Federal Court of Australia

Theo v Edwards [2025] FCA 605

ORDERS

THE COURT ORDERS THAT:

1.    The interim application filed by the respondent on 8 April 2025 in QUD486/2024 (the Application) be dismissed.

2.    The respondent pay the costs of:

(a)    the applicant in QUD669/2024;

(b)    the applicant in QUD468/2024;

(c)    Mr Alexander Theologhidis; and,

(d)    Mr Martin van der Walt;

of the Application on an indemnity basis.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    By an interlocutory application lodged 3 April 2025 in proceeding QUD486/2024 (the Review Application), Mr David Edwards seeks orders under both the Bankruptcy Act 1966 (Cth) and the Federal Court Rules 2011 (Cth) (the Rules) that (a) “the orders made by Judicial Registrar Buckingham on 21.03.2025 in proceedings numbered 486/2024 and 669/2024 be set aside”; (b) “each of the creditors petitions be dismissed”; and (c) certain persons – namely, Ms Athina Theo (the petitioning creditor), her sons (Mr Alexander Theologhidis and Mr Paul Theo) and her solicitor (Mr Martin van der Walt) – pay his costs “on an indemnity basis in this proceeding and in the previous bankruptcy proceedings generally”. That application is somewhat unusual. It is difficult to understand in some respects, and it is most unfortunate that Mr Edwards failed to appear at the first case management hearing to pursue and clarify the matter.

Some context for the Review Application

2    On the evidence presently before the Court, being those documents filed in QUD486/2024 and QUD669/2024 as well certain email correspondence between the Court and the parties, several observations can be made. First, on 21 March 2025, Registrar Buckingham made orders in (a) QUD486/2024 that gave leave to Ms Theo (in her own right) to withdraw a creditor’s petition as against the estate of Mr Edwards and apportioned costs inter partes; and (b) QUD669/2024 that sequestrated the estate of Mr Edwards (the Order), from which the costs of the applicant creditor (Ms Theo as executor of the estate of Mr Solon Theo (the Executor)) were to be paid.

3    The indebtedness that underlies the Order concerns a (non-party) costs order issued by Wilson J of the Supreme Court of Queensland in July 2021. In short, Mr Edwards was required to pay some $50,000 to the Executor (the Debt). He did not do so and, in late June 2024, a bankruptcy notice was issued by the Official Receiver vis-à-vis the Debt. No responsive action was taken by Mr Edwards. Not surprisingly, a creditor’s petition was lodged by Ms Theo with the Court on 25 August 2024 that sought a sequestration order as against the estate of David Edwards. A second such petition was lodged by the Executor on 6 November 2024 that, albeit referable to an independent bankruptcy notice that issued in October 2024, otherwise relied on the same factual underpinnings as the earlier petition.

4    Relevantly, no evidence was adduced before the Registrar (or this Court) that Mr Edwards sought to set aside the orders of Wilson J or is solvent.

5    Second, Messrs Theologhidis, Theo or van der Walt were not made respondents to the Review Application. It is uncertain whether the application was served upon them (or Ms Theo for that matter); however, for present purposes, it will be assumed that it was.

Is Mr Edwards in default?

The relevant communications

6    The present matter was allocated to my docket on Friday, 11 April 2025. In the ordinary course, correspondence emanated from my chambers at 4:07 pm AEST that day which contemplated, “[i]n the interests of efficiency”, the making of programming orders unless the parties indicated a desire for the matter to first proceed to a case management hearing. At 9:40 pm AEST on 15 April 2025, Mr Edwards sent an email, copied to Mr van der Walt, in which he indicated, inter alia, that he would (a) prefer for the matter to first proceed to a case management hearing; (b) be travelling overseas until 6 May 2025; and (c) be taking various action to progress the matter, including the filing of affidavit material and seeking legal representation. He has not done so. In truth, it was an odd email, as it sought the holding of a case management hearing and some other order that seemed to broadly envisage the making of the proposed programming orders.

7    In light of such requests, an email was sent to Mr Edwards on 17 April 2025 by a client services officer of the Federal Court Registry that identified the time and date of today’s hearing (“10:00 am AEST on Tuesday, 29 April 2025” (emphasis in original)) and noted that, as Mr Edwards would be unable to appear in person, arrangements had been made for him to attend the hearing over Microsoft Teams. To that end, Mr Edwards was furnished with a Microsoft Teams video-link and requested to provide draft orders and any other materials on which he intended to rely by 24 April 2025. For clarity, Microsoft Teams is a communication and collaboration platform that allows parties to appear before the Court via a video-link and is habitually used to conduct case management hearings.

8    Mr Edwards did not respond to the requests in that email nor has he responded to subsequent correspondence sent by the Registry which reiterated the salient points noted above. For example, he did not provide programming orders for the hearing of the matter and appears to have failed to file any accurate address for service. Although the Review Application defines the relevant address for service as that of Murray Law, being Mr Edwards’ solicitors on record in QUD669/2024, Mr van der Walt notes such entity now denies acting for him on the present application. Whilst neither a Notice of Acting has been filed in QUD486/2024 nor a Notice of Ceasing to Act in QUD669/2024, it appears Mr Edwards has not filed any address by which he can be contacted for the purposes of the Review Application: rr 11.01 and 2.16 of the Rules.

The act of default

9    At 10:00 am AEST this morning, 29 April 2025, the matter was called on in Court. Mr Edwards did not attend in person nor via the Microsoft Teams link provided. In so doing, he failed, at least prima facie, “to attend a hearing in the proceedings” and is therefore in default by virtue of r 5.22(c) of the Rules. Whilst there may exist some modicum of doubt as to whether the term “hearing” (being defined by Schedule 1 of the Rules to mean “any hearing before the Court, whether final or interlocutory”) encompasses a case management hearing, members of this Court have been prepared to find parties to be in “default” for their failure to attend a case management hearing: see, eg, Australian Communications and Media Authority v Jones [2023] FCA 246 [48]; Hadchiti v Minister for Immigration and Border Protection [2018] FCA 386 [15]; ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 834 [3] – [4]; Nesor Nominees Pty Ltd v Big Boys BBQ Qld Pty Ltd (2019) 146 IPR 1, 5 [19]; Tax Practitioners Board v Van Stroe [2022] FCA 482 [49]; see also Falaniko v Minister For Immigration, Citizenship and Multicultural Affairs [2024] FCA 111 [21] – [22]; Obel v Central Desert Regional Council (No 4) [2023] FCA 967 [1], [16].

10    In any event, it is sufficient to rely upon r 5.22(d) of the Rules – which deems a party to be in default where they fail to “prosecute or defend the proceeding with due diligence”. It is safe to say that Mr Edwards’ failure to (a) attend, or seek to adjourn, the case management hearing; (b) file material that does not misrepresent his solicitors (if any) or address for service; and (c) respond to requests made of him by the Court, comprises a failure to prosecute the proceedings with the necessary degree of diligence: see, eg, KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361 [24].

Orders on default

11    Rule 5.23(1)(b) of the Rules permits this Court, upon the application of a respondent, to order that a proceeding “be stayed or dismissed for the whole or any part of the relief claimed by the applicant” where the applicant is in default. At the case management hearing, Mr van der Walt made an oral application under that rule. In light of the findings made above, and the evidence that is presently before the Court, I am prepared to dismiss the Review Application. Although I note the application is to be heard de novo, there is no indication Mr Edwards can avail himself of any grounds which might suggest a different order be made.

Observations as to the (ostensible) character of the Review Application

12    There is insufficient evidence to indicate that Mr Edwards intends to proceed with this matter. That is unsurprising, given the substantive nature of the debt in respect of which the Order was made, being a judgment of the Supreme Court of Queensland that has neither, at least according to the material before the Court, been appealed nor sought to be set aside. Similarly, and as has been noted, there was no evidence of the solvency of Mr Edwards before the Registrar nor the Court today. In that sense, and on a cursory examination of what has gone before, the filing of the Review Application seems to be designed to vex, harass or annoy Ms Theo.

13    As mentioned, Mr Edwards’ application also seeks orders against persons who are not parties to the proceedings. That is, it (a) names Ms Theo as the Respondent; and (b) seeks relief against Messrs Theologhidis, Theo and van der Walt. Whilst such non-parties need not be formally joined to the proceeding, the extent to which they could have been (and thereby obtain the protection of the rules of the Court) must be kept in mind: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 [20]. Here, a fresh application has been made and there is no reason why all persons against whom substantive relief is sought should not have been named as respondents.

14    In light of the foregoing, that observation leaves one with the rather unsavoury impression that the Review Application involves an attempt by Mr Edwards to rope in parties surrounding Ms Theo and vex them with applications for costs orders without a disclosed basis for doing so.

15    For instance, Mr van der Walt is named as a person against whom costs are sought. He was not a party to the applications before the Registrar. Instead, he acted as solicitor for Ms Theo. Now, it would be a most serious charge to make an order for indemnity costs as against a legal practitioner engaging in the proper discharge of their duties to the Court and their client. Whilst such orders can be made in certain circumstances and, no doubt, Mr Edwards is aware of those, nothing before the Court suggests Mr van der Walt derogated from his legal duties or that the order sought could feasibly be made on an application of this nature.

16    To the extent that is necessary, the application should be dismissed as against Mr van der Walt. Otherwise, I turn to the relief sought against Mr Alexander Theologhidis and Mr Paul Theo. Much like Mr van der Walt, they too have been identified in the Review Application as persons against whom orders for costs are sought, and on an indemnity basis.

17    Again, there is nothing before the Court which suggests that course to be warranted. Certainly, it is not warranted now that the application to review the Registrar’s decision has been dismissed and, as such, there is no foundation for making any orders against them. I would order, to the extent necessary, that the application against Mr Alexander Theologhidis and Mr Paul Theo be dismissed.

The zeitgeist of the Court

18    I understand Mr Edwards to be a former practising solicitor. Regardless of his capacity as a solicitor or as a litigant in person, compliance with the Rules is important. As I noted in Pieman Resources Pty Ltd v Monks [2025] FCA 88 (at [51]), the Court’s time is valuable and precious. It should not be wasted. The Court can no longer afford, with its ever-diminishing resources, to waste its time dealing with applications made by people who do not intend to progress them in a proper way. Of course, leniency can be given to litigants in person who need some time to ascertain what is to happen or what steps they should take. Of that, there can be no doubt, and the Court should never be stringent on people who need assistance in progressing a matter.

19    But that is not this case. Here, time, effort and money has been expended by the parties whom Mr Edwards has summonsed to the Court and by the Court itself. It is an anathema to the zeitgeist in this Court that one would allow the matter to drift by adjourning it to some other time in the hope that Mr Edwards might then deign to appear. To the foregoing, it can be added that, given Mr Edwards is presently bankrupt, there is some doubt as to whether costs might be recovered by Ms Theo in respect of her engagement of solicitors for the purposes of this application.

Costs

20    Mr van der Walt has sought an order that the costs of the application to dismiss the proceedings be paid on an indemnity basis. There is no reason why such an order should not be made. For the reasons which I identified earlier as bases for dismissing the Review Application, including that such application does not disclose any real prospect of success and is ostensibly designed to vex or harass, as well as the reality that Mr Edwards has caused a loss of time (and expense) to the Court and other parties, the order for costs for Ms Theo should be on an indemnity basis: see generally Hamod v New South Wales (2002) 188 ALR 659, 665 [20]; see, eg, In the matter of Punters Show Pty Limited [2017] NSWSC 605 [62] – [65]; Kiprovski v Ace Office Furniture Pty Ltd [2017] FCA 1174 [11]. While I do not know of any other party that has incurred costs in respect of which I may make an order for indemnity costs, to the extent that Messrs van der Walt and Theologhidis have incurred costs by reason of the Review Application (including by attending today’s hearing), they too should be paid by Mr Edwards on an indemnity basis.

21    That being so, it is appropriate to dismiss the Review Application pursuant to r 5.23 of the Rules and order the costs of Ms Theo, Mr van der Walt and Mr Theologhidis of that application be paid on an indemnity basis.

Note

22    These are the amended and revised reasons for judgment given on 29 April 2025. Whilst the reasons given above refine and develop those that were delivered ex tempore, the substance of what was said on 29 April has not been changed nor has any other material change been made.

Associate:    

Dated:    12 June 2025