FEDERAL COURT OF AUSTRALIA

Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed pursuant to sections 25(2B)(ba) and 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).

2.    The appellant pay the respondents’ costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This appeal was commenced on 8 November 2017. The respondents submit that since that time:

[t]he appellant, who is a practising barrister, has failed – repeatedly and consistently – to comply with the court’s directions and to prosecute the appeal with diligence. Her delay has been inordinate. It has not been explained. There can be no confidence in her intention or ability to prosecute the appeal.

2    By an interlocutory application dated 31 January 2020, the respondents now seek an order dismissing the appeal.

3    The respondents’ description of the appellant’s repeated failure to prosecute the appeal is an accurate one. Accordingly, for the reasons set out below, the appeal is to be dismissed.

BACKGROUND

4    In 2003, the appellant, who is a practising member of the Queensland Bar, brought a defamation action against a Mr Goodwin in the County Court of Victoria. She was awarded judgment in default of defence in 2007 and, after a hearing in 2008, damages in the sum of $34,900. Mr Goodwin did not pay that, or any, sum to the appellant.

5    In 2012, the appellant sought successfully to have Mr Goodwin made a bankrupt. The appellant was the only creditor of Mr Goodwin’s bankrupt estate, and the respondents were appointed as its trustees.

6    A dispute arose between the appellant and the respondents regarding the administration of the estate. On 12 September 2014, the appellant commenced a proceeding against the respondents in the Federal Circuit Court seeking, among other things, orders requiring them to repay moneys to the estate. More than three years later, on 19 October 2017, that proceeding, which is the subject of the present appeal, was dismissed: Winn v Yeo & Rambaldi as former trustees of the estate of Goodwin (a bankrupt) [2017] FCCA 2528.

7    The proceeding before the primary judge was inordinately delayed, mainly because of the way that the appellant conducted herself. The primary judge’s reasons make numerous references to the unreasonable delay and obstruction caused by the “appalling” way that she conducted her case: see, eg, at [27], [45], [117], [127].

THE APPELLANT’S CONDUCT OF THE APPEAL

8    The appellant commenced the present proceeding by a notice of appeal dated 8 November 2017. She filed an amended notice of appeal on 6 December 2017.

9    On 12 December 2017, the appellant filed an interlocutory application seeking to have the appeal transferred to the Queensland District Registry. That application was withdrawn on 12 February 2018.

10    In the six months between 12 February 2018 and 20 August 2018 she took no steps to prosecute the appeal.

11    Following correspondence between my chambers and the parties, the matter was listed for an initial case management hearing on 5 October 2018. At the hearing, the appellant told me that she had been unable to progress the proceeding due to health issues, that she required more time to file a further amended notice of appeal, and that she was in the process of engaging lawyers to assist her. I granted the appellant leave to file and serve any proposed further amended notice of appeal by 2 November 2018, and adjourned the case management hearing to 23 November 2018.

12    2 November 2018 came and went without the appellant having filed a further amended notice of appeal.

13    At the case management hearing on 23 November 2018, the appellant again applied for leave to file a further amended notice of appeal, explaining that she had not done so earlier for medical reasons. The respondents, however, took issue with the form of the proposed further amended notice of appeal. They were correct to do so, because it was defective in many respects. Ultimately, I agreed to grant the appellant leave to file a further amended notice of appeal by 30 November 2018, on the explicit condition that the new notice was to be consistent with directions given at the hearing. Those directions, recorded in the transcript of the hearing, included the following:

HIS HONOUR: Thank you. Ms Winn, what I propose to do is to give you leave to file and serve an amended version of this document that you sought to file yesterday or the day before in this fashion. You can – you will have leave to amend paragraph 1(f) so that you identify the two documents that you’re talking about which, I understand from what you’ve said, to be the two documents referred to in paragraph 3(f) and 3(g). I will not permit you to amend paragraph 1(p)(ii) because - - -

MS WINN: Why?

HIS HONOUR: - - - that claim is manifestly untenable. I will give you leave to amend paragraph 5(b)(i) to identify the nature of the evidence and why you allege it was false consistently with your submission this morning. And I will not allow paragraphs 6 and 7.

14    On 30 November 2018, the appellant filed a further amended notice of appeal which did not comply with the directions that I gave on 23 November 2018.

15    Between 30 November 2018 and 5 December 2019 the appellant did nothing to prosecute her appeal.

16    On 5 December 2019, the appellant requested that the appeal be listed for hearing, and the matter was listed for case management on 21 February 2020.

17    On 31 January 2020, the respondents filed an interlocutory application seeking the following orders:

1.    Pursuant to rule 36.74 [of the Federal Court Rules 2011 (Cth)] or, alternatively the inherent jurisdiction of the Court … the appeal be dismissed for the failure by the appellant to:

a.    comply with a direction of the Court; and

b.    prosecute the appeal with due diligence.

2.    The applicant pay the costs of the respondents as agreed or in default of agreement as taxed.

18    The day before the case management hearing, on 20 February 2020, the respondents filed detailed submissions in support of that application. The appellant filed an affidavit in which she gave evidence, among other things, of the medical conditions that she said had affected her ability to conduct the appeal.

19    On the morning of the case management hearing, the appellant filed submissions opposing the respondents’ interlocutory application. Later that morning, about 15 minutes before the commencement of the hearing, the appellant filed a further affidavit sworn by her that day. This affidavit confirmed that the appellant had received the respondents’ interlocutory application for dismissal by post on 14 February 2020, but complained that “[d]ue to late service of the application, [she] had not had time to prepare all required material to oppose the application or to properly instruct a solicitor”.

20    At the case management hearing on 21 February 2020, the appellant was for the first time represented by a solicitor, Mr Carl Hagon, who appeared by telephone. Mr Hagon said that he had been instructed to act on the appellant’s behalf “late the night before last”. In light of Mr Hagon’s appointment, the prospect that he would rectify the appellant’s notice appeal in line with the directions given previously, and the appellant’s detailed evidence about her medical condition, I once again gave the appellant an opportunity to amend her notice of appeal. The appellant was allowed until 6 March 2020 to file and serve a further amended notice of appeal. The non-compliant notice of appeal that she had filed on 30 November 2018 was struck out, and the case management hearing was adjourned to 20 March 2020.

21    On 5 March 2020, the appellant filed a further amended notice of appeal. The next day, Mr Hagon filed a notice stating that he had ceased to act for the appellant. The extent to which Mr Hagon had been involved in the preparation of the further amended notice of appeal is unclear, although the respondents submit that it appears to have been drafted by the appellant herself. The appellant has not since instructed any other lawyer to act on her behalf.

22    On 18 March 2020, the respondents notified the court and the appellant of their intention (again) to seek an order that the appeal be dismissed at the case management hearing scheduled for 20 March 2020. The parties were told that the application would be determined on the papers and they were asked to file, via email to my associate, written submissions.

23    On 19 March 2020, the appellant sent an email to my associate and the solicitors for the respondents in which she sought an extension of time until 27 March 2020 in which to file her submissions. She said that this additional time would allow her to engage counsel to prepare submissions. She also said that she had been diagnosed with a virus. Her email attached several medical certificates, the most recent of which was dated 4 March 2020 and said: “Ms Julene Winn has a medical condition and will be unfit for court attendance till 30/3/20 and I support her request for an extension on filing court documents”.

24    The respondents filed written submissions in support of their application for dismissal on 20 March 2020 (which supplemented the more detailed submissions they had filed on 20 February 2020).

THE RESPONDENTS’ SUBMISSIONS

25    The respondents submit that the appeal ought to be dismissed for the appellant’s failure to comply with directions and for want of prosecution.

26    The respondents rely on r 36.74(1) of the Federal Court Rules 2011 (Cth) (the Rules), ss 25(2B)(ba), 25(2B)(bb) and 37P of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), and the court’s implied power to control its own procedure (citing Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 at [68]-[70]).

27    They submit that such an order should be made for the following reasons:

There has been inordinate delay by Ms Winn in the prosecution of this appeal … She has given no explanation for the delay.

On 5 December 2019, more than one year after filing a (non-compliant) further amended notice of appeal, Ms Winn requested directions to obtain a date for hearing of the appeal. That delay is nothing short of extraordinary. Again, it is unexplained. Further, her proposed orders did not contemplate – let alone provide for – elemental steps such as the appeal books, submissions etc. Accordingly, neither the respondents nor the Court can have any confidence that she will prosecute the appeal with expedition or efficiency.

The fact that Ms Winn is self-represented provides no excuse. She is no ingénue. She is not only a practising barrister but an experienced litigant, having been involved in a myriad of litigation in other Federal courts and in Queensland. She should be taken to be familiar not only with the principles and rules of practice and procedure but also the necessity of complying with court orders.

It is true that the respondents did not themselves seek a hearing date. But, given Ms Winn’s lack of activity, she appeared (at least until her recent notice) to have lost interest in prosecuting the appeal.

It has been 5½ years since the proceeding below was commenced, almost three years since the trial and more than 2½ years since the judgment – all relating to the respondents’ conduct as trustees of a bankrupt estate from which Ms Winn (as the only creditor of the bankrupt) removed them in April 2014, almost six years ago. The delays are prejudicial, (and the appointment of [the primary judge] to the Family Court) means that a remitter to the trial judge is probably no longer an option in the unlikely event Ms Winn is successful on the appeal.

    …

Ms Winn has had her fair share of this Court’s time. There are other cases – with worthy, dutiful and expeditious claimants – that are more deserving of its time, attention and resources.

28    The respondents also referred to the overarching purpose of the civil practice and procedure provisions of the FCA Act and the Rules, being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, and the duty of the court to exercise its powers in the way that best promotes that purpose: FCA Act ss 37M(1), 37M(3).

29    The latest iteration of the notice of appeal, filed by the appellant on 5 March 2020, is attached to these reasons at Annexure A (with formal parts omitted). In their supplementary written submissions filed 20 March 2020, the respondents respond to it as follows:

Having regard for the observations and directions of the Court, as well as the submissions of the then solicitor for the appellant on the last occasion [Mr Hagon] the appeal should be dismissed as:

(a)    the Further Amended Notice of Appeal (filed on 5 March 2020 and served at 3:55pm on 6 March 2020) does not comply with Rule 16.59(2) of the Federal Court Rules 2011 insofar as the amendments are not incorporated so as to enable them to be distinguished from the Amended Notice of Appeal;

(b)    the Further Amended Notice of Appeal contains a number of allegations that require particularisation, by way of non-exhaustive example:

(i)    paragraph 1(c) – particulars of the allegation that the “court knew” of the appellant’s alleged inability to participate in the hearing;

(ii)    paragraph 1(d) – particulars of the allegation that the Court denied the applicant access to documents;

(iii)    paragraph 1(e) – no transcript reference of the alleged refusal has been provided;

(iv)    paragraph 1(f) – no exhibit numbers have been provided, nor any transcript references;

(v)    paragraph 1(g) – no particulars of the “adverse” findings have been provided;

(vi)    paragraph 1(m) – no transcript reference of the application for summary judgment has     been provided;

(vii)    paragraph 1(o) – no transcript reference of the application has been provided;

(viii)    paragraph 1(r) – no transcript reference of the “request” has been provided;

(ix)    paragraph 1(t) – the documents have not been identified by their exhibit number;

(x)    paragraph 1(y) – no transcript references for any of the allegations in respect of the alleged conduct have been provided;

(xi)    paragraph 4 – no evidence that it is asserted that the Court failed to consider that the document “is an altered, partial draft copy” has been identified; and

(xii)    paragraph 5(l) – no particulars of the “other breaches” have been provided.

(c)    the Further Amended Notice of Appeal contains new allegations in respect of which leave to make the amendments has neither been sought nor granted (see for example paragraph 6); and

(d)    each of the matters identified above, coupled with the fact that the appellant’s solicitor was on the record for a very short period of time, confirm the respondents’ concerns that the inordinate delay in the prosecution of the appeal will continue. The respondents refer to the appellant’s email to the Court of 19 March 2020 requesting an adjournment of the 20 March 2020 hearing in this regard.

30    The respondents also referred to the following authorities:

(1)    Mircevski v Pattison [2011] FCAFC 144, where the Full Court dismissed an appeal because the appellant had “failed to comply with the Rules and with the court’s directions and … failed to prosecute the appeal”: at [18].

(2)    Hoefler v Tomlinson (1995) 60 FCR 452, where the Full Court dismissed an appeal in circumstances where “there [had] been simply no effort to prosecute the appeal, and one [could] infer that there is no intention on [the appellant’s] part to prosecute his appeal”: at 453 (Spender J; Sackville and Kiefel JJ agreeing). The Full Court also cited Van Reesema v Giameos (1979) 27 ALR 525 for the proposition that “the power to dismiss appeals is one that is not to be lightly exercised” but noted, however, that “each case, of course, depends on its own facts”: at 453 (Spender J; Sackville and Kiefel JJ agreeing).

(3)    Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120, where Cowdroy J dismissed an appeal for want of prosecution under s 25(2B)(ba) of the FCA Act, in circumstances where the first appellant was suffering from a serious medical condition. Cowdroy J held that this consideration, and the fact that the first and second appellants were litigants-in-person, had to be balanced against the interests of the respondents (at [36]-[37]):

The Court notes that the medical evidence provided to the Court shows that Mr Wade continues to suffer from a terminal illness. The primary judge was also aware of Mr Wade’s condition, as is evident from the transcript. During the primary hearing, adjournments were applied for and granted because of Mr Wade’s condition.

The personal difficulties of the first appellant in prosecuting the appeal, and the status of the first (and second) appellant(s) as litigants-in-person, must be balanced with the first and second respondents’ interests arising from orders made by a single judge of this Court in their favour.

THE APPELLANT’S SUBMISSIONS

31    As noted above, the appellant’s most recent submission, made by email on 19 March 2020, is that she should be given more time to prepare submissions on the interlocutory application and to brief counsel to assist her with this task. The appellant also filed evidence and submissions in response to the present application in advance of the hearing on 21 February 2020.

32    In her brief outline of submissions dated 20 February 2020, the appellant submits that her grounds of appeal raise serious issues to be considered, and that the respondents have delayed in filing their interlocutory application. She also asserts that she has not failed to comply with a direction of the court.

33    In her affidavit of 20 February 2020, the appellant seeks to explain her year-long delay during 2019 and late 2018. She says that she did not receive any communication from either the court or the respondents from November 2018 to the end of 2019, and that during this period she suffered from a series of medical issues. These medical issues meant that she “could not work for six months to July 2019” and “only worked five days after August 2019”. She also suffered extreme stress as a result of her financial circumstances and her involvement in court proceedings, and bereavement as a result of the death of her brother in 2019. She states that in these circumstances she “was not aware of any further requirement in the appeal”. No explicit explanation is given for the six-month delay during 2018; all the medical certificates and other documents annexed to the affidavit are dated 2019 or 2020. However, the appellant does depose that in early 2018 she was the victim of misappropriation from her bankrupt estate which caused her extreme stress, culminating in a fall, loss of consciousness and a serious cardiac event, namely Takotsubo cardiomyopathy, on 17 October 2018.

34    In her affidavit of 21 February 2020, the appellant sets out her reasons why the appeal should not be dismissed, and challenges the veracity and relevance of Mr Yeo’s affidavit of 30 January 2020. In essence, she deposes that she was not served personally with the application; that the respondents have behaved oppressively both in the present proceeding and at trial; that she has not failed to comply with any direction of the court; and that she has not caused any inordinate or unexplained delay.

CONSIDERATION

35    I will not grant the appellant any more time in which to file further written submissions on the interlocutory application. She has been aware of the application since at least 14 February 2020, if not earlier. She has filed two affidavits and an outline of written submissions in response. She has had the benefit of the respondents’ detailed written submissions filed on 20 February 2020. There is no evidence that, since Mr Hagon ceased to act for her on 6 March 2020, she has made any effort to engage another lawyer. In any event, the additional time that she sought has now lapsed without an indication of her having prepared further submissions.

36    For the following reasons, I am of the view that this appeal ought to be dismissed. I remain of this view even having considered the impact that this step will have on the appellant and the reasons she has proffered for her default and delay: cf Singh v Singh [2017] NSWCA 15 at [25].

37    Section 25(2B) of the FCA Act relevantly provides as follows:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(ba)    make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb)    make an order that an appeal to the Court be dismissed for:

(i)    failure to comply with a direction of the Court …

38    A procedure for the exercise of this power is set out in r 36.74 of the Rules, which provides:

(1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a)    comply with a direction of the Court;

(b)    comply with these Rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

(2)    An application under subrule (1) must be served on the appellant:

(a)    at the appellant’s address for service; or

(b)    personally.

39    Ms Therese Megens, a solicitor employed by the firm acting for the respondents, has deposed, and I accept, that the respondents’ application was served on the appellant by registered post to her address for service and by email. The appellant accepts in her affidavit of 21 February 2020 that she received the application by post on 14 February 2020.

40    It is clear from the history of this case, as described above, that the appellant has failed to prosecute the appeal. The appellant has delayed inordinately in her conduct of this case. More than 18 months have elapsed in which the appellant took no action to progress the proceeding (see [10] and [15] above). While the appellant has had medical difficulties, particularly in 2019, this consideration must be balanced against the interests of the respondents, who prevailed in the Federal Circuit Court proceeding that she brought against them more than five years ago: see Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120 at [37]. It must also be kept in mind that the appellant is no stranger to court processes and procedure, being both a barrister and an experienced litigant.

41    This appeal has been kept alive, in part, by indications that the appellant was in the process of retaining lawyers to assist her (the first such indication was at the case management hearing on 5 October 2018). However, other than the brief involvement of Mr Hagon between 20 February and 6 March of this year, no such retainer has ever materialised. No substantial reason has been offered for why this is so. As the appellant is once again unrepresented, there can be no confidence that her ability to prosecute the appeal will improve in future.

42    Despite her protestations to the contrary, the appellant has also failed to comply with directions of the court. She failed to comply with the order of 5 October 2018 that she should file and serve any proposed further amended notice of appeal by 2 November 2018; and she failed to comply with the order of 23 November 2018 that the amendments to her notice of appeal should be consistent with the directions I gave on that day.

43    I first made orders in this proceeding on 5 October 2018. The appellant failed to comply with them. I next made orders on 23 November 2018. The appellant failed to comply with them. Finally, I made orders on 21 February 2020. Despite Mr Hagon’s assurances to the contrary, the document filed in response to those orders still did not comply with the directions I made in November 2018.

44    In all the circumstances, including the proceeding at first instance, in my view, the history of the appellant’s non-compliance “is such as to indicate an inability or unwillingness to cooperate with the court and the other party” in having the appeal ready for hearing within an acceptable period: see Khera v Jones [2008] FCA 548 at [17]-[18], quoting Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ).

45    The result, as detailed in the respondents’ submission at [29] above, is that the appellant’s notice of appeal remains manifestly inadequate nearly two and a half years after she commenced the appeal.

CONCLUSION

46    The power to dismiss an appeal for want of prosecution “must not be lightly exercised”: Van Reesema v Giameos (1979) 27 ALR 525 at 530. Nevertheless, in my view, the nature of the appellant’s dilatory conduct in this case, occurring as it has over such an extended period, makes the exercise of that power appropriate.

47    The appeal will be dismissed with costs.

Associate:

Dated:    29 April 2020

ANNEXURE A

The Appellant appeals from all of the orders of the Federal Circuit Court of Australia given on 19 October 2017 at Melbourne.

Grounds of appeal

(1)    The Court denied procedural fairness to the applicant in that it:

(a)    failed to give fair notice to the appellant applicant of the hearing on 19 October 2017 of her application to set aside the orders made in her absence on 21 August 2017;

(b)    gave judgment in the substantive proceeding before hearing the interlocutory application to set aside orders made in her absence on 21 August-2017;

(c)    listed the directions hearing for the appellant’s applicant’s application to reopen the hearing and for extension of time to file final submissions on 21 August 2017 a date that the court knew the appellant applicant could not participate in a hearing and dismissed the application in her absence;

(d)    denied the appellant applicant access to AFSA’s subpoenaed documents before the hearing on 10 October 2016 by permitting Jonathon Massenya not to comply with the subpoena by due date and to hand the documents to the court in the hearing;

(e)    refused to hear the evidence of Jonathon Massenya of AFSA Regulation and Enforcement, the investigator of the respondents’ conduct in March and April 2014, who was subpoenaed to give evidence on 26 April 2017;

(f)    permitted the respondents to submit to the court and rely on two exhibits documents in 3(f) and (g) during re-examination of Mr Yeo (a record of post and financial summary) copies of which were not provided to the appellant applicant and in breach of r 14.09 (a) and (b) of FCC Rules 2001;

(g)    made factually incorrect findings adverse to the appellant applicant that affect her rights and interests and failed to inform the appellant applicant that it intended to make such findings and failed to give her an opportunity to make submissions to oppose as to why such findings ought not to be made;

(h)    in December 2015 the judge without notice gave the matter to another judge to hear;

(i)    permitted the respondents to change and run the application by affidavit as a claim when Gadens replaced ICA Lawyers in August 2015;

(j)    part heard the application on 19 August 2016, 10 October 2016 and 26 April 2017 and heard other matters during the hearing and the applicant’s cross-examination which adversely affected her ability to proceed and properly present her case; the hearing that was allocated two days at the request of the respondents for a three day hearing was listed for part of a half day on 19 August 2016;

(k)    permitted the respondents to delay the hearing until 19 August 2016 for the reason without any evidence that Mr Yeo could not attend court for most of 2016;

(l)    adjourned the hearing on 19 August 2016 to 10 October 2016 when Mr Yeo failed to attend the hearing on 19 August 2016;

(m)    failed to hear the applicant’s application for summary judgment on the ground that the respondents had not filed and served a Notice Stating Grounds of Opposition for two years, and refused the application without giving reasons or making an order;

(n)    permitted the respondents to rely on a Notice Stating Grounds of Opposition to Application filed on 16 August 2016 served at the time of and given to the applicant in the hearing on 19 August 2016;

(o)    failed to hear the applicant’s application for the material prepared by Innis Cull of ICA Lawyers to be struck out on the ground of conflict of interest and refused the application without giving reasons or making an order;

in his being the solicitor 111ho acted for the trustees of the estate in the s121 voidance application and the solicitor acting for the respondents in MLG1860 / 14 being an employee of Pitchers Partners, the respondents’ firm,

(p)    permitted the respondents to cross-examine the applicant without notice in breach of r 29.09(2) of FCR 2011 and r 64(4)(b) of FCCA1999;

(q)    permitted the respondents to submit and rely on a transcript without notice or leave in breach of r 15.06 of FCCR 2001 the FCR;

(r)    refused the applicant’s request to be provided with a copy of the transcript produced and relied upon by the respondents in the hearing;

(s)    failed to take any action in regard to AFSA’s failure to comply with the subpoena for production of documents;

(t)    failed to consider relevant evidence (Bill for Processing; NAB statement and contract of sale) crucial for determination of issues of breach of duty and loss to the estate; made an order for costs adverse to the applicant in favour of the AFSA's solicitor who failed to comply with the subpoena for production;

(u)    listed the directions hearing for the appellant’s application to reopen the hearing and extension of time to file submissions on a date that the court knew the appellant could not participate in a hearing and dismissed the application in her absence;

(v)    refused the applicant's application to reopen the hearing for the court to receive the evidence of Jonathon Massenya;

(w)    accepted documents as evidence from the respondents copies of which were not provided to the appellant;

(x)    sent a chambers notice of “judgment hearing” on 19 October 2017 that stated that appearance was not required and heard and dismissed the applicant's application to set aside orders made in her absence on 21 August 2017;

(y)    intimidated, criticised and repeatedly interrupted the applicant and treated her less favourably than the respondents throughout the hearings which adversely affected the applicant’s ability to proceed and properly present her case;

(2)    The Court erred in law in failing to determine the second further amended application filed on 12 November 2015;

(3)    The Court erred in law in finding that the respondents sent a Remuneration Claim Notice to the applicant on 31 March 2014, to account for $101,795.63 they withdrew on 20 March 2014, without evidence to support such finding, and contrary to the evidence:(a) Mr Yeo swore their remuneration reached $40,866.00 on 19 March 2014; (b) the item posted on 31 March 2014 is not a remuneration claim notice; (c) AFSA Regulation and Enforcement officer’s letter dated 19 May 2014; (d) the applicant's evidence and letter dated 14 July 2014; and (e) the original draft of a ‘File Copy’ draft in the file given to the Official Trustee;

in basing its decision on two documents submitted by the respondents in breach of r14.09 of the Federal Circuit Court Rules 2001:

(a)    first produced by the respondents’ counsel during his re-examination of Mr Yeo;

(b)    that were not exhibited to their affidavits or included in their subpoenaed documents;

(c)    that are factually incorrect and contrary to the admitted evidence before the court;

(d)    that were not disclosed before being tendered as evidence, or shown or provided to the applicant;

(e)    an extract from a statement of account (undated) a copy of which:

(i)    the respondents were required to give to the replacement trustee, the Official Trustee, when that trustee took office after the respondents ceased as trustees on 28 April 2014, but which they gave on 14 July 2014;

(ii)    the respondents were required to give to the creditor at the time when the Official Trustee took office after the respondents ceased as trustees on 28 April 2014, but which they failed to do;

(iii)    the respondents were not required to produce before 28 April 2014 and did not produce until 14 July 2014;

(iv)    in evidence was dated 26 March 2014 but records transaction that did not occur in March 2014 or until later;

(f)    an unidentified piece of paper stating a date which purports to be a record that unidentified documents were sent to the appellant on 31 March 2014, including the one in f) (iv), contrary to the evidence before the Court that the those documents were not sent to the appellant.

(4)    The court erred in failing to judgment is based on the respondents’ misrepresentation that they gave a consider the evidence that the “remuneration claim notice” annexed to Mr Yeo’s affidavit is an altered, partial draft copy claiming $40,866.00 for the sum they withdrew on 20 March 2014 to the appellant and that Mr Yeo gave evidence that they did not obtain NAB records from the time of purchase of the property;

(5)    The court erred in faileding to consider and address properly or at all under s176 of BA the issues and evidence of the respondents’ breaches of duty under provisions of the BA;

(a)    failure to obtain a valuation of the bankrupt’s property and expert independent advice as to the trustees’ interest in the property;

(b)    dishonesty in informing the creditor and the court under cross examination that he did not obtain NAB records of a loan for purchase of the property and joint account;

(c)    refusal to hold a creditors meeting for their removal when directed on 3 March 2014;

(d)    refusal to provide information and documents to the creditor from February 2014 on;

(e)    failure to provide a Remuneration Claim Notice for $101,795.63 they withdrew on 20 March 2014;

(f)    taking remuneration in excess of the amount approved to the end of administration;

(g)    removing all funds from the estate after the creditor notice for their removal;

(h)    paying $45,434.60 to ICA Lawyers on 20 March 2014 when that amount was not payable under the terms of the cost agreement or the Legal Profession Act 2004.

(i)    failure to undertake s164(1) procedure for dividing the remuneration and expenses between themselves the replacement trustee, the Official Trustee;

(k)    failure to give to the creditor a s164(2) account after they ceased to be the trustees on 23 April 2014;

(l)    the other breaches described with evidence in the applicant’s affidavits.

(6)    The court erred in dismissing as out of time the s178 application filed 12.9.2014 to appeal the trustees’ withdrawals of $101,795.63 and $45,434.60 from the estate. contrary to evidence that the applicant first became aware of the withdrawals on 18.7.2014 (Affidavit 12.9.14 Annexures JW-8 and JW-9)

(7)    The court erred in failing to consider that grounds in (6) are also raised under s176 of BA;

(8)    The court erred in failing to give reasons for Order 1.

Orders sought

(1)    Pursuant to BA s178 (1) or s176 (2) (a) or (c), the respondents repay $101,795.63 they withdrew as their remuneration to the bankrupt estate of Roderick James Goodwin.

(2)    The respondents comply with the procedure required by s164 (1) of Bankruptcy Act 1966 for division of remuneration and expenses between themselves and the replacement trustee, the Official Trustee.

(3)    Pursuant to BA s178 (1) or s176 (2) (a) or (c), the respondents repay $45,434.60 they paid to ICA Lawyers to the bankrupt estate of Roderick James Goodwin.

(4)    Pursuant to BA s176(2)(a) the respondents make good the loss they caused to the estate;

(5)    The respondents provide to the bankrupt and the appellant creditor/applicant a Remuneration Claim Notice as required by r 8.12C of Bankruptcy Regulations1996.

(6)    The factually incorrect findings and remarks adverse to the appellant applicant be expunged from the record.

(7)    The orders made on 19 October 2017 be set aside.

(8)    The orders made on 21 August 2017 be set aside.

(9)    The appeal against all of the orders be allowed.

(10)    The respondent pay the costs of the appellant of and incidental to the appeal and the application.