Federal Court of Australia

Shaw v The Official Trustee in Bankruptcy [2023] FCA 570

ORDERS

THE COURT NOTES THAT:

A.    The respondent has agreed to produce documents under paragraphs 1, 2, 3, and 5 of the first Notice to Produce filed on 28 February 2022, and the respondent has informed the applicant and the Court that any part of a document produced under paragraph 3 that is subject to a claim of legal professional privilege will be redacted.

B.    The respondent has already informed the applicant that no document exists under paragraph 4 of the first Notice to Produce filed on 28 February 2022.

THE COURT ORDERS THAT:

1.    The application for leave to appeal be adjourned pending production by the respondent of the documents it had agreed to produce; namely documents under paragraphs 1, 2, 3, and 5 of the first Notice to Produce, with any part of a document produced under paragraph 3 that is subject to a claim of legal professional privilege being redacted.

2.    The respondent is to produce the documents referred to in order 1 of these orders on or before 4.00 pm on 8 June 2023.

3.    Upon compliance by the respondent with order 2 of these orders, the applicant’s application for leave to appeal will stand dismissed by operation of this order.

4.    Proceeding VID 361 of 2021 be re-allocated to another Judge of the Court for hearing and determination.

5.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    Mr John Rashleigh Shaw has brought an application for leave to appeal from orders made by Justice Collier dated 4 April 2023 in proceeding VID 361 of 2021. Those orders relieved the Official Trustee for Bankruptcy, the respondent to this application and the trustee of Mr Shaw’s bankrupt estate under the Bankruptcy Act 1966 (Cth), from any obligation to comply with three Notices to Produce that had been filed and served on the Trustee pursuant to rule 20.31(3) of the Federal Court Rules 2011 (Cth).

2    The Trustee commenced proceeding VID 361 of 2021 on 2 July 2021, seeking orders pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) that Mr Shaw be prohibited from instituting any proceeding in this Court without leave of the Court, and that any extant proceeding instituted in this Court by Mr Shaw prior to that order be dismissed, or alternatively be stayed pending leave of the Court to continue the proceeding. I shall refer to that proceeding as the vexatious litigant application. Justice Collier is the docket judge in VID 361 of 2021. In these reasons I shall refer to her Honour as the primary judge.

3    In response to the vexatious litigant application, Mr Shaw had filed an interlocutory application in December 2022 seeking various relief, including that the Trustee’s s 37AO application be dismissed. The primary judge extracted the December 2022 application at [7] of her Honour’s reasons for the orders subject to this application for leave to appeal:

On 13 December 2022 the respondent filed an amended interlocutory application (dated 11 November 2022) in respect of which (pursuant to Orders of 24 November 2022) he pressed the following paragraphs:

3. Leave to enter approved correspondence for the purpose of mediation or marked “without prejudice”, into evidence for the purposes of establishing whether mediation discussions have been unfairly compromised by the applicants demands/conduct and/or if this application constitutes an abuse of process,.

6. Alternatively…an order that this application be dismissed in accordance with Fed Court rule 26.01 due to an abuse of process in making & maintaining this application for an illegitimate purpose and/or lack of authority or standing.

7. Alternatively… an order for the applicants to provide further & better particulars of the grounds of their application in a document that identifies with reasonable precision the dates & description of each instance of conduct alleged to be vexatious & brief reasons supporting each allegation.

(errors in original)

(Emphasis added.)

4    The contents of the Notices to Produce are set out in [9]-[13] of the primary judge’s reasons:

In the 1st Notice to Produce the respondent sought production of:

1. Copy of the (ASFA) OR-OT Bankruptcy Act Delegation instrument, effective at the time of filing VID361/2021;

2. Copy of the Schedule to the delegation of the powers & functions of the Official Receiver & Official Trustee, effective at the date of filing VID361/2021;

3. Copy of any email or document indicating or confirming that proceedings VID361/2021 has been commenced with the authority of the Official Trustee;

4. Copy of any email or document indicating or confirming that Ms Meghan Sullivan of Harris Carlson has delegated authority to give evidence &/or speak for & on behalf of the Official Trustee in proceeding VID 361/2021; and

5. AFSA practice guide OTPG18 – Powers & Duties of the Trustee, effective at the time of filing VID361/2021.

At the hearing the respondent advised the Court that, in circumstances where he was informed by the applicant that the document described in para 4 of the 1st Notice to Produce did not exist, he did not press para 4 of the 1st Notice to Produce, and accordingly no longer sought production of the document described in that paragraph.

In the 2nd Notice to Produce the respondent sought production of:

1. Copy of any email or document indicating or confirming the name &/or public service grade of the AFSA public servant that authorised commencing proceedings VID361/2021 on behalf of the Official Trustee.

2. Copy of any email or document or authority indicating or confirming that Mr Hasan of AFSA and/or a grade APS 6 public servant is authorised to instruct solicitors in litigation of this proceeding on behalf of the OT.

3. Copy of any email or document or authority indicating or confirming that Ms Rebecca Longford of AFSA was authorised to delegate her authority to Mr Hasan of AFSA to attend mediation & settle this proceeding on 27 Sep 2022 in accordance with her letter of 26 Sep 2022.

4. Copy of any email or document or authority indicating or confirming that the proceeding has been authorised in accordance with s61 of the Judiciary Act

5. Copy of the internal AFSA submission supporting the initiation of vexatious litigant proceedings.

6. Copy of the approval of the submission.

(tracked changes in original)

At the hearing, and after inquiry by me, the respondent stated that he no longer pressed paras 2 and 4 of the 2nd Notice to Produce, and accordingly no longer sought production of the documents described in those paragraphs.

The 3rd Notice to Produce required the applicant to produce:

1. Copies of Harris Carlson advice(s) provided to the OT & /or AFSA in relation to FOI requests made by John Shaw to AFSA under the provisions of the Freedom of Information Act 1982.

5    The Trustee generally opposed producing the documents sought. It is apparent from the contents of the Notices that at least some of these documents were sought to advance or support Mr Shaw’s December 2022 application, and in particular the contention highlighted in bold in the extract above about the Trustee’s lack of lawful authority to institute the vexatious litigant application. Mr Shaw confirmed as much to me on the leave to appeal hearing.

6    Mr Shaw read and relied upon two affidavits in support of his leave to appeal application, the first dated 14 April 2023 and the second dated 24 May 2023. Mr Shaw’s two affidavits contain substantial overlapping material and arguments. Nevertheless, I have read and considered all of that material. Both parties filed written submissions on 25 May 2023 and made oral submissions at the hearing on 26 May 2023, and I have considered what was said orally and in writing.

7    The Trustee informed the Court it had proposed to rely an amended originating application in the vexatious litigant application, seeking to specify a range of entities and individuals in relation to whom Mr Shaw would be prevented from instituting or continuing proceedings. This included, for example, employees of the Australian Financial Security Authority (past, present or future) or agents or representatives of the applicant, the Official Receiver, the Inspector General or AFSA. This proposed amended originating application in VID 361 of 2021 has not been filed and therefore was not before the primary judge or before the Court on this application.

The primary judge’s orders and reasons and Mr Shaw’s grounds for leave to appeal

8    The primary judge made orders dispensing with the requirement for the Trustee to comply with the three Notices to Produce issued by Mr Shaw. Her Honour concluded the documents sought were irrelevant to the issues in the proceeding, subject to legal professional privilege and privileged on their face, and were a fishing expedition by Mr Shaw and (therefore) an abuse of process. When I address the grounds of leave below, I return to the primary judge’s reasons.

9    In his application for leave to appeal, Mr Shaw advanced the following grounds:

There is sufficient doubt of error that will cause substantial injustice if not corrected.

1. Findings manifestly unreasonable - Findings made that Mr Hasan & the OT had appropriate authority show that the issue of authority was deemed a relevant issue in the dispute & therefore it follows that any document that would confirm or doubt that authority must be a relevant document in a proceeding. The finding of irrelevance is unsustainable.

2. Finding not open for determination - The reasons for dismissing the 1st & 2nd notices are based on findings of fact that were not open for determination & are inadequate & are not a reasonable exercise of judicial determination in accordance with law.

3. Wrong test applied – The Judge failed to consider whether the documents sought would be “necessary for the just and expeditious resolution of the proceeding” by reference to all the issues in dispute.

4. Denial of fair hearing - In dismissing notices 1 & 2, the judge did not conduct a hearing on the merits to establish facts relied upon, unfairly excluded relevant submissions & evidence, took into account irrelevant considerations, took into account inadmissible evidence & made findings that cannot be reasonably supported on the evidence & did not provide adequate reasons.

5. Denial of procedural fairness and /or natural justice –

a. The fundamental denial of a fair hearing & making findings on issues that were not open for determination & without reasonable basis or providing adequate reasons is a denial of procedural fairness & natural justice.

b. The reasons for dismissing the 3rd notice based on findings of privilege that was not reasonably open without examining the document or applying the test of “dominant purpose” or considering if other exclusions apply as outlined in submissions & tendered authorities.

6. Apprehension of bias - The manifestly unreasonable denial of procedural fairness, exclusion of relevant evidence & submissions, reference ti irrelevant considerations & making of findings without a fair hearing are evidence of a reasonable apprehension of bias & prejudging &/or are unreasonably prejudicial & not made in good faith or according to law.

7. Costs order - The costs order against me was made without giving me reasonable opportunity to make submissions after hearing reasons & was not based on objective assessment in accordance with the law.

10    There is considerable overlap in the grounds, and the language used must be assessed in the context that Mr Shaw is not a lawyer. The grounds were developed in Mr Shaw’s affidavits, which contained a great deal of argument and submissions. However, the Trustee properly did not object to the affidavits being read, on the basis that those parts would be treated as submissions. I agreed with that approach. Mr Shaw also explained his grounds in oral submissions, often in answer to questions I posed to him. The following exchange occurred, which drew out Mr Shaw’s main contention:

HER HONOUR: So if I was to ask you, Mr Shaw, of the arguments you’ve raised about Collier J’s decision, which one would you rank as your biggest objection?

MR SHAW: Well, the fact that she has made decisions based on no evidence and no reference to the legislation - - -

HER HONOUR: That’s the privilege argument.

MR SHAW: No, it’s the - - -

HER HONOUR: No - - -

MR SHAW: It’s the authority argument, and the privilege argument is probably the least important, I would say. …

[after some statements about the staff at AFSA being too junior to be dealing with his bankruptcy matters]

And my complaint is that they’ve been making decisions with my bankruptcy beyond their authority without the necessary delegations, and, in fact, they have initiated this proceeding – this vexatious proceeding, again, without the necessary authority and delegation. I – and the reason – you know, and the reason I looked in this in the first – because as I said in my submissions and affidavit, I could not understand why the official trustee would [go to] the trouble of doing this on the basis of the fact that I have an outstanding … appeal. It just didn’t make commercial or reasonable sense.

11    In the oral hearing, Mr Shaw identified the most important grounds of his application for leave to appeal as the findings set out at [14] of his first affidavit:

The fundamental findings I complain about are summarised below

a. The OT application has been initiated with authority of the OT through its solicitors

b. The solicitors on the record have the authority to conduct the proceeding in the name of the OT

c. Mr Hasan was validly authorised to attend a court ordered mediation on behalf of the OT.

d. The court is focused on the conduct or the respondent (me) & not concerned with the motives or conduct of the applicant (the OT) in the mediation or initiating or maintaining the proceeding

Applicable principles

12    In Noonan v Kelly [2021] FCA 182, I set out the applicable principles for the grant of leave to appeal, and I adopt the passages at [36]-[38].

13    Thus, Mr Shaw must demonstrate that the primary judge’s orders, and the reasons given by her Honour supporting those orders, are attended with sufficient doubt to warrant the grant of leave to appeal. He must demonstrate that there would be substantial injustice if leave were refused.

14    The exercise of power by the primary judge – to dispense with compliance with the Notices to Produce – was a discretionary judgment concerning a matter of procedure. The doubt that Mr Shaw must demonstrate in this context means he must show at least a real prospect that the primary judge:

acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her decision, or did not take into account some material consideration.

15    See Wong v Sklavos [2014] FCAFC 120; 319 ALR 378 at [9].

16    For matters of practice and procedure, the principal responsibility in interlocutory matters lies with the Court at first instance. Appellate supervision is limited not only by the tests outlined above but by the requirement for leave itself. As the Trustee submitted at [4] of its written submissions, quoting Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [5], the Court must also be cognisant that:

The predilection for interlocutory disputation in this area of the law should not be encouraged by the ready grant of leave. To do otherwise would fail to pay sufficient heed to the warning of Jordan CJ that cases could be delayed “interminably” and “costs heaped up indefinitely” if a litigant could, in effect, transfer all exercises of discretion in interlocutory applications to the Full Court.

17    I respectfully agree with those observations and would add a further reason for the need for adequate justification for the grant of leave. In considering complaints about interlocutory decisions on practice and procedure, the Court must also be concerned to preserve and insist upon a focus by parties on the real issues in dispute in a proceeding, so that the grant of leave to appeal must be capable of bearing on the resolution of the real issues in dispute between the parties. That is, in effect, the core of the “substantial injustice” component.

Resolution

18    On the one ground raised by Mr Shaw that has merit, I am satisfied this does go to one of the real issues in dispute between Mr Shaw and the Trustee, at least in the sense of being a matter, not fanciful in my respectful opinion, raised by the December 2022 application.

19    Mr Shaw’s December 2022 application challenged the authority of the Trustee to institute and continue the vexatious litigant application. He also challenged the Trustee’s standing to do so. Mr Shaw correctly submitted at the hearing before me that standing and authority are different and distinct concepts. That is particularly so when the moving party is a statutory entity. Such an entity only has the powers and functions conferred either expressly or by implication on it by the statute. Mr Shaw’s contentions about the Trustee’s standing and authority have not yet been determined. It was in aid of those contentions that Mr Shaw sought the production of documents which could tend to establish, or not establish, the Trustee’s authority to commence the vexatious litigant application.

20    The Trustee is established as a corporation sole by s 18 of the Bankruptcy Act. Section 18 provides for some of the Trustee’s functions, and the Trustee’s duties are set out in s 19. Section 18 also confers powers on the Official Receiver (established by s 15), who is an officeholder of ASFA appointed by the Minister pursuant to s 16. Section 18(8) authorises the Official Receiver, being AFSA and authorised employee delegates (see s 15(4)), to exercise the powers, and perform the functions, of the Trustee, but to do so in the name of the Trustee. It appears that this may be what has occurred in the vexatious litigant application. Section 18AA provides that the Trustee is not a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth).

21    The primary judge observed at [25] that Mr Shaw had previously challenged the authority of AFSA and its employees to make decisions or take action on behalf of the Trustee, noting that his arguments had previously been described as “far from pellucid or persuasive”, referring to Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569 at [38]. Nevertheless, in the vexatious litigant application, Mr Shaw is able to make, and has made, a further challenge of that kind. He is entitled, in my opinion, to test that the Trustee does indeed have authority to issue a proceeding under s 37AO of the FCA Act, in the sense of challenging whether that falls within the Trustee’s express or implied powers and functions under the Bankruptcy Act, and if so, whether such matters as any necessary delegations had been made. If orders sought by the Trustee under s 37AO are made, they will bring to a halt the several proceedings Mr Shaw has on foot and preclude him from issuing any further proceedings without leave. That is an impediment to his access to the Court. I say nothing about whether such an order might be justified, but rather simply point out it would be an order with a real and substantial effect on Mr Shaw, who has been something of a regular litigant in this Court. He has sought to test that the Trustee has authority to bring such an application, and has sought documents to advance his arguments, documents which lie within the capacity of the Trustee to produce.

Grounds 2 and 3: Finding not open for determination; wrong test applied

22    Although as I have explained, the language of these grounds may not be entirely appropriate, Mr Shaw’s argument made his point clear. He contends the primary judge’s task on the Trustee’s objection to the Notices to Produce was to determine if the documents he sought were irrelevant, or whether there was some other reason the Trustee should not have to produce them. He contends he wanted production of these documents to resist the vexatious litigant application and to advance his argument about the Trustee lacking authority to commence and continue the vexatious litigant application.

23    In that situation, he contends it was not open to the primary judge to actually determine his any aspect of his December 2022 application. Yet, he contends, that is what her Honour did.

24    I consider Mr Shaw is correct.

25    At [23], the primary judge stated:

Mr Shaw submitted that the question whether actions taken by staff of the Australian Financial Security Authority (AFSA) in initiating and conducting the substantive proceeding against him were valid and authorised, was fundamental to his application.

26    Mr Shaw agrees this is an accurate summary of his contention. At [24], the primary judge finds that it is “difficult to identify how these documents sought by Mr Shaw are relevant to the substantive proceedings”. At [25], her Honour makes the observation about similar challenges in other proceedings. At [26], her Honour notes the Trustee was prepared to produce some of the documents. Then at [27]-[28], the primary judge concludes:

In my view the documents sought in the 1st Notice to Produce at [1], [2] and [5] are irrelevant. While the Official Trustee is content to produce them to Mr Shaw, I am not prepared to order compliance by the Official Trustee in respect of these paragraphs of the 1st Notice to Produce.

In relation to documents sought by the respondent in para [3] of the 1st Notice to Produce and para [1] of the 2nd Notice to Produce, I am not prepared to order compliance. The respondent has sought copies of any email or document indicating or confirming that proceedings VID361 of 2021 were commenced with the authority of the Official Trustee, or identifying the name and/or public service grade of authorising AFSA public servants. However as the applicant submitted, the proceedings against the respondent were plainly commenced with the authority of the Official Trustee. In this respect I also note the affidavit of Ms Meghan Sullivan, a lawyer in the employ of Harris Carlson Lawyers, solicitors for the Official Trustee, filed 2 July 2021, who deposed that she has the care and conduct of this matter on behalf of the Official Trustee. To the extent that the present litigation is conducted by the lawyers for the Official Trustee, in his name, and were instructed by the Official Trustee to act, I am satisfied that the proceedings were commenced with authority, and that production of documents confirming that authority would be a fishing exercise and an abuse of process.

(Emphasis added.)

27    The primary judge reiterates the nature of this finding later in her reasons at [36]:

I have already observed that the material before the Court supports a finding that the proceedings against Mr Shaw were properly instituted by the Official Trustee through its lawyers.

28    Before me it was agreed between the parties, by reference to the transcript of the hearing on 14 March 2022, that although Mr Shaw’s December 2022 application was listed for hearing on 14 March 2023, the primary judge adjourned that hearing and only decided the Trustee’s objection to the Notices to Produce. As counsel for the Trustee observed before me, all the documents for the December 2022 application hearing had been filed. But that application was not heard and determined. That is because her Honour correctly recognised she needed first to decide the objection to the Notices to Produce.

29    Yet in the passages above, the primary judge did determine the very aspect of Mr Shaw’s December 2022 application for which he sought the production of documents. Her Honour finds, “I am satisfied that the proceedings were commenced with authority”. That is, in my opinion, a final determination of Mr Shaw’s argument on authority. Properly, counsel for the Trustee did not seriously contest that proposition. He did submit the finding was necessary to determine relevance. I do not agree. They are different tasks, the question of relevance being far more confined.

30    With respect, her Honour went beyond a consideration of the relevance of the documents, in the sense of whether they might tend to prove or disprove Mr Shaw’s contentions about authority. Her Honour decided the authority point itself, against Mr Shaw. This was an error of the kind that meets the tests in House v The King [1936] HCA 40; 55 CLR 499.

31    To the extent grounds 2 and 3 cover this argument, Mr Shaw has demonstrated her Honour’s orders are affected by substantial doubt. Indeed, he has demonstrated, in my respectful opinion, an error by her Honour in not restricting herself to an assessment of relevance, and instead going on to decide the very argument Mr Shaw wished to have the documents to advance. I am also satisfied that there would be a substantial injustice to Mr Shaw if leave were not granted, because he should have access to those documents he sought to use to make his contentions about lack of authority in the Trustee. It is for another Judge to determine how probative those documents are of his authority contentions, or whether his contentions themselves have any legal merit.

32    In making these findings, I am not critical of her Honour. Mr Shaw’s contentions on this matter were mixed up with many other contentions that had no merit. A perspective of hindsight can often make a point look clearer than I am confident it might have seemed before the primary judge when she issued her decision.

Ground 1: Findings manifestly unreasonable

33    Insofar as this ground touches on the primary judge’s findings I have set out, it is unnecessary to decide. Insofar as this ground is another way of framing the arguments I discuss below, it has no merit and her Honour’s orders and reasoning are not affected by any substantial doubt.

Ground 4: Denial of a fair hearing

34    Insofar as this ground touches on the primary judge’s findings I have set out, it is unnecessary to decide. Insofar as this ground is another way of framing the arguments I discuss below, it has no merit and her Honour’s orders and reasoning are not affected by any substantial doubt.

Ground 5: Denial of procedural fairness: failure to consider evidence and arguments

35    First, it is important to distinguish between the case management hearing on 30 January 2023, and the hearing of the objection to the Notices to Produce on 14 March 2023. To the extent Mr Shaw complains about events at the former, they are not probative of any error by the primary judge after the second hearing. It was at and after the second hearing that the primary judge listened to the arguments and considered all the material. For example, the short loss of connection during the 30 January 2023 hearing, and a brief exchange between the primary judge and counsel for the Trustee, did not deny Mr Shaw procedural fairness in the exercises of power in respect of the Notices to Produce after the 14 March hearing. The 30 January hearing was nothing more than a case management hearing.

36    Further, I accept the Trustee’s submissions that in the context of these exercises of discretionary power on matters of practice and procedure, the primary judge was not obliged in her Honour’s reasons to refer to each and every one of Mr Shaw’s arguments, or to all of his evidence. Her Honour was not required to summarise those matters. Her Honour was required to consider them. I find her reasons disclose she did this, and the 14 March 2023 transcript demonstrates that her Honour listened to and grappled with what Mr Shaw was saying.

37    It is generally appropriate to deal with interlocutory applications as concisely and economically as possible. Prolixity in evidence and argument on interlocutory applications should not be encouraged; such practices are inefficient and tend to obscure the real issues in dispute between the parties. Attempting to recite or summarise prolix and unnecessarily complex evidence and submissions (whether from a layperson or a lawyer) encourages prolixity in judgments in a way which is not consistent with the judicial function in interlocutory matters, nor with the FCA Act. Reasons should be proportionate to the substance of the issues raised. Her Honour’s reasons were relevantly proportionate.

38    When a party is dissatisfied with an outcome of an interlocutory matter, no matter how fulsome the recitation by a primary judge of the evidence and arguments, it is likely the party can find something that has been missed. It is no part of the proper function of leave to appeal applications to invite a search for omissions of this kind. There should be no encouragement given to unsuccessful parties on interlocutory applications to look for needles in haystacks. That is the antithesis of timely, efficient justice in a court such as this. The FCA Act imposes on parties as well as their lawyers, the need for self-discipline in how matters are presented to the Court, and requires a focus on the core issues in dispute. That is what reasons for interlocutory orders need to address – the core reasons why interlocutory relief was granted or refused.

39    Mr Shaw has not demonstrated the primary judge’s orders and reasons were affected by doubt, let alone substantial doubt, on this ground.

Ground 5: Denial of procedural fairness: privilege finding

40    This ground concerns the primary judge’s finding at [42] of her reasons. Mr Shaw contends the primary judge did not apply the law on legal professional privilege, did not examine the documents concerned and denied him procedural fairness in concluding that the documents sought in the third Notice to Produce were covered by legal professional privilege. It is not necessary to set out her Honour’s reasons at [42]; I am satisfied the finding is correct. The documents as described in the third Notice to Produce, read with the affidavit from Ms O’Sullivan that was before the primary judge, provided a sufficient probative basis for the primary judge to infer the documents were covered by legal professional privilege.

Ground 6: Allegations of bias and prejudgment

41    Mr Shaw appears through his affidavit material to allege actual bias in the primary judge. An allegation of actual bias in a judge is a serious allegation. There is no basis whatsoever for Mr Shaw’s allegation and I reject it. The transcripts of 30 January and 14 March 2023 demonstrate the primary judge dealt patiently and properly with Mr Shaw. Her Honour’s reasons provide no basis whatsoever for the allegation made. It should not have been made by Mr Shaw without any probative material, no matter how hardly done by he feels.

42    As to apprehended bias, Wigney J set out the applicable principles in Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority [2020] FCA 1570 at [4]-[17], and I respectfully adopt those statements of principle. If Mr Shaw’s leave application ground refers only to apprehended bias, neither his affidavit material nor his submissions about her Honour’s background, without addressing the admissibility of the factual allegations contained within them, take his argument any further. Her Honour’s background before appointment, apart from being some considerable time ago and in a context wholly unrelated in fact to Mr Shaw or his bankruptcy or the Trustee’s vexatious litigant application, is not capable of raising a reasonable apprehension of bias in the way her Honour determined the fate of the three Notices to Produce.

43    While I have found her Honour erred by going beyond the findings required to decide if the “authority documents” sought (if I may describe them in this way) were relevant, nothing in the way her Honour approached this decision might cause a reasonable lay observer to think her Honour might not have brought an impartial mind to the exercise of her procedural discretion. Rather, her Honour’s error occurred in dealing with a large series of arguments made by Mr Shaw, which were not always easy to follow, which overlapped with one another, and which often invoked irrelevant material or cases. Sifting through those matters can be challenging.

44    Further, Mr Shaw will have ample opportunity to present arguments on the hearing of the vexatious litigant application. He is not prevented from making any arguments about the authority of the Trustee, or the alleged conflict of interest in Mr Hasan participating as an instructor. It is incorrect that any of the primary judge’s orders or reasons, or anything said during the hearings, preclude or prevent Mr Shaw from making these arguments at the hearing of the Trustee’s application, or at the hearing of his own December 2022 application (assuming those matters should be dealt with together in any event).

45    Should a particular document or documents become obviously and objectively material to the competing arguments about whether Mr Shaw should be declared a vexatious litigant under s 37AO, then I am confident a primary judge will hear arguments at that time about whether a party should be ordered to produce that particular document or documents. The trial of the vexatious litigant application has yet to occur. Neither Mr Shaw nor the Trustee will be shut out of calling for, or seeking production of, a document or documents which have, on the evidence at trial, obviously become objectively material to the determination of the Trustee’s application.

46    Mr Shaw himself deposes, in his second affidavit in support of the application for leave to appeal:

In that hearing there was extensive discussion regarding the relevance of the documents sought to the issues I raised in the proceeding.

47    Having read the transcript of the 14 March hearing, I consider this evidence is accurate. The primary judge gave Mr Shaw a full and ample opportunity to develop his arguments about why the Notices to Produce should be issued.

48    As to Mr Shaw’s other complaints said to involve a denial of procedural fairness, in Shaw v AFSA, Wigney J said at [12]:

I should add in this context that in AJH Lawyers Pty Ltd v Careri [2011] VSCA 425; 34 VR 236, the Court of Appeal of the Supreme Court of Victoria, noted, amongst other things, that while judges should normally give an applicant reasonable opportunity to make submissions, judges do not have to devote unlimited time to listening to unmeritorious arguments; sometimes a brief hearing will suffice (at [25]).

49    I respectfully agree. Judicial and court time and resources are limited, and must be available to address the needs of all litigants in this Court. Inevitably, ensuring that the needs of all litigants in the Court are met, and that justice is administered to all litigants in a reasonable, efficient and timely fashion, means placing reasonable limits on the length and duration of hearings, the length of submissions and indeed also evidence. These limits are likely to ensure not only that court time is most efficiently used, but that preparation time (and legal costs) are kept within reasonable bounds, and judgment-writing time (a resource as important as any other in the administration of justice) is used as effectively as possible. Mr Shaw chooses to represent himself. That is his choice. But he has the same obligations under s 37N as any other party. He must assist the court to ensure it makes efficient and effective use of its limited resources.

50    I am comfortably satisfied Mr Shaw had a fair hearing before the primary judge.

Other alleged errors

51    Mr Shaw’s affidavit material contains allegations of errors not covered in the proposed notice of appeal, even when read fairly and taking into account that Mr Shaw is self-represented: see for example [34] ff. They are outside the application for leave to appeal and will not be considered.

Further grounds

52    In his second affidavit at [31], Mr Shaw deposes that he seeks

leave to add further grounds to the grounds set out in my affidavit of 14 April as I didn't have time to include them all in the 14 days allowed

53    Mr Shaw did not raise this further application at the oral hearing, or in his written submissions. I do not propose to grant Mr Shaw such leave. In my view it is clear from the original application for leave that Mr Shaw had plenty of time to compose his proposed grounds of appeal. He was not short of arguments. Most unsuccessful parties could, if given time, think of further arguments. One purpose or effect of a time limit such as that in r 35.13 is to focus parties’ minds and efforts on advancing their key grounds, and to do so in a timely fashion, to ensure that disputes about interlocutory orders are resolved in a timely fashion. It would be contrary to the principles in s 37M of the FCA Act, and the purposes of a time limit in what is in any event a matter of practice and procedure, for a party in Mr Shaw’s position to be able to continue to add further arguments about further alleged errors made by a primary judge. It would also be unfair to a party in the position of the Trustee, which has already expended considerable funds on Mr Shaw’s various applications and proceedings.

Conclusion

54    Following the hearing in this application, and at the Court’s invitation (based on what had occurred before the primary judge), the solicitors for the Trustee informed the Court that in relation to the first Notice to Produce, the Trustee would be content to produce the documents sought in paragraphs 1, 2, 3, and 5 of that Notice, and that in relation to paragraph 4, the Trustee has already indicated to Mr Shaw that no document exists. Further, the Trustee submitted that the document which responds to paragraph 3 of the first Notice contains information which is claimed to be subject to legal professional privilege, and as such, this document could be produced in a redacted form to Mr Shaw. That is an appropriate course for the Trustee to take. By this approach, Mr Shaw will not be shut out from challenging that privilege claim at the trial of the vexatious litigant application.

55    I have explained why Mr Shaw’s leave to appeal application had one point which had merit, which I have taken (favourably to Mr Shaw) to be raised under either ground 2 or ground 3 of the application for leave to appeal.

56    Mr Shaw is entitled to some form of relief in relation to that one point. However, granting leave to appeal and listing a full appeal on the one identified error would be an inappropriate course to take in the circumstances, given the nature of the error and the Trustee’s indication about the production of relevant authority documents. It would also be disproportionate in terms of the time and resources of the parties and the Court.

57    In light of the indication given by the Trustee about production of relevant authority documents, I consider the appropriate course is to adjourn the leave to appeal application, and to require the Trustee to produce the documents it has agreed to produce within seven days. If that occurs, the error identified will have been in substance corrected and Mr Shaw will have the authority documents so as to advance his December 2022 application, which in my opinion would be most efficiently heard together with the vexatious litigant application, although this is ultimately a matter for a primary judge. The remainder of the arguments made by Mr Shaw on the leave to appeal application have been rejected. Once the documents are produced, it will be appropriate to dismiss the application for leave to appeal.

58    In those circumstances, once the documents are produced, the vexatious litigant application can then be heard and determined as soon as reasonably practicable, which is in the interests of both parties, and in the interests of the administration of justice more generally, in terms of the occupying of court time and resources.

59    I apprehend from the written and oral submissions of Mr Shaw, and his affidavit material, that further objections by Mr Shaw may be made to Justice Collier hearing the vexatious litigant application. I have found the objections made to date have no basis whatsoever. Nevertheless, to avoid Mr Shaw attempting to raise them again, and occupying further time and resources of the Court and the Trustee while still avoiding the hearing and determination of the vexatious litigant application, I consider that a re-allocation of the proceeding to another Judge would be appropriate.

60    I emphasise that is not to suggest any difficulties with how Justice Collier has managed the proceeding to date. However, Mr Shaw has proven himself willing to make numerous and wide-ranging arguments, and to challenge every step in every proceeding that he perceives as adverse to his interests. It would not be consistent with s 37M of the FCA Act for Justice Collier to have to continue to case manage and then hear and determine this application in circumstances where I consider it is probable Mr Shaw will continue to agitate actual and apprehended bias allegations against her.

61    The course I have taken in relation to appropriate relief on this application is somewhat unusual, but it represents the Court fashioning relief to suit what is appropriate where Mr Shaw has identified an error in the primary judge’s exercise of procedural discretion that I consider should be corrected, while ensuring that the time and resources of the Court and the Trustee are used as effectively and efficiently as possible, and that the core issue in dispute between the parties – whether Mr Shaw can and should be declared to be a vexatious litigant – can be determined. Since the outcome of that application also affects how the Court itself deals with Mr Shaw as a present and possibly future litigant, with more than one proceeding currently subject to stays, it is in the interests of the administration of justice that the Trustee’s vexatious litigant application be determined, one way or the other, as soon as reasonably practicable.

62    The costs order made by her Honour should stand, because most of the arguments made by Mr Shaw on 14 March were rightly rejected by her Honour. The Trustee should have its costs of the hearing and preparation for it.

Associate:

Dated:    1 June 2023