Federal Court of Australia

Kimber v Clark as trustee of the estate of Kimber (Review of orders) [2025] FCA 1181

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 10 September 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)

PERRAM J:

1    Before the Court is an interlocutory application which was filed on 10 September 2025 by Ms Kimber. For reasons I will later give I propose to treat the application as including another unfiled interlocutory application dated 31 August 2025. That earlier unfiled interlocutory application sought the following orders:

1.     The dismissal of the extension of time/leave to appeal application is to be set aside or varied.

2.     The bankruptcy annulment application is to be heard on its merits under s‍ 153B.

3.     Any order deemed appropriate to accommodate procedural fairness in this instance.

4.     Parties to bear their own costs.

I interpolate that the reference to s 153B is a reference to that provision of the Bankruptcy Act 1966 (Cth).

2    The dismissal referred to in prayer 1 of the relief claimed in the interlocutory application is a reference to orders made by Charlesworth J on 20‍ August‍ 2025. Order‍ 1 of those orders dismissed an application brought by Ms Kimber to extend the time in which to seek leave to appeal from other orders which had been made by Perry J on 17‍ February‍ 2025 together with a costs order and a fixed costs sum order made by Bromwich J on 31‍ March‍ 2023.

3    In determining the application on 20 August 2025, Charlesworth J was exercising the Court’s appellate jurisdiction. Ms Kimber quite properly did not seek to advance her interlocutory application as an application for leave to appeal. No doubt this reflected her understanding that the Court has no appellate jurisdiction over orders made by judges who are exercising the Court’s appellate jurisdiction. Even so, however, at various points in her interlocutory application, perhaps through oversight, Ms Kimber referred to s‍ 24 of the Federal Court of Australia Act 1976 (Cth) which may be apt to suggest that the appellate jurisdiction of the Court is being invoked as well. For completeness, therefore, I will say that to the extent that Ms Kimber’s interlocutory application seeks the relief claimed in the exercise of the Court’s appellate jurisdiction it would appear to me to be incompetent. As I have said, this is not a criticism of Ms Kimber because Ms Kimber herself seems to accept that point.

4    The more substantive issue concerns the operation of r‍ 39.04 of the Federal Court Rules 2011 (Cth) (‘FCR’). In that regard, it is much easier to read Ms Kimber’s application as an application for a review of orders under that rule. Rule 39.04 provides as follows:

39.04 Varying or setting aside a judgment or order before it has been entered

(1)    The Court may vary or set aside a judgment or order before it has been entered.

(2)    If an interlocutory application for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the Court may determine the application, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3)    Within 14 days after a judgment or order is entered, the Court may on its own initiative set aside or vary the judgment or order as if the judgment or order had not been entered.

(4)    Despite rule 1.39, the Court may not extend the time fixed by subrule (2) or (3) of this rule.

(5)    Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.

5    The orders made by Charlesworth J on 20 August 2025 finally disposed of Ms Kimber’s application to Charlesworth J. That application was essentially an application to extend the time in which to seek leave to appeal from the orders made by Perry J on 17 February 2025. The orders of Perry J on 17 February 2025 were orders which summarily dismissed Ms‍ Kimber’s efforts to annul her bankruptcy.

6    As I have said, the orders of Charlesworth‍ J were final. The effect of FCR r 39.04 was to cast upon Ms Kimber, if the rule was to be properly enlivened, an obligation to bring the review application within 14 days of the date of the orders of Charlesworth J. The formal interlocutory application which is before me today was filed on 10‍ September‍ 2025. A literal application of r 39.04 to the facts as they appear from the court file would therefore lead to the conclusion that the review application was incompetent because it was out of time. But Ms Kimber has an answer to this. She submits that she had actually made substantial efforts to lodge her application within the 14-day period and in particular that she had communicated with this Court on 31‍ August‍ 2025 by email. I am prepared to assume in Ms‍ Kimber’s favour that by reason of that suggested administrative default, her interlocutory application dated 10‍ September‍ 2025 should in fact be taken to have been filed within the 14‍-day period prescribed by r‍ 39.04. To put the matter another way, I am prepared to assume in Ms Kimber’s favour that the timing problem which that rule throws up can by one means or another be overcome. It is for that reason that I proceed on the basis that the application of 31 August 2025 was filed.

7    The grounds upon which Ms Kimber seeks the review under r‍ 39.04 are set out in various paragraphs of her interlocutory application. The document has been usefully appointed with headings. The headings are as follows:

•    Section 1, Administrative and judicial bias;

•    Section 2, Prejudicial case management;

•    Section 3, Procedural unfairness;

•    Section 4, Incomplete consideration of relevant evidence;

•    Section 5, Reliance on false and misleading information;

•    Section 6, Failure to consider relevant laws and case law;

•    Section 7, Relevant legal principles not considered;

•    Section 8, Case law precedents support an annulment;

•    Section 9, Principles governing an annulment discretion for s‍ 153B(1)(c);

•    Section 10, Affidavit evidence exhibits of wrongdoing rise above bare assertion;

•    Section 11, Misleading strata documents;

•    Section 12, Previous judgments presenting false information;

•    Section 13, Relevant costs claims to be heard;

•    Section 14, The costs orders of Bromwich J – 31 March 2023;

•    Section 15, Oppression and unfairness by other parties;

•    Section 16, Duress and reliance on the trustee’s undertakings; and

•    Section 16, Impact on well-being as a separate emotional distress ground.

8    Each of these headings is supported by various paragraphs which flesh out and make clear the central point that Ms Kimber is attempting to make under each heading. I have taken some time to set those headings out so that it can be understood that, in effect, what Ms Kimber is seeking through her review application is in substance an appeal. In my view, a review application under r 39.04 cannot be used as a backdoor or de facto mechanism of appeal. This is particularly so in this case where there is no appeal from Charlesworth J’s orders of 20‍ August 2025. It is often said in various areas of legal discourse that one cannot achieve indirectly what cannot be achieved directly. I therefore do not accept that the review application, framed as it is, is one which the Court ought to entertain and I therefore would dismiss Ms Kimber’s application for a review of the orders.

9    If, however, I am wrong about the approach I have taken to r‍ 39.04 so that the interlocutory application is out of time under that rule, that does of course still leave Ms Kimber the option of proceeding under r 39.05. It has not been necessary to refer to r 39.05 up until this time but I will now set it out. It is in the following terms:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

10    In order to bring herself within r 39.05, Ms Kimber would need to demonstrate that the matter fell within any of subparagraphs (a) through to (h). I am not satisfied that any of those subparagraphs are made good in this case.

11    Ms Kimber raises separately a complaint about an order which was made on 17‍ July‍ 2025. This was order 2 of that date. The effect of order 2 was to restrain the trustee in bankruptcy from deducting certain moneys from an account until 4 pm on 29‍ July‍ 2025. Without setting out the whole context, the evident intent of that order was to preserve the status quo pending a hearing. The hearing was the hearing by Charlesworth J of Ms Kimber’s application for extension of time in which to get leave to appeal from the orders of Perry J made on 17‍ February‍ 2025.

12    If the application to Charlesworth J had been successful and Ms Kimber had received all the relief she had claimed, then one can see an argument that the funds which were then sitting in this bank account would have been available to her. It was, no doubt, for that reason that an interim arrangement was made preserving that fund from the actions of the trustee in bankruptcy until the hearing. The hearing was in fact scheduled for 31‍ July‍ 2025. The order of 17 July 2025, on the other hand, only made the injunction last until 29 July 2025. This appears to be an oversight and I agree with Ms Kimber that this is anomalous. Ms Kimber raised this matter with Charlesworth J who thanked her for it but declined to do anything about it since it did not seem to be material.

13    I also raised with Ms Kimber why this slip would matter. The submissions which Ms Kimber made in response to that did not satisfy me that the slip is a material slip. Thus, whilst I would accept the proposition that that order, being order 2 of the orders of 17 July 2025, is an order which could be corrected under r 39.05 because there is a clerical mistake in the order in terms of subrule‍ (g), or because there has been an accidental slip or omission in terms of subrule‍ (h), I am not satisfied that that jurisdiction should be exercised because I cannot see any purpose to be served by it.

14    In all those circumstances, the course I propose to take is to dismiss Ms Kimber’s interlocutory application dated 10 September 2025. I do so even assuming it was in fact filed on 31‍ August‍ 2025.

Associate:

Dated:    23 September 2025