Federal Court of Australia

Majak v Barnden [2026] FCA 1647

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 6 October 2026 is dismissed.

2.    The applicant is to pay the respondent's costs of and incidental to the interlocutory application.

3.    The costs referred to in order 2 are to be paid on a lump sum basis, in an amount as determined by a Registrar, if not first agreed.

4.    The determination referred to in order 3 is not to take place until further order of the Court.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The applicant, Zofia Bozena Majak, has applied for an extension of time within which to seek leave to appeal against orders made in Majak v Barnden [2026] FCA 363 summarily dismissing her claim against the respondent, Andrew James Barnden in his capacity as her trustee in bankruptcy. By that claim, Ms Majak sought determination of 'whether [Mr Barnden] lawfully asserted and maintained bankruptcy administration in circumstances where insolvency did not exist or had ceased to exist as a jurisdictional fact'.

2    By an interlocutory application filed on 6 October 2026, Ms Majak seeks to restrain the solicitor acting for Mr Barnden in these proceedings, Christopher Farah, from continuing to act in that capacity (restraint application). Ms Majak contends that a fair-minded and reasonably informed member of the public might (or would) conclude that the proper administration of justice requires that Mr Farah be prevented from acting for Mr Barnden, in the interests of the protection of the integrity of the judicial process and the appearance of justice.

3    For the following reasons the restraint application must be dismissed, and Ms Majak must pay Mr Barnden's costs of that application.

Background

4    Ms Majak is an undischarged bankrupt.

5    Earlier this year, Ms Majak filed several proceedings in this Court over the period of approximately one month, namely, SAD 14 of 2026, SAD 26 of 2026 and SAD 35 of 2026. Those proceedings were described by the primary judge at [3], [4] and [6] in the following manner:

SAD 14 of 2026 is an action against [Ms Majak's] trustee in bankruptcy contending [Ms Majak] is not insolvent. That question was determined when an appeal against a sequestration order made against [Ms Majak] was dismissed on 30 June 2023.

SAD 26 of 2026 is an action against [Ms Majak's] former partner [and a court appointed receiver]. A Receiver was appointed over property, or part thereof, of that relationship by the Federal Circuit and Family Court of Australia. To the extent [Ms Majak] has a complaint against either the Receiver, Mr Vouris, or her former partner, Mr Rose, it is the FCFCoA which has jurisdiction, not this Court.

…

The third proceeding, SAD 35 of 2026, is against the State of Victoria. These proceedings concern orders made by Riord[a]n J in 2017, in which his Honour transferred part of the proceedings before the Supreme Court of Victoria to the FCFCoA. No challenge was made to that order at the time, nor was any challenge to that order made in either the Supreme Court of Victoria or the FCFCoA.

6    The reference in SAD 26 of 2026 to a court-appointed receiver is a reference to John Vouris. Mr Vouris was appointed as receiver of Ms Majak's income and property by the Federal Circuit and Family Court of Australia (FCFCoA) on 5 August 2022 in proceedings under the Family Law Act 1975 (Cth) to give effect to various costs and other orders. Mr Vouris was relevantly authorised by those orders to sell any assets and to apply the net proceeds of sale in payment of his fees and the costs and expenses of any such sale, and then in payment of specified costs orders. The orders also provided that the balance of any proceeds was to be paid to Ms Majak.

7    Ms Majak filed an interlocutory application in SAD 26 of 2026 in which she sought injunctive relief pending determination of that proceeding.

8    A first case management hearing for SAD 14 of 2026, SAD 26 of 2026 and SAD 35 of 2026 was listed before the primary judge on 12 March 2026. Shortly before that case management hearing was to commence, Mr Farah, who was acting for Mr Vouris in SAD 26 of 2026, sent an email addressed to the associate of the primary judge and copied in the parties to the matter. Attached to that email were some written submissions in support of a contention that SAD 26 of 2026 be summarily dismissed by reason that it constituted an abuse of process or because Ms Majak did not have standing on account of her status as an undischarged bankrupt. A paragraph in those submissions stated that they were adopted by Mr Barnden in SAD 14 of 2026 who was also represented by Mr Farah. Additionally, the submissions contained a paragraph in which it was contended that SAD 14 of 2026 could and should also be dismissed.

9    In his email to the primary judge's associate, Mr Farah also attached an affidavit sworn by him. Annexed to that affidavit was a National Personal Insolvency Index search concerning Ms Majak, which relevantly demonstrated that she was still an undischarged bankrupt. In his email, Mr Farah said that he did not ask or expect the primary judge to consider the attached materials before the case management hearing, having regard to the time at which they were provided.

10    After hearing from Ms Majak at the case management hearing, and then confirming with Mr Farah that his clients did apply for summary judgment in both SAD 14 of 2026 and SAD 26 of 2026, the primary judge made orders summarily dismissing both of those proceedings.

11    Ms Majak now seeks an extension of time within which to apply for leave to appeal against the order that the proceeding in SAD 14 of 2026 be summarily dismissed. In her draft notice of appeal, Ms Majak seeks to rely on six grounds of appeal. Those grounds raise contentions that the primary judge did not afford procedural fairness to Ms Majak, failed to determine aspects of her claim against Mr Barnden, and erred in concluding that she was insolvent.

12    In a separate proceeding, SAD 190 of 2026, Ms Majak also seeks an extension of time within which to apply for leave to appeal against the summary dismissal of SAD 26 of 2026. In SAD 190 of 2026, Ms Majak seeks to rely on grounds of appeal that are broadly similar to those upon which she wishes to rely in this matter. Mr Vouris, the first respondent in SAD 190 of 2026, is also represented by Mr Farah.

The restraint application

13    As I have already said, by the restraint application Ms Majak seeks an order that Mr Farah be restrained from acting on behalf of Mr Barnden in this proceeding. In the alternative, she seeks an order that Mr Barnden obtain legal representation that is separate from the legal representation for the receiver, Mr Vouris, in SAD 190 of 2026. Ms Majak's restraint application is supported by an affidavit she affirmed on 12 October 2026. In that affidavit, Ms Majak sets out what she says is the purpose of the restraint application and the reasons why she commenced SAD 14 of 2026 and SAD 26 of 2026.

Relevant principles to be applied

14    This Court has the power to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction: Porter v Dyer [2022] FCAFC 116 at [113] (Lee J, Besanko and Abraham JJ agreeing); citing Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [39] and referring with approval to a summary of the relevant principles by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 at [76].

15    Ms Majak does not contend that there is a risk that if Mr Farah were to continue to act for Mr Barnden in this proceeding, then he may use, or would be bound to use, information he holds subject to a relevant duty of confidence, or that he would otherwise be in breach of some duty of loyalty. Accordingly, Ms Majak's restraint application may be taken to rely on the third ground upon which such applications are generally made, as identified by Brooking JA in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501 at [60]. That ground requires consideration of whether a fair-minded, reasonably informed member of the public might (or would) conclude that the proper administration of justice requires that Mr Farah be prevented from acting, in the interests of the protection of the integrity of the judicial process and the appearance of justice: Porter at [113] to [114] (Lee J, Besanko and Abraham JJ agreeing). As Jackson and Moore JJ noted in Maclean v Brylewski [2025] FCAFC 133; (2025) 312 FCR 318 at [24], there has been some controversy as to whether the relevant standard is 'would conclude' or 'might conclude'. However, and as will be seen, nothing turns on which of those standards must be applied.

16    In Maclean at [18], Jackson and Moore JJ also observed that the jurisdiction concerns independence and, quoting from Oceanic v HIH [1999] NSWSC 292 at [48], said that it 'arises from the court's concern that it should have the assistance of independent legal representation for the litigating parties'. Their Honours further observed at [18] that '[t]he integrity of the judicial process is "undermined if solicitors or counsel do not possess the objectivity and independence which their professional responsibilities and obligations to the Court require of them"', quoting from Kooky Garments Ltd v Charlton [1993] NZHC 2760; [1994] 1 NZLR 587 at 590.

17    The power to restrain a legal practitioner from acting is an exceptional one, which should be exercised with caution. In Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791 at [9], Pagone J explained that:

[i]t is a high test with a heavy burden imposed upon a party making the application. The jurisdiction has been described as 'extraordinary and protective' (Woodgate v Leonard [2007] NSWSC 495, [37]), of an 'exceptional nature' (TJ Board & Sons Pty Ltd v Castello [2008] VSC 91, [30]) and to be applied only in a 'clear' case (Bransdon v Davis & Gilbert (2007) 212 FLR 28, [70]): see also GE Dal Pont, Lawyers' Professional Responsibility (Thomson Reuters, 5th Edition) [17.20], p538. There are many reasons for a heavy burden to be satisfied by the party making such an application. One reason is that a court should not make an order that interferes with the relation between the opposing party and that party's chosen and trusted legal practitioners. Public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence. The proper administration of justice is assisted by trust and confidence existing between litigants and their legal representatives. The legal practitioner plays a crucial role in conveying the client's case to a court for adjudication and the confidence and trust of the client in the chosen legal practitioner is an essential aspect of that role. An order restraining a legal practitioner from acting for a client interferes with that role, adversely affects the client and may unjustifiably interfere with the proper conduct of the client's case. It may also have the effect of causing irreparable harm to the client's case and is apt to undermine the proper administration of justice in all but the clearest cases. To restrain the legal practitioners from acting for a party in continuing proceedings may also confer an unjustifiable forensic advantage upon the party seeking the restraint.

Ms Majak's submissions

18    With due respect to Ms Majak, who represented herself at the hearing of the restraint application, it was very difficult to follow her written and oral submissions. However, and hopefully without doing disservice to those submissions, she appears to contend in essence that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Farah be prevented from acting for Mr Barnden, in the interests of the protection of the integrity of the judicial process and the appearance of justice.

19    Ms Majak's written and oral submissions appear to raise two main contentions.

20    Firstly, Ms Majak appears to submit that this proceeding will involve an examination of the 'forensic steps' taken by Mr Farah on behalf of Mr Barnden that ultimately led to the primary judge's decision to summarily dismiss the proceeding in SAD 14 of 2026. According to Ms Majak, the Court should restrain Mr Farah from continuing to act to ensure that the issues raised in her application for an extension of time 'are determined independently of the continued appearance of [Mr Farah] whose own forensic conduct forms part of the matters requiring judicial examination'. Ms Majak says that the 'continued appearance of Mr Farah places him in the position of advocating for the correctness of procedural steps and forensic decisions that the appeals themselves require the Court to examine'.

21    Secondly, Ms Majak contends that SAD 14 of 2026 and SAD 26 of 2026 concerned the exercise of powers by two different statutory officeholders. However, she says that Mr Farah advanced substantially the same submissions in both proceedings as to why they should be summarily dismissed. According to Ms Majak, this approach could present an 'incomplete legal framework for determination of the [separate] summary dismissal applications' and was thereby capable of misleading the Court as to distinct legal questions requiring separate determination in each case. In her oral submissions, Ms Majak clarified that she is not asserting that Mr Farah was, and still is, acting in a position of conflict between Mr Vouris and Mr Barnden. Instead, she is contending that Mr Farah was, and continues to be, unable to act independently and in accordance with his duties to the Court, while representing Mr Barnden and Mr Vouris. To better understand Ms Majak's oral submissions in this respect it is convenient to reproduce a passage taken from the transcript of the hearing of the restraint application:

HIS HONOUR: Are you saying … the lack of independence is that Mr Farah did not bring forth [in SAD 14 of 2026] arguments that favoured you?

MS MAJAK: I wouldn't necessarily use 'the arguments would not favour me' but the arguments that would not support his clients application for summary dismissal.

HIS HONOUR: All right. So the lack of independence is that Mr Farah only made arguments in support of his client's position without drawing the court's attention to other arguments that might not have been in support of his client's contentions.

MS MAJAK: That's correct.

HIS HONOUR: Have I captured that?

MS MAJAK: That's perfect.

HIS HONOUR: Right. I understand. Is that, in summary, the extent of your contention that Mr Farah should be restrained?

MS MAJAK: Yes, your Honour.

22    In her written submissions in reply to the written submissions filed on behalf of Mr Barnden, Ms Majak expressly says that she does not seek to 'enlarge the interlocutory application'. However, Ms Majak then goes on to submit that there is a 'legitimate question' about whether Mr Farah's earlier representation of Mr Vouris could 'compromise his independence when representing [Mr Barnden] in matters that may require scrutiny of [Mr Vouris'] financial transactions'. I understand Ms Majak's reference to Mr Farah's earlier representation of Mr Vouris to be a reference to his representation of Mr Vouris in SAD 26 of 2026, and in connection with the proceeding in the FCFCoA. I also understand Ms Majak's reference to the possibility of scrutiny of Mr Vouris to be to the fact that an order she sought in SAD 14 of 2026 would, if made, have required Mr Barnden to file and serve an affidavit disclosing 'any reconciliation undertaken with [Mr Vouris]'. The reconciliation sought appears to be related to the balance of the proceeds of Mr Vouris' sale of Ms Majak's assets which he was required to pay to Ms Majak in accordance with the orders made by the FCFCoA, but that were apparently paid to Mr Barnden in his capacity as trustee in bankruptcy. Ms Majak's submission in this respect appears to be that having regard to his previous, and current, representation of Mr Vouris, by acting for Mr Barnden in this proceeding there is a real risk that Mr Farah would be unable to possess the degree of objectivity and independence the Court requires of him because his duties to Mr Barnden may conflict with his duties to Mr Vouris.

23    In her oral submissions, Ms Majak also appeared to suggest that there is a prospect that Mr Farah might be called as a witness at the hearing of her application for an extension of time.

Determination

24    I do not accept that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Farah be prevented from acting for Mr Barnden in this proceeding, in the interests of the protection of the integrity of the judicial process and the appearance of justice.

25    The essential issues to be considered in Ms Majak's application for an extension of time within which to apply for leave to appeal will concern whether there is an acceptable explanation for the delay, whether there is any prejudice to Mr Barnden caused by the delay, and the merits of Ms Majak's grounds on which she proposes to contend that the primary judge erred in summarily dismissing her claim: see BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] in relation to applications for an extension of time; and Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 in relation to the principles relevant to leave to appeal.

26    While consideration of the merits of Ms Majak's proposed grounds of appeal may involve taking into account the relevant context in which the decision to summarily dismiss Ms Majak's claim was made, including any steps Mr Farah took and decisions he made in connection with the making of an application for summary judgment, the correctness of those steps and decisions is not something that this Court will be required to determine. It is the correctness of the primary judge's decision to summarily dismiss Ms Majak's claim that will be in issue. The mere fact that Mr Farah made the application for summary judgment does not mean that the proper administration of justice requires that he should be prevented from acting for Mr Barnden in Ms Majak's application for an extension of time within which to seek leave to appeal against the primary judge's decision to grant that application.

27    Ms Majak's further contention that it is necessary to restrain Mr Farah from acting for Mr Barnden because he lacks the independence required to act in accordance with his duties to the Court, by virtue of his representation of Mr Vouris in a separate proceeding, is also without merit. A fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice requires that Mr Farah be prevented from acting for Mr Barnden simply because Mr Farah may only make arguments in support of a contention that the Court should not grant Ms Majak an extension of time without drawing the Court's attention to other arguments that may not favour such an outcome.

28    A fair-minded, reasonably informed member of the public would not conclude that there is any risk that Mr Farah would be unable to act for Mr Barnden with the objectivity and independence required of him in the interests of protecting the integrity of the judicial process and the appearance of justice, because he may be unable to properly distinguish between, or avoid a conflict of the duties he separately owes to both Mr Barnden and Mr Vouris; including in relation to any potential for Mr Barnden to be ordered to file and serve an affidavit disclosing any reconciliation undertaken with Mr Vouris. There is in fact no evidence that such a conflict of duties exists. In that regard, it is significant to note that Mr Barnden and Mr Vouris have apparently made their own decisions to instruct Mr Farah to act for them both.

29    Ms Majak's argument that there is a prospect that Mr Farah might be called as a witness at the hearing of her application for an extension of time must also be rejected. Having regard to the issues she seeks to raise by her proposed grounds of appeal, Ms Majak's argument is speculative as there is no reason to think that Mr Farah has evidence to give about any materially relevant and contentious issue of fact.

30    For these reasons Ms Majak's restraint application must be dismissed.

Costs

31    On behalf of Mr Barnden, it is submitted that an order should be made that Ms Majak pay Mr Barnden's costs of responding to the restraint application on a lump sum basis, and that such costs should be paid forthwith. For Ms Majak's part, she submits that the costs of the restraint application should be reserved or otherwise determined as the Court considers just, having regard to all of the circumstances.

32    In my view, it is appropriate that an order be made that Ms Majak pay Mr Barnden's costs of the restraint application to be determined on a lump-sum basis, if not otherwise agreed. Such an order will of course avoid the expense, delay and aggravation involved in a taxation: Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 at [15]. However, I am not persuaded that there is any good reason to depart from the usual position reflected in r 40.13 of the Federal Court Rules 2011 (Cth) that the costs should not be payable until this proceeding has been finalised.

33    To avoid the potential for a multiplicity of costs determinations in this proceeding, I will make an order that a determination of the costs of the restraint application is not to occur until further order of the Court.

Associate:

Dated:    3 November 2026