Bechara v Bates

3. CAPACITY IN WHICH THE RESPONDENT APPEARED 5 I note that Mr Bates is a practising barrister. I granted leave to Mr Bates to appear as a self-represented litigant, notwithstanding that he had engaged solicitors. Mr Bates, however maintained until partway through the hearing that he should be permitted to appear in his capacity as legal counsel and to recover his costs to the extent that he was acting as counsel. In so contending, he relied among other authorities upon the decisions in Bechara v Bates (No 4) [2015] NSWSC 1722 and Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 (Bates (NSWCA)). In both of these cases costs were awarded to Mr Bates as counsel despite his status also as a party. I note, however, that the Court of Appeal in Bates (NSWCA) did not decide whether the somewhat controversial "Chorley exception" which applies to self-represented solicitors extended to self-represented barristers (NSWCA, Bates at [65]-[66]). Rather, in the absence of submissions from Ms Bechara, the Court of Appeal considered that it was not appropriate to finally determine what it described as "the important questions of construction": Bates (NSWCA) at [66]-[67]. 6 Even though Mr Bates disavowed any concession that he was not entitled to appear as counsel or recover his costs for so appearing, he did not ultimately press any claim for these "costs" on the basis that to do so would be disproportionate to the amount he sought to recover. That being so it is unnecessary for me to decide this issue here. Nonetheless, as I explained at the hearing and at earlier case management hearings, I have serious doubts regarding the proposition that a self-represented litigant, who is also a practising barrister, can appear as counsel in effect instructing his solicitors to instruct him and is thereby entitled recover his costs as counsel. These doubts include concerns as to how the duties owed by a barrister to those instructing her or him and to the "client" might sit with such a proposition: see also the doubts expressed by Katzmann J in Hudson v Sigalla (No 2) [2017] FCA 339 at [50]-[53] notwithstanding her Honour's consideration of authorities on which Mr Bates relied.

4.1 The default judgment 7 The amended creditor's petition seeking a sequestration order against the estate of Ms Bechara was filed on 7 April 2016. The creditor's petition relied on judgment debts in the amount of $127,936.91 ordered against Ms Bechara in various proceedings in State courts, together with interest. On 5 July 2016, a Registrar of the FCC made the sequestration order and an order for costs. It was not in issue that the Registrar made those orders pursuant to a delegation under s 103 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act). 8 On 25 July 2016, Ms Bechara applied for review of the Registrar's decision under s 104 of the FCCA Act. 9 On 8 December 2016, the FCC refused to grant an adjournment of Ms Bechara's application as requested by her former lawyers by a letter dated 29 November 2016 sent ex parte to the primary judge's associate (29 November 2016 letter). The primary judge's reasons for refusing the adjournment are set out in his reasons for the default judgment and explained below. In the 29 November 2016 letter, Ms Bechara's solicitors explained that they would shortly be filing a notice of ceasing to act. The letter further explained that Ms Bechara would not be appearing on 8 December 2016 and sought an adjournment until February 2017. The letter explained that Ms Bechara was solely responsible for the care of her disabled mother who required full-time care, but that Ms Bechara was likely to have more time to focus on her own affairs if approval was given after February 2017 for her mother to receive a high care package. The letter was accompanied by a letter dated 14 November 2016 from the regular general practitioner treating Ms Bechara's mother. 10 In the same decision, the FCC also dismissed the application for review on two grounds: first, pursuant to r 13.03C(1)(c) of the FCC Rules for non-appearance by the applicant; and secondly by reason of the applicant being in default for the purposes of r 13.03B(1)(a) by reason of her failure to comply with Court orders and her failure to prosecute her application with due diligence (see r 13.03A(1)(a) and (e) of the FCC Rules). As to the first ground, the primary judge found that, despite her non-attendance, Ms Bechara had reasonable notice of the hearing. In so finding, the primary judge inferred that Ms Bechara's solicitors (who were present when the matter was set down for hearing) would have complied with their duty to keep her informed of relevant matters (default judgment at [13] and [29]). As to the second ground, the FCC found that Ms Bechara had not complied with orders of the Court for the proper progress of the case and, in particular, timetabling orders requiring the filing of evidence by her. The FCC also found that no affidavit had been filed in support of her application for review contrary to rr 4.05 and/or 4.08 of the FCC Rules, as a consequence of which her case before the Court was unexplained (default judgment at [27] - [28]). The FCC also found that Ms Bechara had been given a reasonable opportunity to prosecute her case given that her application had been set down for hearing with reasonable notice after a number of court events, and that no formal application for an adjournment had been made.

4.2 The reinstatement judgment 11 On 3 March 2017, the FCC dismissed the application in a case made by Ms Bechara requesting reinstatement under r 16.05(2)(a) of the FCC Rules of her application for review. In dismissing that application, the FCC held that her application for review was not dismissed merely for non-appearance but also because of important deficiencies in the conduct of the review application. In particular, those deficiencies meant that Ms Bechara had never given any satisfactory explanation of the merits of the case she sought to reinstate. The primary judge found that her submissions in support of reinstatement also failed to give any outline of the arguable case that Ms Bechara said needed to be heard. As a consequence, the FCC found, first, that: 16. … There is also no indication of the case that Ms Bechara seeks to put before the Court. Ms Bechara has had, in my view, a more than reasonable opportunity, and a reasonable length of time, including with her [Application in a Case], to prepare for the hearing of that application and to articulate, or even at least outline, the case that she wishes to pursue at a hearing. There is nothing before the Court to indicate what that case may be. On that basis, I cannot find that there is any merit in that original "substantive" application such that it calls for its reinstatement in the interests of justice. 17. It is not in the interests of justice to re-open this matter simply to create a further delay in the disposition of the original application that Ms Bechara put before the Court. 12 Secondly, the FCC found that with respect to the question of prejudice: 18. …Mr Bates has … a reasonable expectation that if Ms Bechara has been given a reasonable opportunity to articulate that case, and repeatedly fails to do so, then any further extension, or delay, is prejudicial to him. I am not persuaded, in the circumstances, that this is a prejudice that can be addressed only by the matter of costs. That is because, and it cannot be forgotten, that the order that the Registrar made was a sequestration order. There are obvious consequences that flow from the very nature and character of such an order. 13 Thirdly, the FCC found that nothing had been put before the Court which caused it to find that any further time should be granted to the applicant who had already had a reasonable and fair opportunity to present her case (reinstatement judgment at [19]-[20]). The FCC was not satisfied that there was any prospect that, even if her case were re-opened, the applicant would pursue the substantive application with the due diligence, given her lack of due diligence before it was dismissed and her failure to conduct the reinstatement application with due diligence (reinstatement judgment at [22]).

5.1 The issues 14 There is no proposed ground of appeal that the FCC proceeded on any misapprehension as to the facts. In other words, if an extension of time and leave to appeal were granted, no challenge is foreshadowed to any of the findings of fact underpinning the default and reinstatement judgments. Despite the many proposed grounds advanced in the application before me, the issues as articulated in the written submissions and oral arguments concerned only whether the FCC had power to give a default judgment and whether the FCC acted in breach of procedural fairness. The proposed ground that the primary judge should have disqualified himself on the ground of apprehended or actual bias was rightly abandoned in the written submissions filed in advance of the hearing.

5.2 Is an extension of time required? 15 Leave is required for the reason that the default and reinstatement judgments of the FCC are interlocutory in nature: Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[6] (Bromberg J); BZADA v Minister for Immigration and Border Protection [2013] FCA 1062 at [3] (Rangiah J). I note however that the application for leave to appeal includes a ground that that no leave was required and that Ms Bechara has a right of appeal pursuant to subs 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth). However, save for a bare assertion to the same effect in the written submissions, no oral or written submissions were developed by Ms Bechara in support of that contention. As such, it must be taken to have been rightly abandoned. 16 As to the antecedent question of an extension of time, Ms Bechara's application in this Court was filed on 20 June 2017, being relevantly over three months after the reinstatement decision on 3 March 2017. However, the 14 day appeal period from the reinstatement decision expired on 17 March 2017: see r 35.13 of the Federal Court Rules 2011 (Cth).

5.3 Relevant principles applicable to an application for an extension of time 17 The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J). These may be summarised as follows. (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. 18 As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that: 12. … it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant's prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to "assess the merits in a fairly rough and ready way" (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]). (emphasis removed) 19 Furthermore, the power exercised by the FCC in dismissing the reinstatement application under r 16.05(2) of the FCC Rules was discretionary. As such, on any appeal it would be necessary for the applicant to demonstrate that the primary judge made an error of the kind identified in House v The King (1936) 55 CLR 499 (House v The King) at 505 in the exercise of that discretion. Examples include demonstrating that the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters, made a mistake of fact, or that the discretionary decision is unreasonable or plainly unjust. 20 In this regard the principles which govern the exercise of power under rule 16.05(2) of the FCC Rules were identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530: 7. In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are: (a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out; (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]: The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. (emphasis in the original.) 21 The power to dismiss proceedings by default must also be exercised cautiously, although there is no requirement of intentional default or contumelious conduct in the default: Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20]-[22] (Flick J) (quoting Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ)).

5.4.1 Does the argument that the FCC had no power to give a default judgment on a review under s 104 of the FCCA Act have any reasonable prospects of success? 22 It was not in issue that, in making the sequestration order, the Registrar was exercising delegated power under s 103(1) of the FCCA Act and therefore that the FCC's jurisdiction to review that decision was engaged under s 104(2) of the FCCA Act. 23 Nor was it in issue that the FCC was required to undertake a de novo review of the Registrar's decision: see e.g. Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226 (Pattison) at [59] (Jacobson J). However, by giving judgment in default, counsel for Ms Bechara submitted that arguably the FCC did not undertake the task required of the Court on a review of the Registrar's decision under s 104 of the FCCA Act. In the applicant's submission, the power to summarily dismiss the proceeding for non-appearance under r 13.03C(1)(c) of the FCC Rules was not available as a matter of statutory construction on a review application under s 104. As a result, the applicant submitted that r 13.03C(1)(c) of the FCC Rules ought to be read down so as to, in effect, carve out from its scope of operation, proceedings involving a review of a sequestration order under s 104 of the FCCA Act. In support of this argument, counsel for the applicant referred to the fact that s 17A of the FCCA Act, which confers power summarily to dismiss a proceeding, does not extend to a power to give judgment in default, i.e., by reason of non-attendance at a hearing, failure to comply with Court orders, or failure to prosecute. 24 As a result, in the applicant's submission it was arguable that the primary judge ought to have satisfied himself on the hearing de novo that the sequestration order was properly made and, in particular, that all of the criteria for the making of such an order were met, rather than simply dismissing the application for non-appearance. As such, the applicant submitted that the primary judge misconstrued s 104 in summarily dismissing the proceeding and ought therefore on 3 March 2017 have allowed the review proceeding to be re-opened so as to enable the application for review of the Registrar's decision to be dealt with on the merits. In short, it was the applicant's submission that it was arguable that the FCC was required to satisfy itself that the sequestration order was properly made irrespective of whether or not the applicant appeared. 25 The contention that the FCC lacked power to give a default judgment on a s 104 review lacks any reasonable prospects of success. 26 First, the applicant's counsel could not refer to any authority supporting that contention. 27 Secondly, as earlier explained, the FCC not only dismissed the proceeding on the ground that Ms Bechara failed to attend a hearing under r 13.03C(1)(c) of the FCC Rules, but further and in any event upon the ground that she had failed to comply with an order of the Court and to prosecute the proceeding with due diligence under r 13.03A(1)(a) and (e), thereby enlivening also the power to dismiss the proceeding by default under r 13.03B(1)(a). The applicant would therefore need to demonstrate that a "s 104 carve out" was appropriate for this rule as well as r 13.03C(1)(c) in order to succeed. 28 Thirdly, s 17A(4) of the FCCA Act expressly provides that s 17A does not limit any power that the FCC has apart from that section, thereby making it clear that the section does not state exhaustively the grounds on which summary judgment may be given. As such, there is no inconsistency between s 17A of the FCCA Act and the power under the FCC Rules to give a default judgment. 29 Fourthly, the Court's powers to give judgment in default under r 13.03B(1)(a) and 13.03C(1)(c) are expressed in entirely general terms and do not differentiate between different kinds of proceedings. In this regard, the words actually used by the legislature are the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). Nor would the construction for which the applicant contends further any identifiable legislative purpose. To the contrary, r 1.03(1) of the FCC Rules provides that: The object of these Rules is to assist the just, efficient and economical resolution of proceedings. 30 That object would be undermined if an applicant could file a bare application for review of a sequestration order and take, as here, no steps whatsoever to progress that application whether by way of appearing at hearings, complying with the requirements of rr 4.05 and/or 4.08 of the FCC Rules to file an affidavit to explain the grounds of review, complying with court orders, or otherwise. Even on the present application for an extension of time, no basis on which to challenge the sequestration order itself was identified by counsel for Ms Bechara. The Court and the respondent remain completely in the dark as to the basis on which Ms Bechara sought review of the Registrar's sequestration order. 31 Finally, the applicant relies in support of her construction upon the fact that s 104(2) of the FCCA Act imposes no obligation upon a party to establish an arguable case before the Court may review an order made in the absence of that party (Pattison at [155] (Lander J)). However, that does not alleviate a party of the obligation to identify some basis on which the application for review is made and otherwise to prosecute her or his application for review with due diligence. 32 In short, s 104 providing for review of certain decisions by a Registrar should plainly be read in the context of, and subject to, ordinary case management principles as reflected in the expressed objects of the FCC Rules and therefore as subject to the ordinary mechanisms by which the FCC enforces those principles such as by exercising the discretion to give judgment in default. The proposed challenge alleging the contrary has no reasonable prospects of success.

5.4.2 Does the contention that the FCC acted in breach of procedural fairness in refusing to adjourn the proceeding have any reasonable prospects of success? 33 Counsel for Ms Bechara also submitted that the adjournment sought by the 29 November 2016 letter was a "short to moderate adjournment" and therefore that it was arguable that the failure to grant the adjournment was a denial of procedural fairness. In this regard, despite the informal nature of the application, Mr Kumar emphasised that Ms Bechara had attached a medical certificate explaining the circumstances in which an adjournment was sought. 34 In refusing to grant the adjournment, the FCC had regard, among other things, to the following considerations: (1) despite Ms Bechara having practised previously as a solicitor and benefited from independent legal advice in relation to her review application, she elected not to proceed in an appropriate way by making an interlocutory application with supporting evidence (default judgment at [15]); (2) as a consequence of not proceeding in an appropriate way, she deprived Mr Bates of an opportunity to know what was put in support of the orders sought and to respond appropriately, and did not act so as to promote the efficient conduct of cases before a "very busy Court" (default judgment at [14]); (3) this was not the first request for an adjournment by Ms Bechara in the proceedings - earlier requests had been acceded to on two prior occasions, despite Ms Bechara having failed to provide adequate explanations for those adjournments (default judgment at [18]); (4) the letter from a doctor attached to the 29 November 2016 letter did not comply with the Court rules as to expert opinion evidence (default judgment at [19]); (5) the 29 November 2016 said nothing about Ms Bechara's capacity to give instructions to her (then) solicitors to have them apply in the proper way with supporting evidence for an adjournment, or, beyond mere inference, explain why she was unable to attend the hearing (default judgment at [20]); and (6) as a former solicitor, Ms Bechara could be taken to know that appearances can be arranged, for example, by telephone and that this is often done to assist persons who are unable physically to attend court (default judgment at [21]). 35 There is no challenge proposed to any of these facts and therefore no suggestion that the FCC acted on any misapprehension of the facts so as to engage the principles in House v The King on this basis. In addition, upon the 29 November 2016 letter being forwarded to Mr Bates on 30 November 2016, Mr Bates replied on the same day explaining that he opposed the adjournment and setting out the reasons for his opposition. The Deputy Associate to the primary judge advised the parties by email on 1 December 2016 that the matter remained listed for hearing on 8 December 2016. Subsequently on 5 December 2016, Mr Bates filed submissions seeking that the matter be dismissed, and opposing the application for an adjournment. Again it is not proposed to contest these facts. 36 It follows that Ms Bechara could have been in no doubt that her informal request for an adjournment was opposed and was on clear notice that the matter would proceed on 8 December 2016, despite her informal request for an adjournment. Yet she neither applied for an adjournment in compliance with the rules with a supporting affidavit, nor filed any further submissions in response to those of Mr Bates. In those circumstances, the allegation that the failure to grant the adjournment constituted a breach of procedural fairness has no reasonable prospects of success.

6. CONCLUSION 37 As the proposed grounds of appeal have no reasonable prospects of success, it would not be in the interests of justice to grant an extension of time within which to appeal. As such, the application for an extension of time should be dismissed. Costs are reserved in order to allow the applicant the opportunity to be heard on Mr Bates' application for a lump sum costs order because this was supported by evidence provided only at the hearing of the application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.