Federal Court of Australia

Culleton v Balwyn Nominees Pty Ltd [2025] FCA 1542

ORDERS

THE COURT ORDERS THAT:

1.    The name of the third respondent be varied to ‘Chief Magistrate of the Magistrates Court of Western Australia’.

2.    The applicant’s interlocutory application for leave to re-open is dismissed.

3.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), judgment is given for the respondents against the applicant.

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

REASONS FOR JUDGMENT

HORAN J

Introduction

1    On 23 December 2016, a sequestration order was made under the Bankruptcy Act 1966 (Cth) against the estate of Mr Rodney Norman Culleton, on a creditor’s petition presented by Balwyn Nominees Pty Ltd.

2    By an originating application filed on 10 May 2024, Mr Culleton seeks to challenge the validity of the sequestration order. The relief sought in the proceeding relevantly includes a declaration that the sequestration order is void and of no effect. Mr Culleton has also foreshadowed that he may amend the originating application to seek, in the alternative, an order that the sequestration order be annulled or set aside pursuant to s 153B of the Bankruptcy Act. As will appear below, this is not the first occasion on which Mr Culleton has brought legal proceedings challenging the validity of the sequestration order.

3    Mr Culleton also seeks a writ of prohibition or an injunction to restrain the taking of further steps in a criminal prosecution that has been brought against him by the second respondent, the Commonwealth Director of Public Prosecutions (CDPP), which is currently pending in the Magistrates Court of Western Australia. Mr Culleton is being prosecuted for an alleged offence of knowingly giving false information to a Commonwealth entity contrary to s 137.1 of the Criminal Code 1995 (Cth). The conduct charged is based on an allegation that, on 13 April 2022, Mr Culleton provided a “Nomination of a Senator” form and an accompanying “Qualification Checklist” to the Australian Electoral Commission (AEC), in which he declared that he was qualified to be elected as a Senator and stated that he was not an undischarged bankrupt or insolvent. At the time that this statement was made by Mr Culleton to the AEC, his estate was subject to the sequestration order made on 23 December 2016. Under s 44(iii) of the Commonwealth Constitution, a person who is an undischarged bankrupt is incapable of being chosen or of sitting as Senator in the Commonwealth Parliament.

4    In these circumstances, Mr Culleton contends that the sequestration order was improperly made and should be declared void ab initio. The bases on which such relief is sought are addressed in further detail below. In summary, they seek to put in issue whether there was in truth an underlying debt owed by Mr Culleton to Balwyn Nominees, whether Mr Culleton was in fact solvent, whether the bankruptcy notice and creditor’s petition were properly served on Mr Culleton, and whether Mr Culleton was denied procedural fairness by the refusal of a request for an adjournment to enable him to obtain legal representation at the hearing of the creditor’s petition. Each of those questions has been unsuccessfully litigated by Mr Culleton in a succession of previous proceedings.

5    While the originating application named the “Magistrates Court of Western Australia” as the third respondent, it appears that there is no such legal person or entity and that the proper party should be the Chief Magistrate of the Magistrates Court. An order should be made to vary the name of the third respondent accordingly. The Solicitor’s Office of Western Australia has advised that the Chief Magistrate will submit to any order that the Court may make and does not wish to be heard on the question of costs.

6    Each of Balwyn Nominees and the CDPP have applied for summary judgment to be given against Mr Culleton under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or r 26.01(1) of the Federal Court Rules 2011 (Cth), principally on the grounds that Mr Culleton has no reasonable prospect of successfully prosecuting the relevant parts of the proceeding and that the proceeding is an abuse of the process of the Court.

7    Balwyn Nominees has also applied for a vexatious proceedings order under s 37AO(2) of the FCA Act, prohibiting Mr Culleton (without leave under s 37AR) from instituting any proceeding in this Court, or alternatively any such proceeding against Balwyn Nominees or Dakin Farms Pty Ltd or any current or former officers of those companies, or alternatively any such proceeding in relation to the judgment in Dakin Farms Pty Ltd v Elite Grains Pty Ltd (No 2)[2013] WADC 160 or the making of the sequestration order in Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578. Ultimately, the hearing proceeded on the basis that the application for a vexatious proceedings order against Mr Culleton could be dealt with after the determination of the respondents’ summary judgment applications, and in the light of any reasons for judgment on those applications.

8    In summary, I have concluded that Mr Culleton’s originating application is an abuse of process and has no reasonable prospect of success. Accordingly, the applications by the Balwyn Nominees and the CDPP for summary judgment are allowed, and judgment will be given against Mr Culleton in their favour.

Background

The material before the Court

9    Mr Culleton relied on the following affidavits:

(a)    the affidavit of Rodney Norman Culleton sworn on 9 May 2024 (Culleton Affidavit);

(b)    the affidavit of Edward John Maitland sworn on 13 September 2024 (Maitland Affidavit).

10    Balwyn Nominees objected to identified portions of the Maitland Affidavit on the grounds that they were vague, irrelevant, conclusionary and/or argumentative. The paragraphs to which objection was taken include:

(a)    a statement by Mr Maitland that his involvement in the bankruptcy proceedings against Mr Culleton and the subsequent appeal to the Full Court “was limited due to time and logistics”;

(b)    Mr Maitland’s observations about the impact of the sequestration order on Mr Culleton;

(c)    various conclusions expressed by Mr Maitland from his “extensive review of the facts and circumstances of [Mr] Culleton’s case”;

(d)    arguments about the test for procedural fairness that was applied by the High Court in Nobarani v Mariconte (2018) 265 CLR 236 in relation to an adjournment application made by an unrepresented litigant;

(e)    assertions about alleged errors and procedural unfairness in making the sequestration order against Mr Culleton’s estate; and

(f)    a reference to case law on the principles governing summary judgment.

11    In so far as these paragraphs of the Maitland Affidavit comprise legal arguments or factual contentions, they are either irrelevant or inadmissible as opinion evidence. Nevertheless, I will treat those paragraphs as forming part of the submissions made on behalf of Mr Culleton. In relation to the evidence of the extent of Mr Maitland’s involvement in the bankruptcy proceedings and the impact of the sequestration order on Mr Culleton, I am prepared to treat such evidence as relevant and admissible, but I have had regard to Balwyn Nominees’ criticisms of its lack of detail and relevance when assessing its weight.

12    Balwyn Nominees relied on the following affidavits:

(a)    the affidavit of James Yu-Wen Wang sworn on 16 August 2024;

(b)    the affidavits of Gregory Brewster Rogers sworn on 3 October 2024 and 29 October 2024 respectively.

13    The CDPP relied on the affidavit of Nicholas Lystrup Camer-Pesci affirmed on 14 August 2024 (Camer-Pesci Affidavit).

14    Mr Culleton filed an Outline of Applicant’s Case (OAC) dated 15 July 2024. Each of the parties has filed written submissions addressing the issues raised by the summary judgment applications.

The underlying debt

District Court proceeding

15    The debt on which the sequestration order was based arose from a judgment of the District Court of Western Australia in proceedings brought by Dakin Farms and Balwyn Nominees against Elite Grains Pty Ltd, Mr Culleton and his wife: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd (No 2) [2013] WADC 160 (the District Court judgment).

16    Those proceedings relevantly concerned an agreement that was entered into by Mr Culleton and his wife (Mrs Culleton) in December 2009 to lease and purchase land owned by Balwyn Nominees, on which Dakin Farms operated a farming business of growing oats. Mr Culleton was a director of Elite Grains, which carried on business as a buyer and seller of grain, including oats. When Mr Culleton subsequently decided not to proceed with the lease and purchase agreement due to a lack of finance, Balwyn Nominees alleged that Mr Culleton and his wife had repudiated the agreement.

17    The trial was conducted between 15 and 26 July 2013. On 24 October 2013, Curthoys DCJ found in favour of Balwyn Nominees, and entered judgment against Mr Culleton for damages for breach of the lease and purchase agreement assessed at $205,536.50 (representing the net loss of rent payable and a reletting fee) together with interest and costs.

First appeal to the Court of Appeal

18    On 8 September 2015, an appeal by Mr Culleton and his wife from the District Court judgment was dismissed by the Court of Appeal of the Supreme Court of Western Australia: Culleton v Dakin Farms Pty Ltd [2015] WASCA 183 (Martin CJ, Newnes and Murphy JJA) (the First CA decision).

19    As Mr Culleton was at that time bankrupt (pursuant to an earlier sequestration order that was later set aside by consent), he was not represented at the hearing of the appeal, although he was present in court for that hearing: First CA decision at [4]. Because Mr Culleton’s trustee in bankruptcy did not make an election either to prosecute or discontinue the appeal, the trustee was deemed to have abandoned the appeal under s 60(3) of the Bankruptcy Act, and Mr Culleton did not bring any challenge against that position: First CA decision at [44].

20    The sole ground of appeal relied upon by Mrs Culleton was that, in circumstances where the agreement for the lease and purchase of the relevant land had included a sale component, Balwyn Nominees was entitled only to nominal damages in the absence of any evidence “to establish that the value of the land at the contractual time for settlement was no greater than the contractual purchase price for the land”: First CA decision at [23]–⁠[24]. However, the Court of Appeal held that performance of the obligations with respect to the agreement to lease the land was not dependent upon the sale and purchase of the land, and that Balwyn Nominees had proved its loss of the agreed rent less the net amount it was able to recover by reletting: First CA decision at [33]–[36], [41]. Accordingly, Balwyn Nominees was entitled to more than nominal damages, and the appeal was dismissed. The Court of Appeal also refused an application by Mrs Culleton for leave to rely on an additional ground of appeal that the agreement was void for uncertainty: First CA decision at [27]–[29].

Application for special leave to appeal

21    Following the First CA decision, Mrs Culleton filed an application for special leave to appeal to the High Court of Australia, which was subsequently taken to be abandoned for failure to file a written case: see Culleton v Dakin Farms Pty Ltd [2016] WASCA 152 at [12] (Newnes and Murphy JJA).

Applications to suspend or stay District Court judgment

22    On 14 April 2016, Troy DCJ dismissed an application by Mrs Culleton for an order to suspend the enforcement of all or part of the District Court judgment: Culleton v Dakin Farms Pty Ltd (District Court of Western Australia, Troy DCJ, 14 April 2016), affd [2016] WASCA 152. In support of that application, Mrs Culleton argued that she was not a party to the lease and purchase agreement “and was only acting as an agent for Mr Culleton”, and that “the proper parties to the 2009 agreement were Balwyn [Nominees] and Elite Grains”: Culleton v Dakin Farms Pty Ltd [2016] WASCA 152 at [7]. Mrs Culleton also submitted that the First CA decision was void on the ground that Mr Culleton had been denied natural justice: ibid.

23    In dismissing the application, Troy DCJ considered that there was no doubt that the litigation had been conducted on the basis that Mrs Culleton was a party to the lease and purchase agreement, that the District Court judgment was against Mrs Culleton, that Mrs Culleton had been represented by counsel at the hearing in the Court of Appeal, and that her application for a new trial was misconceived and had no prospect of success: ibid. at [12].

24    On 25 August 2016, the Court of Appeal dismissed an appeal by Mrs Culleton against the decision of Troy DCJ: Culleton v Dakin Farms Pty Ltd [2016] WASCA 152. The Court relevantly stated (at [19]–[21]):

After reviewing all the materials, Troy DCJ concluded that Mrs Culleton had exhausted the appeal process. His Honour found that the only possible avenue of appeal, being an application for special leave to appeal to the High Court, had been abandoned and that the merits of any such appeal were unconvincing.

His Honour was plainly correct. The appeal filed by Mrs Culleton against Troy DCJ’s decision was misconceived and had no reasonable prospects of success.

Mrs Culleton was a party to the primary proceedings and bound by the judgment against her. Her appeal to this court was dismissed. Any subsequent application by Mrs Culleton to the High Court has been abandoned. None of these matters were challenged in the grounds of appeal, and even if they had been, they are not reasonably contestable in the circumstances. All avenues of appeal against the primary decision having been exhausted, there was no basis upon which its enforcement might properly be suspended.

(Citations omitted.)

25    On 5 October 2016, McKerracher J dismissed an application by Mr Culleton under r 7.01 of the Rules for orders to restrain the enforcement of the District Court judgment: Re Culleton [2016] FCA 1193. The application was opposed by the judgment creditors, including Balwyn Nominees. In the course of the application, Mr Culleton submitted that he “had not had any true right of appeal to the Supreme Court because of complications of a bankruptcy during the first substantive appeal”, noting that the sequestration order had since been set aside by consent: ibid. at [4] (McKerracher J). However, McKerracher J observed that the effect of Mr Culleton’s bankruptcy had been “dealt with fairly comprehensively” in the First CA decision, and that the Court of Appeal concluded that Mr Culleton’s appeal had in any event “been shown to have no substantive merit”: ibid.

26    In support of his application to restrain the judgment creditors from enforcing the District Court judgment, Mr Culleton sought to argue that the proceedings in the District Court were invalid on the ground that “since 2005 no valid proceedings have been conducted in the courts of Western Australia because judges have been ordered to cease swearing allegiance to Her Majesty Elizabeth II, the lawful sovereign of the Commonwealth”: ibid. at [7], [23] (McKerracher J). After noting (at [24]–[26]) that similar arguments had been rejected or dismissed in other cases, McKerracher J held that the argument advanced by Mr Culleton was “entirely erroneous” (at [27]) and that his application was “entirely unarguable” (at [31]). His Honour concluded that the matters raised by Mr Culleton could have no effect on the District Court judgment or the Court of Appeal decisions, that the Federal Court did not have jurisdiction or power to make the orders sought, and that he would not have been satisfied that such orders should be made in the exercise of discretion: ibid. at [27], [31].

Second application to the Court of Appeal

27    On 30 September 2016, Mr Culleton and Mrs Culleton filed a further application in the Court of Appeal of Western Australia seeking orders that he be granted a new trial before a single judge in order to set aside the finding of the Court of Appeal in the First CA decision.

28    On 2 February 2017, the application was dismissed by Martin CJ (with whom Newnes JA and Murphy JA agreed) on the basis that it was “so obviously devoid of any apparent merit that it should be dismissed as soon as possible before any further prejudice is suffered by the respondents” to the application (Dakin Farms and Balwyn Nominees): Culleton v Dakin Farms Pty Ltd [No 2] [2017] WASCA 29 (Second CA decision) at [10].

29    In dismissing the application, Martin CJ noted that the First CA decision had ordered that Mr Culleton’s appeal against the District Court judgment be dismissed, notwithstanding its deemed abandonment under s 60(3) of the Bankruptcy Act, in circumstances where it had been found that the sole ground of appeal was without merit in the context of considering the appeal by Mrs Culleton: Second CA decision at [7].

30    His Honour also noted that this Court had made a further sequestration order against Mr Culleton’s estate on 23 December 2016 (see below), which had been stayed pending an appeal by Mr Culleton in which judgment had been reserved by the Full Court: Second CA decision at [9], discussing Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578. Nevertheless, Martin CJ considered that the application should be determined on its merits, and concluded (at [11]):

This court ordered that Mr Culleton’s appeal be dismissed. Although there are very limited and exceptional circumstances in which a perfected order of the court can be reopened, the public interest in the finality of litigation is such that those circumstances are very narrowly confined, and the cases in which such a course will be permitted are extremely rare and entirely exceptional. There is no credible basis for the contention that this is such a case. Mr Culleton’s appeal was dismissed by this court in part because the court concluded that it was devoid of merit. The only way in which that judgment can be challenged is by way of appeal to the High Court of Australia. In addition, there is absolutely no basis upon which it could be credibly contended that a single judge of the general division would have either power or jurisdiction to review the orders made by this court. This application is misconceived and, in my view, should be dismissed.

Mr Culleton’s bankruptcy

2014 sequestration order

31    An earlier sequestration order was made against Mr Culleton on 31 October 2014 in relation to a different judgment debt: Macquarie Leasing Pty Ltd v Culleton [2014] FCCA 1714 (Judge Altobelli). While an appeal against that sequestration order was summarily dismissed due to Mr Culleton’s non-appearance and failure to comply with directions (Culleton v Macquarie Leasing Pty Ltd [2015] FCA 188), that order was later vacated and the appeal was allowed based on an amended notice of appeal: see Culleton v Macquarie Leasing Pty Ltd (No 2) [2015] FCA 1478 (Perry J). As a consequence, the earlier sequestration order was set aside by consent on 4 December 2015. The only relevance of the earlier sequestration order is to explain that Mr Culleton was an undischarged bankrupt at the time of the First CA decision, which limited his independent participation in that appeal (see paragraph [19] above).

2016 sequestration order

32    In October 2016, Balwyn Nominees filed a creditor’s petition seeking a sequestration order against Mr Culleton’s estate based on the judgment debt arising from the District Court judgment. On 23 December 2016, Barker J ordered that Mr Culleton’s estate be sequestrated under the Bankruptcy Act, noting that the act of bankruptcy was on 30 August 2016: Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578 (2016 Sequestration Reasons).

33    In the course of his reasons for judgment, Barker J dealt with the following issues.

(a)    Adjournment: 2016 Sequestration Reasons at [25]–[33]. At the hearing of the creditor’s petition on 19 December 2016, Mr Culleton sought an adjournment of the proceeding, “ostensibly so that he could obtain legal representation” (at [25]). The application was refused by Barker J. His Honour noted that Mr Culleton had indicated that Mr Peter King of counsel had agreed to represent him in the matter. After referring to the procedural history, and in the light of the overarching purpose in s 37M of the FCA Act, Barker J found that Mr Culleton had been afforded appropriate time to engage lawyers to represent him, noting that that he had previously stated in written submissions that he intended to represent himself in the proceeding (although he later recanted that intention at the hearing on 19 December 2016).

(b)    Jury trial: 2016 Sequestration Reasons at [34]–[50]. Mr Culleton submitted that he had a right to trial by jury under s 30(3) of the Bankruptcy Act. Justice Barker noted that the normal mode of trial in a bankruptcy proceeding was trial before a judge sitting alone, unless there was a special reason to exercise the discretion to direct that a particular question of fact be tried by a jury, referring to Harding v Deputy Commissioner of Taxation (2008) 172 FCR 206 at [54] (Flick J). His Honour concluded that there was no reason why the question of service of the bankruptcy notice should be dealt with by a jury, and rejected an argument by Mr Culleton that he had a constitutional entitlement to a jury trial, concluding that “[t]he issues raised in the proceeding, including questions of fact, are amenable to a decision by a judge sitting alone and do not, in my assessment, require determination by a jury” (at [50]). Accordingly, Barker J declined to order a jury trial under either s 30(3) of the Bankruptcy Act or s 40 of the FCA Act.

(c)    Service: 2016 Sequestration Reasons at [51]–[98]. Justice Barker accepted the evidence of a police officer, Sergeant Matthew David Scott, that he had served the bankruptcy notice on Mr Culleton at the Armidale Police Station on 8 August 2016. His Honour described the evidence given by Sergeant Scott as “compelling” (at [71]), despite the competing evidence on which Mr Culleton relied. Further, Barker J found that the creditor’s petition had been served on Mr Culleton by email in accordance with s 52(1)(b) of the Bankruptcy Act and r 4.05 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules) and that, in any event, the appearance entered by Mr Culleton cured any technical want of service.

(d)    The District Court judgment: 2016 Sequestration Reasons at [99]–[128]. Mr Culleton submitted that the District Court judgment was flawed as a result of “fact finding error” (at [99]), noting that an appeal was pending before the Court of Appeal. In particular, Mr Culleton disputed that there had been any concluded contract with Balwyn Nominees, and argued that it was necessary “to go behind the District Court judgment to determine if there is any amount owing at all” (at [101]). After setting out the sequence of litigation (which is discussed above at paragraphs [15] to [26]), Barker J stated (at [121]):

Notwithstanding the dismissal of both Mrs and Mr Culleton’s appeal by the Court of Appeal, and the subsequent abandonment of Mrs Culleton’s special leave application to the High Court of Australia, and the Court of Appeal’s subsequent dismissal of an appeal by Mrs Culleton against the refusal by Troy DCJ in the District Court to grant a stay or suspension order, the respondent debtor adheres to a belief that he has some entitlement to renew an appeal against the District Court judgment giving rise to the judgment debt the subject of the bankruptcy notice.

His Honour observed (at [125]) that Mr Culleton:

… entertains what must be described as a naïve belief that he can continue to agitate for a retrial of a proceeding which has already been the subject of, in effect, two unsuccessful appeals to the Court of Appeal of Western Australia in 2015 and 2016.

Rejecting Mr Culleton’s submissions that the District Court had erred in finding that there was a concluded agreement, Barker J concluded (at [127]–[128]):

Again, these submissions simply go to illustrate that the respondent debtor, despite having been unsuccessful in his defence of the primary District Court proceeding, and on the subsequent appeal where questions of liability in relation to a contract were not argued, but only quantum of damages, wishes to make a claim that is quite beyond the realms of legal possibility, as I see it, for the purposes of this application before me.

It follows that I find that the primary District Court judgment on which the bankruptcy notice is founded should be considered both regular and supportive of the judgment debt and there is no basis upon which to accept the respondent debtor’s submission that it is flawed

(e)    Oath of allegiance: 2016 Sequestration Reasons at [129]–[132]. Mr Culleton sought to argue that the District Court judgment was of no force and effect because Curthoys DCJ had sworn an oath to the people and the State of Western Australia, as opposed to an oath to the Queen. Justice Barker noted (at [132]) that this was a “discredited theory” that had been rejected as without any legal merit in a number of previous decisions, and was specifically disposed of by McKerracher J in Re Culleton at [27], [31].

(f)    Counterclaim, set-off or cross demand: 2016 Sequestration Reasons at [133]–[138]. Having disregarded Mr Culleton’s general and unfounded assertion that he had a “[c]ounterclaim against the ANZ Banking Corporation”, Barker J concluded that there was no counterclaim, set-off or cross demand against Balwyn Nominees that had not already been considered and dismissed in the previous District Court proceeding.

(g)    Abuse of process: 2016 Sequestration Reasons at [139]–[144]. Justice Barker found that there was no evidence to support Mr Culleton’s allegations that the proceedings were “politically motivated” as part of an alleged conspiracy involving the ANZ Banking Corporation, or that Balwyn Nominees had brought the creditor’s petition to achieve “some ulterior motive” of that kind.

(h)    Acquisition of property other than on just terms: 2016 Sequestration Reasons at [145]–[151]. Observing that Mr Culleton’s invocation of s 51(xxxi) of the Commonwealth Constitution involved “a particularly difficult argument to follow” (at [145]), Barker J found that the District Court judgment required Mr Culleton or Mrs Culleton to pay damages, and did not deprive them of any property for the purposes of s 51(xxxi). More generally, Barker J characterised the constitutional arguments made by Mr Culleton as “not even arguable” and found that they “fail conceptually and logically at almost every turn” (at [149]).

(i)    Solvency: 2016 Sequestration Reasons at [161]–[172]. Although Mr Culleton asserted that he was solvent and could meet the debt arising from the District Court judgment, Barker J found that he had adduced “no material evidence, sufficient to satisfy the Court” of his solvency (at [163]). While Mr Culleton’s solicitor gave evidence by affidavit that he had received “substantial payments” into his trust account on behalf of Mr Culleton (at [27]), Barker J found that the amount of those funds was deliberately not disclosed and the statement that the payments could be used to pay Mr Culleton’s creditors was “far from unambiguous and [left] the impression that those funds [did] not necessarily have to be used for that purpose” (at [167]). In such circumstances, there was “a complete lack of clarity and indeed much ambiguity about the nature and amount of funds” that had been paid into the solicitor’s trust account (at [169]), and there was no other material evidence to suggest that Mr Culleton was able to pay his debts.

(j)    Account of dealings: 2016 Sequestration Reasons at [174]–[178]. Justice Barker rejected Mr Culleton’s application for an account of dealings between himself and Balwyn Nominees under s 30(2) of the Bankruptcy Act, and stated (at [176]):

There is no need for any account to be taken in this proceeding. There is a judgment debt which is the subject of the bankruptcy notice. The alleged judgment invalidity and the alleged counter-claim issue have been found to have no substance. The Court will not exercise its power to take an account, contrary to the ground asserted by the respondent debtor.

Appeal to the Full Court

34    On 3 February 2017, an appeal by Mr Culleton against the 2016 sequestration order was dismissed by the Full Court (Allsop CJ, Dowsett and Besanko JJ): Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632 (Full Court judgment).

35    The Court dealt first with the “adjournment question”, namely Mr Culleton’s complaint that he “had been treated unfairly by the primary judge in not giving him an adjournment to obtain legal representation”: Full Court judgment at [32]–[61]. Recognising “the centrality of the question of solvency” in the bankruptcy jurisdiction (at [45]), the Court considered that the question of solvency had been raised by Mr Culleton “in the context of (but not as the requested reason for) a request for an adjournment to obtain legal representation” (at [47]). In particular, Mr Culleton had not submitted before Barker J “that there was more than he could say about solvency if he were granted time” (at [47]), nor that “he needed the adjournment and the legal assistance to help him prove solvency” (at [49]). In such circumstances, the Court found that there was no error in the view of Barker J that the material before him did not warrant an adjournment.

36    The Court did not consider that an adjournment had been required to enable Mr Culleton to press his claim that the creditor’s petition was an abuse of process or to prosecute his appeal against the District Court judgment. In relation to the latter, the Court noted that the appellant’s position was no different to that of Mrs Culleton, whose appeal had been dealt with by the Court of Appeal, and that there had been ample time for Mr Culleton to challenge the District Court judgment after the previous sequestration order was set aside in December 2015.

37    Accordingly, the Court concluded that “there was no real basis for [Barker J] to think that any further time (with or without a lawyer) would be of utility in relation to solvency or abuse of process”: Full Court judgment at [61].

38    The Court also rejected Mr Culleton’s challenge to the finding that he did not prove that he was solvent, stating that Barker J “was correct in concluding that Mr Maitland’s evidence did not prove [Mr Culleton’s] solvency as [he] asserted that it did, and that there was no other material which would form the basis of a conclusion that [Mr Culleton] was able to pay his debts”: Full Court judgment at [62]. While Mr Culleton led evidence on the appeal about the value of intellectual property held by a company with which Mr Culleton was associated, that evidence “was not foreshadowed before the primary judge as a reason why time and legal assistance should be afforded to [Mr Culleton]”: Full Court judgment at [63].

39    On the appeal, Mr Culleton alleged that the creditor’s petition was an abuse of process on a different basis to that on which he had relied before Barker J: Full Court judgment at [72]–[75]. Mr Culleton alleged that Mr Lester, a director of Balwyn Nominees, had brought the creditor’s petition for an improper purpose of forcing Mr Culleton to cause another company of which he was a shareholder and director to transfer its intellectual property to either Dakin Farms or Balwyn Nominees, in circumstances where bankruptcy would affect Mr Culleton’s eligibility to be elected as a Senator. The Court found that this assertion of abuse of process had not been fairly raised before Barker J, and in any event was not supported by the evidence and was therefore irrelevant. In particular, Mr Culleton failed to recognise the substantial amount owed to Balwyn Nominees pursuant to the District Court judgment, in the light of which it could not seriously be suggested that Mr Lester (as the controller of Balwyn Nominees) did not intend to proceed with the bankruptcy proceedings in any event.

40    The Court rejected Mr Culleton’s attempt to go behind the District Court judgment by establishing that there was no debt due to Balwyn Nominees: Full Court judgment at [76]–[88]. After referring to the dismissal of Mrs Culleton’s appeal by the Court of Appeal, and the subsequent abandonment of her application for special leave to appeal to the High Court and dismissal of her application to suspend enforcement of the District Court judgment, the Full Court observed that the same case had been advanced against both Mr Culleton and Mrs Culleton, such that “[i]t would be absurd to suggest that [Mr Culleton] may have succeeded where his wife had failed”: Full Court judgment at [81]. Mr Culleton sought to raise new arguments, including that the “informal” lease agreement was entered into with Mr Lester personally and not with Balwyn Nominees and that there was a basis for a counterclaim arising from misrepresentations made by Balwyn Nominees, arguing that he had relied on these issues in his second application to the Court of Appeal for leave to reopen the District Court judgment. The Full Court considered that such assertions would not have led Barker J to go behind the District Court judgment, and that Barker J had not erred in rejecting Mr Culleton’s grounds for challenging the District Court judgment. The Full Court also noted that Mr Culleton’s application to the Court of Appeal had since been unanimously dismissed in the Second CA decision.

41    After rejecting Mr Culleton’s challenge to the decision of Barker J not to order a trial by jury (Full Court judgment at [89]–[93]), the Court turned to consider the question of service of the bankruptcy notice. The Court rejected Mr Culleton’s challenge to the finding that he had been served with the bankruptcy notice, concluding that Barker J was entitled to accept the evidence of Sergeant Scott and that it was open to draw the inference that the witnesses upon whom Mr Culleton relied had been absent from the room when he was served with the bankruptcy notice: Full Court judgment at [94]–[99].

42    Finally, the Court disposed of Mr Culleton’s submissions in relation to non-compliance with the statutory requirements for service and verification of the creditor’s petition: Full Court judgment at [100]–[109].

Application for special leave to appeal

43    On 9 February 2017, Mr Culleton applied to the High Court for special leave to appeal from the Full Court judgment. The proposed grounds of appeal were addressed to the requirements for a creditor’s petition under ss 47(1) and 52(1) of the Bankruptcy Act, the refusal of Mr Culleton’s application for an adjournment to obtain legal representation, the refusal by the Full Court to admit evidence of solvency and abuse of process, and the alleged involvement of Mr Lester and Dakin Farms in prosecuting the creditor’s petition for an improper purpose (having regard to “the value of the registered patent invented by [Mr Culleton] sought to be procured by them compared to the relatively small amount of the judgment debt”).

44    On 1 March 2017, Gageler J refused an application by Mr Culleton for a stay of the orders made by the Full Court until the determination of his special leave application: Culleton v Balwyn Nominees Pty Ltd [2017] HCATrans 41. Justice Gageler found the balance of convenience did not favour Mr Culleton, and that there was benefit to the creditors of Balwyn Nominees in being able to take the usual steps where a sequestration order has been made. His Honour was not persuaded that Mr Culleton’s prospects of success in obtaining special leave to appeal were sufficient to outweigh his conclusions in relation to the balance of convenience.

45    On 28 April 2017, Mr Culleton discontinued his application for special leave to appeal.

Annulment application

46    On 1 November 2017, Mr Culleton filed an application to set aside or annul the 2016 sequestration order.

47    On 14 March 2018, Besanko J gave summary judgment for Balwyn Nominees and the Commonwealth against Mr Culleton: Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313 (2018 annulment dismissal). His Honour found (at [9]) that the application had no reasonable prospect of success or disclosed no reasonable cause of action, and that substantial parts of the application were an abuse of process.

48    Justice Besanko identified the central issue raised in this application as follows (at [4]):

At the centre of the applicant’s claims is an allegation that a sequestration order made by a judge of this Court should not have been made against his estate and he seeks an order that the sequestration order be set aside or annulled and an allegation that his place as a Senator for the State of Western Australia should not have been declared vacant.

49    After summarising the procedural history, Besanko J addressed the questions whether the sequestration order ought not to have been made and whether to exercise the discretion to make an order annulling the bankruptcy. This involved consideration of the actual state of affairs at the time when the sequestration order was made, including whether Mr Culleton was indebted to Balwyn Nominees at that time: see Rigg v Baker (2006) 155 FCR 531 at [63] (French J); Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307; 5 ABC(NS) 122 at [12] (Tracey J).

50    Justice Besanko noted that Mr Culleton’s argument that District Court judgment was “flawed” had been fully addressed in the 2016 Sequestration Reasons (at [99]–[128]) and in the Full Court judgment (at [76]–[88]). His Honour found that Mr Culleton had “not put anything that suggested that these conclusions should be revisited under the power to annul the sequestration order”, and concluded that his claims had “no prospect of success and, in any event, the pursuit of them constitutes an abuse of process”: 2018 annulment dismissal at [43].

51    Similarly, Besanko J rejected Mr Culleton’s claims about service of the bankruptcy notice and the creditor’s petition and supporting affidavits. Those matters having been addressed in the 2016 Sequestration Reasons (at [51]–[98]) and in the Full Court judgment (at [94]–[109]), the only way that they could be challenged was through an application to the High Court for special leave to appeal: 2018 annulment dismissal at [44]. In particular, Besanko J observed that “[a]n application to annul the sequestration order is not a further avenue of appeal”: ibid.

52    Justice Besanko dismissed Mr Culleton’s complaints about the refusal to grant an adjournment of the hearing of the creditor’s petition and the finding about his inability to pay his debts, concluding that “[t]hose matters have been the subject of prior decision, or have no substance, or both”: 2018 annulment dismissal at [45].

53    In addition, Besanko J found that there was a “decisive discretionary consideration for refusing to make an order annulling the bankruptcy” (at [46]), namely that Mr Culleton had failed to file a statement of his affairs with the Official Receiver or furnish a copy of such a statement to his trustee in bankruptcy as required by s 54 of the Bankruptcy Act, and had not presented any plausible evidence to the Court of his financial circumstances: 2018 annulment dismissal at [46]–[50].

54    For completeness, I note that Besanko J also rejected as without merit an argument by Mr Culleton that the Senate had exclusive jurisdiction to determine whether he was an undischarged bankrupt or insolvent, and that this Court did not have jurisdiction to entertain the creditor’s petition: 2018 annulment dismissal at [35]–[39].

55    In granting summary judgment against Mr Culleton, Besanko J concluded that none of his claims or arguments had any prospects of success, and that the pursuit of many of those claims was “quite clearly an abuse of process”: 2018 annulment dismissal at [54].

56    I interpose that Mr Culleton was later convicted of an offence against s 54 of the Bankruptcy Act, and his appeal against that conviction was dismissed: Culleton v Australian Financial Security Authority [2021] WASC 274 (Archer J). Among other things, Mr Culleton again unsuccessfully sought to challenge the validity of the 2016 sequestration order in these proceedings: ibid. at [22]–[29].

Applications for Summary Judgment

57    Section 31A of the FCA Act relevantly provides:

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

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

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

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

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

58    This provision is complemented by r 26.01 of the Rules, under which a party may apply for summary judgment not only on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding, but also because the proceeding is frivolous or vexatious, no reasonable cause of action is disclosed, or the proceeding is an abuse of the process of the Court. Such classes of case are also encompassed within the power conferred by s 31A of the FCA Act: see Spencer v Commonwealth (2010) 241 CLR 118 at [22] (French CJ and Gummow J).

59    Section 31A of the FCA Act is directed to whether the applicant has a “reasonable” prospect of prosecuting the proceeding, and does not require that “a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52] (Hayne, Crennan, Kiefel and Bell JJ). This is made explicit by the express terms of s 31A(3). Nevertheless, “the power to dismiss an action summarily is not to be exercised lightly”: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). See also ibid. at [24] (French CJ and Gummow J); cf. Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ). The onus is on the party who applies for summary judgment to establish that the claim of the opposing party has no reasonable prospect of success, and that there is no real question of law or fact that is appropriate to be determined at trial.

Summary judgment application by Balwyn Nominees

60    In support of its application for summary judgment, Balwyn Nominees advanced the following submissions:

(a)    first, a single judge of this Court has no power to declare that the 2016 sequestration order is void and of no effect;

(b)    secondly, the issues sought to be raised by Mr Culleton were rejected in the Full Court judgment, and any attempt to relitigate those issues amounts to an abuse of process;

(c)    thirdly, by reason of his status as an undischarged bankrupt, Mr Culleton is not competent to maintain these proceedings; and

(d)    fourthly, in any event, Mr Culleton’s application is hopeless and has no reasonable prospect of success.

Summary judgment application by the CDPP

61    The CDPP submitted that, in so far as Mr Culleton seeks a writ of prohibition or an injunction to restrain any further steps from being taken in the pending criminal proceedings before the Magistrates Court of Western Australia, that application has no reasonable prospect of success for the following reasons:

(a)    first, even if the 2016 sequestration order was set aside, this would not alter the fact that Mr Culleton was an undischarged bankrupt as at the date of the alleged offence of knowingly giving false information to a Commonwealth entity contrary to s 137.1 of the Criminal Code;

(b)    secondly, a single judge of this Court does not have power to set aside the 2016 sequestration order on the ground that the hearing involved a denial of procedural fairness or an abuse of process;

(c)    thirdly, this Court does not have jurisdiction with respect to any matter in which the defendant to a prosecution for an offence against a law of the Commonwealth seeks a writ of mandamus or prohibition or an injunction against officers of the Commonwealth in relation to a “related criminal justice process decision” within the meaning of s 39B(1C) of the Judiciary Act 1903 (Cth).

Mr Culleton’s response to the summary judgment applications

62    Mr Culleton submitted that it was premature to determine the questions raised by the applications for summary judgment, in circumstances where no pleadings had been filed and further evidence may be adduced at trial. Counsel for Mr Culleton emphasised that summary judgment was warranted only if it could be shown that there was no reasonable cause of action, irrespective of whether it had been pleaded, referring to Spencer at [22]–[23] (French CJ and Gummow J).

63    To this end, Mr Culleton provided a “list of triable issues” that were said to arise in the proceeding. Those issues included whether Mr Culleton was denied procedural fairness in the hearing of the creditor’s petition before Barker J, by reason of the refusal to grant an adjournment to provide Mr Culleton with an opportunity to obtain legal representation, to adduce further evidence as to his solvency, or to “go behind” the District Court judgment by adducing evidence with respect to his indebtedness to Balwyn Nominees. A number of other issues were identified that related to the refusal to adjourn the creditor’s petition or to go behind the District Court judgment, together with issues relating to personal service of the creditor’s petition and Mr Culleton’s solvency as at the date on which the sequestration order was made. More generally, Mr Culleton submitted that an issue arising in the current proceeding is whether or not the sequestration order ought to have been made (see s 153B of the Bankruptcy Act).

64    I note that one of the issues identified by Mr Culleton in his list of triable issues is “[w]hether according to the Applicant’s financial circumstances he is solvent at the date of hearing by this Court”. If that is intended to refer to the hearing in the current proceeding, that is not an issue arising from the relief sought in the originating application, nor from any foreshadowed amendment to seek an order annulling the bankruptcy under s 153B of the Bankruptcy Act. In relation to the latter, an application for annulment is directed to whether the sequestration order ought to have been made on the facts as they existed at the time that the order was made. Accordingly, to the extent that any question relating to Mr Culleton’s solvency arises, it would be assessed as at the time that the sequestration order was made on 23 December 2016.

Power to set aside the 2016 sequestration order

65    The 2016 sequestration order was made and entered as a final order in the exercise of this Court’s original jurisdiction under ss 27, 30, 43 and 52 of the Bankruptcy Act. As such, the circumstances in which that order can be varied or set aside in original jurisdiction are limited: see r 39.05 of the Rules. None of those circumstances are presently applicable. Further, the power conferred by s 37 of the Bankruptcy Act to rescind, vary or discharge an order made under that Act does not authorise the Court to rescind or discharge or to suspend the operation of a sequestration order: Bankruptcy Act s 37(2)(a).

66    The proper avenue for any challenge to the correctness of the 2016 sequestration order was by an appeal to the Full Court: FCA Act ss 24(1)(a), 25(1). While Mr Culleton sought an order to transfer the current matter to be heard and determined by a Full Court, any such transfer could not itself overcome the limitations on the orders that may be made by the Court in the exercise of its original jurisdiction.

67    As discussed above, Mr Culleton did bring an appeal from the 2016 sequestration order, which was dismissed by the Full Court in February 2017. While it might in theory be possible for Mr Culleton to apply for an extension of time to bring another appeal, at least if he could demonstrate that there were new grounds of appeal or fresh evidence that was not considered by the Full Court judgment, no such application has been made by Mr Culleton, nor is it apparent that his current application raises any new grounds or fresh evidence.

68    In so far as Mr Culleton argues that the Full Court judgment involved any error, the proper course is to apply for special leave to appeal to the High Court. Mr Culleton made such an application, but it was subsequently discontinued in April 2017.

69    Accordingly, Mr Culleton’s application for declaratory relief in relation to the validity of the 2016 sequestration order has no reasonable prospect of success. Indeed, the application for such relief is hopeless and bound to fail.

70    Section 153B of the Bankruptcy Act confers power on the Court to make an order annulling the bankruptcy of a person if it is satisfied that the sequestration order ought not to have been made. An application for an annulment under s 153B of the Bankruptcy Act involves an exercise of original jurisdiction, which can be heard and determined by a single judge. However, in so far as Mr Culleton has foreshadowed an application to amend his originating application so as to seek an order to annul his bankruptcy under s 153B, he confronts difficulties arising from the dismissal of his previous application annulment in March 2018.

Abuse of process

71    The 2016 Sequestration Reasons, the Full Court judgment and the 2018 annulment dismissal are capable of giving rise to issue estoppel as between Mr Culleton and Balwyn Nominees in respect of the questions determined in those proceedings. More generally, as Thawley J recently stated in Dunstan v Orr [2025] FCA 858 at [65], in the context of an application for summary dismissal under s 31A of the FCA Act:

Seeking to re-litigate issues determined in earlier proceedings, or raising issues that should have been raised in earlier proceedings, can constitute an abuse of process, regardless of whether the facts also give rise to a merger or res judicata in the strict sense; a claim (or cause of action) estoppel … ; or an Anshun estoppel.

(Citations omitted.)

72    In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, French CJ, Bell, Gageler and Keane JJ stated (at [25]) that the doctrine of abuse of process “is inherently broader and more flexible than estoppel”, and “is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”. The doctrine of abuse of process is relevantly informed by the “underlying public interest” that “there should be finality in litigation and that a party should not be twice vexed in the same matter”: UBS AG v Tyne (2018) 265 CLR 77 at [66] (Gageler J), referring to Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 (Lord Bingham).

73    The issues that are sought to be agitated by Mr Culleton in the current proceeding are identified in the Culleton affidavit, the Maitland affidavit and the OAC. Further, Mr Culleton has foreshadowed an application to amend his originating application so as to seek, in the alternative, an order that the sequestration order be annulled or set aside pursuant to s 153B of the Bankruptcy Act. For the purposes of these interlocutory applications for summary judgment, I will proceed on the basis that Mr Culleton seeks such relief.

74    In the Culleton affidavit, Mr Culleton seeks to go behind the District Court judgment by asserting that he was not indebted to Balwyn Nominees. Mr Culleton states that he believed that he was dealing with Mr Lester personally rather than Balwyn Nominees, and that any agreement to enter a lease was conditional and subject to the execution of a formal document. Further, Mr Culleton states that he was solvent and able to pay the judgment debt, but that Mr Lester had refused his offer to pay and instead requested a transfer of intellectual property from Australian Keg Company Pty Ltd (AKC), a company of which Mr Culleton was a director and shareholder.

75    The Culleton affidavit also addresses in detail the hearing of the creditor’s petition before Barker J, including the refusal of Mr Culleton’s request for an adjournment of the hearing on 19 December 2016 to enable him to obtain legal representation. Mr Culleton claims that he was unfairly prevented from presenting his case. Among other things, Mr Culleton states:

If I had been granted the requested adjournment to obtain legal assistance, I would have raised the issue of proof of solvency with my lawyer and this would have included proof of AKC assets and my other assets. My lawyer would have properly articulated the proof of AKC assets and my other assets to satisfy the Court that I was solvent.

76    Mr Culleton states that the refusal to grant an adjournment prejudiced his defence to the creditor’s petition and denied him the possibility of a successful outcome. To this end, Mr Culleton refers to various facts that are said to have supported proof of his solvency, including details of his salary as a Senator, certain funds held in trust that were available to pay creditors, a line of credit available from AKC, and funds available from third party sources. Mr Culleton also challenged the finding made by Barker J that he was served with the bankruptcy notice.

77    Under the heading “fresh evidence”, Mr Culleton states that he had obtained affidavits sworn on 1 June 2018 by two chartered accountants, each of whom had deposed that they considered that Mr Culleton was solvent as at 19 December 2016.

78    Mr Maitland stated in the Maitland affidavit that, when the creditor’s petition was heard before Barker J, he “had received substantial payments into trust for [Mr] Culleton which, on my instructions, could be used to pay [Mr] Culleton’s creditors if required”. Mr Maitland expressed his view that the District Court judgment was “probably wrong”, that the hearing of the creditor’s petition in December 2016 was “unfairly conducted”, and that the Full Court had “missed issues and did not apply the correct tests”.

79    The OAC filed by Mr Culleton advances similar contentions, namely:

(a)    the hearing on the creditor’s petition before Barker J involved a denial of procedural fairness in that Mr Culleton was wrongfully refused an adjournment to obtain legal assistance;

(b)    the District Court judgment was affected by error, and there was no concluded agreement between Mr Culleton and Balwyn Nominees;

(c)    Mr Culleton was solvent, and would have been able to provide proof of his solvency if he had been granted an adjournment to obtain legal representation; and

(d)    Mr Culleton was not validly served with the bankruptcy notice or the creditor’s petition.

80    Each of these issues has been previously determined adversely to Mr Culleton in one or more of the 2016 Sequestration Reasons, the Full Court judgment and the 2018 annulment dismissal, as set out in the following table (which I have adapted from Balwyn Nominees’ Outline of Submissions).

81    In such circumstances, I consider that the current proceeding, including any foreshadowed amendment to apply for an order annulling the bankruptcy, is no more than an attempt to relitigate issues that have been determined in earlier proceedings, and is therefore an abuse of process: cf. Mulhern v Bank of Queensland [2014] FCA 26 at [58]–[62] (Jacobsen J). In particular, having previously applied unsuccessfully for an annulment under s 153B of the Bankruptcy Act, it is not open to Mr Culleton to bring a second application “on the same or very similar or patched up similar facts”: Mulhern at [62].

82    It is not in dispute that, in proceedings on a creditor’s petition, the Court has a discretion not to accept a judgment as satisfactory proof of the petitioning creditor’s debt, and to “go behind” the judgment in order to determine whether there is “in truth and reality” a debt due to the petitioning creditor: Wren v Mahoney (1972) 126 CLR 212 at 224–225 (Barwick CJ); Ramsay Healthcare Australia Pty Ltd v Compton (2017) 261 CLR 132 at [20], [37]–[38], [47]–[49], [68]–[70] (Kiefel CJ, Keane and Nettle JJ), [76]–[77] (Gageler J), [110]–[112] (Edelman J).

83    It is also accepted that, on an application for an order to annul a bankruptcy, the Court may take into account facts that are shown to have been in existence at the time when the sequestration order was made, even if those facts were not before the Court at that time: see 2018 annulment dismissal at [24]–[28] (Besanko J), referring to Rigg at [24] (French J) and Bulic at [12] (Tracey J). See also Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18; 12 ABC(NS) 25 at [16] (Rares, Flick and Bromberg JJ); Ghosh v Newton [2024] FCA 898 at [8] (Jackman J); Yang v L & H Group [2015] FCA 932; 13 ABC(NS) 269 at [28]–[31] (Beach J).

84    However, the circumstances of the present case involve a repeat application by Mr Culleton to have recourse to those principles. He has already unsuccessfully sought to go behind the District Court judgment by arguing that there was no debt owing to Balwyn Nominees, and he has also unsuccessfully sought to discharge the “heavy burden” (Bulic at [12(2)] (Tracey J); Yang at [29(a)] (Beach J); Thompson v Lane [2023] FCAFC 32; 410 ALR 439 at [99] (Charlesworth, Downes and Goodman JJ)) of demonstrating that the 2016 sequestration order ought not to have been made, in the sense that the Court would have been bound not to make that order. The present application does not advance any new basis on which such arguments might now be accepted.

85    Central to Mr Culleton’s submissions is an argument that his present application “raises different issues of fact and law which could not have reasonably been raised in the earlier proceedings”. In particular, Mr Culleton argues:

(a)    first, that both the 2016 sequestration reasons and the Full Court judgment failed to apply “the correct test for procedural unfairness” as later pronounced by the High Court in Nobarani;

(b)    second, that new evidence “emerged” after the sequestration order was made, which was not available to be put before Barker J or the Full Court.

86    In Nobarani, the High Court held that the appellant had been denied procedural fairness at the hearing of an application for the grant of probate of a will. The appellant, who was unrepresented, was given inadequate notice that the hearing would be a trial of the claim for probate, as opposed to a motion to remove caveats against the grant of probate without notice to him. The appellant was poorly prepared for the hearing, and his conduct of the proceedings was not orderly. His applications for adjournments to call witnesses, to read documents, and to call expert evidence were refused. The High Court unanimously held that the appellant was denied procedural fairness, arising “from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the statement of claim”: Nobarani at [40] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ). Further, the denial of procedural fairness was material in the sense that it denied the appellant of the possibility of a successful outcome, in circumstances where a grant of probate was “not inevitable”: ibid. at [38]–[39], [46], [48]. Accordingly, the denial of procedural fairness amounted to a “substantial wrong or miscarriage” that warranted an order for a new trial: ibid. at [44].

87    Mr Culleton relied in particular on the following passage from the Court’s judgment in Nobarani (at [39]):

The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference.

This passage was addressing the power to order a new trial conferred by s 75A(10) of the Supreme Court Act 1970 (NSW), in the light of r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW) which provided that the Court must not order a new trial unless it appeared that “some substantial wrong or miscarriage” had been occasioned on grounds that included the circumstances of a denial of procedural fairness. Nevertheless, the Court effectively assimilated the application of those provisions to the common law requirement applied in Stead v State Government Insurance Commission (1986) 161 CLR 141 that a jurisdictional error “must usually be material in the sense that it must deprive the party of the possibility of a successful outcome”: Nobarani at [38].

88    Viewed in this context, there is nothing in the judgment in Nobarani that altered the “test” for determining whether there has been a denial of procedural fairness, nor the associated questions whether a party was deprived of the possibility of a successful outcome or whether that possibility is negated by establishing that a properly conducted trial could not have made any difference. The High Court stressed that the resolution of such questions did not turn on the appellant’s status as a litigant in person: ibid. at [47]. Further, while it was accepted that the denial of procedural fairness in that case “was effectively encapsulated in the consequences of the failure to adjourn the proceedings”, it arose from the consequences of particular steps leading to the hearing which the adjournment applications had attempted to ameliorate: ibid. at [40].

89    In the present case, the Full Court did not accept that Mr Culleton had been treated unfairly by Barker J in refusing his requests for an adjournment to obtain legal representation. In particular, Mr Culleton did not request more time to bring forward evidence about his solvency: Full Court judgment at [26]. It may be accepted that the Full Court emphasised (at [35]) the “quintessentially discretionary character” of the decision to refuse an adjournment of the hearing: cf. Nobarani at [40]. Nevertheless, the Full Court considered and addressed Mr Culleton’s grounds of appeal that he had been denied procedural fairness, including “in fixing the trial in the absence of [Mr Culleton] and/or in refusing an adjournment of the trial of the matter”: Full Court judgment at [33]. This was against a background in which an earlier hearing of the creditor’s petition had been vacated to accommodate Mr Culleton’s availability, and it had been made clear to Mr Culleton that Balwyn Nominees would proceed to seek a sequestration order at the hearing that was set down on 19 December 2016: Full Court judgment at [10], [13]. As Besanko J found when dismissing the annulment application in 2018, Mr Culleton’s complaints about the refusal to adjourn the hearing of the creditor’s petition “have been the subject of prior decision, or have no substance, or both”: 2018 annulment dismissal at [45]. There is no reason to think that the High Court’s decision in Nobarani altered the applicable legal principles in a manner that justifies those prior decisions now being revisited.

90    In relation to “fresh evidence”, Mr Culleton deposed that, prior to the 2016 sequestration order, he engaged chartered accountants Paragon Consultants to provide documentation in support of his solvency, including a valuation of AKC: Culleton Affidavit at [110]–[116]. Mr Culleton states that Paragon Consultants were unable to provide such documentation until early January 2017, after the sequestration order was made. Mr Culleton expresses his belief that Barker J would have been satisfied that he was solvent if he had been given an opportunity to obtain and rely on such documents, annexing affidavits sworn on 1 June 2018 by Mr Kenneth Thomas and Mr Owen Garrett, each of whom stated their opinion that Mr Culleton was solvent as at 19 December 2016. Those opinions were based on Mr Culleton’s salary as a Senator and a belief that Mr Culleton was the trustee and beneficiary of a trust that owned shares in AKC.

91    The difficulty with Mr Culleton’s submission is that, as was submitted by Balwyn Nominees, this evidence was available at the time of the appeal to the Full Court from the sequestration order. In fact, evidence to similar effect was put before the Full Court on that appeal.

(a)    In an affidavit sworn on 11 January 2017 and filed in the appeal proceeding, Mr Culleton gave evidence about his salary as a Senator, his ownership of shares in AKC, and the value of the patent owned by AKC and the shares in that company. In particular, Mr Culleton relied on Paragon Consultants’ valuation of AKC, in relation to which the named contact officers were Mr Thomas and Mr Garrett.

(b)    Mr Culleton also relied on an affidavit sworn on 20 January 2017 by his solicitor, Mr Maitland, which referred to Paragon Consultants’ valuation and draft balance sheet as evidence of the value of Mr Culleton’s interest in AKC, as well as an affidavit sworn by Ms Nolene Gay Bradshaw on 18 January 2017 to the effect that she was prepared “to underwrite to [Mr Culleton] sufficient funds to dispose of the creditor’s petition”, secured against his shares in AKC and the intellectual property owned by AKC.

(c)    This evidence was specifically addressed by the Full Court in its reasons for dismissing the appeal: Full Court judgment at [63].

(d)    The affidavits sworn by Mr Thomas and Mr Garrett respectively on 1 June 2018 did not add to this evidence, but simply advanced bare assertions of Mr Culleton’s solvency by the same persons who had prepared the earlier valuation of AKC.

92    In such circumstances, it cannot be said that the “fresh evidence” on which Mr Culleton would seek to rely in the current proceeding takes matters any further than the evidence that was available in January 2017 and was considered by the Full Court on the appeal from the sequestration order. This evidence was also available at the time of Mr Culleton’s application for annulment of his bankruptcy, which was heard before Besanko J on 23 December 2017.

93    The present application by Mr Culleton attempts to relitigate his allegations that he was not in fact indebted to Balwyn Nominees, that was denied procedural fairness in the hearing of the creditor’s petition before Barker J, that he was not served with the bankruptcy notice or the creditor’s petition, and that he was in fact solvent at the time that the sequestration order was made. Those allegations have been considered and determined in previous proceedings, including Mr Culleton’s unsuccessful appeal against the sequestration order and his unsuccessful application for an order annulling his bankruptcy. The further attempt to litigate those issues, many years after their judicial determination, is unjustifiably oppressive to the respondents and contrary to the public interest in the finality of litigation: cf. Dunstan v Orr (No 2) [2023] FCA 1536 at [228] (Wigney J); Dunstan v Orr [2025] FCA 858 at [102]–[104] (Thawley J).

94    The application must therefore be dismissed as an abuse of process.

Was Mr Culleton competent to commence the proceeding?

95    Balwyn Nominees submitted that, as an undischarged bankrupt, Mr Culleton is precluded from commencing or continuing this application in his personal capacity, because all his property had vested in his trustee in bankruptcy, and any proceedings commenced by him were stayed unless his trustee in bankruptcy had elected to prosecute the action: see Bankruptcy Act ss 58(1), 60(2); Batterham v Nauer [2019] FCA 485 at [174]–[176] (Gleeson J); cf. Cummings v Claremont Petroleum NL (1996) 185 CLR 124.

96    Mr Culleton submits that the chose in action that is the subject of the current application is not property divisible among his creditors within the meaning of s 116 of the Bankruptcy Act. Rather, Mr Culleton seeks to characterise the proceeding as being in respect of a right to recover damages or compensation “for personal injury or wrong done to the bankrupt” within the meaning of s 116(2)(g) of the Bankruptcy Act. In other words, Mr Culleton argues that the rights and liabilities that he seeks to enforce in the current application are “purely personal to him” (Re Doshanjh; Ex parte Duus (1995) 56 FCR 521 at 523 (Kiefel J)), in that they relate to “pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property”: Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721 (Dixon J). See also Official Trustee in Bankruptcy v Kent (2023) 301 FCR 173 at [105]–[106] (Rares ACJ). In this context, Mr Culleton relies on evidence directed to the personal hardship that he experienced as a result of the sequestration order, in support of a contention that the application “involves, predominantly, his mind, body or character”.

97    Balwyn Nominees disputes the applicability of s 116(2)(g), noting that Mr Culleton’s claims in relation to the sequestration order are essentially referable to his financial and property rights: see Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 at 564 (O’Loughlin and Merkel JJ). Balwyn Nominees submitted that, notwithstanding Mr Culleton’s claims of personal hardship or inconvenience, he is not seeking to recover damages or compensation for any personal injury or wrong done to him.

98    In my view, it is doubtful that the current proceedings fall within the exception in s 116(2)(g) of the Bankruptcy Act. The relief sought in the originating application does not seek damages or compensation, let alone relate to any personal injury or wrong suffered by Mr Culleton.

99    However, this proceeding is not by its very nature well adapted to be brought by or vested in the trustee in bankruptcy, in so far as it involves a direct challenge to the sequestration order and the proceedings on the creditor’s petition which led to that order being made. Counsel for Balwyn Nominees accepted that a bankrupt debtor has standing to bring an application for an order annulling his or her bankruptcy: see Bankruptcy Act ss 153B, 303; Bankruptcy Rules Div 7.1. The same may be said in relation to an application for review of a decision by a Registrar to make a sequestration order, although that might be explained on the basis such a review proceeds as a hearing de novo of the creditor’s petition: Bechara v Bates (2021) 286 FCR 166 at [17], [27] (Allsop CJ, Markovic and Colvin JJ); Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 at [21]–[29] (Allsop CJ), [39] (Markovic J), [40] (Derrington J), [62]–[63], [254], [262]–[264] (Colvin J), [298] (Anastassiou J). Further, it would seem to follow that a bankrupt debtor (as opposed to his or her trustee in bankruptcy) has standing to bring an appeal to the Full Court from the making of a sequestration order, as appears to have occurred in the present case.

100    Given that the current proceeding now encompasses an application for an order annulling the bankruptcy under s 153B of the Bankruptcy Act, along with declaratory relief in relation to the validity of the sequestration order, the better view is that Mr Culleton has standing and is competent to bring the application.

Does Mr Culleton’s application have any reasonable prospect of success?

101    In the light of my conclusions that this Court does not have power in its original jurisdiction to declare that the sequestration order is void and of no effect and that, in so far as Mr Culleton seeks an order annulling his bankruptcy, any attempt to relitigate issues that have been determined in previous proceedings amounts to an abuse of process, it is clear that Mr Culleton has no reasonable prospect of successfully prosecuting the current proceeding or obtaining the relief sought in the originating application.

102    Balwyn Nominees also submitted that the originating application should be summarily dismissed on the basis that Mr Culleton has no reasonable prospect of successfully establishing that he was denied procedural fairness by reason of the refusal by Barker J to adjourn the hearing of the creditor’s petition. In support of that submission, Balwyn Nominees referred to the Full Court’s reasons on the “adjournment question” (discussed above at paragraphs [35]–[37]), including that Mr Culleton “was intelligent, evidently apprised of the [Bankruptcy] Act, and not unworldly”, that he “plainly knew of the importance of solvency” as an issue arising on the hearing of the creditor’s petition, that he had notice and sufficient time to prepare for the hearing, that he had lawyers available to him for advice when he prepared an affidavit in opposition to the creditor’s petition, that he had previously been granted an adjournment of the hearing, and that he had previously filed written submissions stating that he had decided to represent himself. Such circumstances are far removed from those considered by the High Court in Nobarani.

103    In my view, given my conclusions on jurisdiction and abuse of process, it is unnecessary to address the substantive merits of Mr Culleton’s application in any further detail. The matters sought to be raised by Mr Culleton having been considered and determined in previous proceedings, such that it is an abuse of process for him now to relitigate those issues, it would be superfluous to revisit those matters for the purposes of reconsidering their prospects of success.

The effect of any annulment or setting aside of the sequestration order

104    The CDPP further submitted that Mr Culleton has no reasonable prospect of obtaining a writ of prohibition or an injunction to restrain the CDPP or the Magistrates Court from taking any further steps in the prosecution against him for an alleged offence of knowingly giving false information to a Commonwealth entity contrary to s 137.1 of the Criminal Code.

105    Such relief in relation to the criminal proceedings is sought by Mr Culleton on the premise that the sequestration order is set aside or declared to be void. Mr Culleton submitted that the effect of an order annulling the bankruptcy or setting aside the sequestration order would negate an essential element of the charge against him, by establishing that the sequestration order was void ab initio so that he never had the legal status of an undischarged bankrupt. Rather than relying on this as a defence to the charge before the Magistrates Court, Mr Culleton contends that this Court should make orders to restrain the further conduct of the criminal proceeding.

106    The CDPP submitted that, even if Mr Culleton were able to obtain any relief in these proceedings to set aside the sequestration order or annul the bankruptcy, that would not provide a defence to the charge against him because it would remain the case that he was an undischarged bankrupt at the time that he made statements to the contrary in the “Nomination of a Senator” form and the “Qualification Checklist” provided to the AEC on 13 April 2022. The CDPP argued that, as an order made by a superior court, the sequestration order made by Barker J is valid and binding unless and until it is set aside, even if it was made in excess of jurisdiction, relying on New South Wales v Kable (2013) 252 CLR 118 at [32]–[33], [38]–[39] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), [56]–[59] (Gageler J). See also Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18; 12 ABC(NS) 25 at [27] (Rares, Flick and Bromberg JJ). On that basis, the CDPP submitted that the relief sought by Mr Culleton in this proceeding is incapable of altering the historical fact that the sequestration order was valid and in effect at the time that he made the relevant statements to the AEC. The information provided by Mr Culleton would therefore remain knowingly false at the time that it was given to a Commonwealth entity. Accordingly, the CDPP submitted that the basis on which Mr Culleton seeks to restrain the prosecution against him is incapable of being made out.

107    In my view, there is a more fundamental difficulty raised by the relief sought against the CDPP and the Chief Magistrate in orders 2 and 3 of the originating application. Mr Culleton has not explained how any relief granted by this Court in relation to the sequestration order or the annulment of his bankruptcy would have any consequences for the authority of the CDPP to bring the prosecution against him or the jurisdiction of the Magistrates Court to hear and determine the criminal proceedings. Taking Mr Culleton’s case at its highest, and even assuming for present purposes that Mr Culleton might have a defence to the charge if the sequestration order were to be set aside or his bankruptcy were to be annulled, that would not itself establish any absence or excess of jurisdiction on the part of the CDPP or the Magistrates Court in relation to the pending criminal proceedings. No basis has been identified on which this Court could review any decision by the CDPP to bring or continue the prosecution against Mr Culleton, let alone restrain the exercise by the Magistrates Court of its jurisdiction to hear and determine the criminal proceeding.

108    In such circumstances, Mr Culleton has no reasonable prospect of successfully establishing any claim to relief against the CDPP or the Chief Magistrate to restrain the prosecution of the charges against him in the Magistrates Court. His claim to such relief is fundamentally misconceived.

109    If the sequestration order were set aside or the bankruptcy were annulled, any implications for the pending charge against Mr Culleton would need to be raised and addressed in the criminal proceedings. In such circumstances, it is unnecessary for me to reach a concluded view on the CDPP’s submission that this would not provide an answer to the charge that Mr Culleton falsely represented to the AEC that he was not an undischarged bankrupt and was qualified to be elected as a senator as at 13 April 2022. On the one hand, an order setting aside a sequestration order or annulling a bankruptcy might establish for the future the debtor does not have, and perhaps never had, the legal status of a bankrupt: see e.g. Robson at [29] (Allsop CJ). On the other hand, this may not alter the historical events by which the bankruptcy was previously administered: see e.g. Robson at [147], [218], [257], [290] (Colvin J). The nature of the application or process invoked and the basis on which the sequestration order is revisited may be relevant to this question: see Robson at [5]–[6] (Allsop CJ). Further, questions may arise in relation to the construction and application of the relevant offence provisions of the Criminal Code. All of those matters would fall to be addressed in the context of the criminal prosecution.

110    In any event, I have concluded that Mr Culleton has no reasonable prospect of obtaining a declaration that the sequestration order is void or an order annulling the bankruptcy under s 153B of the Bankruptcy Act. As the premise of his claim for relief against the CDPP and the Chief Magistrate cannot be made out, this is a further basis on which to find that he also has no reasonable prospect of success on that claim.

Section 39B(1C) of the Judiciary Act

111    Section 39B(1) of the Judiciary Act confers original jurisdiction on this Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth, subject to specified exceptions. One of those exceptions concerns judicial review in relation to prosecutions for Commonwealth offences that are pending before State or Territory courts. The Supreme Court of the relevant State or Territory is invested with jurisdiction with respect to any matter in which the defendant seeks judicial review of a “related criminal justice process decision”, to the exclusion of the jurisdiction of this Court with respect such matters.

112    Section 39B(1C), (1D) and (1E) of the Judiciary Act provide:

(1C)    Subject to subsection (1D), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or

(b)    an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d)    the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.

(1D)    Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

(1E)    Where subsection (1D) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that subsection, and the court may grant such a stay if the court determines that:

(a)    the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

(b)    a stay of proceedings will not substantially prejudice the person.

113    The term “related criminal justice process decision” is defined as follows in s 39B(3):

related criminal justice process decision, in relation to an offence, means:

(a)    a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i)    a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii)    a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii)    a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv)    a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v)    a decision in connection with an appeal arising out of the prosecution; or

(b)    a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

114    It is common ground that there is currently before the Magistrates Court a prosecution against Mr Culleton for an offence against a law of the Commonwealth within the meaning of s 39B(1C)(a). Accordingly, this Court does not have jurisdiction with respect to any matter in which Mr Culleton seeks mandamus or prohibition or an injunction against an officer of the Commonwealth (such as the CDPP) in relation to a related criminal justice process decision. This includes any decision, other than the decision to prosecute, made in the criminal justice process in relation to the offence, including a decision in connection with the prosecution of Mr Culleton. Prima facie, this would cover the relief sought by Mr Culleton by way of prohibition or an injunction to restrain the CDPP from “taking any further steps” in the criminal proceedings before the Magistrates Court, which would amount to the maintenance of those criminal proceedings and their continued prosecution: see Clarke v Director of Public Prosecutions (Cth) (2000) 99 FCR 294 at [15], [17] (Moore J); cf. Phong v Attorney-General (Cth) (2001) 114 FCR 75 at [63]–[65] (Hely J). I note that s 39B(1B) of the Judiciary Act contains similar provisions in relation to a decision made by an officer of the Commonwealth to prosecute a person in a State or Territory court: see Phong at [3] (Black CJ), [65]–[69] (Hely J).

115    Further, in so far as Mr Culleton seeks to raise issues about the maintenance or continuation of the prosecution in the Magistrates Court, those issues “can and should be determined in that Court to avoid unnecessary and undesirable fragmentation of the criminal process”: Phong at [1], [4] (Black CJ). See also ibid. at [53] (Beaumont J), [58]–[59], [71] (Hely J). Accordingly, there would be strong discretionary reasons for this Court to refuse to entertain Mr Culleton’s claim for relief in relation to the prosecution of the criminal proceedings that are pending against him.

116    The above matters fortify my conclusion that Mr Culleton has no reasonable prospect of successfully prosecuting his claim for relief against the CDPP or the Chief Magistrate in relation to the conduct of the criminal proceedings before the Magistrates Court.

Application to re-open

117    On 18 November 2025, long after judgment had been reserved on the respondents’ summary judgment applications, Mr Culleton sought to file an interlocutory application for leave to re-open the hearing for the purpose of admitting further evidence that was said not to have been available at the time of the hearing, namely an affidavit of Mr Culleton affirmed on 18 November 2025 (second Culleton affidavit).

118    The application to re-open was supported by a written outline of submissions dated 18 November 2015, in which it was stated that Mr Culleton was content for the application to be dealt with on the papers and that, if he were granted leave to adduce the second Culleton affidavit, those written submissions could be treated as his submissions on the evidence without a further oral hearing, unless further assistance were to be required by the Court.

119    The Court has power to grant leave to re-open to receive fresh evidence where it is in the interests of justice to do so: see Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J); Briggs on behalf of the Boonwurrung People v Victoria [2024] FCA 288 at [20]–⁠[28] (Murphy J); Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 478 (Clarke JA). The power may be regarded as exceptional, and must be exercised having regard to the public interest in maintaining the finality of litigation: Briggs at [20]–[21]. It is necessary to consider whether the evidence sought to be adduced is “new”, in the sense that the party was unaware of the evidence at the time of the original hearing and could not have obtained such evidence with reasonable diligence at that time: Briggs at [23(a)].

120    The second Culleton affidavit is lengthy, and addresses a history of dealings in relation to the enforcement of a judgment debt obtained by Balwyn Nominees against Mr Culleton in October 2013. It is not entirely clear whether or not this is the judgment debt arising from the District Court judgment. Mr Culleton deposes that the District Court issued a “property seizure and sale order” for the enforcement of the judgment debt in relation to specified properties. Mr Culleton refers to title searches which are said to show that this enforcement process was registered on the certificates of title for properties that were not specified in the order, as a result of which he says that “all my real property was tied up for six months from 27 November 2013 until 26 May 2014 where I was unable to even consider selling other property to pay the Balwyn [Nominees] judgment”. Mr Culleton also refers to his unsuccessful attempts in June 2025 to obtain information from the Sheriff about the execution of the property seizure and sale order.

121    The second Culleton affidavit goes on to address alleged “irregularities” in relation to the titles for various properties owned by Mr Culleton or by entities with which he is associated. These irregularities are said to have arisen in connection with the acquisition by the Australia and New Zealand Banking Group Ltd (ANZ) of loans by Landmark Operations Ltd trading as Landmark Financial Services in late 2009 or early 2010, which included a loan that had been entered into by Elite Grains secured by a mortgage and guarantee. Mr Culleton recounts circumstances in which he refused to consent to the transfer to ANZ of the loan and associated mortgage. He asserts that ANZ nevertheless proceeded to repossess and sell the properties in the purported enforcement of a debt owing by Elite Grains and its directors. Mr Culleton suggests that an incorrect enforcement mechanism was used and that the sale of the properties was unlawful. He says that, since August 2014, he has been attempting to persuade the Registrar and Commissioner of Titles to investigate these alleged “irregularities on the titles to the Culleton properties”.

122    It is readily apparent that all of these events took place long before the hearing of the respondents’ summary judgment applications on 3 and 11 December 2024. This immediately raises the question about whether the evidence is “fresh” or “new” in the relevant sense. Mr Culleton asserts that “[m]uch of the additional information deposed in this affidavit of mine was not readily available”, noting that he has recently engaged a property lawyer to investigate the titles to the “Culleton properties”. He also refers to having been made aware that ANZ entered into “confidential settlement agreements with enforcement creditors with registered [property seizure and sale orders]”.

123    How do any of the above matters relate to the sequestration order made by Barker J on 23 December 2016? Mr Culleton states that, if his request for an adjournment of the hearing of the creditor’s petition had been granted, he “would have been able to properly articulate [his] solvency”, including by reference to the value of the “Culleton properties” that he says were unlawfully sold at a “gross undervalue”. Mr Culleton states that the evidence “is material to my solvency and directly impacts the validity of the sequestration order”.

124    In his outline of submissions in support of the re-opening application, Mr Culleton submits that the sequestration order was made “without full consideration of the value of his assets”, and that “additional facts regarding his assets” have emerged since the hearing that was held on 3 and 11 December 2024. The second Culleton affidavit is said to be relevant to Mr Culleton’s solvency, and is sought to be adduced “for the limited purpose of assisting the Court to assess the solvency of [Mr Culleton] when the sequestration order was made”.

125    In my view, the matters addressed in the second Culleton affidavit do not constitute fresh evidence that was unavailable to Mr Culleton at the time of the hearing in December 2024. Those matters relate to events that took place many years ago. To the extent that Mr Culleton has instigated further investigations into those matters since the hearing in December 2024, there is nothing to suggest that Mr Culleton could not have made such inquiries prior to the hearing.

126    In any event, the evidence contained in the second Culleton affidavit would not be capable of affecting the outcome of the summary judgment applications. The argument that Mr Culleton was denied procedural fairness on the basis that the creditor’s petition was not adjourned, including to enable him to obtain further evidence of his solvency, has been considered and determined in both the Full Court judgment and the 2018 annulment dismissal. The second Culleton affidavit does not alter the basis on which the current proceeding brought by Mr Culleton must be regarded as an abuse of process and therefore has no reasonable prospect of success.

127    Having regard to all of the circumstances, I am not satisfied that it is in the interests of justice to grant Mr Culleton leave to re-open the hearing so as to adduce the evidence contained in the second Culleton affidavit. Accordingly, while Mr Culleton should be permitted to file the interlocutory application for leave to re-open, that application is dismissed.

Outstanding matters

128    In its interlocutory application, Balwyn Nominees seeks a vexatious proceedings order pursuant to s 37AO(2) of the FCA Act, prohibiting Mr Culleton from instituting any proceeding in this Court, or alternatively prohibiting him from instituting any proceeding against Balwyn Nominees, Dakin Farms, or any current or former officer of those companies, either generally or alternatively in relation to the District Court judgment or the 2016 sequestration order.

129    In the course of the hearing, senior counsel for Balwyn Nominees indicated that his client was prepared to defer its application for a vexatious proceedings order until after the determination of the summary judgment applications, submitting that this was “the most practical and sensible way forward”. Although this course was opposed by counsel for Mr Culleton, I consider that it is preferable that the question whether it is appropriate to make a vexatious proceedings order against Mr Culleton should be addressed in the light of my reasons for granting the applications for summary judgment. Mr Culleton will then have a full opportunity to respond to that application by way of evidence and submissions.

130    Further, Balwyn Nominees seeks a personal costs order against Mr Culleton’s solicitor, Mr Maitland, and an order that both Mr Culleton and Mr Maitland should pay its costs on an indemnity basis. The CDPP has also foreshadowed a possible application for orders that Mr Culleton and his solicitor jointly and severally pay the CDPP’s costs on an indemnity basis. The hearing was conducted on the basis that any such questions in relation to costs would be dealt with following the determination of the respondents’ interlocutory applications.

Conclusion

131    For the reasons set out above, the respondents’ applications for summary judgment under s 31A of the FCA are allowed. Judgment will be given for each of the respondents against Mr Culleton. As a consequence, the originating application will be dismissed, save for the outstanding application by Balwyn Nominees for a vexatious proceedings order against Mr Culleton. The costs of the proceeding are reserved, including any application by the respondents for costs on an indemnity basis or a personal costs order against Mr Culleton’s solicitor.

Associate:

Dated:    9 December 2025