Federal Court of Australia

Brookfield v Registrar of Personal Property Securities [2025] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time within which to file a notice of appeal only with respect to grounds 2 – 4 and 7 of the grounds of appeal contained within the applicant’s draft notice of appeal, filed on 16 September 2024, be granted and the time be extended to 18 June 2025.

2.    Costs be reserved.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    This is an application for an extension of time in which to file a notice of appeal against the decision of Registrar of Personal Property Securities v Brookfield [2024] FCA 29 (Brookfield or Primary Judgment). The application was made pursuant to the Federal Court Rules 2011 (Cth).

2    The applicant is Mr Ian Brookfield, a litigant-in-person. The respondent is the Registrar of Personal Property Securities.

background

3    The facts in relation to this matter are fully set out in the Primary Judgment. It is therefore necessary to provide only a brief summary.

4    The core contentions in Brookfield, which was delivered on 30 January 2024, were set out by the Primary Judge at [4] – [5] of the Primary Judgment, as follows:

The essential dispute between the Registrar of Personal Property Securities and Mr Brookfield is whether, by virtue of the Agreement, Blueprop held a “security interest” for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). All other issues in dispute are subsidiary to the resolution of that question.

By originating application filed on 15 May 2023, the Registrar seeks declarations of contraventions of the PPSA, pecuniary penalty orders, and costs. The Registrar alleges that Mr Brookfield has contravened ss 151(1) and (2) of the PPSA in respect of two registrations created by Mr Brookfield on the Personal Property Securities Register (PPSR), being PPSR registration 202002040022809 (Registration 2809) and PPSR registration 202205250069183 (Registration 9183), when he did not believe on reasonable grounds that he was, or would become, a secured party in relation to the relevant collateral described in the financing statements, and in failing to apply to amend their effect within five business days after the respective days on which they were registered.

(Emphasis in original.)

5    Her Honour considered the Personal Property Securities Act 2009 (Cth) (PPSA), and its associated legislative scheme: Brookfield at [13]. Her Honour adopted the explanation of Jackson J in Curo Capital Pty Ltd v Registrar of Personal Property Securities [2020] FCA 1515, which is extracted at [13] of the Primary Judgment, as follows:

The legislative scheme created by the PPSA is described in some detail by Jackson J in Curo Capital Pty Ltd v Registrar of Personal Property Securities [2020] FCA 1515. I gratefully adopt his Honour’s description of the features relevant to these proceedings.

[26]     The PPSA creates a system of notice of security interests by registration, as distinct from a system whereby interests are created by registration. Its purpose is to provide persons searching the system with enough information to know whom to contact to find out more about a security interest: see Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230; (2017) 324 FLR 378 at [64] -[66] (Ward CJ in Eq), quoting Re Lambert (1994) 20 OR (3d) 108 at [32]-[33]. As I have already adverted to, registration of security interests, and the timing of registration, can be important matters such as competing priorities between different security interests.

[27]     The Registrar has the functions given under the PPSA or any other Act: s 195(1). He (the present Registrar being male) has power to do all things necessary or convenient to be done for or in connection with the performance of his functions: s 195(2). He may conduct an investigation into any matter for the purpose of performing his functions: s 195A(1).

[28]     One of the Registrar’s key functions is the establishment and maintenance of the PPSR: s 147(1). With presently immaterial exceptions, he must ensure that the PPSR is operational at all times: s 147(4). An application to register an interest (by a ‘financing statement’) or to amend a registered interest (by a ‘financing change statement’) must be registered if it is in the approved form, any fee has been paid, the registration is not prohibited by the regulations and the Registrar is not satisfied that the application is frivolous, vexatious or offensive or contrary to the public interest or made in contravention of s 151: s 150(3). So there is no positive obligation on the Registrar to be satisfied of the accuracy of a registration before it is registered.

[29]     It was common ground that the PPSR is in practice, a computer database which is searchable at all times by members of the public and which any person seeking to make or amend a registration can add to directly. There is no process by which new registrations are regularly checked or vetted by a human being before they are publicly available for search.

(Emphasis in original.)

6    The Primary Judge referred to the penalty provisions in s 151(1) and (2) of the PPSA and the Court’s jurisdiction, conferred by s 221 of the PPSA and ss 81 – 82 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth): Brookfield at [14] – [15], [17].

7    Relevant to the additional grounds of appeal upon which Mr Brookfield relied Her Honour identified that there were two crucial questions which arose in the circumstances of Brookfield at [19] – [21] of the decision:

Consequently, and as the Registrar submitted, two questions arise for determination in deciding whether the declarations sought in relation to Mr Brookfield’s conduct should be made and whether any pecuniary penalties ought to be imposed.

The first question is whether, at the relevant times, Mr Brookfield believed on reasonable grounds that he was, or would become, a secured party in relation to the collateral. That first question must be answered at three relevant points in time: 4 February 2020, when the financing statement in respect of Registration 2809 was lodged; 25 May 2022, when the financing statement in respect of Registration 9183 was lodged; and within the period prescribed by s 151(3) of the PPSA. The answer to this question is relevant to the inquiry in respect of each of ss 151(1) and 151(2).

The second question, which is relevant only to the inquiry in respect of s 151(2), is whether Mr Brookfield has ever been a secured party in relation to the collateral.

8    Her Honour addressed the second question first: Brookfield at [22]. At [60] of the Primary Judgment, the Primary Judge concluded that there was no security interest in the Rent Roll ever held by Bluecorp. Irrespective of the validity of the alleged assignment of that security interest, there was no security interest to assign to Mr Brookfield: Brookfield at [60].

9    Her Honour accepted that Mr Brookfield honestly believed he was entitled to register the security interests: Brookfield [62].

10    Her Honour then considered whether there were reasonable grounds in existence for Mr Brookfield’s belief that he was a secured party in relation to the three Registrations at the three relevant points in time: Brookfield at [62]. In doing so, her Honour relied upon George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 112 and Hoobin v Samuels (1971) 2 SASR 238 at 245: Brookfield at [63] – [64]. Her Honour referred to interactions which had taken place between Mr Brookfield and the Deputy Registrar at [70] – [78] of Brookfield, including that:

    The Deputy Registrar had informed Mr Brookfield that registering a financing statement on the PPSR without a valid security interest could constitute an offence;

    Mr Brookfield had been served Amendment Notices on a number of occasions in respect of which Mr Brookfield had been informed that “no collateral described in the registration secured any obligation”; and

    Mr Brookfield had been invited to “challenge” those decisions multiple times in the Administrative Appeals Tribunal and chosen not to do so.

11    The Primary Judge also considered Mr Brookfield’s reliance upon the decisions of Judge Jarrett and Derrington J to be misguided, as “no question relevant to the existence of a security interest was in issue” in either case: Brookfield at [69].

12    In totality, her Honour considered this objective evidence pointed to there being no reasonable grounds for Mr Brookfield’s belief that he was a secured party: Brookfield at [77].

13    On 28 February 2024, Mr Brookfield filed a notice of appeal in relation to the Primary Judgment. The Registry rejected the notice of appeal on 1 March 2024, because it had been filed outside the 28-day timeframe stipulated under r 36.03 of Rules.

14    On 13 March 2024, Mr Brookfield lodged an application for an extension of time to file a notice of appeal with respect to the Primary Judgment. It was accepted for filing by the Registry on 14 March 2024.

15    On 25 July 2024, Ms Jane Healy, Senior Executive Lawyer at the Australian Government Solicitor (AGS), the legal representative for the respondent in this matter, wrote to Mr Brookfield in relation to the proceedings before the Primary Judge and the current proceedings. That letter is annexed to Mr Brookfield’s second affidavit, affirmed on 5 September 2024. Crucially, the AGS raised the following matters:

Dear Mr Brookfield

QUD145/2024 Ian Walter Brookfield v Registrar of Personal Property Securities – Registrar’s appointment and Mr Brookfield’s extension of time application

1.    We refer to:

a.    the proceeding QUD202/2023 (primary proceeding), and orders made in that proceeding requiring that you pay a pecuniary penalty in the amount of $30,000 to the Commonwealth of Australia, and pay the costs of the Registrar of Personal Property Securities (Registrar) of and incidental to the proceedings on a party-party basis to be taxed if not agreed; and

b.    your sealed extension of time application dated 13 March 2024 (and lodged for filing after Court hours the same day) (EOT application) and supporting affidavit dated 10 March 2024 filed in the proceeding QUD145/2024 (appeal proceeding) and served on 22 March 2024.

Registrar not engaged under the Public Service Act

2.    We are instructed to bring the following matter to your attention in the context of your EOT application.

3.    Section 194(1) of the Personal Property Securities Act 2009 (Cth) (PPSA) provides that there is to be a Registrar. Section 194(2) of the PPSA provides that the Registrar is to be: (a) engaged under the Public Service Act 1999 (Cth) (Public Service Act), and (b) appointed as Registrar by written instrument.

4.    After the filing of your EOT application, it was brought to our client’s attention that the Registrar was never engaged under the Public Service Act as required by s 194(1) of the PPSA.

5.    In our client’s view, this raises matters which may be relevant to your EOT application and the appeal proceeding, namely:

a.    whether the Registrar was validly appointed under s 194 of the PPSA; and

b.    if the answer to that question is no, whether that has an impact on the Registrar’s commencement of the primary proceeding and the judgments delivered in that proceeding.

…

(Emphasis in original.)

16    In that correspondence, the AGS also notified Mr Brookfield that their client was prepared to consent to Mr Brookfield having “leave to make any amendments to your EOT application and the draft notice of appeal … which properly follow” and “your EOT application being granted but insofar only as it relates to any ground of appeal included as a result of such amendments”. The AGS otherwise reserved its client’s position.

17    At a case management hearing on 8 August 2024, despite Mr Brookfield asserting that the Registrar should apply to set aside the orders of the Primary Judge, I made orders granting Mr Brookfield leave to file and serve any amended application for an extension of time and any amended draft notice of appeal with those amendments limited to “those arising out of the circumstances concerning the Registrar’s appointment notified to the applicant in the letter from the Australian Government Solicitor dated 25 July 2024”.

18    Mr Brookfield filed his amended application for an extension of time to file a notice of appeal on 16 September 2024. He also filed a draft notice of appeal on 16 September 2024.

19    A further letter of Ms Healy, sent to Mr Brookfield, dated 28 August 2024 is annexed to Mr Brookfield’s second affidavit. The letter provided Mr Brookfield with further information in relation to the Registrar’s appointment. It reads as follows:

…

Registrar’s appointment

2.     As set out in our letter dated 25 July 2024, s 194(1) of the Personal Property Securities Act 2009 (Cth) (PPSA) provides that there is to be a Registrar. Section 194(2) of the PPSA provides that the Registrar is to be: (a) engaged under the Public Service Act, and (b) appointed as Registrar by written instrument.

3.     The person who occupied the office of the Registrar at all relevant times from the commencement, and for the duration, of the primary proceeding QUD202/2023 was never engaged under s 22 of the Public Service Act.

4.     Rather, by written instrument dated 17 March 2022, that person was appointed as Agency Head of the Australian Financial Security Authority (AFSA) under s 67 of the Public Service Act, effective 2 May 2022.

5.     A second written instrument also dated 17 March 2022 stated that that person was appointed Registrar, effective 2 May 2022.

(Emphasis in original.)

20    In his amended notice of appeal, Mr Brookfield sought orders in the following terms:

1.    That the judgement of Derrington S of 30 January 2024 be dismissed.

2.    That the application of The Australian Government Solicitor (Registrar of Personal Property Securities) be dismissed.

3.    That Flower and Hart be applied against those who represented the applicant.

4.    That damages be awarded against the Registrar of the PPSR and those whom [sic] were instructed in light of the letter of the AGS dated 25 July 2024.

21    Mr Brookfield relied upon the following grounds in his amended draft notice of appeal:

The judgement of Derrington S delivered on 30 January 2024;

(1)    Was obtained through the misdirection of the Australian Government Solicitor (defective administration)

(2)    Was handed down on legal action instigated by the Registrar of the PPSR whom [sic] did not have the legal standing to commence such proceedings

(3)    Was delivered with the belief that;

a.    the Registrar had the function given under the PPSA

b.    the Registrar of the PPSR had the power to bring the said proceedings under operation of s221 of the PPSA and ss 80-82 of the Regulatory Powers (standard provisions) Act 2014 (Cth) (Regulatory Powers Act)

(4)    Was delivered without the prior knowledge that the Registrar of the PPSR was not engaged under the Public Service Act.

(5)    The admission by the Australian Government Solicitor that the Registrar of the PPSR was not engaged under the Public Service Act constitutes fresh evidence

(6)    The Australian Government Solicitor and instructed counsel had an obligation to the court to ensure that their client had standing to bring such an action considering it was the first and only one in over 22 million registrations to be prosecuted

(7)    Is incapable of correction by the instruments available to the court.

22    Mr Brookfield included additional or alternative “grounds of application” in his amended notice of appeal in the following terms:

An extension of time to appeal is justified;

1.    In light of fresh evidence coming to light that was not available to the applicant with the exercise of due diligence

2.    In light of new law being established based on an interpretation of a word not on an established legal principle

3.    As it was not open to Her Honour to find that an honest belief was not reasonable

4.    In light of the importance of this particular Federal Court Judgement potentially being a precedent in what is a new area of law

5.    In light of the absence of evidence to prove that the respondents [sic] belief being “reasonable” was wrong

6.    In light of the word “reasonable” being subjective

7.    In the fact that a definition of the word “reasonable [sic] is in question in deciding this new point of law

8.    In light of the trial judge erring in the scope and definition of the word “reasonable” where the belief was found to be an honest belief.

23    The matter was heard on 6 November 2024.

material relied upon

24    Mr Brookfield sought to rely upon:

    an amended application for an extension of time to file a notice of appeal, filed 16 September 2024;

    a notice of appeal, filed 16 September 2024;

    an affidavit of Mr Brookfield, filed 14 March 2024 (first affidavit);

    an affidavit of Mr Brookfield, filed 18 September 2024 (second affidavit); and

    an outline of submissions, filed on 28 October 2024.

25    The Registrar sought to rely upon an outline of submissions, dated 19 September 2024.

legal principles

26    Rule 36.05 of the Rules relates to applications for an extension of time to file a notice of appeal. It provides:

36.05 Extension of time to file notice of appeal

(1)    A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.

(2) The application may be made during or after the period mentioned in rule 36.03.

(3) The application must be accompanied by the following:

(a) the judgment or orders from which the appeal is to be brought;

(b) the reasons for the judgment or orders, if published;

(c) an affidavit stating:

(i) briefly but specifically, the facts on which the application relies; and

(ii) why the notice of appeal was not filed within time;

(d) a draft notice of appeal that complies with rules 36.01(1) and (2).

Note: An application under this rule will be heard by a single Judge unless:

(a)    the Judge directs that the application be heard by the Full Court; or

(b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the matter—see section 25(2) of the Act.

27    Rule 36.03 of the Rules details the time for filing and serving a notice of appeal, as follows:

36.03 Time for filing and serving notice of appeal

An appellant must file a notice of appeal:

(a)    within 28 days after:

(i)    the date on which the judgment appealed from was pronounced or the order was made; or

(ii)     the date on which leave to appeal was granted; or

(b)    on or before a date fixed for that purpose by the court appealed from.

28    In Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426, at [12] Tracey J outlined useful principles regarding the Court’s discretion to extend time for the filing of a notice of appeal. These principles may be summarised as follows:

    The Court’s discretion is “unfettered” but must be “exercised judicially”;

    The “conflicting interests” and “peculiar circumstances” of each individual case must be considered and balanced;

    The Court should first consider the designated period, in legislation or rules, which determines when an appeal must be lodged;

    The Court should acknowledge the “prima facie rule that applications or appeals brought out of time will not be entertained”;

    It falls to the applicant to establish “some plausible reasons which explain the delay in commencing the appeal”;

    These reasons must “provide a foundation for the conclusion that it is in the interests of justice that an extension by granted”;

    The “merits of any proposed appeal” is a factor which may weigh significantly towards the interests of justice;

    Nonetheless, the Court must consider that the respondent has a right to the existing judgment; and

    The Court is not obliged to examine the merits of the prospective appeal “in great detail”.

29    When considering the merits of a prospective appeal, Gummow and Hayne JJ noted in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [34] that:

We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”.

30    In Mentink v Registrar of the Australian Register of Ships (2014) 320 ALR 137; [2014] FCA 1138 at [30], Greenwood J noted in the context of an application for an extension of time to file a notice of appeal:

… Plainly, examining the merits must be approached with some caution in the context of an application for an extension of time … In the ordinary course, in determining whether the applicant has arguable, or reasonably arguable, prospects of success in any proposed appeal, it is probably enough to form a view as to whether Mr Mentink has what French J has described as a “finite non-trivial probability” of success: Seiler at 98.

31    In Stewart v Grauby [2012] FCA 703 at [27], Yates J referred to “viable grounds of appeal”.

32    Regarding the way in which the Court should approach the examination of the merits of the prospective appeal, the statements of Brennan CJ and McHugh J in Jackamarra at [9] are instructive. Their Honours stated:

… Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess “the merits” in a fairly rough and ready way.

33    This approach was referred to by Tracey J in Reaper at [12].

34    However, Gummow and Hayne JJ at [34] – [35] of Jackamarra noted that:

… The boundaries of the field for debate between the parties on appeal have been set at trial. Before a proceeding has been tried there may well be considerable uncertainty about what evidence will be given and how that will affect the final identification of issues to be decided. Those uncertainties should have been largely resolved at trial and the material and the issues for consideration on appeal will ordinarily be readily identifiable. Is it clear, then, that those issues will be resolved against the appellant?

The parties submitted here that the Full Court should have decided whether the appeal was “arguable”. It is important to understand what is meant in this context by “arguable”. If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed. To permit it to proceed is to subject the respondent to the many costs of litigation needlessly and is to occupy the courts when they could be occupied more productively. No doubt, as Barwick CJ said in General Steel Industries Inc:

“… great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”

But as he also said:

“On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

Inevitably, then, courts will sometimes have to balance competing considerations. If the futility of an appeal can be demonstrated only by hearing the whole argument there may be no advantage in bringing that argument forward to the time at which some application is made to cure a minor procedural default. But that is not the present case.

(Footnotes omitted.)

CONSIDERATION

Length of, and Reasons for, Delay

35    The first consideration, in determining whether the applicant should be granted an extension of time, is the “length of the delay” and “explanation for the delay”: BUD17 v Minister for Home Affairs (2018) 264 FCR 134; [2018] FCAFC 140 at [82].

36    As to delay, in his second affidavit, Mr Brookfield deposed that:

    His “failure to lodge the appeal within the 28 day time frame” resulted from “a genuine oversight caused by the directions hearing of the Administrative Appeals Tribunal No 2023/8189 being heard on the 28th of February 2024”; and

    Despite this inadvertent delay, his failure to lodge the appeal was related to “several weeks of concussion as a direct result of being assaulted whilst feeding the homeless here in Bundaberg on Australia day”.

37    Mr Brookfield’s first affidavit exhibited directions made in the Administrative Appeals Tribunal on 28 February 2024 and a medical report dated 8 February 2024 which inter alia certified that Mr Brookfield “potentially has had a mild concussion”.

38    In his oral submissions, Mr Brookfield submitted that the delay was not significant. He explained that he suffered an assault a few weeks prior to filing the application to appeal. As a result of this assault, he was concussed. He filed the application one day late. After the Court had informed him that he would need to file a different application to appeal due to the expiration of the appeal period, Mr Brookfield filed the relevant application “another 14 or 15 days later”. This delay, he explained, was due to his inability to file electronically in Bundaberg.

39    While it may be accepted that the delay is not significant, although as the respondent submitted it demonstrates more than mere inadvertence, consideration does not cease at that stage. The respondent pointed to Stewart, in which Yates J noted at [24] that “[a]lthough the delay in seeking to file a notice of appeal from the Federal Magistrates Court order has not been extensive, I am not persuaded that an extension should be granted”.

40    However, as the respondent submitted, Mr Brookfield’s explanation was insufficient. There was nothing to connect the Administrative Appeals Tribunal directions hearing, and the potential concussion resulting from an assault, with the delay.

41    Similarly, there is no evidence from Mr Brookfield explaining why he was unable to electronically file the application in Bundaberg.

42    Therefore, the length of the delay, and the reasons provided for it, weigh against granting an extension of time to file a notice of appeal.

Prospects of Success

43    The second consideration is “whether the application for review would have any prospects of success if an extension of time were granted”: BUD17 at [82]. Each prospective ground of review, or ground of application, will be considered in turn.

44    As is set out above Mr Brookfield sets out seven draft grounds of appeal and a further eight grounds expressed to be additional or in the alternative. The respondent considered that grounds 2 – 4 and 7 relate to the validity of the Registrar’s appointment and its consequences, and that the further three grounds were that:

    The AGS engaged in “defective administration” (ground 1);

    The AGS’s admission “that the Registrar of the PPSR was not engaged under the Public Service Act constitutes fresh evidence” (ground 5); and

    The AGS and its counsel had an obligation to be satisfied that the Registrar had standing to bring the application (ground 6).

45    Mr Brookfield’s oral submissions seemed to fall into three groups – going to what he described as the Registrar’s standing, defective administration on the part of the Registrar and his lawyers and the interpretation of honest and reasonable belief by the Primary Judge.

46    During the hearing, Mr Brookfield also confirmed that the “grounds of application” were intended to be grounds of appeal. Mr Brookfield’s first additional or alternative ground of application supported his argument in relation to fresh evidence on appeal, detailed at [58] – [60] below. This fell within the scope of the leave granted to Mr Brookfield at the case management hearing on 8 August 2024. Mr Brookfield’s remaining additional or alternative grounds of application, being grounds 2 – 8, fell outside the scope of the leave as they went to Mr Brookfield’s honest and reasonable belief. Nonetheless, for completeness, they are dealt with at [61] – [67] below.

47    The respondent’s position was that, other than with respect to the validity of the Registrar’s appointment and the consequences of that, none of Mr Brookfield’s grounds met the threshold required for the grant of an extension of time in which to appeal, irrespective of which of the tests advanced in the authorities was applied.

The Validity of the Registrar’s Appointment and its Consequences (Grounds 2 – 4 and 7 of the Grounds of Appeal)

48    Mr Brookfield submitted that any defects with respect to the Registrar’s engagement mean that the Registrar had no standing to bring legal proceedings because he was not validly appointed and did not have the relevant powers and functions conferred upon him. Mr Brookfield also submitted that the lack of standing could not be remedied by any instrument available to the Court.

49    The respondent did not accept Mr Brookfield’s characterisation of the issue as one of standing but submitted that as had been made clear he was not opposed to the extension of time being granted with respect to the draft notice of appeal as it related to any defects in the engagement of the Registrar and what might flow from that. The respondent further submitted that the public interest attaches to that ground of appeal and that it is a matter which should be considered by the Court at the appellate level. On that basis the Registrar submitted that it is just and equitable that the Court could extend time for Mr Brookfield to appeal with respect to the grounds of appeal relevant to this issue.

50    Those submissions are accepted. This ground raises an important question of law as to the impact of the failure to engage the Registrar under the Public Service Act on the decision of the Primary Judge. Further, clearly Mr Brookfield was not in a position to be aware of the defects in the Registrar’s engagement and therefore could not have been expected to raise it in the Court below.

51    Therefore, I am satisfied that these grounds are arguable.

Defective Administration (Grounds 1 and 6 of the Grounds of Appeal)

52    Mr Brookfield’s amended application stated that the judgment of the Primary Judge “[w]as obtained through the misdirection of the Australian Government Solicitor (defective administration)”.

53    Mr Brookfield submitted that the Registrar engaged in defective administration of the scheme as the Registrar was not validly engaged under the PPSA, there was no prior knowledge of this, and that the AGS failed to uncover this “fresh evidence” prior to the determination of the Primary Judge and failed to ensure that its client had standing. Mr Brookfield’s argument included that the existence of defective administration was supported by the fact that his was the first and only prosecution undertaken by the respondent in more than 22 million registrations and that there had been no explanation by the Registrar or the AGS as to why it had taken 14 months for the defect in the Registrar’s engagement to be disclosed.

54    The respondent correctly submitted that the term “defective administration” was not applicable to the current proceedings as it is connected to the Commonwealth Government’s Scheme for Compensation for Detriment caused by Defective Administration (CDDA) which does not arise here, nor does it create a ground for judicial review, as is provided for in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJRA) or s 39B of the Judiciary Act 1903 (Cth). It cannot ground a cause of action or constitute a ground of appeal. Grounds of review for the purposes of judicial review are those set out in the ADJRA and the Judiciary Act.

55    As to the AGS, the respondent also submitted correctly that it had not made a decision or engaged in conduct which was capable of judicial review. The AGS is the legal representative of the party to the appeal, not a party itself. The litigation of a matter cannot constitute a decision or conduct to which the ADJRA attaches, nor can judicial review operate to impugn the conduct of the legal representatives, where the error is the client’s error instead. Further this was not a matter which was canvassed before the Primary Judge and there are no facts in evidence relating to the manner in which the litigation proceeded below.

56    There is no indication on the evidence before me that this ground has merit. It was not considered in the primary decision, nor were the AGS lawyers a party to those proceedings and it has no basis in evidence before the Court.

57    Consequently, this ground of appeal has no prospects of success as it is not arguable or viable: Jackamarra at [34]; Stewart at [27].

Fresh evidence (Ground 5 of the Grounds of Appeal and Ground 1 of the Grounds of Application)

58    Mr Brookfield also alleged in his amended application that the AGS’s admission “that the Registrar of the PPSR was not engaged under the Public Service Act constitutes fresh evidence”.

59    As to the assertion of “fresh evidence”, the respondent postulated that Mr Brookfield may be alleging that “it is not possible now to have before the Court the fact that the Registrar was not properly appointed”. If that is Mr Brookfield’s point the respondent submitted that there was no need to tender fresh evidence that the Registrar was not validly engaged under the PPSA, and that the appeal could proceed on the basis of the respondent’s admission. Further the respondent submitted he would not be opposed to Mr Brookfield seeking leave to adduce fresh evidence as to the “defect in the Registrar’s appointment” on appeal, which is permissible under r 36.57 of the Rules.

60    That submission must be accepted. The admission by the AGS is of a factual nature, and not one which would require the tendering of fresh evidence. I also accept the respondent’s submission that r 36.57 of the Rules provides for the filing of further evidence on appeal. If the applicant was granted an extension of time to file a notice of appeal, he could, within 21 days before the hearing of the appeal, file an application seeking to adduce his further evidence, with an accompanying affidavit: r 36.57 of the Rules. As the respondent submitted, this is more aptly characterised as a procedural step, not a ground of appeal.

Honest and Reasonable Belief (Grounds 2 – 8 of the Grounds of Application)

61    Seven of the eight grounds of application expressed by the applicant to be additional or in the alternative were directed to the Primary Judge’s interpretation of the word “reasonable” and the objective nature of the test under the relevant legislation. Mr Brookfield submitted that the interpretation of an honest and reasonable belief is intertwined, such that an honest belief must, by its very nature, also be one that is reasonable.

62    That submission cannot be accepted. At [63] – [64] of Brookfield the Primary Judge set out the relevant case law as to reasonable belief as follows:

A belief on reasonable grounds was described by the Court in George v Rockett (1990) 170 CLR 104, 112, in the following terms:

When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson.

(Citations omitted.)

In Hoobin v Samuels (1971) 2 SASR 238, albeit in the context of a provision of the road traffic legislation, which required a member of the police force to form a certain belief “on reasonable grounds” before subjecting a person to a breathalyser test, Walters J said, at 245:

I recognise that the expression “believes on reasonable grounds” must be given an objective and not a subjective construction. A reasonable ground for a belief “is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right.” The plain and natural meaning of the expression “believes on reasonable grounds”, in my view, “imports the existence of a fact or a state of facts, and not the mere belief by the person challenged that the fact or state of facts existed”. Thus a “reasonable [ground] for a belief when the subject of the legal dispute has always been treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal” … Nevertheless, a man’s belief is personal to himself, and the reasonable grounds become material in so far as they are an element in his mind which determines his belief. When the reasonableness of the grounds is challenged, it is for the tribunal to examine those grounds and to determine whether they are reasonable”.

(Citations omitted. Emphasis added.)

(Emphasis in original.)

63    As is clear, her Honour considered the evidence upon which Mr Brookfield relied to assert that he held a registerable security interest: Brookfield at [65]. Her Honour went on to consider the cases of Real Estate Now Pty Ltd v Brookfield [2018] FCCA 3072 and Brookfield v Real Estate Now Pty Ltd (2019) 137 ACSR 641; [2019] FCA 993 upon which Mr Brookfield relied, and concluded that they did not support his claim to have a reasonable belief that he had a registerable security interest, although did support his claim to have a reasonable belief that he was owed a debt: Brookfield at [69] and [74].

64    Her Honour also explained that Mr Brookfield had been informed by the Deputy Registrar that the documents which had been supplied did not support a belief that he had a registerable security interest, and further that Mr Brookfield had been invited to appeal against that decision to the Administrative Appeals Tribunal but did not do so: Brookfield at [73]. Accordingly, her Honour found that Mr Brookfield’s belief that he held a registerable security interest was not reasonable: Brookfield at [75].

65    It is clear from the reasons of the Primary Judge at [63] – [64] of Brookfield that the test for a belief on reasonable grounds is objective in nature and cannot rely solely on the honest belief of a person.

66    As the respondent submitted, Mr Brookfield’s interpretation of honest and reasonable belief “conflates” the concepts of reasonableness and honesty and incorrectly suggests that the test for reasonableness should be subjective not objective.

67    In the circumstances these grounds of application – insofar as they constitute further grounds of appeal – are unmeritorious. The applicant has no prospects of successfully arguing these grounds on appeal.

Prejudice

68    As to prejudice, while Mr Brookfield submitted that, of the parties, he had been prejudiced as his personal and professional reputation had been affected by negative publicity and he had been unable to bring an appeal for 14 months due to the delay in the AGS notifying him and the Court of the defective engagement of the Registrar, I accept the respondent’s submissions that he will suffer prejudice should he be “required to respond to grounds of appeal which are clearly without merit”. Such prejudice was, in the respondent’s submission, with which I agree, amplified in the context of Mr Brookfield’s “pattern of uncooperative conduct” which had previously delayed the resolution of proceedings: see Registrar of Personal Property Securities v Brookfield (No 2) [2024] FCA 175.

69    Accordingly, the prejudice likely to be suffered by the respondent should the applicant succeed in being granted an extension of time with respect to grounds of appeal which are not arguable or viable weighs against such an extension being granted in respect of all of the grounds except those going to the engagement of the Registrar and the consequences which might flow from that.

conclusion

70    In the circumstances of this case I consider that the applicant should be granted an extension of time with respect to grounds 2 – 4 and 7 contained in the draft notice of appeal attached to the application for an extension of time filed 16 September 2024.

71    As to the other grounds there should be no extension of time granted. Those grounds are without merit, and it is therefore in the interests of justice that the application, insofar as it relates to them, should be refused.

Associate:

Dated:    5 June 2025