FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the respondent’s costs of the proceeding, to be assessed if not agreed, to be paid by the appellant or from the appellant’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth) whichever is appropriate at the time payment is required.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 On 21 February 2017, a sequestration order was made, under the Bankruptcy Act 1966 (Cth), in respect of the estate of Dr Patrick Allan Nugawela.
2 Dr Nugawela then made an application for review to the Federal Circuit Court of Australia in respect of the sequestration order.
3 The judge of the Federal Circuit Court (the primary judge) who heard the application, and some related applications, on 9 August 2017, made the following orders:
1. The Respondent’s oral application for an adjournment of these proceedings be dismissed.
2. The Applicant’s costs of the Respondent’s adjournment application be fixed in the sum of $2,882 to be paid by the Respondent, or from the Respondent’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth), whichever is appropriate at the time payment is required.
3. The Notice to Produce a Document in a Pleading or Affidavit dated 27 March 2017 and served on 17 July 2017 be set aside.
4. The Applicant’s costs of the Applicant’s interim application filed 8 August 2017 be fixed in the sum of $2,095 to be paid by the Respondent, or from the Respondent’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth), whichever is appropriate at the time payment is required.
5. The Respondent’s application for a stay of the proceedings filed 6 July 2017 be dismissed.
6. The Applicant’s costs of the Respondent’s application for a stay filed 6 July 2017 be fixed in the sum of $2,095 to be paid by the Respondent, or from the Respondent’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth), whichever is appropriate at the time payment is required.
7. The Respondent’s application for review of the Registrar’s order of 21 February 2017 to sequestrate the estate of the Respondent be dismissed, and the Registrar’s orders of that date be confirmed.
8. The Applicant’s costs of the Respondent’s application for review of the Registrar’s order of 21 February 2017 filed on 10 March 2017 be fixed in the sum of $2,426 to be paid from the Respondent’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth).
See Deputy Commissioner of Taxation v Nugawela (No 2)  FCCA 1999.
4 Dr Nugawela then filed a notice of appeal in respect of those orders in this Court on 28 August 2017. It is that appeal with which this judgment is concerned. The hearing of the appeal was adjourned on a number of occasions, due to Dr Nugawela’s health circumstances.
5 On 21 September 2017, I dismissed an application by Dr Nugawela to stay the sequestration order and proceedings, pending determination of the appeal. See Nugawela v Deputy Commissioner of Taxation  FCA 897 (my earlier judgment).
6 Much of the history relevant to the appeal is set out in my earlier judgment and, for present purposes, I refer to the background to the appeal and other proceedings that preceded the making of the sequestration order that is there provided.
7 Some of the grounds of appeal that were proposed at the time of the hearing of the stay application and dealt with in my earlier judgment remain relevant on the hearing of the appeal, but other grounds were added following the filing of an amended notice of appeal on 5 April 2018.
8 By the amended notice of appeal there are now eight grounds of appeal, which are set out and discussed below.
9 Dr Nugawela also filed written submissions adumbrating and repeating these grounds on 5 April 2018, and I have regard to them as well.
10 Before turning to the grounds of the appeal, I should mention that Dr Nugawela failed to attend the adjourned hearing of the appeal on 28 September 2018. I dismissed an application for a further adjournment of the hearing that he had filed the day before and then heard submissions on behalf of the Deputy Commissioner of Taxation before reserving my decision on the appeal.
11 Before the date I proposed to deliver my reserved judgment on the appeal, Dr Nugawela applied to reopen the appeal to make further submissions on the appeal, in effect to reply to those made by the Commissioner at the earlier hearing.
12 I allowed that application and gave Dr Nugawela leave to file further materials, including further “reply” submissions and to make oral submissions.
13 By way of introduction, Dr Nugawela submits the following issues arise on the appeal:
1. The Respondent has mistakenly combined Ground 1 and 3 in his Respondent’s Submissions for the appeal dated 17 April 2018.
2. Furthermore, the Respondent wrongly claims that Grounds 1 and 3 ‘relate to the application for Lucev J for a stay’ [Transcript, WAD434/2017, 28 September 2018, Page 10, Line 4]. This appeal does not relate to a Stay application although Hon Lucev J determined the Stay Application within the same hearing and reasons for decision.
3. The Amended Grounds of Appeal (Amended pursuant to the orders of Hon Barker J on 29 March 2018) clearly states in the opening paragraph at line 10:
This is an appeal against the learned judge’s dismissal of the de novo hearing and a refusal to grant an adjournment on 9 August 2017, the reasons of which are set out in para 5-11 of the Reasons for Judgment delivered 22 days later on 31 August 2017. The appellant was required to file the Appeal within 21 days prior to the availability of the Reasons for Judgment, hence necessitating this Amended Grounds of Appeal. [Emphasis added].
4. This appeal is based on Hon J Lucev’s jurisdictional errors in dismissing the review of Registrar Trott’s sequestration order. Under s.35A (5) of the Federal Court Act 1976 (Cth) and Rule 3.11 of the Federal Court Rules 2011, the appellant seeks as of right a review of the registrar’s orders. This is by way of a de novo review, at which the Court will rehear the application that led to the decision. This means the Court may hear all the evidence and submissions (including additional evidence and submissions that may not have been presented to the Registrar).
5. The distinction between Ground 1 and 3 will be clarified below under each separate Ground of Appeal as each of these grounds constitutes distinct jurisdictional errors. In brief:
(a) Ground 1 specifically raises the issue of Hon J Lucev’s jurisdictional errors in unreasonably refusing Counsel a short 24-hour adjournment to produce further medical evidence by failing to take into account relevant considerations and by focusing on irrelevant considerations;
(b) Ground 3, however, relates to a jurisdictional error on the face of the record by the learned judge in allowing a breach of Federal Court Rules by the Respondent, thereby denying procedural fairness (the hearing rule) to the Appellant in being heard on the matter.
6. The Respondent also erroneously refers to the Notice to Produce’ (the ‘NTP’). as ‘new ground number 2’ [Transcript, WAD434/2017, 28 September 2018, Page 10, Line 5-6]. This appeal ground relates to an ultra vires error of law under Rules 6.12 and 6.19 of the Federal Circuit Court (FCC) Rules 2001. This appeal ground deals with jurisdictional error of law and error of law on the face of the record and not with the substance of the NTP.
14 I now have regard to all the materials and submissions made by Dr Nugawela on the appeal, as well as those of the Commissioner.
Did the primary judge err in refusing to grant an adjournment?
15 The first ground of appeal is that:
1. The learned Judge erred in the exercise of his discretion in failing or refusing to grant a short/reasonable adjournment to enable the appellant’s newly-appointed counsel, any or reasonable time to properly represent the appellant in the de novo rehearing against the Registrar’s granting of the sequestration order.
(a) The learned Judge failed to take into account relevant considerations in the exercise of his discretion. These relevant considerations include:
(i) Failure to consider that prior written notification was provided in early July to the respondent, seeking an adjournment of the hearing date of 9 August 2017;
(ii) Failure to consider that on 21 July 2017, prior written notification of the appellant’s medical condition supported by medical evidence and extenuating circumstances was provided to the Court, seeking an adjournment of the hearing date of 9 August 2017;
(iii)Disregarding as not relevant, the uncontested medical evidence as to the appellant’s psychiatric condition;
(iv)The learned judge erred in the exercise of discretion in that ‘where it is obvious that material is readily available, it is unreasonable not to find and apply the material’. Counsel for the appellant advised that ‘a letter could be put in front of the court within 24 hours’ (transcript p 4 para 40) and it was sufficiently open to the court to consider if legal representatives were given an adjournment, medical evidence could be provided and Professor Skerritt could be present to give expert witness evidence;
(v) The learned judge failed to discern, on balance, the nature and importance of a de novo final hearing and serious adverse consequences incurred by denying constitutional rights of the appellant as a final opportunity to challenge a sequestration order;
(vi)The learned judge denied justice to the appellant when the refusal of (either the 24-hour or 1 week) adjournment was not likely to cause any or any serious injustice to the respondent;
(b) The learned Judge further took into account irrelevant considerations namely that the appellant’s historical ‘very finely crafted’ Notice To Produce (transcript p 4 para 5) meant, to the Judge’s unqualified psychiatric opinion, that the appellant was presently fit to appear in Court, in preference to the most current expert psychiatric certification;
(c) The learned Judge’s discretion miscarried in that no reasonable decision-maker would have come to the extempore conclusion that he did.
16 As to ground 1, in his reply submissions Dr Nugawela submits:
7. The Respondent affirms that the hearing before Hon Lucev J on 9 August 2017 ‘were important proceedings, and an adjournment was an important consideration.’ [Transcript, WAD434/2017, 28 September 2018, Page 10, Line 42-43].
8. Hon Lucev J claimed that the medical report was not current, mischaracterising the 27 June 2017 report as a ‘medical certificate’. Nonetheless, the Appellant was, in fact, reviewed by Professor Skerritt in July 2017 and certification was provided directly to AFSA dated 27 July 2017 [AB Part B, Tab. 45).
9. Counsel offered ‘to put in front of the court within 24 hours’ medical certification. Hon Lucev J told counsel ‘You might, in fact, need to get Mr Skerritt here if you intend to proceed with this application’ [AB Part B Tab. 44 p6 at ]. However, an adjournment was not granted to allow this to occur.
10. A further review by Professor Skerritt was also provided on 5 September 2017 to address concerns raised by Lucev J. [BD Tab 5.2]. Hon J Barker has allowed this medical report to be included as additional evidence in this appeal.
11. The nature of, and the disability itself, caused difficulties for the Appellant to provide certification which was available and which Counsel requested a 24-hour adjournment to produce before the Court.
12. Likewise, the nature of the illness over the period from May to September limited the capacity of the Appellant to select and brief Counsel. Reliance was placed on Counsel’s own assessment within the time-frame available, to accept the brief or reject it if they felt they could not do justice, which required reasonable accommodation by the court and Respondent. No reasons were given by the Respondent as to why 24 hours or one week could not be accommodated in the interest of justice, particularly given that there was professional ethical legal representation.
13. The Respondent does not address the issues raised on relevant consideration of ‘reasonable accommodation’ and Equality before the Law nor reasonableness in the exercise of discretion.
14. Hon Lucev J dismissed Professor Skerritt’s opinion in preference to his own as to competence without alternative medical substantiation. [AB Part B Tab. 44 p3 at ].
15. The learned judge relies on the quality of the NTP to erroneously conclude the medical condition of the Appellant. The Respondent submits that ‘Judge Lucev had merely compared, contrasted the medical condition versus the ability to produce this document, and Judge Lucev opined that Dr Nugawela had been involved in the drafting of that notice to produce.’ [Transcript, WAD434/2017, 28 September 2018, Page 11, Lines 14-17]. When Counsel for the Appellant advised the Court that ‘Mr Nugawela is not fit to appear in court at the present time’ [Transcript, PEG 121/2016, 9 August 2017, Page 3, Line 24], Hon Lucev J concluded the Appellant’s appears to be perfectly competent. There was no medical evidence for this conclusion except Hon Lucev J drew the erroneous conclusion stating that ‘I only need to look at the notice to produce filed by Mr Nugawela to conclude in his own capacity without representation – to conclude that he appears to be perfectly competent.’ [Transcript, PEG 121/2016, 9 August 2017, Page 3, Lines 31-33]. The learned judge’s use of the NTP was an irrelevant consideration to draw conclusions about the Appellant’s competence or medical condition.
16. The learned judge has not provided any evidence to support that the NTP was, in fact, generated by the Appellant and the learned judge fails to offer relevant substantiated evidence of the Appellant’s medical competence.
17. The Respondent has also not provided any evidence to support that the NTP was generated by the Appellant, failing to apprise the Court the original form of the Notice was filed in March 2017 and ignored by the Respondent. It was re-filed in July 2017.
18. The Respondent has not addressed why expert medical opinion was ignored. The Appellant had requested the Respondent consent to an adjournment but this was refused several weeks prior to the hearing. [BD Tab 5.1]
19. The Appellant himself directly requested the learned Judge, seeking only an adjournment of the 9 August 2017 hearing, to enable his Counsel to present his case. A detailed letter to the judge, on 21 July 2017 with documentation, [BD Tab 2.6] explained the reasons for the requested adjournment, which significantly included execution of an arrest warrant overnight and a state of bereavement on the passing of the Appellant’s father-in- law.
20. In Hutchings v Australian Securities and Investments Commission  FCA 858 at  Hon CJ Allsop’s provided guidance on the exercise of discretion which could cause serious injustice to the party requesting the adjournment.
21. The Respondent fails to acknowledge the Appellant attended each and every hearing until the onset of disability in late June 2017 due to extenuating circumstances.
22. This merits of this ground of appeal have not been challenged and therefore must stand.
17 Ground 1 of the notice of appeal as it stood at the time of my earlier judgment, substantively covered the same issues as ground 1 that Dr Nugawela now advances.
18 For the reasons given by me in my earlier judgment at -, this ground has no basis.
19 Having regard to the discretionary nature of the power of the primary judge to allow, or refuse, an adjournment, there is nothing in the way the primary judge exercised that power, and the factors he took into account that suggest he failed to exercise that power otherwise than judicially. By reason of the principles in House v The King (1936) 55 CLR 499;  HCA 40, the challenge to the primary judge’s adjournment decision fails. He is not shown to have acted by reference to any irrelevant consideration or to have failed to take into account any relevant consideration.
20 Ground 1 fails.
Did the primary judge err in dealing with the notice to produce?
21 By ground 2 of the amended notice of appeal, Dr Nugawela states:
2. The learned Judge fell into jurisdictional error and failed in a proper exercise of his power, allowing an ultra vires error of law under Rules 6.12 and 6.19 of the Federal Circuit Court (FCC) Rules 2001.
(a) The respondent’s application to set aside the Notice to Produce (NTP) was effectively made under Federal Circuit Court Rules 2001 (FCC) Rule 6.12 and served on the day of the hearing having been lodged at the Court Registry on the eve of the review hearing just minutes before the 4:30pm registry deadline: 4:36pm, 4:37pm; 4:20pm on 8/8/17, the date of the hearing being at 10:15 of the next morning of 9/8/17;
(b) The learned judge fell into error of law under FCC Rule 6.19 by allowing less than 7 days for the e-filing of a 25-page affidavit plus a 9-page Outline of Submissions by the Attorney General Solicitor (AGS) Model Litigant respondent for an interlocutory notice to set aside a Notice to Produce to be heard immediately.
(c) The application to set aside the Notice to Produce (sealed) was listed for ‘Mention’ only for 9 August 2017 but was heard as a hearing;
(d) The application to set aside the Notice to Produce (sealed) was not served on the appellant and was heard in his absence;
22 This is a ground that was not raised for consideration in my earlier judgment.
23 The background to this issue is that, in the weeks before the hearing before the primary judge, Dr Nugawela had given the Commissioner a notice to produce. It was a comprehensive document that the primary judge referred to in his reasons, including in relation to the question of the need for an adjournment.
24 On the day prior to the hearing, the Commissioner made an application to set aside the notice.
25 After the adjournment was refused and Dr Nugawela’s counsel withdrew, and in the absence of Dr Nugawela who had elected not to attend the hearing, the primary judge dealt with the application to set aside the notice and set it aside.
26 As to ground 2, Dr Nugawela submits:
23. The Respondent does not address the breach of the Rules of the Federal Circuit Court 2001 in bringing the interlocutory application.
24. The Respondent at para 11 of Submission refers to the discretion to set aside under House v. R. This could apply only AFTER the application was properly brought under the Rules of the Federal Circuit Court. Rule 17.01 FCA Rules as well as the Federal Rule 2.06 of Court (Bankruptcy) Rules 2016.
25. The Respondent filed the following documents on the evening prior:
(a) 8/08/2017 4:09:17 PM Interim application: Federal Circuit Court (Bankruptcy) Rules 2016 form B3
(b) 8/08/2017 4:20:16 PM Applicant's submissions for 9 August 2017 opposing the Notice to Produce served 17 July 2017
(c) 8/08/2017 4:37:01 PM AWST Applicant’s Affidavit opposing NTP Alex Sudall
26. The Respondent fails to address the ultra vires error of law and a clear breach by the learned judge who fails to address Court rules even when Counsel for the Appellant drew it to the attention of the learned judge [Transcript, PEG 121/2016, 9 August 2017, Page 3, Line 7].
27. The NTP was listed for ‘Mention’ and a hearing date was not set for this interlocutory application nor was the Appellant advised that this matter was listed. Yet the learned judge proceeded to hear and determine the matter. The Respondent colluded by making oral submissions without drawing it to the attention to the judge that the matter was listed for ‘Mention’ only. This is a clear jurisdictional error and error on the face of the record which should be upheld without needing to resort to any other supporting evidence.
28. The Respondent attempts to convert the breach of Court rules to a matter of a House v King discretion, when the real issue was that the breach of Court rules denied the Appellant access to address the documents needed to determine and evidence the disputed judgement debt.
29. The Respondent dismisses the breach of Court rules stating: ‘Now, that does not lead to a consequence that he identifies that changes the case.’ [Transcript, WAD434/2017, 28 September 2018, Page 13, Lines 31-32]. The NTP contains documents which would provide the required evidence to substantiate the disputed judgement debt. The Appellant was denied opportunity to justify the need for the NTP documents and how it changes the case.
30. The opportunity to negotiate what documents would or could be provided was also denied completely and the NTP was set-aside without the Respondent producing any document whatsoever. The volume of documents could be considerably reduced as several had been subsequently obtained through FOI applications.
31. The Respondent presumed the evidence at the review would be no different from previous hearings. The Respondent did not provide any evidence to support the contention.
32. The Respondent’s argument is contrary to law.
33. The Appeal Ground should be upheld.
27 In his reasons for judgment, at  and following, the primary judge dealt in some detail with the factual context of the notice to produce. Ultimately, having regard to quite traditional factors concerning the breadth of the categories that Dr Nugawela required production on, the volume of the documentation required and the apparent irrelevance of the documents required, the primary judge accepted the Commissioner’s objection to the notice and made an order setting it aside.
28 There is nothing in the manner in which the primary judge dealt with that question that is suggestive of any error, having regard to legal principle or application of legal principle.
29 For these reasons, ground 2 fails.
Did the primary judge err by accepting a legal breach by the respondent and refusing an adjournment?
30 Ground 3 states:
3. The learned Judge fell into jurisdictional error and failed in a proper exercise of his judicial power and/or discretion miscarried in that no reasonable judicial officer of the court would or ought accept the respondent’s own legal breach in filing its documents (2 business days late) yet simultaneously denying the appellant procedural fairness of a mere 24-hour adjournment even to consider and respond to the respondent’s application to set aside the NTP.
(a) Temporary Counsel for the appellant brought to the attention of the learned Judge the late filing by the respondent when seeking an adjournment (at line 7 in transcript) stating ‘Now, an affidavit has been filed with the court overnight’ but the learned judge proceeded with the hearing failing or refusing to grant any or a short/reasonable adjournment despite this error of law and breach of the Federal Circuit Court Rules and error of law on the face of the record;
(b) Despite the breach in filing of the NTP on 8 August 2017, the evening just prior, of a 25-page affidavit plus a 9-page Outline of Submissions, the learned judge denied procedural fairness to the appellant and to Counsel for the appellant for conferring with his client to defend the application by stating: ‘And why do you need instructions to argue on the notice to produce and the application?’ [Transcript Page 5 Line 2]; further asserting: ‘Surely the Deputy Commissioner’s opposition to the notice to produce is relatively clear.’ [Transcript page 5 Line 7];
(c) The learned Judge’s discretion miscarried in that no reasonable judicial officer of the court would accept the respondent’s legal breach and error of law of a two-business day requirement while simultaneously denying the appellant procedural fairness for a 24-hour adjournment;
(d) The application to set aside the Notice to Produce (sealed) was heard in the absence of the appellant.
31 As to ground 3, Dr Nugawela submits:
34. The Respondent does not challenge this Ground of Appeal on procedural fairness.
35. The Respondent was allowed to breach Federal Court Rules as stated above. There is no explanation by the Respondent to account for this blatant breach by an Officer of the Court and Model Litigant.
36. The Hon Lucev J accepted the Respondent’s breach of procedural fairness to the Appellant to be heard. There was no service of the documents to the Appellant. The Hon Lucev J proceeded to determine the application to set-aside the NTP which was lodged at the Court Registry on the eve of the review hearing, as stated in Ground 2 above, just minutes before the 4:30pm registry deadline: 4:36pm, 4:37pm; 4:20pm on 8/8/17, the date of the hearing being at 10:15 of the next morning of 90 9/8/17.
37. Yet, the Hon Lucev J, with full knowledge of breach of Court rules, would not accord or extend the same privilege of procedural fairness to grant Counsel for the Appellant a 24-hour adjournment to consider the late lodgement by the Respondent, admonishing Counsel even further by stating: ‘And why do you need instructions to argue on the notice to produce.’ [Transcript, PEG 121/2016, 9 August 2017, Page 5, Lines 1-2]. Neither Counsel nor the Appellant had opportunity to even read the lengthy submissions and affidavits submitted but not served by the Respondent. Yet the Hon Lucev J denied Counsel due process and procedural fairness in defending the Appellant as his client.
38. Hon Lucev J simply waivered due process for the Appellant in favour of the Respondent, which may possibly be perceived by a reasonable person as a failure in the proper exercise of discretion as a judicial officer by stating: ‘surely the Deputy Commissioner’s opposition to the notice to produce is relatively clear.’ [Transcript, PEG 121/2016, 9 August 2017, Page 5, Lines 1-2]. The learned judge did not even consider the Appellant’s defence to the Respondent’s opposition to the NTP.
39. The Respondent ‘ambushed’ the Appellant’s Counsel despite knowledge of the information sought by the Notice as early as March 2017.
40. The Respondent misinformed the Court as to the Notice period as commencing July 2017 when it was substantively requested in March 2017.
41. The Respondent does not address the delay in attending to the original Notice which could have obviated the need for the Notice re-issued in July.
42. The evidence sought from the Notice was capable of affecting the judgment debt and, therefore, solvency. Their relevance was never tested or contested, other than blanket refusal. The Respondent does not explain why even a single item sought in the Notice was capable of being produced.
43. Ground 3 must be upheld.
32 Ground 3 of the notice of appeal as it stood at the time of my earlier judgment, substantively covered the same issues as ground 3 that Dr Nugawela now advances.
33 For the reasons given by me in my earlier judgment at -, this reformulated ground has no basis.
34 Having regard to the principles in House v The King, the challenge to the primary judge’s adjournment decision fails. He is not shown to have acted by reference to any irrelevant consideration or to have failed to take into account any relevant consideration.
35 Grounds 3 fails.
Did the primary judge err in approaching the matter as if it were an appeal and not a hearing de novo?
36 Dr Nugawela, by ground 4, states:
4. The learned judge erred in approaching the matter as if it were an appeal and not a hearing de novo.
(a) The learned judge states to Counsel: ‘…as the court has just indicated, there doesn’t appear to be anything new other than an assertion of an appeal which hasn’t materialised in the current application for a stay. And, again, the sequestration order is on the documents, isn’t it? [Transcript Page 5 Line 9-10];
(b) An application for review of a Registrar’s decision is a new hearing or a hearing afresh of the application being reviewed. Although Counsel presented an outline of new evidence [Transcript Page 6 Lines 21-24] and an argument for a rehearing of the question under section 52 of the Bankruptcy Act [Transcript Lines 33-36], the judge states: ‘But it doesn’t answer the question still, Mr Fickling, why it is that today on the day of the hearing these matters are first raised. I mean, this process has been in train for months.’ [Transcript Page 12 Line 30];
(c) The learned judge was not prepared to hear fresh arguments or new evidence on section 52(2)(b) despite the potential legal effect for dismissal of sequestration order, stating to Counsel: ‘Well, I think the point at which we departed on this journey is that you indicated that it’s only a question of other sufficient cause and not an issue where – it’s a 52(2)(b) issue and not a 52(2)(a) issue.’ [Transcript Page 8 Line 5].
37 As to ground 4, Dr Nugawela submits:
44. The Respondent refers to AB Part A Tab 9 p 62 at . A hearing under the FCCA s.104(2) is a hearing de novo and the matter is considered afresh.
45. Hon Lucev J referred to the legislative provisions and case-law governing de novo hearings. This was a mere statement of the law and does not necessarily mean that the Appellant was in fact granted a de novo hearing.
46. When Counsel presented an outline of new evidence and an argument for rehearing, the learned judge failed to treat the hearing as a de novo allowing for new evidence on the grounds that these matters ‘were not raised before’, asking: ‘Why it is that today on the day of the hearing these matters are first raised. I mean, this process has been in train for months.’ [Transcript, PEG 121/2016, 9 August 2017, Page 12, Lines 30-32].
47. The Respondent draws attention to AB Part A Tab 9 at . The Respondent asserts that the Federal Circuit Court did undertake a review of the whole of the evidence (para. 14 Respondent’s Outline of Submissions). However, the Respondent fails to recognise that this review was based on past events and did not allow opportunity for the matter to be ‘considered afresh’. There is no evidence that the historical review was a de novo review. It did not include further evidence not available in past hearings.
48. It was presumptuous in the absence of the Appellant to deny there was additional evidence and fresh arguments. The Respondent argues that the Hon Lucev J ‘addressed all of the evidence of the Commissioner in support of the original application and simply met the – we met the criteria.’ [Transcript, WAD434/2017, 28 September 2018, Page 14, Lines 13-14]. In the absence of the Appellant the judge was able to review only what the Respondent presented as an unopposed view.
49. The Respondent fails to recognise that the learned judge asserted that there does not appear to be anything new even before the Appellant’s Counsel was given opportunity to raise any new matters and promptly dismissed any effort by Counsel for consideration of additional material. Counsel was prevented from exercising their duty due to the Respondent’s unreasonable objections and determination to proceed unopposed, thus discrediting the terms of reference of a de novo review.
50. The Respondent fails to appreciate that the very purpose of a de novo is to hear a matter afresh and consider new evidence that may not have been available or properly argued previously, given that the Appellant was self-represented without legal representation.
51. The Respondent refers to AB Part A Tab 9 at - which canvasses a range of issues relating to the disputed quantum of the debt, continuation of Part IVC proceedings, health issues, solvency and several issues related to presenting an arguable case. The point of appeal in Ground 4 is that several conclusions drawn in - were assertions that were incorrect or not substantiated. The judge drew incorrect conclusions based on past information for example in stating the Part IVC Proceedings relate only to the assessments and penalties for only two years ending 30 June 2007 and 2008. The Respondent is fully aware this in incorrect and that assessments are for a 6-year period, and not for 2 years only, which has considerable impact on the judgement debt. All six AAT applications were filed BEFORE the 9 August 2017 hearing by Hon Lucev J.
52. The learned judge makes several assertions about the Appellant’s health and incorrectly states that health issues had been raised and rejected. The Appellant has provided expert medical evidence over a period of several years, recently culminating in extended hospitalisation. The Respondent has not provided any evidence to substantiate that the health issues raised by the Appellant have no basis for consenting to an adjournment. The judge states there is no proper, and no sufficient, evidence in relation to Dr Nugawela’s health to constitute a ‘sufficient cause’ for an adjournment without being willing to grant a 24-hour adjournment for the evidence to be produced by Counsel as stated in Ground 1.
53. Had a de novo been granted, the Appellant would have had opportunity to produce evidence to correct several of the misperceptions raised in -.
54. Ground 4 appeals for the opportunity for a de novo. The Respondent’s submission should be rejected as it does not present any argument, justification or valid reasons for why a de novo should be denied as an opportunity to review the matter afresh rather than rely only on the Respondent’s suppositions and assumptions which are not supported by evidence.
55. The Appeal Ground should be upheld.
38 This ground overlaps with ground 4 of the notice of appeal as it stood at the time of my earlier judgment.
39 For the reasons given in my earlier judgment, at -, there is no basis for this ground. In its reformulated state there is also nothing in the particulars that suggests the primary judge approached the hearing other than on the basis that it was a de novo hearing.
40 Indeed, at  of his reasons, the primary judge expressly indicated that the hearing was a de novo hearing.
41 The primary judge addressed all of the evidence adduced by the Commissioner in support of the original application, and was satisfied the relevant criteria for sequestration were met.
42 As to the adducing of “new evidence”, the primary judge reasonably took the view that no additional material was required as to what, for example, had occurred in the tax review proceedings in the Administrative Appeals Tribunal, because that information was already before the Court. The provision of further information, or an adjournment in order to facilitate the provision of a further affidavit, would be redundant because the Court was already apprised of the relevant information.
43 There is nothing to indicate the primary judge erred either in principle or in the application of principle in coming to that view.
44 Ground 4 necessarily fails.
Did the primary judge give unfair weight to the Commissioner’s submissions and declarations?
45 By ground 5, Dr Nugawela states:
5. In proceeding with the hearing of the four separate matters in the absence of the appellant, the learned judge gave unfair weight to the respondent’s unopposed submissions and declarations. The Applicant was denied the right to be present due to disability.
(a) Federal Court Rules 2011 at Rule 36.75 provides for a party who is absent to apply to the Court for an order setting aside or varying the order and for the further conduct of the hearing;
(b) Pursuant to s.27 Federal Court Act 1976 the appellant was denied the opportunity to present new or fresh evidence at the review hearing;
(c) The appellant was denied procedural fairness of opportunity to lead evidence of his absence with lawful excuse.
46 This ground is also a new one since the hearing of the stay application and my earlier judgment.
47 As to ground 5, Dr Nugawela submits:
56. The Respondent conflates and confuses the right to attend with the ability to attend.
57. There is clear evidence of continuing disability which necessitated respect for the Court in obtaining legal representation to appear and seek an adjournment. The Respondent is fully apprised of policy responses on the impact of disability with respect to access to justice, to fully and competently exercise available rights.
58. The submission by the Respondent totally excludes any mention of the Appellant’s right to be present due to disability and engages in responses that exacerbates rather than abates an anxiety condition.
59. In Laurent v Commissioner of Police  QDC 160 when a magistrate refused to grant an adjournment, an Appeals Court judge slammed the Queensland magistrate for not accepting a medical certificate for an absent defendant, calling his conduct ‘nonsensical’ and a ‘gross denial of natural justice’.
60. Furthermore, the Respondent was allowed to breach Federal Court rules raised in Ground 2, adding legal disadvantage to the Appellant’s disability and clearly demonstrating procedural unfairness to the Appellant and his legal representation.
61. Even if present, the Appellant would nonetheless have been subject to a lack of procedural fairness in terms of a fair hearing on 4 separate matters listed in AB Part A Tab 9 . The Appellant’s medical condition would have been likely to have caused increased anxiety of having to deal with several matters on the same day, without prior notice, as a vulnerable self-represented litigant with a diagnosed difficulty, which both the Respondent and the Court are fully aware of.
62. The Respondent continues to deny procedural fairness and access to justice to the Appellant.
63. The Appeal Ground must be upheld.
48 The fact of the matter is that the proceedings before the primary judge were notified to Dr Nugawela. He chose not to attend but to be represented by counsel to whom he had given the limited brief of seeking an adjournment of the hearing. When that adjournment application failed, counsel for Dr Nugawela left the Court and the matter proceeded in the absence of Dr Nugawela, as Dr Nugawela should have understood it would in the event that the adjournment application failed.
49 In those circumstances, the Court properly had regard to the Commissioner’s submissions and evidence.
50 There is, therefore, nothing in the ground that suggests that the Court should not have had regard to the submissions of the Commissioner.
51 Dr Nugawela was not “denied” the right to be present due to a disability. His medical report from Professor Skerritt was taken into account when the primary judge refused to grant an adjournment of the hearing.
52 The primary judge gave proper consideration to all the evidence before him and did not give any “unfair weight” to the Commissioner’s case. His reasons for judgment were detailed and on their face fairly weighted the material before him in the course of conducting a de novo hearing.
53 Ground 5 fails.
Did the primary judge demonstrate a reasonable apprehension of or actual bias?
54 By ground 6 of the amended notice of appeal, Dr Nugawela states:
6. In failing or refusing to grant any or a short/reasonable adjournment to enable the appellant’s newly-appointed counsel any or reasonable time to properly represent the appellant in the de novo rehearing against the Registrar’s granting of the sequestration order, the learned Judge demonstrated a reasonable apprehension of, or actual, bias or predisposition against the appellant personally or against the appellant’s application.
(a) The learned judge refused a stay application on 19 June 2017 and thus ‘locked himself into a position’ so that his subsequent decision on 9 August 2017 to refuse to even grant a 24-hour (let alone 1 week) adjournment to the appellant’s newly appointed Counsel, reflected a reasonable apprehension of (or actual) bias;
(b) In refusing the previous stay application on 19 June 2017, the learned Judge had previously (at ) stated that it ‘was not apparent that Dr Nugawela will be able to resist the issuance of a sequestration order in the de novo hearing of the Review Application’. The learned judge did not substantiate his fettered view that the appellant would not be able to resist the issuance of a sequestration order and reflected an apprehension of bias in subsequently confirming his own previously fettered decision;
(c) The learned judge was advised that new information and material facts not previously available would be introduced in the de novo hearing and without the benefit of considering the nature of material facts of the new information, the learned judge fettered his decision consistent with his already ‘locked in’ mindset. A reasonable person could regard this as an apprehension of bias by the learned judge in favour of protecting his own previous decision and showed a ‘closed mind’ to considering new material information;
(d) The learned judge showed an apprehension of bias of a ‘closed mind’ in blatantly asserting his own conclusion about the appellant’s medical condition and competence without any proof whatsoever that the (historical) Notice To Produce (NTP) was prepared by the appellant himself. The learned judge showed that he held an opinion that he was not prepared to reverse even when Counsel advised that the view held by the learned judge was based on ‘speculation’ [Transcript page4 Lines 6-17];
(e) The learned judge further showed an apprehension of (or actual) bias and a ‘closed mind’, by denying the appellant procedural fairness in responding to the NTP documents which were effectively served on the morning of the hearing itself. The learned judge stated (Transcript Page 5 Lines 1-5) to Counsel for the appellant ‘And why do you need instructions to argue on the notice to produce and the application for a stay and the sequestration order itself given the documentations?’ and ‘surely the Deputy Commissioner’s opposition to the notice to produce is relatively clear’ Transcript Page 5 Lines 7-12]. The learned judge showed an apprehension of bias in accepting the respondent’s very late application without allowing Counsel for the appellant procedural fairness to even seek instruction from his client.
55 As to ground 6, Dr Nugawela submits:
64. The Respondent correctly draws attention to the waiver in Vakauta v Kelly and Smits v Roach. However, the Respondent conveniently ignores that in Vakauta itself, the High Court held that the failure to raise a claim of bias DID NOT amount to a waiver because the full implications of the judge’s remarks were not apparent until after the judge delivered his decision.
65. The apprehension of bias arises because the learned judge had fettered his view in earlier reasoning that the Appellant would not be able to resist a sequestration order. Had the learned judge subsequently shown willingness to at least hear and consider new evidence before confirming his view, it could have dispelled the apprehension of a ‘closed mind’.
66. Counsel was unaware of the learned judge had fettered his view which became apparent 22 days later once the reasons were released.
67. In citing Vakauta and Smits, the Respondent has ignored the Orders Sought on the Form 121 Notice of Appeal requests remittance to another judge of the Federal Circuit Court.
68. The Respondent asserts the appeal ground is without merit. However, the entitlement to an impartial judge is ‘not simply a private right which may be waived.’ This was pointed out in the Appellant’s Outline of Submissions at  with reference to S&M Motor Repairs Pty Lt v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358.
69. It would appear that the Respondent has not given full consideration to the Appellant’s Outline of Submissions; alternatively, if he has done so, then his responses are selectively limited.
Respondent’s Submission para – dealing with Ground 6
70. The Respondent dismisses the Appellant’s claims as constituting dissatisfaction with orders made. The issue of dissatisfaction has merit as the Appellant is dissatisfied in not being accorded due process arising from a closed mind which resulted in the orders made. Had the learned judge accorded the hearing rule and then made orders, the Appellant would have made no claim to apprehension of bias. Quoting Hon Rich J: ‘It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case’ (Cameron v Cole Petitioning Creditor (1944) 68 CLR 571 at 589).
71. The Respondent ignores value judgements made by the learned judge, without any proof whatsoever, that the Appellant’s competence and medical condition could be assessed by the NTP in preference to the expert medical evidence available to the Court.
72. The Respondent also fails to respond to the learned judges’ unequivocal acceptance of the Respondent’s opposition to the NTP without acceding to Counsel’s request to seek instruction from his client.
73. This appeal ground must be considered on its own merits within the context of the other related grounds of appeal.
74. This appeal ground must be upheld.
56 This ground substantively corresponds with ground 2 as it stood at the time of my earlier judgment.
57 For the reasons given in my earlier judgment, at -, this ground fails.
58 When one has regard to the reasons of the primary judge for the orders that he made, which I have done yet again, there is nothing to demonstrate any predisposition by the primary judge against Dr Nugawela. There is no instance of actual bias demonstrated by any of the materials before the Court on this appeal. Nor is there any basis upon which the Court could make a finding that a reasonable apprehension of bias on the part of the primary judge existed.
59 The fact that an adjournment was refused, does not, in the circumstances of this case, make out a case for bias.
60 Ground 6 fails.
Did the primary judge err by extemporaneously dismissing the application and/or failing to give adequate reasons?
61 By ground 7 of his amended notice of appeal, Dr Nugawela states:
7. The learned Judge erred in extemporaneously dismissing the appellant’s application for a de novo review of the Registrar’s summary making of the sequestration order and/or failed to give any or adequate reasons for such dismissal, when
(a) there was a genuine, unresolved (or judicially unresolved) disagreement and misstatement as to the underlying debt owed which could enable the appellant to establish solvency and a dismissal of the sequestration order;
(b) no court had as yet ‘gone behind’ the judgment debt as required/permitted, and as (for instance) observed by McKerracher J in Nugawela v Deputy Commissioner of Taxation  FCA 578;
(c) Counsel outlined new evidence to be considered under s 52 of the Bankruptcy Act that a sequestration order ought not be made for ‘other sufficient cause’: Ling v Enrobook Pty Ltd (1997) 74 FCR 19; (1997) 143 ALR 396;
(d) the respondent’s conscious maladministration had yet to be judicially determined or examined.
62 As to ground 7, Dr Nugawela submits:
75. The Respondent states that the Appellant can ‘at a sequestration hearing, say a couple of things: (1) that the state of the credits and debits records needs to be explained.’ [Transcript, WAD434/2017, 28 September 2018, Page 17, Lines 44-45]. The Respondent submits that the Appellant did not seek to do that. This is untrue and contradictory to the several attempts that the Appellant to obtain information from the Respondent and to establish credits of $332k for 2007/8; misstatement in the Bankruptcy Notice; Misstatement in the Running Balance Account; Misstatement in the Medicare Garnishee; incorrectness of the GIC Evidentiary Certificates; documentation required in the NTP to dispute the judgement debt.
76. The Respondent has blocked all efforts to review the disputed judgement debt by even postponing or adjourning AAT hearings, and issuing a Creditor’s Petition just three weeks before an AAT hearing was scheduled. [AB Tab 20.3] The Respondent applied for a dismissal of all six AAT applications even while a Trustee Review is on foot and the Review of the Registrar’s decision is on foot. The AAT determination would have been useful information to offer the Court as evidence of a correct tax liability. The Respondent claims it has already granted $238k in credit but there is much more owing than that which would shrink the tax liability to a level which the Appellant could satisfy without incurring bankruptcy.
77. The Respondent refers to Federal Court  FCA 578 -. (Hon McKerracher J). The Respondent states that the question of whether to go behind the judgement debt was ‘considered’. What the Respondent conveniently fails to draw attention to is Hon McKerracher J  FCA 578 at  on the issue of ‘Misstatements’:
(i) …. unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.
(ii) if a court exercising bankruptcy jurisdiction goes behind the judgment relied upon, the examination of whether there is a bona fide debt ‘extends to every aspect of the parties dealings’, and not merely limited transactions selected by creditor or debtor (Olivieri at 424, Beaumont J).
78. Hon McKerracher J further states at  ‘… that does not necessarily mean that Dr Nugawela can never raise issues of quantum, which may well be relevant in the context of the creditor’s petition and the sequestration order being sought in the Federal Circuit Court of Australia. But that is not a matter for this Court on this Application.’ The de novo is a final opportunity to consider evidence afresh and go behind the judgement debt extending to every aspect of the parties’ dealings. The Respondent has consistently refused to address this issue, to address the actual judgement debt which if properly quantified, would not have led to sequestration.
79. The Respondent refers to the Full Court  FCAFC 164 -. At  …The Full Court affirms that ‘the Commissioner did not dispute on this appeal that it was possible to ‘go behind’ the judgment of Kenneth Martin J and the orders made against Dr Nugawela … and the court will in many cases, as it is commonly said, ‘go behind’ the judgment and inquire into the existence of the debt upon which it is said to be founded’.
80. At  The FCAFC states grounds of appeal concerning a failure to ‘go behind’ the summary judgment orders of Kenneth Martin J fail because there is nothing in the submissions before us that causes us to doubt the correctness of the orders of Martin J.
81. No Court has ACTUALLY examined the correctness of the tax liability either because there was nothing in the submissions as an error of the Appellant or a refusal to grant an adjournment or extension of time to obtain the required evidence.
82. The Respondent refers to  WASCA 9. This was extension of time to comply with a springing order and hence the substantive merits of the case were not sufficiently presented or argued by the Appellant.
83. The Respondent fails to admit that it sought sequestration just prior to the AAT hearing, thus obstructing Part IVC Division 4 of the TAA, despite an assurance to the Full Court of the Federal Court and the Court of Appeal, Supreme Court, that the hearing was to proceed unobstructed by bankruptcy proceedings.
84. The errors made by the Respondent in denying that Part IV tax objections had been lodged were swept aside as ‘overtaken by events’ and this must be taken as a given fact that the events that have occurred, cannot overturn orders and decisions made. It may be argued that had a Part IVC been recognised by the primary judge, the benefit of an adjournment may have enabled proper assessment of the tax debt with full settlement or negotiated payments plans. The initial failures have unnecessarily escalated matters. However, there is still opportunity for recovery and settlement if a fair de novo hearing is granted with opportunity to go behind the judgement debt and examine every aspect of the dealings where it is relevant and useful to do so.
85. The Appellant is now better positioned to adduce the evidence to challenge the judgement debt and the de novo is a final opportunity to do so in the interests of justice. Even so, the opportunity to actually address the disputed judgement debt is prejudiced and stymied by refusal of the Hon Lucev J to grant an adjournment.
86. The Respondent argues on the basis of previous rulings but fails to recognise the basis of the orders made. The de novo is the most recent case in point for which this appeal is being made. The substantive merits were not aired due to unreasonable refusal of an adjournment rather than fair opportunity to present an arguable case as well as evidence that was either not previously available or inadequate presentation of available evidence by a self-represented litigant.
87. This ground must be upheld.
63 This ground substantively corresponds with ground 4 of the notice of appeal as it stood at the time of my earlier judgment.
64 Essentially for the reasons given in my earlier judgment at -, this ground fails.
65 Ground 7 fails.
Did the primary judge err by basing his decision on a “lack of evidence”?
66 By ground 8 of his amended notice of appeal, Dr Nugawela states:
8. The learned Judge fell into jurisdictional error and failed in a proper exercise of his power by basing decisions on a lack of evidence and the existence of a particular fact, and that fact did not exist.
(a) The learned judge states (para 7 judgment reasons): ‘The Court is also not satisfied that an adjournment ought to be granted on the basis of there being further evidence to be put before the Court from Ms Slattery, apparently a tax agent for Dr Nugawela, in relation to the Part IVC Proceedings’ and ‘the Court is not satisfied that it would necessarily be assisted by any evidence from Ms Slattery as to the current status of the Part IVC Proceedings’. The appellant was not present in Court to lead any evidence and evidence could not be offered in absentia. The learned judge had no basis and no evidence for concluding that Part IVC proceedings or the further evidence by Ms Slattery could lead, not merely to disputing the debt, but to eliminating the debt and establishing solvency;
(b) The learned judge states (para 9 judgment reasons): ‘There is nothing apparent on the evidence which would indicate that there was any impediment to Dr Nugawela instructing lawyers earlier in this process’. The learned judge dismissed the evidence provided by Professor Skerritt dated 27 June 2017 stating that the appellant was medically unfit and needed to be reassessed within a month. On the one hand, the learned judge discounts this evidence as not being current and yet the learned judge fails to recognise this period of incapacity was an actual impediment for the appellant to instruct lawyers earlier. The learned judge also failed to ascertain if the lawyers were available during this period, without establishing that Counsel had been interstate prior to the week of the hearing;
(c) The learned Judge erred in stating that even if new evidence was adduced to dispute the judgment debt, there would still be a large amount of debt. The learned judge had not even heard the new evidence to draw this conclusion of a substantial debt owing [Transcript Page 7 Line 9-10]. The learned judge did not provide a basis or evidence for how he quantified the adjustment to the debt in deciding the remaining residue would be a large amount. The learned judge did not provide opportunity for the appellant to establish solvency and a dismissal of the sequestration order.
(Emphasis in the original amended notice of appeal.)
67 The terms of this ground are a little confusing and in many respects seek to restate issues found in the earlier grounds, including the refusal of the primary judge to grant an adjournment; consideration of Professor Skerritt’s report; and in finding that even if there were more materials about the 2007 and 2008 taxation years, there would still be a large debt due.
68 As to ground 8, Dr Nugawela submits:
88. At  the Respondent submits an appeal court should not interfere with a judge’s findings of fact. However, the Respondent fails to appreciate that the Appellant was not granted opportunity to present any ‘incontrovertible facts or uncontested testimony’ or for that matter any submission whatsoever simply because the Appellant was medically unable to attend Court. Therefore, it is false to asset that the Appellant’s evidence does not meet the tests when the Appellant was absent and unable to present any evidence. What the Appellant now seeks is the opportunity to present evidence at a de novo hearing subject to a grant of the appeal.
89. The Appellant submits that he would be solvent but for this dispute with the Respondent but requires a forum to be able to dispute the actual facts and figures and adduce evidence on the substantive issues of the disputed judgement debt rather than arguing procedural matters related to springing orders, lateness of submissions and rejection of adjournments.
90. Counsel for the Appellant was to put forward evidence from the tax agent and make available for cross examination in support of the review and tax debt. (Transcript, PEG121/2016, 9 August 2017, Page 6, Line 25). Hon Lucev J discounted the tax agent’s evidence without hearing it and presumed that it related only to Part IVC matters.  FCCA 1999  The Respondent fails to show evidence as to why it was presumed that the accountant would address only a part of the debt. The Respondent fails to support its claim as to what further evidence the tax accountant might bring to the court in the de novo hearing and that the residual debt would not be substantially addressed. [AB Tab 44 p.13 at  – ]. The Respondent presumed that the evidence at the review would be no different from previous hearings. The Respondent did not provide any evidence to support the contention.
91. An appeal limits introduction of new evidence and if the Appellant’s case was not even presented, then the appeal is limited by that very fact.
92. In Maxwell v Keun, the English Court of Appeal held that although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.
69 There is, in my view, no doubt that the primary judge was correct in finding that, even on Dr Nugawela’s case concerning the 2007 and 2008 taxation years, a substantial judgment debt would remain. I canvassed these issues at - of my earlier judgment.
70 There is nothing in any of the particulars of this ground or the submissions made in support of them which are capable of sustaining this ground.
71 Ground 8 fails.
72 In his reply submissions, Dr Nugawela makes a number of observations or submissions concerning the original decision of the Registrar and delays and other matters, none of which are directly relevant to these grounds of appeal.
Conclusion and orders
73 For the reasons given above, the appeal should be dismissed with costs.
74 The Court orders:
(1) The proceeding be dismissed.
(2) The appellant pay the respondent’s costs of the proceeding, to be assessed if not agreed, to be paid by the appellant or from the appellant’s estate in bankruptcy in accordance with the provisions of the Bankruptcy Act 1966 (Cth) whichever is appropriate at the time payment is required.