Federal Court of Australia

Scott v SV Partners SA Pty Ltd, in the matter of Scott [2025] FCA 1448

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s form B2 application dated 21 March 2025 be dismissed.

2.    The respondents’ interlocutory application dated 11 June 2025 be dismissed.

3.    Pursuant to r 35.13(b) of the Federal Court Rules 2011 (Cth), the date by which the applicant may file any application for leave to appeal against order 1 of the orders made on 31 July 2025 be fixed as 10 December 2025.

4.    The applicant pay 80% of the respondents’ costs of the proceedings, on an indemnity basis, as agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    By an application dated 21 March 2025, the applicant, Dr Susan Scott, who is an undischarged bankrupt, seeks to invoke the jurisdiction of this Court under s 90-15 of the Insolvency Practice Schedule (Bankruptcy), being Schedule 2 to the Bankruptcy Act 1966 (Cth) (Form B2 Application). Dr Scott seeks various forms of relief.

2    The respondents named in the Form B2 Application are:

(a)    SV Partners SA Pty Ltd (SV Partners), the firm of insolvency accountants of which Dr Scott’s two trustees in bankruptcy, Stuart Otway and Alan Scott, are directors;

(b)    Nimlaw Pty Ltd (Nimlaw), the creditor of Dr Scott whose bankruptcy notice led to Dr Scott’s being declared bankrupt; and

(c)    Stewart-Rattray Lawyers, which is the trading name of Justin Stewart-Rattray, the solicitor who acts for SV Partners and for Nimlaw in these proceedings, and in other proceedings involving Dr Scott.

3    By an interlocutory application filed on 11 June 2025, the respondents seek an order under s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act), that Dr Scott be prevented from instituting proceedings in the Court without first obtaining leave in accordance with s 37AR of the FCA Act.

4    For the reasons that follow, I have concluded that Dr Scott’s Form B2 Application should be dismissed. I have concluded that an order should not be made under s 37AO of the FCA Act on the respondents’ present application.

5    The affidavit evidence filed in this Court makes reference to several proceedings in this Court, the High Court of Australia (High Court), the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA), the Supreme Court of South Australia (Supreme Court), the District Court of South Australia (District Court), and the Magistrates Court of South Australia (Magistrates Court). Some documents filed, and some orders made, in some of those proceedings are before this Court as annexures to the affidavits that have been filed. However, the evidence filed in this Court does not clearly explain the nature of all the proceedings that have been referred to. Insofar as these reasons refer to other proceedings, and steps taken in relation to them, this is based on my best attempt to understand those matters from the material before me. Likewise, where reference is made to documents which Dr Scott has attempted to file but which have been rejected for filing, my description of the nature of those documents, and the proceedings which Dr Scott was attempting to commence by filing them, is based only on the information available in the material before me.

A brief history of litigation involving Dr Scott

Events leading up to Dr Scott’s bankruptcy

6    From around 2018 to 2020, Dr Scott was a client of the firm of solicitors known as Minicozzi Lawyers. At the time when she was a client of the firm, the business of the firm was carried on by Nimlaw (which was then named Minicozzi Lawyers Pty Ltd). A director of Nimlaw, and the solicitor who gave advice to Dr Scott, was Kathryn White. Ms White was subsequently appointed a magistrate with effect from 12 August 2021.

7    Minicozzi Lawyers opened two files in respect of which Ms White performed work for Dr Scott, files 12101 (relating to a proceeding in the South Australian Civil and Administrative Tribunal (SACAT)) and 12567 (relating to an estate matter). Minicozzi Lawyers provided Dr Scott with a letter of retainer dated 1 April 2018 in relation to file 12101. The retainer letter contained a costs agreement and provided for the payment of interest on unpaid legal fees. In respect of file 12101, Minicozzi Lawyers rendered accounts for professional services dated 28 February 2018 and 2 May 2018. In respect of file 12567, Minicozzi Lawyers issued an account for professional services dated 23 September 2020.

8    On 27 February 2022, Nimlaw commenced proceedings in the Magistrates Court against Dr Scott, seeking to recover legal fees which it claimed were owed to it. Because Ms White, who was a witness in the case, was by then a magistrate, the action was heard by a judge of the District Court, Judge Slattery, sitting as a magistrate pursuant to s 22 of the Magistrates Act 1983 (SA). The action was given District Court action number CIV-22-001946. Nimlaw made an application for summary judgment against Dr Scott and, on 27 April 2023, Judge Slattery granted summary judgment in favour of Nimlaw in respect of part of the claim: Nimlaw Pty Ltd v Scott [2023] SADC 42.

9    Judge Slattery held (at [121]) that the two accounts issued to Dr Scott in respect of Minicozzi Lawyers’ file 12101, dated 28 February 2018 and 2 May 2018, were payable pursuant to a costs agreement contained in the letter of retainer and that there was no reasonable basis on which Dr Scott could defend that claim, and (at [125]) that interest was payable in respect of the amounts owing under those accounts. His Honour held (at [124]) that two loan agreements on which Nimlaw relied, which had purported to vary the terms of the agreement contained in the letter of retainer, were not enforceable against Dr Scott. In relation to the third account, dated 23 September 2020, which related to Minicozzi Lawyers file 12567, Judge Slattery refused to award summary judgment (at [126]). The amount of the judgment debt was $20,312.98.

10    On 27 April 2023, after delivering judgment, Judge Slattery made orders, including that Nimlaw was entitled to interest at the contractually-agreed rate of 2.5% per annum on the amount owing, and that Dr Scott pay Nimlaw’s costs on an indemnity basis. On 20 July 2023, Nimlaw filed its claim for costs in connection with the order that Dr Scott pay indemnity costs. Dr Scott appears not to have responded to that claim and, on 6 September 2023, Nimlaw applied to the Registrar of the District Court for entry of a costs judgment in the sum of $34,908.21. On the same day, the District Court determined that Nimlaw was entitled to its costs, fixed in that amount, pursuant to r 195.3 of the Uniform Civil Rules 2020 (SA).

11    On 9 September 2023, Dr Scott filed an interlocutory application seeking to “strike out” the judgment entitling Nimlaw to costs fixed in the amount of $34,908.21. On 18 September 2023, Nimlaw filed an application for a charging order in relation to the judgment debt.

12    In 2023, following the decision of Judge Slattery, Nimlaw commenced action CIV-23-007271. There is little direct evidence before me explaining this action. Dr Scott has stated (at [15] of her affidavit dated 19 March 2025):

Nimlaw took action on the second Deed, file 12567 to the Supreme Court, CIV-23-007271 Due to my default of 28 July 2023, Nimlaw obtained a monetary judgement, 29 June 2023.

13    Stuart Otway has deposed as follows (at [11]-[12] of his affidavit dated 11 July 2025):

Supreme Court Action Number CIV-23-007271 involved an application by Nimlaw for the taxation of legal costs arising from the judgment delivered by Judge Slattery in the District Court proceedings.

Prior to the Sequestration Order [Dr Scott] had made an application in Supreme Court Action Number CIV-23-007271 for costs which was automatically stayed upon the Sequestration Order being made. My co-trustee Alan Scott and I took no position on the orders sought. On 10 April 2024 I informed the Supreme Court of our position.

14    The nature of action CIV-23-007271 is not clear to me. The descriptions in the affidavits do not appear consistent, but it is not necessary to resolve this. What is apparent is that action CIV-23-007271 was a Supreme Court action that was commenced by Nimlaw against Dr Scott and that, on 28 July 2023, Auxiliary Judge Costello entered judgment in favour of Nimlaw against Dr Scott in the sum of $21,173.38.

Bankruptcy proceedings

15    On 27 July 2023, Nimlaw served a bankruptcy notice on Dr Scott. The bankruptcy notice claimed an amount owing of $20,446.82, being the amount due under the judgment of Judge Slattery, plus an amount representing interest.

16    On 8 August 2023, Dr Scott filed an originating application in this Court to set aside the bankruptcy notice. On 15 November 2023, Charlesworth J dismissed Dr Scott’s originating application and made orders staying the operation of the bankruptcy notice until 48 hours after the transmission to Dr Scott of Charlesworth J’s written reasons for judgment. On 17 November 2023, Charlesworth J published reasons for her orders of 15 November 2023: Scott v NIMLAW Pty Ltd [2023] FCA 1420.

17    On 19 November 2023, Dr Scott filed an appeal against the orders of Charlesworth J and an interlocutory application seeking a stay of those orders pending the determination of the appeal (action SAD 169 of 2023). On 24 November 2023, O’Bryan J dismissed Dr Scott’s application for a stay: Scott v NIMLAW Pty Ltd (No 2) [2023] FCA 1472. On 1 December 2023, Dr Scott filed an application for leave to appeal against the orders of O’Bryan J. On 25 January 2024, McElwaine J dismissed the application for leave to appeal: Scott v NIMLAW Pty Ltd [2024] FCA 26.

18    Meanwhile, in Supreme Court action CIV-23-007271, on 25 October 2023, Auxiliary Judge Flourentzou made “charging orders”, including an order that an interest in certain real property held by Dr Scott was charged with the judgment debt of $21,173.38 which had been entered in Supreme Court action CIV-23-007271. There is no evidence before me to suggest that charging orders were ever made in respect of the judgment debt obtained in District Court action CIV-22-001946.

19    On 1 December 2023, Nimlaw filed a creditor’s petition in the FCFCOA on the basis that Dr Scott had not complied with the bankruptcy notice that had been served on her on 27 July 2023. The creditor’s petition stated, in paragraph 2, that “[t]he applicant creditor does not hold security over the property of the respondent debtor”. In an affidavit dated 30 November 2023, the director of Nimlaw, Nicola Minicozzi, deposed that that statement was, within his own knowledge, true. It would appear that, because of the existence of the charging orders made in Supreme Court action CIV-23-007271, that statement was incorrect as at 30 November 2023. On 12 December 2023, Mr Stewart-Rattray, acting as the solicitor for Nimlaw, made an affidavit, filed in the FCFCOA, in which he deposed that he had been informed by Mr Minicozzi that:

(a)    paragraph 2 of the creditor’s petition incorrectly stated that Nimlaw did not hold security over the property of Dr Scott;

(b)    on 26 October 2023, “a Court Order was lodged by [Nimlaw] over [Dr Scott’s] property … as security for payment of the outstanding debt” (this apparently being a reference to the charging orders made by Auxiliary Judge Flourentzou); and

(c)    Nimlaw was “willing to surrender such security as may have been conferred by the caveats and court order for the benefit of creditors generally in the event of a sequestration order being made against the estate of [Dr Scott]”.

20    The evident intent of Mr Stewart-Rattray’s affidavit was to indicate an intention on the part of Nimlaw to proceed in accordance with s 44(3) of the Bankruptcy Act, on the basis that, if and insofar as Nimlaw was a secured creditor, it was willing to surrender its security for the benefit of creditors generally in the event of a sequestration order being made against Dr Scott. However, it does not appear that the creditor’s petition was amended, or that a fresh creditor’s petition was filed, so as to formally reflect that position. That may be because, on 15 December 2023, in Supreme Court action CIV-23-007271, Judge Bochner made orders by consent, setting aside the charging orders that had been made by Auxiliary Judge Flourentzou on 25 October 2023. The consequence was that the position stated on the face of the creditor’s petition was thereafter correct in any event.

21    I interpolate that one of Dr Scott’s submissions is that Nimlaw has obtained judgments against Dr Scott as a result of fraud. The allegations of fraud are not clear, but it is convenient to record at this point that I do not consider that the evidence before me is capable of establishing that Mr Minicozzi engaged in fraud in affirming that the statement in the creditor’s petition that Nimlaw’s debt was not secured. In any event, the position was made clear by Mr Stewart-Rattray’s subsequent affidavit. There was no attempt by Nimlaw to gain any advantage from any potentially misleading statement.

22    On 13 March 2024, a registrar of the FCFCOA (Registrar Colbran) made a sequestration order against Dr Scott’s estate pursuant to s 52(1) of the Bankruptcy Act. On 26 March 2024, Dr Scott applied for review of that decision under s 256 of the Bankruptcy Act. On 4 July 2024, Judge Cameron dismissed that application for review: Nimlaw Pty Ltd v Scott; Re Scott [2024] FedCFamC2G 647.

23    On 15 July 2024, Dr Scott filed an appeal to this Court against the decision of Judge Cameron (action SAD 102 of 2024). On 19 November 2024, O’Sullivan J dismissed the appeal: Scott v Nimlaw Pty Ltd (No 2) [2024] FCA 1330. His Honour had earlier dismissed an interlocutory application made by Dr Scott in the appellate proceedings by which she had requested that O’Sullivan J recuse himself from hearing the appeal: Scott v Nimlaw Pty Ltd (No 1) [2024] FCA 1123.

Other proceedings in federal courts

24    On 7 December 2022, Dr Scott attempted to file, in this Court, an originating application and supporting documents, in which she sought relief “under the provisions of the Claim of Civil Liability for Wrongful Acts causing Death Act 1936 (SA) asserted as justiciable matters to the Federal Court”. It appears that this was intended as a reference to Part 5 of the Civil Liability Act 1936 (SA). In those proceedings, Dr Scott sought exemplary damages against the Crown Solicitor of South Australia, the President of the SACAT, the Public Advocate of South Australia, and another person.

25    A registrar of this Court refused to accept the documents for filing on the basis that the originating application was an abuse of process or was frivolous or vexatious. That decision was communicated to Dr Scott by letter dated 20 December 2022. The basis for the decision, as recorded in the letter, was as follows:

Having considered the above provisions and the nature of your application, I am of the view there is no jurisdictional basis for this Court to determine your application, for the following reasons:

•    Your application does not arise under a federal law. The Act relied upon for the relief sought is a South Australian statute.

•    Despite your supporting affidavit making references to various provisions and contraventions of the Constitution, the Documents do not clearly set out the grounds on which your application could be considered a matter arising under the Constitution or involving its interpretation. The nature of the relief sought in the Originating Application does not support this application being considered a Constitutional Law matter.

•    Your supporting affidavit refers to your matter being an “associated matter” for the purposes of section 32(1) of the FCA Act. Your application could not be considered an “associated matter” as there are no … other matters referred to in the Documents (or presently on foot) to satisfy the “core matter” requirement, to which your application might be associated.

26    On 23 December 2022, Dr Scott filed an originating application for judicial review of the decision of the registrar to refuse to accept the originating application and supporting documents for filing (action SAD 193 of 2022). On 11 August 2023, O’Sullivan J dismissed the application for judicial review: Scott v Judicial Registrar Ditton [2023] FCA 947. In so doing, his Honour held (at [37]) that the originating application and supporting documents were “frivolous, vexatious, and an abuse of process of the Court”, and (at [39]) that there was no error in the registrar refusing to accept them for filing.

27    Dr Scott has also filed various proceedings in the High Court of Australia.

28    On 14 June 2024, Jagot J refused an application for leave to issue or file an application for a constitutional or other writ, which appears to have related to various decisions of judges of the Federal Court: Re Scott [2024] HCASJ 23. Dr Scott applied for leave to appeal from that decision to the Full Court of the High Court, and on 5 September 2024, Gleeson and Beech-Jones JJ refused the application for leave to appeal: Re Scott [2024] HCASL 216.

29    On 24 February 2025, Edelman J refused a further application for leave to issue or file an application for a constitutional or other writ which named the Federal Court, O’Sullivan J, McElwaine J, and Nimlaw as defendants: Re Scott [2025] HCASJ 11. The parties have not put before me any evidence of the documents filed by Dr Scott in the High Court proceedings.

30    I understand that, since the commencement of the present proceedings, Dr Scott has either filed or attempted to file further proceedings in the Federal Court. However, apart from some brief references to those matters by Dr Scott in the course of her submissions, I do not have evidence or information before me about those other proceedings.

Supreme Court proceedings under the Inheritance (Family Provision) Act 1972 (SA)

31    Dr Scott was the sole executor and sole beneficiary of the estate of her mother, according to a last will and testament executed by her mother on 9 December 2005. Action SCCIV-19-1316 is an action in the Supreme Court, arising out of the administration of the estate of Dr Scott’s mother. Two of Dr Scott’s siblings, Helen Scott and Robert Scott, commenced those proceedings in 2019, in which they applied for orders under the Inheritance (Family Provision) Act 1972 (SA) (IFP Act). I note that the IFP Act has subsequently been repealed by cl 3 of Schedule 2 to the Succession Act 2023 (SA). However, the IFP Act continues to apply to proceedings commenced under the IFP Act which had not been finally determined before the Succession Act came into operation: Succession Act, Schedule 4, cl 2.

32    On 19 January 2021, Judge Dart made orders striking out part of a defence filed by Dr Scott in action SCCIV-19-1316, by which she sought to preclude the grant of provision to Helen Scott and Robert Scott under the IFP Act by virtue of the forfeiture rule. It appears that Dr Scott claimed that Helen Scott and Robert Scott were involved in some way in a conspiracy that contributed to the wrongful death of her mother.

33    On 10 August 2021, following a trial by summary determination, the Supreme Court (Judge Dart) held that the applications by Helen Scott and Robert Scott should be allowed, and that provision out of the estate of Dr Scott’s mother was to be made to Helen Scott, in the amount of $300,000, and to the deceased estate of Robert Scott, in the amount of $15,500: Scott v Scott [2021] SASC 96. On 25 October 2021, Judge Dart delivered supplementary reasons, declining to vary the provision made for Helen Scott in light of a further fact that had arisen after 10 August 2021 which the parties had drawn to his attention. On 4 November 2021, Judge Dart made formal orders giving effect to his earlier decisions.

34    Dr Scott appealed against the orders made by Judge Dart on 10 August, 25 October and 4 November 2021. On 7 April 2022, the South Australian Court of Appeal (Livesey P, Doyle and David JJA) dismissed Dr Scott’s appeal: Scott v Scott [2022] SASCA 33. Among other things, the Court of Appeal held (at [30]) that Judge Dart had been correct to strike out parts of Dr Scott’s defence and that “[n]o coherent basis for the allegation that the respondents were involved in the death of their mother has ever been laid out”. The Court of Appeal made orders including that Dr Scott personally pay the costs of the respondents to her appeal on an indemnity basis and that she not be able to recover her costs, if any, out of her mother’s estate.

35    Dr Scott applied to the High Court for special leave to appeal from the orders of the Court of Appeal. The application for special leave to appeal was dismissed: Scott v Scott [2022] HCASL 150.

36    Despite having been unsuccessful in her appeal, it appears that Dr Scott, as the executor of her mother’s estate, failed or refused to make payments to Helen Scott and the estate of Robert Scott in accordance with the orders of Judge Dart.

37    By an interlocutory application filed on 19 December 2024 in Supreme Court action SCCIV-19-1316, Helen Scott sought orders that Dr Scott’s trustees in bankruptcy, Stuart Otway and Alan Scott, be substituted for Dr Scott in her capacity as the executor of her mother’s estate as the second respondent to those proceedings, as well as other orders relating to the sale of certain real property held by the estate of Dr Scott’s mother. By letter dated 28 October 2024 to the solicitors acting for Helen Scott, Dr Scott’s trustees in bankruptcy had confirmed that they did not oppose orders of the kind which Helen Scott sought in the interlocutory application filed on 19 December 2024.

38    On 8 January 2025, Dart AsJ made further orders in action SCCIV-19-1316, including an order that Stuart Otway and Alan Scott, as trustees of the estate of Dr Scott, be substituted for Dr Scott as the second respondent in that action. On each of 10 and 13 February 2025, certain documents which Dr Scott had attempted to file in the Supreme Court were rejected for filing. In both cases, the basis for the rejection of the documents included that they were vexatious or an abuse of process of the Court. It appears that these documents may have been rejected following the making of a direction or order by Dart AsJ that they not be accepted for filing.

39    On 15 February 2025, Dr Scott attempted to file, in the Supreme Court, a notice of appeal against the orders made by Dart AsJ on each of 8 January and 10 and 13 February 2025. This notice of appeal was also rejected for filing. It is not clear from the evidence before me whether that refusal was pursuant to a direction or order of Dart AsJ, but I understand Dr Scott to assert that it was.

40    On 12 March 2025, Dr Scott attempted to file, in action SCCIV-19-1316, a cross claim and statement of cross claim, which she has also described as a counter-claim. Among other things, the statement of cross claim asserted that other members of her family, including but not limited to Helen Scott and Robert Scott, had engaged in various acts constituting conspiracies and wrongful acts causing the death of Dr Scott’s mother. These allegations were similar to the allegations that had previously been made in the defence which was struck out by Judge Dart on 19 January 2021. The Court of Appeal had held that those allegations were correctly struck out because no coherent basis for them had ever been laid out. They were also similar to the allegations forming the basis for the claim which Dr Scott had purported to file in the Federal Court on 7 December 2022. The decision by a registrar to reject that claim for filing was the subject of the application for judicial review which was dismissed by O’Sullivan J on 11 August 2023.

Dr Scott’s claims in the present proceedings

Introduction

41    The present proceedings were commenced by Dr Scott on 21 March 2025, using form B2, prescribed under the Federal Court (Bankruptcy) Rules 2016 (Cth).

42    I have found Dr Scott’s Form B2 Application difficult to understand. It was supported by an affidavit, which I have also found difficult to understand. In both the Form B2 Application and the affidavit, most of the words are not arranged so as to form complete sentences; the documents are disordered, and legalistic jargon has been used in ways that obscure, rather than elucidate, the point that is sought to be made. The documents include references to particular provisions of the Bankruptcy Act and to events that have taken place in other courts. Insofar as it has been possible for me to address Dr Scott’s submissions, this has been difficult and time-consuming.

43    The respondents submit that none of them should properly have been named as a respondent to the Form B2 Application. Because the claims made by Dr Scott are difficult to follow, it is hard to know for certain who should be the respondents to the proceedings. However, I make the following observations:

(1)    SV Partners is not Dr Scott’s trustee in bankruptcy. The trustees are Stuart Otway and Alan Scott. It is not apparent that the firm SV Partners has a relevant interest in the proceedings, and there is no apparent reason why it should be a respondent.

(2)    Dr Scott seeks orders that each of Stuart Otway and Alan Scott be removed as her trustees in bankruptcy. In those circumstances, it seems clear that both Stuart Otway and Alan Scott should have been named as respondents to the proceedings.

(3)    Stewart-Rattray Lawyers is the trading name of Mr Stewart-Rattray and is not itself a legal entity.

(4)    Among other things, Dr Scott seeks orders setting aside sequestration orders that were obtained by Nimlaw. Given that Dr Scott is seeking those orders, it seems to me that it was probably appropriate for Nimlaw to be named as a respondent to the proceedings.

44    For reasons explained below, Dr Scott has not established that she should be granted any relief. It is therefore unnecessary to further consider who would have been named as the proper respondents to the proceedings.

Final relief sought in the Form B2 Application

45    Under the part of the Form B2 Application titled “details of claim”, Dr Scott has set out the following:

Details of claim : On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1.    The application is brought under Schedule 2 - Insolvency Practice Schedule (Bankruptcy) Bankruptcy Act 1966 :

in particular Division 90-15(3) an order determining any question arising in the administration of estate, encompassing 3(e) breach of duty, as section 5 malfeasance, misfeasance, negligence, wilful default or breach of trust and (4) Court may take into account, in making orders

(d) whether the regulated debtor’s estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and

(e) the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group.

90-15 (7) This section does not limit the Court’s powers under any other provisions of this Act or any other law.

a)    Division 55-1 general rules relating to estate administration: (c) conflicts of interest; and

b)    Division 1-1 (1) ensures that trustee (b) behaves ethically

c)    Division 60 remuneration and other benefits received by the trustee Section 60-20 Trustee must not derive profit or advantage from the administration of the estate; Section 60-21 Inducements to be appointed as trustee; Section 60-26 Payments in respect of performance by third parties

d)    Division 90-10 to inquire

Section 303 as aggrieved; encompasses

2.    section 263(1)(d) of criminal liability of intent to defraud and sect 263A intentional false statement in affidavit

3.    section 307 Proceedings in Firm Name: That action variously taken as Nimlaw Pty Ltd, Art of Law Pty Ltd, Minicozzi Lawyers Pty Ltd

4.    Section 33 Adjournment, amendment of process and extension and abridgment of times

5.    The relief of the termination of SV Partners as Bankruptcy Trustee of Susan Jane Scott’s estate without any charge of costs against the estate of Susan Jane Scott

6.    That relief of the fraud, of Judgments obtained by fraud in evidence, of Nimlaw Pty Ltd and Stewart Rattray Lawyers (SR Solicitors) as agents of Nimlaw Pty Ltd be granted.

•    against dismissal of statutory right of Appeal of J Charlesworth’s decision

•    against dismissal of Amended Notice of Appeal and Application to admit new evidence on appeal

•    against refusal to go behind the debt ; as dismissal of appeal of dismissal of de nuovo hearing of Creditor Petition

and antecedent proceedings, that related costs orders be quashed.

Alternatively, that the actions of SV Partners to the underlying proceedings of CIV-22-001946 and CIV-23-007721 be declared void, such that a new bankruptcy trustee be required to continue the actions of set aside of judgments obtained by fraud in evidence, the judgment on which the bankruptcy notice was brought; the set-aside of unlawful orders of indemnity costs for self-representing solicitor.

7.    That claim of civil liability of death caused wrongfully is justiciable as matter, Judiciary Act 1903, section 39(1A)(c), as section s40(1)(g) of defence of bankruptcy, regardless of set-aside of order of bankruptcy as set-aside of order of sequestration.

(Emphasis in original.)

46    I understand paragraphs 1, 2, 3 and 4 to identify provisions of the Bankruptcy Act which Dr Scott contends are relevant to her Form B2 Application. Those paragraphs do not identify any particular relief that is sought, and do not articulate any basis on which relief is sought.

47    I understand paragraph 5 to seek an order that the appointment of SV Partners as the trustee in bankruptcy of Dr Scott’s estate be terminated, and an order that SV Partners not be entitled to fees paid out of the estate. I address this aspect of the Form B2 Application at [147]-[153] below.

48    I have found paragraph 6 difficult to understand, but attempting to read it in light of parts of the affidavit filed in support, I proceed on the basis that Dr Scott contends that various previous judgments against her have been obtained by fraud, and seeks orders that they be set aside. Also in paragraph 6, I understand Dr Scott to seek, in the alternative, a declaration that actions taken by SV Partners in relation to District Court action CIV-22-001946 and Supreme Court action CIV-23-007721 are “void”, and an order requiring that new trustees in bankruptcy be required to continue, on behalf of Dr Scott’s bankrupt estate, her application to set aside the judgment of Judge Slattery (and certain costs orders), on the basis that that judgment (and those costs orders) were obtained by fraud. I have attempted to address this aspect of the application, as far as possible, at [109]-[119] below.

49    As I understand paragraph 7, Dr Scott appears to seek some kind of order or declaration that a claim which she wishes to bring for compensation for the alleged wrongful death of her mother is justiciable in this Court. As has been noted above, Dr Scott previously attempted to file a similar claim in this Court on 7 December 2022. A registrar made a decision not to accept that claim for filing, and that decision was the subject of the judicial review proceedings that were dismissed by O’Sullivan J on 11 August 2023: Scott v Judicial Registrar Ditton [2023] FCA 947. I address this aspect of the Form B2 Application at [82]-[99] below.

Interim relief claimed in the Form B2 Application

50    In the part of the Form B2 Application titled “Claim for interim relief”, Dr Scott has written the following:

Claim for interim relief: The Applicant also claims interim relief.

1.    The relief of injunction of bankruptcy trustees, SV Partners, Mr Otway and Mr Scott to act to Supreme Court SCIV-19-1316

2.    The relief of declaration, of bankruptcy trustees, SV Partners, Mr Otway and Mr Scott to act to Supreme Court SCIV-19-1316, as section 82(2) unprovable debt of un-devolved estate, as bankruptcy trustees acting outside powers;

alternatively if proceedings SCIV-19-1316, construed as provable debt, proceedings of Interlocutory to be declared as not competent, section 58(3)(b)

3.    Of injunction of Respondents of any coercive and punitive actions against the person and property of Susan Jane Scott, or of the un-devolved estate of Mrs AB Scott

4.    As Section 60(4)(b) Dr Scott to be given leave to appeal the refusal to file the claim of civil liability of death caused wrongfully, of J O'Sullivan on 11 August 2023, SAD 193/2023 as Judiciary Act 39(1A)(b) as constitutional implied rule of law

(Emphasis in original.)

51    The first claim for interim relief seeks an injunction preventing Dr Scott’s trustees in bankruptcy from acting in Supreme Court action SCCIV-19-1316. The second claim for interim relief seeks a declaration that the trustees have acted and/or are continuing to act outside their powers by taking action in relation to Supreme Court action SCCIV-19-1316 on the ground that that action is a “[d]emand[] … in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust” within the meaning of s 82(2) of the Bankruptcy Act, and therefore is not provable in bankruptcy. I understand Dr Scott, in the alternative, to claim that, if the proceedings in action SCCIV-19-1316 do relate to a provable debt, some conduct of one of the respondents with respect to those proceedings should be declared “not competent” by reason of s 58(3) of the Bankruptcy Act. These claims for interim relief all seem to be closely related. I address these aspects of the Form B2 Application at [125]-[142] below.

52    The third claim for interim relief appears to seek an injunction restraining the respondents from taking “any coercive and punitive actions against the person and property of” Dr Scott. The claimed relief is far too general and the Court would not make an order in those terms. Further, no basis for this relief has been established. It is unnecessary to say more about it.

53    I understand the fourth claim for interim relief to amount to an application for leave to appeal against the decision of O’Sullivan J, Scott v Nimlaw Pty Ltd (No 2) [2024] FCA 1330. This aspect of the Form B2 Application appears to be connected with paragraph 7 of the details of claim, which I address at [82]-[99] below.

Further orders sought by Dr Scott

54    Dr Scott’s Form B2 Application was listed for first case management hearing on 7 May 2025. Prior to that hearing, the parties were asked to provide minutes of the orders which they proposed the Court make at the first case management hearing. On 6 May 2025, Dr Scott provided a document in which she set out the orders that she sought, which were as follows:

1.    To amend application for interim relief claimed under Application Form B2, lodged 21 March 2025, filed 24 March 2025 (interim relief) (1), (2), (3)

The court make order of jurisdictional error, as in contravention of sec 27, sec 58(1) and sec 58(3)(a)(b) of the Bankruptcy Act; of,

the orders of Dart AJ SCCIV-19-1316 of 8 January 2025 (affidavit filed 24 March 2025)

1. That Thomas Stuart Ottway [sic] and Alan Geoffrey Scott as trustees of the bankrupt estate of Susan Jane Scott be substituted for the Second Respondent (as beneficiary of the estate of Alice Barbara Scott)

the orders of Dart AJ SCCIV-19-1316 of 8 April 2025 (affidavit filed 10 April 2025)

1. The first applicant is to commence an application for the revocation of the grant of probate (of the Will of Alice Barbara Scott, appointing Susan Jane Scott as Executor and sole Beneficiary) in separate proceedings

that the orders of Dart AJ be declared void

As concomitant,

•    that action of consortium of Bankruptcy Trustee and Creditor, SVPartners Pty Ltd, Mr Stewart-Rattray and Nimlaw Pty Ltd to SCCIV-19-1316 be declared as legally not competent

•    That action of Applicant 1, Helen Elizabeth Scott and Applicant 2, David Alexander Scott as executor of the estate of Robert Anthony Scott, to SCCIV-19-1316 be declared as legally not competent

2.    To amend application for interim relief (4)

The court order that Nimlaw Pty Ltd be required to support the application that Susan Jane Scott be given leave to appeal the refusal to file, of Claim of Civil Liability of Wrongful Acts to Cause Death (Claim), as sec 60(4)(b) of the Bankruptcy Act. That Claim as damages, lawfully settle Deed(s) of Susan Jane Scott to Minicozzi Lawyers Pty Ltd. The owner of Deed of file 12101 as action “against Guardianship Board”, on which Bankruptcy Notice (July 2023) was brought by Nimlaw Pty Ltd on unfinalised judgement of J Slattery;

as against the alternatives

(a)    The Nimlaw Pty Ltd is not the owner of the Deed of file 12101, as action of fraud, as affidavit 24 March 2025

(b)    The assertion of Nimlaw Pty Ltd, that Claim is not valid as third-party cross-claim (Judicature Act) is to assert that it was not unlawful for South Australian Executive and Administrative agencies to do wrongful acts to cause death to Mrs AB Scott; that acts were lawful acts of the South Australian Executive and Administrative agencies.

Thereby to assert Susan Jane Scott unlawfully instructed Minicozzi Lawyers Pty Ltd to rescue Mrs AB Scott from Wrongful Acts to Cause Death, and that thereby Minicozzi Lawyers Pty Ltd accepted unlawful instructions to act against the laws of South Australia. That thereby Minicozzi Lawyers Pty Ltd extracted legal fees as of file 12101, as in trust account of $50,000 from Susan Jane Scott and to require Susan Jane Scott to sign a Deed of $20,000, approximately in 2018, of legal representation in contravention of the laws of South Australia. That the Deed of debt of file 12101 is not a valid debt.

3.    The orders of relief claimed under Application of 24 March 2025, (5)(6)(7)

4.    That as order of accrued jurisdiction to the court; the court address the action of SCCIV-19-1316,

•    the order of costs as punitive as discretionary of JA Dart against Susan Jane Scott of defence of claim for provision

•    the award of provision by JA Dart, to Applicant 1 and Applicant 2 as unliquidated damages

•    the Counter-Claim of Susan Jane Scott as Executor of the estate of Alice Barbara Scott as Equitable Offset of award of provision to Applicant 1 and Applicant 2 as unliquidated damages.

(Emphasis in original.)

55    I understood Dr Scott to say that she was seeking these orders either instead of or in addition to those sought under the “Claim for interim relief” in the Form B2 Application.

56    Insofar as the first two proposed orders in the document provided by Dr Scott on 6 May 2025 are to be understood as seeking leave to amend the interim relief sought in Dr Scott’s Form B2 Application, leave must be refused. The terms of the interim relief sought are so unclear as to be virtually meaningless, and it would be unfair to require the respondents to respond to the contentions that those proposed orders were intended to convey. I shall, nevertheless, attempt to address their substance insofar as I am able to understand it.

57    The first of the proposed orders appears to seek a remedy in the nature of judicial review, setting aside certain orders made by Dart AsJ on 8 January 2025 and 8 April 2025 in Supreme Court action SCCIV-19-1316, on the ground that the making of those orders was “in contravention of” or inconsistent with, ss 27, 58(1) and 58(3)(a) and (b) of the Bankruptcy Act. I address these aspects of the relief sought by Dr Scott at [125]-[142] below.

58    I do not understand the second proposed order sought by Dr Scott in the document provided on 6 May 2025. It appears that Dr Scott seeks an order that Nimlaw be required to support an application that Dr Scott be given “leave to appeal the refusal to file” a claim in relation to the wrongful death of her mother. It is not clear whether this refers to an application for leave to appeal which Dr Scott has actually filed or attempted to file, or a hypothetical future application for leave to appeal. Dr Scott has attempted, at different times, to initiate proceedings in both the Supreme Court and this Court in relation to the alleged wrongful death of her mother. In each case, a registrar or other officer of the relevant court has refused to accept Dr Scott’s documents for filing. The decision of a registrar of this Court to refuse to accept Dr Scott’s originating application was the subject of Dr Scott’s application for judicial review which was determined by O’Sullivan J. This is addressed at [82]-[99] below.

59    In any event, there is no sensible basis on which this Court could order Nimlaw to support an application for leave to appeal made by Dr Scott. Nor is it apparent that Nimlaw would even properly be a party to any such application.

60    By the fourth order, I understand Dr Scott to contend that this Court has jurisdiction in respect of the claim made by Helen Scott and Robert Scott under the IFP Act, which is the subject of Supreme Court action SCCIV-19-1316. I address this aspect of the claim at [143]-[146] below.

The first case management hearing

61    At the first case management hearing on 7 May 2025, Dr Scott addressed me at length. The respondents indicated that they intended to make an application pursuant to s 37AO of the FCA Act.

62    At the time of the first case management hearing, and having given Dr Scott the opportunity to address me, I was not satisfied that there was real urgency in relation to the interim relief sought because of any genuine risk of irreversible damage being done to Dr Scott. However, I was also not sure that I had properly understood all that Dr Scott was attempting to say to me. I did not dismiss Dr Scott’s applications for interim relief at the first case management hearing, and I indicated at one point that I was considering whether to list her applications for interim relief separately from the hearing in respect of final relief. I had not listed the first case management hearing with the intention that it would involve the determination of the applications for interim relief; it was intended as a procedural hearing, and I attempted to make that clear at the outset of the hearing and on several occasions during the hearing.

63    The respondents indicated at the first case management hearing that they intended to make an application for orders pursuant to s 37AO of the FCA Act. I made timetabling orders providing for the filing of any application by the respondents for orders pursuant to s 37AO and for a hearing of any such application.

64    As matters unfolded, the respondents did not comply with the order to file their interlocutory application within the time provided, but did file such an application on 11 June 2025. In light of this, and conscious that Dr Scott regarded at least some aspects of the proceedings as requiring urgent attention, I listed the matter for a further case management hearing on 16 June 2025. Dr Scott did not attend that case management hearing. The respondents were represented at the case management hearing. In light of the delay that had occurred in the filing of the respondents’ interlocutory application under s 37AO of the FCA Act, I was no longer prepared to schedule the hearing of that application ahead of the hearing of Dr Scott’s Form B2 Application. Accordingly, on 16 June 2025, I listed the hearing in respect of final relief and the respondents’ interlocutory application on 31 July 2025, and made timetabling orders leading up to that hearing.

Dr Scott’s application that I recuse myself

65    On 7 July 2025, Dr Scott filed an interlocutory application by which she sought an order in the following terms:

1.    I seek the order of disqualification of Justice McDonald of hearing the application B2 form of 24 March 2025 on bias of the applicant.

66    The interlocutory application asks that I recuse or disqualify myself from further hearing the proceedings on the ground of bias (Bias Application). I proceed on the basis that Dr Scott relies on both actual bias (which is expressly referred to in the affidavit filed in support of the Bias Application) and apprehended bias.

67    I listed the Bias Application for hearing on 31 July 2025. On 31 July 2025, after hearing Dr Scott’s submissions in support of the Bias Application, and before hearing any of the other applications in the proceedings, I made an order that the Bias Application be dismissed. I indicated that I would provide my reasons for that order at the same time as publishing reasons for the other orders to be made in the proceedings. What follows are my reasons for dismissing the Bias Application.

68    In support of the Bias Application, Dr Scott relied on an affidavit sworn by her on 4 July 2025. I have found the affidavit difficult to understand. However, I proceed on the basis that Dr Scott contends that:

(a)    her Form B2 Application had sought interim relief, including relief styled as an interim injunction, and had asserted that it was urgent;

(b)    despite having been identified as a first case management hearing, the hearing on 7 May 2025 was to determine the substantive issue of whether interim relief should be granted (this is what I understand from Dr Scott’s statement that the “case management hearing of 7 May 2025 was of substantive law”);

(c)    at the first case management hearing, I did not make orders determining the application for interim relief but rather made procedural orders including, in particular, orders listing for hearing the respondents’ interlocutory application pursuant to s 37AO of the FCA Act; and

(d)    in doing so I made errors of law including “the error of law of constructive failure to exercise jurisdiction”, “the error of law of abuse of judicial power”, and “the error of law of actual bias”.

69    Dr Scott, in [4] of her affidavit in support of the Bias Application, has also described certain steps that she took to attempt to seek leave to appeal or to file other proceedings in the Court, following the first case management hearing on 7 May 2025. It appears that Dr Scott is saying that various documents which she attempted to file were not accepted for filing. However, the fact that Dr Scott may have attempted to appeal against the procedural orders I made on 7 May 2025 is not capable of supporting or contributing to a contention that I am actually biased against her or that a reasonable apprehension of bias arises.

70    The principles relating to actual and apprehended bias are well established and it is sufficient for present purposes to recall the way in which they have been summarised in recent cases.

71    In Rindeklev v Commonwealth [2025] FCA 354, Colvin J succinctly summarised (at [17]) the principles applicable to actual bias as follows:

In order to establish actual bias on the basis of prejudgment it must be demonstrated that the judge is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]-[72] (Gleeson CJ and Gummow J). Prejudgment of that kind must be firmly established: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (Gaudron and McHugh JJ).

72    The principles relating to apprehended bias were summarised by the High Court in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at 296-7 [11], as follows:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, secondly, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(Footnotes omitted.)

73    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, Gleeson CJ, McHugh, Gummow and Hayne JJ said (at 348 [19]):

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

74    Dr Scott contends that I was actually biased against her. The basis on which that allegation is made is difficult to paraphrase, so I will set out the relevant paragraph of the Bias Application in full:

Justice McDonald committed the error of law of actual bias, suggested to the respondent to make submissions to strike out application. Of one hour case management hearing of 7 May 2025 of urgent application filed on 24 March 2025, required that litigants and court resources of weeks of submissions and half-day hearing of 24 June 2025 be applied to strike out application, rather than examine evidence, apply law to fact, determine merit and relief to applicant.

(Emphasis in original.)

75    I take the complaint to be that I exhibited actual bias because, in the course of the first case management hearing, I raised with the respondents whether they were considering making an application to strike out Dr Scott’s application.

76    What occurred at the first case management hearing was as follows. Before the hearing, Mr Stewart-Rattray had informed the Court and Dr Scott of the orders the respondents intended to seek. These included an order that the respondents file any application pursuant to ss 37AO(2)(b) and 37AR of the FCA Act within 14 days. After hearing from Dr Scott, I invited oral submissions from Mr Stewart-Rattray. He suggested that it might be more efficient if the respondents were to make their application under s 37AO of the FCA Act (and, implicitly, if the Court were to determine any such application ahead of hearing Dr Scott’s Form B2 Application). I then attempted to clarify the nature of the proposed application to which Mr Stewart-Rattray was referring, and the following exchange took place:

HIS HONOUR: Yes. Well, I think the application you’re foreshadowing is an application that Dr Scott be declared a vexatious litigant and - - -

MR STEWART-RATTRAY: That’s correct.

HIS HONOUR: - - - barred from commencing any proceedings in the court.

MR STEWART-RATTRAY: That’s correct.

HIS HONOUR: There’s also a power I think under paragraph (a) of section 37AO(2) to make an order that any proceedings currently before the court be either stayed or dismissed.

MR STEWART-RATTRAY: That’s correct.

HIS HONOUR: Which I don’t think you’ve identified specifically, but that might be something to consider as to whether you make an application of that kind as well, and that then might serve as something like a summary judgment application, as well as I appreciate you attempting to achieve something more broadly. …

77    This exchange is what I understand Dr Scott to submit demonstrates actual bias on my part. The issue that I was raising was that the respondents’ foreshadowed application was for an order under s 37AO(2)(b) of the FCA Act, barring Dr Scott from commencing proceedings in the Court. I was attempting to point out that s 37AO(2)(b) was concerned with orders prohibiting persons from instituting future proceedings, but that the respondents may wish to seek an order under s 37AO(2)(a) if (as I inferred was the case) they also sought to prevent Dr Scott from continuing to prosecute proceedings already on foot (and, in particular, the present proceedings). I was not suggesting that the respondents should apply to strike out Dr Scott’s Form B2 Application because I had already determined that it lacked merit, but because I understood that they were proposing to make an application with a view to having the proceedings determined in their favour, and it appeared to me that an application for an order under s 37AO(2)(a) would be more apt to achieve that than an application which sought only an order under s 37AO(2)(b).

78    At the time of the first case management hearing (and, indeed, the final hearing), I had not made any determination of the substantive merits of Dr Scott’s case. I did not have a closed mind about their merits; in fact, I was conscious that I had found the written and oral submissions made by Dr Scott to that point in time difficult to understand, and wanted to take time to try to understand her case. What I said at the first case management hearing does not constitute, or demonstrate, actual bias. Nor, in my view, was it capable of causing a fair-minded lay observer to apprehend that I might not bring an impartial mind to the resolution of the issues in the proceedings. A fair-minded lay observer should be taken to be capable of appreciating the distinction to which I was drawing attention, between the powers described in s 37AO(2)(a) and (b) of the FCA Act. They should also be taken to understand that (as I had stated), at the first case management hearing, I was considering what procedural orders should be made to allow the matter to proceed efficiently. In my view, nothing that I said suggested that I had formed any definite view about the merits of any of Dr Scott’s arguments (and I had not in fact done so).

79    I also understand Dr Scott to contend either that I am actually biased or that a reasonable apprehension of bias arises because I made errors of law in the way I approached the first case management hearing. Even if it were to be assumed that I made an error of law in failing to determine Dr Scott’s application for interim relief at the first case management hearing, that would not provide a proper ground for me to recuse myself from hearing her Form B2 Application. The fact that a judge has made an error of law (or, as Dr Scott contended at one point, does not understand the body of law to be applied) does not itself give rise to a reasonable apprehension of bias. In this case, a fair-minded lay observer, who had read the material filed by Dr Scott and had observed the first case management hearing, would consider that I was genuinely attempting to understand the basis for Dr Scott’s Form B2 Application and the submission she was advancing; to determine how best to case manage the proceedings; to decide whether either Dr Scott’s application for interim relief or the respondents’ foreshadowed application for orders under s 37AO of the FCA Act should be heard separately and in advance of the final hearing; and to make programming orders to enable the applications before the Court to be dealt with in an orderly way. Such an observer would not have apprehended that I might not bring an impartial mind to the resolution of the issues in the proceedings.

80    Insofar as Dr Scott contends that my conduct of the first case management hearing demonstrated an “abuse of judicial power”, I do not accept that that is an accurate characterisation, or that there is any reason why a fair-minded lay observer might have drawn that conclusion. This submission appears to be based on an assertion that I “disregarded all evidence of conflict of interest, evidence of fraud”. However, I did not disregard those matters. I appreciated that Dr Scott was asserting that her matter was serious and urgent, but I was required to make my own assessment rather than uncritically to accept Dr Scott’s assertions. It would have been apparent to a fair-minded observer that, although I did not find them cogent, I had regard to the affidavit relied on by Dr Scott and the oral submissions she made, in an attempt to ascertain whether there were circumstances that required an urgent determination of her application for interim relief, and in considering how best to deal with the proceedings. It cannot be concluded that a fair-minded lay observer might have apprehended that I might not bring an impartial mind to the resolution of the issues.

81    Given that I made an order dismissing the Bias Application on 31 July 2025 but have only now provided my reasons for making that order, in fairness to Dr Scott, I will order that the time for her to file any application for leave to appeal against that decision be extended to 14 days after the date of publication of these reasons.

Arguments advanced by Dr Scott

Jurisdiction of this Court in respect of wrongful death proceedings

82    In paragraph 7 of the Form B2 Application, Dr Scott appears to contend that the alleged wrongful death of her mother is “justiciable as [a] matter” in this Court by reason of s 39(1A)(c) of the Judiciary Act. In paragraph 4 of the interim relief sought, Dr Scott refers to s 39(1A)(b) of the Judiciary Act. There is no s 39(1A), but I take Dr Scott to have intended to refer to s 39B(1A)(b) and (c) of Judiciary Act 1903 (Cth). Those provisions state:

39B Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

…

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

83    By paragraph 7 of the Form B2 Application, I understand Dr Scott to contend that the Federal Court has jurisdiction in the claim relating to the alleged wrongful death of her mother, which she attempted to commence on 7 December 2022. That has been referred to at [24] above.

84    The question of whether the Court has jurisdiction to hear the wrongful death proceedings which Dr Scott attempted to commence in the Federal Court was determined by the decision of O’Sullivan J delivered on 11 August 2023: Scott v Judicial Registrar Ditton [2023] FCA 947. That decision is binding unless and until it is set aside. Dr Scott has not appealed against it. Justice O’Sullivan held that there was no error in a registrar concluding that the originating application filed by Dr Scott was an abuse of process, on the basis that this Court had no jurisdiction in respect of a claim made under South Australian legislation, which did not raise a genuine constitutional issue.

85    While I understand Dr Scott to submit that O’Sullivan J misunderstood or misapplied the law in some way, that is not a basis on which a judge of this Court could properly set aside a decision made by another judge of the Court. Dr Scott asserted that her arguments “have been of fraud”, but I was not able to understand how she suggested that the decision of O’Sullivan J was affected by “fraud”. Her arguments jumped around and were quite incoherent. No basis has been shown on which to set aside the decision of O’Sullivan J.

86    Paragraph 7 of the Form B2 Application also appears to be connected to paragraph 4 of the claim for interim relief. That paragraph refers to s 60(4)(b) of the Bankruptcy Act. Section 60(2) provides that “[a]n action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action”. It is in that context that s 60(4) then provides:

(4)    Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a)    any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b)    the death of his or her spouse or de facto partner or of a member of his or her family.

87    Section 60(4) is not a provision pursuant to which leave can be granted. It operates of its own force. Its effect is that, notwithstanding the general rule contained in s 60(2), a bankrupt is not prevented from continuing, in the bankrupt’s own name, an action commenced by them before they became a bankrupt, if the action is in respect of (among other things) the death of a member of the bankrupt’s family. An action commenced by Dr Scott, in her own name, before she became a bankrupt, in respect of the alleged wrongful death of her mother, would appear to be an action to which s 60(4) applies.

88    If Dr Scott’s intention is to seek leave from this Court pursuant to s 60(4) of the Bankruptcy Act so as to enable her to commence an appeal against the decision of O’Sullivan J, that is based on a misunderstanding of the way s 60(4) operates. There is no power to grant leave under s 60(4): Lee v Brandis [2025] WASCA 125 at [18]-[19]. Leave to appeal was not required in respect of the orders of O’Sullivan J dated 11 August 2023. They were final orders disposing of an application for judicial review. An appeal lay as of right against that decision, under s 24(1)(a) of the FCA Act; leave to appeal was not required. Dr Scott was not a bankrupt during the period when she was entitled to appeal against O’Sullivan J’s decision and she did not do so. I note that any appeal against that decision would now be well out of time.

89    Dr Scott’s submission that jurisdiction is conferred on this Court in the wrongful debt claim by s 39B(1A)(c) of the Judiciary Act seems to rest on a contention or assumption that the wrongful death claim involves a matter arising under a law of the Commonwealth. I am not sure whether I have fully understood Dr Scott’s argument, but I think her position may be that her claim in respect of the alleged wrongful death of her mother arises under the Bankruptcy Act, because of the effect of s 60(4). I do not accept that that is so, for the following reasons.

90    First, as the terms of s 60(4) of the Bankruptcy Act make clear, that section is concerned with actions that are already on foot, having been “commenced by [the bankrupt] before he or she became a bankrupt”. The wrongful death claim is not an action that was commenced by Dr Scott before she became a bankrupt. She had merely made an unsuccessful attempt to file an originating application in this Court. Because the originating application was not accepted for filing, Dr Scott has not commenced an action in this Court in respect of the wrongful death of her mother. There never has been an action on foot in the Federal Court in relation to the wrongful death claim to which s 60(4) could apply.

91    Secondly, and more fundamentally, the effect of s 60(4) of the Bankruptcy Act is to define a limit on the operation of s 60(2), which stays certain actions that are on foot when a person becomes a bankrupt. Section 60(4) contemplates existing proceedings that are already on foot in a court. It does not have the result that the rights in issue in those existing proceedings depend on Commonwealth law for their enforcement. That is, s 60(4) does not have the effect that any action that meets the conditions described in that subsection is transformed into a matter arising under a law of the Commonwealth (ie, the Bankruptcy Act).

92    In a document sent to the Court on 16 June 2025, Dr Scott has included the following, which I understand to be an attempt to address the basis on which she says that this Court has jurisdiction in respect of the wrongful death claim. Dr Scott has written:

of noncolourable constitutional matter Citta Hobart Pty Ltd v Cawthorn – [2022] HCA 16; that the Claim of Wrongful Acts to Cause Death remains substantive “as genuinely raised and not incapable on its face of legal argument” as justiciable to the court, as sec 40(1)(g) of Act, regardless of action of bankruptcy ; else sec 60(4) of Act

93    This statement is disordered, but it appears that Dr Scott submits that the “claim of wrongful acts to cause death” is “not incapable on its face of legal argument”. That claim is not before me and it is unnecessary to make a decision about that. What is required to be “not incapable on its face of legal argument” is an issue that genuinely results in the matter arising under the Constitution or involving its interpretation or, by analogy, an issue that genuinely results in the matter arising under a law of the Commonwealth: see Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at 226 [10], 234 [35].

94    Dr Scott did not articulate a coherent argument as to why the wrongful death claim that she had tried to commence involved a matter arising under the Constitution or involving its interpretation. The closest she came to doing so was to say in oral submissions that she “did bring it to the Federal Court on the grounds of – constitutional grounds of rule of law, which is the Judiciary Act under the constitutional grounds; the Judiciary Act, 39B(1A)(b)”. The mere invocation of “the rule of law” does not give rise to a constitutional matter in the relevant sense. Dr Scott has not identified any constitutional issue that is not incapable on its face of legal argument. In any case, this was an issue that was already judicially determined against Dr Scott by O’Sullivan J.

95    In oral submissions, Dr Scott also seemed to submit that this Court has jurisdiction with respect to the wrongful death claim because it arises out of the same substratum of facts as the bankruptcy proceedings. I understood her to submit that this meant that the wrongful death claim could now be said to be part of a matter arising under the Bankruptcy Act.

96    As I have explained, a registrar of the Court decided not to accept for filing the originating application in the wrongful death claim. Justice O’Sullivan dismissed an application by Dr Scott to have that decision set aside on judicial review. As far as I am aware, there has been no further attempt by Dr Scott to file an originating application relating to the alleged wrongful death of her mother in this Court, and the decision of O’Sullivan J stands as the judicial determination as to whether the decision to reject the originating application for filing was valid.

97    In any event, I do not accept that the wrongful death claim can be said to arise out of the same substratum of facts as Dr Scott’s bankruptcy in any sense that would make them part of the same “matter”, as that expression is used in Ch III of the Constitution. The relevant concept of a “matter” was explained by Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at 585-6 [140]-[141], in the following terms:

… What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.

Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

(Footnotes omitted.)

98    None of the parties to the present proceedings is, or could properly be, a party to the wrongful death claim which Dr Scott previously unsuccessfully sought to file. The facts giving rise to the wrongful death claim all occurred before the end of 2022. Nimlaw’s creditor’s petition was not served until 1 December 2023, and a sequestration order was not made with respect to Dr Scott’s property until 13 March 2024. While it is true that some of the legal fees that gave rise to Nimlaw’s claim, which in turn gave rise to the judgment debt which led to Dr Scott’s bankruptcy, were fees incurred by Dr Scott in relation to SACAT proceedings relating to her mother, none of the facts relevant to the determination of the prospective wrongful death claim overlaps with the issues that properly arise for consideration in connection with the administration of Dr Scott’s bankrupt estate. A claim for personal injury or for a wrong done to a member of Dr Scott’s family before she became a bankrupt is not obviously part of the same “matter” as the administration of her bankrupt estate, and Dr Scott has not explained how they could be regarded as part of the one matter.

99    For these reasons, the Form B2 Application must be dismissed insofar as it seeks orders:

(a)    setting aside the decision of O’Sullivan J made on 11 August 2023;

(b)    granting leave to appeal against the decision of O’Sullivan J made on 11 August 2023;

(c)    granting leave of any kind under s 60(4) of the Bankruptcy Act;

(d)    accepting for filing in this Court an originating application in respect of the alleged wrongful death of Dr Scott’s mother; and/or

(e)    declaring that this Court has jurisdiction to entertain such a claim under s 39B(1A)(b) or (c) of the Judiciary Act.

Section 40(1)(g) of the Bankruptcy Act

100    Paragraph 7 of the Form B2 Application also refers to s 40(1)(g). This is evidently a reference to s 40(1)(g) of the Bankruptcy Act, which states:

(1)    A debtor commits an act of bankruptcy in each of the following cases:

…

(g)    if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i)    where the notice was served in Australia—within the time fixed for compliance with the notice; or

(ii)    where the notice was served elsewhere—within the time specified by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

101    In the application to set aside the bankruptcy notice which was determined by Charlesworth J, Dr Scott submitted that she had a counter-claim, set-off or cross demand within the meaning of s 40(1)(g), or a defence. After considering four arguments advanced by Dr Scott, Charlesworth J held that she was not satisfied that Dr Scott had a counter-claim, set-off or cross demand: Scott v NIMLAW Pty Ltd [2023] FCA 1420 at [12]-[23]. It appears that this was the principal, if not the only, issue that was argued before Charlesworth J.

102    The legal services which Dr Scott engaged Nimlaw to perform for her were described by Charlesworth J in the following way, at [8]-[9]:

It appears to be undisputed that Dr Scott engaged [Nimlaw] to perform legal services in connection with disputes that she had with other entities and persons concerning the treatment of her now deceased mother and the management of her deceased estate. That is perhaps an overly simplistic description of the subject matter of the legal services provided because, on the basis of submissions made before this Court today, it appears that Dr Scott has for many years now been engaged in legal proceedings relating to the treatment of her mother and aspects of her financial affairs and her health. Nothing I am about to say should be understood as diminishing the importance of those matters to Dr Scott.

The legal services performed by [Nimlaw] were the subject of invoices issued to Dr Scott. It appears to be undisputed that Dr Scott subsequently entered into deeds with [Nimlaw], which recorded arrangements for the payment of the invoices.

103    Dr Scott’s position seems to be that, if she is ultimately successful in a claim for damages arising from the alleged wrongful death of her mother, the costs of that claim may be payable by one or more of the respondents to that claim, and this may off-set (in a sense) her liability to pay the fees charged by her former solicitors.

104    It is not clear whether a submission of that kind was advanced to Charlesworth J. However, Charlesworth J did expressly state that it had not been shown “that the retainer was subject to any clause that the debts would not be due and payable until Dr Scott was finally vindicated in the pursuit of her rights in actions relating to her mother”: at [22]. No basis has been established to set aside the decision of Charlesworth J.

105    In Nimlaw Pty Ltd v Scott [2023] SADC 42 at [121], Judge Slattery stated, in relation to the debts owing on the two accounts on Minicozzi Lawyers’ file 12101: “There is no plea of any reasonable basis that those debts are not payable until such time as the new proceedings have been resolved.” If the payment or enforceability of Dr Scott’s debt to Nimlaw were contingent on a future event, that was a defence on which she could have relied in the Magistrates Court proceedings that were determined by Judge Slattery, which gave rise to the judgment debt on which Nimlaw relied in issuing the bankruptcy notice. Consequently, it is not “a counter-claim, set-off or cross demand that [Dr Scott] could not have set up in the action or proceeding in which the judgment or order was obtained” (emphasis added) within the meaning of s 40(1)(g) of the Bankruptcy Act.

106    I understand that Dr Scott does not accept these conclusions. However, even if her position were correct on the merits, these are matters that have already been determined against her in legal proceedings. The fact that she insists that the conclusions reached were wrong does not provide a basis for her to have the decisions set aside or revisited.

107    In her affidavit dated 19 March 2025 at [10], Dr Scott asserts that the damages which she was attempting to seek in the wrongful death claim (originally lodged with the Supreme Court but not accepted for filing) included the legal costs which she owed to Minicozzi Lawyers. Even assuming that that were so, a claim that Dr Scott was entitled to recover those costs, as damages payable by another party, did not mean that those costs were not due and payable to Nimlaw (as Judge Slattery held), nor that the claim for damages constituted a counter-claim, set-off or cross demand against Nimlaw for the purposes of s 40(1)(g) of the Bankruptcy Act.

108    For these reasons, Dr Scott’s Form B2 Application must be dismissed insofar as it seeks orders:

(a)    setting aside the decision of Charlesworth J made on 15 November 2023; and

(b)    setting aside the sequestration order or otherwise relieving Dr Scott of the consequences of bankruptcy.

Allegations of “fraud in evidence”

109    Dr Scott asserts that her trustees in bankruptcy, in combination with Nimlaw and Mr Stewart-Rattray, are acting as a “consortium”. By this I understand Dr Scott to allege that they are colluding or acting in concert to deprive Dr Scott of her lawful rights in litigation in the Supreme Court and the District Court, and to financially benefit Nimlaw.

110    Dr Scott’s affidavits contain multiple references to “unconscionable abuse of power”, “fraudulent action of bankruptcy”, “unlawful and unjust enrichment”, “breach of duty”, “breach of public trust”, “malfeasance, misfeasance, negligence, wilful default and breach of trust”. However, the repetition of these expressions does not assist in identifying what conduct on the part of the trustees is said to amount to fraud. Allegations of fraud must be clearly stated and distinctly proved. The allegations made by Dr Scott are not clear. They are mostly impossible to understand, even with great effort.

111    I think that one of Dr Scott’s complaints relates to an allegation that, before being made a bankrupt, she had applied to set aside two judgments that had been entered against her on the basis that they were obtained by fraud, and that, once trustees in bankruptcy were appointed, they took steps to discontinue the proceedings in which Dr Scott was attempting to argue that the judgments should be set aside. Dr Scott asserts that her trustees were acting in concert with Nimlaw and its solicitor, to conceal the alleged fraud. The two proceedings identified by Dr Scott, in which she had applied to set aside judgments obtained against her, were District Court action CIV-22-001946 and Supreme Court action CIV-23-007271.

112    District Court action CIV-22-001946 was the proceeding in which Judge Slattery found that Dr Scott was liable to Nimlaw for the payment of the two invoices issued to her on Minicozzi Lawyers’ file 12101. That proceeding was not instituted by Dr Scott; it was instituted by Nimlaw. It was not, therefore, a proceeding to which s 60(2) of the Bankruptcy Act could have any application. Supreme Court action CIV-23-007271 was also instituted by Nimlaw, and so was not a proceeding to which s 60(2) applied. As I have said above, the evidence before me, which is, with respect, disorganised, does not enable me fully to understand the nature of action CIV-23-007271.

113    I understand Dr Scott to submit that Nimlaw “could not be Minicozzi Lawyers” and was “not the holder of the Deeds of security [Dr Scott] had made to Minicozzi Lawyers”, because the legal practice formerly operated by Nimlaw is now operated by another company called Art of Law Pty Ltd. As explained at [9] above, Judge Slattery found that Dr Scott owed a debt pursuant to a retainer agreement, and that the party to whom the debt was owed was Nimlaw.

114    In her affidavit dated 19 March 2025 at [20]-[21], Dr Scott states:

Mr Minicozzi made submission to the Federal Court proceedings In affidavit of 26th October 2023

•    that Nimlaw Pty Ltd was not the proprietary owner of Minicozzi Lawyers but had sold Minicozzi Lawyers in December 2021 to Art of Law Pty Ltd

•    that the action of Claim of Debt Recovery had been brought by Art of Law Pty Ltd

•    that Mr Minicozzi had not self-represented as Nimlaw Pty Ltd as the proprietary owner of Minicozzi Lawyers but had acted as a solicitor of Art of Law Pty Ltd who are the proprietary owners of Minicozzi Lawyers

•    that the outstanding fee accounts, as interest bearing loans of Deeds secured as caveats of Susan Jane Scott were excluded from the sales transaction

I made submission of Mr Minicozzi’s affidavit, to the underlying proceedings CIV-22-001946, of set-aside of judgment as judgement obtained by fraud in evidence.

(Emphasis in original.)

115    I understand Dr Scott to assert that Mr Minicozzi’s evidence to the Federal Court which she describes in the first of these paragraphs is inconsistent with the evidence in the District Court proceedings, brought by Nimlaw to recover from Dr Scott debts it claimed she owed to Nimlaw. In light of the last bullet point, it is not apparent to me that there is any inconsistency, let alone fraud. Judge Slattery found that Dr Scott’s debt was owed to Nimlaw on the basis that Nimlaw was the same company that had previously carried on the business of Minicozzi Lawyers. Even though that business had subsequently been sold to Art of Law Pty Ltd, if (as Dr Scott says Mr Minicozzi deposed) the outstanding fee accounts of, or interest-bearing loans to, Dr Scott were excluded from the sale transaction, Nimlaw was able to sue on the loans. The issue of whether Dr Scott was in debt to Nimlaw was determined by Judge Slattery.

116    I understand Dr Scott to contend that Mr Minicozzi recovered costs in respect of his professional fees while acting for Nimlaw, but that he should not have been able to do so because he was a solicitor representing himself: see Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29. I understand, from the third dot-point in the passage quoted above, that it may have been held that Mr Minicozzi was able to recover those costs on the basis that he had subsequently become an employed solicitor of Art of Law Pty Ltd, the company which had purchased the business of Minicozzi Lawyers, and that, in acting for Nimlaw in that capacity, he was not in the position of a solicitor acting in his own interest. None of this establishes fraud on the part of Mr Minicozzi. Further and in any event, Dr Scott has established no basis on which this Court might set aside a costs judgment of the District Court. While I have done my best, I am not certain whether my understanding of these matters is correct, because the main source of evidence about them is Dr Scott’s own affidavit evidence and it is extremely difficult to follow.

117    I have already addressed, at [21] above, another allegation of fraud which I understand Dr Scott to advance, in connection with the creditors’ petition that led to her bankruptcy.

118    Apart from these issues, Dr Scott has repeatedly asserted that judgments against her have been obtained by fraud, or that the trustees in bankruptcy have acted in some respect in a manner that Dr Scott characterises as “fraud” or “unconscionable abuse of power”. Unfortunately, I have not been able to understand these claims. As far as I can see, there is no proper basis for these allegations in the evidence produced by Dr Scott. She has not been able to articulate the nature of the fraud that she alleges, or to provide any evidence of fraud beyond her own assertions. In any event, it would be unfair to the trustees in bankruptcy to attempt to address any possible claims of fraud against one or more of them, when those claims have not been articulated in such a way that they are capable of being understood and responded to.

119    For these reasons, Dr Scott’s Form B2 Application should be dismissed insofar as it seeks relief relating to allegations of fraud.

Argument that costs orders do not give rise to a provable debt

120    Dr Scott contends that her trustees in bankruptcy have exceeded their authority to act by pursuing the recovery of debts arising from costs orders made against Dr Scott in Supreme Court proceedings. In her affidavit dated 19 March 2025, Dr Scott has expressed her position on this issue as follows (at [45]):

That the costs against me, as debt of my estate, are un-liquidated damages. Section 83(2) of the Act, a debt of un-liquidated damages is an unprovable debt, therefore not a cause of action in bankruptcy. An action of unprovable debt is outside the authority of the Trustees to act.

121    Dr Scott’s reference to s 83(2) of the Bankruptcy Act appears to have been intended as a reference to s 82(2). Section 82 relevantly provides:

Debts provable in bankruptcy

(1)    Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

…

(2)    Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.

…

122    I understand Dr Scott to allege that the trustees in bankruptcy have acted beyond their authority as trustees. Dr Scott’s argument appears to depend on the proposition that costs which are payable by her pursuant to orders made in action SCCIV-19-1316 are “[d]emands in the nature of unliquidated damages” and are, therefore, not provable in Dr Scott’s bankruptcy.

123    This argument is incorrect. Costs orders are not demands in the nature of unliquidated damages, even if the amount of costs payable has not yet been determined. This is clear from the following passage from the judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56 (at 76 [67]):

Had the costs order ... been made and taxed before the appellant’s bankruptcy ensued, it would have been a provable debt. Even if the order had not been taxed before bankruptcy, it would nonetheless have been provable as a debt incurred “by reason of an obligation incurred before the date of the bankruptcy”; namely the antecedent making of the costs order.

(Emphasis added.)

124    This issue was also addressed by Hespe J in Pekar v Jess (Trustee) [2022] FCA 1367. Her Honour held (at [48]-[51] and [56]) that debts based on costs orders were properly admitted to proof in bankruptcy, even though the costs had not been taxed, and were not “in the nature of unliquidated damages”.

Application to set aside orders made by Dart AsJ in Supreme Court action SCCIV-19-1316

125    Dr Scott seeks an order setting aside orders made by Dart AsJ on 8 January and 8 April 2025 in Supreme Court action SCCIV-19-1316. Dr Scott claims that the making of those orders was “in contravention of” ss 27, 58(1) and 58(3)(a) and (b) of the Bankruptcy Act. Having regard to the terms of those provisions, I understand this to be a claim that the Supreme Court did not have jurisdiction in action SCCIV-19-1316, or did not have jurisdiction to make the orders that were made by Dart AsJ on 8 January and 8 April 2025, because the action and/or the making of the orders were within the exclusive jurisdiction conferred on this Court and on the FCFCOA by s 27 of the Bankruptcy Act.

126    In a part of her affidavit dated 19 March 2025 which appears to relate to this issue, Dr Scott has written (at [46]):

The Supreme Court has presumed jurisdiction and presumed authority of SV Partners to act. The interlocutory application and the order of JA Dart of 8 January, that SV Partners represented by Mr Stewart-Rattray be substituted for me as beneficiary of the estate of the Testatrix. The estate has not devolved, sec58 of the Act, therefore cannot be vested property of SV Partners as bankruptcy Trustees; as outside causes of action of bankruptcy, that SV Partners exceed authority to act.

127    Section 27 of the Bankruptcy Act confers on this Court and the FCFCOA “concurrent jurisdiction in bankruptcy” which is stated to be “exclusive of the jurisdiction of all courts”, subject to two exceptions that are not presently relevant. Section 58 of the Bankruptcy Act relevantly provides:

58 Vesting of property on bankruptcy – general rule

(1)    Subject to this Act, where a debtor becomes a bankrupt:

(a)    the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b)    after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

[Notes omitted.]

…

(3)    Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:

(a)    to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or

(b)    except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.

…

(6)    In this section, after‑acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.

128    Section 5(1) of the Bankruptcy Act defines “property” for the purposes of the Act as follows:

property means real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.

129    Section 116(1) of the Bankruptcy Act is also relevant. It identifies the property that is, subject to the Act (including, in particular, s 116(2)), “property divisible among creditors” of the bankrupt. That property includes, relevantly:

(a)    all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and

(b)    the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; and

…

130    The relevant history of Supreme Court action SCCIV-19-1316, as best as I have been able to understand it from the material in evidence before me and the judgments of the Supreme Court and the Court of Appeal, has been set out at [31]-[40] above. Dr Scott was the sole beneficiary under her mother’s will: see Scott v Scott [2021] SASC 96 at [2]; Scott v Scott [2022] SASCA 33 at [1], [3]. On 8 January 2025, Dart AsJ relevantly made an order in action SCCIV-19-1316 in the following terms:

That Thomas Stuart Otway and Alan Geoffrey Scott as trustees of the bankrupt estate of Susan Jane Scott be substituted for the Second Respondent.

131    The effect of s 58(1)(a) of the Bankruptcy Act was that, upon Dr Scott’s becoming a bankrupt, her property vested in the trustees of her bankrupt estate. I understand Dr Scott to contend that, until the distribution of her mother’s estate was completed, she had no proprietary interest in the property of the estate; that s 58(1) did not, therefore, vest any relevant property in the trustees in bankruptcy; and that, consequently, the trustees in bankruptcy should not have been substituted for her as a party to action SCCIV-19-1316.

132    The trustees of Dr Scott’s bankrupt estate had a relevant interest in the administration of her mother’s estate. While it is true that Dr Scott, in her capacity as a beneficiary of her mother’s estate, did not have a propriety interest in any of the assets of the estate until a distribution to her was made, it does not follow that there was no relevant property that could vest in the trustees in bankruptcy.

133    In Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 (Schultz), the High Court explained (at 312-13) that neither the legal ownership nor the beneficial ownership of the property of a deceased estate vests in named beneficiaries at the time of death of the testator. However, the High Court held (at 314), upon the death of the testator, a beneficiary under a will acquires “a right to have the deceased estate administered in accordance with the duties of the executors”. Dr Scott’s right to the due administration of her mother’s estate was not changed as a consequence of the orders made by the Supreme Court under the IFP Act, and subsequently affirmed by the Court of Appeal, although the value of Dr Scott’s right to due administration of the estate was reduced by the making of provision in favour of Helen Scott and the deceased estate of Robert Scott: cf Schultz at 316. Upon her becoming a bankrupt, Dr Scott’s right to due administration of the deceased estate of her mother vested in the trustees in bankruptcy in accordance with s 58(1) of the Bankruptcy Act, since it was “property” as defined: see Schultz at 314.

134    In Low v Hunt [2025] VSC 80, Forbes J summarised the position as follows (at [31]):

A beneficiary of a deceased’s estate has no proprietary right in any asset of the estate until distribution from the estate. However, on a person’s death, those benefiting from their estate acquire a right to have the estate administered in accordance with the duties of those charged with its administration. For a bankrupt person, that right to due administration vests in the trustee in bankruptcy. Any interest of the beneficiary that is derived from their interest in due administration of the deceased estate, also vests in the trustee in bankruptcy.

(Footnotes omitted.)

135    Dr Scott’s interest as a beneficiary of her mother’s deceased estate was property to which s 58(1) of the Bankruptcy Act applied. The order made by Dart AsJ on 8 January 2025, substituting the trustees in bankruptcy as the second respondent in action SCCIV-19-1316, in lieu of Dr Scott in her capacity as the sole beneficiary of her mother’s estate, was consistent with recognition that, by reason of the operation of s 58(1) of the Bankruptcy Act, the interest of Dr Scott in the administration of her mother’s estate had vested in the trustees.

136    The effect of s 58(3) was that no creditor of Dr Scott’s, including Helen Scott or the estate of Robert Scott, was able to enforce any remedy against Dr Scott or her property, or take any fresh step in a legal proceeding in respect of a provable debt. However, action SCCIV-19-1316 was not an action in respect of a provable debt; it did not seek payment of a debt owed by Dr Scott, and did not involve a claim for damages or for any other kind of monetary order against Dr Scott. It was an action in which Dr Scott’s siblings each sought a provision out of the estate of Dr Scott’s mother. Although Dr Scott, as the beneficiary under her mother’s will, had an interest in the due administration of her mother’s deceased estate, the property out of which her siblings sought provision was the property of the deceased estate, not Dr Scott’s interest in the due administration of the deceased estate. Section 58(3) had no application to action SCCIV-19-1316.

137    In s 5(1) of the Bankruptcy Act, “bankruptcy, in relation to jurisdiction or proceedings, means any jurisdictions under or by virtue of” the Bankruptcy Act. “[T]here is a distinction between exercising jurisdiction ‘in bankruptcy’ on the one hand and simply recognising the effect of provisions of the Bankruptcy Act on the other”: Preston v Diaspora Holdings Pty Ltd [2019] NSWSC 651 at [45]; see also Meriton Apartments Pty Ltd v Industrial Court (NSW) (2008) 171 FCR 380; [2008] FCAFC 172 at 384-5 [7]-[8] (Branson J), 400-1 [88] (Greenwood J).

138    Associate Justice Dart did not exercise (or purport to exercise) any power or jurisdiction conferred on “the Court” by or under the Bankruptcy Act. He was exercising jurisdiction in the existing action in which Dr Scott’s siblings had sought relief under the IFP Act, and he made an order substituting the trustees in bankruptcy for Dr Scott as a party. The orders his Honour made did not involve the exercise of any jurisdiction or power under or by virtue of the Bankruptcy Act; they merely reflected the legal operation of s 58(1). In particular, I note that there is nothing in the evidence before me to suggest that Dart AsJ had before him, or purported to determine, an “application[] to declare for or against the title of the trustee to any property”, being an application of the kind referred to in s 31(1)(f) of the Bankruptcy Act.

139    For these reasons, I conclude that Dr Scott has not demonstrated that Dart AsJ, in making the orders of 8 January 2025 in action SCCIV-19-1316, was exercising “jurisdiction in bankruptcy”, as that expression is used in s 27 of the Bankruptcy Act.

140    On 8 April 2025, Dart AsJ made further orders in action SCCIV-19-1316. In remarks accompanying the orders, Dart AsJ explained:

The first respondent [Dr Scott] in her capacity as executor does not accept the outcome of the trial and/or the appeal. It is apparent that to progress the matter a new and independent executor should be appointed so that the deceased estate can finally be administered and that will involve the sale of the property. The applicant [Helen Scott] will commence a probate action to revoke the grant of probate and obtain a new grant with a fresh administrator.

141    The orders made on 8 April 2025 contemplated the filing by Helen Scott of separate proceedings in the probate jurisdiction of the Supreme Court, and made practical provision for the waiver of the filing fee in connection with those proceedings and for the evidence already filed in action SCCIV-19-1316 to be evidence in the new proceedings. For the reasons already explained, action SCCIV-19-1316 is not a proceeding in respect of a provable debt, and nothing done on 8 April 2025 involved the exercise of any jurisdiction in bankruptcy by the Supreme Court.

142    Insofar as Dr Scott seeks declaratory relief that either the actions of the trustees in bankruptcy or the proceedings in SCCIV-19-1316 as now constituted are “not legally competent”, this appears to be based on the contentions already addressed above. No basis for the grant of such relief has been established.

Contention that this Court has accrued jurisdiction to make orders in or in connection with action SCCIV-19-1316

143    Dr Scott appears to contend that this Court has jurisdiction in respect of the claim made by Helen Scott and Robert Scott under the IFP Act, which is the subject of Supreme Court action SCCIV-19-1316. The contention must be rejected for several reasons.

144    First, it is not apparent that the IFP Act claim is part of the same “matter” as the proceedings in bankruptcy.

145    Secondly, and in any event, Helen Scott and Robert Scott commenced action SCCIV-19-1316 in the Supreme Court, not in this Court. Even though this Court might have had jurisdiction to hear and determine an application under the IFP Act if it formed part of the same matter as a proceeding in respect of which this Court otherwise had jurisdiction, that does not mean that this Court can proceed as if action SCCIV-19-1316 were an action in this Court. The concept of accrued jurisdiction (to which Dr Scott has referred) means that, where jurisdiction in respect of a matter is conferred on this Court, the Court has jurisdiction to determine any claim or defence that forms part of the same “matter” in which this Court has jurisdiction: it is not the conferral of a power to take over or interfere with existing proceedings that are on foot in another superior court.

146    Thirdly, the substance of the claims by Helen Scott and Robert Scott under the IFP Act has already been judicially determined, by Dart AsJ and by the Court of Appeal. Orders have been made for provision to Helen Scott and to the estate of Robert Scott, and those orders have been affirmed by the Court of Appeal. No basis has been established on which a single judge of this Court would set aside the orders made by Dart AsJ and affirmed by the Court of Appeal.

Application for orders that Stuart Otway and Alan Scott be removed as trustees in bankruptcy

147    Dr Scott seeks orders that Stuart Otway and Alan Scott be removed as her trustees in bankruptcy and replaced by other trustees. A potential difficulty with this aspect of Dr Scott’s claim is that Stuart Otway and Alan Scott are not respondents to her Form B2 Application. However, their firm, SV Partners, is a respondent. Stuart Otway has sworn an affidavit in the proceedings, in which he states that he is authorised by Alan Scott to swear the affidavit. In these circumstances, I am satisfied that both of the trustees are aware of the proceedings and have had a practical opportunity to respond, and I will consider the merits of Dr Scott’s submission that Stuart Otway and Alan Scott be removed as trustees in bankruptcy.

148    The Court has a broad power to supervise the conduct of trustees with respect to the administration of bankrupt estates. Section 90-15 of the Insolvency Practice Schedule (Bankruptcy) most relevantly provides:

90-15 Court may make orders in relation to estate administration

Court may make orders

(1)    The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor’s estate.

Orders on own initiative or on application

(2)    The Court may exercise the power under subsection (1):

(a)    on its own initiative, during proceedings before the Court; or

(b)    on application under section 90-20.

Examples of orders that may be made

(3)    Without limiting subsection (1), those orders may include any one or more of the following:

(a)    an order determining any question arising in the administration of the estate;

(b)    an order that a person cease to be the trustee of the estate;

(c)    an order that another person be appointed as the trustee of the estate;

(d)    an order in relation to the costs of an action (including court action) taken by the trustee of the estate or another person in relation to the administration of the estate;

(e)    an order in relation to any loss that the estate has sustained because of a breach of duty by the trustee;

(f)    an order in relation to remuneration, including an order requiring a person to repay to the estate of a regulated debtor, or the creditors of a regulated debtor, remuneration paid to the person as trustee.

Matters that may be taken into account

(4)    Without limiting the matters which the Court may take into account when making orders, the Court may take into account:

(a)    whether the trustee has faithfully performed, or is faithfully performing, the trustee’s duties; and

(b)    whether an action or failure to act by the trustee is in compliance with this Act and the Insolvency Practice Rules; and

(c)    whether an action or failure to act by the trustee is in compliance with an order of the Court; and

(d)    whether the regulated debtor’s estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and

(e)    the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group.

…

Section does not limit Court’s powers

(7)    This section does not limit the Court’s powers under any other provision of this Act, or under any other law.

149    The Court has the power to make orders of the kind sought by Dr Scott. That is clear from the terms of s 90-15(1) and (3)(b) and (c). However, Dr Scott has not satisfied me that there is any basis on which I should exercise these powers (or any other power under s 90-15) in the present case.

150    To the extent that Dr Scott relies on what she alleges to have been unauthorised or inappropriate conduct by her trustees in respect of the various proceedings that have already been addressed above, I am not satisfied that the trustees in bankruptcy have engaged in any conduct that would warrant their removal as trustees.

151    The fact that Mr Stewart-Rattray acts for both SV Partners and Nimlaw in these proceedings, as well as appearing for himself in his capacity as the second respondent, does not cause me to doubt that the trustees in bankruptcy are capable of acting independently of Nimlaw in connection with the administration of Dr Scott’s bankruptcy. The proceedings commenced by Dr Scott are difficult to understand on their face and the interests of SV Partners (which, as noted above, is not Dr Scott’s trustee in bankruptcy) and Mr Stewart-Rattray in the proceedings is not obvious. It is understandable that the respondents collectively would seek to reduce or spread the costs of responding to the proceedings by maintaining common representation.

152    I cannot see any support for a suggestion that Dr Scott’s trustees have acted inappropriately in connection with the administration of her bankrupt estate. Apart from Dr Scott’s conviction that she is the victim of fraud, and her repeated protestations to that effect, there is no apparent evidence that the trustees in bankruptcy have failed to act independently of Nimlaw in their attempts to administer her bankrupt estate. There is evidence that Dr Scott has not been co-operative with the trustees’ attempts to administer her estate and, to the extent that they have thus far been unable to perform their duties in connection with the administration of the estate, this appears to be due to the lack of co-operation on Dr Scott’s part, and the need to respond to allegations advanced by Dr Scott in various legal proceedings.

153    Dr Scott also has not established any basis on which I should make an order that the trustees in bankruptcy not receive fees from the bankrupt estate.

The respondents’ application for orders under s 37AO of the FCA Act

Relevant legislative provisions

154    The expression “vexatious proceeding” is defined, non-exhaustively, in s 37AM(1) of the FCA Act for the purposes of Pt VAAA of the Act (comprising ss 37AM-37AT). The definition is as follows:

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

155    Section 37AO of the FCA Act provides:

37AO Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney‑General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

156    Section 37AQ states in part:

37AQ Proceedings in contravention of vexatious proceedings order

(1)    If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court:

(a)    the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT; and

(b)    another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT.

(2)    If a proceeding is instituted in contravention of subsection (1), the proceeding is stayed.

…

157    Against the backdrop of the prohibitions imposed by s 37AQ(1) of the FCA Act, s 37AR provides for the making of applications for leave to institute proceedings, as follows:

37AR Application for leave to institute proceedings

(1)    This section applies to a person (the applicant) who is:

(a)    subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or

(b)    acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)    The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3)    The applicant must file an affidavit with the application that:

(a)    lists all the occasions on which the applicant has applied for leave under this section; and

(b)    lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c)    discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4)    The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

158    Sections 37AS and 37AT regulate the power of the Court to dismiss or grant an application for leave made under s 37AR.

The respondents’ interlocutory application

159    By their interlocutory application filed on 11 June 2025, the respondents seek five orders.

160    The first order sought is an order, said to be pursuant to s 37AO(1)(a) of the FCA Act, that Dr Scott “has instituted and conducted vexatious proceedings”. Strictly, s 37AO(1)(a) does not empower the Court to make an order. Its function is to identify one of the states of satisfaction which, if held by the Court, enlivens the power to make one or more orders of the kinds identified in s 37AO(2). Relevantly, before making an order under s 37AO(2), the Court must be satisfied not just that Dr Scott “has instituted and conducted vexatious proceedings”, but that she has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.

161    The second order sought by the respondents is an order, pursuant to s 37AO(2)(a), that the present proceedings “be permanently stayed and or dismissed”. Notably, the respondents do not seek an order than any other proceedings presently pending in the Court be stayed or dismissed. As explained at [64] above, the respondents’ interlocutory application was ultimately listed for hearing together with the final hearing of Dr Scott’s Form B2 Application. For the reasons that I have explained above, I do not consider that there is merit in any of Dr Scott’s arguments, and her Form B2 Application should therefore be dismissed in any event. It is unnecessary to consider further the separate power to stay or dismiss the proceedings under s 37AO(2)(a) of the FCA Act.

162    The third order sought is that Dr Scott be “prohibited from issuing any further applications or proceedings relating to the Respondents, her bankruptcy or similar subject matter to any proceedings previously filed by her in any Court”.

163    The fourth order sought is that Dr Scott “must comply with [s 37AR] of the [FCA Act] to seek leave to file any further applications or proceedings relating to the Respondents, her bankruptcy or similar subject matter to any proceedings previously filed by her in any Court”. If the Court decides to make an order under s 37AO(2) then it is not necessary to make any order that Dr Scott comply with s 37AR. The requirements imposed by s 37AR apply by force of that section. It is therefore unnecessary to say more about the fourth order sought.

164    The fifth order sought by the respondents is that Dr Scott pay the respondents’ costs of these proceedings on an indemnity basis, with those costs to be paid out of the assets of Dr Scott’s bankrupt estate. I address the question of costs at [177]-[179] below.

165    I first turn to consider whether the institution and conduct of the present proceedings are properly characterised as an abuse of process, and whether they therefore constitute a “vexatious proceeding”.

The present proceedings are an abuse of process and vexatious

166    The Form B2 Application, interlocutory applications, affidavits and other documents relied on by Dr Scott are confused, and are not reasonably comprehensible. None of her contentions is clearly expressed. It has taken great effort to attempt to understand what she is seeking and why. I am still not confident that I have succeeded. The documents filed by Dr Scott, as well as her oral submissions, have been presented in such a way that they are very difficult to understand, do not clearly state her arguments, and impose an unacceptable burden on anyone attempting to respond to them.

167    In Re Scott [2024] HCASJ 23, Jagot J said of the application made by Dr Scott in that case that the contentions advanced by her did not “advance any legally intelligible basis for the relief sought”, and that “[t]he application … exposes that it is both frivolous and vexatious and, accordingly, an abuse of process” (at [4]). In my view, that is also an apt description of Dr Scott’s conduct of the present proceedings, at least as far as the vast majority of her submissions are concerned.

168    It is not so much that there might not be some reasonable arguments buried somewhere within the material on which Dr Scott relies, but that her attempts to set out the evidence and contentions on which she relies are expressed in a manner that is so difficult to understand as to be oppressive. Having regard to the documents filed by Dr Scott in various proceedings across several different courts, it would not assist her to allow her further opportunities to set out the basis for her claims. In addition, many (although not all) of her arguments seem to be directed to re-litigating issues that have already been determined by this Court, the District Court, the Supreme Court, and the Court of Appeal.

169    I am satisfied that the present proceedings are an abuse of process and that they are vexatious. These are not terms of abuse directed at Dr Scott. They reflect a legal characterisation of the proceedings and the manner in which Dr Scott has conducted them.

The respondents’ prosecution of their application for vexatious proceedings orders

170    The principles applicable to the making of orders under s 37AO of the FCA Act were recently summarised by the Full Court in Storry v Parkyn (Vexatious Proceedings Order) (2024) 304 FCR 381; [2024] FCAFC 100 (Storry) at 321-4 [13]-[21]. To make an order that a person be prohibited from commencing proceedings in the Court is a serious step – particularly for a person who is an undischarged bankrupt and whose property is consequently under the control of others. In saying this, I appreciate that the prohibition is not absolute, because it is possible for such a person to obtain leave to commence proceedings under s 37AT of the FCA Act.

171    Section 37AO(4) emphasises the requirement that a person be heard before an order under s 37AO(2) is made in respect of them. Section 37AO(6) permits the Court to have regard to various matters, but the Court can only do so in a way that is procedurally fair to the person against whom an order may be made. If the Court decides to consider making an order under s 37AO(2) of its own motion, the Court may discharge the obligation to provide a fair hearing by, for example, appointing an amicus curiae: see Storry at 321 [11].

172    In a case where an application for orders under s 37AO of the FCA Act is made by a party to proceedings before the Court, it is to be expected that the party who makes the application will prosecute it in such a way as to give fair notice of the basis on which the orders are sought, including by identifying:

(a)    particular proceedings in Australian courts and tribunals which the Court is being asked to find have been instituted or conducted vexatiously;

(b)    evidence about the nature and conduct of those proceedings that the Court is being asked to consider; and

(c)    the bases on which the Court is being invited to find that those proceedings have been instituted or conducted vexatiously.

173    The affidavit evidence of Mr Stewart-Rattray, on which the respondents rely, identifies, by reference to their action numbers, four proceedings in this Court and action ADG 382 of 2023 as “previous unsuccessful proceedings” filed by Dr Scott. The affidavit states that all of those proceedings were dismissed with costs orders made against Dr Scott.

174    The respondents’ written submissions are in general terms, asserting that each of the proceedings commenced by Dr Scott has been without merit and that the Form B2 Application in the present case “is no different and is a waste of the Court’s time and the Respondents’ money”. The submissions do not clearly identify which of the previous proceedings instituted by Dr Scott in Australian courts are said to have been “vexatious proceedings”, the basis on which those proceedings are said to have been “vexatious proceedings” (noting that the mere fact that proceedings are “without merit” does not demonstrate that they are vexatious), or the basis on which I should find that Dr Scott has frequently instituted “vexatious proceedings”. While Dr Scott has filed an assortment of documents that had been filed by her in other proceedings, the respondents have not identified particular material that they submit establishes that any of those other proceedings was a “vexatious proceeding” within the meaning of the definition in s 37AM(1) of the FCA Act.

175    The material in evidence before me (mostly relied on by Dr Scott) does provide serious reason for concern that at least some, and perhaps many, of the proceedings instituted by Dr Scott (in addition to the present proceedings) may have been “vexatious proceedings”. There is clearly a proper basis for concern that Dr Scott has “frequently instituted or conducted vexatious proceedings” in Australia courts. However, I do not think it would be fair to Dr Scott to reach a concluded view as to whether she has done so, in circumstances where the proceedings relied on, and the basis on which it is said they are vexatious proceedings, have not been clearly and specifically identified in a way that allows her a fair opportunity to respond. In these circumstances, an order under s 37AO(2)(b) of the FCA Act should not be made at the present time, and the respondents’ interlocutory application dated 11 June 2025 should be dismissed.

176    Except in relation to the present proceedings, I have not made a finding as to whether any of the proceedings instituted by Dr Scott (other than the present proceedings) was, or was not, a “vexatious proceeding”. The dismissal of the respondents’ interlocutory application should not be taken as suggesting that it would be inappropriate for the Court to make orders under s 37AO of the FCA Act in relation to Dr Scott in the future (whether on application by a party or on the Court’s own motion), should the Court be satisfied that such orders are appropriate, following a hearing in which Dr Scott has been accorded procedural fairness on the relevant issues.

Costs

177    As noted above, the respondents seek an order that Dr Scott pay their costs on an indemnity basis, and that the costs be payable out of her bankrupt estate. As explained above, Dr Scott’s Form B2 Application is to be dismissed. Further, for the reasons explained above, the proceedings are rightly characterised as vexatious. Even if some of the arguments which Dr Scott has attempted to advance are not hopeless, the manner in which they were advanced makes it unfair that the respondents should not be fully indemnified for the costs reasonably incurred by them in respect of the proceedings. It is appropriate that the respondents’ costs of responding to the Form B2 Application be paid out of Dr Scott’s bankrupt estate, on an indemnity basis.

178    For the reasons explained above, I do not think it would be fair to make orders under s 37AO(2)(b) of the FCA Act in respect of Dr Scott at the present time. The respondents should not recover their costs in relation to their interlocutory application dated 11 June 2025.

179    Weighing these matters up, it is appropriate to order that Dr Scott pay 80% of the respondents’ costs of the proceedings, on an indemnity basis.

Conclusion

180    I have done my best to understand what Dr Scott is seeking and to deal with the arguments in support of the final and interlocutory relief sought in, and in connection with, her Form B2 Application. For the reasons given above, I have concluded that Dr Scott’s application is without merit and should be dismissed.

181    As explained above, I do not consider that it is appropriate to make an order under s 37AO of the FCA Act on the application of the respondents at this time. The respondents’ interlocutory application dated 11 June 2025 should also be dismissed.

182    Dr Scott should pay 80% of the costs of the respondents, on an indemnity basis.

Associate:

Dated:    25 November 2025