Federal Court of Australia

Kuksal v Administrative Review Tribunal [2026] FCA 1353

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 25 March 2026 is dismissed.

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

REASONS FOR JUDGMENT

HILL J:

A.    Introduction

1    The Applicants have applied under s 39B of the Judiciary Act 1903 (Cth) for review of and declarations in relation to a decision of the Administrative Review Tribunal: Kuksal and Federal Court of Australia (Practice and procedure) [2025] ARTA 2594 (ART). The Applicants applied to the Tribunal for merits review of a decision by a Judicial Registrar of this Court not to defer the payment of Court fees in relation to the Applicants’ applications to set aside bankruptcy notices issued against them. After that review application was brought, the Applicants were made bankrupt by order of this Court. In November 2025, the Tribunal decided, pursuant to s 84(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), that the Applicants could not continue with their review application. In January 2026, the Tribunal made orders under s 84(4) of the ART Act dismissing the Applicants’ review application.

2    For the following reasons, the application must be dismissed. There is no utility in granting any relief in these proceedings, because the application for fee deferral was a preliminary to proposed proceedings to challenge bankruptcy notices. But those bankruptcy notices have now been acted on, and the Court has made sequestration orders (which were upheld by the Full Court). Even if the Applicants were successful in these proceedings, that could not affect those orders. That is not to suggest that the Applicants’ arguments in this proceeding have force; indeed, the opposite is the case.

3    Materials: As explained below, I have decided to deal with the application without an oral hearing, despite the Applicants’ objection to that course. There is no contradictor, because each of the Respondents has filed a submitting appearance (noting the Second Respondent ultimately filed a submitting appearance after initially filing submissions in opposition to the application: see below). The materials before the Court are as follows:

    An amended originating application dated 25 March 2026;

    Applicants’ submissions filed on 1 June 2026 (which are 71 pages, with appendices of more than 350 pages);

    An 11-page letter from the First Applicant (Mr Kuksal) emailed to chambers and the Second Respondent on 3 August 2026, which I have treated as a written submission.

B.    background

B.1    Procedural history

4    The following procedural history leading up to the current application for judicial review is taken from Kuksal v Victorian Legal Services Board (Appeal and Interlocutory Matters) [2026] FCAFC 65 (Kuksal FC) at [4]-[19] (the Court), supplemented by the background set out in the Tribunal’s reasons.

5    Supreme Court costs orders (Sep 2023-Dec 2024): After investigating the conduct of the Applicants from the middle of 2021, the Victorian Legal Services Board (VLSB) brought a series of proceedings against the Applicants in the Supreme Court of Victoria in 2022. The Supreme Court made five costs orders in favour of the VLSB and other parties between September 2023 and December 2024. These costs orders formed the basis of bankruptcy notices issued to the Applicants, with three bankruptcy notices being issued to each Applicant (that is, nine bankruptcy notices in total): Kuksal FC at [5]-[10], [86]-[91].

6    Service of bankruptcy notices (Jan, Feb 2025): The bankruptcy notices were served on the Applicants by email on 23 January 2025, pursuant to reg 102 of the Bankruptcy Regulations 2021 (Cth). The bankruptcy notices were also sent by registered post, and received by Mr Kuksal and the Second Applicant (Ms Xu) on 4 February 2025, and by the Third Applicant (Mr Ansell) on 6 February 2025: Kuksal FC at [128]-[129].

7    Applications to set aside bankruptcy notices lodged, defer filing fees (25-26 Feb 2025): On 25 and 26 February 2025, the Applicants lodged documents in the Court applying to set aside the bankruptcy notices, and seeking deferral of Court fees in relation to the applications to set aside the bankruptcy notices: ART [2].

(a)    It appears from documents attached to the amended originating application that Mr Kuksal sent an email to Registry at 2.55pm on 24 February 2025 about deferring the filing fee. He stated that the next day (25 February) was the last day on which he could apply to set aside the bankruptcy notices in question.

(b)    The 24 February email attached the Court’s “Bankruptcy Information Sheet 4” (updated July 2022), which stated (in [6.5]) that a fee is payable for filing an application to set aside a bankruptcy notice, and stated further (in [6.6]):

If an applicant cannot afford this fee, they may be able to ask the Court to exempt them from having to pay it, or to defer the time for its payment. Information and the form to be used to request the Court to either exempt or defer payment can be obtained from the Registry or found in Court Fees.

The email also attached the Court’s “Deferral of Payment of Court Fees” document (updated July 2015), which provided that a registrar or an authorised officer “can defer the time for payment of a fee” (subject to certain exceptions), with or without conditions, where “in his or her opinion”:

•    the need to file the document is so urgent that it overrides the requirement to pay the filing fee before the document is filed; or

•    considering the financial circumstances of the person liable to pay the fee, it would be oppressive or otherwise unreasonable to require payment of the fee as required by the Federal Court and Federal Circuit and Family Court Regulations 2022; (emphasis added)

This document provided that, “if payment is deferred the fee must be paid”:

•    within the period approved in writing by the Registrar or authorised officer for the payment of the fee; or

•    if no period is approved, within 28 days after the day the payment is deferred.

(c)    After receiving a reply from Registry asking him to provide a completed Fee Deferral Form and Statement of Financial Circumstances, Mr Kuksal sent an email at 3.32pm on 24 February 2025 stating that his understanding was that “the statement of financial position [was] not necessary when one relies on the first ground for deferral, i.e., the lodgment of the documents is urgently necessary”. A Registry official replied by email at 3.59pm on that day stating “I confirm if you are seeking a Fee Deferral on the grounds of Point 1 of the Fee Deferral Application, you are not required to complete a Statement of Financial Circumstances.”

8    Fee deferral refused (27 Feb 2025): On 27 February 2025, Registrar Morgan in this Court refused the application for deferral of filing fees. The Registrar’s reasons given for the refusal were as follows: ART [3]:

The application does not attach any evidence of the applicants’ financial circumstances to support the deferral of fees. The ‘supporting information’ in the application appears to set out a series of submissions about the conduct of the respondents in the proceeding below and criticism of the judicial officer who made the decision in the court below. These are not relevant considerations in assessing whether a deferral of fees should be granted. Furthermore, the application does not address the considerations as to whether the applicant has the means to pay the court fees required, including the provision of a statement of financial circumstances and/or supporting evidence as [to] the financial circumstances of the applicant to warrant the deferral of the payment of the court fees. (Emphasis added)

This refusal decision was made under reg 2.15 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth): ART [4].

9    Applications to set aside bankruptcy notices not accepted: The Regulations required that the filing fee for a document be paid before the relevant document is filed, unless (relevantly) the fee was deferred (regs 2.14(1), 2.15(1), 2.18(2)). The effect of the Registrar’s refusal to defer the filing fees was that the Applicants’ applications to set aside the bankruptcy notices were not accepted by the Federal Court: see ART [5].

10    VLSB creditor’s petition (28 Feb 2025): On 28 February 2025, the VLSB issued a creditor’s petition in the Federal Court seeking a sequestration order against the Applicants: ART [6]. The VLSB contended that the Applicants had committed an act of bankruptcy, by failing to comply with the bankruptcy notices: Kuksal FC at [11].

11    ART application against fee deferral refusal (Mar 2025): On 28 March 2025, the Applicants applied jointly to the Tribunal for review of the Registrar’s decision to refuse to defer the filing fees: ART [7].

12    Applicants made bankrupt (Aug 2025): On 27 August 2025, Downes J in this Court ordered (relevantly) that the estates of each of the Applicants be sequestrated under the Bankruptcy Act 1966 (Cth): Kuksal FC at [18](a). The Tribunal was informed of these orders on 9 September 2025: ART [11]. On 1 October 2025, the Applicants filed a notice of appeal against the decision of Downes J: Kuksal FC at [20].

13    Tribunal decides that the Applicants cannot continue ART proceeding (Nov 2025): On 24 November 2025, the Tribunal decided that the Applicants cannot continue with their application for review of the fee deferral decision. The Tribunal’s reasons are summarised in section B.2 below.

14    Tribunal orders (Jan 2026): On 20 January 2026, the Tribunal made orders pursuant to s 84(4) of the ART Act dismissing the Applicants’ applications for review. The notes to that order provide:

1.     On 27 August 2025, Justice Downes in the Federal Court ordered that the estates of the Applicants be sequestrated under the Bankruptcy Act 1966 (Cth) and that the Official Trustee in Bankruptcy be appointed as trustee of the bankrupt estates of the Applicants.

2.     On 24 November 2025, the Tribunal decided in Kuksal v Federal Court of Australia [2025] ARTA 2594, pursuant to ss 84(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) (“ART Act”), that by reason of their bankruptcies, the Applicants cannot continue with their applications for review herein dated 28 March 2025 (“the substantive applications”).

3.     On 18 December 2025, the Official Trustee in Bankruptcy elected:

3.1     pursuant to ss 60(2) of the Bankruptcy Act, to discontinue the substantive application; and

3.2     not to make an application pursuant to ss 84(2) of the ART Act to continue with the substantive application.

4.     For the purposes of ss 84(4) of the ART Act, no application to continue with the substantive application has been made within three months after the Tribunal became aware of the Applicants’ bankruptcy.

15    Application for review of Tribunal’s decision (Mar 2026): On 17 March 2026, the Applicants lodged an application for review of the Tribunal’s decision, which was accepted for filing on 25 March. On 25 March 2026, the Applicants filed an amended application for review, which was accepted for filing on 27 March. This application is set out in more detail in section B.3 below.

16    Appeal from Downes J dismissed (May 2026): On 12 May 2026, the Full Court dismissed an appeal from the decision of Downes J. The Full Court’s decision confirmed the sequestration of the Applicants’ estates.

17    Correspondence about procedure for the application (Jun-Aug 2026): This application was held in abeyance until after the Full Court’s decision. Between mid-June and early August, there was the following correspondence between my chambers and the parties about the procedure for determining this application.

(a)    On 15 June 2026, my chambers sent the parties an email stating that I proposed to deal with the application without an oral hearing under s 20A(2) of the Federal Court of Australia Act 1976 (Cth), because the legal issues to be determined were clearly set out in the application and could be dealt with adequately in writing. This email directed the Applicants to file submissions of no more than 10 pages by Friday 3 July 2026, and directed that any respondent that wished to file submissions to file submissions of no more than 10 pages by 10 July 2026, and (in the event of a Respondent filing submissions) directed the Applicants to file any reply submissions of no more than three pages by 17 July 2026. At this stage, the First Respondent had filed a submitting appearance, but the Second Respondent (this Court) had legal representation. (The Third Respondent later filed a submitting notice on 30 June 2026.)

(b)    Mr Kuksal sent an email on 29 June 2026 stating that the Applicants anticipated filing written submissions by 1 July 2026, and sent a further email on 7 July 2026 stating that the Applicants expected to file written submissions by 9 July 2026.

(c)    On 17 July 2026, my chambers sent an email to the Applicants and Second Respondent’s lawyers stating that they had not filed written submissions nor sought a further extension of time, and asked the Applicants to advise by 20 July 2026 whether they were content to rely on their written submissions filed on 1 June 2026.

(d)    On 22 July 2026, my chambers sent a further email to the Applicants and the Second Respondent stating that there had been no response from the Applicants, and that I would treat the submissions already filed by the Applicants as containing the arguments they wished to put. This email directed that any submissions filed by the Second Respondent be filed by 28 July 2026.

(e)    On 28 July 2026, Mr Kuksal sent an email stating that illness had prevented him from complying with the Court’s directions. He stated that Ms Xu and Mr Ansell “were not in a position to immediately step in and take responsibility for the work”. He stated that the Applicants were preparing an affidavit in support of an interlocutory application for an extension of time to file documents, and that they anticipated being able to file these documents by “early to mid-next week”. Mr Kuksal’s email attached a medical certificate dated 27 July 2026, which stated (in full):

[Mr Kuksal] suffers from chronic mental health condition and has recently experienced freque[n]t exacerbation of symptoms from 23/06/2026 till date and he is under treatment and awaiting for specialist consultation. As the condition is affecting his mental health and his ability to perform administrative work, I request to consider his mental condition in support of any extension for filing of d[o]cuments.

(f)    Later that day, my chambers sent an email to the Applicants and the Second Respondent stating that, although I would consider any application for an extension of time, if it were made, the parties should not assume that any extension would be granted. The email stated that the Second Respondent’s submissions were due by 4.00pm that day and, unless and until any further order was made, that remained the date on which the Second Respondent’s submissions were due.

(g)    The Second Respondent filed submissions later on 28 July 2026. On 3 August 2026, Mr Kuksal sent a letter by email contending (among other things) there was a conflict of interest in the Court, as Second Respondent, taking an active part in opposing the application.

(h)    On 4 August 2026, my chambers sent an email to the Applicants and to the Second Respondent stating that, in light of the Applicants’ objections to the Second Respondent putting active submissions in this matter, I was content for the Second Respondent also to file a submitting appearance. Later that day, Mr Kuksal sent an email requesting that the Second Respondent clarify its position on preserving its submissions on the Court file. The Second Respondent filed a submitting notice on 4 August 2026.

(i)    On 6 August 2026, my chambers sent an email to the Applicants and to the lawyers for the Second Respondent stating that the Second Respondent’s submitting notice had been received, and its written submissions would be removed from the Court file. I have not read those submissions.

B.2    Tribunal’s reasons

18    The Tribunal’s reasons for deciding that the Applicants could not continue with their review application were as follows.

19    Review application stayed under Bankruptcy Act s 60(2): The first issue was whether the Applicants’ review application was stayed by reason of s 60 of the Bankruptcy Act, which provides for the stay of legal proceedings brought by a bankrupt.

    By s 60(2) of the Bankruptcy Act, “[a]n action commenced by a person who subsequently becomes bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action”. An “action” is defined as “any civil proceeding, whether at law or in equity” (s 60(5)).

    However, s 60(4) provides that “[n]otwithstanding anything in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:”

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

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

20    The Tribunal determined that s 60(2) of the Bankruptcy Act applied to the Applicants’ review application. Federal Court authority indicated that s 60(2) encompasses all of a bankrupt’s actions (including for prerogative relief), other than those exempted by s 60(4); that is, s 60(2) would stay an application for review in the Tribunal: ART [39], referring to Rana v Musolino [2009] FCA 1050 at [37] (Finn J); Garrett v Federal Commissioner of Taxation [2015] FCA 665; (2015) 233 FCR 226 at [31] (Kenny J); and Nugawela v Deputy Commissioner of Taxation [2018] FCA 1457 at [11], [13] (Colvin J). An application for merits review came within s 60(5) of the Bankruptcy Act, because it was a “proceeding” (and is referred to as such in s 84(1) of the ART Act), and was a “civil” proceeding (in that it was not a criminal proceeding): ART [40].

21    The Tribunal was therefore satisfied that the Applicants’ application for merits review of the Registrar’s decision was a civil proceeding, and was currently stayed under s 60(2) of the Bankruptcy Act: ART [50]. Section 60(4) was not applicable: ART [54], referring to Boensch v Pascoe [2007] FCA 1977 at [22] (Buchanan J).

22    Applicants cannot continue with application (ART Act s 84(1)(b)): The second issue was whether the Tribunal considered under s 84(1)(b) of the ART Act that the Applicants could not continue with the review application.

    By s 84(1), that section applies in relation to a proceeding in the Tribunal for review of a decision (the “substantive application”) if (a) the applicant (relevantly) becomes bankrupt; and (b) the Tribunal “considers that the applicant cannot continue with the substantive application because of the event mentioned in paragraph (a)”.

    If the Tribunal considers that the applicant cannot continue under s 84(1)(b), the persons listed in s 84(2) may apply to the Tribunal to continue with the substantive application, such as the trustee for the applicant for the substantive application.

    By s 84(4), the Tribunal may dismiss the substantive application if (a) the Tribunal considers that there is no person mentioned in s 84(2) who can continue with the substantive application; or (b) no application to continue the substantive application is made within three months after the Tribunal becomes aware of the event mentioned in s 84(1)(a).

23    Interaction of Bankruptcy Act s 60(2) and ART Act s 84(1): The Tribunal decided that the existence of a stay under s 60(2) of the Bankruptcy Act was not determinative of the question under s 84(1)(b) of the ART Act of whether the applicant cannot continue the review application. Section 60(2) of the Bankruptcy Act provides for a stay to continue until the trustee in bankruptcy elects to prosecute or discontinue the action; however, s 84(1)(b) of the ART Act contemplates that the Tribunal may consider that the applicant may continue with the review application. The Tribunal decided that this apparent conflict should be resolved by interpreting s 84(1)(b) as the lead provision, and reading down s 60(2) so that the stay would not apply if the Tribunal ordered that an applicant may continue. However, the s 60(2) stay would continue with respect to an application for review that vests in the trustee or which would affect the bankruptcy or the property divisible among the creditors: ART [42]. For example, the Tribunal may consider that an applicant may continue with a review application because it concerns a personal licence, registration or social security benefit not yet received and because continuing the review application would not affect the bankruptcy in any way, or affect the property that is divisible among the review applicant’s creditors: ART [44].

24    Subject matter of Applicants’ review application could affect the bankruptcy: The Tribunal stated that, in this case, the issue in the review application was whether the Applicants should be granted a deferral of the filing fee associated with their application to set aside bankruptcy notices. A deferral would have the effect of delaying when the filing fee became due, but the fee would remain payable in accordance with reg 2.15(3) of the Regulations: ART [52]. If a deferral were granted, it would have the result of creating a debt payable by the Applicants. If that debt was not paid within the required time, the fee would be recoverable as a debt due to the Commonwealth, under reg 2.22 of the Regulations. Therefore, the subject matter of the application for review would affect the property divisible among the Applicants’ creditors or the amount of the provable debts: ART [53].

25    Review application should not continue: The Tribunal found that, as a potential creditor of the Applicants, the Commonwealth would have a right to share in the distribution of the Applicants’ estates, and the subject matter of the review application would therefore affect the property divisible among the Applicants’ creditors or the amount of the provable debts. Given the potential impact on the estates of the bankrupt Applicants, the stay under s 60(2) of the Bankruptcy Act should continue and control of the review application should pass to the Official Trustee. For that reason alone, the Tribunal considered that the Applicants could not continue with their application for review: ART [57]. A further factor in favour of the review application being transferred into the hands of the Official Trustee was to protect the Applicants’ creditors, by preventing the unnecessary dissipation of the assets of the Applicants’ estates in further litigation: ART [59].

26    The Tribunal noted that the Applicants contended that the decision to refuse to defer the filing fees “directly prevented the Applicants from challenging the nine bankruptcy notices, which in turn led to the sequestration order”. The Tribunal was not convinced of this contention. Nevertheless, on the Applicants’ case, the review application was directly related to the bankruptcy and could therefore affect the creditors. If that were the case, this was a matter for the Official Trustee who should be able to decide whether or not to continue with the review application: ART [58].

27    Effect of ART Act s 84: The Tribunal stated, in summary, that the application of s 84 of the ART Act had the following effect in this case: ART [61]:

    The Official Trustee may elect to continue with the application for review and make an application to the Tribunal to do so, under s 84(2) of the ART Act;

    If the Official Trustee applies to continue with the review application, the Tribunal may make appropriate orders under s 84(3) of the ART Act;

    The Official Trustee may elect to discontinue the application for review or take no action within the three month period ending on 9 December 2025, in which case the Tribunal may dismiss the application for review under s 84(4) of the ART Act.

28    As noted, the Tribunal made orders under s 84(4) on 20 January 2026.

B.3    Application for relief

29    It is convenient at this point to identify the relief sought by the Applicants, the sources of the claimed relief, and the grounds on which that relief is sought.

30    Title: The amended originating application is titled “Amended Originating Application for Relief under Section 39B of the [Judiciary Act]”. A footnote refers additionally to s 175(2) of the ART Act, ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), and s 21 of the Federal Court of Australia Act 1976 (Cth).

31    Details of Claims: The amended originating application states that the Applicants seek declaratory relief and/or judicial review of the orders of the Tribunal made on 20 January 2026 (see [1414] above, which the Applicants refer to as the “Orders”), which dismissed the Applicants’ application for review of the decision of the Registrar made on 27 February 2025 (see [8] above, which the Applicants refer to as the “Impugned Decision”).

32    Orders sought: The amended originating application states that the Applicants “seek determinations from the Court in support of declarations and/or judicial review affirming that:”

13.1    The Orders are affected by jurisdictional errors and/or errors of law, rendering them a nullity at law and/or making them appropriate to be set aside in the interests of justice.

13.2.     The Impugned Decision was affected by jurisdictional errors and/or errors of law, rendering it a nullity at law and/or making it appropriate to be set aside in the interests of justice.

13.3.     Through the Impugned Decision, Registrar Morgan perpetrated an equitable fraud upon the Applicants.

13.4.     The Registry’s failure to disclose or deny the existence of its correspondence with the VLSB Parties concerning the Impugned Decision is detrimental to the maintenance of public confidence in the administration of justice and a contravention of the Applicants’ due process rights arising from the Constitution and the International Covenant on Civil and Political Rights.

33    The Applicants also seek an extension of time.

34    The Applicants additionally seek the following orders:

15.1.     Order the ART to reimburse the Applicants’ filing fee in relation to their application to that Tribunal;

15.2.     Order Registrar Morgan to release copies of all documents in the Registry’s possession associated with or containing information about its communication with the VLSB Parties regarding the Applicants’ BN [Bankruptcy Notice] Applications and Payment Deferral Applications; and

15.3.     Make any other orders that it deems appropriate.

35    Grounds of review: The amended originating application sets out the following grounds of review.

36    Asserted jurisdictional errors: The Applicants contend that the Tribunal, the Official Trustee in Bankruptcy, and Registrar Morgan each committed various jurisdictional errors (Grounds for Review, Pt A).

    The asserted jurisdictional errors of the Tribunal and the Official Trustee concern the operation of ss 84(1)(b) and (4) of the ART Act.

    The Applicants contend that Registrar Morgan’s “conduct in making the Impugned Decision was an improper exercise of statutory discretion because it was:”

3.1.     Contrary to the dictates of justice;

3.2.     In breach of the rules of procedural fairness; and/or

3.3.     Unlawfully inconsiderate of the seriousness of the adverse consequences that may follow for the Applicants’ fundamental rights.

37    Asserted irrelevant considerations: The Applicants contend that the Tribunal took into account irrelevant considerations (Grounds for Review, Pt B).

    The Applicants contend that s 60(2) of the Bankruptcy Act applies only to proceedings in courts and not proceedings before administrative tribunals.

    The Applicants contend that the Tribunal erred in inviting the Official Trustee to make submissions concerning the manner in which it ought to exercise its discretion, and to assume control of the proceeding.

38    Asserted failure to take account of relevant considerations: The Applicants contend that the Tribunal failed to take account of 17 relevant considerations (Grounds for Review, Pt C). These include:

    The strength of the Applicants’ case in the Tribunal proceedings, and their capacity to prosecute their case in those proceedings;

    The “public interest in conclusively resolving allegations of government corruption or serious controversies arising therefrom”;

    The alternatives at its disposal, including “the appointment of a litigation supporter, its ability to determine the Application without the Applicants’ involvement, to refer the Proceedings to the Federal Court, or to adjourn the Proceedings pending the determination of the Applicants’ Appeal” (footnotes omitted).

39    Asserted error of law: The Applicants also contend that the Tribunal and the Official Trustee erred in “failing to grasp the utility of the [Tribunal] Proceedings and giving adequate regard to the operation of section 108 of the ART Act”.

C.    analysis

40    Before dealing with the Applicants’ arguments against the Tribunal’s orders, it is necessary to deal with two preliminary matters.

C.1    Recusal application?

41    Mr Kuksal’s 3 August letter asks for me to determine whether my continued adjudication of this proceeding is appropriate, and “feel[s] obliged to note” that the conduct of the matter gives rise to a reasonable apprehension of prejudgment. I have treated this letter as an application for me to recuse myself from determining the proceeding. This letter raises two broad matters:

    The matter referred to directly as giving rise to an apprehension of prejudgment is the email from my chambers to the parties stating that I was proposing to deal with the application on the papers, and the further exchange of correspondence (summarised in [17] above). Mr Kuksal states that the proposal to deal with the matters on the papers implied “a default inclination to summarily dismiss multiple orders of relief … without giving [the Applicants] an opportunity to be heard”. He states further that, to the extent that this correspondence indicates that I have firmly settled on dealing with the matter on the papers, I “ha[ve] already dismissed or committed to dismissing those applications without giving [the Applicants] an opportunity to be heard”.

    Mr Kuksal’s letter separately raises an issue about the Court being both a Second Respondent and the forum for deciding the application. He sought on behalf of the Applicants the Second Respondent to disclose the identity of the person who was providing instructions to the lawyers for the Second Respondent.

42    Apprehension of bias – general principles: The test of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: see for example Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 99; (2024) 304 FCR 370 at [29], quoting Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ, with Callinan J agreeing). To establish apprehended bias, a litigant must first identify what might have led the judge to decide the case otherwise than on its merits and then articulate “the logical connection between that matter and the feared deviation from the course of deciding the case on its merits”: see for example Alhalek v Quintiliani trading as Kells Lawyers (No 2) [2021] FCAFC 140 at [42], quoting Ebner at [8].

43    In the case of bias in the form of prejudgment, the question is whether the judge is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion: Bullmore at [38], quoting Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]‑[72] (Gleeson CJ and Gummow J). Further, although the fair-minded observer is not assumed to have a detailed knowledge of the law, or of the particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice: Bullmore at [37].

44    No reasonable apprehension of bias established: Neither of the matters referred to (summarised in [41] above) gives rise to any reasonable apprehension of bias.

45    Proposal to deal with matter on the papers: My chambers’ initial email does of course demonstrate a predisposition towards deciding the matter on the papers. However, a reasonable bystander would appreciate two features of this proceeding: first, that the only contradictor at that stage was the Court itself (which since has filed a submitting appearance); and second, that the proceeding seeks judicial review and declarations in relation to administrative decisions.

46    Those features are ordinary matters of judicial practice that would be known to the reasonable bystander, and support deciding the matter on the papers. First, the absence of contradictors reduces the need for an oral hearing, because the moving party may state its position in writing without the need to answer arguments put by an opposing party. (Even when the Court was on the record as a contradictor, the need for the Court to preserve its appearance of impartiality meant that it could be expected that it would not make submissions with the same freedom as a private party.) Second, the fact that these proceedings are seeking judicial review of an administrative decision of the Tribunal (and potentially of the Registrar) greatly reduces the scope for contested factual disputes: the Court decides only whether the Tribunal’s decision is lawful, and determines that issue on the basis of the materials before the Tribunal. (The same is true if the scope of the proceeding is expanded to include Registrar Morgan’s decision.)

47    Further, the circumstances do not give rise to any reasonable apprehension that I was so committed to deciding the matter on the papers that my mind was incapable of alteration. The Applicants were invited to make further written submissions, which gave them an opportunity to make arguments on why there should be an oral hearing if they wished. They have taken that opportunity in Mr Kuksal’s 3 August letter, and I have considered those arguments. More fundamentally, the predisposition towards deciding the matter on the papers is entirely neutral on what the result of the application may be; contrary to the Applicants’ arguments, it does not give rise to any reasonable apprehension that I have a default inclination towards dismissing the proceedings. The Applicants have not identified any “logical connection” between deciding a matter on the papers, and deciding it otherwise than on its merits. (And it is doubtful whether a “default inclination” would establish prejudgment in any event: the test is whether a judge’s mind is incapable of alteration, whatever arguments or evidence are put: see [43] above.)

48    The Applicants are also incorrect in stating that deciding the application on the papers would deprive them of an opportunity to be heard. It would deprive them of an oral hearing, but they have had and have exercised a reasonable opportunity to be heard in writing. Procedural fairness and the right to be heard, and the requirements of open justice, do not guarantee a right to an oral hearing in all cases: see further [64]-[65] below.

49    Court is both party and forum: The other matter raised by Mr Kuksal is that the Court (as Second Respondent) was both a party and a forum. It might be noted that it was the Applicants themselves who added the Court as the Second Respondent. That said, the Court was added as a party because it was the respondent in the proceedings in the Tribunal (which challenged a decision of a Registrar). The Tribunal does not play an active role in proceedings for judicial review of one of its decisions, and in many cases the respondent party before the Tribunal may be the appropriate contradictor in the judicial review proceedings: see for example Shafran v Repatriation Commission [2019] FCA 1833 at [22]-[23] (Logan J). However, in this case, the respondent in the Tribunal proceedings is also the forum in which the Applicants seek to challenge the Tribunal’s decision. In these circumstances, it is appropriate that the Court does not take an active part in defending these proceedings. As noted, I have not read the written submissions filed by the Court (the Second Respondent), and those submissions have been removed from the Court file. Mr Kuksal’s letter response to the Second Respondent’s submissions potentially reveals something of the arguments made in those submissions, but only at a very high level. As explained below, this proceeding turns on legal questions, unconnected with the areas of disputed facts sought to be raised by the Applicants.

50    In these circumstances, there is no reasonable apprehension that the joining of the Court as Second Respondent would cause me to determine this application otherwise than on its merits.

C.2    Dealing with the application without an oral hearing

51    The second preliminary matter is to explain why I have decided to deal with the application without an oral hearing.

52    Federal Court Act s 20A(2): By s 20A(2) of the Federal Court Act (read with s 20A(1)), a Judge “may deal with [a civil matter in the Court’s original jurisdiction] without an oral hearing (either with or without the consent of the parties) if satisfied that:”

(a)    the matter is frivolous or vexatious; or

(b)    the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or

(c)    determination of the matter would not be significantly aided by an oral hearing because:

(i)    there is no real issue of fact relevant to determination of the matter; and

(ii)    the legal arguments in relation to the matter can be dealt with adequately by written submissions.

53    Section 20A serves the purpose of avoiding the time and expense associated with an oral hearing in circumstances where an application is unmeritorious or if the outcome turns on legal argument and the material facts are not in dispute. The section was added to the Federal Court Act at the same time as ss 37M and 37N, which identify the overarching purpose of the civil practice and procedure provisions of the Court to be the just resolution of disputes according to law and “as quickly, inexpensively and efficiently as possible.” One of the objectives of these amendments was to secure “the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute” (see s 37M(2)(e)): Garrett v Duncan [2014] FCA 1260 at [11] (Tracey J) (leave to appeal refused: Garrett v Duncan [2015] FCA 255).

54    Here, the relevant paragraph is s 20A(2)(c), which contains two requirements. The first requirement directs attention not just to whether an issue of fact is relevant, but also to whether there is a “real” issue of fact. A key issue here is whether it is necessary to assess credibility or differing versions of events: see Wilmink v Westpac Banking Corporation [2015] FCAFC 17; (2015) 318 ALR 572 at [40] (the Court); Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2025] FCAFC 41 at [24] (the Court). The second requirement (that the legal arguments can be dealt with adequately in writing) is assessed by reference to the nature and complexity of the legal issues that are actually required to determine the matter. There is less need for an oral hearing when, as here, there is no contradictor: this is not a case where the differences between the arguments of different parties could be usefully explored in an oral hearing.

55    Applicant’s arguments for an oral hearing: Mr Kuksal’s letter of 3 August 2026 (with which Ms Xu and Mr Ansell have expressed agreement) contends that there should be an oral hearing in this matter, for the following reasons:

(a)    Mr Kuksal contends that the proceeding gives rise to real and serious contested issues of fact “including the content and effect of the Registry’s representations of 24 February 2025, whether the Registry’s reversal of 27 and 28 February 2025 was procured by its communication with the VLSB parties, and the purpose of the Federal Court [as Second Respondent] pressing for the dismissal of the review.” He contends that the factual record is incomplete, and that these factual issues are “intertwined with intricate legal arguments that cannot adequately be addressed by written submissions, still less within the ten pages the Court has allowed”.

(b)    Mr Kuksal contends further that the matter is not fit for a decision on the papers, because it “concerns the integrity of the administration of justice and carries allegations of impropriety on the part of officers of the Court; and it arises from, and seeks to remove the foundation of, a sequestration that the Impugned Decision itself produced.” Mr Kuksal contends that bankruptcy proceedings have a “quasi-penal character” (because they divest a person of property and alter their status), and therefore attract “the most exacting procedural protection and a presumptive entitlement to be heard orally”, referring to s 31(1) of the Bankruptcy Act. Mr Kuksal states that the Applicants were denied an oral hearing in the Tribunal, and “ought not to be denied an oral hearing in the very Court that is to review that denial”.

(c)    Mr Kuksal contends that, where a party has expressly opposed the determination of a matter on the papers, “that opposition is strong evidence that the issues cannot be resolved fairly without oral argument”. He contends that “procedural fairness and the right to be heard are an irreducible incident” of federal judicial power, and this irreducible content is “not to be displaced by rules of court, practice directions, or considerations of convenience”. He contends that “the right to be heard extends beyond the filing of written material to the opportunity to appear and present one’s case”.

56    Mr Kuksal’s letter also states that there should be an oral hearing because the Court was to be both a party and the decision-maker. However, the Second Respondent (the Court) has since filed a submitting notice, and its written submissions have been removed from the Court file. This factor is no longer relevant.

57    Proposed arguments about Registrar’s decision: The first two arguments for an oral hearing advanced by Mr Kuksal (summarised in [55](a) and (b) above) concern the arguments the Applicants wish to put about the Registrar’s decision made in February 2025. Those arguments certainly raise disputes of fact, but those factual issues do not amount to a real issue of fact relevant to determination of the matter, within s 20A(2)(c)(i) of the Federal Court Act. That is for two reasons.

58    Registrar’s decision irrelevant to lawfulness of Tribunal’s decision: First, the Applicants are seeking primarily to review the orders made by the Tribunal, rather than the initial decision of the Registrar: see [31] above. It is true that the amended originating application also alleges error in the Registrar’s decision, and seeks orders in relation to the Registrar’s decision, but those claims sit uneasily with the orders sought against the Tribunal’s decision. If the review of the Tribunal’s decision were successful, then the Applicants’ application for review of the Registrar’s decision would remain unperformed in law and the Tribunal would again conduct a review of the Registrar’s decision. The Tribunal’s jurisdiction to review the Registrar’s decision does not depend on whether that decision was validly made: see eSafety Commissioner v Baumgarten [2026] FCAFC 12; (2026) 315 FCR 44 at [166] (Mortimer CJ and Beach J), [230] (Horan J); Re Brian Lawlor Automotive Pty Ltd and Collector of Customs [1978] AATA 49; (1978) 1 ALD 167 at 181-182 (Brennan J). In other words, the Tribunal would still be under a duty to conduct merits review of the decision made in fact by Registrar Morgan, whether or not the Registrar’s decision was legally valid.

59    The Tribunal conducts merits review de novo, and makes the correct and preferable decision on the materials before it (and generally on the basis of the law as in force at the time of its decision): see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ); Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33; (2025) 281 CLR 327 at [15]-[17] (the Court). It follows that any legal error by the Registrar (as the primary decision-maker) would be irrelevant to the lawfulness of the Tribunal’s decision. That in turn means that the factual issues that the Applicants wish to agitate about the Registrar’s decision are not relevant to the determination of the application for review of the Tribunal’s decision.

60    To be clear, I am not suggesting that there is any proper basis for the Applicants’ very serious allegations against the Registrar. There does appear to be a marked difference between the advice apparently provided to the Applicants on 24 February 2025 (which said that it was not necessary to provide a statement of financial circumstances), and the reasoning in the Registrar’s decision on 27 February 2025. However, that difference does not suggest any impropriety by the Registrar. The application was only to defer the fees, not to waive them. That meant the Applicants would need to pay the fees within 28 days or within some other period approved in writing (Regulations reg 2.15(3)). The Applicants’ financial capacity was therefore obviously relevant to whether the deferral should be allowed. The bare fact that unrepresented litigants have raised allegations of fraud does not mean that there must be an oral hearing to determine whether those allegations have any substance: see [79](b) below.

61    No utility in reviewing Registrar’s decision: Second, even if the amended originating application could be treated as seeking judicial review of two separate decisions by the Tribunal and by the Registrar, the factual issues sought to be raised against the Registrar would still not be a real issue of fact relevant to determining this matter, within s 20A(2)(c)(i) of the Federal Court Act.

62    As noted in [58] above, it is doubtful whether there is any utility in reviewing the lawfulness of the Registrar’s decision, when the Applicants are also challenging the lawfulness of the Tribunal’s decision made in conducting merits review of the Registrar’s decision. As explained, the validity of the Registrar’s decision does not affect the jurisdiction of the Tribunal to review that decision, so the lawfulness of the Tribunal’s decision would need to be examined in any event. And if the Tribunal’s decision was not lawfully made, then it would be under a duty to conduct a further review of the Registrar’s decision and the Tribunal’s decision would overtake the decision of the Registrar. But if the Tribunal’s decision was lawfully made, then the Applicants would have elected to seek merits review of the Registrar’s decision and would have received a review conducted in accordance with law (albeit a review cut short by the operation of the Bankruptcy Act and the election of the Official Trustee not to continue the proceedings). In that situation, there would be overwhelming discretionary reasons not to grant any relief in relation to the Registrar’s decision. That is because if the availability of merits review is generally a reason to refuse to conduct judicial review of a primary decision in the exercise of discretion (see Kant v Chief Executive Officer of the National Anti-Corruption Commission [2026] FCA 13 at [58]-[59] (Horan J)), then it must follow that an unsuccessful application for merits review is also a reason not to conduct judicial review of the primary decision (at least when that merits review was conducted lawfully).

63    Further, as explained in section C.3 below, there is no utility in granting relief in relation to either the Tribunal’s decision or the Registrar’s decision, on the substance of the Applicants’ arguments. The fee deferral application related to proposed proceedings to challenge bankruptcy notices that have since been acted on, and sequestration orders made. Success in these review proceedings would not disturb those sequestration orders. Accordingly, there is no utility in now seeking to set aside the decision of the Tribunal, or the decision of the Registrar. The application of s 20A takes account of the overarching purpose in ss 37 and 37M of the Federal Court Act to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible.

64    No unqualified right to an oral hearing: The Applicants’ other argument in favour of an oral hearing is that (it is said) the right to appear and present one’s case is an irreducible right to procedural fairness that cannot be displaced by court rules, practice directions or considerations of convenience: see [55](c) above. However, it is simply incorrect to assert that there is an unqualified right to an oral hearing, whether deriving from the Constitution or elsewhere. Here, s 20A of the Federal Court Act qualifies the general position that the Court exercises jurisdiction in open court, and the Applicants have not sought to challenge the validity of that provision. In SDCV v Director-General of Security [2022] HCA 32; (2022) 277 CLR 241 at [53], Kiefel CJ, Keane and Gleeson JJ stated that the requirements of procedural fairness are “adaptable to the environment in which it is applied”, referring (among other cases) to Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [156]-[157] (Hayne, Crennan, Kiefel and Bell JJ). That general principle is consistent with MJZP v Director-General of Security [2025] HCA 26; (2025) 99 ALJR 1108 at [19], where six members of the High Court stated that procedural fairness is concerned with “practical injustice” to a party in the case, not abstract conceptions of possible unfairness.

65    As noted, the whole purpose of s 20A is to enable the Court to decide a matter without an oral hearing in appropriate cases if the outcome turns on legal argument and there is no real dispute of fact on relevant matters. The scheme of s 20A is that, in these circumstances, there is no practical injustice in determining a matter without an oral hearing. It is entirely neutral that the Applicants oppose the matter being determined on the papers: s 20A expressly confers power to deal with a matter without an oral hearing “either with or without the consent of the parties” (emphasis added).

66    Legal arguments can be dealt with adequately without an oral hearing: I am also satisfied that the legal arguments can be dealt with adequately without an oral hearing (see Federal Court Act s 20A(2)(c)(ii)). The Applicants contend that their intricate legal arguments cannot be adequately addressed by written submissions; however, their complex arguments concern the Registrar’s decision and an elaborate taxonomy of estoppel. As already explained, there is real doubt whether there is any utility in examining the Registrar’s decision. In any event, as explained in section C.3 below, this application can be dealt with very simply on the grounds of futility.

67    Applicants have had a reasonable opportunity to put their case: Finally on the s 20A issue, I consider that the Applicants have had a reasonable opportunity to put their case. The amended originating application sets out detailed arguments against the Tribunal’s decision. The Applicants filed extensive written submissions on 1 June 2026 (albeit very little that is relevant to the Tribunal’s decision). The Applicants were then invited to file ten-page written submissions, with the hope that they would draw my attention to the main points in their argument. They have not taken up that opportunity.

68    I note that Mr Kuksal has foreshadowed at several points applying for an adjournment. However, the medical certificate he provided (set out in [17](e) above) is in much too general terms to support granting an adjournment. The Applicants have not actually applied for an adjournment, nor have they filed any documents with the Court since Mr Kuksal’s 3 August letter. It is true that his 3 August letter sought to require that I make an initial decision on the papers on whether I would continue hearing the application. However, Mr Kuksal and the Applicants do not get to dictate how the Court will decide applications before it. Nothing in the communications from my chambers should have given the impression that I was acceding to Mr Kuksal’s demands.

69    The Applicants are not legally represented. Often the Court takes appropriate steps to ensure, as far as reasonably practicable, that an unrepresented litigant has sufficient information about the practice and procedure of the particular court to obtain a fair hearing. However, not all unrepresented litigants are alike: see Lee v Huo [2026] NSWCA 15 at [72] (Bell CJ, with Mitchelmore and Stern JJA agreeing). Here, Mr Ansell is a qualified lawyer, although he does not have a current practising certificate, and Mr Kuksal and Ms Xu are experienced litigants in this and other courts. I am satisfied that the Applicants’ arguments on this application have not been hampered by a lack of knowledge of the Court’s practice and procedure.

C.3    Applicants’ challenge to the Tribunal’s Orders

70    I turn now to the substance of the Applicants’ arguments against the Tribunal’s Orders (including its November 2025 decision under s 84(1)(b) of the ART Act) and the Registrar’s initial decision.

71    Relief sought against Tribunal’s Orders and Registrar’s Decision would be futile: The amended originating application seeks orders setting aside the Tribunal’s Orders and the Registrar’s initial decision: see amended originating application [13.1] and [13.2], set out in [32] above. However, judicial review remedies are discretionary, and will not be granted if the relief sought would be futile: see for example R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400 (the Court); Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [175] (Moore and Lander JJ); Simjanovska v Department of Human Services [2019] FCA 499 at [141](2) (Perry J).

72    In this case, there is no utility in setting aside the Tribunal’s Orders (or its November 2025 decision), nor is there any utility in setting aside the initial decision of Registrar Morgan.

(a)    The Applicants sought to challenge the validity of the bankruptcy notices, which were served on the Applicants by email on 23 January 2025 (and which were also received by them by registered post on 4 or 6 February 2025): see [5]-[66] above.

(b)    The Applicants applied for fee deferral, but that application was refused on 27 February 2025. Consequently, the Applicants’ proposed applications to set aside the bankruptcy notices were not accepted for filing: see [7]-[9] above.

(c)    The VLSB issued a creditor’s petition on 28 February 2025, which relied on the Applicants’ failure to comply with the bankruptcy notices as the relevant acts of bankruptcy: see [10] above.

(d)    On 27 August 2025, Downes J made sequestration orders against the estates of the Applicants. On 12 May 2026, the Full Court dismissed an appeal from those orders: see [12], [16] above.

73    The apparent purpose of the Applicants’ challenge to the fee deferral decision was to enable them to bring proceedings to challenge the validity of bankruptcy notices, but by now those notices have been acted on and sequestration orders made. Mr Kuksal’s 3 August letter contends that this proceeding seeks to remove the foundation of the sequestration orders. But that is not legally possible: those sequestration orders have been upheld by the Full Court (whose decision is binding on me) and, as orders of a superior court, those orders are not subject to collateral attack.

74    That analysis is confirmed by Kuksal FC. In the Full Court, the Applicants filed an interlocutory application that sought (among other things) orders that the Full Court hear their application for judicial review and declaratory relief in relation to the dismissal of their applications to the Tribunal for review of Registrar Morgan’s decision (that is, this application): see Kuksal FC at [212] (para 3). The Full Court held that the relief sought in para 3 of the interlocutory application was misconceived, for three independent reasons (Kuksal FC at [253]):

The so-called “ART Review Application” is or would be in the Court’s original jurisdiction. Further, it is unclear when and what relief might be obtained. Further, none of this could amount to demonstrating any error on the part of Downes J on the material then before her at the time she made the sequestration orders. (emphasis added)

75    In other words, the Full Court held that, even if the Applicants were successful in the application seeking review of the Tribunal’s decision (or Registrar Morgan’s decision, for that matter), that would not disturb the sequestration orders made by Downes J. The Applicants’ proceedings in the Tribunal did not (and could not) change the reality that, at the time of the sequestration orders, there were completed acts of bankruptcy having occurred around 13 February 2025: Kuksal FC at [291].

76    An independent difficulty with the Applicants’ argument is that the Full Court in Kuksal FC held that the attempted applications by the Applicants to challenge the bankruptcy notices would have been made out of time, even if those applications had been accepted for filing. The time for bringing proceedings to challenge the bankruptcy notices was measured from the date of the receipt of those notices by email, not the later date of receipt by post: Kuksal FC at [133]-[134], [150]. The Applicants contend that the Full Court’s reasoning is in error, but I am bound by its decision (and agree with it). Therefore, it is incorrect for the Applicants to say that the Registrar’s decision refusing fee deferral is the reason that the sequestration order was made: their proposed applications to set aside the bankruptcy notices were already out of time at the point that the Applicants sought to file them.

77    Proposed declarations do not have any foreseeable consequences: The next matter is the declarations sought by the Applicants; namely:

13.3.     Through the Impugned Decision, Registrar Morgan perpetrated an equitable fraud upon the Applicants.

13.4.     The Registry’s failure to disclose or deny the existence of its correspondence with the VLSB Parties concerning the Impugned Decision is detrimental to the maintenance of public confidence in the administration of justice and a contravention of the Applicants’ due process rights arising from the Constitution and the International Covenant on Civil and Political Rights.

78    Declaratory relief is directed to determining legal controversies, and the declaration must be seen at the time of its making to produce foreseeable consequences for the parties: see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Union NSW v New South Wales [2023] HCA 4; (2023) 277 CLR 627 at [16] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ).

79    Here, the declarations sought by the Applicants would not produce any foreseeable consequences for the parties.

(a)    The Court would not issue a bare declaration that an “equitable fraud” has been perpetrated on the Applicants, when there is no possible effect on the Applicants’ rights or legal interests that could follow from such an order. A declaration is not made to express general condemnation of a person’s conduct, when nothing follows from this in the form of legal rights and obligations (and interests): see Scott v Pedler [2003] FCA 650; (2003) 74 ALD 424 at [47]-[48] (Gray ACJ) (appeal dismissed: Scott v Pedler [2004] FCAFC 67; (2004) 80 ALD 283). This case is unlike Ainsworth, where a declaration was made to remedy the detrimental effect of an administrative decision on the person’s reputation: see Ainsworth at 582. Again, there is nothing in the evidence before the Court that would support an allegation that the Registrar engaged in any form of fraud: on the face of things, the Applicants’ financial position would seem to be highly relevant to any decision on whether to defer filing fees: see [60] above.

(b)    Nor would the Court issue a declaration in the terms sought in para [13.4] of the amended originating application (set out above). The bare fact that unrepresented litigants have made serious allegations against Court officers does not mean there is some dispute that requires resolution. When a litigant in person seeks to raise a claim of fraud, the Court must be satisfied that there is some evidentiary basis for the claim made: Davies, in the matter of an application by Davies [2025] FCA 1552 at [9] (Colvin J). In this case, nothing in the evidence provided by the Applicants rises above speculation that contact by the VLSB with the Court must have caused the Registrar to take a different position from that previously communicated to the Applicants. But, as just noted, the Registrar’s approach seems permitted if not compelled by the nature of the deferral power in reg 2.15 of the Regulations. And, contrary to the Applicants’ arguments, there is no constitutional right to due process that is implicated by this case, nor is there any Commonwealth or other Australian law that would give domestic effect to any due process rights contained in the International Covenant on Civil and Political Rights.

80    Other orders: Finally, there is no proper basis for making the other orders sought by the Applicants (set out in [34] above), particularly given the primary relief is refused.

81    The Applicants have not demonstrated any basis for a refund of the filing fee in relation to their review application in the Tribunal. The Tribunal has power to charge fees in accordance with its rules for filing review applications, and may dismiss an application if a fee is not paid in accordance with those rules (ART Act ss 296(2)(a), 98, respectively). The Administrative Review Tribunal Rules 2024 (Cth) (ART Rules) provided in r 22 for the payment of an application fee, and provided in r 24 that the Tribunal was not required to deal with an application that was not accompanied by the prescribed fee unless and until the fee was paid. Rule 32 of the ART Rules set out the situations in which fees may be refunded, either in whole or part (such as if the decision was not reviewable by the Tribunal: r 32(1) item 4). None of the situations in r 32 would apply to this case.

82    Equally, there is no basis for an order requiring the Registry to release all documents in its possession associated with or containing information about communications between the VLSB and the Registry about the Applicants’ applications regarding the bankruptcy notice applications and payment deferral applications. First, as already explained, it would be futile to grant any relief in relation to the Registrar’s decision, because that decision has been overtaken by the sequestration order made by Downes J and confirmed by the Full Court on appeal. Second, an order of this type could not be justified on the evidence before the Court. As noted by the Full Court in Kuksal FC at [168], the Applicants do not have an unqualified right to demand the Court to compel the production of documents that are disproportionate to, and do not conform with, the dictates of the justice of the case, having regard to the real issues in dispute.

83    Response to Applicants’ grounds for review: Given these conclusions, it is not necessary to address the Applicants’ grounds for review: relief would be refused for the reasons set out above, even if the Applicants’ arguments were entirely correct. That is not to suggest that the Applicants’ arguments have merit. The following short observations can be made.

84    Whether any jurisdictional errors: The Applicants contend that the Tribunal failed to understand the operation of s 84(1)(b) of the ART Act, and contend separately that s 60(2) of the Bankruptcy Act is confined to court proceedings.

    However, the Applicants’ argument about s 60(2) runs counter to McCallum v Commissioner of Taxation [1997] FCA 533; (1997) 75 FCR 458, which held that an application for review in the Administrative Appeals Tribunal was a “legal proceeding” within s 134(1)(j) of the Bankruptcy Act: McCallum at 472 (Lehane J, with Whitlam J agreeing). By parity of reasoning, an application for review in the Tribunal must also be a “civil proceeding” within s 60(2) (read with s 60(5)) of the Bankruptcy Act.

    The Tribunal was therefore correct to approach the application of s 84(1)(b) of the ART Act on the basis that the Applicants’ review proceeding was stayed under s 60(2) of the Bankruptcy Act. The Tribunal found (in the Applicants’ favour) that this stay did not automatically determine whether a review proceeding should not continue under s 84(1)(b) of the ART Act, and that it was necessary to consider the nature of the review proceeding. That approach is supported by the extrinsic materials referred to in ART [44]-[45].

    The Tribunal concluded that a deferral application could affect the estate of the Applicants, because the Commonwealth would become a debtor if the deferred fees were not paid. Therefore, control of the review application passed to the Official Trustee: see [24]-[26] above. Implicit in this reasoning is that the right to bring the review proceedings was a right or power in respect of the property divisible among the creditors that would otherwise have been exercisable by the bankrupt but for the bankruptcy (see Bankruptcy Act ss 58(1), 116(1)(b)). That approach is consistent with statements that actions personal to the bankrupt which have no implications for the estate are not “property” and do not vest in the trustee under s 58 of the Bankruptcy Act: see Griffiths v Civil Aviation Authority [1996] FCA 1502; (1996) 67 FCR 301 at 318 (Einfeld J), 323 (Cooper J). For example, in Randall v Deputy Commissioner of Taxation [2008] FCA 1939; (2008) 174 FCR 441, Lander J held that a right to sue for wrongful dismissal remained with the bankrupt and was not a right that could be exercised beneficially for the bankrupt’s creditors. A proceeding to seek deferral of a filing fee, so as to enable proceedings to be brought to challenge bankruptcy notices, is of a very different character to the personal rights considered in Griffiths and Randall.

85    The Applicants contend that the Tribunal erred in determining that the sequestration orders made by Downes J, on their own, made the Applicants ineligible to make an application under s 84(4)(b) of the ART Act. However, there is no error: if the Tribunal considers that a bankrupt person cannot continue with a substantive application under s 84(1)(b), it cannot be supposed that s 84 would somehow permit the bankrupt person to bring an application to continue the very proceedings that the Tribunal has determined that the bankrupt person cannot continue. (The Applicants also refer to the Official Trustee making this error; however, the decision under s 84(4) of the ART Act was made by the Tribunal, not the Official Trustee.)

86    The Applicants separately contend that Registrar Morgan’s decision was invalid, because it was “contrary to the dictates of justice”, in breach of the rules of procedural fairness, and/or “unlawfully inconsiderate of the adverse consequences that may follow for the Applicants’ fundamental rights”. The first and third of these arguments do not raise any arguable jurisdictional error. The argument as to procedural fairness proceeds on the basis of the Applicants relying on a statement by a Registry official; however, that statement is not borne out by the Court’s policy documents (set out in [7](b) above), which only stated that a Registrar or authorised officer “can” defer payment if, in his or her opinion, the need to file the document is so urgent that it overrides the requirement to pay the filing fee before the document is filed. The Applicants were not entitled to assume that their own assessment of urgency would be acted on by the Registrar. (And, as noted, the applications were already out of time at the point that the Applicants sought to file them: see [76] above.)

87    In any event, as already explained, it would be futile to grant relief in respect of the Tribunal’s Orders, or the Registrar’s decision.

88    Irrelevant considerations arguments: Although the Applicants assert that the Tribunal took into account irrelevant considerations, their arguments on this point are actually that the Tribunal erred in finding that s 60(2) of the Bankruptcy Act applied to Tribunal proceedings, and erred in inviting the Official Trustee to make submissions as to the s 84(1)(b) discretion, and to assume control over the proceeding. Those arguments are dealt with in [84]-[85] above.

89    No failure to take account of relevant considerations: The Applicants then contend that the Tribunal and the Official Trustee erred by failing to take account of certain matters. Again, the Official Trustee did not make any decision affecting the Applicants’ rights; only the Tribunal did. A consideration is “relevant” for these purposes if it is one that the decision-maker is bound to take into account. When the considerations that must be taken into account are not expressly stated, they are determined by implication from the subject-matter, scope and purpose of the relevant statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (Mason J). The Applicants’ asserted mandatory relevant considerations are as follows (footnotes omitted):

7.1.     The strength of the Applicants’ case in the Proceedings.

7.2.     The Applicants’ capacity to prosecute their case in the Proceedings.

7.3.     The advanced stage to which the Proceedings had progressed and the absence of any appreciable work left to be performed in the prosecution of the Proceedings.

7.4.     The Registry’s decision to waive the filing fee for the lodgment of the Appeal in circumstances identical to those existing at the time of the Impugned Decision.

7.5.     The significance of the oversight framework established by the Operative Regulation.

7.6.     The public interest in conclusively resolving allegations of government corruption or serious controversies arising therefrom.

7.7.     The high-profile nature of the matter and the widespread awareness of the controversy surrounding the Proceedings.

7.8.     The legislative intent evident from a rational consideration of section 84 of the ART Act as a whole.

7.9.     The objective underpinning the establishment of the Tribunal stipulated in section 9 of the ART Act.

7.10.     The provisions of the ART Act contained in Part 4, Division 5, concerning the Tribunal Procedure.

7.11.     The alternatives at its disposal, including the appointment of a litigation supporter, its ability to determine the Application without the Applicants’ involvement, to refer the Proceedings to the Federal Court, or to adjourn the Proceedings pending the determination of the Applicants’ Appeal.

7.12.     The impact of the orders on the Applicants’ human rights.

7.13.     The grounds relied upon by the Applicants in their appeal (the “Appeal”) against the Sequestration Orders and related decisions.

7.14.     Chief Justice Mortimer’s determination that:

7.14.1.    Downes J’s findings in relation to the Sequestration Orders gave rise to a reasonable apprehension of bias in respect of Her Honour’s continued involvement in the Applicants’ related proceeding against the VLSB Parties (the “Related Proceeding”) pursuant to section 15 of the Federal Court Act following the Applicants’ complaints against Downes J; and

7.14.2.    The Related Proceeding carried sufficient importance for it to be referred to the Full Court of the Federal Court (in its original jurisdiction) for determination, pursuant to section 20(1A) of the Federal Court Act.

7.15.    The Federal Court had agreed to list the Applicants’ application for a stay of all proceedings under the Sequestration Orders for a hearing.

7.16.     The absence of any prejudice to the Federal Court (which had initiated the process that culminated in the making of the Orders) or any other person.

7.17.     The Federal Court’s admitted purpose in adopting an adversarial role in the [Tribunal] Proceedings.

90    Plainly, the Tribunal was required to consider the purposes of s 84 of the ART Act, in the context of that Act as a whole (see [7.8]-[7.10] above); however, it did so. Alternative measures are matters that the Tribunal could consider, but it was not required to do so (see [7.11]). Many of the above matters are arguably irrelevant to the exercise of the s 84 power, and certainly are not matters that the Tribunal was bound to consider (see [7.1]-[7.5], [7.12]-[7.17]). Two of the matters rest on dubious factual foundations (see [7.6]-[7.7]), and are not legally relevant to the issues raised by s 84(1)(b) of the ART Act in any event.

91    No error of law: Finally, the Applicants contend that the Tribunal and the Official Trustee erred by failing to grasp the utility of the Tribunal Proceedings and giving adequate regard to the operation of s 108 of the ART Act. Section 108 of the ART Act deals with the effect of a Tribunal decision that varies a reviewable decision or makes a decision in substitution for a reviewable decision. However, there is no error by the Tribunal. (Again, the position of the Official Trustee is not relevant.)

    Section 108 of the ART Act might have been relevant if the Tribunal had reached the merits of the Registrar’s decision. However, the Tribunal correctly appreciated that, once the Applicants were made bankrupt, a prior issue was whether the review proceedings could continue, under s 84 of the ART Act.

    The review application was brought in the Tribunal in March 2025, after the creditor’s petition had been issued in the Federal Court. Accordingly, even before the Tribunal proceedings had been commenced, the objective fact was that the Applicants had each committed an “act of bankruptcy”, because they had not complied with the bankruptcy notices, and had not applied to have them set aside: Kuksal FC at [70]. This reduced the weight that could be given to these Tribunal proceedings in assessing under s 52(2)(b) of the Bankruptcy Act whether there was “sufficient cause” not to make a sequestration order: see Kuksal FC at [150]. Thus, there was a lack of utility in the Tribunal proceedings from the outset. Further, the Tribunal proceedings (even if successful) would not result in the bankruptcy notices being set aside, but would rather remove a bar to filing applications to have those notices set aside.

    The lack of utility in the Tribunal proceedings was compounded by the fact that a sequestration order was made before the Tribunal conducted a hearing. The Tribunal made directions for filing evidence and submissions in its proceedings in May 2025. The Applicants failed to comply with some of those directions (ART [8]). Downes J made sequestration orders in August 2025. The Tribunal heard argument on the effect of s 84 of the ART Act in November 2025 (ART [13]).

D.    Conclusion

92    For these reasons, the Applicants’ amended originating application must be dismissed.

Associate:

Dated:    16 September 2026