Federal Court of Australia

Culleton v Balwyn Nominees Pty Ltd [2026] FCA 685

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The matter be set down for a hearing with respect to the issue of costs on a date to be fixed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    As counsel for the first respondent put it pithily in his opening submission: “In December 2016, Mr Culleton was made bankrupt. Since then, Mr Culleton has brought a multitude of proceedings for the purpose of challenging his bankruptcy. All have been unsuccessful.”

2    By originating application filed on 10 May 2024, Mr Culleton:

(a)    sought an order to the effect that a sequestration order made by Barker J in Federal Court of Australia proceeding WAD 492 of 2016 on 23 December 2016 (2016 sequestration order) be set aside and declared to be void and of no effect; and

(b)    foreshadowed that he may seek orders to the effect that the 2016 sequestration order be annulled pursuant to s 153B of the Bankruptcy Act 1966 (Cth).

3    The respondents to that application (Balwyn Nominees) and the Commonwealth Director of Public Prosecutions (CDPP) then applied for summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or rule 26.01(1) of the Federal Court Rules 2011 (Cth), by separate interlocutory applications filed in August 2024.

4    The debt on which the 2016 sequestration order was based arose from a judgment of the District Court of Western Australia in proceedings brought by Balwyn Nominees and another party against Mr Culleton, his wife, and Elite Grains Pty Ltd (a company of which Mr Culleton was a director).

5    The CDPP was a party to Mr Culleton’s 10 May 2024 application because Mr Culleton also sought a writ of prohibition to restrain the taking of further steps in a criminal prosecution that had been brought against him by the CDPP, which was pending in the Magistrates Court of Western Australia at the time of the application below. Mr Culleton was being prosecuted for the offence of knowingly giving false information to a Commonwealth entity contrary to s 137.1 of the Criminal Code 1995 (Cth). The conduct charged was 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 2016 sequestration order. (Under s 44(iii) of the Commonwealth Constitution, a person who is an undischarged bankrupt is incapable of being chosen or of sitting as a Senator in the Commonwealth Parliament).

6    Mr Culleton has since been convicted of that offence, and has filed an appeal against that conviction in the Supreme Court of Western Australia.

7    The summary judgment applications were heard by Horan J (the primary judge) in November 2024.

8    On 14 November 2025, and before his Honour delivered judgment, Mr Culleton sought to re-open his case to adduce fresh evidence.

9    On 9 December 2025, the primary judge made orders, among others, to the effect that:

(a)    Mr Culleton’s application for leave to re-open his case in order to be able to adduce fresh evidence be accepted for filing but otherwise be dismissed; and

(b)    judgment be entered for the respondents pursuant to s 31A of the Federal Court Act.

See Culleton v Balwyn Nominees Pty Ltd [2025] FCA 1542 (Reasons).

10    Mr Culleton now seeks leave to appeal both orders, by an application filed 12 December 2025.

11    For the reasons that follow, the application is hopeless and is to be dismissed.

Relevant principles

12    It is uncontroversial that leave to appeal interlocutory orders is only granted where the Court is satisfied that:

(a)    the decision from which leave to appeal is sought is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)    substantial injustice will result if leave to appeal were refused, supposing the decision at first instance was wrong.

See: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399 (Sheppard, Burchett and Heerey JJ); Spencer v Commonwealth (2012) 206 FCR 309 at [6] (Keane CJ, Dowsett and Jagot JJ); Sunbuild Pty Ltd v Ramsay [2014] FCA 308 at [4] (Mansfield J).

The facts

13    In 2013, and following a trial, judgment was entered in the District Court of Western Australia for Balwyn Nominees against Mr Culleton and his wife, Mrs Ioanna Culleton, in the amount of $205,536.50. See Dakin Farms Pty Ltd v Elite Grains Pty Ltd (No 2) [2013] WADC 160 (Curthoys DCJ) (District Court judgment).

14    In September 2015, Mr and Mrs Culleton unsuccessfully appealed to the Court of Appeal of the Supreme Court of Western Australia. See Culleton v Dakin Farms Pty Ltd [2015] WASCA 183 (Martin CJ, Newnes and Murphy JJA).

15    After filing the notice of appeal, on 31 October 2014, Mr Culleton became bankrupt, pursuant to a sequestration order made on the application of a debtor unrelated to Balwyn Nominees. That sequestration order was later set aside by consent on 21 December 2015. Therefore, Mr Culleton remained bankrupt at the time of the hearing before the Court of Appeal. Mr Culleton was not represented at that hearing, although he was present in court and Mrs Culleton was represented by Counsel. 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 it under s 60(3) of the Bankruptcy Act.

16    Mrs Culleton then filed an application for special leave to appeal to the High Court of Australia, which was ultimately abandoned.

17    Mrs Culleton then applied to the District Court of Western Australia to suspend the enforcement of the District Court judgment, and then unsuccessfully appealed the dismissal of that application. In dismissing Mrs Culleton’s appeal, the Court of Appeal of the Supreme Court of Western Australia in Culleton v Dakin Farms Pty Ltd [2016] WASCA 152 (Newnes and Murphy JJA) at [20] agreed with the District Court judge’s observations that Mrs Culleton had already exhausted the appeal process, and that her appeal “was misconceived and had no reasonable prospects of success”.

18    Mr Culleton then applied to this Court to restrain the enforcement of the District Court judgment. In Re Culleton [2016] FCA 1193, McKerracher J dismissed that application.

19    In September 2016, Mr and Mrs Culleton made a further application to the Court of Appeal of the Supreme Court of Western Australia to set aside the first decision of the Court of Appeal. That application was dismissed in February 2017 (see Culleton v Dakin Farms Pty Ltd (No 2) [2017] WASCA 29 (Martin CJ, Newnes and Murphy JJA)), 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 (being Dakin Farms and Balwyn Nominees): at [10] (Martin CJ, Newnes JA agreeing at [12] and Murphy JA agreeing at [13]).

20    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.

21    On 23 December 2016, Barker J ordered that Mr Culleton’s estate be sequestrated, noting that the act of bankruptcy was on 30 August 2016: Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578.

22    In those reasons, Barker J relevantly dealt with, among many other issues, the following issues raised by Mr Culleton (Reasons [33]):

(a)    an application by Mr Culleton to adjourn the proceeding, to obtain legal representation, which was denied;

(b)    Mr Culleton’s submission that the District Court judgment was flawed as a result of a “fact finding error” and therefore the Federal Court should “go behind” it to “determine if there is any amount owing at all”. Justice Barker found that there was no basis for that submission and in doing so, observed that the applicant “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”; and

(c)    despite Mr Culleton's assertions to the contrary, Barker J “found that he had adduced ‘no material evidence, sufficient to satisfy the Court’ of his solvency”.

23    In February 2017, Mr Culleton’s appeal against Barker J’s 2016 sequestration order was dismissed by the Full Court of the Federal Court. See Culleton v Balwyn Nominees Pty Ltd (2017) 343 ALR 632; [2017] FCAFC 8 (Allsop CJ, Dowsett and Besanko JJ).

24    Mr Culleton then made an application to the High Court for special leave which he discontinued in April 2017.

25    On 1 November 2017, Mr Culleton applied to “set aside or annul” the 2016 sequestration order. See Reasons [46].

26    In March 2018, Besanko J gave summary judgment for Balwyn Nominees against Mr Culleton on the basis that the application had no reasonable prospect of success, and that the pursuit of many of the claims was “quite clearly an abuse of process”. See Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313 (2018 annulment dismissal).

27    The primary judge relevantly summarised the findings of Besanko J in those reasons, as follows:

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 …

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].

…

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].

…

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].

The Relief sought before primary judge

28    Before the primary judge, Mr Culleton sought to challenge the validity of the 2016 sequestration order made by Barker J and upheld by the Full Court on four grounds:

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

(2)    Mr Culleton was in fact solvent as at the date of the 2016 sequestration order, and would have been able to provide proof of his solvency if he had been granted an adjournment to obtain legal representation;

(3)    the bankruptcy notice and creditor’s petition were not validly served on Mr Culleton; and

(4)    Mr Culleton was denied procedural fairness because Barker J refused his request for an adjournment of the sequestration hearing in order to obtain legal representation.

29    The primary judge found that Mr Culleton had raised each of these arguments in previous proceedings, and that each of them had already been rejected.

30    His Honour conveniently and correctly summarised his findings in this regard in a table at [80] of the Reasons, as follows:

31    The primary judge found that the matters raised by Mr Culleton were “no more than an attempt to relitigate issues that have been determined in earlier proceedings, and [were] therefore an abuse of process”. Reasons [81].

32    In particular, his Honour found that, having previously applied unsuccessfully for an annulment under s 153B of the Bankruptcy Act, it was not open to Mr Culleton to bring a second application on the same or similar or patched up similar facts: Mulhern v Bank of Queensland Ltd [2014] FCA 26 at [62] (Jacobson J) (“a second application on the same or very similar or patched up similar facts…constitutes an abuse of process because it is a second bite of the same cherry, a course contrary to the long-established and sensible policy of the law”).

33    His Honour also found that a single judge of the Federal Court does not have the power in its original jurisdiction to grant the relief he sought (that is to set aside the 2016 sequestration order). Reasons [65]–[70], [101].

34    Some eleven months after the substantive hearing, as I have mentioned earlier, Mr Culleton sought to re-open his case on the basis that he had new evidence to adduce.

35    The evidence was in respect of supposed wrongful transfers of his interest in properties in Western Australia by the mortgagee of those properties to third parties in 2014 – transfers he alleged that, if voided ab initio, would prove, so it was sought to be argued, that he was solvent as at the date of the 2016 sequestration order.

36    The primary judge found that it was not in the interests of justice to grant Mr Culleton’s application to re-open for two reasons:

(i)    Mr Culleton failed to identify any “evidence” that was not previously available to him (or was not capable of being obtained): Reasons [125]; and

(ii)    the argument that he was denied procedural fairness because he was not given an adjournment to obtain additional evidence of his solvency had already been considered (and rejected twice), in the Full Court judgment and the 2018 annulment dismissal: Reasons [126].

This application

37    Mr Culleton now seeks to advance five separate grounds in support of his application for leave to appeal the orders made by the primary judge.

38    The grounds were as follows (as appears in the application for leave to appeal):

The Applicant contends that the learned primary judge erred in law and/or fact in the following principal respects:

1.    Error in Application of Summary Judgment Principles

The primary judge erred in granting summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) by finding that the Applicant’s proceeding had “no reasonable prospect of success”, in circumstances where there were genuine factual and legal issues requiring a trial, including the Applicant’s solvency, the fairness of conduct of the sequestration hearing of December 2016, the validity of service of the bankruptcy notice, and the refusal of a reasonable adjournment by the Bankruptcy Court.

2.    Denial of Procedural Fairness

The primary judge failed to accord procedural fairness to the Applicant by refusing to permit the reopening of the hearing to admit further evidence relevant to solvency and the enforcement of the judgment debt, by misconstruing and/or misapplying Nobarani v Mariconte (2018) 265 CLR 236 and by failing to adequately consider whether the Applicant had a fair opportunity to present his case.

3.    Misapplication of Abuse of Process Doctrine

The primary judge misapplied the doctrine of abuse of process by characterising the Applicant’s claims as an impermissible re-litigation of previously determined issues, when in fact the Applicant raised new factual matters and legal arguments not previously adjudicated.

4.    Jurisdictional Error Regarding Criminal Proceedings

The primary judge erred in law in holding that the Federal Court lacked jurisdiction to consider or grant relief in respect of the criminal proceedings pending in the Magistrates Court of Western Australia, contrary to the proper construction of s 39B of the Judiciary Act 1903 (Cth).

5.    Failure to Consider Fresh Evidence and Material Change of Circumstances

The primary judge erred by failing to consider whether new evidence and/or a material change of circumstances since the earlier proceedings justified reconsideration of the sequestration order and the Applicant’s bankruptcy status.

39    At the hearing before me, Mr P King of counsel who appeared for Mr Culleton, agreed that grounds 3 and 5 did not raise materially different issues to grounds 1 and 2.

40    Mr King relied on his written submissions dated 30 April 2026; his written reply submissions dated 18 May 2026; and a “skeleton argument” of eight pages with attachments. He also made oral submissions.

Ground 1

41    In his oral submissions, Mr King made clear that the point sought to be made under ground 1 is that his Honour erred because he “impermissibly conflated” what he said were the “distinct doctrines” of abuse of process under r 26.01 of the Federal Court Rules and summary disposal under s 31A of the Federal Court Act.

42    His Honour did no such thing.

43    First, they are not “distinct doctrines”, in relation to summary dismissal. Rather, they are alternative bases on which a proceeding may be summarily dismissed for, ultimately, having no reasonable prospects of success – whether that be pursuant to s 31A of the Federal Court Act or r 26.01 of the Federal Court Rules. So much is made clear by the following statement by French CJ and Gummow J in Spencer at [22] (after discussing the legislative history to s 31A):

In the Federal Court … the criterion of a “reasonable prospect” of success has been understood in analogous statutory settings to mean a “real” rather than “fanciful” prospect. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(emphasis added).

44    Recently, in Dunstan v Orr [2025] FCA 858, Thawley J said at [63], “[i]n Spencer at [22], French CJ and Gummow J observed that s 31A might apply in a number of situations, including to proceedings which constituted an abuse of process”. Thawley J then said at [103]–[106], “[a]buse of process comes in a variety of forms. Here, the abuse lies in the attempt to re-litigate issues which have already been determined … For these reasons, subject to what is said below, this proceeding should be summarily dismissed under s 31A of the Federal Court Act”.

45    Secondly, Balwyn Nominees and the Director sought relief under both s 31A and r 26.01(1)(d), which provides that a party may apply for an order that judgment be given against another party because “the proceeding is an abuse of the process of the Court”.

46    It is true that the judge’s order only made reference to s 31A, but that slip, if that is what it was, is neither here nor there. The case was squarely put that the application before the primary judge was an abuse of process because all the issues had been decided before on the same material, and that is what his Honour found. He conflated nothing.

47    Ground 1 is thus bound to fail.

Ground 2

48    In refusing Mr Culleton’s application to re-open to adduce fresh evidence, the primary judge applied the established principles set out in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J) and Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288 at [20]–[28] (Murphy J). Reasons [119]. No challenge is made to his Honour's identification or articulation of those principles.

49    Instead, it was contended that the refusal to allow Mr Culleton to adduce the evidence regarding the properties in Western Australia itself amounted to a denial of procedural fairness, and that he was denied procedural fairness by the primary judge “refusing to permit the reopening of the hearing to admit further evidence relevant to solvency”.

50    Firstly, the primary judge found, and Mr Culleton did not dispute before me, that the evidence regarding the Western Australian properties was available (or was capable of being obtained) at or before the hearing before the primary judge and there was no good reason why that evidence could not have been adduced prior to or at it. Reasons [125].

51    Secondly, even if the application to re-open had been granted, it would not have been capable of affecting the outcome. As the primary judge said at [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.

52    Mr Culleton does not challenge that finding either. Rather, Mr Culleton submitted that his Honour in making this finding impermissibly asked whether the proposed evidence would have changed the result, rather than whether the refusal to admit the ‘fresh evidence’ deprived the Applicant of a real forensic opportunity. As I have said above, his Honour identified and applied the correct principles. As senior counsel for Balwyn Nominees submitted orally:

[Mr Culleton] seeks to collapse the test into one inquiry … in fact, the inquiry is two staged. First, there has to have been some procedural unfairness, and then the applicant needs to show that the procedural unfairness could have deprived the applicant of a successful outcome. Now, there’s no demonstration of procedural unfairness in respect of ground 2. There was an ordinary application of the principles.

53    Ground 2 is thus bound to fail.

Ground 3

54    Ground 3 adds nothing.

55    As I have explained with respect to ground 1, the primary judge correctly applied the abuse of process doctrine.

56    As counsel for the first respondent put it in his written submissions, it is “another misconceived attempt to overturn the 2016 [s]equestration [o]rder on the same bases that have previously been rejected, including in the decisions cited in the table” at [30] of these reasons (and at [80] of the Reasons).

57    That is an obvious abuse of process. See Dunstan at [65] (Thawley J) (“[s]eeking 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 …”).

58    Mr Culleton contended, in his written submissions, that the “new evidence and arguments” were those “regarding solvency, the validity of service, and the conduct of the 2016 hearing before Barker J, which were not previously adjudicated or could not have been raised earlier due to procedural constraints.”

59    But that is simply not so. Each of these issues has been raised and determined before.

60    The primary judge was correct to characterise the arguments as impermissible re-litigation which do not raise any new law or any new evidence, and that it was not open to Mr Culleton to bring a second application on the same or very similar or patched up similar facts.

61    Ground 3 is thus bound to fail.

Ground 4

62    By ground 4 Mr Culleton submitted that the primary judge erred in holding that, pursuant to s 39B of the Judiciary Act 1903 (Cth), the Federal Court lacked jurisdiction to consider or grant the writ of prohibition or injunction against the CDPP.

63    His Honour’s reasons on that point are at [111]–[116] of the Reasons.

64    Mr EM Heenan SC appeared with Ms F Lester of counsel for the CDPP.

65    It is not necessary, nor is it desirable, for me to rehearse the reasons his Honour gave with respect to the jurisdictional issue and about which Mr Heenan made concise and helpful submissions.

66    That is so because whether or not this Court had jurisdiction to grant relief in the nature of prohibition or an injunction to restrain the CDPP in the particular circumstances of this case does not arise, because as the primary judge explained:

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 [as former trustee of Estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143] 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.

67    Mr King asserted otherwise in his oral reply, but it was no more than assertion, with respect. The simple fact of the matter is that even if Mr Culleton succeeded in setting aside the sequestration order or annulling the bankruptcy, that could not have provided 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 notion that the validity of the 2016 sequestration order is, or is akin to, a jurisdictional fact upon which the offence with which he was charged depends need only be stated to be rejected.

Ground 5

68    The asserted “fresh evidence” of Mr Culleton’s alleged solvency comprises:

(a)    documentation prepared by Paragon Consultants relating to a valuation of Australian Keg Company Pty Ltd (AKC); and

(b)    evidence which purportedly supports the existence of a cause of action regarding Mr Culleton’s rights in relation to the properties in Western Australia, mentioned earlier.

69    As to the “freshness” of the evidence, the primary judge found as follows:

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.

70    As I said earlier, this ground was not said to add anything to grounds 1 and 2, but it is to no avail in any event, and is bound to fail for the reasons given by the primary judge which I have set out.

71    Further, Mr Culleton did not address the point made by Besanko J, viz his failure to file a statement of his affairs with the Official Receiver or furnish a copy to his trustee in bankruptcy was a decisive discretionary consideration for refusing to make an order annulling the bankruptcy.

72    None of the grounds contended for mean that the primary judge’s orders are attended with sufficient doubt to warrant their reconsideration.

73    In any event, as Mr C Russell SC, who appeared with Mr J Wang of counsel for Balwyn Nominees, submitted, no prejudice is demonstrated sufficient to warrant the grant of leave to appeal. As he put it:

As we’ve noted in paragraphs 11 to 20 of our written submissions, the judgment obtained by Balwyn Nominees in October 2013 has been the subject of three decisions of the Court of Appeal in Western Australia and has been upheld. An application was made for special leave to the High Court of Australia, but that was abandoned. In respect of the sequestration order obtained in December 2016, it was the subject of an appeal to the Full Court, which was dismissed in February 2017, and there was an application for special leave to the High Court, but that was discontinued in April 2017. And Mr Culleton has also applied to annul his bankruptcy, and that was dismissed summarily in 2018. So Mr Culleton has had ample opportunity to litigate these arguments and has failed. The last point that I would make in respect of substantial injustice is just to highlight what his Honour said at paragraph 53 of the reasons … which is that Mr Culleton has failed to file a statement of his affairs with the official receiver and that that was a decisive consideration in Besanko J for refusing to make an order annulling the bankruptcy. That’s continued, and in paragraph 56 of the reasons, in fact, Mr Culleton was later convicted of an offence in relation to that. So in terms of – given that his Honour was only exercising power under section 153B, there is no substantial injustice that would arise in the circumstances, even if there was some doubt about the grounds, which we say there is none.

Disposition

74    If I may say so, with respect, the reasons of the primary judge are relevantly not attendant with any doubt at all. On the contrary, his Honour’s reasons are detailed, careful and comprehensive and they are self-evidently correct. Mr Culleton has had multiple opportunities to challenge his bankruptcy, and has failed each time. The Court will not afford him yet another opportunity to re-hash the same grounds.

75    Accordingly, the application for leave to appeal the orders made by the primary judge is refused.

76    I will hear the parties about costs.

Associate:

Dated:    3 June 2026