FEDERAL COURT OF AUSTRALIA

Edmonds v Barrington Winstanley Group Pty Ltd [2024] FCA 821

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Costs are reserved.

3.    There be liberty to apply.

THE COURT NOTES THAT:

4.    The parties are to endeavour to agree a timetable for the filing of any application as to costs, together with any associated steps.

5.    In the absence of agreement as to the appropriate timetabling orders, the matter will be relisted for case management.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit and Family Court (Division 2) (Circuit Court): Edmonds v Barrington Winstanley Group Pty Ltd [2023] FedCFamC2G 785 (PJ). The primary judge dismissed an application for review of a decision of a Registrar of the Circuit Court which in turn had dismissed an application to set aside a Bankruptcy Notice.

2    The notice of appeal contains ten grounds of appeal which are lengthy and, as the respondent, Barrington Winstanley Group Pty Ltd (BWG), submitted, are more in the nature of submissions. As was the case with respect to the complaints made below, the grounds of appeal also lack clarity. As the respondent submitted, this is a matter of particular concern given the seriousness of some of the allegations made against the respondent and its legal representatives. Those allegations are, as I later find, completely unfounded and should not have been made.

3    Ultimately, the grounds in the notice of appeal reduce to two broad contentions:

(1)    Did the primary judge err in not accepting that the appellants could not have set up the counterclaims, set offs and/or cross demands in earlier proceedings in the Supreme Court of New South Wales?

(2)    Did the preliminary judge err in declining to go behind Supreme Court and NSW Court of Appeal judgments?

4    For convenience, I have described these as contentions 1 and 2 respectively.

5    For the reasons set out below, neither contention is established, and the appeal must therefore be dismissed.

2.    BACKGROUND

2.1    The origins of the dispute

6    BWG relevantly conducts business as a finance broker.

7    On 3 November 2017, BWG, DSJSE Pty Ltd (as borrower) and the appellants (as guarantors of DSJSE’s obligations) executed an Exclusive Mandate and Fee Agreement by which DSJSE retained BWG to obtain finance for it.

8    Also on 3 November 2017, Ms Edmonds (the first appellant) executed a Letter of Offer provided by In Base Investments Pty Ltd for a loan in the amount of $3,840,000 for a term of 3 months. That loan did not proceed. From time to time after 3 November 2017, BWG presented further possible offers to DSJSE. However, it is not in dispute that no funds were ultimately advanced.

9    On 27 April 2018, DSJSE and the appellants executed a Deed of Acknowledgment of Debt. In addition to referring to the Agreement and the Letter of Offer, the recitals to the Deed explain that:

(1)    BWG lodged a caveat over various properties in December 2017 following DSJSE’s failure to make payment of the Service Fee under the Agreement;

(2)    on or around 5 April 2018, BWG was served with a notice to caveator of proposed lapsing of the caveat over the properties;

(3)    on 11 April 2018, the appellant’s then legal representatives confirmed their instructions to withdraw the lapsing notice; and

(4)    DSJSE and the appellants acknowledged their respective obligations under the Agreement including repayment of the Service Fee.

10    As I explain below, the caveat was ultimately removed on 10 November 2022 after the decision by Darke J and before the decision of the Court of Appeal.

11    Various proceedings arose following these transactions which I summarise below.

2.2    Supreme Court proceedings

12    By a Statement of Claim filed on 22 April 2021 in the Supreme Court, BWG sought a monetary judgment against various defendants, including the appellants (Ms and Mr Edmonds) and DSJSE (which later went into liquidation). Specifically, BWG sued on the Deed and, in the alternative, on the Agreement for a fixed sum plus interest and to enforce the securities which it alleged were created by the Agreement. On 4 May 2022, Darke J handed down judgment in that proceeding: Barrington Winstanley Group Pty Ltd v Edmonds [2022] NSWSC 531 (SC Judgment). Justice Darke found that BWG had not established that monies were owed under the Agreement because the conditions for payment under the Agreement (relevantly, BWG obtaining a loan offer within the ambit of specified instructions in Schedule A to the Agreement) were not met: SC Judgment at [77]–[81]. BWG was therefore also unsuccessful in enforcing securities allegedly created by the Agreement: SC Judgment at [81]–[88]. However, BWG’s claim under the Deed was upheld with the result that judgment should be entered for BWG against Mr and Ms Edmonds for $240,520 plus interest at the agreed rate, being 2.5% per month: SC Judgment at [73]–[76]. On 20 May 2022, orders were made by the Supreme Court including that judgment be entered for BWG in those proceedings against the appellants in the sum of $801,116.89 (including interest) (Judgment Debt).

13    On 24 July 2023, the Court of Appeal dismissed Mr and Ms Edmonds’ appeal from the SC Judgment: Edmonds v Barrington Winstanley Group Pty Ltd [2023] NSWCA 166 (CA Judgment). Relevantly, by the notice of appeal in the Court of Appeal, the appellants sought leave to rely upon a number of claims despite not raising them before Darke J, including a claim under the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act). As Stern JA (with Meagher JA and Leeming JA agreeing at [1] and [2] respectively) explained at [25]–[26]:

Some further grounds in the NOA were relied upon in the appellants’ written, but not oral, submissions. These were characterised in the appellants’ submissions in reply as “defences, counterclaims and appeal grounds” that would have been advanced by the appellants “but for said setbacks, systemic access unavailability of Mrs Edmonds, and failures to accord due process”. These included grounds based upon claims of breach of fiduciary duty, breaches of the National Consumer Credit Protection Act 2009 (Cth), misleading or deceptive and unconscionable conduct both at common law and under statute, claims of common law fraud and reliance upon the second limb of Barnes v Addy (grounds 5(f)-(g), 6, 9, 10, 14-16) (“Further Grounds”). I also include within this category of “Further Grounds” the submissions advanced by the appellants in writing that the Deed was liable to be set aside for unilateral or common mistake and that there was a defence available to the appellants under s 12DMA of the Australian Securities and Investments Commission Act 2001 (Cth).

These were not matters that were raised before the primary judge. They were not pleaded, either by way of defence or cross-claim, nor were they relied upon in submissions before the primary judge.

14    In those circumstances and there being no exceptional circumstances, the Court of Appeal held (at [27]–[28]) that the new grounds could not be relied upon on the appeal (applying University of Wollongong v Metwally [1985] HCA 28; (1985) 59 ALJR 481 at 483). Nor did the Court of Appeal accept the appellants’ submission that the failure to advance these claims before Darke J was due to any denial of procedural fairness: CA Judgment at [28]. Specifically, Stern JA held (at [89]) that:

Having regard to the matters set out above, the appellants had a reasonable opportunity, over the course of the proceedings, to formulate such defences or counter claims as they wished to rely upon. Over that period, they had some legal advice and otherwise themselves, in particular through Mrs Edmonds, gave close attention to the matters alleged in the claim and how best to respond to them. They were sufficiently aware of the provisions of the [Farm Debt Mediation Act 1994 (NSW) (FDM Act)] and its ambit of application to rely upon the FDM Act in other proceedings. They were appropriately served with the court documents and evidence relied upon by the respondent. They were advised as to further matters that they could potentially rely upon by Mr Edwards apparently between 5 and 18 April 2022 but did not seek to amend their Defence to rely upon such matters. Further, the hearing was fixed in September 2021 by reference to Mr Edwards’ availability. There was no explanation as to why, in these circumstances, attempts were not made to secure the attendance of Mr Edwards, or another legal representative, at the hearing until 8 April 2022. There was no denial of procedural fairness.

15    In this regard, I note that the primary judge at [45] accepted the Court of Appeal’s finding, holding that:

I accept the respondent’s submission that the reference in the applicants’ written submissions to the NSW Court of Appeal having “disregarded” their claims was inappropriate. The NSW Court of Appeal considered, but did not accept, the applicants’ submission that they had been prevented from raising in the Supreme Court Proceedings the numerous defences and counterclaims that they subsequently wished to rely upon. At [89] of the Appeal Judgment, it was found that the applicants “had a reasonable opportunity, over the course of the proceedings, to formulate such defences or counter claims as they wished to rely upon”. For the reasons given in the Appeal Judgment, I accept that this is the case. The applicants had some level of legal assistance during the Supreme Court Proceedings and were given adequate opportunity to raise such claims or defences as they wished to raise.

16    There was no application for leave to appeal to the High Court by Mr and Ms Edmonds from the Court of Appeal’s decision.

2.3    Proceedings to set aside a Bankruptcy Notice

17    On 3 June 2022, a Bankruptcy Notice was issued to the appellants in respect of the Judgment Debt.

18    On 30 June 2022, the appellants filed an application with the Circuit Court seeking to set aside the Bankruptcy Notice.

19    On 30 August 2022, the following orders were made by a Registrar of the Circuit Court:

1.    The application to set aside Bankruptcy Notice BN256386 issued on 3 June 2022 be dismissed.

2.    The Applicants pay the Respondent’s costs of and incidental to the application fixed in the amount of $25,856.86.

20    On 4 November 2022, the appellants filed an application seeking an extension of time within which to seek review of Registrar’s decision.

21    At the hearing before the primary judge on 21 August 2023, an extension of time was granted without objection: PJ [11]. The primary judge dismissed the application for review.

2.4    Creditor’s petition in the Circuit Court

22    On 3 September 2022, the respondent filed a creditor’s petition in proceedings MLG2012/2022 seeking sequestration of the appellants’ estates. Those proceedings are ongoing.

23    The respondent advised this Court that, on 13 November 2023, the appellants obtained an adjournment of the creditor’s petition relying on the Bankruptcy Notice and that proceeding is now to be heard on 16 August 2024. The creditor’s petition was filed on 3 September 2022 and was (on 13 November 2023) extended to 3 September 2024. It cannot be further extended.

2.5    Procedural steps in the conduct of this appeal

24    On 26 September 2023, the appellants filed a notice of appeal from the Circuit Court.

25    On 28 November 2023, I made orders timetabling the matter and on 29 February 2024, the matter was listed for final hearing on 7 June 2024.

26    The appellants failed to comply with my orders made on 28 November 2023, relevantly, as follows:

(1)    when the matter was listed for hearing on 7 June 2024, the appellants failed to file and serve their outline of submissions and chronology of relevant events no later than six weeks before the date of the hearing, being 26 April 2024 (order 2);

(2)    on 6 May 2024, the appellants attempted to file an outline of written submissions which failed to comply with the order that outline of submissions were to be no more than ten pages in length (order 7(a)); and

(3)    on 6 May 2024, the appellants attempted to file a chronology which failed to comply with the order that the chronology of events be no more than three pages (order 3(b)).

27    On 6 May 2024, the respondent’s representative wrote to my Chambers requesting that the matter be listed for a case management hearing as soon as possible. This correspondence, at the appellants’ request, attached a copy of correspondence from the appellants’ solicitor to the respondent’s solicitors. The appellants’ correspondence foreshadowed the appellants’ intention to file two interlocutory applications seeking orders to the following effect: (1) that leave be granted to adduce fresh evidence on the appeal; and (2) that the respondent’s solicitors and counsel (the respondent’s representatives) be restrained from acting for the respondent.

28    On 7 May 2024, I proposed to list the matter for a case management hearing on 9 May 2024. The appellants’ representative advised that “the writer can attend via AVL or iphone”. On the same day, my associate emailed the parties’ solicitors confirming that the matter was listed on 9 May 2024 and providing them with the Microsoft Teams link. On 9 May 2024, there was no appearance for the appellants at the case management hearing and the matter was re-listed for 10 May 2024.

29    The parties’ representatives appeared before me on 10 May 2024. At the case management hearing, I granted the appellants’ an extension of time until 13 May 2024 to file their outline of written submissions. I also made orders permitting the appellants to file and serve any application for leave to amend the notice of appeal and to lead further evidence on or before 17 May 2024, and refusing to grant the appellants leave to file an application seeking to restrain the respondent’s representatives from acting for the respondent in this proceeding. No coherent or satisfactory explanation was given by the legal representative for the appellants for the failure to attend the case management hearing on 9 May 2024.

30    On 13 and 14 May 2024, the appellants attempted to file an outline of written submissions which failed to comply with the order that the outline of submissions were to use at least 12 point font and that references should be included in the body of the text (order 7(b) and (c) of my orders made on 28 November 2023).

31    On 17 May 2024, the appellants filed an interlocutory application seeking leave to amend the notice of appeal and adduce fresh evidence on the appeal.

32    On 21 May 2024, I brought the matter back before me for case management and made an order permitting the appellants to file and serve any application to restrain the respondent’s representatives from acting for the respondent in this proceeding by 24 May 2024. Given the late stage of the application and the fact that judgment in these proceedings ought to be delivered before 16 August 2024 when the creditors petition is listed for hearing, I granted the respondent’s representatives leave to appear in respect of any such application. The appellants’ interlocutory applications were listed for 5 June 2024.

33    On 24 May 2024, the appellants filed an interlocutory application naming the solicitor for the respondent, Michael John Leonard, and counsel for the respondent, Marcus Pesman, as the second and third respondents respectively to the application, and seeking orders restraining the respondent from engaging Mr Leonard and Mr Pesman SC from acting in this proceeding and the creditor’s petition in the Circuit Court.

34    On 3 June 2024, the appellants wrote to my Chambers advising that their solicitor had a family emergency as a result of which he was unable to appear on their behalf at either the interlocutory hearing listed on 5 June 2024 or the final hearing listed on 7 June 2024.

35    On 4 and 5 June 2024, I made orders that the appellants’ letter of 3 June 2024 be treated as an application for an adjournment of the hearings and requiring the appellants to file and serve an affidavit in support of the adjournment application. On 5 June 2024, the appellants filed an affidavit in support of the application. Both hearings were vacated. The interlocutory hearing was re-listed for 25 June 2024 and the final hearing was re-listed for 28 June 2024.

36    On 14 June 2024, the first appellant and counsel for the respondent appeared before me for a case management hearing. The first appellant advised the Court that she would endeavour to comply with the Court’s orders and that the appellants’ solicitor intended to continue to act in the proceeding.

3.    INTERLOCUTORY APPLICATIONS

3.1    Interlocutory orders sought

37    The appellants’ interlocutory application seeking the disqualification of the respondent’s representatives seeks the following orders:

1.    Pursuant to the inherent or implied jurisdiction of the Court or Section 23 of the Federal Court of Australia Act (1976) (Cth), an Order restraining each Respondent, in person or by any partner, firm, agent, servant or otherwise as applicable, from engaging the Second Respondent or the Third Respondent, and from acting for or representing the First Respondent respectively in these Proceedings and in Petition Proceedings No. MLG2012/2022.

2.    An Order discharging Order 12 of 21 May 2024 herein.

3.    Any other relief that is or is deemed to be appropriate in the premises.

4.    Costs.

38    As I have noted above, the second and third respondents to that interlocutory application are the respondent’s solicitor and counsel respectively.

39    The appellants’ other interlocutory application seeks the following orders:

1.    Pursuant to Section 25 of the Federal Court Act 1976 (Cth) and Federal Court Rules 2011, Rules 36.11 and 1.32, leave to amend the Notice of Appeal filed on 26 September 2023.

2.    Pursuant to the said Act, Section 27 and said Rules, Rule 36.57, leave to adduce fresh evidence referred to in the supporting Affidavit of Sandra Henri Edmonds intended to be sworn on 17 May 2024.

3.    Such further relief as the Court deems fit under the said Act, Section 25 and said Rules, Rule 1.32.

40    The appellants’ interlocutory applications were heard on 25 June 2024. I dismissed the applications and stated that I would give my full reasons in my decision on the substantive appeal. Those reasons are set out below.

3.2    Application to disqualify the respondent’s representatives

3.2.1    Relevant principles

41    As the appellants’ submitted, in determining an application to restrain legal practitioners from acting on behalf of their clients “justice must always be seen to be done”: Michael Smith Real Estate Pty Ltd (t/as Raine & Horne Marrickville) v Chmait [2021] NSWSC 1160 at [64] (Ward CJ in Eq) quoting with approval McDougall J in El-Cheikh v Miraki [2017] NSWSC 1765 at [20].

42    Subject to one caveat, Lee J in Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 at [113] (with Besanko and Abraham JJ relevantly agreeing at [1]) endorsed the summary of applicable principles by Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [39]. Relevantly:

(1)    The Court has an inherent (or more accurately, with respect, an implied) jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal representatives from acting in a particular case, as an aspect of its supervisory jurisdiction.

(2)    The relevant test is “whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a [representative] be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice” (emphasis in original). This is subject to the caveat that the weight of authority supports the view that the test is whether the member of the public “would” reach the necessary conclusion, and not merely that they “might”: Porter at [114] (Lee J); see also, eg, Finch v Heat Group Pty Ltd (No 2) [2016] FCA 791; (2016) 353 ALR 193 at [9] (Pagone J).

(3)    This power is an exceptional one and should be exercised with caution.

43    This caution is amplified in circumstances where, as is the case here and as in Finch, there is no suggestion that the respondent’s legal representatives have previously acted for the party seeking orders restraining the legal practitioner from acting. As Pagone J in Finch helpfully explained at [9]:

It is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as “extraordinary and protective” (Woodgate v Leonard [2007] NSWSC 495… at [37]), of an “exceptional nature” (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91 at [30]) and to be applied only in a “clear” case (Bransdon v Davis & Gilbert (2007) 37 Fam LR 555; 212 FLR 28; [2007] FamCA 579 at [70]): see also GE Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party’s chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client’s case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiably interfere with the proper conduct of the client's case. It may also have the effect of causing irreparable harm to the client’s case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.

44    In line with these principles, the following considerations are of particular relevance to the exercise of the implied power to restrain legal practitioners from acting in the present case:

(1)    the public interest in a party not being deprived of the legal representative of their choice: Porter at [113] (Lee J) quoting Mumbin at [39] (Griffiths J);

(2)    the concern that an order disqualifying a legal representative from acting for a party may confer an unjustifiable forensic advantage upon the party seeking the restraint: Finch at [9] (Pagone J);

(3)    the Court’s reluctance to interfere with the relation between opposing parties and their representatives: Finch at [9] (Pagone J);

(4)    the fact that, in the appellate context, preventing a legal representative from continuing to act in the appeal “would necessarily expose the client to increased costs and it would deprive the appellate court of the direct assistance of the legal practitioners best placed to assist the Court in the appellate proceedings with questions arising about the trial and of how it was conducted”: Finch at [10] (Pagone J);

(5)    the fact that allegations of breach of professional duty should not be made lightly and a disqualification application is not a substitute for disciplinary proceedings: Thomas v University of Melbourne (No 2) [2018] FCA 2024 at [8] (Wheelahan J); Finch at [11] (Pagone J); and

(6)    the timing of the application for disqualification “in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief”: Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [76] (Brereton J).

45    The last of these points in particular aligns with the overarching purpose in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) to which I refer below.

3.2.2    Reasons for refusing to disqualify the respondent’s representatives

46    In support of their disqualification application, the appellants relied upon Ms Edmond’s affidavits sworn on 24 May 2024 and 19 June 2024.

47    The affidavits of Ms Edmonds contained multiple allegations against the respondent’s representatives of unethical conduct, conduct in breach of their obligations to the Court, and criminal conduct. As such, the allegations were of a most serious kind.

48    In oral submissions, the appellants’ solicitor was invited to take the Court to any evidence in support of the allegations made in those affidavits. The appellants’ solicitor took the Court to evidence said to support a couple of the allegations. However, even in those limited examples, the evidence, at its highest, rose no higher than to indicate the existence of disagreement between the parties about the matters in dispute which is an inherent aspect of the adversarial system of litigation. Nothing in those examples could conceivably have provided a basis for inferring a deliberate attempt to mislead the Court in any respect or of other misconduct.

49    At the interlocutory hearing on 26 June 2024 and after hearing oral argument from the appellants, I ruled the affidavits of 24 May 2024 and 19 June 2024 inadmissible on the basis that they contained bare assertions of a scandalous nature against the respondent’s representatives. The affidavits rose no higher than ill-founded suspicions. On no view were the affidavits admissible. As such, no admissible evidence was led in support of the application to disqualify the respondent’s representatives and the application was dismissed. Even if the affidavits had been taken as submissions instead of evidence, I consider that the considerations identified at [44] above would have led me to the same result. I would emphasise that in my view, given the state of the evidence, the allegations should not have been made; nor should the application for disqualification.

3.3    Application for leave to amend the notice of appeal

3.3.1    Relevant principles

50    Rule 36.11 of the Federal Court Rules 2011 (Cth) (FCR) confers a broad discretion on the Court, among other things, to grant leave to amend the grounds of appeal.

51    The Court must exercise its discretion to grant leave to amend in accordance with the overarching purpose in s 37M of the FCA Act: Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Limited (in liq) [2015] FCA 1098 (Tamaya Resources (FCA)) at [125] (Gleeson J). Section 37M provides:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

52    The application of like case management principles was considered by the High Court in the context of a late application to amend pleadings in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In particular, in Aon Risk, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that the question of whether leave to amend should be granted did not simply require consideration of whether the party seeking to amend has an arguable case: at [114]. Rather, “serious consideration” must be given to other matters: at [114]. The factors to be considered were summarised by Gleeson J in Tamaya Resources (FCA) at [127] (in a passage accepted on appeal in Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 (Tamaya (FCAFC)) at [125]), and include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck”) at [44];

(6)    The detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

53    As to the fifth of these considerations, the plurality in Aon Risk emphasised (at [112]) that:

limits will be placed upon [the parties’] ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

(Emphasis in the original.)

54    In line with this, the plurality had earlier accepted at [102] that the objectives under the Court Procedures Rules 2006 (ACT) do not require that every application for amendment be refused because it involves wasted costs and delay. Rather, “[f]actors such as the nature and importance of the amendment to the party applying cannot be overlooked.”

55    With respect to the considerations referred to by Gleeson J at [125](6) and (7) above, French CJ explained in Aon Risk at [5] that “the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.” Similarly, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, the Court held (at [51]) that:

In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.

(Citations omitted.)

56    Moreover, while Aon Risk concerned the application of the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings, the High Court pointed out in Expense Reduction at [51] that “the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.” That the philosophy which informed their Honours findings in Aon Risk applies equally to s 37M of the FCA Act was confirmed by the Full Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [43]. As such, the same considerations inform the question of whether leave should be granted to amend the notice of appeal.

57    Finally, the duty imposed upon the Court by s 37M of the FCA Act applies irrespective of whether a party is legally represented or is self-represented: see, eg, Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75. Importantly in this regard, s 37N(1) of the FCA Act imposes a duty directly upon a party to civil proceedings, with a separate duty being imposed upon legal representatives by s 37N(2) to assist the party to comply with that duty. Section 37N(1) and (2) provide that:

(1)    The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

(2)    A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:

(a)    take account of the duty imposed on the party by subsection (1); and

(b)    assist the party to comply with the duty.

(Emphasis added)

3.3.2    Evidence on which the parties relied with respect to the interlocutory application filed on 17 May 2024

58    The appellants’ relied on the following affidavits in support of the interlocutory application filed on 17 May 2024, subject to certain limitations the subject of agreement between the parties or of rulings:

(1)    the affidavit of Ms Edmonds sworn on 17 May 2024 excluding [75]–[77], [78](d)(ii) and the document identified as item 6 in index to the annexures; and

(2)    the affidavit of Ms Edmonds sworn on 23 May 2024 excluding the documents identified as items 21 and 22 in the index to the annexures.

59    The respondent relied on the following affidavits, subject to certain limitations the subject of agreement between the parties or of rulings:

(1)    paragraphs [1] and [26] of the affidavit of Michael John Leonard affirmed on 31 May 2024; and

(2)    the affidavit of Kelwyn Barrington Hough affirmed on 20 May 2024 with the first sentence of [4] read only as an expression of Mr Hough’s honestly held belief.

3.3.3    Reasons for dismissing the application for leave to amend

60    The proposed amended notice of appeal is annexed to the affidavit of Ms Edmonds dated 17 May 2024. In common with the original notice of appeal, the proposed amended notice of appeal seeks orders setting aside the Bankruptcy Notice of 3 June 2022 in respect of the Judgment Debt, and with respect to costs below and on the appeal. However, it also seeks substantive relief in the following terms for the first time:

4.    A declaration that the Deed was void and unenforceable for illegality.

5.    A separate declaration that the respondent contravened each said enactment.

6.    A declaration that the respondent was in fundamental breach or breach of essential conditions in clause 2.2 of the Agreement and clause 2.3 of the Deed at all material times.

61    The “said enactment[s]” are identified earlier in the pleading, being various provisions of the National Credit Code in Schedule 1 of the NCCP Act, the Australian Securities and Industries Commission Act 2002 (Cth), and ss 18-22 of the Australian Consumer Law.

62    The application for leave to amend was opposed by the respondent.

63    During the course of argument, the appellants’ solicitor submitted that there were six categories of grounds raised by the amended notice, namely:

(1)    the proper construction of the Deed;

(2)    whether the appellants have a counter-claim, set-off or cross demand within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth);

(3)    whether the Bankruptcy Notice was invalid due to the operation of s 41(5) of the Bankruptcy Act;

(4)    whether the Court should go behind the judgments of the Supreme Court and the Court of Appeal for illegality;

(5)    whether there was a positive prohibition against raising a cross-claim or cross demand in the Supreme Court; and

(6)    whether substantial injustice flowed from the primary judge’s decision.

64    However, the appellants’ solicitor confirmed that, in his view, the notice of appeal as originally pleaded raised all the same issues: transcript of the interlocutory hearing on 25 June 2024 (TIH)-37. He also, appropriately, did not press the declaratory relief sought in [4]–[6] inclusive of the proposed amended notice of appeal, given that that relief went beyond the relief sought at first instance: TIH-35. As such, while the proposed amended notice of appeal would have deleted the whole of the text of the previous notice of appeal and substituted new text, thereby rewriting the entirety of the notice of appeal as originally filed, the appellants did not identify any prejudice to them if the application for leave to amend was refused. However, the respondent would suffer prejudice by reason of the fact that the written submissions had already been filed by reference to the grounds of appeal as set out in the notice of appeal as originally formulated and the relationship between the grounds of appeal set out in the proposed amended notice of appeal and the original notice of appeal is not readily apparent. Nor was any adequate explanation given for the lateness of the application for leave to amend the notice of appeal.

65    In those circumstances and given the proximity of the hearing of the appeal, I considered that the appeal should proceed on the basis of the notice of appeal as originally filed and that the application for leave to amend should be dismissed. In my view, this result best promoted the overarching objective in s 37M of the FCA Act and accords with the modern approach to case management explained in Aon Risk, and the subsequent decisions to which I have referred. Accordingly, orders were made in those terms at the hearing. I note however, that this did not involve any concession by the respondent that all of the issues raised by the grounds of appeal in the original notice of appeal had been litigated at first instance.

3.4    Application to lead fresh evidence on appeal

3.4.1    Relevant principles

66    Section 27 of the FCA Act provides that “[i]n an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence”. Importantly, however, the power to adduce fresh evidence on an appeal “should not be construed in such a way as to obliterate the distinction between original and appellate jurisdiction”: Frigger v Trenfield (No 3) [2023] FCAFC 49 at [152].

67    The principles guiding the consideration of applications to adduce further evidence on appeal are well-settled and were not in issue. These are conveniently summarised in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] by Griffiths and White JJ as follows:

(1)    The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.

(2)    The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.

(3)    The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.

(4)    The following two considerations will normally be relevant to the exercise of the discretion:

(i)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(ii)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;

(5)    The interests of third parties and the public at large may outweigh a party's interest in the finality of litigation …

(Emphasis added.)

68    This summary was quoted recently with approval by the Full Court in Veale v Coleman [2024] FCAFC 83 at [7]: see also, eg, CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; (2022) 294 FCR 318 at [32]–[34] and Frigger at [152]. In addition, as the Full Court explained in CKT20 at [34], the power in s 27 of the FCA Act:

is one of the civil practice and procedure provisions covered by s 37M of the FCA Act. Section 37M(3) imposes an obligation on the Court to exercise any such power in the way that best promotes the overarching purposes of those provisions. That purpose is described in s 37M(1) as the facilitation of the just determination of disputes as quickly, efficiently and inexpensively as possible.

69    Section 37M(1)–(2) is set out above at [51].

3.4.2    Evidence on which the parties relied with respect to the application for leave to adduce fresh evidence on appeal

70    The parties relied on the evidence set out at [58]–[59] above. The fresh evidence in question comprised 33 documents as described at Table C in [74] of Ms Edmonds’ affidavit of 17 May 2024 (omitting item 6), namely:

71    The appellants submitted that Ms Edmonds’ evidence established that the fresh evidence could not have been discovered prior to the trial before the primary judge by reasonable diligence. Relevantly, Ms Edmonds’ evidence in her affidavit of 17 May 2023 was as follows.

(1)    On 16 March 2018, police officers took possession of a large number of documents and the appellants’ computers pursuant to a search warrant, including correspondence with BWG relating to refinancing of their loans: at [22].

(2)    On 30 July 2018, Ms Edmonds was arrested and placed in custody on remand on various charges where she remained until 30 August 2019 on being granted bail: at [27] and [32]. During this period, she had no telephone or computer access and, for at least part of that time, no visits were permissible and she was unable to make contact with family members or any lawyers: at [29]–[31].

(3)    On 30 August 2019, she was granted bail with strict bail conditions which precluded her “from using any electronic devices and gaining access via computers or telephone to any information and documents that had been seized and retained by the NSWPS, until 5 April 2024”: at [34]; see also at [35].

(4)    On 3 September 2021 until her release on 12 June 2023, she was incarcerated in prison and precluded over that period from any access to legal resources, computers, printers and the like: at [49]–[53]. These issues were aggravated in lockdowns during the Covid-19 pandemic at the facility where she was being held, making preparation by her as an unrepresented litigant for the hearing on 19–20 April 2022 “a practical impossibility”: at [59].

(5)    In the interim, on 5 April 2022, she received the Court Book prepared by Ark Legal “by way of 500 loose pieces of paper”: at [54]. Her circumstances and limitations on access to stationary precluded her from organising or verifying “the contents or [having] any awareness of any other documents, the legal issues or preparation for the hearing on 19 April 2022”: at [54]–[55]. As a result, she became aware of “substantial exclusions” of documents from the Court Book only when her electronic devices and records were released to her by the NSW Police Service on 5 April 2024: at [56].

(6)    The appellants’ solicitor appeared for the appellants on the appeal in the Court of Appeal and their bankruptcy proceedings from October 2022: at [60]–[61].

(7)    Between 3 October 2022 and 12 June 2023, the appellants’ solicitor made “multiple attempts and extensive communications in order to retrieve all of our legal files from our former Solicitors, Mr Edwards and NSWPS”: at [62].

(8)    On 15 June 2023, YJP Legal provided approximately six boxes of files to the appellants’ solicitor which were reviewed extensively by them, but none of the documents referred to in Table C were copied in those files: at [64].

(9)    Ms Edmonds made “countless persistent calls and attendances at the Police Station” until the documents were finally released to her on 5 April 2024: at [65].

(10)    No subpoena was issued for the documents to which the application for leave to adduce further evidence relates “because of the enormous magnitude of the files, electronic data and documents recorded on my computer. We were advised by [the appellants’ solicitor] that it would be necessary for us to identify specifically any documentary evidence as from October 2017 which was not included in the court book presented to me in April 2022 by Ark Legal and to show that it was material to any issue that arose for determination”: at [66].

(11)    The items were collected by Ms Edmonds on 5 April 2024, but it took her approximately three weeks to work through the extensive materials recorded on her computer and telephone device as a result of which she realised that hundreds of relevant documents were missing from the Court Book: at [67].

(12)    Since that time, the appellants’ solicitor and Ms Edmonds have spent a significant amount of time going through the documents which were not reproduced in the Court Book and identifying the material documents which might be relevant to the issues on the appeal: at [68].

72    Ms Edmonds further gave evidence (at [71]–[72]) that:

The relevant events and transactions have occurred since October 2017. Unremarkably, my recollection of the associated documents was unreliable or non-existent without refreshing my memory by reference to the electronic records, business files, etc.

At no time before 5 April 2024 was I in a position to recall all or any of those missing items. Nor, therefore, was Mr Smits put in a position where he was able to specify any critical or important documents which were re-discovered by me for the purposes of any subpoena that might have been issued by us to NSW DPP.

73    The appellants also submitted that the evidence has significant probative value which might have been taken into account in evaluating the evidence before the primary judge and that it would probably have been decisive or a “tipping point” on the determination of the critical issues: TIH-48.

3.4.3    Reasons for dismissing the application for leave to adduce fresh evidence on the appeal

74    I agreed with the respondent that the application for leave to adduce fresh evidence on the appeal should be dismissed for the reasons set out below.

75    First, I do not accept that the appellants have adequately explained why the evidence could not have been, with reasonable diligence, produced prior to the trial before the primary judge for the following reasons.

(1)    The appellants claimed that the documents were seized by the police on 16 March 2018. However, 16 of the documents post-date the alleged seizure. Further, in relation to the documents which were seized by the police, I do not accept the explanation provided as to why a subpoena was not issued for the return of the documents.

(2)    While the appellants claimed that Ms Edmonds did not have access to a computer while incarcerated, annexed to the affidavit of Mr Leonard is email correspondence received from Ms Edmonds between May and August 2021 which conflicts with Ms Edmonds evidence that she did not have access to a computer for the entire period she was on bail.

(3)    In the email correspondence annexed to Mr Leonard’s affidavit, Ms Edmonds also referred to obtaining legal representation during that period.

76    Furthermore, the valuations identified in Table C items 8–11 post-date the primary judge’s decision. The appellants submitted that the valuations had been commissioned before the hearing before the primary judge but had not been available in time: TIH-50. The significance of the valuations was said to lie in the finding by the primary judge at [34] that the appellants had failed to establish the value of their counterclaim regarding the wrongful maintenance by BWG of a caveat on the appellants’ property. However, there was no evidence adduced by the appellants as to the circumstances in which the valuations were commissioned and obtained. Furthermore, the appellants accepted that, while it would have been possible for them to seek an adjournment of the trial on this basis, they did not do so: TIH-51–52. This reveals that, at least insofar as this evidence is concerned, the fresh evidence is an impermissible attempt to seek to remedy deficiencies in the evidence adduced at trial on the appeal. However, the parties are bound by forensic decisions made at the trial.

77    Second, I do not accept that the further evidence is such that, had it been adduced at trial, the result would very probably have been different. This can be illustrated by some of the documents highlighted by the appellants’ solicitor in the course of oral submissions.

78    The NAB Letter produced by Ms Edmonds (Table C item 23): Particular emphasis was placed in this regard upon the version of the NAB letter produced by Ms Edmonds and reproduced at p 4 of Mr Hough’s affidavit. This document bears the same date and signature and is in certain respects identical to the letter sent by Mr Hough to Ms Edmonds via email in word and pdf format on 29 November 2017. However, it is materially different in other respects including that it indicates that the loan arrangements with the NAB were further progressed than the emailed version of the letter.

79    Ms Edmonds accepted that she had received the emailed version of the letter from Mr Hough: Ms Edmonds’ affidavit sworn on 23 May 2024 at [16]. However, it was Mr Hough’s evidence that he did not write any letter in the form produced by Ms Edmonds, he had never seen the letter in that form, and he did not authorise Ms Edmonds to apply his electronic signature on any documents including the NAB letter: Mr Hough’s affidavit sworn on 20 May 2024 at [5]. It was his opinion that the letter was a forgery created by altering the document sent by him via email on 29 November 2017: at [4]. That was plainly an inference that would potentially be available to a court to draw on the basis among other things of Mr Hough’s evidence, the discrepancies between the two versions of the letter, and the fact that both letters bear the same date and an apparently identical signature.

80    This makes it clear that, if the NAB letter had been produced by Ms Edmonds at trial, there would have been a serious issue between the parties as to whether or not that letter was a forgery. This is, therefore, not a piece of evidence in respect of which it could be said that “had it been adduced at trial, the result would very probably have been different”.

81    Documents relating to the Farm Debt Mediation Act 1994 (NSW) claim (see, eg, Table C items 14 and 15): The appellants submitted that multiple documents were relevant to the illegality claim made under the Farm Debt Mediation Act: TIH-52. However, the following extract from the transcript of the hearing before the primary judge reveals that a claim under that Act was not pressed by the appellants before her Honour (Further Amended Court Book (FACB) pp 1429–1430):

MR SMITS: … That becomes relevant if the matter of the potential application of the Farm Debt Mediation Act had been maintainable, but as your Honour probably knows, the Court of Appeal decided that it wasn’t and there’s not a need to question that judgment.

HER HONOUR: So you don’t then rely upon the Farm Debt Mediation argument.

MR SMITS: Not in that sense. I will come back to it, but I’m just making it clear that it was our submission that one submission was that there was a farm mortgage and ---

HER HONOUR: Because your written submissions ---

MR SMITS: Yes.

HER HONOUR: --- respectfully, could have used a little bit of greater clarity in terms of what’s actually being run as the arguments on this application. So in terms of understanding what’s being argued ---

MR SMITS: There’s ---

HER HONOUR: --- I’ve considered the submissions and I’ve also considered what’s raised in ---

MR SMITS: There’s – I’m not pressing the application of the Farm Debt Mediation Act before your Honour.

(Emphasis added.)

82    I do not accept the appellants’ submissions that this was a “misunderstanding”. The appellants’ position was made completely clear by Mr Smits in the passage emphasised above and the appellants are bound by this forensic decision made by them before the primary judge.

83    Finally, I do not accept the appellants’ submissions that it would be in the interests of justice to grant the application. I consider that granting leave to adduce the fresh evidence would significantly blur the distinction between original and appellate jurisdiction. Further, a grant of leave in this case would not serve the overarching purpose in s 37M of the FCA Act. Specifically, neither the failure to adduce the evidence at trial or to make the application for leave to adduce further evidence at an earlier stage of this proceeding were adequately explained, as result of which it cannot be said that the grant of leave would serve the objective of the efficient use of the judicial and administrative resources available for the purposes of the Court. Nor would it serve the just determination of the proceedings in circumstances where it was not likely that the further evidence would have led to a different result at trial. Added to this, the evidence is voluminous and its admission would almost certainly have necessitated an adjournment of the trial in order to afford the respondent the opportunity to consider and respond to the new material. That could not serve the interests of justice in circumstances where an adjournment would not only impose a disproportionate burden on the respondent; it would also jeopardise the resolution of these proceedings before the sequestration hearing set down in the Circuit Court on 16 August 2024 and expiry of the creditor’s petition before 3 September 2024.

4.    DISPOSITION OF THE APPEAL

4.1    Contention 1: The counterclaims, set offs and/or cross demands

84    It will be recalled that the first contention on appeal is whether the primary judge erred in not accepting that the appellants could not have set up the counterclaims, set offs and/or cross demands in the Supreme Court. The appellants raised two issues in relation to this contention, namely, that the primary judge erred:

(1)    in not being satisfied that the appellants have a prima facie case of a counter-claim, set-‍off or cross demand that has a reasonable probability of success for the purposes of s 40(1)(g) of the Bankruptcy Act; and

(2)    in not finding that there were impediments which prevented them from raising a cross-‍claim or cross demand before the Supreme Court.

85    The appellants must succeed on both of these issues in order to succeed on this aspect of their appeal.

4.1.1    Relevant principles

86    Section 40(1)(g) of the Bankruptcy Act relevantly provides that a debtor commits an act of bankruptcy:

…

(g)    if a creditor who has obtained against the debtor a final judgment or final order… has served on the debtor in Australia … a bankruptcy notice under this Act and the debtor does not:

(i)    where the notice was served in Australia—within the time fixed for compliance with the notice; or

…

comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

87    The Full Court in Singh v Fobupu Pty Ltd [2021] FCAFC 14 at [35]–[37] set out the relevant principles as follows:

it is important to bear in mind that s 40(1)(g) of the Bankruptcy Act provides that, once served with a bankruptcy notice, the debtor has the onus of satisfying the court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under a final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained.

There are two components to that obligation. The first component is that the debtor has to establish the existence of what he or she claims can amount to a cause of action or right to found the counter-claim, set-off or cross demand. That is, the debtor has to satisfy the Court that he or she has a prima facie case of a counter-claim, set-off or cross demand even if the debtor does not adduce admissible evidence to support its existence. But, it is not enough for the debtor to make a mere assertion that such a case exists, as Dixon CJ, McTiernan and Windeyer JJ held in Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 at 350. The debtor must show sufficiently that he or she has a claim that has reasonable probability of success to enliven the Court’s power to allow that claim to be litigated in separate proceedings, so that the Court will not require compliance with the bankruptcy notice. That does not involve, necessarily, proving as at a trial that the creditor has the claimed liability. But, it does mean that the Court must be satisfied that the debtor has some form of legal claim of sufficient substance to warrant the Court not requiring the bankruptcy notice to be enforced, until that contestable issue is resolved in another proceeding on a final basis…

The second component of s 40(1)(g) is that the debtor must satisfy the Court that the relevant counter-claim, set-off or cross demand could not have been set up in the proceeding in which the judgment or order was obtained…

(Emphasis added.)

88    In relation to the second component of s 40(1)(g), in Palaniappan v Westpac Banking Corporation [2017] FCAFC 121; (2017) 252 FCR 486 at [32]–[33] (Gilmour J, with McKerracher J agreeing at [50]) further explained:

(1)    The question of whether or not a counterclaim or cross-demand “could not have been set up” is a question to be determined with reference to legal inability, not practical or personal considerations: Re Brink at 434, 437.

(2)    “[A] counter-claim, set-off or cross demand which could not be set up [is] one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained. … Mere failure to take advantage of the opportunity can hardly be said to be inability”: Re Stokvis at 57.

(3)    The debtor bears the onus of satisfying the Court that he/she was legally incapable of setting up his/her counterclaim in the proceedings in which the judgment was obtained: Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 130 and 137.

Therefore for present purposes, as Hill J noted in Re James: Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183 at 189:

As the law presently stands it would seem that the mere fact that for practical reasons a debtor is unable to bring a cross-action etc will not entitle the debtor to argue that he or she had a cross-action etc which could not have been brought in original proceedings.

(Emphasis added.)

4.1.2    Reasons for dismissing the first basis for the appeal

89    I note that the parties were put clearly on notice by me at the case management hearing on 21 May 2024 that it would be necessary for them to take me to any documents or parts of documents on which they relied, given that all of the materials before the primary judge were reproduced in the further amended court book and no Part C appeal book limited to documents relevant to the appeal was filed: transcript of the case management hearing p 28. It is not the function of the Court on appeal to independently scour the documents in order to determine whether there are any documents which might support the parties’ arguments.

90    For present purposes, it suffices to focus on whether the primary judge erred in not finding that there were impediments which prevented the appellants from raising a cross-claim or cross demand before the Supreme Court. As set out above, if answered in the negative, this is necessarily fatal to the first basis of the appeal.

91    In summary, the appellants submitted there were two types of impediments which prevented them from setting up the cross-claim or cross demand in the Supreme Court. First, the appellants allege that their Australian Financial Complaints Authority (AFCA) claim and their claim under s 74P of the Real Property Act 1900 (NSW) (RP Act) were not actionable until cessation of breach and the crystallisation of loss, which occurred only after Darke J delivered judgment in the Supreme Court: appellant’s submissions at [33]. Second, the appellants allege that they experienced other impediments due to Ms Edmonds’ incarceration and the respondent’s conduct.

4.1.2.1    Alleged legal impediment to raising the AFCA claim

92    With respect to the AFCA claim, the appellants submit that the primary judge erred in failing to determine that there was a cross-claim, set-off or cross demand against the respondent by reason of a complaint made by the appellants to AFCA under the Corporations Act 2001 (Cth) on the basis that the respondent was an authorised credit representative (agent) of Connective Credit Services Pty Ltd.

93    The short point is that there is no reference in the reasons of the primary judge to any argument by the appellants that there was a legal impediment to that claim being raised either before the decision of Darke J or the Court of Appeal because the cause of action arose only after Darke J’s decision. Nor did the appellants take the Court to any part of their written or oral submissions before the primary judge where any such argument was raised. Therefore, I infer that this issue was not raised before the primary judge. The question then is whether the appellants ought to be permitted to raise this issue for the first time on this appeal.

94    In this respect, the High Court in Park v Brothers [2005] HCA 73; (2005) 222 ALR 421 at [34] held:

In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal.

(Citations omitted.)

95    In determining whether it is in the interests of justice to permit a party to raise a new point on appeal, the Court will generally consider “the prospects of success on the new point; the explanation given for failing to raise the point before the primary judge; the prejudice to the respondent in allowing the point to be raised; the consequences to the applicant if leave is refused; and the integrity of the appellate process”: Revill v John Holland Group Pty Ltd [2022] FCAFC 178; (2022) 295 FCR 269 at [95] (Feutrill J).

96    The AFCA claim was raised before the primary judge and, therefore, I consider that it was open to the appellants to have advanced a submission regarding the purported legal impediment to setting up the claim before her Honour. However, they failed to do so without any explanation. Further, the appellants have not clearly articulated the basis for the alleged temporal constraint on bringing the AFCA claim. In those circumstances, I do not consider that it is in the interests of justice to permit the appellants to raise this issue for the first time on appeal.

4.1.2.2    Alleged legal impediment to raising the RP Act claim

97    The position with respect to the RP Act claim is different. As the extract from Ms Edmonds affidavit quoted at [25] of the primary judge’s reasons establishes, the appellants did contend before the primary judge that the claim under s 74P of the RP Act only crystallised when the caveat was withdrawn. That occurred, as earlier explained, after the decision by Darke J in the Supreme Court but before the decision of the Court of Appeal.

98    It is unclear whether the RP Act claim was raised before the Court of Appeal or was first raised before the primary judge. Even if it was not raised before the Court of Appeal, and therefore was not captured by the primary judge’s finding at [45] (quoted above at [15]), I do not consider that the appellants have established that it could not have been set up in the Supreme Court for two reasons. First, I do not accept the appellants’ submission that the claim could only be made after the caveat was removed, being after the Supreme Court Judgment. Section 74P(1)(a) provides:

(1)    Any person who, without reasonable cause—

(a)    lodges a caveat with the Registrar-General under a provision of this Part,

…

is liable to pay to any person who sustains pecuniary loss that is attributable to an act, refusal or failure referred to in paragraph (a), (b) or (c) compensation with respect to that loss.

99    As the respondent submitted, there is no requirement in s 74P that a person must wait until after the caveat is removed before bringing a claim for compensation. Therefore, I do not accept that this claim could not have been brought until after 10 November 2022 (when the caveat was removed).

100    Secondly, to the extent that the appellants contended there is a cross-claim for loss arising after the judgment and prior to the caveat’s removal, the appellants face a further difficulty which is interrelated with the reasons why the appellants failed to satisfy the primary judge that they had a prima facie cross-claim. The primary judge at [34] found:

the claims have in significant part been advanced in such a vague and inchoate manner that it is difficult to reach any state of satisfaction regarding their merit or value. In relation to value, reference was made in the materials to a claim in excess of $4 million. This was supported by an affidavit by Mrs Edmonds dated 18 August 2023, which was largely relied upon as submissions rather than evidence. Reference was generally made to historical financial statements and to a number of historical valuations (which do not demonstrate present value and do not appear to have been contemporaneous with the sales that are said to have occurred). Those documents were not admitted for the truth of the representations contained therein and the applicants accepted that they possessed no admissible evidence in this regard. Even in the absence of admissible evidence, there has been no clear and sustained attempt through the oral or written submissions to articulate, in a comprehensive or definitive manner, the basis and value of the contended claims in the event that I declined, as I have done below, to go behind the Judgment Debt.

101    I do not consider that the appellants have established any error in the primary judge’s reasons.

102    In written submissions, the appellants make an additional claim in relation to conduct in November 2023, after the primary judge’s decision. The appellants’ submissions in this regard rises no higher than assertions and fail to precisely identify the basis for the claim. Further, in circumstances where the application to lead further evidence on appeal was dismissed, it is unclear what evidence is relied upon in support of this submissions. Finally, leave was not sought to raise this new issue on appeal and I am not satisfied that it would be in the interests of justice to allow the appellants to raise this issue. Accordingly, I have not considered these submissions further.

4.1.2.3    Other “positive inhibitions”

103    In relation to the other impediments, the appellants submitted that Ms Edmonds incarceration and the respondent’s conduct (including the respondent’s representative’s conduct) positively prohibited the appellants from bringing a cross-claim. The allegations regarding the respondent and its legal representatives did not rise above bare assertion and, as I have earlier held, should not, therefore, have been made. As such, I will focus in considering this issue on impediments arising from Ms Edmond’s incarceration and personal circumstances. The appellants submitted that Palaniappan created an exception for bringing a cross-claim where the individual was positively prohibited from bringing the claim.

104    While Palaniappan refers to a “positive inhibition”, the Full Court expressly rejected that “practical or personal considerations” were relevant to the legal test under s 40(1)(g): see the extract above at [88]. The appellants did not take me to any contrary authorities in support of their submissions that positive inhibitions of a personal or practical kind would suffice. Accordingly, in my view, the primary judge was plainly correct in finding at [43] that the practical impediments on which the appellants relied did not meet the requirement in s 40(1)(g) for the appellants to establish the existence of “a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained”.

105    In these circumstances, I do not consider that the appellants have established that the primary judge erred at [48] in finding that the appellants “do not have a counter-claim, set-off or cross demand as contemplated in s 40(1)(g) of the Bankruptcy Act”.

4.2    Contention 2: Going behind the Supreme Court and Court of Appeal judgments

106    The appellants raised three issues with respect to their second primary contention on the appeal, namely:

(1)    the primary judge erred in declining to go behind the judgments of the Supreme Court and the Court of Appeal for illegality;

(2)    the Supreme Court and the Court of Appeal erred in construing the Deed; and

(3)    the Court should set aside the Bankruptcy Notice due to the operation of s 41(5) of the Bankruptcy Act.

107    As the second and third of these issues turn upon the appellants establishing error with respect to the first issue, it follows that, if I am not satisfied that the primary judge erred on the first issue, then the second contention on which the appeal rests cannot succeed.

4.2.1    Relevant principles

108    In Zhang v Yan [2021] FCA 905 at [53], O’Bryan J summarised various principles which could be derived from the High Court majority (Kiefel CJ, Keane and Nettle JJ) judgment in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132. Relevantly, O’Bryan J set out:

the circumstances in which a Bankruptcy Court may go behind a judgment are not limited to cases involving default judgments or cases involving fraud, collusion or miscarriage of justice (at [39], [43]). A Bankruptcy Court may go behind a judgment, notwithstanding that the judgment was obtained after a contested hearing (at [44]).

109    The circumstances in which the Court, in a bankruptcy matter, will go behind a judgment against the debtor are not closed: Owen v Sandhu [2024] FCA 198 at [46] (Feutrill J). However, as Robertson J in Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] FCA 461; (2014) 315 ALR 523 at [131] held:

Except in a clear case, questions of fraud, collusion, lack of good faith and miscarriage of justice, or whether substantial reasons have been shown for questioning whether behind the judgment there was in truth and reality a debt due to the judgment creditor, are more apt to be dealt with after the exhaustion of those remedies and where the court is dealing with an application to make a sequestration order against the estate of the debtor. No doubt the circumstances in which the court will go behind a judgment cannot be formulated precisely.

(Cited with approval in Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26 at [12]–[14] and Singh v Fobupu Pty Ltd [2021] FCAFC 14 at [25] and [54]).

4.2.2    Reasons for dismissing the second basis for the appeal

110    I do not consider that the appellants have established error in the primary judge’s decision to decline to go behind the Supreme Court and Court of Appeal judgments.

111    The appellants contended that I should go behind those judgments:

(1)    on the ground that both Darke J and the Court of Appeal misconstrued the Deed; and

(2)    on the basis of a variety of allegations of illegality.

4.2.2.1    Construction of the Deed

112    The appellants’ submissions sought to address the construction issue as if the matter was being heard at first instance. They failed to clearly articulate any alleged error in the primary judge’s reasoning in holding that this was not an appropriate case in which to go behind the Supreme Court and Court of Appeal judgments.

113    The primary judge gave the following detailed reasons for declining to go behind those judgments which it is helpful to set out in full:

60    I am not persuaded that it would be appropriate to go behind the Judgment Debt in the circumstances of this case. The Judgment Debt was handed down after contested proceedings before the Supreme Court, in which Darke J had the benefit of more fulsome evidence including oral evidence that was tested before his Honour. On appeal, his Honour’s construction of the Deed (which formed the underlying basis of the Judgment Debt) was upheld and it was rejected that the applicants were denied sufficient opportunity to present arguments that are now relied upon by the applicants. The SC Judgment is carefully reasoned and appears to be correct for the reasons that were given in that decision.

61    Many of the applicants’ arguments appeared to be based upon claims that they propose to make for compensation. It has not been explained in adequate detail how and why they say that such claims obviate their liability in relation to the Judgment Debt. Counter-claims and cross demands do not negate the existence of a debt, although they may speak to amounts that may be set-off against it. Whilst references have generally been made to the Deed being void for illegality or public policy, such arguments have not been adequately developed by reference to case law.

62    As was submitted by the respondent, the Judgment Debt was founded upon a narrow issue. That issue was construction of the Deed as requiring payment by the applicants of a sum of $240,520 irrespective of that sum having actually been lawfully owing under the Agreement (whether by reference to GST, the services that were provided by the respondent, or otherwise). This was having regard to the context of the Deed provided by the Agreement and the surrounding communications between the parties, in respect of which the NSW Supreme Court had the benefit of additional evidence. This included oral evidence upon which Darke J made adverse credibility findings in respect of Mrs Edmonds’ evidence as to why she contended that she had entered into the Deed. The construction of the validity of the Deed in the NSW Supreme Court proceedings was upheld on appeal, in the Appeal Judgment at [94]-[97]. Essentially, the purpose of the Deed was considered to be the provision of “commercial certainty” i.e. agreement of what was owed, irrespective of whether or not it had actually been owing or lawfully recoverable under the Agreement. The Deed, therefore, was not premised upon the correctness of the underlying Agreement.

63    In terms of the interest component, the following was stated at [73] to [75] of the SC Judgment:

73.    By cl 2.1 of the Deed, the company and Mrs and Mr Edmonds jointly and severally undertook to repay the Debt to BWG on the earlier of various events. Debt is defined in cl 1.1 of the Deed to include the Service Fee plus all accruing interest. By Recital M, the Service Fee plus accrued interest calculated in accordance with the Agreement was stated to be $240,520 as at 12 April 2018. It is further stated in Recital M that interest continues to accrue on the Service Fee at the interest rate. The reference to the interest rate is plainly a reference to the interest rate that is specified in cl 7 of the Agreement (see Recital D)…

75.     In these circumstances, it is my view that Mrs and Mr Edmonds are obliged to pay BWG $240,520 plus interest accrued on that amount after 12 April 2018 at the rate specified in cl 7 of the Agreement. That is a high rate of interest (2.5% per month compounding each month) but it has not been shown in the circumstances to be penal or unconscionable.

64    This was the basis upon which I was informed by the parties that the interest component of the Judgment Debt had been calculated i.e. by reference to the rate of interest set out in the Agreement. This followed from [89] of the Judgment, where it was stated:

89.    BWG is entitled to a monetary judgment against both Mrs and Mr Edmonds for $240,520 plus interest. The Court will direct BWG to bring in an interest calculation to enable the appropriate judgment sum to be determined. The interest calculation will be directed to be served upon Mrs and Mr Edmonds, who will be given an opportunity to either agree to, or dispute, the calculation.

65    The applicants submitted that there was no entitlement on the part of the respondent to having interest calculated in the manner contemplated in the Agreement, in circumstances where separate liability under the Agreement had not been found. The applicants relied upon what was said in the Appeal Judgment at [96], where it was stated:

96.    Thus, the Debt which is acknowledged and undertaken to be paid in clause 2.1 of the Deed, is at least the sum of $240,520.00 irrespective of what sums are actually found to have been owing under the Fee Agreement as at the date when the Deed was entered into or from time to time. In this regard, it was not contended before the primary judge or before this Court that the Debt in clause 1.1 also includes further sums by way of “accruing interest and amounts payable pursuant to the Agreement” (as stated in clause 1.1 of the Deed). It is thus unnecessary to consider whether the Debt, as defined in the Deed, is in fact a sum in excess of $240,520.00.

66    However, the Court of Appeal had not been asked to consider whether the interest component of the Judgment Debt had been correctly calculated. This is because the applicants do not appear to have challenged this component of the Judgment Debt on appeal, beyond the more general challenges that they pursued in relation to their liability under the Deed. The question, therefore, is whether there is sufficient reason to question this part of the Judgment Debt to warrant going behind it for the purposes of these proceedings.

67    I am not persuaded that this is the case. As was submitted for the respondent, its approach to calculation of the interest accorded with [73]-[75] of the SC Judgment, as well as the construction of the “Debt” for the purposes of the Deed as a term defined by reference to Recital M in both the SC Judgment and the Appeal Judgment. That definition was as follows:

M.    As at 12 April 2018, the Service Fee plus accrued interest calculated in accordance with the Agreement totals $240,520.00 (the Debt), which continues to accrue at the Interest rate.

68    Clause 1.1 provided definitions in respect of which the words were stated to have “their corresponding meanings unless the context requires otherwise”. In respect of the term “Debt” it was stated:

Debt means the Service Fee, plus all accruing interest and amounts payable pursuant to the Agreement.

69    Recital D of the Deed reproduced the interest rate provision from the Agreement.

70    Consistently with the approach to construction taken in the SC Judgment and the Appeal Judgment, under the Deed the “Debt” as at 12 April 2018 was defined in the amount of $240,520 by reference to Recital M. This was so regardless of any underlying liability for this amount under the Agreement. Recital M made clear the parties’ intention that the amount owing would “continue… to accrue at the Interest rate”. Clause 1.1 and Recital D applied the interest rate calculation methodology under the Agreement. As was stated in the SC Judgment, the “reference to the interest rate is plainly a reference to the interest rate that is specified in cl 7 of the Agreement (see Recital D)”. This, therefore, applied by force of the Deed, notwithstanding that the applicants were not found to have otherwise owed the Service Fee under the Agreement.

71    Therefore, I am not persuaded that sufficient basis has been demonstrated for questioning the interest component of the Judgment Debt such as to warrant going behind it for the purposes of these proceedings. Even if there had been, I would have found, as was found in the SC Judgment at [73], that the applicants were required to pay interest at the rate specified in cl 7 of the Agreement.

72    I am also conscious that these proceedings concern an application to set aside a Bankruptcy Notice, which is not attended with the same adverse consequences as a sequestration order: Naumovic at [130]. Should the applicants wish to revisit and/or expand upon their arguments in this regard within the context of the sequestration proceedings, then it will be open to them to seek to do so.

73    Having regard to the above, I have declined to go behind the Judgment Debt.

114    I do not consider that any error has been established in the above reasoning and no alleged error was clearly identified. Aside from broad assertions of error, the appellants’ approach was rather to argue the case as if there was no decision at first instance and the appeal was an opportunity to rerun the case at trial.

4.2.2.2    Allegations of illegality

115    The appellants’ allegations regarding illegality can be separated into three categories:

(1)    the Agreement was entered into by BWG in breach of s 29 of the NCCP Act;

(2)    various allegations regarding the conduct of the respondent and its legal representatives; and

(3)    the respondent was prohibited from taking any enforcement action due to the operation of the Farm Debt Mediation Act 1994.

116    As to the first category of the appellants’ illegality allegations, I accept that the NCCP Act was raised before the primary judge. Her Honour found at [61] “[w]hilst references have generally been made to the Deed being void for illegality or public policy, such arguments have not been adequately developed by reference to case law.” I do not consider that the appellants have established any error in this finding. To the contrary, there are at least two fundamental difficulties with the appellants’ claim under the NCCP Act, as the respondent submitted. The appellants’ submissions failed to directly or clearly address any of these difficulties with their claim.

117    First, s 29(1) of the NCCP Act prohibits a person from engaging “in a credit activity if the person does not hold a licence authorising the person to engage in the credit activity”. The term “credit activity” is exhaustively defined in the table in s 6 of the NCCP Act as a consequence of which the prohibition is limited to those types of “credit activity” which are set out in that table. In turn, each of the definitions which are relevant to the itemised activities in the table in s 6, and the associated definitions in s 5, refer to the application of the Code in Schedule 1 of the NCCP Act (which has effect of a law of the Commonwealth under s 3 of the NCCP Act). In particular, under s 5 of the NCCP Act, “credit contract” has the same meaning as in cl 4 of the Code and the term “guarantee” means a guarantee to which the Code applies.

118    The Code, however, has no apparent application to the guarantee given by the appellants in the present case. Specifically, cl 5(1) of the Code, headed “Provision of credit to which this Code applies”, provides relevantly that:

This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:

(a)    the debtor is a natural person or a strata corporation; and

…

119    The fundamental difficulty for the appellants is that the “debtor” here was a company (being DSJSE) and not a “natural person or a strata corporation”. Although cl 8 of the Code extends protection to natural person guarantors, it only does so to the extent that the guarantee is in relation to a “credit contract”. As a “credit contract” is defined in cl 4 to mean “a contract under which credit is or may be provided, being the provision of credit to which this Code applies”, the requirement that the debtor be a natural person or strata corporation still applies.

120    Secondly and in any event, s 180(3) of the NCCP Act relevantly provides that:

The court may make the order only if:

…

(b)    the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.

121    As the respondent submitted, this period expired on 2 November 2023 in relation to the Agreement and on 26 April 2024 in relation to the Deed.

122    As to the second category of the appellants’ illegality allegations, in line with my findings on the disqualification application, the appellants’ submissions regarding the conduct of the respondent and its legal representatives find no support in the evidence. Accordingly, I do not consider that there is any tenable argument to the effect that their conduct could provide a basis on which to go behind the Supreme Court and Court of Appeal judgments.

123    As to the third category of illegality allegations, as set out above at [81]–[82], the Farm Debt Mediation Act was abandoned before the primary judge. It follows, therefore, that her Honour did not fall into error in not making any findings on these claims.

5.    INAPPROPRIATE CONDUCT BY THE APPELLANTS DURING THE PROCEEDING

124    The appellants in this proceeding have made various serious allegations against the respondent and its legal representatives in written submissions, as well as in the affidavits of Ms Edmonds filed in the proceedings. Despite the invitation at [40] of the respondent’s written submissions to withdraw those allegations and even after I rejected those portions of Ms Edmonds affidavits containing these allegations as inadmissible on the basis that they rose no higher than bare assertion, the appellants did not withdraw those parts of their written submissions containing like allegations of a manifestly scandalous nature.

125    Added to this, a number of the allegations were made by the appellants’ solicitor against the respondent’s legal representatives. It would not be appropriate for me to make any findings of misconduct against the appellants’ solicitor and I do not do so. Nonetheless, it is appropriate to emphasise that rule 32.1 of the Legal Profession Uniform Australian Solicitors’ Conduct Rules requires that:

A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

126    I am also concerned that during the course of the final hearing, the appellants’ solicitor advised the Court that particular evidence was before the primary judge and “[i]gnored” by her Honour: transcript of the final hearing on 28 June 2024 pp 21–22. However, the transcript of the hearing before the primary judge included the following exchange in relation to that evidence (FACB p 1450):

HER HONOUR: So you’re asking me to take into account that submission, but you’re not asking me to attach it to ---

MR SMITS: A value to it.

HER HONOUR: --- particular admissible evidence because you say that’s not available at this stage.

MR SMITS: That’s not available at this stage.

HER HONOUR: I understand. So I take it you don’t tender those valuations.

MR SMITS: Yes.

6.    CONCLUSION

127    For the reasons set out above, I dismissed the interlocutory applications at the interlocutory hearing on 25 June 2024, and the appeal must be dismissed. In the event that the appeal was dismissed, the respondent sought to be heard on the basis on which a costs order should be made and by whom those costs should be paid. In those circumstances, I will reserve the question as to costs.

Associate:

Dated:    26 July 2024