan had then raised similar objections on relevance grounds in the course of her own cross-examination, which were repeatedly overruled by the primary judge. Accordingly, the substance of Ms McEwan’s objections to the relevance of evidence concerning her income assessments and the payments made into her bank accounts was raised and determined by the primary judge, such that there was no denial of a fair hearing.

65    It is clear from both the transcript and the reasons for judgment that the primary judge was proceeding on the basis that matters relating to the income assessments and the income contribution payments were relevant to the issues raised in the proceeding concerning the Notice of Objection, including the question whether the Notice of Objection should be withdrawn. As the primary judge stated (J[16]-[17]):

A very great deal of evidence was led in relation to the administration of Ms McEwan’s bankrupt estate in relation to the making of the income contribution assessments and endeavours, thereafter, either by her former trustees or the official trustee, to obtain the information referred to in the notice of objection.

That evidence was not, for the reason which I have given, relevant to the validity or otherwise of the notice of objection, but it was relevant in relation to deciding whether or not to order the withdrawal of the notice. Some of that evidence was also relevant to whether, notwithstanding the existence of a right of administrative review, the Court should embark upon a consideration of the merits of the objection.

66    In other words, it was artificial to disentangle the evidence relating to the income assessments from the broader context relating to the requests for information that were made by the former trustees and by the respondents, and which formed the basis of the Notice of Objection. Ms McEwan did not ultimately press for her objections to be dealt with in advance of the evidence being given by the respondents’ witnesses. She unsuccessfully raised objections on similar grounds during her cross-examination. It is inevitable that her objections to the respondents’ affidavit evidence would not have been upheld by the primary judge. The fact that those objections were not determined at the outset of the hearing or before the respondents opened their case did not deny Ms McEwan an opportunity to test the evidence on which the respondents relied, and did not otherwise give rise to any denial of procedural fairness.

F.1.2    Cross-examination of respondents’ solicitor

67    The respondents relied on an affidavit of Mr Giuseppe (Joe) Domenico Giacco, a principal at the firm of solicitors acting for the respondents, sworn on 19 July 2024. The affidavit exhibited a bundle of documents comprising correspondence between the Official Trustee, Ms McEwan, and the respondents’ solicitors between 26 March 2024 and 19 July 2024.

68    The cross-examination of Mr Giacco commenced at 11.57 am on the second day of the hearing, 11 February 2025. It was brought to an end by the primary judge at 12.08 pm, after Ms McEwan had asked a series of questions directed to the instructions that had been received by Mr Giacco from his client, the Official Trustee. The primary judge challenged Ms McEwan on the relevance of that line of questioning, stating “what on Earth have these questions to do with [the] issues in the case?” His Honour continued:

HIS HONOUR: Mr Giacco has just said, on the instructions of various people - - -

MS McEWAN: Okay.

HIS HONOUR: - - - he provided you with particular documents.

MS McEWAN: That’s fine.

HIS HONOUR: I’m just not going to permit this, unless it’s of some possible usefulness, either in a case you want to make, or otherwise.

MS McEWAN: Yes, your Honour.

HIS HONOUR: But it has got to relate to an issue in the case.

MS McEWAN: I understand.

69    Ms McEwan nevertheless persisted with such questions, asking Mr Giacco (for example): “at the time of being instructed, what is it your understanding were the issues to be resolved in relation to the objection to discharge for outstanding information?”. The primary judge ruled that this was properly a matter for submissions by the Official Trustee, and not for Mr Giacco to give evidence from the witness box. Ms McEwan proceeded to put to Mr Giacco an email that she had sent to the Official Trustee, on which Mr Giacco had been copied, and asked Mr Giacco “what is your view of reading the email, what it says?”. After an objection from counsel for the respondents, the primary judge stated, “I’m just not going to permit this”, noting that the emails would “speak for themselves” and that Ms McEwan would be able to make submissions about them. Ms McEwan then suggested to Mr Giacco that she had sent “a lot of emails trying to resolve this matter”, and asked him to accept “that there has been a willingness on my part to try and resolve this issue”. After a further objection from counsel for the respondents, the primary judge terminated the cross-examination:

HIS HONOUR: Yes. You should stand down from witness box. I’m not permitting further cross-examination.

MS McEWAN: I’m just going to clarify - - -

HIS HONOUR: I am not permitting further cross-examination. This is an abuse of the process, in terms of cross-examination. It’s of no utility at all.

MR McMILLAN: Might Mr Giacco be excused, your Honour?

HIS HONOUR: Yes, he’s excused.

70    Ms McEwan now contends that she was denied procedural fairness by being prevented from cross-examining Mr Giacco. She relevantly submitted:

The transcript further records that the appellant had served notices requiring the respondents’ deponents to attend for cross-examination. The proposed cross-examination concerned matters directly relevant to the statutory foundation for the objection to discharge, including the trustee’s requests for information and the alleged non-compliance relied upon to support the objection. The refusal to permit that evidence to be tested deprived the appellant of a fair opportunity to challenge the respondents’ case on issues central to the determination of the appeal and the unreasonable conduct of the respondents in defending the request to withdraw the objection to discharge.

71    Ms McEwan maintained that Mr Giacco’s cross-examination was material to the issues raised in the case, as he “had access to the trustee’s records evidencing [her] responses and compliance”, and that the cross-examination “was capable of testing the very premise upon which the objection [to discharge] continued: the asserted existence of outstanding information and an ‘information deficit’.”

72    The respondents submitted that it was reasonable and open to the primary judge to bring the cross-examination of Mr Giacco to an end on the basis that it had no utility and was an abuse of process, following a “series of improper questions put to [him] about irrelevant issues (such as who provided his instructions to send certain correspondence) or seeking his opinion about the content of correspondence sent by him on instructions”. The respondents further submitted that Mr Giacco’s oral evidence had no relevance to the conduct of the former trustees or the validity of the Notice of Objection issued by the former trustees, particularly in the light of the concession by Ms McEwan that she had understood the basis of the request for information upon which the Notice of Objection was based.

73    While the ability to cross-examine witnesses is ordinarily an important incident of the judicial process, particularly in so far as it is directed to testing the credibility or reliability of adverse evidence, the conduct of any cross-examination is subject to control by the trial judge. Thus, “[a] trial judge has the discretionary power to regulate the manner in which evidence is given so as to ensure that the issues before the court are investigated not only fully, but fairly”: Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452 at 463 to 464 [26] (Chernov JA), referring to Mooney v James [1949] VLR 22 at 28 to 29 (Barry J); see generally Stack v Western Australia [2004] WASCA 300; (2004) 29 WAR 526 at 545 to 550 ([76] to [105]) (Steytler J). The Court’s control over the questioning of witnesses is explicitly recognised in the Evidence Act 1995 (Cth), including ss 26 and 29. In particular, s 41(1)(b) of the Evidence Act provides that the Court must disallow any question put to a witness in cross-examination that is “unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive”. More generally, the cross-examination of any witness is limited to evidence that is relevant in the sense that it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”: s 55(1) of the Evidence Act.

74    In our view, it was open to the primary judge to form the view that the cross-examination of Mr Giacco was directed to matters that had no relevance to any issues raised in the proceeding. When Ms McEwan stubbornly persisted in this line of questioning, including in relation to the instructions given to Mr Giacco and his views about matters raised in correspondence between Ms McEwan and the Official Trustee, it was clear that any further cross-examination had no possible utility and amounted to an abuse of process. This was well within the discretion of the primary judge to control the conduct of the hearing and the manner in which evidence was given, and did not deny a fair hearing to Ms McEwan or involve any procedural unfairness.

F.1.3    There was no denial of procedural fairness

75    It follows that Ms McEwan was not denied procedural fairness either in relation to the manner in which the primary judge dealt with her objections to the respondents’ affidavit evidence, or in relation to her cross-examination of Mr Giacco.

76    Further, as the respondents submitted, Ms McEwan did not address how any alleged procedural unfairness had affected the orders made by the primary judge, or deprived her of the possibility of a different outcome.

77    Grounds 1 and 2 must be rejected.

F.2    Validity of the Notice of Objection (Grounds 3 to 5 and 7 to 9)

78    By grounds 3 to 5 and 7 to 9, Ms McEwan contends that the primary judge erred in finding that the Notice of Objection was valid.

79    From those grounds and Ms McEwan’s submissions, the following themes emerge.

80    First, by ground 3 Ms McEwan contends that the primary judge failed to determine whether the former trustees “complied with the mandatory requirements of s 149B(2)(a) and (b)” of the Bankruptcy Act, in order to determine whether Notice of Objection was valid. This ground is premised on the contention that a trustee must satisfy s 149B(2) – i.e. hold each of the beliefs described in s 149B(2)(a) and (b) – before the trustee can file a notice of objection.

81    We disagree. As is plain from the text of s 149B(1), the trustee may file a notice of objection. That subsection does not prescribe any pre-conditions to the filing of such a notice. Nor are any such pre-conditions provided by s 149B(2). Rather, s 149B(2) provides that if the trustee has formed the beliefs described in s 149B(2)(a) and (b), then the trustee must file a notice of objection. As Rangiah J noted in Mango Boulevard Pty Ltd v Whitton [2015] FCA 1169; (2015) 242 FCR 331 at 361 [153], s 149B(2) “provides an exception to the requirement of s 149B(1) that the trustee exercise a discretion as to whether to object”, but “does not indicate how the discretion under s 149B(1) is to be exercised in other circumstances”.

82    The statutory context supports this construction and tells against the construction propounded by Ms McEwan. In particular that context requires a trustee, by s 149C of the Bankruptcy Act, to set out the ground or each of the grounds of objection, being a ground or grounds of objection set out in s 149D(1) of the Bankruptcy Act.

83    The construction advanced by Ms McEwan would limit the available grounds of objection to the sub-set of those which concern the failure of a bankrupt to discharge a duty because on that construction the trustee must, prior to filing a notice of objection, believe that: (1) filing the notice of objection will help make the bankrupt discharge a duty that the bankrupt has not discharged; and (2) there is no other way for the trustee to induce the bankrupt to discharge any duties that the bankrupt has not discharged.

84    The formation of such beliefs is possible where the ground of objection is one of the grounds specified in s 149D(1) of the Bankruptcy Act that involves an undischarged duty on the part of the bankrupt. Examples include the grounds set out in s 149D(1)(d), (e), (f), (g) and (h).

85    However this is not the case with respect to a number of grounds set out in s 149D(1) that do not concern the performance of a duty on the part of the bankrupt. Taking s 149D(1)(aa) as an example, if a trustee in bankruptcy wishes to object to the discharge of a bankruptcy on the basis that there is a transfer that is void against the trustee because of s 120 or s 122 of the Bankruptcy Act, how can the trustee form either of the beliefs set out in s 149B(2)? There are many other examples, including s 149D(1)(ab) which was discussed by Rangiah J in Mango Boulevard at 361 [154].

86    Thus, the construction propounded by Ms McEwan would produce the absurd result that trustees in bankruptcy would be unable to file a notice of objection with respect to many of the grounds of objection specified in s 149D(1). This cannot have been the legislature’s intention.

87    A construction that gives full effect to s 149D is to be preferred.

88    In summary:

(1)    a trustee may file a notice of objection to the discharge of a bankrupt from bankruptcy (s 149B(1));

(2)    the notice must:

(a)    be in writing (s 149B(1));

(b)    be filed before the bankrupt is discharged from bankruptcy under s 149 (s 149B(1));

(c)    set out the ground or each of the grounds of objection, which ground or grounds must:

(i)    be included in the grounds set out in s 149D(1);

(ii)    not be a ground or grounds of a previous objection to the discharge that was cancelled (s 149C(1)(a));

(d)    refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of the grounds (s 149C(1)(b));

(e)    if the ground is not a ground specified in s 149D(1)(ab), (d), (da), (e), (f), (g), (h), (ha), (ia), (k) or (ma), state the reasons of the trustee for objecting to the discharge on the ground or grounds set out in the notice (s 149C(1)(c) and 149C(1A)); and

(3)    the trustee must file a notice of objection to the discharge of a bankrupt from bankruptcy if the trustee believes that filing the notice of objection will help make the bankrupt discharge a duty that the bankrupt has not discharged; and that there is no other way for the trustee to induce the bankrupt to discharge any duties that the bankrupt has not discharged (s 149B(2)(a) and (b)).

89    Further, where a trustee exercises the discretion under s 149B(1) so as to file a notice of objection, this must be directed to the achievement of a purpose of the law of bankruptcy: Inspector-General in Bankruptcy v Nelson (1998) 86 FCR 67 at 78 (Wilcox, Lindgren and R D Nicholson JJ).

90    In support of her contended construction, Ms McEwan relied upon the decision of Weinberg J in Wharton v Official Receiver in Bankruptcy [2001] FCA 96; (2001) 107 FCR 28 where his Honour stated at 41 [77]:

� i -

Section 149A is an important provision. It provides a strong incentive to bankrupts to cooperate with their trustees during the administration of their estates. In some circumstances, an incentive of that type is plainly necessary. However, unless the section is construed in a sensible manner, it is capable of operating oppressively. It is reasonable to assume that trustees who make requests for information from bankrupts, including those concerning their income, will make due allowance for what might be regarded as the ordinary exigencies of life. Requests for information are often not met in as timely a manner as they ought to be. Some delays may be regarded as excusable while others will properly give rise to the filing of notices of objection. A bankrupt cannot ignore requests from his or her trustee. A particularly lengthy delay in responding to a request may trigger a notice of objection to discharge which is entirely justifiable. A relatively short delay in answering a request may be a different matter. Section 149D(1)(d) must be construed in the light of the requirement in s l49B(2)(b) that the trustee must believe that the filing of a notice of objection is the only way to induce the bankrupt to discharge his duties under the Act. It is plainly a course of last resort.

(bold emphasis added)

91    To the extent that the observations made by Weinberg J in Wharton might be considered to be consistent with the construction advanced by Ms McEwan, we respectfully disagree with such a construction, for the reasons set out above. We note also that Wharton did not involve consideration of the proper construction of s 149B of the Bankruptcy Act, and that the views expressed by his Honour were obiter dicta.

92    The second theme is Ms McEwan’s contention, by grounds 4 and 7 to 9, that the primary judge erred in applying Prentice v Wood and that he should instead have determined the statutory question whether s 149D(1)(d) and (e) were satisfied.

93    We do not accept this contention. Prentice v Wood is plainly correct in its conclusion that the validity of a notice of objection is to be determined by reference to whether it satisfies ss 149B to 149D. Relevantly, as noted above, the notice of objection must:

(1)    set out the ground or each of the grounds of objection, which ground or grounds must:

(i)    be included in the grounds set out in s 149D(1);

(ii)    not be a ground or grounds of a previous objection to the discharge that was cancelled (s 149C(1)(a)); and

(2)    refer to the evidence or other material that, in the opinion of the trustee, establishes that ground or each of the grounds (s 149C(1)(b)).

94    This does not leave a bankrupt without remedy in a case in which the ground set out in a notice of objection to discharge is false. The bankrupt may, inter alia, seek review from the Inspector-General of Bankruptcy and subsequently the Administrative Review Tribunal. Review may also be available under s 30 of the Bankruptcy Act or s 90-15 of the IPS.

95    The third theme is Ms McEwan’s contention, by ground 5, that the Notice of Objection was invalid because the former trustees were in a position of conflict at the time the notice was filed.

96    We do not accept this contention. Ms McEwan has not established its starting premise, namely that the former trustees had a conflict of duty and interests at the time they filed the Notice of Objection.

97    The evidence does not establish such a conflict, only that Ms McEwan asserted a conflict and that the Official Trustee replaced the former trustees as the trustee of Ms McEwan’s bankrupt estate. This does not establish that there was in fact a conflict, much less the nature of the asserted conflict. Whilst it may be accepted that the former trustees owed a duty to act in the best interests of Ms McEwan’s bankrupt estate, we were not directed to any evidence as to the interests of the former trustees that might form the basis of the contended conflict.

98    Grounds 3 to 5 and 7 to 9 must be rejected.

F.3    Refusal to order the withdrawal of the Notice of Objection (Grounds 6, 10 and 11)

99    Grounds 6, 10 and 11 concern the primary judge’s refusal to order the withdrawal of the Notice of Objection. These grounds and Ms McEwan’s submissions in support thereof have the following central themes.

100    The first is Ms McEwan’s contention, by ground 6, that the primary judge erred in declining to undertake a review under s 30 of the Bankruptcy Act on the basis that an alternative administrative remedy was available to her.

101    This contention fails at the outset. The primary judge noted that it was open to him to decline to undertake a review when the Bankruptcy Act provides other remedies, but he then went on to undertake such a review. It may be accepted that his Honour did so under s 90-15 of the IPS rather than s 30 of the Bankruptcy Act, but that exercise of choice by his Honour is not material and does not bespeak error.

102    The second theme concerns Ms McEwan’s contention, by ground 10, that there was no statutory purpose justifying the prolongation of the bankruptcy as at the date of the hearing.

103    We cannot accept that contention. The plain purpose is the identification of income received by Ms McEwan as a bankrupt. Such a purpose is a purpose consistent with the Bankruptcy Act, which, inter alia, provides trustees in bankruptcy with powers to require a bankrupt to disclose information that may be probative of the bankrupt’s income: see, e.g., s 77 of the Bankruptcy Act. The achievement of that purpose as at the date of the Notice of Objection, and as at the date of the hearing, had been stymied by Ms McEwan’s failure to comply with requests for information relevant to the identification of her income.

104    Although the primary judge did not identify, in terms, that a particular statutory purpose was served by the prolongation of Ms McEwan’s bankruptcy, it is clear from his Honour’s analysis that his Honour had in mind the purpose of the identification of income received by Ms McEwan as a bankrupt.

105    As part of this theme, Ms McEwan contended, by ground 10, that the evidence had established that after six years of bankruptcy, the administration of her bankrupt estate had produced no financial returns to creditors and that no realistic prospect of any further benefit to creditors was identified.

106    This submission does not support Ms McEwan’s contention that the prolongation of the bankruptcy served no statutory purpose. The statutory purpose identified above of identification of the income of Ms McEwan continued, and it is no answer to say that no financial returns to creditors have been identified, particularly when Ms McEwan had not provided the information that the trustees had sought.

107    The final theme is Ms McEwan’s related contention, by ground 11, that the evidence established that she had complied with the trustee’s requests for information and that the primary judge erred in failing to consider this evidence.

108    It is plain from the transcript of the hearing that the primary judge did consider the evidence of the correspondence concerning the trustees’ requests for information. Further, at J[23], the primary judge stated:

To this day, Ms McEwan has not given to either her former trustees or the Official Trustee a meaningful response to that part of the request for information which seeks the information identified in the notice of objection in paragraph 2(a)(vii). That is so, notwithstanding extensive exchanges which have occurred as between either former trustees, or, as the case may be, officers of the Official Trustee, and her since 28 October 2021...

109    His Honour did not set out details of the “extensive exchanges” which occurred between Ms McEwan and her trustees between 28 October 2021 and the hearing in February 2025, save to the extent that his Honour referred to the Notice of Objection, the correspondence dated 10 and 13 June 2022 and the provision of further bank statements by Ms McEwan on 30 June 2024.

110    In submissions, the Court was taken, or referred, to various items of correspondence. That correspondence, including that described at [9], [11], [13], [14] and [16] above, supports the conclusion reached by the primary judge that, as at the time of the delivery of his Honour’s ex tempore reasons, Ms McEwan had not provided a meaningful response to the trustees’ request for the list of payments first made in the 28 October 2021 letter, referred to in the Notice of Objection and reiterated numerous times in subsequent correspondence.

111    As previously noted, the correspondence indicates that Ms McEwan asserted that she had complied with the requests for information and that Ms Tilke was satisfied that she had done so including because she had told Ms Tilke that she had not received payments from any related entities. The evidence does not establish such compliance by Ms McEwan.

112    As part of this contention, Ms McEwan submitted that Mr Ng, a senior case manager in the employ of the AFSA, gave evidence during cross-examination that the Official Trustee had received and accepted Ms McEwan’s 10 June 2022 income questionnaire, which disclosed nil income. That evidence does not go so far as to establish a concession by the Official Trustee that it had accepted that Ms McEwan had no income. In any event, it is clear from the contemporaneous correspondence that the Official Trustee continued to seek the list of payments for the purpose of determining Ms McEwan’s income.

113    Ms McEwan also relied upon the 13 June 2022 email in which the Official Trustee stated:

My letter asks for you to include a list of payments you have personally received from any of your related entities from 26 November 2020 to 25 November 2021. I included a number of entities as examples of entities that we have identified that you are related to, however as set out in my letter this is not intended to be an exhaustive list. I included those entities regardless of whether they are deregistered or not trading. If you have not received any payments from them as a result of them not trading and/or being deregistered, nothing further is required with respect to this particular request. Where you have received payments from any of your related entities, please provide me with a list of all payments.

114    Ms McEwan submitted that, by reason of this letter, she was no longer required to provide further information concerning the list of payments. We do not accept that this is a fair reading of the quoted paragraph. In any event, the Official Trustee’s position – that the list of payments was required – was made pellucid in the Official Trustee’s subsequent reiterations of the request for that list.

115    Grounds 6, 10 and 11 must be rejected.

F.4    Non-publication order (Ground 12)

116    Ms McEwan contends that the primary judge erred in law by publishing details of her “personal financial information” without determining whether such publication was “necessary” for the determination of the application or for the proper administration of justice, having regard to “the competing principles of open justice and [her] legitimate privacy interests”.

117    Ms McEwan’s central complaint arises from the inclusion in the primary judge’s reasons for judgment of information relating to her income assessments, banking transactions and other personal information, which was said to have “extended well beyond what was necessary to determine the issues before the Court”.

118    The primary judge explained that the evidence in relation to the income assessments and the endeavours to obtain information from Ms McEwan was relevant to the questions “whether or not to order the withdrawal of the notice”, or “whether the Court should embark on a consideration of the merits of the objection” (J[16] to [17]). Further, the primary judge regarded the 3 August 2021 letter from the former trustees to Ms McEwan as the “starting point” for a consideration of those questions (J[18]), and stated that the terms of that letter provided “a necessary foundation” for any consideration of the merits of the Notice of Objection or whether it should be ordered that the Notice of Objection be withdrawn (J[19]). Although that letter set out details of various payments received by Ms McEwan, including deposits into her bank accounts, the primary judge redacted the account numbers of those bank accounts (with one exception that was probably an oversight).

119    In so far as Ms McEwan argues that the publication of material in the reasons for judgment was not “necessary” for the determination of the proceeding or the proper administration of justice, she misconceives the operation of s 37AF and 37AG of the FCA Act. In order to obtain a suppression order or non-publication order in relation to the contents of the 3 August 2021 letter, or any other “personal financial information”, Ms McEwan was required to establish that such an order was “necessary” on one or more of the grounds set out in s 37AG(1), taking into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE).

120    Ms McEwan did not apply for a suppression order when the primary judge delivered ex tempore reasons, nor when the reasons for judgment were subsequently published. We do not accept that Ms McEwan’s failure promptly to raise the issue can be explained or justified on the basis that she was not given any notice that the “disputed material” to which she had (unsuccessfully) objected at the trial would be reproduced in the reasons for judgment. Further, as noted by Burley J when refusing the interlocutory application for a suppression order in the current appeal proceeding, the primary judge’s reasons for judgment have been available to the public on multiple internet platforms since they were first published in March 2025.

121    As the respondents submitted, the reproduction of the text of the 3 August 2021 letter in the reasons for judgment has no bearing on the correctness of the orders made by the primary judge. In so far as Ms McEwan seeks any suppression or non-publication orders to be made on the appeal in relation to the reasons for judgment below, we are not satisfied in the circumstances that any such orders are necessary to prevent prejudice to the proper administration of justice, nor for any other ground set out in s 37AG(1) of the FCA Act.

122    Ground 12 must be rejected.

F.5    Costs

123    The second further amended notice of appeal seeks an order setting aside the costs order made by the primary judge. No grounds of appeal addressed the primary judge’s exercise of the costs discretion. In circumstances where the appellant has not been successful with respect to any of her grounds of appeal, there is no basis for such an order.

G.    conclusion

124    For the foregoing reasons, the appeal must be dismissed. There is no reason why costs should not follow the event. We will make orders accordingly.

Associate:

Dated:    24 September 2026