Federal Court of Australia

LFDB v SM (No 9) [2026] FCA 1118

ORDERS

THE COURT ORDERS THAT:

1.    Upon the determination of whether a vexatious proceedings order should be made against LFDB, the interlocutory application dated 19 March 2026 be dismissed.

2.    In relation to the question of costs of and incidental to the interlocutory application dated 19 March 2026:

(a)    SM file and serve any affidavits and written submissions (of not more than 5 pages) by 28 August 2026;

(b)    LFDB file and serve any affidavits and written submissions (of not more than 5 pages) by 18 September 2026;

(c)    SM file and serve any affidavits and written submissions in reply by 2 October 2026; and

(d)    the question of costs be decided on the papers.

3.    LFDB file any affidavits and written submissions on the question whether a vexatious proceedings order should be made against him by 21 September 2026.

4.    The matter be fixed for hearing on 8 October 2026 at 9.00 am on the question whether a vexatious proceedings order should be made against LFDB.

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

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    This is the latest instalment in the long-running dispute between the applicant (LFDB) and the second respondent (SM) arising from the division of property after they ended their relationship as domestic partners in about 2009. The present aspect of the dispute arises by way of Interlocutory Application dated 19 March 2026 brought by LFDB against the Deputy District Registrar of the Federal Court of Australia (NSW District Registry), being the first respondent, and SM as the second respondent. In broad terms, LFDB contends that the registration of the judgment of Ellis J of the New Zealand High Court (in SM v LFDB [2015] NZHC 2630) by this Court on 16 December 2025 (the NZ Relevant Judgment) is a nullity, or alternatively should be set aside pursuant to s 72 of the Trans-Tasman Proceedings Act 2010 (Cth) (TTP Act).

2    On 16 December 2015, pursuant to s 68 of the TTP Act, a Registrar of this Court registered the NZ Relevant Judgment, which concerned the division of the parties’ relationship property, and also registered a judgment of Ellis J of the High Court of New Zealand concerning costs in relation to applications for freezing orders in the amount of AUD$22,826.20 (the NZ Costs Judgment). The Certificate of Registration in relation to the NZ Relevant Judgment was made in proceedings NSD 1665 of 2015, and the Certificate of Registration of the NZ Costs Judgment was made in proceedings NSD 1664 of 2015, but on 23 February 2016, the two proceedings were ordered to be consolidated and were given the single file number NSD 1665 of 2015.

Salient Legislative Provisions

3    Section 66 of the TTP Act defines the concept of “registrable NZ judgment”. Sub-section 66(1)(a) provides that a judgment is a registrable NZ judgment if it is a “final and conclusive judgment” that is given in a civil proceeding by a New Zealand court. Sub-section 66(2) contains two relevant exclusions from the concept of a registrable NZ judgment. Paragraph (a) excludes judgments which relate to “an excluded matter”, which is defined in s 4 as meaning, relevantly, the enforcement of an obligation under Australian or New Zealand law to maintain a de facto partner. Paragraph (i) excludes “an order that, if contravened by a person to whom it is directed, will make the person liable to conviction for an offence in the place where it was made”.

4    Section 67(1) provides relevantly that an entitled person may apply to register an NZ judgment in a superior Australian court. Sub-section 67(5)(a) and (b) provide that an application under s 67 must be made in the form (if any) prescribed by the regulations, and in accordance with the requirements (if any) prescribed by the regulations. Sub-section (6) provides relevantly that regulations made for the purposes of para (5)(b) may prescribe that specified documents be filed in a specified way. The Trans-Tasman Proceedings Regulation 2012 (Cth) provides in reg 17 as follows:

(1)    For paragraph 67(5)(a) of the Act, Form 5 is prescribed.

(2)    For paragraph 67(5)(b) of the Act:

(a)     if the court is able to receive an application by fax or email – the application may be filed by fax or email; and

(b)     a sealed, certified or otherwise authenticated copy of the NZ judgment must be physically filed at the court in hard copy:

(i)     with the application; or

(ii)    if the application is filed by facsimile or email – within 15 working days after the application is filed.

5    Section 68 provides as follows:

(1)    An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part.

(2)    Once registered, the judgment remains registered unless the registration is set aside.

The reference to “this Part” is a reference to Part 7, which deals with the recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals, and consists of ss 64–79.

6    Section 71 deals with NZ judgments in which only some provisions are registrable, and it enables registration under s 68 in relation to the registrable provisions, but no other provisions, as if the registrable provisions were a separate registrable NZ judgment.

7    Sub-section 72(1) deals with the grounds on which registration may be set aside as follows:

An Australian court in which an NZ judgment is registered must, on application by a liable person under subsection (2), set aside the registration of the judgment if:

(a)     the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; or

(b)    the judgment was registered in contravention of this Act; or

(c)    both of the following subparagraphs apply:

(i)    the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property;

(ii)    that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand.

8    Sub-section 73(1) provides that if an Australian court registers a NZ judgment, the entitled person must give a notice of the registration to every liable person.

9    Sub-section 74(1) provides that a registered NZ judgment has the same force and effect and may give rise to the same proceedings for enforcement as if the judgment had been given by the Australian court in which it is registered. Section 75 provides that a registered NZ judgment is capable of being enforced in Australia only if, and to the extent that, at the time it is being or is to be enforced, the judgment is capable of being enforced in the original court or tribunal or in another NZ court or tribunal.

Previous Judgments of the Federal Court

10    LFDB brought proceedings in this Court in 2015 seeking to set aside the registration of the NZ Relevant Judgment and the NZ Costs Judgment under s 72 of the TTP Act on the following grounds:

(a)    enforcement of both judgments would be contrary to public policy in Australia (s 72(1)(a));

(b)    the judgments were given in a proceeding in rem, the subject of which was movable property which was not situated in New Zealand (s 72(1)(c)); and

(c)    the NZ Relevant Judgment was registered in contravention of s 72(1)(b) because it was not a “registrable judgment” since it was partly an order that, if contravened, would make LFDB liable to conviction for contempt in New Zealand (s 66(2)(i) of the Act).

11    The matter was heard and decided by Griffiths J, who rejected all three grounds and dismissed the application by LFDB to set aside the registration of both the NZ Relevant Judgment and the NZ Costs Judgment: LFDB v SM (No 3) [2017] FCA 80 (the Australian Primary Judgment).

12    At the hearing before Griffiths J, LFDB was ably represented by Mr Herzfeld of counsel. No argument was put to the effect that the registration of the judgments was a nullity, or otherwise void and of no effect, on the basis that the requirements of reg 17(2)(b) had not been met, or that the Registrar lacked power to issue the Certificates of Registration. At the outset of the hearing on 12 October 2016, Mr Herzfeld tendered the application to register the NZ Costs Judgment which had been filed in this Court on 16 December 2015, saying that it had annexed to it the judgment sought to be registered (T5.24–28). Mr Herzfeld also tendered the Certificate of Registration of the NZ Costs Judgment, which had annexed to it the orders rather than any reasons for judgment, which Mr Herzfeld accepted was a judgment strictly so called (T7.9–12). Those two documents became Exhibits A and B respectively. Mr Herzfeld then tendered the application to register the NZ Relevant Judgment which he described as having attached to it a document called final orders (T7.30–34), and the Certificate of Registration of the NZ Relevant Judgment which also had the final orders attached to it (T8.6–10). Those documents became Exhibits C and D respectively.

13    LFDB appealed from the Australian Primary Judgment, and the Full Court dismissed that appeal: LFDB v SM [2017] FCAFC 178; (2017) 256 FCR 218 (the Australian Appellate Judgment). The Full Court, comprising Besanko, Jagot and Lee JJ, described the argument on the appeal as having been significantly narrowed from the issues agitated at first instance, in that the challenge on appeal did not involve the second and third of the grounds advanced before the primary judge: at [4]. LFDB maintained the proposition that the primary judge erred in failing to set aside the registration of the NZ Relevant Judgment pursuant to s 72(1)(a) of the TTP Act, on the basis that enforcement of that judgment would be contrary to public policy in Australia: at [4]. The Full Court rejected that proposition. LFDB also sought to advance two arguments on the appeal which had not been put to the primary judge, and which the Full Court also rejected.

14    In 2025, LFDB brought an application seeking access to certain documents on the Court file pertaining to the registration of the NZ Relevant Judgment, which Younan J allowed in part: LFDB v SM (No 6) [2025] FCA 1319. One of the documents in question was a copy of the Form 5 application to register of 16 December 2015, which Younan J described as “a curious request given that this document was tendered by the applicants at the hearing on 12 October 2016 (Exhibit C)”: at [37]. Another document sought by LFDB was a copy of the sealed, certified or otherwise authenticated copy of the NZ Relevant Judgment that accompanied the Form 5 application to register. Justice Younan decided that LFDB should be permitted to inspect the documents sought that were held on the Court file, to the extent permitted by the extant suppression orders (with redactions, if necessary, reflecting those orders): at [42].

LFDB’s Submissions

15    The Court has the benefit of very extensive written submissions by LFDB, comprising 66 pages, which cover more than 30 grounds of challenge to the registration of the NZ Relevant Judgment. Those grounds are introduced as follows (at [2] of LFDB’s written submissions dated 16 July 2026):

The essential issue may be stated in a sentence. Section 68 obliges an Australian court to register a registrable New Zealand judgment; but what was lodged was an administrative “Final Orders” document signed by a New Zealand Deputy Registrar, not the judgment of Ellis J; it was lodged electronically without the certified hard copy the Regulation required; and it was registered by a Deputy District Registrar of this Court who had no delegated power to register at all. The power to register was therefore never engaged, and the registration is void.

16    Ground 1 contends that the Deputy District Registrar of this Court had no power to register the NZ Relevant Judgment, and no judicial determination was made. LFDB submits that the decision to register an NZ judgment is judicial in character but the Certificate of Registration which was issued was administrative in character, and thus the judicial step never occurred. LFDB submits that a Registrar may perform the act only if the power has been delegated to him or her, which he submits had not occurred in 2015. LFDB draws attention to the effect of registration under s 74 of the TTP Act as giving the instrument the force of a judgment of this Court, and submits that a judgment of this Court is an exercise of the judicial power of the Commonwealth which, under Chapter III of the Constitution, may be exercised only by a court constituted by a judge. LFDB submits that if the act is judicial in character then a Registrar had no power to perform it, and if the act is administrative, then an administrative act cannot be clothed with the force of a judgment of a Chapter III court. LFDB submits that the Certificate of Registration issued on 16 December 2015 was no more than a purported registration and should be declared a nullity.

17    LFDB anticipates a counter-argument to the effect that he is precluded from now contending that the NZ Relevant Judgment was never registered by reason of the Australian Primary Judgment and the Australian Appellate Judgment. LFDB submits that the earlier proceedings assumed a registration in order to seek to have it set aside under s 72 of the TTP Act, whereas the present contention is that the antecedent act was outside power. LFDB submits that there is no inconsistency capable of founding an abuse of process. As to the potential application of an Anshun estoppel, LFDB submits that the present contention that the antecedent act was outside power was not one that could and should have been litigated in the earlier proceedings concerning s 72. Further, LFDB submits that it was not unreasonable not to have raised the present contention in the earlier proceedings because, according to LFDB’s submission, the documents lodged for registration were withheld from him and were not available to him until the orders of Younan J of 31 October 2025. The submission that the documents lodged for registration were not available to LFDB until the orders of Younan J of 31 October 2025 is repeated throughout LFDB’s written submissions: see [12], [28], [28A], [28AA], [28B], [98D], and [112]. As I discuss further below, that submission must be rejected in light of the documents actually tendered by LFDB’s counsel at the hearing on 12 October 2016 (see [12] above).

18    Ground 2 contends that no registrable NZ judgment was ever lodged in this Court, and the precondition to the exercise of s 68 thus failed. LFDB submits that the power under s 68 depends on a number of conditions, namely that the instrument being registered is a registrable NZ judgment, and that it is lodged in the manner required by reg 17(2)(b). LFDB submits that what was lodged was not an NZ judgment, because the instrument lodged in the present case was the sealed schedule of orders prepared and sealed by a Deputy Registrar of the New Zealand High Court, being an officer performing the separate ministerial step of sealing, not the Court performing its adjudicative act. LFDB submits that the judicial act was the reasons for the judgment of Ellis J, which was not the instrument that was lodged. Further, LFDB submits that the instrument that was lodged bore no judicial authentication as the judgment of Ellis J, and was thus not certified or authenticated. In addition, LFDB submits that no hard copy of any kind was ever physically filed, as the application was filed electronically, and LFDB submits that the Court’s own records confirm that the file is “fully electronic” with no hard copies kept. LFDB thus submits that reg 17(2)(b) was not complied with. LFDB submits that, as a matter of construction, the lodgment of a compliant registrable judgment as required by reg 17(2)(b) is a precondition to the validity of registration.

19    Ground 2A contends that the registration was made in contravention of r 34.63 of the Federal Court Rules 2011 (Cth), as in force in December 2015. LFDB submits that at that time r 34.63 provided that a person who wants to start a proceeding for an order under the TTP Act must file an originating application in accordance with Form 15 and rr 8.01 and 8.03, accompanied by an affidavit stating the material facts necessary to give the respondent fair notice of the case to be made at the hearing, and that there was then no carve-out for applications under s 67. LFDB submits that an application to register an NZ judgment under s 67 is an application for an order under the TTP Act, namely the order being registration under s 68. LFDB submits that r 34.63 was not complied with, in that what was filed was an unsworn Form 5, without an originating application in Form 15, and without an affidavit or the giving of fair notice. LFDB submits that the registration is liable to be set aside under s 72(1)(b) of the TTP Act as a registration made in contravention of that Act and the rules governing the process.

20    Ground 3 contends that the New Zealand Court had no jurisdiction over Australian superannuation, and no Australian Court could acquire such jurisdiction by registration. LFDB submits that, to the extent that the NZ Relevant Judgment purports to classify, value, split or divide Australian superannuation, it deals with subject matter over which the New Zealand Court had no jurisdiction and which is governed exclusively by Australian law. LFDB thus submits that such orders are a nullity for want of jurisdiction and are not registrable, and this Court cannot acquire by registration a jurisdiction it does not possess directly.

21    Ground 4 contends that no Australian statute renders any court competent to give effect to the orders in the NZ Relevant Judgment, in that a superannuation splitting order can be made only by a court which is rendered competent by statute.

22    Ground 5 contends that this Court cannot acquire by registration a jurisdiction it lacks directly. LFDB submits that, even if the orders could be registered, this Court does not itself possess jurisdiction to make a superannuation splitting order in a de facto relationship matter of this kind, particularly as to Western Australian de facto interests.

23    Ground 6 contends that the NZ Relevant Judgment was not final and conclusive within the meaning of s 66(1)(a). LFDB describes the NZ Relevant Judgment as a “formal-proof default judgment” that the NZ Court may set aside on application by an absent party. Further, in relation to the superannuation aspect of the NZ Relevant Judgment, LFDB submits that the superannuation orders were not “final and conclusive” as the superannuation trustee was not a party and a number of other third parties bound by the orders were not heard. Further, LFDB submits that the maintenance components of the NZ Relevant Judgment did not finally determine or dispose of the parties’ rights.

24    Ground 7 contends that the NZ Relevant Judgment partly relates to an excluded matter, namely maintenance orders, and thus was not registrable. Further, LFDB submits that s 71 of the TTP Act does not save the registration.

25    Ground 8 contends that the NZ Relevant Judgment is not a registrable NZ judgment because it partly comprises orders which, if contravened by LFDB, will make him liable to conviction for an offence within the meaning of s 66(2)(i) of the TTP Act. LFDB submits that the instrument that was lodged and registered, namely the sealed orders of 26 November 2015, partly comprised permanent suppression orders (in Orders 35 to 37), breach of which is a statutory offence in New Zealand. LFDB submits that this ground is consistent with the reasoning of Griffiths J in the Australian Primary Judgment at [140] to the effect that the provision in s 66(2)(i) is directed to New Zealand statutes which empower the making of orders and provide that if a person to whom such an order is directed contravenes the order the person is liable to conviction for an offence in New Zealand, and does not apply to contempt of court. In contrast to the argument that was put to Griffiths J, LFDB submits that the present contention does not depend on the potential for contempt proceedings.

26    Ground 9 contends that the NZ Relevant Judgment was not enforceable at the time of registration because it was subject to permanent name suppression preventing identification of the judgment debtor, so that it could not be enforced without a further court order. LFDB submits that the judgment was therefore not “final and conclusive” within the meaning of s 66(1)(a), and further submits that its registration offends public policy under s 72(1)(a) of the TTP Act.

27    Ground 10 contends that the NZ Relevant Judgment was not enforceable in New Zealand at the registration date within the meaning of s 75 of the TTP Act by reason of the matters already relied upon in relation to other grounds, including the suppression regime, “the publication-and-enforcement embargo imposed by the judgment itself pending sealing and service”, and the steps still required before enforcement.

28    Ground 11 contends that there was non-compliance with the TTP Act’s service requirements and “give way” protections. LFDB submits that the enforcement provisions under the TTP Act are balanced by protective provisions for the person against whom a New Zealand proceeding is brought, namely the Form 1 notice of rights on service, the “give way” right to challenge forum, and giving time to respond. LFDB submits that he was not given the benefit of those protective provisions, and thus the NZ Relevant Judgment was not amenable to enforcement under Part 7 consistently with the TTP Act’s protective scheme. LFDB submits that the registration is liable to be set aside under s 72(1)(b) as a contravention of the TTP Act, and alternatively under s 72(1)(a) as contrary to public policy.

29    Ground 12 contends that enforcement of the superannuation orders would be contrary to Australian public policy under s 72(1)(a), that public policy being said to be reflected in the closed and exhaustive legislative scheme governing superannuation.

30    Ground 13 contends that enforcement would facilitate dispossession from a registered Aboriginal sacred site, in that the Broome properties are situated on a registered Aboriginal site. LFDB submits that enforcement of a foreign judgment facilitating dispossession from a registered sacred heritage site is contrary to Australian public policy and engages s 72(1)(a).

31    Ground 14 contends that the registration presents as a money judgment what is in substance a foreign matrimonial-property adjudication over Australian immovable property. LFDB submits that such orders are not, as a matter of established principle, reciprocally enforceable, and that enforcing such orders through the TTP Act’s money judgment machinery is contrary to public policy under s 72(1)(a).

32    Ground 15 contends that the NZ Relevant Judgment was obtained in breach of natural justice, describing the NZ Relevant Judgment as “a formal-proof default judgment” entered after LFDB had been debarred, dealing with Australian property and superannuation on a basis of which LFDB had no notice and no opportunity to be heard, and reissued and fixed as to costs through a process from which he was excluded. I note that this contention bears a close resemblance to the argument that was put to Griffiths J concerning public policy under s 72(1)(a), which his Honour recited at [51]–[65] and determined adversely to LFDB at [102]–[124].

33    Ground 16 contends that the NZ Relevant Judgment was obtained on the basis of material non-disclosure to the New Zealand Court, as to the exclusivity of Australian superannuation law, the prior confinement of the proceeding excluding Australian assets and SM’s alleged contemporaneous evidence inconsistent with the orders sought. LFDB also submits that there were procedural defects which were not disclosed to this Court, arising from non-compliance with requirements in New Zealand governing default judgments.

34    Ground 17 contends that the orders concern property which is not situated in New Zealand, including a trust in Western Australia within the exclusive jurisdiction of the Western Australian Supreme Court, and thus s 72(1)(c) of the TTP Act is engaged.

35    Ground 18 contends that the NZ Relevant Judgment purports to make orders affecting nine third parties who were not parties to the New Zealand proceedings, and were neither served nor heard, and thus it is submitted that they retain their own rights to have the judgment set aside. LFDB submits that orders binding non-parties are invalid.

36    Ground 19 contends that the NZ Relevant Judgment is not a simple money judgment, but a complex property adjustment with indemnities, of a kind that cannot be enforced across jurisdictions. LFDB submits that the NZ Relevant Judgment fails each of the five requirements identified by Gordon J in Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1 at [52] for a foreign judgment to have preclusive effect.

37    Ground 20 contends that a foreign statutory power cannot be transformed by registration, and that a power that exists only as a creature of, and exercisable only under, New Zealand’s statutory regime is not converted by registration into a valid exercise of Australian statutory power. LFDB submits that this Court did not merely register the NZ Relevant Judgment, but altered the substance of that judgment by removing the name suppression that formed part of it. LFDB submits that, having been altered on registration, the judgment as it now stands is not the judgment given by the originating court, and cannot be enforced as such.

38    Ground 21 contends that, independently of the question of jurisdiction, the superannuation orders cannot operate because a submitting order binds a trustee only if the trustee is a party and in the present case the trustees were never joined. Further, LFDB submits that the valuation of the superannuation assets was made in a default judgment that LFDB could not contest and was inconsistent with an earlier ruling.

39    Ground 22 contends that the registration is defective in two related respects: the Certificate of Registration did not comply with the requirements for the making, authentication and entry of orders; and notice of registration under s 73 of the TTP Act was not given to every liable person, nor was the affidavit proving such service filed before enforcement steps were taken. LFDB submits that each matter was a contravention of the TTP Act engaging s 72(1)(b), and engages the enforcement restriction in s 74.

40    Ground 23 contends that at registration, the NZ Relevant Judgment was subject to permanent worldwide name suppression, which he submits the New Zealand Registry and this Court have recognised made identification of the judgment debtor (and therefore enforcement) practically impossible without further orders.

41    Ground 24 contends that enforcement is limited to execution, and sequestration is not execution. LFDB submits that greater enforcement rights in Australia than SM would have had in New Zealand were thus conferred, contrary to the comity which the scheme assumes. Further, LFDB submits that the judgment resulted from an unliquidated claim under the Property (Relationships) Act 1976 (NZ) which was heard on formal proof, and such a demand is not provable in bankruptcy under s 82 of the Bankruptcy Act 1966 (Cth).

42    Ground 25 contends that the NZ Relevant Judgment makes an in rem determination of the existence and ending of the de facto relationship, and makes proprietary determinations over trust property, whereas such status and in rem determinations are excluded from the regime. LFDB also contends that the judgment contains non-money components that are not registrable, and are not severable from the money component such that the registration cannot be saved by s 71 of the TTP Act.

43    Ground 26 contends that enforcement is contrary to the public policy favouring reciprocity, in that non-parties have no appeal rights in New Zealand, and equivalent de facto property orders are excluded from cross-border recognition elsewhere.

44    Ground 27 contends that SM committed an abuse of process, in that he submits that, having obtained orders staying LFDB’s New South Wales proceeding on the basis of representations that the New Zealand Court would not deal with his Australian property, SM then obtained a New Zealand judgment doing precisely that, which was registered in this Court. LFDB submits that blocking LFDB from an Australian money judgment and then enforcing a New Zealand judgment against his Australian assets is an abuse of process, and a departure from the representations on which the stay was granted by the Supreme Court of New South Wales.

45    Ground 28 contends that the registration produces conflicting judgments and allows SM to approbate and reprobate, in that it is contended that SM relied on the New Zealand forum but disclaimed the Australian limits which she relied upon to get there. LFDB submits that the integrity of the scheme of the TTP Act would be defeated if SM were permitted to register a default judgment, obtained after LFDB’s debarment, and reissued through a secret process, as a “final and conclusive” money judgment enforceable in Australia.

46    Ground 29 contends that the matters referred to in Ground 1 establish the Registrar’s want of power and that the conduct surrounding the registration confirms both the Registrar’s jurisdictional error and that LFDB was prevented from discovering it.

47    Ground 30 contends that, if the grounds already referred to do not resolve the application, the registration cannot constitutionally be given the force of a judgment of this Court. LFDB advances three arguments concerning the Constitution, which I note are the subject of a notice pursuant to s 78B of the Judiciary Act 1903 (Cth). The first argument is that s 74(1) cannot give the NZ Relevant Judgment a force which this Court could not constitutionally have given, relying on three components as falling outside the constitutional power of this Court, namely the superannuation orders, the Western Australian de facto property orders, and the Western Australian trust orders. The second argument is that the registration of a New Zealand judgment effected by a Registrar not exercising the judicial power of the Commonwealth cannot be given the same force and effect as if the judgment had been given by this Court, consistently with Chapter III of the Constitution. The third argument is that the registration of 16 December 2015 did not enliven any “matter” within the meaning of ss 75 or 76 of the Constitution, such that the judicial power of the Commonwealth was not engaged, relying in this respect on the Western Australian de facto property and trust components.

Consideration

48    LFDB’s contentions confront three preclusive principles designed to ensure the finality of legal proceedings. The first is the principle of cause of action estoppel (or res judicata in the strict sense) whereby a decision made in the exercise of judicial power settles for the future, as between defined persons or classes, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 (Tomlinson) at [20] (French CJ, Bell, Gageler and Keane JJ). As the High Court explained, the rendering of a final judgment in that way quells the controversy between those persons, and the rights and obligations in controversy as between those persons cease to have an independent existence and merge in the final judgment: at [20]. The focus is on substance rather than form, and the principle looks not for absolute identity between the sources and incidents of rights asserted but for substantial correspondence between those rights: Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1 at [34] (Kiefel CJ, Bell and Gageler JJ), [68] (Edelman J).

49    The second is the principle of issue estoppel, which precludes the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment: Tomlinson at [22]. As Dixon J explained in Blair v Curran (1939) 62 CLR 462 at 531–2, a judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies, but the estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, such that nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.

50    Those principles raise the question as to what was the controversy which was quelled by the Australian Primary Judgment and the Australian Appellate Judgment, and what were the issues, including what was necessarily established as the legal foundation or justification of the conclusion reached in those judgments (or, put differently, what was legally indispensable to the conclusion). The particular issues raised directly by LFDB in those earlier proceedings were whether the registration of the NZ Relevant Judgment and the NZ Costs Judgment should be set aside pursuant to s 72(1)(a), (b) or (c) of the TTP Act. However, the application to have the registrations set aside necessarily assumed that the registrations had been validly made, and were not null and void or of no legal effect. That assumption was legally necessary and indispensable as the fundamental premise for the judicial consideration of whether the registrations should be set aside. In dismissing the application at first instance, the Australian Primary Judgment in substance upheld the continuing effectiveness of the registrations as a matter of law. That position was preserved by the Australian Appellate Judgment in dismissing the appeal. The proposed grounds of challenge in the present application all concern contentions that either the very same registration of the NZ Relevant Judgment should be declared void and of no effect, or that the registration should be set aside under one or more of s 72(1)(a), (b) or (c) of the TTP Act. It follows that LFDB is precluded by both cause of action estoppel and issue estoppel from contending that the registration of the NZ Relevant Judgment is null and void or of no legal effect, or that the registration (if valid) should be set aside. That is a complete answer to LFDB’s present application.

51    The third preclusive principle is that known as Anshun estoppel, after Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598 and 602–3 (Gibbs CJ, Mason and Aickin JJ). An Anshun estoppel operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding: Tomlinson at [22]. All of the contentions now sought to be raised by LFDB in these proceedings (to the extent that they have any merit) were so connected to the subject matter of those proceedings as to make it unreasonable in the context of those proceedings for the contentions not to have been made at that time. Accordingly, even if I had been of the view that LFDB’s present contentions were not precluded by cause of action estoppel and issue estoppel, I would have found that they are all precluded by Anshun estoppel. The only ground upon which LFDB might contend that he is not precluded by Anshun estoppel is his repeated submission, referred to above, that the documents lodged with this Court on 16 December 2015 were not available to him until after the orders of Younan J were made on 31 October 2025. However, as the transcript of the hearing before Griffiths J on 12 October 2016 expressly demonstrates, those documents were not only available to counsel for LFDB but were actually tendered by him. There is no other matter which LFDB could plausibly contend was not reasonably available to him to have advanced through his counsel in the proceedings which led to the Australian Primary Judgment. Accordingly, I reject all of LFDB’s present contentions.

Registrations of New Zealand Costs Orders

52    LFDB also seeks to have a number of registrations by this Court of costs orders made in New Zealand declared a nullity or set aside, namely:

(a)    in NSD 520 of 2015, the registration on 7 May 2015 of the judgment of the Court of Appeal of New Zealand in the amount of AUD31,159.19;

(b)    in NSD 540 of 2015, the registration on 13 May 2015 of the judgment of the Supreme Court of New Zealand in the amount of AUD47,351.34;

(c)    in NSD 541 of 2015, the registration on 13 May 2015 of the judgment of the Court of Appeal of New Zealand in the amount of AUD17,342.47; and

(d)    in NSD 542 of 2015, the registration on 13 May 2015 of the judgment of the Court of Appeal of New Zealand in the amount of AUD15,154.64.

53    LFDB also seeks to have declared a nullity or set aside the costs order by the Full Court in the appeal from the Australian Primary Judgment, which was made in LFDB v SM (No 2) [2017] FCAFC 207.

54    At a case management hearing on 4 June 2026, I had wrongly thought that LFDB in the present application was seeking to have declared a nullity or set aside the New Zealand Costs Judgment, which was registered by this Court on 16 December 2015 in the amount of AUD22,826.20. That had become part of NSD 1665 of 2015: see the Australian Primary Judgment at [10]–[12]. LFDB made it clear that he was challenging only the registration of the NZ Relevant Judgment (T8.23–9.10). I suggested that if LFDB was also challenging the NZ Costs Judgment then I could hear that at the same time as his challenge to the NZ Relevant Judgment (T9.22–45). LFDB, however, appears to have thought that I was referring to the four New Zealand costs judgments referred to above, which were registered in separate proceedings, namely in NSD 520, 540, 541 and 542 of 2015. In fact, I was not aware of those other proceedings and registrations as at 4 June 2026. I apologise if my own misunderstanding contributed to the confusion.

55    Now that the position has been clarified, it would not be appropriate to deal with those four registrations of costs judgments in this application in NSD 1665 of 2015, as they were made in separate proceedings which are not before me. Nor would it be appropriate to consider any consequential challenge to the Full Court’s costs order made in the separate appellate proceedings, namely NSD 301 of 2017.

A Potential Vexatious Proceedings Order

56    In my preliminary and tentative view, it may be that the Court could be satisfied that LFDB has frequently instituted or pursued vexatious proceedings within the meaning of s 37AM(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), and if that were so, the question may arise as to whether a vexatious proceedings order should be made under s 37AO of the FCA Act, with the effect of prohibiting LFDB from instituting further proceedings in this Court without first obtaining leave of the Court. I note that s 37AO(3) provides that the Court may make a vexatious proceedings order on its own initiative, and that s 37AO(4) provides that the Court must not make a vexatious proceedings order without hearing the person or giving the person an opportunity to be heard. I will appoint a date for such a hearing, and make orders for the filing of written submissions and affidavits by LFDB in advance of that hearing.

57    It may assist LFDB in preparing for that hearing for me to indicate that I expect him to give particular consideration to the question whether each of the following matters constitutes a vexatious proceeding, at least on the basis of being proceedings instituted or pursued by LFDB without reasonable ground:

(a)    the application for a stay of the appeal from the Australian Primary Judgment which was heard by Jagot J on 23 June 2017, and which her Honour described as “hopeless” (T19.23–24);

(b)    the interlocutory application referred to in the Australian Appellate Judgment at [53], which the Full Court described as “misconceived” at [58], and as having “no merit” at [63];

(c)    the application for leave to appeal from Wigney J’s decision which Jagot J dismissed in Du Bray v ACW [2019] FCA 1586;

(d)    the application for a stay pending appeal from Wigney J’s sequestration order which Stewart J dismissed in Du Bray v ACW [2020] FCA 1142, and the appeal itself (which was dismissed for failure to provide security for costs);

(e)    the proceedings in the Supreme Court of Western Australia decided by Gething J in Du Bray v RSM Australia [2026] WASC 113, noting the finding of abuse of process at [75];

(f)    the interlocutory application by LFDB filed on 20 May 2026, which McElwaine J decided in Bad Wolf Purchasing Pty Ltd v Du Bray and Associates Pty Ltd (No 3) [2026] FCA 854;

(g)    the interlocutory application by LFDB in these proceedings to join Marque Lawyers Pty Ltd, which I dismissed in LFDB v SM (No 7) [2026] FCA 718; and

(h)    the present Interlocutory Application by LFDB, which I have decided adversely to him in these reasons.

58    In identifying those particular matters, I am not seeking to limit LFDB as to the matters on which he may seek to rely in resisting a vexatious proceedings order.

Costs

59    SM seeks an order for costs on an indemnity and/or lump sum basis, to be paid forthwith. In my view, SM is entitled to an order for costs, and I have set a timetable for the exchange of affidavits and written submissions on costs, which I anticipate deciding on the papers. Those affidavits and submissions should also deal with the amount of costs claimed, so that I can determine the amount without the need to refer that question to a Registrar.

Associate:

Dated:    10 August 2026

SCHEDULE OF PARTIES