FEDERAL COURT OF AUSTRALIA

Jones v Thomson [2017] FCA 125

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is refused and the application is dismissed.

2.    The applicant must pay the respondents’ costs as agreed or taxed.

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

REASONS FOR JUDGMENT

Application

1    The applicant, Mr Jones, seeks leave to appeal a judgment of the Federal Circuit Court of Australia (FCCA) delivered on 3 March 2016: see Jones v Thomson [2016] FCCA 687. The primary judge dismissed Mr Jones’ application for summary judgment and orders setting aside a notice issued pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) (s 139ZQ notice) and other relief.

2    The application for summary judgment was made on 28 November 2014. The basis of the application for summary judgment was the alleged non-compliance by Mr Porter and Mr Weston (the second and third respondents) (the trustees) with r 2.06(2) of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) (2006 Bankruptcy Rules) in respect of a substantive application filed by Mr Jones on 8 September 2014 (see [6] below). The substantive application was made on a “Form 2 – Application” as required by the 2006 Bankruptcy Rules. The alleged non-compliance with r 2.06(2) was the respondents’ failure to file a notice of appearance or grounds of opposition and supporting affidavit at least three days before 29 September 2014. That was the date specified by the FCCA’s Registry on the substantive application next to the words “Time and date for hearing” (see [6] below). At the hearing of the summary judgment application, Mr Jones also relied on alleged breaches of orders made by Registrar Segal on 1 December 2014 and by the primary judge on 20 November 2015 regarding filing of evidence relating to the application for summary judgment.

3    As the primary judge’s decision was interlocutory, the applicant requires leave to appeal to this Court: s 24(1A) Federal Court of Australia Act 1976 (Cth). For the reasons which follow, leave is refused.

Background

4    Mr Jones is a discharged bankrupt although his estate is not fully administered. The trustees were appointed as the trustees of his bankrupt estate. It appears that Mr Porter is now the sole trustee. The first respondent (Mr Thomson) is an officer of the Official Receiver.

5    The s 139ZQ notice had been issued to Mr Jones’ former de facto partner (Ms Hombsch) in relation to a property at Waterfall Way, Dorrigo. Mr Jones transferred that property to Ms Hombsch before his bankruptcy. Ms Hombsch complied with the s 139ZQ notice by executing a transfer of the property in favour of the trustees.

Substantive application

6    On 8 September 2014, Mr Jones filed the substantive application and an affidavit sworn by him in support of it in the FCCA. The substantive application was in the format of a “Form 2 – Application” set out in Schedule 1 of the 2006 Bankruptcy Rules (Form 2). Mr Jones completed a Form 2 as indicated in bold below:

[Name of Applicant(s)

Applicant[s] Richard Jones

[Name of Respondent(s)]

Respondent[s]    Fraser Thomson (for the Official Receiver)

Jason Porter (Trustee)

NOTICE TO RESPONDENT

[Complete this section if there is a respondent]

TO the respondents: [addresses inserted]

This application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

(a)    the application may be heard;

(b)    directions may be given for the further conduct of the proceeding;

(c)    any application for interim orders may be heard.

…

Before any attendance at Court you must file a notice of appearance in the Registry.

Time and date for hearing: [to be entered by Registry unless fixed by the Court] 10 am on 29 Sept 2014

Place [address of Court]     [stamped on form with the address of John Maddison Tower]

Date: 8/9/14             [seal of Court and signature]

______________________________________________________________ [signed, District Registrar/Deputy District Registrar/Authorised Officer] *Registrar/*Deputy District Registrar/*Authorised Officer

A.    FINAL ORDERS SOUGHT BY THE APPLICANT

On the grounds raised in the supporting affidavit or statement of claim,

1.    Set aside the 139ZQ Notice –Waterfall way, Dorrigo (Ss139ZS)

2.    That the Trustee breached the Privacy Act

3.    That the Trustee has a conflict of interest and should not be using Bamford Lawyers

4.    That the Trustee acted unlawfully and oppressively

5.    That the Trustee acted unlawfully in breach of S170(2) of the Bankruptcy Act

6.    That the Official Receiver acted unlawfully in failing to provide to the plaintiff (Applicant) a copy of the 139ZQ Notice (Ss139ZQ(5))

B    The applicant seeks the following Interim Orders

1.    That the Applicant be granted leave to appear by phone for Directions hearings

2.    That the Official Receiver serve on the Applicant within 14 days all of the evidence tendered by the Trustee on which he relies

7    Mr Jones claims, and it is not disputed, that the substantive application was served on the respondents on or about 14 September 2014.

8    On 29 September 2014, the substantive application came before Registrar Segal who made the following orders:

1.    Paul Gerard Weston be added as a Respondent (together with Jason Porter as First Respondents).

2.    The Applicant file and serve any further affidavit on which the Applicant intends to rely by 17 October 2014.

3.    The Applicant provide particulars of each of paragraphs 2 – 5 of his Application filed 8 September 2014 by 17 October 2014, including but not limited to relevant section of the Bankruptcy Act and grounds and facts by reference to his Affidavit(s) filed and served by 17 October 2014.

4.    After compliance with orders 2 and 3, the First Respondents have liberty to file a Motion for security of costs and/or summary dismissal of all or part the Application.

5.    Matter returnable for further directions only on 3 November 2014 at 10:00 am.

6.    The Applicant be granted leave to appear before the Registrar by phone for Directions hearings.

7.    Costs reserved.

9    On 28 October 2014, Mr Bamford filed a notice of appearance of the trustees. An interim application by the trustees for security for costs was also filed on that day.

10    On 3 November 2014, Registrar Segal made orders that the substantive application and the interim application filed on 28 October 2014 be adjourned until 10 am on 1 December 2014.

Application for summary judgment

11    On 28 November 2014, Mr Jones filed the application for summary judgment. The application was made under Division 8 and s 15 of the Federal Circuit Court of Australia Act 1999 (Cth), r 1.03 of the 2006 Bankruptcy Rules and rr 13.03 and 13.07 of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules). Mr Jones sought orders setting aside the s 139ZQ notice and other relief on the basis of an alleged failure by the respondents to comply with the 2006 Bankruptcy Rules (in particular r 2.06(2)) in relation to the substantive application.

12    In an affidavit in support of his application for summary judgment dated 28 November 2014, Mr Jones deposed that (as written):

…

3.    The First Respondents did not file and serve at least 3 days before the hearing on 29th September, 2014 any Notice of Appearance or Notice of Grounds of Opposition as required by the Federal Bankruptcy Court Rules and Federal Circuit Rules.

4.    The hearing of 29th September was adjourned until November, 3rd, 2014.

5.    The court record shows that First Respondents did not file any Notice of Appearance until 28th October, 2014, 3 days before the hearing was to be resumed. The Notice shows that the First Respondents are legally represented by Bamford Lawyers.

6.    As at the date of this deposition, the First Respondents have not filed nor served any Notice of Grounds of Opposition or supporting affidavit as required by the Federal Court Bankruptcy Rules (FCBR) 2.06 and alternately Federal Circuit Court Rules (FCCR) 29.07.

7.    The Applicant drew to the court’s attention at the resumed hearing on the 3rd November, 2014 that the First Respondents had not complied with the Rules (FCBR 2.06 and FCCR 29.07). The hearing was adjourned until December 1st, 2014 for further directions.

8.    The First Respondents in their covering letter of 29th October, 2014, enclosing an affidavit of Chris Bryett, undertook to serve additional affidavits in support of the interim application filed on October 28th, 2014 (Annexure 4RCJD 01). The court record as at the date of making this affidavit, shows that no further affidavits have been filed and none have been served.

9.    The court record does not show any Notice of Appearance or Submitting Appearance by the Second Respondent. At the hearing on September, 29th before the Registrar, Mr Bamford for the First Respondent, gave oral notice of submitting appearance by the Second Respondent and admitted he had not filed an appearance for the First Respondent.

10.    Mr Bamford stated at the hearing on 3rd November, 2014 “It would be a complete waste of money and time to come back twice” and he has appeared twice and most likely 3 times by the 1st December, 2014 without complying with the rules to file and serve a Notice of grounds of Opposition, wasting both the court’s time, my time and his client’s money.

13    Rule 13.03 of the FCCA Rules is a definition section. However, r 13.03B(2) of the FCCA Rules provides that if a respondent is in default, the Court may, among other things, give judgment or make any other order against the respondent. The primary judge determined the application for summary judgment on the basis that it was made under rr 13.03B(2).

Further litigation history

14    On 1 December 2014, Registrar Segal adjourned the substantive application and all “interim” applications until 11:30 am on 9 February 2015, directed the applicant on each interim application to file “any further evidence” in support by 19 December 2014 and directed the respondent on each interim application to file and serve “any evidence” by 30 January 2015. On 9 February 2015, Registrar Segal allocated the matter to the docket of a judge and listed it for directions before that judge at 2:15 pm on 30 March 2015. Registrar Segal noted that the immediate issue was the security for costs application.

15    Mr Jones’ application for summary judgment was summarily dismissed at the directions hearing on 30 March 2015: see Jones v Thomson [2015] FCCA 896. Following an appeal of that decision to this Court by Mr Jones, Katzmann J remitted the application back to the FCCA for decision according to law: see Jones (Bankrupt), in the matter Jones v Porter (Trustee) [2015] FCA 644. Following an application by Mr Jones, the judge in [2015] FCCA 896 recused himself, another judge felt unable to hear the application and transferred the matter to a third judge, and the third judge recused himself since he knew Mr Bamford. The matter eventually came before the primary judge for directions on 20 November 2015.

16    At the directions hearing on 20 November 2015, the primary judge made timetabling orders for the trustees to file “any further evidence” in respect of their security for costs application by 18 December 2015 and “any evidence” in respect of the summary judgment application by 22 January 2016. The applications were set down for hearing on 3 March 2016.

17    On 3 March 2016, the primary judge heard both Mr Jones’ application for summary judgment and the trustees’ application for security for costs. The primary judge delivered ex tempore reasons on the application for summary judgment and it is that judgment which Mr Jones now seeks leave to appeal. For completeness, I note that the trustees’ application for security for costs was ultimately dismissed by the primary judge on 27 April 2016: see Jones v Thomson (No 2) [2016] FCCA 931.

Summary of the decision of the primary judge ([2016] FCCA 687)

18    The primary judge found (at J[2]) that in the proceedings before Registrar Segal on 29 September 2014:

... The applicant appeared by telephone, and the first respondents were represented by Mr Bamford. Mr Bamford gave evidence, which I accept, that he handed to the registrar on that day, a document entitled “Form 5 Bankruptcy Rules” dated 29 September 2014 and signed by him. I accept that because it was stamped on that day as having been filed in the Federal Circuit Court. Unfortunately, it was not, in fact, filed. It never made it onto the Court file and has not since been filed. Mr Bamford did not at that time serve the document upon Mr Jones, although Mr Jones now has a copy of it, as it was annexed to a copy of Mr Bamford’s affidavit in this application which was served on Mr Jones.

19    Having set out the terms of r 2.06(2) of the 2006 Bankruptcy Rules at J[3], the primary judge noted that r 13.03B(2) of the FCCA Rules provides (among other things) that if a respondent is in default, the Court may give judgment or make other orders. He commented that that “is not an order ordinarily made for simple breaches of the [FCCA] Rules or even of the timetable set for directions”. The primary judge noted that in Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159, after setting out the principles to be applied on such an application, Judge Lucev said that the exercise of the discretion is “not commonplace”: J[4]. The primary judge also noted that Mr Jones relied not only on an alleged failure to comply with r 2.06(2), but also on an alleged failure to comply with the timetabling orders made by Registrar Segal on 1 December 2014 and by the primary judge on 20 November 2015 with respect to filing evidence in respect of the summary judgment application: J[5].

20    The primary judge found (at J [6]) that the alleged non-compliance with r 2.06(2) did not occur because “that rule, properly understood, refers to the date fixed for final hearing of an application, rather than to the first Court date or, in fact, to any directions hearing in respect of an application, whether it be a substantive application or interim application”. In arriving at this conclusion the primary judge referred to rr 10.01 and 10.03 of the FCCA Rules: J[7]-[8]. The text of rr 10.01-10.03 is set out at [43] below.

21    The primary judge referred (at J[9]) to the decision of the Full Court of the Federal Court in Shrestha v Migration Review Tribunal (2015) 229 FCR 301; [2015] FCAFC 87 at [61], saying that in that case the Full Court had regard to the FCCA Rules, particularly rr 10.01 and 10.03, and noted that r 10.03 contemplated that the first court date will not be used finally to determine a proceeding. The primary judge went on to find, at J[10]-[11] (as written):

In my view, in those circumstances, what occurred on 29 September 2014 was not a date fixed for the hearing of the matter within the meaning of r.2.06(2) of the Bankruptcy Rules. That is so even though the application form itself suggests that the application may be heard or that directions may be given for further conduct of the hearing or that any application for interim orders may be heard. Those matters accurately reflect that there is a power in the Court to do any of those things, but no more.

The fact that there is a power does not suggest that the first Court date falls within the description of r.2.06 of the Bankruptcy Rules of the date fixed for the hearing. For those reasons, I find that the failure to file either a notice of appearance or a notice of opposition or affidavit three days prior to 29 September 2014 was not a failure to comply with the Rules, and so in that respect, the respondents were not in default.

22    In respect of Mr Jones’ contention that the trustees had been in breach of timetabling orders made by Registrar Segal on 1 December 2014 (see [14] above), the primary judge found that the reference to “further evidence” or “any evidence” in the those orders was “simply focused on giving a party liberty to do a certain matter within a particular time” and that a failure to file further evidence at all was not a failure to comply with the Registrar’s directions: J[12]-[13].

23    The primary judge found that the trustees were in breach of the orders he made on 20 November 2015, even though they were to the same effect as the orders made by Registrar Segal, because the trustees filed affidavits on or about 18 and 25 February 2016, which was “well outside” the time allowed: see [16] above. The primary judge next considered whether that delay would warrant the exercise of the discretion conferred by r 13.03B(2) of the FCCA Rules on the basis suggested by Mr Jones that there was “an intent to avoid the final determination of this matter in a timely and efficient manner”. The primary judge found that, although the failure to comply with directions is “ordinarily deplorable”, the “bulk of the delay” had been caused by the decision of the judge in [2015] FCCA 896 to dismiss the application for summary judgment in circumstances where that was not expected and the subsequent litigation history referred to at [15] above. The primary judge found that these were “matters outside the conduct of the matter by the respondents”: J[14]-[18].

24    Further, from all the material submitted by Mr Jones, the primary judge did not see that there had been nefarious conduct on the part of the solicitors for the trustees sufficient to warrant summary judgment: J[19].

25    Accordingly, the primary judge dismissed Mr Jones application for summary judgment: J[20].

Application for leave to appeal

26    On 17 March 2016, Mr Jones lodged an application for leave to appeal, a supporting affidavit sworn on 16 March 2016 and a proposed notice of appeal.

27    Mr Jones lists three grounds in his application for leave to appeal (as written):

1.    The order made to dismiss the Application in a Case, on the 3rd March, 2016 was an interlocutory order.

2.    Leave to appeal an interlocutory order is required by Rule 35

3.    There appears to be no authority for the Judge’s decision that the first court date is not the date referred to in the FCC Bankruptcy Rule 2.6(2).

Other applications

1.    The Applicant seeks leave to appear by phone at any directions hearing

2.    The Applicant consents to have the matter decided without oral hearing.

28    In his proposed notice of appeal, Mr Jones raises three grounds of appeal (as written):

1.    The judge erred in fact when he deemed the Form 5 had been filed in court by the Respondents

2.    The Judge erred in law, in determining that the hearing scheduled by the Registry for the 29th September, 2014, was not ‘the date fixed for hearing of the application’ as defined under the FCC Rules and the FCC Bankruptcy Rules.

3.    The Judge erred in not considering FCC Rule 4.03 as part of his determination.

29    In his affidavit in support of his application for leave, Mr Jones affirmed (as written):

1.    I am the Applicant and I make this affidavit based on the facts as I know them at the time.

2.    I am an unrepresented litigant, a disability pensioner with serious health issues, living some 600kms from the court and with limited means.

3.    I appeared in person, in the matter of Jones v Fraser Thomson & Anor on the 3rd March, 2016, where, as the Applicant I sought orders for default Judgment against the Respondents in breach of S2.06 of the FCC Bankruptcy Rules and alternatively FCC Rule 29.07 Which I now recognise was an outdated version of the Rules.

4.    At the hearing, Mr Bamford appeared for the Respondent Trustees, filed 2 affidavits in defence of my Application. His Honour Judge Smith had ordered that any evidence in defence be filed by 20th January, 2016. The Respondents filed and served no evidence by that date.

5.    To date, I do not have a copy of his Honour’s judgment and rely on notes taken at the hearing.

6.    I understand His Honour to have dismissed my application. I also understand that his Honour deemed the Form 5 “Notice of Grounds of Opposition” had been filed by the Respondent in court on the 29th September, 2014. Whereas the document identified as Form 5, bore the stamp of the Court, the Respondent’s solicitor, Mr Bamford, admits it was handed back to him for amendment and not filed in the court.

7.    Mr Bamford, in submissions to the FC Court in November, 2014, and December, 2014, denied he was required to file the documents required by FCCBR 2.06.

8.    Mr Bamford in submission to the Court of Appeal on 12th June, 2015 (RJ Affidavit 15/7/15,Para 11) stated in response to questions from Justice Katzmann, that he had filed the Form 5 as required by the Rules. Mr Bamford in a letter to the Registry in July, 2015 (RJG affidavit 15/7/15 par 1,2), represented that the registry had mislaid his Form 5, which he alleged to have filed on 29th September 2014 in court. Mr Bamford alleged, in his letter, in relation to filing of Grounds of Opposition “Whilst her honour has proceeded on the assumption that that is not occurred the Form 5 has been filed and has been mislaid within the Court System”. The record shows that no leave was ever granted to file the Form 5, nor any evidence, in court on that day.

9.    Her Honour, Justice Katzmann, in the court of Appeal (the) “Trustee had not filed a defence to Mr Jones 8th September, 2014 application” (par 8, RJG05-16) and at 22, “In circumstances where the trustees had not filed a response to Mr Jones’ originating application in accordance with the FCCR, however, one might think it obvious why Mr Jones was seeking default judgment.

10.    In November, 2014, during a directions hearing before Registrar Segal, I requested orders that the Respondents file and serve Grounds of Opposition and affidavit(s) in support, within 7 days. Registrar Segal denied the application on the grounds, in words to the effect, ‘the rules are quite clear’, which I reasonably understood to mean that such orders were not necessary because of the effect of R2.06 alternately, the FCC Rules (RJ Affidavit 15/7/15,Para 11).

11.    On the 3rd March, 2016, I understand His Honour to have determined that the hearing of the 29th September, 2014, was not ‘the date fixed for the hearing of the application’ and therefore the Respondents(s) were not in breach of Rule 2.06. It would appear that no consideration was given to the alternate requirement for defence to be filed within 14 days of the application (or further particulars) being filed (FCCA Rule 4.03 and 4.05) as I submitted on 17th February, 2016.

30    Following receipt of substantial written submissions from the parties concerning whether leave should be granted, it became apparent that it would be convenient for the application for leave and the appeal to be heard together and it would be necessary for an application/appeal book to be prepared. This was done with the assistance of a registrar. The Chief Justice of this Court has made a determination that for the purposes of s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) that the appellate jurisdiction of the Court be exercised by a single judge of this Court. The parties consented to the application for leave and any appeal being determined on the papers.

Principles relevant to the grant of leave to appeal

31    The principles relevant to exercise of the discretion to grant leave to appeal are those adopted by the Full Court of this Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCAFC 844 at 398-400; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [26]-[30] and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43]-[44] per French J (as he then was).

32    In summary, the first consideration is whether, in all of the circumstances of the case, the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal; and second, whether substantial injustice would result if leave were to be refused, supposing the decision to be wrong. These two matters should not be treated as being in separate compartments; they bear upon each other so that the degree of doubt sufficient to warrant leave may differ between cases. Where the decision under review concerns issues of practice and procedure (such as the mechanics of the pre-trial process), the scales weigh against leave being granted. However, where the practical effect of refusing leave is that rights of the parties are finally determined, prima facie leave to appeal should be granted.

33    Mr Jones accepts that these are the governing principles.

Is there sufficient doubt as to the correctness of the primary judge’s decision?

34    Mr Jones acknowledges that the principles that apply to an appeal from a discretionary decision of a judge are those set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. He submits that the primary judge made errors both of fact and law which cast sufficient doubt on the decision so as to support the grant of leave to appeal and support the primary judge’s decision being reversed on appeal.

Whether the respondents failed to comply with r 2.06

35    The issue which prompted Mr Jones’ application for summary judgement was his claim that the trustees failed to comply with r 2.06(2) of the 2006 Bankruptcy Rules. No authority bearing on the construction of r 2.06(2) was drawn to the attention of the primary judge or referred to in the submissions to this Court. The lack of authority is a ground of Mr Jones application for leave to appeal.

36    The mere lack or prior authority on a point of law determined by a primary judge does not, of itself, warrant the grant of leave. This is particularly so where, as in this case, I am not satisfied that substantial injustice would result, assuming the primary judge’s decision to be wrong: see [81]-[82] below.

37    However, the second ground of Mr Jones’ proposed grounds of appeal is that the primary judge erred in law in determining that the dated fixed by the FCCA Registry and set out on the “Form 2 – Application” filed by Mr Jones (29 September 2014) was not “the date fixed for hearing of the application” as defined under the FCCA Rules and the “Bankruptcy Rules”. It is therefore necessary to consider whether that ground casts sufficient doubt as to the correctness of the primary judge’s decision to warrant reconsideration on appeal.

38    Mr Jones submitted that there is no basis for the primary judge’s finding at J[6] that “properly understood”, the words “the date fixed for the hearing of the application” in r 2.06(2) refers to the date fixed for the final hearing of the application. Mr Jones says that the usual meaning of those words and the intent of the legislation supports his contention that the respondents have failed to comply with r 2.06 because no grounds of opposition were filed at least three days before 29 September 2014. He also says that there is no basis for the primary judge’s reliance on rr 10.01 and 10.03 of the FCCA Rules in forming his view.

Legislative background

39    At this point it is useful to recall that when Mr Jones made his substantive application and when his application for summary judgment was made, heard and dismissed by the primary judge, rr 1.03 and 2.06 of the 2006 Bankruptcy Rules provided:

1.03    Application of these Rules and other rules of the Court

(1)    These Rules apply to a proceeding to which the Bankruptcy Act applies.

(2)    The other rules of the Court apply, so far as they are not inconsistent with these Rules, to a proceeding to which the Bankruptcy Act applies.

…

2.06    Opposition to application, interim application or petition

(1)    In this rule:

application includes an interim application

(2)    A person who intends to oppose an application or petition must, at least 3 days before the date fixed for the hearing of the application or petition or, or with the leave of the Court, at the hearing:

(a)    file a notice of appearance in accordance with Form 4; and

(b)    file a notice in accordance with Form 5 stating the grounds of opposition; and

(c)    file an affidavit in support of the grounds of opposition; and

(d)    serve the notices and supporting affidavit on the applicant.

40    The format of Form 2 was prescribed in Schedule 1 of the 2006 Bankruptcy Rules.

41    In many of his submissions, Mr Jones referred to the “Bankruptcy Rules” without making a distinction between the 2006 Bankruptcy Rules and the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (2016 Bankruptcy Rules) which came into force on 1 April 2016. In a number of his submissions, Mr Jones used the language of the 2016 Bankruptcy Rules to make submissions concerning the interpretation of the 2006 Rules. While r 2.06 has not been amended in material way in the 2016 Bankruptcy Rules, r 1.03 of the 2006 Bankruptcy Rules has been superseded by r 1.04 of the 2016 Bankruptcy Rules which provides (emphasis added):

1.04    Application of these Rules and other Rules of the Court

(1)    Unless the Court otherwise orders, these Rules apply to a proceeding in the Court to which the Bankruptcy Act applies.

(2)    The other Rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules, to a proceeding in the Court to which the Bankruptcy Act applies.

42    Some of Mr Jones’ submissions also refer to rr 2.04, 2.05 and 5.01 of the “Bankruptcy Rules” as contextual arguments concerning the meaning of the phrase “the date fixed for the hearing of the application” in r 2.06 as neither the “Bankruptcy Rules” nor the FCCA Rules contain definitions of the terms employed in that phrase. He says the meaning of the term “hearing” can be taken from the context of rr 2.04-2.06: see [46] below. However, the word “hearing” does not appear in r 2.04 of the 2006 Bankruptcy Rules; that rule relates to leave to be heard in a “proceeding”. I infer that Mr Jones is referring to the 2016 Bankruptcy Rules, as the text of r 2.05 of the 2006 Bankruptcy Rules is distributed between rr 2.04 and 2.05 of the 2016 Bankruptcy Rules. As the primary judge’s decision was made under the 2006 Bankruptcy Rules and any validity of Mr Jones’ arguments will be equally relevant based on r 2.05 of the 2006 Bankruptcy Rules, I will consider his argument as though he referred to those Rules. It is useful to set out rr 2.05 and 5.01 of the 2006 Bankruptcy Rules, which provide as follows:

2.05    Appearance at application or examination

(1)    A person who intends to appear at the hearing of an application or petition, or take part in an examination, must file a notice of appearance in accordance with Form 4.

(2)    Rule 10.02 of the Federal Circuit Court Rules 2001 (adjournment of first court date) does not apply to the hearing date fixed for a creditor’s petition.

…

5.01    Referral of debtor’s petition

(1)    A referral to the Court by the Official Receiver of a debtor’s petition, for a direction to accept or reject the petition, must be in accordance with Form 8.

Note:    For the circumstances in which the Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject the petition, see subsection 55(3B), section 56C and subsection 57(3B) of the Bankruptcy Act.

(2)    On receiving a referral, the Registrar must fix a time, date and place for the hearing of the referral.

(3)    At least 3 days before the date fixed for the hearing, the Official Receiver must serve a sealed copy of the referral, and notice of the time, date and place fixed for the hearing, on:

(a)    each debtor who presented the petition; and

(b)    each debtor listed in any relevant creditor’s petition; and

(c)    each creditor listed in the petition; and

(d)    if subsection 56C(4) of the Bankruptcy Act applies, the person administering the relevant proclaimed law.

(4)    The notice required by subrule (3) must be in accordance with the notice set out in Form 8.

43    The primary judge found that rr 10.01 and 10.03 of the FCCA Rules were relevant to determining the meaning of “the date fixed for the hearing of the application” in r 2.06 of the 2006 Bankruptcy Rules. As r 10.02 is relevant to the interpretation of r 2.05(2) of the 2006 Bankruptcy Rules, the text of rr 10.01-10.03 is set out below:

Part 10 – How to conduct proceedings

Division 10.1 – First court date

10.01    Directions and Orders

(1)    At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.

(2)    Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.

(3)    The Court or a Registrar may make orders or directions in relation to the following:

(a)    the manner and sufficiency of service;

(b)    the amendment of documents;

(c)    defining of issues;

(d)    the filing of affidavits;

(e)    cross–claims;

(f)    the joinder of parties;

(g)    primary dispute resolution;

(h)    the admissibility of affidavits;

(i)    discovery and inspection of documents;

(j)    interrogatories;

(k)    inspections of real or personal property;

(l)    admissions of fact or of documents;

(m)    the giving of particulars;

(n)    the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);

(o)    expert evidence and court experts;

(p)    transfer of proceedings;

(q)    costs;

(r)    hearing date;

(s)    any other matter that the Court or Registrar considers appropriate.

10.02    Adjournment of first court date

(1)    If the parties agree that, because of short service or other special circumstances, it is not appropriate to proceed on the date fixed the parties may ask a Registrar in writing to adjourn the first court date to another date.

(2)    The Registrar may adjourn the first court date to the date requested by the parties or to another date that is practicable.

10.03    Fixing date for final hearing

At the first court date the Court or a Registrar may:

(a)    fix a date for final hearing; or

(b)    direct the parties to arrange with the Registrar a date for final hearing; or

(c)    fix a date after which either party may request a date for final hearing; or

(d)    remove the matter from the list.

Mr Jones’ submissions on the meaning of words used in r 2.06(2)

44    Mr Jones made many and detailed submissions in relation to the meaning of the words used in r 2.06(2). This summary captures the thrust of those submissions.

45    Mr Jones’ submits that the words “hearing” and “date fixed for the hearing of the application” are not defined in the Bankruptcy Act, the 2006 Bankruptcy Rules, the FCCA Rules or the Acts Interpretation Act 1901 (Cth). In those circumstances, courts generally assume that the words of a statute mean what an “ordinary” or “reasonable” person would understand them to mean. On that basis, he says that “date” means “the time and date set by the registry”. As “hearing” is not modified by a word such as “preliminary”, “final”, “directions” or “interlocutory”, it should take its ordinary meaning of “any proceeding before a judge magistrate or court officer”. Generally, whenever a case comes before a court it is a “hearing”. “Application” means “the statement of claim or issues filed with the registry, sealed and served on the parties”.

46    Further, where there is no specific definition of those terms, Mr Jones says that r 2.06 should be understood in its context. It is significant that r 2.06 deals with both “applications” and “petitions”. With apparent reference to the provisions which appear in r 2.05 of the 2006 Bankruptcy Rules (see [42] above), Mr Jones says that:

    r 2.05(1) uses the term intends to appear “at the hearing”;

    r 2.05(2) deals with an exception for creditors’ petitions and refers to “the hearing date”;

    r 2.06 which follows refers to “the date fixed for the hearing”; and

    each use of the word (which I infer to be “hearing”) should be given a consistent meaning.

47    Second, as I understand Mr Jones’ argument, Mr Jones says that the Bankruptcy Rules have priority over the FCCA Rules in a matter under the Bankruptcy Act. Mr Jones notes that s 81(2) of the Federal Circuit Court of Australia Act provides that “Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters”. Mr Jones submitted that the overriding purpose of the “Bankruptcy Rules” is defined in r 1.03 (set out at [39] above) and relies on the language of r 1.04 of the 2016 Bankruptcy Rules (set out at [41] above). He notes that the preamble to the Explanatory Statement (which relates to the 2016 Bankruptcy Rules) states that:

With effect from 6 February 2006 the Judges of the Federal Circuit Court made the Federal Circuit Court (Bankruptcy) Rules 2006 (existing Bankruptcy Rules) in relation to the practice and procedure to be followed in proceedings in the Federal Circuit Court under the Bankruptcy Act (emphasis in submission).

Mr Jones also relies on the Explanatory Statement with respect to r 1.04 of the 2016 Rules:

Rule 1.04 provides that these Rules apply to a proceeding in the Court to which the Bankruptcy Act applies; and, in addition, that the other rules of the Court apply to a proceeding in the Court under the Bankruptcy Act but only to the extent that they are relevant and not inconsistent with these Rules. Rule 1.04(1) has been amended to include the words “unless the Court otherwise orders” to accord with the comparable Federal Court rule (emphasis in submission).

48    Mr Jones submits that r 1.03(2) permits recourse to the FCCA Rules only “to the extent that they are relevant and not inconsistent with” the “Bankruptcy Rules” (emphasis in Mr Jones’ submissions); that is, the FCCA rule must be both “relevant” and “not inconsistent” with the Bankruptcy Rules.

49    Mr Jones says rr 10.01 and 10.03 of the FCCA Rules, on which the primary judge relied, are not relevant to proceedings under the Bankruptcy Act, the conduct of which is clearly defined by the Bankruptcy Rules. He notes that r 2.06 of the Bankruptcy Rules is in the same form as the provision dealing with the same subject matter in the Federal Court’s Bankruptcy Rules but there is no equivalent of rr 10.01 and 10.03 of the FCCA Rules in the Federal Court Rules 2011 (Cth). The FCCA Rules permit recourse to the Federal Court’s Rules where further guidance is required: see r 1.05(2).

50    Further, Mr Jones says that the primary judge’s reference to Shrestha v Migration Review Tribunal and his reliance on rr 10.01 and 10.3 of the FCCA Rules in aid of his decision was misconceived because:

(1)    Rule 2.06(2) is directed to respondents and the operative word is “must”. If a respondent wants to oppose an application, the rule imposes an obligation on the respondent to comply with each of r 2.06(2)(a)-(d) at least three days before the date fixed by Registry in the “Notice to Respondent” on Form 2, unless the Court gives the respondent leave to file those documents in Court “at the hearing”. Each of r 2.06(a)-(c) concludes with “and”; there is nothing which implies that any of the subparagraphs of that rule is separable. In contrast, rr 10.01 and 10.03 are not mandatory and they are directed towards the powers of the FCCA and registrars. While the “Notice to Respondent” on Form 2 advises parties of the options open to the Court, the powers of the Court under rr 10.01 and 10.03 do not alter the obligations of respondents. The fact that a court has powers does not mean that the powers must be exercised.

(2)    Rule 10.01(1) the FCCA Rules is not “relevant” because r 2.06 clearly defines the conduct of the respondents, which must occur before (or at) the hearing date endorsed on the Form 2 by Registry. Rule 2.06 makes no distinction between “first court date” and “final hearing” and “date fixed for the hearing of the application”. Rule 10.01(2) permits the final determination of the application on the date for the first court hearing fixed by Registry and by any definition that is a “hearing”.

(3)    Shrestha v Migration Review Tribunal was a decision concerning the Migration Act 1958 (Cth). FCCA Rules dealing with the Migration Act (particularly, rr 44.11 and 44.12) make specific references to “first court date” and “final hearing” but no similar distinction is made in the Bankruptcy Rules.

(4)    If the primary judge’s interpretation of r 2.06 is right, then the nature of the date set out in the “Notice to Respondent” can only be determined on that day, which would be after the date for compliance with r 2.06 has passed. That cannot be the intention of the Bankruptcy Rules.

51    Mr Jones submits that the FCCA Rules made for specific types of proceedings (for example, migration or family law matters) reflect the proper management of those different types of proceedings consistent with the “just, efficient and economical” resolution of proceedings of that kind. Rule 2.06 only applies in proceedings under the Bankruptcy Act and it is significant that it refers to both “applications” and “petitions” in its terms. The Bankruptcy Act and Rules clearly indicate that time for compliance is of the essence and the Rules are usually strictly enforced by the courts. Rule 5.01 (see [42] above) relates to how the Court must deal with the referral of a debtor’s petition by the Official Receiver. Rule 5.01(3) is in the same terms as r 2.06 insofar as it uses the phrasing “at least 3 days before the date fixed for the hearing”. It cannot be contemplated that the hearing of a petition is any different to an application or petition under r 2.06.

52    Mr Jones says that the intention of r 2.06 is clear: that the applicant and the Court proceed in the knowledge of whether there is a defence and what course must then be taken, avoiding the waste of time which has occurred in this case. It sensibly pre-empts the need for directions which would inevitably have to be made along the lines contemplated in that rule where someone intends to oppose an application. There is no suggestion in r 2.06 that the application must be determined at the “date fixed for the hearing”, only that the notice of appearance, grounds of opposition and supporting affidavit be filed and served at least three days before that date fixed for hearing. Paragraphs (a)-(d) of r 2.06(2) which set out those requirements are “inseparable” and “surely” the Court’s insistence that a notice of appearance be filed reinforces the view that the rules do not contemplate that the proceeding would continue beyond the first court date without it being filed. He says that common sense dictates that unless a respondent offers some defence or objection to an application in terms of r 2.06, the Court should not spend its limited time on an uncontested matter.

53    Mr Jones contends that the primary judge’s interpretation of r 2.06 allows for protracted litigation by permitting delay in filing a notice of appearance and grounds of opposition. If the notice of appearance and grounds of opposition must be filed only three days before the “final hearing”, then the applicant may be “ambushed” by the grounds of opposition. This would provide endorsement to “ambush” litigation and does not promote the “just efficient and economical” resolution of proceedings. That is not a practical or common-sense reading of the rule. In order to afford procedural fairness to the applicant, particularly a self-represented one, the hearing would need to be adjourned.

54    Mr Jones submits that Mr Bamford’s conduct on 29 September 2014 “clearly indicate[s]” that Mr Bamford was aware of the requirements of r 2.06. He submits that, after reading Katzmann J’s reasons ([2015] FCA 644), Mr Bamford sent a letter to the FCCA Registry which said that a “Form 5 – Notice stating grounds of opposition” was filed but mislaid within the Court system. Mr Bamford now acknowledges that the Form 5 was returned to him before the end of the proceedings before Registrar Segal on that day, albeit that it had a Court stamp on it. Mr Jones says that all of Mr Bamford, Registrar Segal, the Judge who decided [2015] FCCA 896 and Katzmann J acknowledged or acted upon the understanding that r 2.06 refers to the first court date set down by the Registry, that is, 29 September 2014. Mr Jones relies in particular on the comments made by Katzmann J in [2015] FCA 644 at [8] and [22] (as written by Mr Jones):

…As the trustees had not filed a defence to Mr Jones’ 8 September 2014 application (called a response under the FCCR and grounds of opposition in the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth)), on 28 November 2014 Mr Jones filed his application for default judgment.

…

…In circumstances where the trustees had not filed a response to Mr Jones’ originating application in accordance with the FCCR, however, one might think it obvious why Mr Jones was seeking default judgment.

Trustees’ submissions

55    The trustees submit that leave to appeal ought not be granted because the primary judge’s construction of r 2.06 is correct and his exercise of discretion does not contain an error in law.

56    The trustees contend that the terms of Registrar Segal’s order on 29 September 2014 (see [8] above) make apparent that the purpose of that hearing was to “regularise the parties to the proceedings and for the Respondents to be adequately informed of the scope and evidentiary basis” of Mr Jones’ application to have the s139ZQ notice set aside. This would allow the trustees to be in a position to determine whether it was appropriate to make an application for security for costs. Accordingly, the hearing on 29 September 2014 could not be characterised as the “date fixed for the hearing” of Mr Jones’ application. The trustees note that Mr Jones did not press for the hearing of his application nor was he in a position to proceed with it. They note also that Registrar Segal did not allocate a hearing date, but rather that he set the matter down for further directions.

57    The trustees also submit that Mr Jones’ failed to satisfy the requirements in rr 13.07(b)(i) and (ii) of the FCCA Rules as he had not demonstrated that the trustees have no answer to his application to have the s 139ZQ Notice set aside or that the trustees had no reasonable prospect of successfully defending that application.

Consideration

58    I find that Mr Jones’ arguments as to the construction of r 2.06(2) do not demonstrate sufficient doubt about the correctness of the primary judge’s decision to warrant reconsideration on appeal.

59    Mr Jones relied on the Explanatory Statement to the 2016 Bankruptcy Rules and some of those Rules in support of his submissions as though they governed the primary judge’s decision on the summary judgment application. Even though comparison of the 2006 and 2016 Bankruptcy Rules can be instructive, it is the 2006 Bankruptcy Rules which are relevant. This is because Mr Jones’ application for summary judgment and the decision which is the subject of his application for leave to appeal were made under the 2006 Bankruptcy Rules.

60    Prior to 1 April 2006, the practice and procedure to be followed by the FCCA in proceedings under the Bankruptcy Act was that prescribed by the 2006 Bankruptcy Rules and the FCCA Rules to the extent that the FCCA Rules were not inconsistent with the 2006 Bankruptcy Rules: r 1.03 of the 2006 Bankruptcy Rules. The fact that r 1.04(2) of the 2016 Bankruptcy Rules uses the term “relevant” as well as “not inconsistent” does not impose a new requirement. There would be no purpose to be served by the FCCA following an irrelevant FCCA Rule in a proceeding under the Bankruptcy Act. I note that r 1.03(1) of the 2006 Bankruptcy Rules does not contain the express power set out in r 1.04(1) of the 2016 Bankruptcy Rules for the Court to make orders that those Rules do not apply to a proceeding under the Bankruptcy Act. To that extent, r 1.03(1) of the 2006 Bankruptcy Rules is more prescriptive.

61    It is uncontroversial that the term “hearing” may refer to any proceeding before a judge at which a party or parties are given an opportunity to be heard. However, I do not accept Mr Jones’ submission that the term “hearing” is unqualified in r 2.06(2) of the 2006 Bankruptcy Rules. The qualification appears in the phrase “hearing of the application”. That phrase generally imports the trial (or “final hearing”) of the substantive matter raised by an application, at which evidence of relevant factual matters is tendered, argument is heard as to the law and the application of the law to the facts (as found by the trial judge), resulting in a decision which quells a dispute between the parties.

62    Mr Jones’ argument that r 2.06(2) should be interpreted in the context of r 2.05 does not mandate the conclusion for which he contends. While the term “hearing” is used in both rr 2.05(1) and 2.06(2) of the 2006 Bankruptcy Rules; they equally accommodate the concept of the date fixed for the “final” hearing of the petition or application and in my view that is the more natural meaning.

63    Mr Jones’ reliance on r 2.05(2) both enhances and undermines his position. Contrary to Mr Jones’ submissions concerning rr 10.01 and 10.03 of the FCCA Rules, the fact that it was thought necessary to deal with the possible application of r 10.02 to a creditors’ petition in r 2.05(2) would indicate that the primary judge did not err in considering that rr 10.01 and 10.03 applied to applications under the Bankruptcy Act. For that reason, I do not consider that the primary judge erred in his reference to the Full Court’s decision in Shrestha v Migration Review Tribunal in support of his findings concerning the meaning of the phrase “hearing of the application”, even though the context of the Full Court’s decision was a migration matter. There is nothing expressly stated in r 2.06 which seeks to oust the application of rr 10.01-10.03 in relation to applications. The fact that the “first court date” or and “final hearing” are not mentioned in r 2.06 is irrelevant.

64    At first reading, there is some force to Mr Jones’ submission that the same meaning should be given to “hearing” in r 2.05(2) and r 2.06(2) because r 2.06(2) deals with both “applications” and “petitions” and r 2.05(2) is predicated on the “hearing date fixed for a creditor’s petition” being the “first court date”. However, I am not persuaded that this is correct.

65    There are very strong indicators that the 2006 Bankruptcy Rules envisage that petitions and applications will be dealt with differently. The regimes for dealing with creditors’ petitions are set out in r 2.05(2), Part 4 and Form 6 and the regime for debtor’s petitions is in Part 5 and Form 8. It is instructive to consider the difference in the regimes which apply to creditors’ petitions and applications.

66    The requirements of Form 6 are directed to a final hearing of the creditor’s petition at the first court date (without precluding the possibility of the hearing being adjourned). The “Notice to respondent” in Form 6 states that “This petition has been set down for hearing by the Court at the time, date and place stated below” (emphasis added) and goes on to advise that the petition may be dealt with in default of appearance and “a sequestration order making you bankrupt may be made”. Form 6 then states expressly what a debtor who wishes to appear at the hearing and oppose the petition must do by paraphrasing (among other things) paragraphs (a)-(d) of r 2.06(2). The reason for the way the 2006 Bankruptcy Rules deals with creditors’ petitions is obvious; since a sequestration order changes the status of the debtor to a bankrupt and affects the rights of creditors, creditors’ petitions must be dealt with promptly. The rules establish a streamlined process. The same can be said for the process for dealing with debtors’ petitions.

67    In contrast, there is no regime in the 2006 Bankruptcy Rules specific to “applications” save that they must be initiated on Form 2. Accordingly, Form 2 is the most relevant contextual aid to the interpretation of r 2.06 in relation to an application.

68    The “Notice to the respondent” in Form 2 states that: “This application has been set down for the time and place stated below”; it advises that judgment may be given or an order made in the respondent’s absence and that “[a]s soon after the time mentioned as the business of the Court will allow, any the following may happen” (emphasis added). Those things are: (a) the application may be heard; (b) directions may be given for the further conduct of the proceeding; (c) any application for interim orders may be heard.

69    In contrast to Form 6, Form 2 does not advise that the application is “set down for hearing by the Court”; it envisages that a number of possible courses may be followed at the first court hearing. It is consistent with this range of potential outcomes that there is also no statement in Form 2 paraphrasing the requirements of r 2.06(2), unlike Form 6.

70    Mr Jones says that his preferred interpretation of r 2.06(2) promotes the efficient and economical resolution of matters commenced by application. I do not accept that that is necessarily the case. One very good reason for treating matters commenced by an application differently from a petition is that applications may deal with a range of subject matters. Applications may properly require amendment and it may be necessary to craft a process for the further conduct of the proceedings having regard to the nature of the application and any evidence that might be necessary for the just resolution of the application. That is what r 10.01 of the FCCA Rules directs the Court or Registrar to do. Having said that, a respondent who wishes to oppose an application and does not comply with r 2.06(2) before the first court date runs the risk that the application would be heard and determined; Form 2 puts respondents on notice of that. Whether that occurred would depend on the nature of the application and whether or not the respondent appeared and satisfied the court or the registrar that some other course should be taken. Indeed, that is what happened in this case. Rules 10.01-10.03 of the FCCA Rules are not inconsistent with r 2.06 and recourse to the procedures set out in them for practice and procedure in relation to an application is what is envisaged by Form 2.

71    I accept Mr Jones’ submissions that a period of three days before the trial of an application in a proceeding under the Bankruptcy Act commenced by an application may provide insufficient opportunity for an applicant to address issues raised in a Form 5 – Notice stating grounds of opposition. However, the formulation of a Form 5 before the first court date may be futile if an application is inadequately framed; as was the case here. In this case, not all of the required respondents were named and greater particularity of the claim was required. To address the potential unfairness to applicants if they are given notice of grounds of opposition only three days before a final hearing, it is open to the FCCA to give directions to respondents at an appropriate time to disclose the proposed grounds of opposition or to adjourn the hearing to allow applicants time to respond.

72    Although Mr Jones has made much of the time that has now passed since he filed the substantive application, approximately two and a half months had passed from the time he filed his substantive application to the time he filed his application for summary judgment. Had the security for costs application and the application for summary judgment not been made, it is likely that the substantive application would have progressed more quickly. The primary judge was neither wrong in his assessment of what the essential reason was for the longer time taken to deal with the application for summary judgment nor his assessment that that was not caused by nefarious conduct by the trustees (see [23] above).

Did the primary judge err in fact when he deemed the Form 5 to have been filed in Court by the respondents?

73    This is the first of Mr Jones’ proposed grounds of appeal. This ground is misconceived.

74    The primary judge accepted Mr Bamford’s evidence that he had handed up a Form 5 at the hearing on 29 September 2014, but found that it was not in fact filed and had not been filed subsequently. Mr Jones appears to be offended by the primary judge’s use of the word “unfortunately”, inferring that the primary judge understood the failure to file the Form 5 to be an accident or misadventure. However, I do not accept that that is a proper inference from what the primary judge said. The factual error alleged by Mr Jones was not made.

75    Having regard to the primary judge’s findings in relation to r 2.06(2), about which I have found there is not sufficient doubt to require reconsideration on appeal, the fact the respondents have not yet filed a Form 5 or supporting affidavit is a matter for case management by the FCCA.

Did the primary judge err in not considering r 4.03 of the FCCA Rules as part of his determination?

76    Mr Jones’ third proposed ground of appeal is that the primary judge erred in not considering FCCA r 4.03. Rule 4.03 of the FCCA Rules provides:

4.03    Response to application

(1)    A respondent to an application may file a response in accordance with the approved form.

(2)    A response must be filed and served within 14 days of service of the application to which it relates.

77    This ground may derive from the remarks of Katzmann J in [2015] FCA 644 at [22] of her reasons “In circumstances where the trustees had not filed a response to Mr Jones’ originating application in accordance with the FCCR, however, one might think it obvious why Mr Jones was seeking default judgment”. Mr Jones relied on these remarks in his affidavit sworn in support of his leave application (see [29]) above.

78    However, it is not apparent from either Mr Jones’ application for summary judgment or from the primary judge’s reasons that the respondents’ failure to file a response in accordance with r 4.03 of the FCCA Rules was raised before the primary judge. Mr Jones’ whole argument concerned whether r 2.06(2) of the 2006 Bankruptcy Rules has been complied with. In those circumstances, it is difficult to see how the primary judge erred by failing to deal with an argument not raised before him. In any event, it is not clear to me that r 4.03 of the FCCA Rules is relevant. This is because it is inconsistent with the specific terms of r 2.06(2) of the 2006 Bankruptcy Rules which prescribed the method by which grounds of opposition to an application under the Bankruptcy Rules will be advised to the applicant and the Court.

79    This ground therefore does not raise any doubt as to the primary judge’s decision.

Other matters

80    Although not raised in Mr Jones’ proposed grounds of appeal, a number of his submissions questioned the correctness of the primary judge’s exercise of his discretion to refuse summary judgment in light of Mr Jones’ complaints of delays by the respondents in complying with orders made by Registrar Segal and the primary judge (see [22]-[23] above). Mr Jones did not raise this in his proposed grounds of appeal. For completeness, I perceive no error in how the primary judge dealt with those issues.

Would substantial injustice result from refusing to grant leave?

81    Mr Jones submitted that substantial injustice would result if leave were not granted because the primary judge’s decision did not deal with a matter of practice and procedure and it disposed of his right to summary judgment for non-compliance with the rules of court and court orders. He says that refusing leave is contrary to the public interests in the “just, efficient and economical” resolution of proceedings.

82    I do not accept these submissions. Even if the primary judge’s decision were attended by sufficient doubt to warrant consideration by a Full Court, I am not satisfied that refusing leave would result in substantial injustice to Mr Jones or that it would be contrary to the public interest in the just and expeditious disposition of disputes. Mr Jones has placed great emphasis on r 1.03(1) FCCA Rules which states that the object of the FCCA Rules is to “assist the just, efficient and economical resolution of proceedings”. As Katzmann J noted in [2015] FCA 644 at [33], the right balance needs to be struck and it is no accident that the pre-eminent position is given to the adjective “just”. Mr Jones’ substantive application remains on foot, so denying leave will not deprive him of an opportunity to pursue his substantive claims.

Disposition

83    I will dismiss Mr Jones’ application for leave to appeal and order that he pay the respondents’ costs as agreed or taxed.

Associate:

Dated:    20 February 2017