Federal Court of Australia

McEwan v Official Trustee in Bankruptcy [2025] FCA 978

ORDERS

THE COURT ORDERS THAT:

1.    The Notice of Appeal filed on 11 March 2025 be struck out.

2.    Leave to file the Amended Notice of Appeal lodged on 22 April 2025 be refused.

3.    Leave be granted for the appellant to file the Further Amended Notice of Appeal, annexed in draft form as Exhibit JM-1 to the affidavit filed on 28 July 2025.

4.    The respondents’ interlocutory application dated 30 June 2025 otherwise be dismissed.

5.    The appellant’s interlocutory application dated 30 June 2025 be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

BURLEY J:

1    The appellant, Julie McEwan, appeals from a decision in McEwan v Official Trustee in Bankruptcy [2025] FCA 162 (Judgment) where the primary judge dismissed her application seeking a declaration that a notice of objection to her discharge from bankruptcy filed by the Official Trustee in Bankruptcy be declared invalid and of no force and effect ([3]). Her first Notice of Appeal was accepted for filing on 11 March 2025. An amended Notice of Appeal was lodged on 22 April 2025. On 30 June 2025, the appellant filed an interlocutory application seeking a temporary non-publication order in respect of the Judgment or alternatively an order that the Judgment be anonymised, including all reference to the appellant’s family, until the Full Court has delivered judgment in her appeal. On 1 July 2025, the respondents filed an interlocutory application seeking orders that the Notice of Appeal filed on 11 March 2025 be struck out and leave to file the Amended Notice of Appeal lodged on 22 April 2025 be refused. On 28 July 2025 the appellant sought to file a further interlocutory application seeking orders that the appellant be granted leave to file a Further Amended Notice of Appeal.

2    Two issues are presently before the Court. The first is the appellant’s interlocutory application seeking a temporary non-publication order. The second is the application for leave to file the Further Amended Notice of Appeal.

3    The appellant is self-represented. She has filed written submissions in support of her interlocutory applications to which the respondents, represented by B I McMillan of counsel, responded.

4    Prior to the hearing, the respondents indicated that they are satisfied that the Further Amended Notice of Appeal is in proper form and sought orders that:

(1)    the Notice of Appeal filed on 11 March 2025 be struck out;

(2)    leave to file the Amended Notice of Appeal lodged on 22 April 2025 be refused; and

(3)    leave be granted for the appellant to file Exhibit JM-1 to her affidavit filed on 28 July 2025, being a Further Amended Notice of Appeal.

The appellant consented to the making of these orders, which I have made.

5    Accordingly, the only issue in dispute today is whether the interlocutory orders sought by the appellant should be made, those being:

(1)    A temporary non-publication order of the decision of Justice Logan dated 11 February 2025 pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on grounds “prevent prejudice to the proper administration of justice”; or alternatively

(2)    The decision of Justice Logan of 11 February 2025 is to be anonymised including all reference to the appellant’s family until the court of appeal (that is, the Full Court) has delivered judgment pursuant to s 37AG(1)(a) of the FCA Act on grounds “prevent prejudice to the proper administration of justice”.

6    Despite reference to s 37AG(1)(a) in the interlocutory application, it is apparent from the appellant’s submissions that she also relies on s 37AG(1)(c) of the FCA Act.

7    The appellant relies on an affidavit affirmed by herself on 28 July 2025 in which she states that the Judgment caused her mental anguish because it does not reflect the material facts of the case and is inaccurate (at [6], [7]), and that she has contacted a psychiatrist to obtain a report in relation to her mental health, which should be available by October 2025 prior to the appeal being heard (at [10]). It also provides background matters relevant to the subject matter of the Judgment.

8    The respondents rely on an affidavit of David Thorpe-Jones, a solicitor acting for the respondents, sworn on 5 August 2025. In it he gives evidence that the Judgment has been made available on the Commonwealth Courts Portal, AustLII and Jade.io, providing links to those websites (at [5]). He observes that since 26 November 2019, the appellant has commenced 42 proceedings according to the information available on those websites and the eCourts Portal (Qld), and notes that the appellant is disclosed as an undischarged bankrupt on the National Personal Insolvency Index, which relevantly discloses that a sequestration order was made on 26 November 2019. A copy of the search is annexed to Mr Thorpe-Jones’ affidavit. Mr Thorpe-Jones also gives evidence that in May 2020, the appellant lodged a Statement of Affairs with the Australian Financial Security Authority, a copy of which is also annexed to his affidavit. He observes that under s 54(4) of the Bankruptcy Act 1966 (Cth) a member of the public may inspect this statement, and provides a link to where access may be sought.

9    The appellant takes issue with the list of the proceedings which she allegedly commenced, and disputes that they have relevance to the current application.

10    The appellant in her written submissions submits, in effect, that she is in poor mental health and that her condition will be aggravated by the publication of her name, health status and private details of both herself and her family if they are openly ventilated in the current proceedings. She contends that any non-publication order is only temporary pending determination of the appeal and that there is no prejudice to the respondents. She submits that there are four bases upon which the suppression orders sought should be granted. First, information contained in her foreshadowed medical report. In oral submissions she withdrew this submission, noting that no such report has been filed. Secondly, the Judgment contains many errors of fact. Thirdly, the Judgment unnecessarily publishes personal information such as vehicle number plates and information that was unnecessary in the determination of the application before the Court. Finally, the Judgment makes findings about an income assessment and objection to the discharge of bankruptcy that was not before the Court and is now before Collier J in this court. In support of this aspect of her case, the appellant referred to the decision of McGrane v Seven Network (Operations) Pty Ltd [2025] FCA 944, in which Bromwich J endorsed the principles in Saw v Seven Network (Operations) Ltd [2024] FCA 1210; 305 FCR 340.

11    Part VAA of the FCA Act addresses the making of suppression and non-publication orders. Section 37AE provides:

Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

12    Section 37AG provides the grounds for making the order:

Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

…

(c)    the order is necessary to protect the safety of any person;

…

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

13    As I have noted, the appellant in her application seeks relief based on s 37AG(1)(a), that it is necessary to prevent prejudice to the proper administration of justice, and s 37AG(1)(c), that it is necessary to protect the safety of any person.

14    I am not satisfied that the balance between the public interest in the public availability of reasons for the judgment against the factors in sub-ss 37AG(1)(a) and (c) raised by the appellant warrants the grant of the orders sought.

15    First, in relation to s 37AG(1)(a), the primary argument advanced by the appellant is that the use made by the respondents in argument before Collier J in the other proceedings would be contrary to the administration of justice and that a suppression order is appropriate. The submissions to which she draws attention make reference to the Judgment in the context of an allegation that those proceedings are an abuse of process because the appellant seeks to agitate the same issues as those that were before Logan J in the Judgment. That is not a proper basis for the making of a suppression order. The authorities to which the appellant refers in this context do not support any contention to the opposite effect.

16    Secondly, in relation to s 37AG(1)(c), in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202, Nettle J said:

14 This application is made on the basis that the orders sought are necessary to protect the safety of HI and JK. As this Court has observed, "necessary" is a word which denotes more than what is merely convenient, reasonable or sensible. As a constituent of the collocation "necessary to protect the safety of any person", "necessary" connotes that the Parliament is not concerned with trivialities. It has been suggested that "necessary" in this context permits of two possible constructions: either that it must be established on the balance of probabilities that, absent the order sought, the person would suffer harm; or alternatively, satisfaction on the balance of probabilities that the order is necessary to protect the person's safety, the latter being a conclusion informed by the nature, imminence and degree of likelihood of apprehended harm. As it appears to me, the latter construction is to be preferred.

15 The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

(Footnotes omitted, emphasis in bold added)

17    I have noted that the appellant has withdrawn her reliance on any evidence of her state of mental distress. There is accordingly no evidence of the requisite level of concern for the safety of a person. Whilst I understand that it is a matter of personal inconvenience to the appellant that matters that she regards to be private were published in the Judgment, that does not rise to the level required by the authorities to warrant the suppression order being made.

18    Further, the primary proceedings were heard in open court. The Judgment is published on multiple publicly available internet platforms and has been for some six months. The appellant’s details, including in relation to the sequestration order, are publicly available on the National Personal Insolvency Index. There is a serious question as to the utility of any orders being made.

19    Accordingly, in my view the balance does not favour the grant of the orders sought. The appellant’s interlocutory application must be dismissed.

Associate:

Dated:    18 August 2025