Federal Court of Australia

Shaw v Official Trustee in Bankruptcy [2025] FCA 1148

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s amended interlocutory application accepted for filing on 22 July 2025 (Amended IA) be dismissed.

2.    The respondent’s further amended notice of objection to competency accepted for filing on 24 June 2025 be partially upheld.

3.    The following paragraphs of the amended notice of appeal accepted for filing on 17 June 2025 be dismissed as incompetent:

(a)    paragraph 1;

(b)    parts of the paragraph appearing before paragraph 2 insofar as it seeks to reagitate the issues which were addressed in The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178 by seeking to appeal from paragraphs 1, 11 and 17 of the interlocutory application filed in proceeding VID361/2021 on 19 September 2024; and

(c)    paragraphs 2 to 9.

4.    The costs of the Amended IA and of the further amended objection to competency are reserved until after determination of the balance of the amended notice of appeal.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    There are two applications before me for determination, both of which have been filed in this appeal commenced by John Shaw: a further amended notice of objection to competency of the appeal filed by the respondent, the Official Trustee in Bankruptcy; and an amended interlocutory application filed by the appellant, Mr Shaw, who was at all relevant times and remains an undischarged bankrupt.

2    Before turning to consider those applications, it is convenient to set out the history of the litigation between the parties which led to the appeal and the filing of the applications.

Background

The Trustee commences proceeding VID361/2021

3    On 2 July 2021 the Trustee commenced proceeding VID361/2021 in this Court by way of originating application seeking an order, among others, pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that Mr Shaw be prohibited from instituting any proceeding in this Court without leave of the Court.

4    Mr Shaw defended VID361/2021 on a number of grounds including, as set out in his amended interlocutory application filed on 24 July 2023 (July 2023 IA), on the basis that the Trustee lacked the jurisdiction, standing and authority to commence and maintain the proceeding.

5    On 21 August 2023 the Court made orders for certain questions about the Trustee’s standing and authority to institute and conduct VID361/2021 to be determined as separate questions pursuant to r 30.01 of the Federal Court Rules 2011 (Cth). The separate questions were:

Question 1:

Is the [Trustee] authorised under the Bankruptcy Act 1966 (Cth) to institute proceedings under s 37AO(2) of the [FCA Act] against [Mr Shaw]?

Question 2:

Have these proceedings, VID 361 of 2021, been validly instituted by the [Trustee] with the authority of the Official Receiver under ss 15 and 18 of the Bankruptcy Act 1966 (Cth)?

Question 3:

Have the [Trustee’s] solicitors been validly instructed and conducted the proceedings with the authority of the [Trustee] in accordance with ss 15 and 18 of the Bankruptcy Act 1966 (Cth)?

6    On 6 October 2023 SC Derrington J made orders (6 October 2023 Orders) and delivered reasons in relation to the separate questions, answering each of them in the affirmative: see The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178.

Mr Shaw seeks leave to appeal from the 6 October 2023 Orders

7    Mr Shaw sought leave to appeal from the 6 October 2023 Orders.

8    On 21 February 2024 the Court made orders dismissing Mr Shaw’s application for leave to appeal: Shaw v The Official Trustee in Bankruptcy [2024] FCA 137 (Shaw Leave to appeal). In Shaw Leave to Appeal Jackman J explained the basis on which he refused the application at [6]:

In my view, the primary judge answered the three separate questions correctly and there is no error in her Honour’s reasons. There is no demonstrated merit in any of the proposed grounds of appeal and there does not appear to be any realistic prospect of success for Mr Shaw on appeal. That is sufficient to dispose of the application for leave and it is not necessary to consider whether substantial injustice would result if leave were refused on the assumption (which in this case is not realistic) that the decision is wrong. In any event, I regard the argument for substantial injustice as relatively weak.

Mr Shaw files a second interlocutory application in VID361/2021

9    On 19 September 2024 Mr Shaw filed an interlocutory application in VID361/2021 (September 2024 IA) seeking orders:

(1)    that SC Derrington J recuse herself from the proceeding (at [1]-[4]);

(2)    in relation to perceived deficiencies in the Trustee’s response to Mr Shaw’s requests for information made between 24 October and 1 November 2023 pursuant to s 70-56 of Sch 2 to the Insolvency Law Reform Act 2016 (Cth) (the effect of which was to insert Sch 2 Insolvency Practice Schedule (Bankruptcy) to the Bankruptcy Act 1966 (Cth)) (at [5]-[6]);

(3)    for leave to file a cross-claim (at [7]);

(4)    setting aside or varying case management orders made in the proceeding on 3 August 2023 (at [8]);

(5)    setting aside the 6 October 2023 Orders (at [9]-[13]); and

(6)    for leave to amend the July 2023 IA (at [14]-[22]).

10    In particular at [1], [11] and [17] and [19]-[20] of the September 2024 IA Mr Shaw sought the following relief (as written, emphasis in original):

1.    Her Honour, Judge Derrington recuse herself on the basis that Case management has been unreasonably prejudicial & the “on the papers” hearing breached the Fed Court Act s 20 A & denied natural justice & procedural fairness as outlined below.

…

11.    The in chambers hearing breached Federal Court of Australia act 1976 - sect 20A 2 (c) (i) as there were real issues of fact in dispute relevant to determination of the matter & those issues were decided in chambers without an oral hearing.

a.    Relevant procedural & discovery steps were unfairly denied & evidence excluded should be considered.

Including.

b.    Admission of Shaw affidavit 8 Nov 2022

c.    Cross examination of Burke affidavit d. Admission of Shaw affidavit 8 Sep 2023

e.    Admission of Shaw affidavit 14 Aug 2023

f.    Issue of Notice to Produce NTP5

g.    Lack of jurisdiction – the OT application unlawfully asks the court of Original jurisdiction to dismiss appeals NSD9 & NSD42 in the Federal Court of Australia Act 1976 - Sect 25 Appellate jurisdiction.

h.    The decision did not take into account the over-all cost consequences of the application in finding that standing was justified by s19 of the Bankruptcy act

…

17.     Mr Daniel Burke to be cross examined on his affidavit of 1 Sep 2023 particularly with regards to reasons for & as representing the OT, omitting reference to:

a.     How exactly the strain he complained of was manifested as since at least May 2020 the OT downed tools & had ceased to do any work on the estate.

b.     Why no one from AFSA would mediate either before or during any of the proceedings.

c.     Whether the costs of $312963.71 incurred before VID361 were mostly ($200,000 plus) caused by AFSA’s refusal to discuss & opposition to my attempts to obtain evidence.

d.     Confirmation that the costs of filing VID361 alone were $78000 plus (with an apparent proceeding budget set by Bergman of $100,000 plus disbursements.)

e.     Why the OT spent $16500 obtaining a stay of appeal NSD9 that could have been determined over a year ago.

f.     Whether success in NSD9 could yield substantial benefit to the estate (at the expense of the OT)

g.     Why my several undertaking offers were insufficient for the OT.

h.     Why the OT resisted NTP1 for 18 months at a cost of $150K only to voluntarily comply within the leave to appeal hearing.

i.     Whether the time of his affidavit, VID361 costs had exceeded $253000 & the general EL2 limit of $100,000 (& apparently set by OR Bergman for this case )

j.     Exactly how he was promoted to an EL2 & whether it was a formal appointment in accordance with the Public service act.

k.     Explain how the AFSA eSolve & Work order approvals are implemented & recorded

l.     Whether he had considered any conflicts of interest & delay the action would & has caused.

…

19.    In accordance with s90-1, s90-2, s90-5, s90-10, s90-15 & s90-20 of the Insolvency Law Reform Act (ILRA), the court enquire into the legality, conduct & reasons for the OT initiating & maintaining this application taking into account the grounds outlined in the body of this application including:

a    Impermissible conflict of interest per IPR s42-20

b.    the reasons for initiating proceeding without warning & maintaining this application & necessity for this application

c.    Whether proceeding is Anshun estopped by failure to raise as an issue in proceeding NSD1690/2019 commenced Oct 2019

d.    OT reasons & necessity to dismiss extant proceedings NSD9 & QUD127

e    Reasons for refusing my undertaking & whether mediation demands were a genuine attempt to settle, improper or amount to “unambiguous impropriety”.

f.    Impact on the administration of the estate

g.    Whether the action is “necessary or commercially sound’” considering the costs of proceedings & impact on the public interest, estate & creditors.

h.    Failure to provide fearless & frank, full disclosure, as an officer of the court, in application & responses to questions of the respondent

i.    Whether AFSA public officials have acted lawfully or in good faith and/or breached Bankruptcy Act and/or Public Service Act 1999 Code of Conduct

j.    Whether there is evidence of, or instances of, conflict of interest, abuse of power or process, &/or improper purpose or other reason justifying dismissal of this proceeding.

20.    In accordance with s90-5, s90-10, s90-15 & s90-20 of the Insolvency Law Reform Act the court make enquires of the Official Trustee & require the appropriate officer SES grade or above to attend & provide relevant documents &/or give evidence relating to & including:

a)    Verification of the authority of solicitor instructors after proceeding costs exceeded $100,000 & $300,000

b)    Reasons & belief necessity to maintain this application.

c)    Reasons why this application was not made when first considered in Nov 2019 & why undertakings not acceptable in the interests of estate.

d)    Reasons & belief of necessity to dismiss extant proceedings NSD9 & QUD127

e)    Response to allegation of conflict of interest & improper purpose

f)    Reasons for alleged improper mediation demands.

g)    Impact on the administration of the estate

11    I pause to note that:

(1)    paragraphs 1, 11 and 17 of the September 2024 IA are relevant to the Trustee’s further amended objection to competency; and

(2)    paragraph 19 of the September 2024 IA is in substantially identical terms to [7] of the July 2023 IA and [20] of the September 2024 IA, while not in identical terms, is in substance the same as [8] of the July 2023 IA.

The Trustee applies to discontinue VID361/2021

12    On 12 November 2024 (12 November 2024 Orders), on application of the Trustee, the Court granted leave to the Trustee to discontinue VID361/2021 by filing a notice of discontinuance on the following conditions:

(a)    the [Trustee] must pay [Mr Shaw’s] legal costs of the proceeding, such entitlement to costs to arise only upon [Mr Shaw’s] discharge from bankruptcy; and

(b)    the [Trustee] may not recover its legal costs of the proceeding or its legal costs of proceedings QUD 145 of 2023 and QUD 440 of 2023 from the bankrupt estate of [Mr Shaw].

At the time the Court also made orders for the filing of submissions by the parties about the continuation of [19] and [20] of the September 2024 IA and for the September 2024 IA to otherwise be discontinued and noted that it reserved its decision on whether [19] and [20] of the September 2024 IA survive discontinuance of the proceeding as a valid cross-claim to the proceeding under r 15.11(b) of the Rules: see: The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345.

13    On 20 December 2024 the Court made an order dismissing the September 2024 IA: see The Official Trustee in Bankruptcy v Shaw (No 5) [2024] FCA 1490. In Shaw (No 5) SC Derrington J found that Mr Shaw was estopped from raising the issues in [19] and [20] of the September 2024 IA and that accordingly those paragraphs did not survive the discontinuance of VID361/2021. Her Honour explained at [44]-[45]:

44    Each of the separate questions in Shaw (No 3) were answered affirmatively. On 28 February 2024, Mr Shaw’s appeal from that decision was refused: Shaw v The Official Trustee. Mr Shaw submitted Shaw (No 3) “is not a final judgment as Fed Court Act s 24E allows a final appeal”. However, the interlocutory status of the judgment is irrelevant. As the [Trustee] submitted, the effect of the refusal of Mr Shaw’s appeal is that Shaw (No 3) has determined with finality the [Trustee’s] authority in the commencement and conduct of the proceeding. Mr Shaw, by paragraphs 19 and 20, now asks that the Court “enquire into the legality, conduct & reasons for the [Trustee] initiating & maintaining this application” and, additionally, “make enquiries of the [Trustee] & require the appropriate officer … to attend & provide relevant documents &/or give evidence”.

45    The [Trustee] submitted that, because Jackman J in Shaw v The Official Trustee rejected Mr Shaw’s complaints in respect of Shaw (No 3), he is issue estopped from raising the matters set out in, relevantly, paragraphs 19 and 20 of the Shaw Application. That submission must be accepted.

14    After referring to the relevant authorities SC Derrington J said at [48]:

It is apparent that both paragraphs 19 and 20 are seeking to have the questions addressed in Shaw (No 3) reopened. That is not only, in effect – whether intentional or otherwise – an attempt to circumvent the decision in Shaw (No 3), but also an attempt to advance a position that is unsupported by any new evidence that might persuade the Court, in its discretion, to order an inquiry. Mr Shaw cannot now overcome Shaw (No 3) by agitating for relief sought in the guise of a new interlocutory application without a skerrick of fresh evidence.

15    Her Honour thus concluded that, to the extent that [19] and [20] of the September 2024 IA did not fall away, Mr Shaw was issue estopped from reopening the Court’s findings as to the Trustee’s authority: Shaw (No 5) at [49].

The current proceeding

16    On 22 January 2025 Mr Shaw filed a notice of appeal commencing this proceeding by which he appeals from the 6 October 2023 Orders and the orders made on 12 November 2024 and 20 December 2024 in VID361/2021. On 17 June 2025 Mr Shaw filed an amended notice of appeal in which he seeks to appeal from the following orders (as written, emphasis in original):

Interlocutory application VID361/2021 dated 22 June 2023

1    The Appellant appeals from all of the orders of the judgement of HH Derrington J given on 6 Oct 2023 at Brisbane QLD.

Interlocutory Application VID361/2021 19 Sep 2024

The Appellant appeals from the orders of the judgement of HH Derrington J given on 12 Nov 2024 dismissing Paras 1 & 5 (Not Para 2) & 11, 15, 16, 17 & 22 (summarised in Paras 7a, 7b, 7c, 7d, 7e, 7g, 7h, 7i & 7j as below

7a.    Apply ILRA in parallel & invoke ILRA powers of enquiry- Para 19 & 20

7b.    Determination of jurisdiction to dismiss appeal proceedings NSD9 &42/2022- Para 15 & 16

7c     Discovery of any OT risks/costs assessment/reasons - Para 19 (b) & 20 (b)

7d.    Admission of further evidence & NTP5 - i.e. Shaw Affidavit 14 Aug & 8 Sep 2023 - Para 11 (d) (e) & (f)

7e.    Cross examination of Burke = Para 17

7f.    ILRA s90-5 or Subpoena of relevant OT witness with authority over $100,000 - Para 20(g)

7h.    Determination of conflict of interest claim - Para 19 (a) & 20 (e) & 22 (e)

7i.    Determination of Anshun estopell claim - Para 19 (c) & 22 (a)

7j.    Determination of Summary dismissal 26.01 abuse of process claim - Para 22

& 20 Dec 2024 dismissing paras 19 & 20 at Brisbane QLD

17    I pause to observe that reasons for the orders made in VID361/2021 on each of 6 October 2023, 12 November 2024 and 20 December 2024 are found respectively in Shaw (No 3), Shaw (No 4) and Shaw (No 5).

18    In the amended notice of appeal Mr Shaw raises the following grounds of appeal (as written, emphasis in original):

Judgement 06 Oct 2023

2.    The order of 20 Dec 2024 finally disposed of proceeding & Fed Court act S 24 E allows an appeal of an interlocutory decision as an appeal of a final order.

3.    Question of Law – The Court of Appeal should permit admission of new evidence in the interests of fairness & natural justice as outlined in my affidavits of 19 Sep & 29 Oct 2024 Including evidence that shows that.

a.    The OT refusal to accept my undertakings to not initiate further proceedings.

b.    Mr Burke was not appointed as an EL2 public servant.

c.    At the time of his affidavit costs of the proceeding exceeded EL2 delegation limits.

d.    The proceedings referred to by Burke had been conducted without the delegated authority of the OT.

e.    Costs of the OT s37AO application.

4.    Question of Law – Manifestly unreasonable & glaringly improbable findings of fact, were made without conducting an open inquiry and/or contrary to the obvious alternatives & evidence and circumstances or made relying on irrelevant facts or unreasonable inferences when there is no evidence & this was an error of law.

5.    Question of Law - The judge erred applying the wrong test to determine whether the OT s37AO application was commercial & necessary in accordance with s19 & misinterpreting & made too wide an interpretation of the statutory meaning of related to the administration of the estate as stated in s134 to include for the OT legal actions & expenses that subjectively might or might not be necessary or for the benefit of the estate dependant on circumstances.

6.    Question of Law- Judge made findings of contested evidence of facts in chambers in breach of Fed Court act S20 E & not within scope of hearing.

a.    The hearing was conducted to determine 3 questions of law to determine the OT authority & jurisdiction to initiate the application & not the facts relating to subsequent conduct of the application or issues of fact that were or could be contested.

b.    The judge was not entitled to make final findings of fact on the commercial merits of the OT application without first giving notice that the commercial merits were also to be determined or without an open hearing on the merits.

I.e. making finding on matters not within the scope of the hearing & I was denied procedural fairness & natural justice.

7.    Question of Law- Judge made findings not available in the circumstances – the finding that the OT was acting in accordance with s19 & s134 was made.

a.    Without notice of the underlying merits of reasons of the OT application being determined or providing reasonable opportunity to file evidence or submissions related to determination of the question of merits.

b.    Without affording a self-represented litigant reasonable opportunity to challenge witness credibility or rebut the OT evidence.

c.    Without considering evidence of alleged improper mediation coercion.

d.    without a hearing examining the reasons for costs of previous applications, reasonableness of the OT s37AO application, conflict of interest, costs of alternative remedies, costs of the OT s37AO application & costs of subsequent OT conduct, versus the impact & expected benefit to the estate.

e.    Without the OT tendering any evidence explaining the commercial basis & reasons the s37AO application was made, the judge made unreasonable inferences that the commercial reasons were self-evident without considering all relevant circumstances or evidence.

f.    Without considering the evidence that the $100,000 delegation limits of an EL2 were exceeded in Sep 2022.

g.    The judge erred by misinterpreting & make too wide an interpretation of the statutory meaning of related to the administration of the estate as stated in s134 to include for the OT legal actions that subjectively might or might not be for the benefit of the estate.

I.e.     without properly examining relevant facts or carefully considering the test of whether the OT was acting in a commercially sound way & avoiding unnecessary expense & therefore, was not open on the evidence & a denial of procedural fairness & natural justice.

8.    The above conduct combined with previous case conduct referred to would cause a reasonable observer to apprehend bias.

Judgement 20 Dec 2024

9.    The order of 20 Dec 2024 finally disposed of proceeding & Fed Court act S 24 E allows an appeal of an interlocutory decision as an appeal of a final order.

10.    Question of Law – Manifestly unreasonable & glaringly improbable findings, were made without conducting an inquiry and/or contrary to the obvious evidence and circumstances or made relying on irrelevant facts or unreasonable inferences when there is no evidence & this was an error of law.

11.    Question of Law – The dispensing with the requirement for the OT to file a formal application or provide the required 3 days’ notice & finding that I (as self-represented litigant) should have been able to prepare a response to the OT discontinuance application before I was served with the OT affidavit in support & counsel submissions (explaining the reasons for the application) was unreasonable & a denial of procedural fairness & natural justice.

12.    Question of Law- Judge made findings not within scope of hearing.

a.    The hearing of 12 Dec was conducted to determine:

i.    whether paragraphs 19 and 20 of the interlocutory application filed on 19 September 2024 survive discontinuance of the proceeding as a valid cross-claim to the proceeding under r 15.11(b) of the Federal Court Rules 2011 (Cth).

b.    The judge did not make a formal finding as above & was not entitled to make final findings of fact on the merits & summarily dismiss my s90-10 application.

i.    In circumstances where the respondent had not made an application to have my application summarily dismissed.

ii.    Without first giving notice that the question of issue estopell & merits of the s90-10 application were also to be determined.

iii.    Without commencing & conducting an open hearing of my s90-10 application or providing reasonable opportunity to refer to or file additional evidence & make submissions on whether there were reasonable grounds for an inquiry.

iv.    The judge misinterpreted the issues raised in Paras 19 & 20 & failed to apply the correct test of issues & pleadings to determine whether all the issues of fact or law I raised were issue estopped.

v.    The judge erred by stating that I had not tendered any new evidence in support of an inquiry & did not carefully consider the court discretion under s90-5 or my rights under s9-10 to request an inquiry.

vi.    The judge erred by not considering that a s90-5, s90-10 inquiry was relevant to & should be run concurrently within the scope of the substantive OT application & the judge’s deferral of any inquiry was based on an unfair initial adverse summary assessment regarding the merits of my application i.e. before any inquiry was commenced.

vii.    The judge erred by finding that my recusal application was sought orally on 12 Nov (when it was formally made by interlocutory application on 19 Sep) & proceeding to hear the respondent’s informal discontinuance application before my formal interlocutory application.

viii.    The judged erred by not referring to my material, affidavits, & court transcript sent to the court (as requested) in advance of the 12 Nov hearing.

This was a denial of procedural fairness & natural justice.

13.    Question of Law – The reliance on the findings of HH Jackman J was unreasonable as the issues of procedural fairness & evidence considered differ from those raised before HH Derrington J in the application. This was a denial of procedural fairness & natural justice.

14.    Question of Law- The judge erred by disallowing paras 1, 5 (not 2) & 11, 15, 16, 17 & 22 (summarised in 7a, 7b, 7c, 7d, 7e, 7g, 7h, 7i & 7j ) of my interlocutory application in circumstances where the issues of law & fact were directly relevant to the matters raised in paras 19 & 20 & the body of my application.

15.    Question of Law – In making a finding of issue estopell the judge did not consider all the questions of fact or law requested to be investigated in Paras 19 & 20 (i.e. the legality, conduct & reasons for initiating & maintaining the application, taking into account the grounds outlined in the body of the application) & unfairly only considered the question of the OT authority to institute proceedings. This was a denial of procedural fairness & natural justice.

16.    The above conduct combined with previous case conduct would cause a reasonable observer to apprehend bias.

19    By way of relief in the amended notice of appeal Mr Shaw seeks the following orders (as written):

1.    Set aside the orders of 6 Oct 2023 & remit the matter for an open hearing on the merits.

2.    Set aside the orders of 12 Nov 2024 & 20 DEC 2024 & remit the matter for an s90-10 enquiry into the conduct of the OT.

3.    Costs

20    On 10 February and 19 May 2025 respectively, the Trustee filed a notice of objection to competency of the appeal and an amended notice of objection to competency of the appeal. On 19 June 2025 he filed the further amended objection to competency (although this is also titled “amended notice of objection to competency”) in which he objects to the competency of the appeal to the extent that the proceeding constitutes an appeal of Shaw (No 3). The Trustee raises the following grounds of objection:

1.    To the extent this proceeding constitutes an appeal of [Shaw (No 3)] (in relation to which the Respondent reserves its position), the Respondent objects to the competency of the appeal on the grounds of res judicata; and

2.    In relation to paragraphs 9, 10, 12 and 13 of the Amended Notice of Appeal filed 13 June 2025, incomprehensibility or bearing no relation to the judgment appealed from.

    (Underlining and strike out omitted.)

21    For completeness I note that on 14 February 2025 the Trustee filed a notice of contention.

22    On 2 June 2025 Mr Shaw filed an interlocutory application in this proceeding and on 16 July 2025 he filed an amended interlocutory application (Amended IA). By the Amended IA Mr Shaw seeks the following orders (as written):

1.    Adjournment of the respondents Notice of Objection to Competency application dated 17 June to date to be agreed.

2.    Further orders for the conduct of proceeding.

3.    The respondent’s application Notice of Objection to Competency dated 17 June be summarily dismissed in accordance with s31A Fed Court Act.

4.    I ask that any thrown away costs should be borne by each party with an order that costs are not charged to my estate.

23    I turn to consider the two applications before me, namely the Amended IA and the further amended objection to competency.

The Amended IA

24    By his Amended IA Mr Shaw seeks the relief set out at [22] above. In support of his Amended IA Mr Shaw relies on his affidavit affirmed on 16 July 2025 in which, among other things, Mr Shaw requests that his Amended IA be heard “in parallel” with the further amended objection to competency.

25    On 29 July 2025 I made orders by consent for the filing of submissions by Mr Shaw and the Trustee in relation to the Amended IA and the Amended IA was listed for hearing before me together with the further amended objection to competency.

26    In light of the orders made on 29 July 2025 and the listing of the Amended IA for hearing, paras 1 and 2 of the Amended IA do not arise for resolution. In any event Mr Shaw did not, either in his written or oral submissions, seek to press for an adjournment of the hearing of the further amended objection to competency or for further orders to be made for the conduct of the proceeding. It follows those prayers for relief should be dismissed.

27    By para 3 of the Amended IA Mr Shaw seeks an order that the further amended objection to competency be summarily dismissed pursuant to s 31A of the FCA Act. Mr Shaw submits that the “correct procedure” for strike out of parts of an appeal is pursuant to s 31A of the FCA Act and r 26.01 of the Rules, not r 36.72 of the Rules.

28    Mr Shaw submits that grounds for dismissal due to incompetency under r 36.72 of the Rules are usually based on substantial procedural or jurisdictional deficiency in form or procedure. He submits that the Trustee contends that: the appeal is not in the correct form and lacks essential information but has not explained specifically what information is missing; the decision is not appealable, relying on the doctrine of res judicata, which Mr Shaw submits is a question of law; and that leave was not obtained.

29    Mr Shaw contends that a notice of objection to competency should not be based on vague objections or deficiencies that can be easily rectified by leave for amendment and, contrary to the requirements of s 37M of the FCA Act, the Trustee has not made any reasonable effort to seek clarification or respond to his claim that s 24(1E) of the FCA Act applies. Mr Shaw says that given the Trustee is a Commonwealth authority, his conduct is unreasonable and oppressive and is contrary to s 37M of the FCA Act.

30    Mr Shaw submits that under r 36.72 of the Rules the Court does not have discretion to strike out parts of a notice of appeal and that either the whole appeal is competent, or the notice of objection to competency is dismissed. He says that a notice of objection to competency is intended to allow the Court to end an appeal early if it cannot proceed under the law so as to save the Court and the parties time and costs. Mr Shaw submits that this matter is not to be determined by a notice of objection to competency but should proceed by way of an application for summary judgment pursuant to s 31A of the FCA Act and r 26.01 of the Rules. He contends that proceeding that way reverses the onus onto the Trustee to justify striking out parts of the appeal rather than placing the onus on him to justify the competency of his appeal.

31    Mr Shaw submits that in this case, as a matter of law, the Court cannot dismiss the appeal as incompetent and the Trustee has no reasonable prospects of success under the law and the Rules. He contends that the further amended objection to competency cannot succeed as it is misconceived, an abuse of process and it was filed for an improper purpose.

Statutory framework and some legal principles

Summary judgment

32    Section 31A of the FCA Act concerns summary judgment. It relevantly provides:

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

…

33    Rules 26.01 of the Rules also concerns summary judgment and relevantly provides:

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

(4)    If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

(5)    If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:

(a)    continue to prosecute the cross‑claim against the applicant or other party; and

(b)    apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross‑claim is determined.

34    The principles that apply to the power to summarily dismiss a proceeding are well settled.

35    The test for summary dismissal laid down by s 31A of the FCA Act is intended to be the same as that under r 26.01 of the Rules: see Przybylowski v Australian Human Rights Commission No 2) [2018] FCA 473 at [6]. The guiding principles were summarised by Steward J in Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8]:

(1)    the legislative purpose of s. 31A is to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Second Reading Speech of the Migration Litigation Reform Bill 2005 (Cth.);

(2)    the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: Australian Securities and Investments Commission v. Cassimatis (2013) 220 FCR 256 at 271 [46] per Reeves J.; Crayford Freight Services Ltd v. Coral Seatel Navigation Co (1998) 82 FCR 328 at 333 per Burchett, Ryan and Marshall JJ.;

(3)    assessment of whether a proceeding or a part of a proceeding has no reasonable prospect of success will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action; (iii) a review of the evidence (if any) tendered in support of the claim for judgment; (iv) identification of the defence pleaded; (v) identification of any facts pleaded which are said to give rise to the defence; and (vi) a review of the evidence (if any) tendered in defence of the claim: Jefferson Ford Pty Ltd v. Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406-407 [126] per Gordon J.;

(4)    once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion; Jefferson Ford Pty Ltd at 407 [127] per Gordon J. citing Fortron Automotive Treatments Pty Ltd v. Jones (No 2) [2006] FCA 1401 at [22] per French J. (as his Honour then was);

(5)    summary disposition of a proceeding is authorised on a variety of bases. It will, for example and without limitation, be appropriate in a case: (i) in which the pleadings disclose no reasonable cause of action and their deficiency is incurable; (ii) in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and in any case which might be propounded by permissible amendment; or (iii) that is “frivolous or vexatious or an abuse of process”: Spencer v. Commonwealth (2010) 241 CLR 118 at 131 [22] per French C.J. and Gummow J.;

(6)    the determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether a proceeding is likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at 271 [46] per Reeves J.; and

(7)    an application for summary dismissal is likely to succeed if the moving party is able to demonstrate that the applicant’s success in the proceeding relies upon a question of fact that can be truly described as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”: Cassimatis at 272 [47] per Reeves J.

36    While the effect of s 31A is to lower the bar for summary dismissal, the power under s 31A of the FCA Act is not to be exercised lightly but with “great care” and where “it is possible to conclude with confidence that there is no reasonable prospect of success”: see Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4]:

It is first necessary to describe the circumstances in which the primary judge was required to consider the proposed pleading. This is because to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]).

Notice of objection to competency

37    Rule 36.72 of the Rules headed “[n]otice of objection to competency of appeal” provides:

(1)    A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency:

(a)     in accordance with Form 125; and

(b)    that, briefly but specifically, states the grounds of the objection.

(2)    The appellant carries the burden of establishing the competency of an appeal.

(3)    A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.

(4)    If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.

(5)    If the Court decides that an appeal is not competent, the appeal is dismissed.

Consideration

38    In effect, Mr Shaw submits that r 36.72 of the Rules only permits a respondent to object to the competency of the whole and not part of an appeal. He says that the proper procedure where there is objection to only part of an appeal is to apply for summary dismissal of that part of the appeal under r 26.01 of the Rules and/or s 31A of the FCA Act.

39    Mr Shaw relies on Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390. In that case the respondent applied to have Mr Singh’s appeal dismissed as incompetent pursuant to r 36.72 of the Rules on the basis of non-compliance with r 36.01 of the Rules and, in the alternative, sought summary dismissal of the appeal under either or both of s 25(2B)(aa) and s 31A of the FCA Act.

40    The respondent’s notice of objection to competency in Singh contended that none of the grounds of appeal raised any appealable error. Justice Griffiths observed (at [20]) that underlying the objection to competency was “the allegation that the appellant has failed to identify in his notice of appeal any tenable grounds of appeal, in the sense of identifying how it is said that the federal magistrate erred, whether in law, fact or in the exercise of discretion”. His Honour was of the view that the respondent may have misconceived the Court’s power under r 36.72 of the Rules and had assumed that non-compliance with r 36.01, which requires a notice of appeal to state the grounds relied on in support of the appeal, provided a sufficient basis to have an appeal dismissed as incompetent: Singh at [21].

41    Justice Griffiths identified the question which arose for determination at [24], namely:

… whether an appeal is incompetent and liable to be dismissed under r 36.72 if an appellant fails to comply with r 36.01. As noted above, the respondent appears to have assumed that dismissal of the appeal under that provision necessarily follows from a failure by an appellant to set out in a notice of appeal briefly, but specifically, the grounds relied on in support of the appeal.

42    In answering this question Griffiths J said at [24]-[25]:

24    The correct position is set out in the leading judgment of North J (with whom Weinberg and Jessup JJ agreed) in Zegarac v Dellios [2007] FCAFC 58 and is encapsulated in [7] as follows:

In my view, it does not follow that a failure to comply with Order 52 Rule 13(2) renders an appeal incompetent. If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. Examples relied upon by Mr Nixon are indeed cases of incomprehensibility: Lindsey v Philip Morris Limited [2004] FCAFC 40; Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773. However, in this case the notice of appeal, while prolix and not in compliance with Order 52 Rule 13(2), is not incomprehensible. It is clear from the document as a whole that Ms Zegarac contends that his Honour erred in holding that she had not established that the judgment in the Magistrates Court was obtained by fraud. Thus, the relief sought in paragraph 1 of the motion should be refused.

25    While agreeing with North J’s reasons, Jessup J also added at [12] that he thought that the Court “ought to be particularly cautious before it uses r 18 to deal with a Notice of Appeal which is comprehensible, albeit prolix, and unlikely to be regarded as complying with O 52 r 13(2)(b)”. Rule 36.01 of the 2011 Rules has replaced O 52, r 13 of the previous Rules (Federal Court Rules 1979 (Cth)) and r 36.72 has replaced O 52, r 18.

43    At [29] Griffiths J noted that, while Zegarac v Dellios [2007] FCAFC 58 was concerned with the relevant provisions of the previous rules of this Court, the terms of the Rules did not require a different approach to be taken on the issue. His Honour continued at [30]:

Such an approach recognises that, while mere non-compliance with r 36.01 is insufficient to render an appeal incompetent, the position may be different if the notice of appeal is also incomprehensible, as is illustrated by the examples of incomprehensibility cited by North J in the passage from Zegarac set out in [25] above.

44    Before proceeding further, it is convenient to consider the nature of the amended notice of appeal. Its terms are set out at [16]-[19] above. It was not in dispute and, to the extent it might be, it is clear from its terms that by his amended notice of appeal Mr Shaw appeals from and seeks to have set aside the orders made in Shaw (No 3), Shaw (No 4) and Shaw (No 5). As the Trustee submits, by his amended notice of appeal Mr Shaw has brought three separate appeals against three separate sets of orders and judgments delivered in VID361/2021. Thus, insofar as the Trustee objects to the competency of Mr Shaw’s appeal against Shaw (No 3), that is, as the Trustee submits, an objection to the whole of that appeal (and not a part). To that extent, the Amended IA cannot succeed.

45    Nor does Singh support Mr Shaw’s contention that where a respondent contends that a notice of appeal is deficient because it is incomprehensible, the only avenue for recourse is an application for summary dismissal. As is plain from Zegarac, on which Griffiths J relied in Singh, an appeal may be incompetent if it is “incomprehensible or entirely unrelated to the issues dealt with in the judgment” appealed from (see [42] above). That is the basis upon which the Trustee seeks to have [9], [10], [12] and [13] of the amended notice of appeal dismissed as incompetent.

46    The final question to address is whether a part only of an appeal can be dismissed as incompetent. Rule 36.72 of the Rules is set out at [37] above. Mr Shaw refers to and focuses on the text noting that r 36.72 refers only to “an appeal” and not to “parts of an appeal”. However, rules of court are to be construed according to their ordinary meaning when viewed in context and a literal construction of the words that results in an irrational result should be avoided: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 (Gibbs CJ), at 315 (Mason J, though in dissent, cited with approval in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [57] (French CJ, Hayne, Kiefel and Nettle JJ)) and 321 (Deane J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [69] (McHugh, Gummow, Kirby and Hayne JJ); Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 304 (Gibbs CJ) and 320 (Mason and Wilson JJ); Kilby v Gawith [2009] 1 WLR 853 at [18]; P Herzfeld and T Prince, Interpretation (3rd ed, Law Book Co, 2024) at [15.50].

47    When r 36.72 of the Rules is construed in context, the narrow and overly literal construction urged by Mr Shaw cannot be accepted. To do so would be contrary to the policy behind r 36.72 which, as recognised by Mr Shaw, is to maximise efficient use of the resources of the Court and contrary to s 37M of the FCA Act which promotes the quick, inexpensive and efficient resolution of disputes as an important component of the overarching purpose of the civil practice and procedure provisions. This includes the efficient use of the Court’s resources and the efficient disposal of the Court’s overall caseload including in a timely manner. Indeed, s 37M(3) requires that the civil practice and procedure provisions, which includes the Rules, “must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose”.

48    For those reasons Mr Shaw’s Amended IA cannot succeed and should be dismissed. The further amended objection to competency will not be dismissed and I will proceed to determine it.

The further amended objection to competency

49    As set out above, by the further amended objection to competency the Trustee seeks to have parts of the amended notice of appeal dismissed as incompetent on two different bases, each of which I address below.

The appeal from Shaw (No 3)

50    First, the Trustee seeks to have the amended notice of appeal, insofar as it seeks to appeal from Shaw (No 3) (at para 1, parts of the paragraph appearing before para 2, namely where Mr Shaw seeks to appeal from paras 1, 11 and 17 of the September 2024 IA, and paras 2-8 of the amended notice of appeal), dismissed as incompetent on the grounds of res judicata. The history leading up to the 6 October 2023 Orders and the judgment in Shaw (No 3) and Mr Shaw’s subsequent unsuccessful application for leave to appeal from Shaw (No 3) in Shaw Leave to Appeal is set out above.

51    Mr Shaw resists that part of the further amended objection to competency. Mr Shaw submits that there are different issues, fresh evidence and different grounds of appeal raised in his amended notice of appeal which were not considered in Shaw Leave to Appeal. He contends that in refusing his application for leave to appeal Jackman J considered the application based on the material before the Court at the time and did not consider s 20A of the FCA Act, Anshun estoppel and the other grounds which are now raised in the amended notice of appeal. Mr Shaw submits that Jackman J did not finally determine the matter and relies on s 24(1E) of the FCA Act which he contends permits an appeal of an interlocutory judgment.

52    Mr Shaw submits that:

(1)    the Trustee does not explain sufficiently how the legal questions, facts and issues in his amended notice of appeal are the same as in his application for leave to appeal;

(2)    there is no evidence that the Trustee genuinely believes that the application is subject to res judicata, there is only a bare assertion from the bar table which is not enough to support this summary application;

(3)    res judicata cannot apply to a proceeding still on foot. He says that this is a question of law that should be put to a Full Court to decide together with the question about the extent to which s 24(1E) of the FCA Act applies;

(4)    Jackman J determined whether there was sufficient doubt or substantial injustice to obtain leave to appeal an interlocutory decision. His Honour did not make a final determination in the proceeding that denied him the right to appeal or submit further grounds of appeal. The amended notice of appeal asks different questions and is based on different and new evidence and grounds; and

(5)    it is arguable that there are special circumstances, namely a breach of s 20A of the FCA Act, that he is unrepresented, the public interest, denial of natural justice and procedural fairness, new evidence and a different time period, lack of adequate reasons, mistake of fact and bias which are all mixed questions of fact and law that need to be determined by a Full Court.

53    As set out above, in seeking to have this part of the amended notice of appeal dismissed the Trustee relies on the doctrine of res judicata.

54    In Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) (2018) 265 FCR 290; [2018] FCAFC 132 a Full Court of this Court (Allsop CJ, Moshinsky and Colvin JJ) summarised the principles relating to res judicata at [15]-[35]. At [16] and [18] the Full Court relevantly said:

16    However, in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, the plurality equated res judicata with an exercise of judicial power by delivering a final judgment. In expressing the principle in that way, their Honours said that an exercise of judicial power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. “The rendering of a final judgment in that way ‘quells’ the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they ‘merge’ in that final judgment. That merger has long been treated in Australia as equating to ‘res judicata’ in the strict sense”: at [20] (footnotes omitted). No distinction was drawn between a case where the disputed rights and obligations were upheld and one where they were dismissed.

…

18    Importantly, the plurality in Tomlinson then said that the notion of “cause of action estoppel” was largely redundant where a judgment is rendered in the exercise of judicial power because res judicata in the strict sense applies: 256 CLR 507 at [22]. On such reasoning, res judicata applies solely by reason of the character of the exercise of judicial power in pronouncing a final judgment. It does not matter what led to the final judgment — whether it be default, consent or an adjudication on the merits. Further, it is not a concept that includes issue estoppel.

55    The Full Court referred to the reasons underlying the principle of res judicata at [21]:

In Rogers v The Queen (1994) 181 CLR 251 at 275, the principle of res judicata was described by Brennan J as applying where there has been a final judicial decision of a question between the parties. Deane and Gaudron JJ said that res judicata arises when a cause of action passes into a judgment — language that describes the principle by the result of its application rather than the circumstances when it applies. However, their Honours went on to describe the reasons for the principle in the following terms which suggest no qualification to the types of final judgment to which the principle is to apply, in particular:

(1)    A judgment of the court must be respected as fundamental to any civilised and just judicial system.

(2)    Judicial determinations must be final, binding and conclusive.

(3)    There is injustice if a party is required to litigate afresh matters which have already been determined by the courts.

(4)    Decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct.

56    At [22] of Zetta Jet the Full Court emphasised that each of these propositions applies irrespective of the circumstances in which a final judgment is entered, noting that “[t]hey would be substantially undermined if some types of final judgments gave rise to res judicata and others did not according to some form of inquiry as to whether there was a decision on the merits in the sense of a judicial assessment based upon an evaluation of the facts and application of legal principles”.

57    Mr Shaw carries the burden of establishing that the appeal is competent: see r 36.72(2) of the Rules. He relies on s 24(1E) of the FCA Act and submits that neither the 6 October 2023 Orders nor Shaw Leave to Appeal were final determinations and that VID361/2021 was still on foot at time those orders were made and leave to appeal was refused. According to Mr Shaw VID361/2021 was finally disposed of on 20 December 2024.

58    Section 24 of the FCA Act relevantly provides:

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

(b)    appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); and

(c)    in such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction; and

(d)    appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising original jurisdiction under a law of the Commonwealth other than:

(i)    the Family Law Act 1975; or

(ii)    the Child Support (Assessment) Act 1989; or

(iii)    the Child Support (Registration and Collection) Act 1988; or

(iv)    regulations under an Act referred to in subparagraph (i), (ii) or (iii); and

(e)    appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising jurisdiction under section 72Q of the Child Support (Registration and Collection) Act 1988.

…

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

…

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

59    Section 24(1E) must be considered in context. While it reserves to a party the ability to bring an appeal from a final judgment (ie once final orders are made) based on an interlocutory judgment, it does not give a party a right to do so where leave to appeal from the interlocutory judgment was sought pursuant to s 24(1A) of the FCA Act and refused. That is what occurred here.

60    The 6 October 2023 Orders were interlocutory for the purpose of determining whether leave to appeal was required under s 24(1A) of the FCA Act. That was because, while those orders answered and disposed of the separate questions, they did not determine all of the rights of the parties in issue in VID361/2021. However, the 6 October 2023 Orders were final for the purpose of res judicata. They constituted a final and conclusive judicial decision on a question between the parties. The fact that, subject to leave, an appeal might lie from the 6 October 2023 Orders did not make those orders and Shaw (No 3) any less conclusive. Relevantly in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 Diplock LJ said:

Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence…

See too O’Toole v Charles David Pty Ltd (1990) 17 CLR 232 at 245 (Mason CJ), 260 (Brennan J) and 298 (Dawson J).

61    In any event, the 6 October 2023 Orders were the subject of an application for leave to appeal brought by Mr Shaw. Leave to appeal was refused: see Shaw Leave to Appeal. As the Trustee submits, the refusal of leave to appeal did not constitute a determination of the proposed appeal on its merits. Rather, the final determination of the parties’ rights, as effected by the 6 October 2023 Orders, was left undisturbed. If Mr Shaw was dissatisfied with Shaw Leave to Appeal it was open to him to apply for special leave to appeal from that decision to the High Court. It is not open to Mr Shaw to reagitate the issues finally determined by Shaw Leave to Appeal in confirming Shaw (No 3) by recourse to s 24(1E) of the FCA Act.

62    In short, all avenues of appeal in relation to the 6 October 2023 Orders have now been exhausted or have expired and, as the Trustee submits, the Court has no power which would permit it to now entertain a second appeal from the 6 October 2023 Orders, including on new grounds or relying on fresh evidence.

63    Accordingly [1], the paragraph appearing above [2] insofar as it seeks to reagitate the issues which were addressed as part of the 6 October 2023 Orders by seeking to appeal from paras paras 1, 11 and 17 of the September 2024 IA and [2] to [8] of the amended notice of appeal are incompetent and should be dismissed.

[9], [10], [12] and [13] of the amended notice of appeal

64    Secondly the Trustee seeks to have [9], [10], [12] and [13] of the amended notice of appeal dismissed as incompetent because those paragraphs are incomprehensible or bear no relation to the judgment appealed from, namely Shaw (No 5). The paragraphs of the amended notice of appeal that are in issue are set out at [18] above.

65    The Trustee relies on Zegarac at [7] (see [42] above) in support of the contention that these paragraphs are incomprehensible and/or bear no relation to Shaw (No 5). More particularly the Trustee submits that:

(1)    [9] of the amended notice of appeal is a further reference to s 24(1E) of the FCA Act and, so far as the Trustee understands, the section has been referenced in an attempt to substantiate the jurisdiction of the Court to hear the appeal, but it does not in itself amount to a ground of appeal to be determined;

(2)    [10] of the amended notice of appeal is no more than a bare and general assertion that Shaw (No 5) [contained] “[m]anifestly unreasonable & glaringly improbable findings … made without conducting an inquiry and/or contrary to the obvious evidence and circumstances or made relying on irrelevant facts or unreasonable inferences when there is no evidence & this was an error of law”. The Trustee says that it is impossible to identify from that paragraph the precise error about which complaint is made;

(3)    to the extent that at [12] of the amended notice of appeal, Mr Shaw complains that by Shaw (No 5) SC Derrington J made findings on the merits of his application contained in [19] and [20] of the September 2024 IA, or that her Honour summarily dismissed those paragraphs on the basis that they had no reasonable prospect of success, the purported ground of appeal bears no relation to the judgment appealed from. Her Honour made no such findings. In determining that the balance of the September 2024 IA should be dismissed, SC Derrington J acted upon Mr Shaw’s concession that “everything else he wished to raise in his interlocutory application would be captured by an inquiry, were one to be ordered”; and

(4)    [13] of the amended notice of appeal faces the same difficulty as set out in the preceding subparagraph. Justice SC Derrington did not rely solely on the findings of Jackman J in declining to disqualify herself from determining whether paragraphs 19 and 20 of the September 2024 IA could survive the discontinuance of VID361/2021. Her Honour determined only that “[t]o the extent that Mr Shaw relies on evidence of (or prior allegations about) lack of procedural fairness relating to [her Honour’s] decision in Shaw (No 3) and as [her Honour] stated in Shaw (No 4) at [18], Jackman J’s judgment in [Shaw Leave to Appeal] found there was no demonstrated merit in any of the proposed grounds of appeal from that judgment. Those grounds relevantly included Mr Shaw’s complaint that he had not been afforded procedural fairness”: Shaw (No 5) at [29].

66    Mr Shaw has made detailed submissions in support of, and in an attempt to explain, [9], [10], [12] and [13] of the amended notice of appeal. It is not necessary to set them out. But, having regard to the paragraphs of the amended notice of appeal in issue and the parties’ submissions, with the exception of [9], I am not satisfied that those paragraphs of the amended notice of appeal are either so incomprehensible or bear no relation to Shaw (No 5) that they should be dismissed as incompetent. First, [10], [12] and [13] are each concerned with Shaw (No 5). Secondly, Mr Shaw is not legally represented. Doing the best he can he has attempted to articulate his grounds of appeal. In my view those grounds are not so incomprehensible as to be struck out as incompetent. Further as Jessup J recognised in Zegarac at [12], the Court ought to be particularly cautions before it uses, relevantly, r 36.72 of the Rules to deal with a notice of appeal which, although prolix, is comprehensible.

67    Paragraph 9 of the amended notice of appeal is in a different category. It does not raise any ground of appeal, nor does it bear any relation to Shaw (No 5). It simply attempts to set out a basis for the Court’s jurisdiction which, in relation to an appeal from Shaw (No 5) is not, at least at this stage, challenged. That paragraph should be dismissed as incompetent.

Conclusion

68    For those reasons para 1, parts of the paragraph appearing before para 2 identified at [16] above and paras 2 to 9 of the amended notice of appeal will be dismissed as incompetent.

69    The Trustee submits that I should reserve the costs of the Amended IA and of the further amended objection to competency until after the remainder of the appeal is resolved. Mr Shaw who has achieved some success in relation to the further amended objection to competency objects to that course and asks that I resolve the question of costs now.

70    I am satisfied, given the history of the litigation between the parties and the possibility that the outcome of the appeal may impact the submissions to be made on the question of costs of the applications which I have now determined, that I should accede to the Trustee’s request. Upon resolution of the remainder of the appeal, the parties should jointly contact my Associate and, if they have not resolved the question of costs of the Amended IA and the further amended objection to competency by agreement, I will make orders for the filing of short submissions and will, unless any party objects to me doing so, resolve that question on the papers.

71    I will make orders accordingly.

Associate:

Dated:    18 September 2025