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.