Bechara v Bates

Introduction 9 The background facts to the matter before the Court are recounted in the reasons of the Chief Justice in Bechara v Bates (No 2) [2020] FCA 659 delivered at the conclusion of a case management hearing on 14 May 2020. Those reasons were delivered in order to alert the parties to some of the difficulties present in the constitution of the proceeding as an appeal from the orders made by the first Federal Court judge (see Bechara v Bates [2018] FCA 460), being orders made in the appellate jurisdiction of the Court: see [2020] FCA 659 at [9]-[25]. 10 On 12 June 2020, Ms Bechara filed an amended notice of appeal and an application under s 39B of the Judiciary Act 1903 (Cth) directed at quashing the decision of the Circuit Court, together with further written submissions. The Chief Justice directed pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the matter be heard by a Full Court in the original jurisdiction. 11 On 4 September 2002, Mr Bates filed a further amended notice of contention in the appeal. Mr Bates filed further submissions in November 2020. 12 The representation of the parties has not been clear or consistent. Mr Martin has come in and out of the matter for Ms Bechara. Mr Bannister of Bannister Law is the solicitor on the record for Mr Bates, though Mr Bates has appeared in his own interests as advocate. At the hearing of the appeal and the application before this Court, Mr Martin appeared for Ms Bechara as advocate, but not as solicitor on the record. This was less than satisfactory; nevertheless, the Court heard Mr Martin. 13 Shortly after 14 May 2020, at the next case management hearing, Mr Martin on behalf of Ms Bechara objected to an amicus curiae being appointed, a matter that the Chief Justice had raised on 14 May: [2020] FCA 659 at [32]. As a consequence of that objection that step was not taken. 14 The delay in this matter has been exacerbated by the Covid-19 pandemic. Nevertheless, the delay and confusion by the parties in bringing the proceedings forward is regrettable in a matter of bankruptcy. 15 There were numerous separate submissions filed which we will address in substance in due course. The supporting material for both the appeal and the s 39B application was placed in unsatisfactory electronic form by the parties. The Court, of its own motion, collected all relevant documents in a two volume bundle. The bundle prepared by the parties, together with the volumes prepared by the Court were marked as evidence in the s 39B application and as a court book to support the appeal. 16 Before turning to what occurred in this case and why, because of the miscarriage of the proceeding in the Circuit Court, Ms Bechara is entitled to relief notwithstanding the significant delay, it is necessary and appropriate to set out the fundamental legal principles concerning the review by judges of orders made by registrars under s 104 of the Federal Circuit Court of Australia Act 1999 (Cth) (and s 35A of the Federal Court Act), in particular in respect of the making of a sequestration order in bankruptcy. Important aspects of the practical consequences of these principles were not appreciated by the Circuit Court judge nor by Mr Bates, the creditor, who as a barrister appeared for himself. The principles provide the answer to the underlying question of principle and practice in the administration of bankruptcy in the Circuit Court and this Court.

The nature of review under s 104 of the Circuit Court Act and s 35A of the Federal Court Act 17 The nature of a review under s 104(3) of the Circuit Court Act and under s 35A(6) of the Federal Court Act of an order made by a registrar (often but not always in the context of the review of the making of a sequestration order in bankruptcy) has been the subject of a significant number of decisions of this Court. All are consistent. To underpin the validity of the delegation of judicial power of the Commonwealth to a non-judicial court officer there must be a rehearing de novo before a judge of the Court (whether Circuit Court or Federal Court). The review does not hinge, or focus, upon error in the decision of the registrar. It is a hearing de novo, in which the matter is considered afresh on the evidence and on the law at the time of the review, that is at the time of the hearing de novo. The importance of the de novo rehearing is Constitutional, being the supervisory condition that enables judicial power to be delegated to a registrar. All the jurisprudence stems from this requirement marked out by the High Court in the landmark decision in 1991 of Harris v Caladine 172 CLR 84, which is discussed in many of the cases referred to below. 18 Justice Branson made the position clear in 1995 in Sheahan v Joye [1995] FCA 351; 57 FCR 389 at 391. The Full Court made the position clear in 1997 in D'Antuono v Minister for Health [1997] FCA 1370; 80 FCR 226 at 229-231 (Burchett J) and 240-241 (Carr J). The matter was made clear by Davies J in 1998 in Jageev Pty Ltd v Deane [1998] FCA 513 and by Katz J in 1999 in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd [1999] FCA 475; 31 ACSR 53 at 54-56 [2]-[4] and Meehan v Alfaro [1999] FCA 832; 93 FCR 201 at 202 [2]. The correctness of these decisions was challenged in 2001 in the Full Court by the Commonwealth Bank as a creditor in bankruptcy proceedings against litigants in person in Martin v Commonwealth Bank of Australia [2001] FCA 87; 217 ALR 634. The challenge was rejected: Martin 217 ALR at 635-636 [6]-[7]. In Martin the primary judge had not reheard the creditor's petition afresh or de novo. Rather, his Honour had looked at the prospects of success of a special leave application directed to the underlying debt for "the purpose of deciding whether the exercise by the registrar of her discretion had miscarried": Martin 217 ALR at 637 [14]. Such an approach contained the implicit error that for the review to succeed there must be shown some error on the part of the registrar: D'Antuono 80 FCR at 233 and Martin 217 ALR at 637 [14]. In Martin, the Bank had filed no affidavits on the review application. If the affidavits filed and read before the registrar were to have been relied on they did not comply with the timing requirements of the rules for the hearing of a creditor's petition: Martin 217 ALR at 637-638 [16]. There had been no hearing of the creditor's petition afresh, and so the review had miscarried. 19 The nature of the review was once again the subject of detailed consideration by a Full Court in 2006 in Pattison v Hadjimouratis [2006] FCAFC 153; 155 FCR 226. The point of issue in that case was the nature of relief available if the review of a sequestration order was successful. There was a difference between the majority, Nicholson and Jacobson JJ, and Lander J as to whether an order annulling the bankruptcy was available to be made in the alternative to setting aside the sequestration order. There was no disagreement, however, as to the nature of the review as a hearing de novo: Pattison 155 FCR at 229 [6] (Nicholson J), 233-234 [21]-[29] and 235 [41]-[43] (Jacobson J), and 250-251 [148]-[154] (Lander J). 20 Two paragraphs of the reasons of Lander J ([153]-[154]) clearly state the position: [153] Once the application is brought, a party, who is entitled to a hearing de novo under s 104(2) of the FMA is under no obligation to demonstrate error on the part of the Registrar who made the original order. Indeed, a hearing of this kind requires the party seeking the sequestration order to establish all of the matters upon which the order is based. In a case such as this the onus remains upon the petitioning creditor to show an entitlement to a sequestration order under s 43(1) of the Bankruptcy Act. [154] The parties are not confined to the evidence which was before the Registrar but both parties may rely on that evidence and any further evidence which is relevant to the issues to be considered on the rehearing. The federal magistrate should proceed as if he or she were considering the claim raised in the petitioning creditor's petition for the first time. If there be in this or any other case an exercise of discretion by the Registrar, the exercise of that discretion by the Registrar does not bind the federal magistrate in any way. Because the parties seeking the rehearing had no obligation to show error, the party does not have to establish that the exercise of the Registrar's discretion miscarried in the sense described in House v The King (1936) 55 CLR 499. 21 The position was reiterated by the Full Court in 2008 in Totev v Sfar [2008] FCAFC 35; 167 FCR 193. An oft-repeated thereafter and pellucid statement of the nature of the review was contained in the reasons for judgment of Emmett J (the primary judge in Martin) at 167 FCR 196-197 [9]-[15]: [9] The rationale for the review regime briefly described above is that the making of a sequestration order involves the exercise of the judicial power of the Commonwealth. Under Ch III of the Constitution of the Commonwealth, that power cannot be exercised otherwise than by a justice appointed under Ch III. A registrar of the Federal Magistrates Court is not a justice. On the other hand, judges of the Federal Magistrates Court are justices appointed under Ch III. [10] For a delegation of power to a registrar of the Federal Magistrates Court to be valid, the powers and functions of the registrar must be subject to review by a judge of the Federal Magistrates Court on questions of both fact and law. If the review of the exercise of the power by the registrar is by way of hearing de novo, the delegation will be valid (Harris v Caladine (1991) 172 CLR 84 at 95). Indeed, on one view, nothing less than a hearing de novo would be sufficient. That is to say, there must be a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar; otherwise, the registrar, and not the judges of the Court, would be exercising the original jurisdiction of the Court (Harris v Caladine 172 CLR at 164). [11] It may be arguable that subjecting the exercise of powers or functions by a registrar to an appeal would be sufficient (Harris v Caladine 172 CLR at 95). However, that is not the safeguard that has been adopted in relation to the delegation of powers and functions to registrars of the Federal Magistrates Court. It is clear from r 20.03 of the General Rules that the review of a registrar's sequestration order is to be by way of a hearing de novo. [12] A hearing de novo is different from an appeal stricto sensu and is different from an appeal by way of rehearing. In the case of an appeal stricto sensu, the question would be whether, upon the material before the registrar, the conclusion reached by the registrar was correct. In an appeal by way of rehearing, the appellate court would rehear the matter as at the date of the appeal, but on the evidence called before the registrar, subject to a power to receive further evidence where appropriate: the rights of the parties would be determined by reference to the circumstances, including the law, as they existed at the time of rehearing (Harris v Caladine 172 CLR at 125). In each case any question concerning the exercise of discretion would be subject to the restrictions imposed on an appellate court in reviewing the exercise of a discretion (see House v The King (1936) 55 CLR 499). [13] In the case of a hearing de novo, however, the judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar. The parties commence the proceeding again, subject to any rules concerning the use of evidence adduced before the registrar. The hearing de novo involves the exercise of the original jurisdiction and the petitioner, in the case of a bankruptcy petition, must start again, call witnesses and make out the petitioner's case (Harris v Caladine 172 CLR at 124). [14] Because the hearing of an application for review of a sequestration order is a hearing de novo, it would not be sufficient for the reviewing judge to be satisfied that the registrar made no error and simply to dismiss the application for review. The judge who hears the review application must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of: • the matters stated in the petition; • the service of the petition; and • the fact that the debt or debts on which the petitioning creditor relies is or are still owing. The reviewing judge must also exercise afresh the discretions conferred by s 52(2). [15] In particular, unless the Bankruptcy Rules are waived, the judge must have the affidavits referred to in r 4.06 of the Bankruptcy Rules, which must be sworn shortly before the hearing. Except in the case of a review on the same day as the sequestration order was made, the affidavits relied upon before the registrar would not satisfy r 4.06. In the absence of fresh affidavits, it would be necessary that compliance with the Bankruptcy Rules be waived. See also Cowdroy J at 167 FCR 210-211 [91]-[94]. Justice Bennett agreed with both Emmett J and Cowdroy J in this respect: 167 FCR at 204 [51]-[52]. 22 There was a difference of view in Totev of Bennett and Cowdroy JJ from that of Emmett J concerning the reconciliation of the nature of the review (the hearing de novo) and the time limits of the life of the creditor's petition in s 52(4). It will be necessary in due course to deal with this issue upon which the Court disagreed in Totev. 23 In 2016, in Zdrilic v Hickie [2016] FCAFC 101; 246 FCR 532 a Full Court once again dealt with the nature of the review by way of hearing de novo. Zdrilic concerned the use of summary disposal powers to dismiss an application for review of the making of a sequestration order. The Court at 246 FCR 536-541 [16]-[29] once again went over the requirements of a review by way of de novo hearing. 24 Given its nature as a Constitutional imperative (to use the apt words of Beach J in Tran v Pu [2015] FCA 97; 228 FCR 562 at 566-567 [19]) and the lack of necessity for error on the part of the registrar to be demonstrated for success in the review, the use of summary disposal procedure was criticised. The Court in Zdrilic 246 FCR at 541-542 [32] referred to and approved what Beach J had said about this in Tran v Pu: Beach J doubted whether an application for summary dismissal was appropriate in an application for review of a sequestration order, observing at [28] and [31]: 28. Fourth, there may be cases where an application for review is brought mala fide, for an improper purpose or otherwise constitutes an abuse of process (Williams v Spautz (1992) 174 CLR 509 at 526-531 per Mason CJ, Dawson, Toohey and McHugh JJ). But in such a case, an application to stay the review (or summary dismissal) may be the appropriate process to follow. But in this case, no such application was brought. Further, no such circumstance was alleged. Further, I say this generally, for it is hard to conceive of such a case in the context where an application for review is brought by a debtor challenging the making of a sequestration order. Further, if the effect of the stay produces an impermissible absence of review of the Registrar's order, then yet further problems may arise. 31. It was said that the Court had a power of summary dismissal (s 17A(2) of the FCC Act and r 13.10 of the FCC Rules) and that this power had been exercised by her Honour in the present case on the basis of the Deed being a bar. But no such formal application was made; there was no formal document and my review of the transcripts for the hearings on 21 and 26 August 2014 does not support the contention that such a power was being exercised. … Further, if such a summary dismissal power was available, then it might be used in circumstances such as discussed in [28] above. But such circumstances were not the present case. Further, if it was to be used in circumstances such as the present, her Honour would first have been required to consider the matters set out in [20]-[27] above before considering whether to exercise her powers to summarily dismiss the application for review on the basis of the Deed alone being a bar. No such consideration occurred. More particularly in that context, her Honour would have been required to consider the public effect and third party consequences of exercising her powers of summary dismissal. 25 The circumstances of Zdrilic were complicated and were discussed in detail by the Court at 246 FCR 542-554 [33]-[90]. The headnote to the report amply summarises what happened for present purposes: The respondents filed a creditor's petition against the applicants. The appellants filed a notice stating grounds of opposition. A judge of the Federal Circuit Court heard and dismissed the notice of opposition. However, the judge did not then hear the petition. Rather, he ordered that the petition be heard before a registrar. Later that day, a registrar made a sequestration order. Subsequently, the appellants filed a review application of the registrar's decision. The respondents then filed an interlocutory application seeking that the review application be summarily dismissed. A judge of the Court (the primary judge) heard the review application and the interlocutory application. The primary judge summarily dismissed the review application as an abuse of process. The primary judge went on to consider the petition "to the extent that it [was] necessary" and - as is usual in unsuccessful review proceedings - confirmed the sequestration order. The review application was summarily dismissed, but the judge did go on to deal with the matter as a de novo review. Thus the appeal from the confirmation of the sequestration order was dismissed. 26 Importantly for present purposes, the Court discussed the inappropriateness of summary disposal of applications for review, saying at 246 FCR 553 [86]-[89]: [86] The difficulties of considering a review application in the context of a summary dismissal application under s 17A of the Federal Circuit Court Act and FCC Rule 13.10 are apparent from [24] and [26] of the primary judge's reasons and in the discussion between the primary judge, Mr Zdrilic and the solicitor for the respondents referred to at [76] and [79] above. [87] Section 17A of the Federal Circuit Court Act and r 13.10 of the FCC Rules permit the Federal Circuit Court to stay or dismiss a proceeding generally or in relation to any claim for relief in the proceeding if the party prosecuting the proceeding or claim for relief has no reasonable prospects of success or it is frivolous or vexations [sic] or it is an abuse of process. At [24] the primary judge held: The legislation is clear. The Applicants have no reasonable prospects of success. … the Application for Review is plainly an abuse of process. [88] The primary judge then dismissed the application for review under s 17A of the Federal Circuit Court Act and r 13.10 of the FCC Rules. [89] Had he stopped there, the primary judge would clearly have fallen into appealable error. Whether or not the appellants' opposition to the sequestration proceedings had merit or any reasonable prospect of success, the appellants had a statutory right based on a "constitutional imperative" to a review of the registrar's exercise of power conducted by a judge. It is extremely difficult to contemplate any circumstance where the exercise of that right would constitute an abuse of process. An application for review of a registrar's decision filed pursuant to s 104 of the Federal Circuit Court Act is not an application which is prosecuted by a debtor/applicant for the review; it is a demand that a claim for relief (a sequestration order) brought by the creditor be heard by a judge as if no sequestration order had been made. The "prosecutor" of an application for a sequestration order based on a creditor's petition is the creditor; the only onus a debtor bears is the one (s)he assumes if (s)he seeks to resist the grant of an order based on proof of solvency or "any other sufficient cause" under s 52(2) of the Bankruptcy Act. In our opinion, the respondents should not have filed their application for summary dismissal and the primary judge should not have entertained it. Like Beach J, we find it hard to conceive of any case in which it would be appropriate to see summary dismissal of an application for review brought by a debtor challenging the making of a sequestration order. 27 Thus, relevant to the matter before us, the following is, and has been since the mid-1990s, clear about the nature of a de novo hearing by way of review of a sequestration order in bankruptcy made by a registrar: (a) The application for review leads to a hearing de novo of the creditor's petition. (b) The hearing (or rehearing) of the creditor's petition is not prosecuted by the debtor (applicant for review) but by the creditor in the proceeding in which the registrar's order was made. (c) The application for review is a demand that the claim for relief (the sequestration order) be heard by a judge. (d) The onus is upon the creditor to prosecute its petition. The only onus of the debtor/bankrupt against whose estate a sequestration order has been made is to prove either solvency or any other sufficient cause under s 52(2) of the Bankruptcy Act 1966 (Cth). (e) An appreciation of the above considerations makes it evident that summary or default judgment terminating an application for review is highly likely to be misconceived and founded upon a misconception that the applicant for review has an onus to prosecute an application or to show error in the approach of the registrar. 28 There are some complexities and difficulties yet to be fully and certainly resolved, but the approach of the Court conformable with the Constitutional requirements laid down by Harris v Caladine has been clear and consistent. 29 The complexities are brought about by the intersection of the above nature of the de novo hearing, the orders that can or should be made upon the success or failure of the prosecution of the creditor's petition before the judge on review, and the status of the extant sequestration order as an order of the Court (see s 103(2) of the Circuit Court Act). 30 The complexities are: first, the issue that divided the Court in Totev v Sfar concerned with proper construction of s 52(4) and (5) of the Bankruptcy Act; secondly, the issue that divided the Court in Pattison: if a creditor's petition is dismissed on the rehearing whether in the alternative to setting aside the sequestration order an order for an annulment can be made; and, thirdly, whether there is power to be found in s 104(3) of the Circuit Court Act or s 35A(6) of the Federal Court Act, as an incident of making orders on the review and in particular setting aside the sequestration order, to order some division of responsibility for the trustee's costs between the trustee, the debtor and the creditor: see Body Corporate for Sanderling at Kings Beach v Samsakopoulos (No 2) [2020] FCCA 1909 and cf Flint v Richard Busuttil & Company Pty Ltd [2013] FCAFC 131; 216 FCR 375 at 385 [55]. 31 We will come to the first issue later. The second and third issues may become relevant upon the remittal of the matter to the Circuit Court. We next address the nature of an application for a sequestration order and then what happened in the Circuit Court.

Proceedings and order on a creditor's petition 32 Due formality has long been required in respect of an application by a creditor for an order sequestrating the estate of a person on the basis of insolvency. The requirements to be met by a creditor who petitions for bankruptcy reflect the significance of the making of such an order for the status of any person. The resonant words of Deane J in Kleinwort Benson Australia Limited v Crowl [1988] HCA 34; 165 CLR 71 at 82 (albeit in dissent) should never be forgotten in dealing with the law of bankruptcy. 33 Section 52(1) of the Bankruptcy Act provides: At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. 34 In practical terms, such proof must demonstrate an act of bankruptcy and requires current affidavit evidence that the debt is still owing and that a sequestration order has not been made since the bringing of the petition. 35 If such matters are not proven then the petition will be dismissed or adjourned to enable the creditor to comply. 36 As to dismissal, s 52(2) provides as follows: If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition. 37 Therefore, a debtor may point to a failure by a creditor to prove the matters required or may take an active role in opposition to the petition and seek to satisfy the Court that he or she is able to pay his or her debts or that there is other sufficient cause as to why the order should not be made. In the latter case, but not the former, the debtor bears the onus. The opportunity for the debtor to prove solvency reflects the fact that the petitioning creditor is likely to rely upon a matter such as a failure to comply with a bankruptcy notice in order to prove the relevant act of bankruptcy. A debtor who claims to be solvent notwithstanding such a failure will bear the onus of demonstrating that to be so.

What happened in the Circuit Court and the miscarriage of the Circuit Court hearings

The facts from December 2015 to April 2017 38 On 11 December 2015, a bankruptcy notice was issued on behalf of Mr Bates addressed to Ms Bechara in the sum of $127,936.91 arising from judgments in the Local Court and Supreme Court for legal fees. Ms Bechara made an application on 30 December 2015 to set the notice aside which was dismissed by a registrar on 5 April 2016. A creditor's petition was filed by Mr Bates on 7 April 2016. An order for substituted service was made on 13 May 2016. On 5 July 2016 a sequestration order against the estate of Ms Bechara was made by a registrar of the Circuit Court. 39 On 25 July 2016, TressCox Lawyers, on behalf of Ms Bechara, filed an "Interim Application" in the matter of Maria Bechara in which Mr Bates was the applicant (creditor) and Ms Bechara was respondent. The wrong form was used: Form B3 not Form B3A provided for by the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (FCC Bankruptcy Rules) which commenced operation on 1 April 2016. See FCC Bankruptcy Rules, rules 2.01(1)(b) and 2.02(3) discussed below. Form B3A was specifically designed for and entitled "Application for Review". Form B3 was entitled "Interim Application". But the document filed by Ms Bechara made the nature of the application clear. The "interim orders sought" were: 1. The orders made by Registrar Tesoriero on 5 July 2016 be set aside pursuant to section 104(3) of the Federal Circuit Court of Australia Act 1999. 2. The Applicant's Creditor's Petition dated 7 April 2016 be dismissed pursuant to s52(2)(b) of the Bankruptcy Act 1966. 3. Costs. 40 There could be no doubt that this was intended as an application for review under s 104(2) of the registrar's sequestration order and the exercise of the Circuit Court's review power under s 104(3) to make any order it thinks fit in relation to the matter in respect of which the registrar's order was made. It is to be noted that the basis for a separate order dismissing the petition was s 52(2)(b) ("other sufficient cause") not s 52(2)(a) solvency. Nevertheless, as discussed below, the position of Ms Bachara as to her solvency was an issue discussed in the progress of the case management of the application. It will be necessary to return to the form of the application. 41 Creditors were notified of the application for review by Mr Bates' solicitor on the same day, 25 July 2016. 42 The matter came on for directions or case management before the Circuit Court judge on 17 August 2016. Mr Bates appeared and Mr Maloney (from TressCox Lawyers) appeared for Ms Bechara. Two supporting creditors appeared. 43 Mr Maloney asked for a six week adjournment. He said that the adjournment was required "in order to have some time to negotiate with [Ms Bechara's] creditors whom she intends to pay out in good faith." 44 The matter was stood over by consent to 27 September 2016, for directions. On that day, Mr Bates appeared for himself, Mr Payne for Ms Bechara and a legal representative for a third supporting creditor (another counsel) appeared. 45 Mr Payne explained to the judge that Ms Bechara had had some family difficulties, but that some negotiation had taken place. After some inconclusive discussion, Mr Bates stated that "we just want the matter listed for hearing". He referred to Ms Bechara's claim of solvency and said: "we're here because we don't think she is …". The judge then asked: "How do you envisage the process evolving to a final hearing?" Mr Bates responded: MR BATES: Yes. Well, if I can speak frankly, your Honour, it's not clear to me, at least, from this review application, what the real ground of review is. It appears to me, frankly, that it's just being really used as an opportunity to negotiate. I don't understand, from the affidavit that has been put on by Mr Payne, as to what the real ground of review is except that she would like to negotiate and make an offer which is really inadequate when she claims to be solvent. On the current material, I - I find it hard to see that there's an arguable basis for the review. I mean, I know it's - officially it's there but, I mean, nothing seems to be put up. I mean, everything was - so from our perspective, subject to what my friend wants to put on - - - 46 With respect to Mr Bates, this way of putting the matter contained the implicit error, as a foundational assumption in what he put to the Court, that Ms Bechara was required to show error in the decision of the registrar or in the making of the order. 47 Using this assumption, the judge then sought to distil issues: of solvency and service prior to the hearing before the registrar. At this case management hearing, there was an affidavit of Mr Payne (who acted for Ms Bechara) that had been circulated, but not filed. It was not in the appeal book before us. Mr Bates said the following (wrongly thinking that the affidavit had been filed): MR BATES: … she says, as I understand the evidence, that she didn't actually see it for a certain time but, certainly, she was served and doesn't appear at any time, really, to have sought to pay the debts which she claims to be solvent for. I mean, we don't think she's solvent because she hasn't paid up and - and made certain representations which indicate that she wasn't solvent. But she claims in the most recent affidavit, which is Mr Payne's affidavit which is filed in this court and sworn on 17 August, she claims to be solvent so on that basis we would say, well, if you're solvent, pay your debts. Why should we accept an offer when you're solvent, that's how we would - - - 48 After the judge asked for a likely length of hearing, Mr Bates discussed the issues of service and solvency in a way which can be seen to contain, at least in part, the same misconception. In the discussions about the likely length of hearing, no one adverted to the fact that it was a rehearing of the creditor's petition and that he, Mr Bates, would have to read affidavits. 49 The matter was set down for final hearing on 8 December 2016. One comment of the judge makes clear that he was viewing the matter from the perspective of the misconception that Mr Bates had put forward. His Honour said to Mr Payne about Ms Bechara and her putting on her evidence: HIS HONOUR: Well, it may be that you will need to put to her that it's her application and she needs to prosecute it with a little bit more impulsion and vigour than appears to have been done in the past. That's not a critical comment. It's a factual comment. There are other parties who have interest in this matter. I accept what you say. She's the sole carer. But I'm not going to go six weeks. 50 Mr Bates then reinforced this by saying: MR BATES: I mean, in my respectful submission - well, I'm just going to repeat what your Honour has said. I mean, this is her application. It has been on for a long time and Ms Bechara herself has had many years as a solicitor. I don't think she renewed - she hasn't renewed her current practicing certificate for the first time, but she knows about need to cooperate with court deadlines. If necessary, my friend can go and visit her presumably at her home while she's caring for her mother and take instructions there. 51 After further discussion orders were made that day as follows: 1. The applicant debtor (respondent) to file and serve any evidence by way of affidavit, on or before 18 October 2016. 2. The respondent creditor (applicant) to file and serve any evidence by way of affidavit on or before 8 November 2016. 3. The parties to file and serve any objections to the affidavit evidence on or before 15 November 2016. 4. The applicant debtor (respondent) to file and serve an outline of written submissions on or before 25 November 2016. 5. The respondent creditor (applicant) to file and serve an outline of written submissions on or before 2 December 2016. 6. The application is set down for final hearing on 8 December 2016 at 10:15am before Judge Nicholls at Court 8.2, 80 William Street Sydney. 52 This order of things would be unexceptional if all concerned understood that this was the rehearing of the creditor's petition which would require proof by Mr Bates of all matters in s 52(1) of the Bankruptcy Act, and that the timetable was limited to any issues arising under s 52(2). That, however, was not the context. This was seen as (in the judge's and Mr Bates' words) Ms Bechara's application, and the focus, at least in part, including of Mr Payne, appeared to be on whether there was error in the registrar's orders. Why else would the question of substituted service and Ms Bechara not seeing the petition be relevant? By this time, she plainly knew of the petition and no issue of service could sensibly arise at the de novo rehearing in December 2016. The reality was the application was being viewed as her application to prosecute: to set aside the registrar's order implicitly for some vitiating error. 53 Ms Bechara did not comply with the timetable. On 29 November 2016 TressCox emailed the Court informing the Court, in substance, that Ms Bechara would not be attending the hearing personally or by her lawyers, who were withdrawing. TressCox requested the hearing to be adjourned. 54 On 30 November 2016, Mr Bates emailed the Court opposing any adjournment. 55 On 1 December 2016, the Court emailed the parties refusing an adjournment. 56 On 5 December 2016, Mr Bates filed and served written submissions. The submissions were consistent with the application being one for Ms Bechara to prosecute: That it was for her to show vitiation of an otherwise valid order. The penultimate paragraph reveals this. It stated: All formal requirements to establish that a sequestration order should be made, were proved by admissible evidence on 5 July 2016 before Registrar Tesoriero, presiding, who rightly made the sequestration order that day against the respondent debtor's estate. There was no recognition that this was a rehearing of the petition and that Mr Bates carried the onus of proving the matters in s 52(1) of the Bankruptcy Act. 57 The matter was called on for hearing on 8 December 2016. Only Mr Bates appeared. The judge asked whether it was appropriate to proceed in Ms Bechara's absence. Mr Bates recounted what had happened. He tendered the recent correspondence showing Ms Bechara's solicitors ceasing to act. Mr Bates relied on his submissions. The judge's approach was to approach the matter on the basis of two options outlined in the following exchange: HIS HONOUR: Yes, Well, the issue is how we proceed. MR BATES: Yes. HIS HONOUR: Because while you were the applicant in seeking the sequestration order, she is the applicant in seeking to have it set aside. MR BATES: Yes. HIS HONOUR: And if I can be satisfied that she has had reasonable notice and I find that she has not attended and there's no satisfactory explanation for her non-attendance, then the rules permit me to dismiss her application for review pursuant to rule 13.03C(1)(c), because of her non-attendance. MR BATES: Yes, your Honour. HIS HONOUR: That's one option. MR BATES: Yes, your Honour. HIS HONOUR: The second option is that, as you've indicated here in your submissions, that she has not conducted her application with due diligence, and has not complied with court orders and, therefore, it may be that I find that she was in default in relation to her application, in which case that's another basis for dismissal. MR BATES: Yes, your Honour. Your Honour, I would press both bases, your Honour. HIS HONOUR: Or we could do both. Yes. MR BATES: Yes. Well, I would press them both on - both, on the basis that both apply. Based on the documents, I don't want to rehearse them again, but she's clearly - she's' not taken by surprise. 58 The first basis: rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) was in the following form: (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following: ... (c) if the absent party is an applicant - dismiss the application; 59 Reliance on this rule discloses with clarity the misconception. Though the application for review was brought by Ms Bechara, the true applicant (the prosecutor of the creditor's petition) in the hearing de novo was Mr Bates: see Zdrilic 246 FCR at 553 [89]. The absence of Ms Bechara if no adjournment was to be granted meant that the (re)hearing of the creditor's petition could proceed without effective opposition and with no evidence as to any aspect of s 52(2). 60 The second basis: the failure to prosecute with due diligence, displays the same error. Rule 13.03B(1)(a) provided: (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or 61 If Ms Bechara had failed to take the opportunity to file evidence and submissions addressed to s 52(2), that is not a reason not to undertake a rehearing of the creditor's petition. It might disentitle her from leading evidence for issues under s 52(2) if she had not complied with the timetable; but it did not relieve Mr Bates of his responsibility to prosecute the hearing de novo of his creditor's petition. 62 The whole of the hearing on 8 December 2016 was directed to the evidence as to Ms Bechara's non-attendance and failure to file evidence and submissions in default of orders. No evidence was led to satisfy s 52(1) of the Bankruptcy Act. There was no evidence in the application before us as to whether Mr Bates had relevant evidence ready on 8 December 2016. If he had, there is, perhaps, no reason to believe that, with affidavits and searches brought up to date, it would have been other than straightforward to prove matters under s 52(1) at the hearing. The debt was still owing. The bankruptcy notice had not been set aside. No evidence was available of matters in s 52(2) despite ample opportunity for the debtor to bring it forward. However, the creditor did not present the proof required by s 52(1) of the Bankruptcy Act. Without that proof, the judge could not determine that a sequestration order may be made and could not affirm the exercise of delegated authority by the registrar in making the sequestration order. 63 The judge then delivered reasons, made orders dismissing the interim application (being an application for review) for non-appearance under rule 13.03C(1)(c) of the Circuit Court Rules and for default under rule 13.03B(1)(a) and awarded costs: Bates v Bechara [2016] FCCA 3489. The reasons traversed the history of the matter. At [27]-[31] of the reasons, the judge made clear his view that Ms Bechara had not prosecuted her application which was one in which she had to explain why the registrar's orders should be set aside: [27] It is also important to note that Ms Bechara made her application to set aside the sequestration order on 25 July 2016. She was legally represented at that time. The application was said to be an "interim" application, although it would appear that, more properly under the FCC Rules, it should have been an Application in a Case. In any event, in either case, an affidavit in support of either of these types of applications should have been filed. I refer here to rr.4.05 or and 4.08 of the FCC Rules in this regard. No supporting affidavit had been filed. [28] The concern here is that this is not simply a matter of a lack of form. The failure to comply with the Rules in this regard by Ms Bechara, who was legally represented at the time, and the failure to comply with Court orders made on 27 September 2016, leaves Ms Bechara's case before the Court unexplained. That is, her case to set aside the orders made by the Registrar. Importantly, it is her conduct, and not that of Mr Bates, that has resulted in that state of affairs. [29] Therefore, in all, the following arises. The Registrar of the Court made a sequestration order in relation to Ms Bechara's estate on 5 July 2016. Ms Bechara has applied, on 25 July 2016, for that order to be set aside and for the creditor's petition to be dismissed. She has had a reasonable opportunity to prosecute her case. Her application, after a number of Court events, was set down for hearing today. I find that she had reasonable notice of the Court event today. [30] No formal application for an adjournment has been made. When the matter was called today, there was no appearance by, or on behalf of, Ms Bechara. I understood the communication from Ms Bechara's former lawyers, sent on her instructions, to be an attempt to explain her non-appearance today. I find, nonetheless, that it is appropriate in all the circumstances set out above, that Ms Bechara's application be dismissed because of her non-appearance pursuant to r.13.03C(1)(c) of FCC Rules. [31] A further basis on which to dismiss Ms Bechara's application is that she has not complied with orders of the Court for the proper progress of the case. On what is set out above, I find that Ms Bechara has failed to comply with the Court's orders (orders 1, 3 and 4 of 27 September 2016) (r.13.03A(1)(a) of the FCC Rules) and in particular, I find that, in the circumstances, she has failed to prosecute her application with due diligence (r.13.03A(1)(e) of the FCC Rules). The appropriate order therefore should be made pursuant to r.13.03B(1)(a) of the FCC Rules. That is, dismissed as to the whole of the relief claimed by Ms Bechara. I will make that order relying on both parts of the FCC Rules. 64 The rules as to supporting affidavits were not apposite. As has been noted, the form used by Ms Bechara (Form B3) was not the correct form for an application for review. The correct form was Form B3A "Application for Review", required by 2.02(3) of the FCC Bankruptcy Rules. Form B3A makes clear what is happening: The applicant applies for a review of the exercise of power described in the form. The details of the exercise of power are stated: registrar; registry or place; date or order; terms of order; and details of the orders sought to be reviewed. 65 Rule 2.01 of the FCC Bankruptcy Rules provided for an "Originating Application and Interim Application". Rule 2.01(1) provided that unless the Rules otherwise provided a person must make an application required or permitted by the Bankruptcy Act to be made to the Court that is in a proceeding already commenced in the Court by filing an interim application in accordance with Form B3. The Rules did, however, otherwise provide. Rule 2.02 concerned "Exercise of powers by Registrars". Rule 2.02(3) provided that subject to any direction of the Court or a judge to the contrary, an application under s 104(2) for review must be made by filing an application in accordance with Form B3A within 21 days of the date on which the power was exercised by the registrar. Thereafter div 7.2 "Review of Sequestration Order" and rule 7.05 "Review of Registrar's Decision" provided for notice to the trustee and each person known to be a creditor. 66 The form of the interim application did not, however, mask the substance of the application made by paragraph 1 of the form used: a review of a registrar's sequestration order; and the form cannot change the nature of the application made. No affidavit in support was needed. The application, once filed, engaged the Constitutional imperative to hear afresh the creditor's petition. The fact that paragraph 2 relied upon s 52(2)(b) of the Bankruptcy Act did not alter the nature of the application. It was a provision that dealt with the matters to be proven by the creditor as well as instances where the debtor sought to establish matters on which he or she bore the onus. The application was not confined to a review on the basis that such matters would be established by the debtor. It challenged the whole basis for the making of the sequestration order and, as a result, the creditor was required to prove the matters required by s 52(1) on the hearing of what was described as the interim application. 67 On 5 January 2017, State Lawyers Pty Ltd, on behalf of Ms Bechara, filed an "Application in a Case" seeking to set aside the orders of 8 December 2016. 68 On 22 February 2017, the Application in a Case was set down for hearing on 3 March 2017. 69 An affidavit dated 3 March 2017 of Mr Hiramanek of those solicitors was filed in support. The affidavit was three paragraphs. One subparagraph deposed that the orders were made in the absence of "the applicant" (Ms Bechara), though no mention was made of rule 16.05(2)(a) of the Circuit Court Rules (setting aside an entered order that was made in the absence of a party). The affidavit also stated that the interim application had not been heard. 70 Mr Hiramanek also filed submissions on 3 March 2017. The first submission was that Ms Bechara was entitled to have her interim application heard on the merits. No reliance was placed on the fact that this was an application for review with the consequences to which we have referred. Reliance was placed on rule 16.05 of the Circuit Court Rules. Assertions of bias were also made. 71 The transcript of the hearing is unavailable. On 3 March 2017, the judge delivered extempore reasons. The application was dismissed. The approach of the Circuit Court judge is adequately encapsulated in his Honour's reasons in Bates v Bechara (No 2) [2017] FCCA 985 at [10]-[19]. [10] Nonetheless, I proceed today on the basis that this is an application made pursuant to r.16.05(2)(a) of the FCC Rules. That is, that both the orders were made in the absence of Ms Bechara. [11] It is the case that the Court does have the discretion to set aside or vary orders made in the absence of a party. The elements, or factors, relevant to the exercise of that discretion are non-exhaustive. However, in my view, given the circumstances of this case, three elements or factors emerge for immediate consideration. [12] One is whether there is merit in the original "substantive" application (that is, the AIC made on 25 July 2016), such that the interests of justice call for that meritorious matter to be aired at a final hearing. This is what Ms Bechara calls for in her submissions. 13] The difficulty for Ms Bechara is that she has never articulated her case. The application filed on 25 July 2016, which was dismissed, as I said earlier, pursuant to two Rules of this Court, state that the "orders" made by Registrar Tesoriero on 5 July 2016 be set aside. This is the sequestration order. The application also included that Mr Bates' creditor's petition dated 7 April 2016, be dismissed. There is nothing in that application to indicate the grounds upon which the Court should move to make the orders sought. Nor was any evidence filed to satisfactorily explain that application. [14] What appears to have escaped Ms Bechara's attention in her written submissions is that there were a number of subsequent opportunities, and orders made by the Court, giving her the opportunity to address what I have described as the important deficiencies in the conduct of the application that she had made. It may be that Ms Bechara needs to focus on the fact that her "substantive" application was not just dismissed for want of appearance. It was dismissed for want of prosecution and her failure to comply with Court orders. Court orders which were directed to the issue of enabling her to set out her case. [15] What is left is an AIC which itself is deficient given the absence, both of itself, and in the supporting documentation that has been provided, of any satisfactory explanation of the merits of the case she now seeks to reinstate. [16] It must also be said, that the submissions that have been handed up today are absent any outline of what the arguable case Ms Bechara says needs to be heard by the Court. 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 AIC, 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. [18] It is in this sense that I come to the second element. That is, prejudice to Mr Bates. It is clear that Ms Bechara has a right to pursue matters in the Court. If she has a case to be heard, then she is entitled to have an opportunity to put that case. Mr Bates has, equally in my view, 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. [19] The third element is whether Ms Bechara has provided any explanation for the way in which her matter has come before the Court today. I thank Mr Hermiz who attended and acted to the extent of his instructions. I accept his role today is limited to the instructions that he received. But there is nothing that has been put before the Court today that causes me to find that I can be satisfied that any further time should be granted to Ms Bechara in the sense of re-opening her case that was dismissed on the previous occasion. She already has had a reasonable and fair opportunity to present her case. 72 Ms Bechara then in April renewed the application for reinstatement, this time acting for herself. This application was heard on 17 May 2017. It was dismissed. The transcript reveals that the judge (properly) said that he had dealt with the matter and if Ms Bechara was dissatisfied she should appeal. The order was interlocutory. 73 We will come to the attempt by Ms Bechara to appeal in the next section of these reasons. At this point it is necessary to consider what had occurred up to this time. 74 Whilst one can understand the degree of frustration in Mr Bates and in the Circuit Court judge reflected in some of the transcript, the reality is, however, that Ms Bechara had engaged, albeit by the wrong form, the Court's jurisdiction (subject to all proper procedural controls) to hear a review of a sequestration order made by a registrar. Over 20 years of jurisprudence illuminated the features of this kind of application. The submissions and approach of Mr Bates, his failure to bring forward evidence to satisfy s 52(1) of the Bankruptcy Act, and the approach and reasons of the Circuit Court judge disclose with clarity that each viewed Ms Bechara as the substantive applicant in her substantive application. This was wrong. As an applicant for review of a sequestration order she was entitled (as a Constitutional imperative), subject to all proper procedural orders, to a hearing de novo of the creditor's petition. It did not occur.

The submissions of Mr Bates in this Court and consideration of the Circuit Court hearings 75 The submissions of Mr Bates in support of his Second Further Amended Notice of Contention and in support of his submissions on the appeal and the s 39B application contended that the Circuit Court judge had before him a "bare" interim application without an affidavit in support which did not engage an entitlement to a review. The argument of Ms Bechara based on the loss of the review (by way of Constitutional imperative) was said to be new and precluded by Coulton v Holcombe [1986] HCA 33; 162 CLR 1. He submitted that the facts engaged what was said to be the so-called "clean kill" principle in the summary disposal of matters, relying on Kimber v The Owners Strata Plan No 48216 [2017] FCAFC 226; 258 FCR 575 in the application of summary judgment procedure.

The "bare application" argument 76 There appear to be two limbs to the "bare application" argument. The first is that the interim application was not accompanied by an affidavit "stating the facts relied on": rules 4.05(1) and 4.08(2) of the Circuit Court Rules. But the only two facts necessary to establish was the making of a sequestration order by a registrar and a request for a de novo rehearing. No error in the making of the order need be shown. The wrong form was used, but its content stated clearly that it was in substance an application for review of a sequestration order made by a registrar. Counsel, and a judge exercising jurisdiction in bankruptcy, ought to have understood the nature of such an application. Not to do so is to misapprehend the nature of the jurisdiction being exercised. 77 The second limb of the "bare application" argument relies on something said by Gaudron J in Harris v Caladine at 172 CLR 153-154 where her Honour said: It is necessary to tum to the nature of the review process required by s. 37A(9) of the Act. In so far as that sub-section provides for the "review" of the "exercise of [a] power" delegated to a registrar or deputy registrar in accordance with that section, it was clearly intended that there should be a process enabling complete consideration of the matter as dealt with and not merely a process, such as is involved in the appeal process under s. 94 of the Act, directed to remedying errors of law. Such a review entails a consideration of whether, quite apart from legal or other error, a different result should be arrived at. But, as is clear from the word "review" and from the expression "exercise of power", it was also intended that a decision made in exercise of delegated power should have force and effect unless and until set aside in or in consequence of the review process. Thus, a decision is not one that is provisional or, as argued on behalf of the appellant, one that is set at nought by the filing of an application for review, with the consequence that in the present case the Family Court was automatically obliged to determine, as a contested matter, what order should be made under s. 79 of the Act. Rather, the review process is one in which the Family Court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result. Although the Full Court treated the review process as being of a more limited nature than that indicated, it was correct in rejecting the only argument put to it on behalf of the appellant concerning the nature of that process, namely, that merely by the filing of an application for review it was obliged to treat the question arising under s. 79 as one to be determined as a contested matter. 78 That passage can be seen to be directed to the status of the order and what the Court was obliged to do in the context of a consent order. The parties had, by agreement, settled a property dispute and a registrar of the Family Court of Australia made a consent order under s 79 of the Family Law Act 1975 (Cth), which empowered the Court to "make such orders as it considers appropriate altering the interests of the parties in the property". Justice Gaudron was recoiling at the proposition that the consent order (based on the agreement of the parties, but one to which the Court had given consideration, albeit in that context) was effectively provisional and a contested hearing could be obtained merely by filing an application for review, irrespective of the agreement that underlay the order. That is an entirely different context and raises different issues to the circumstances here of the making of a (non-consensual) sequestration order by a registrar and an application for review. The passages from the reasons of Gaudron J set out above do not, in any way, undermine the approach this Court has taken since the 1990s which we have set out earlier. 79 Nothing in the reasons of the other members of the High Court in Harris v Caladine is to the contrary. Reliance was specifically placed on what Brennan J said at 172 CLR 108 and on what Dawson J said at 172 CLR 125. Nothing there qualifies or undermines in any way what we have said as to the correct approach to the review of a sequestration order made by a registrar.

The summary judgment "clean kill" argument 80 Mr Bates submitted that the Circuit Court judge legitimately approached the application on a summary basis which was authorised in clear cases, even in review applications. Reliance was placed on Kimber 258 FCR 575 especially at 600 [73] and the reference to the need for a "clean kill". 81 With respect to the Court in Kimber the utility of such a metaphorical phrase is doubtful. The principles in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 130-131 [22]-[23] speak for themselves without such a metaphor. 82 The submission, however, lacks substance. In Kimber a registrar had refused to set aside a bankruptcy notice. The debtor applied for a review which was dismissed by the primary judge (Kimber v The Owners Strata Plan No 48216 [2016] FCA 1090) on an application for summary judgment. It is not necessary to analyse the approach of the primary judge in Kimber. Her Honour and the Full Court on appeal were dealing with a litigant in person who had filed and was relying on a huge body of confused, and often plainly irrelevant, material. The litigant bore the onus in the rehearing: to set aside the bankruptcy notice. Summary disposal was sought by the creditor under s 31A of the Federal Court Act. Notwithstanding the decision of Beach J in Tran v Pu in February 2015 and Zdrilic in August 2016, the primary judge in Kimber on 1 September 2016 proceeded with the summary disposal hearing and made orders on 8 September 2016 summarily disposing of the application for review of the order to set aside the bankruptcy notice. The Full Court allowed the appeal. The reasons of the Court contain important guidance to represented parties in how they are obliged to assist the Court when a litigant in person may be confused or misdirected or lacking apparent competence. The appeal was allowed because the primary judge had not been directed to possible issues favourable to Ms Kimber arising under s 41(5) of the Bankruptcy Act. As to the summary disposal procedure, the Court (which included Farrell J who was part of the Full Court in Zdrilic) said the following at 258 FCR 602 [81]-[82]: [81] It is appropriate to add a few other remarks. As noted by the Full Court in Zdrilic v Hickie (2016) 246 FCR 532, applications for summary judgment or dismissal do not sit easily with applications for review of a Registrar's decision in light of the "constitutional imperative" that the Registrar's decision be subject to review by a judge. Further, debtors in the bankruptcy jurisdiction are often not legally represented. They often have a minimal grasp on the legal issues directly relevant to an application to set aside a bankruptcy notice or to resist a sequestration order. The essentially technical issues concerning pleadings and the form of evidence which arise on applications for summary judgment or dismissal can add to confusion and bewilderment at the process which seems to some litigants in person to have little or nothing to do with the underlying facts in circumstances where the proceedings have substantial consequences for them. [82] Worse, such applications are often not time or cost efficient compared to a prompt hearing of the review application. As in this case, applications for summary judgment or dismissal may open new avenues of appeal and involve consideration of whether or not leave to appeal the summary judgment or summary dismissal should be given, all of which add to time and cost of resolving the proceedings. There should be no reason why review applications cannot be heard quickly, with primary reliance on the materials which were before the Registrar. Indeed, like Ms Kimber, it is likely that many debtors without legal representation make the unsafe assumption that evidence which was submitted to the Registrar will automatically be before the judge on the review application. 83 Kimber is of no assistance to Mr Bates. Before leaving it, however, may we add our voice to what was said in Zdrilic 246 FCR at 541-542 [32], referring with approval to Beach J in Tran v Pu, and in Kimber 258 FCR at 602 [81]-[82]. If the matter is hopeless, it should be heard and disposed of promptly at a final hearing. This approach is consistent with the character of the power being exercised by the Court on such applications. Adopting the language of McLure JA in Liebherr-Australia Pty Ltd v Bloomfield [2006] WASCA 128 at [8], there is a "parasitic relationship between the delegation of jurisdiction (or power) and a right of review or an appeal de novo" the existence of which is essential to the validity of the delegation. 84 In any event, the summary disposal power was not used here. The application was dismissed for want of appearance and for default in compliance with directions. We have stated the obvious flaw in that approach in a review of a sequestration order. It was a hearing of a creditor's petition for Mr Bates to prosecute.

The Coulton v Holcombe argument 85 It was argued that the "Constitutional argument" was not run before the Circuit Court judge and if it had been it could have been met by evidence. The Second Further Amended Notice of Contention (2nd FANC) identifies that prejudice in a way that reiterates the misconception of what was happening or should have been happening before the Circuit Court judge. The 2nd FANC states at 3(a) and (b): (a) that at the reinstatement hearing before Nicholls J in the Federal Circuit Court of Australia, on 3 March 2017, at which the Appellant was legally represented (and was decided by Nicholls J in Bates v Bechara (No 2) [2017] FCCA 985, following on from His Honour's previous judgment in Bates v Bechara [2016] FCA 3489 when His Honour had dismissed the present Appellant (Bechara) did not make the new constitutional argument (which she first made in the leave to appeal hearing before Flick J, as summarised in Bates v Bechara [2019] FCA 1077 at [43], [47], [48], [50], [54]); (b) but if the appellant had made (at the reinstatement hearing on 3 March 2017) her new constitutional argument (which she first made at the leave to appeal application before Flick J), the present respondent would have been able to meet that additional argument before Nicholls J at the hearing on 3 March 2017, or at an adjournment thereof, by adducing evidence (to uphold the correctness of Nicholls J's judgment of 8 December 2016 the sequestration order made [a]gainst Ms Bechara's estate on 5 July 2016); and 86 We will come to the hearing before Flick J (the second Federal Court judge). The so-called "new constitutional argument", being the submission that the Circuit Court judge misunderstood the nature of the judicial task before him, was squarely raised before the first Federal Court judge in circumstances to which we will come. 87 The point is not that there was a new Constitutional argument, but that the de novo hearing of the creditor's petition had not taken place. The evidence of the correctness of the registrar's decision was not relevant. The rehearing takes place de novo. The whole argument based on Coulton v Holcombe represents a continuing misunderstanding by Mr Bates of the proper nature of what was before the Circuit Court from July 2016 to December 2016, indeed March 2017. The fact that other practitioners may have also misunderstood the position assists in understanding why the Circuit Court judge was not assisted properly, but it does not engage Coulton v Holcombe 162 CLR at 7.

The case management argument 88 Mr Bates further submitted that this was interlocutory case management properly undertaken by the Circuit Court judge. The difficulty with this is that the orders proceeded on a fundamental misconception of what was before the Court. In an application for review of a sequestration order made by a registrar, if the debtor/bankrupt fails to take the opportunity to file evidence in support of the hearing de novo of the creditor's petition or fails or refuses to appear at the date fixed for hearing, the proper course, and only proper course, to follow (if the adjournment is to be refused) is to deal with what is before the Court, that is the creditor's petition prosecuted by the creditor. At that hearing evidence is led to satisfy s 52(1) of the Bankruptcy Act. If the Court would otherwise be minded to conclude that a sequestration order would have been appropriate at the date of rehearing, it dismisses the application for review leaving the registrar's order in place and the date of the debtor being made bankrupt as the date of the registrar's order and preferably, for the sake of good order, confirms or affirms the registrar's order. It is a misconception of the nature of the application before the Court to dismiss an application for review of a sequestration order because of failure of a debtor to appear at a hearing of a creditor's petition or the failure of the debtor to file in time pursuant to case management orders evidence that may go to s 52(2) of the Bankruptcy Act. 89 The above is not to doubt for one moment that case management of applications for review is an important and legitimate consideration. The Circuit Court is entitled to make rules that govern procedures for an application for review. For the reasons we have already set out those procedures must conform with the fundamental nature of what is before the Court. If the application for review is of a sequestration order made by a registrar, the Court must recognise and appreciate that what is before it is the creditor's application in the nature of a hearing de novo of the creditor's petition. The application for review by the debtor/bankrupt engages the process of the Court hearing the creditor's petition afresh. Of course, that process of getting the creditor's petition to a hearing by the application for review can and should be case managed with despatch. But a dilatory debtor who fails to file evidence or does not appear at a date fixed for hearing which is properly not vacated or adjourned in the circumstances lays himself or herself open to a creditor's petition being (re)heard in his or her absence; he or she does not lay himself or herself open to the application for review being dismissed without the hearing of the creditor's petition, the prosecution of which is the responsibility of the creditor. 90 For the Court to do so is to misunderstand the nature of the application for review of a sequestration order made by a registrar. 91 The above should not be understood to affect or impede legitimate procedural controls and proper case management techniques in respect of applications for review of exercises of power by registrars, especially those in respect of which the applicant bears the onus of proof: such as in setting aside a bankruptcy notice. 92 Nothing we have said removes from the Court, or denudes the Court of, power to regulate its procedure or to case manage busy lists, especially in bankruptcy. If a debtor/bankrupt seeks a review of a sequestration order by filing an application for review, the Court should case manage such an application with despatch. If the debtor/bankrupt is dilatory or unco-operative in compliance with orders, the matter before the Court - the creditor's petition for rehearing - should go forward. That dilatoriness does not, however, absolve the Court of responsibility for hearing (de novo) what the application for review brings forward - the creditor's petition. 93 An application for review of a registrar's exercise of power may bring forward for hearing (de novo) an application of the party who may be recalcitrant, such as an application to set aside a bankruptcy notice. The moving party for that rehearing is the debtor. If proper case management and default in compliance with orders or non-attendance give rise to questions of orders in default of appearance or want of prosecution of the defaulter's application, so much can be accepted. 94 Where such occurs in the review of the making of a sequestration order, the proper curial response is to hear the creditor's petition, not (as occurred here) not to hear the creditor's petition. That occurred because of an apparent and clear misunderstanding by the Circuit Court judge of the nature of the judicial task before him. His Honour was assisted in, and indeed led into, that fundamental error by the creditor who was also the advocate in his own cause. 95 The orders made on 8 December 2016 and on 3 March 2017 were thus vitiable with jurisdictional error and, subject to discretionary considerations, would found the making of an order by this Court to set aside the orders of the Circuit Court made on 8 December 2016 and 3 March 2017. It will be necessary to return to the orders of 17 May 2017. 96 We will deal with discretion and other aspects of the orders sought in the s 39B application in due course.

The invocation of the appellate jurisdiction of the Federal Court: The application for an extension of time in which to seek leave to appeal before the first Federal Court judge 97 On 6 June 2017, Ms Bechara, acting for herself, filed an application for an extension of time in which to seek leave to appeal and for leave to appeal from the orders of the Circuit Court made on 8 December 2016 and 3 March 2017 and in the same application sought leave to appeal from the orders of 17 May 2017. The orders of 17 May 2017 were interlocutory and required leave. The application for leave as to the orders of 17 May 2017 was two days out of time: Federal Court Rules rule 35.13(1). An extension of time was not sought, only leave to appeal. 98 All these applications were in the appellate, not original, jurisdiction of the Court. The grounds of the application focused upon what was said to be the injustice and illegitimacy of the refusal of the adjournment application and the findings that Ms Bechara had not prosecuted her application with diligence. Ms Bechara also claimed actual or apprehended bias in the decision not to reinstate the application for review. There is one aspect of the application that touched upon the real error of the Circuit Court judge. In referring to the judgment of 3 March 2017, Ms Bechara stated: The Rules did not require an affidavit to be filed. The Rules provide that the interim application seeking to review the exercise of power by a Registrar must proceed by way of a hearing de novo. Here, Ms Bechara was in effect complaining, not only about the refusal of the adjournment, but also that the creditor's petition should have been heard (de novo). 99 The matter was case managed by a judge of the Court (the first Federal Court judge). Evidence was put on. There were delays. Eventually, the matter came on for hearing on 15 March 2018. Mr Kumar, of counsel, appeared for Ms Bechara. 100 The submissions on behalf of Ms Bechara by Mr Kumar dated 2 March 2018 raised the absence of a de novo review, referring to Pattison 155 FCR at 235 [42]-[43], Tran v Pu 228 FCR at 569 [29] and Schepis v Osborne [2015] FCA 192; 146 ALD 602 at 607-608 [27] where Rangiah J stated with clarity the requirement of the Court to hear the creditor's petition. Mr Kumar's submissions expressly stated that the Circuit Court was "required to satisfy itself of all the matters in s 52 of the Bankruptcy Act". The resistance of Mr Bates continued to be that Ms Bechara had not shown any error in the registrar's decision. The judge reserved and delivered judgment on 6 April 2018, dismissing the application for an extension of time: Bechara v Bates [2018] FCA 460. The reasons addressed the 8 December 2016 and 3 March 2017 orders, but not the 17 May orders. The reasons focused on the lack of error demonstrated in the registrar's decision. 101 At [23]-[26], the first Federal Court judge dealt with the argument about s 104 of the Circuit Court 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. With respect, an application for review of a sequestration order enlivens the requirement for the creditor to prosecute the creditor's petition. Such an application for review should not be dismissed for default by the debtor. 102 At [29]-[32], the first Federal Court judge dealt with rules 13.03B and 13.03C of the Circuit Court Rules: [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. 103 With the utmost respect, these reasons reflect a misapprehension of the nature of an application for review of a sequestration order made by the registrar. The prosecuting party is the creditor. To dismiss the application the creditor's petition should be heard. Default or non-appearance of the debtor is not default or non-appearance of the prosecuting party to the creditor's petition re-enlivened for hearing by the bona fide filing of an application for review. 104 Importantly for present purposes, however, the first Federal Court judge also concluded that the adjournment was properly refused. At [34]-[36], her Honour said: [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. 105 With respect, the first Federal Court judge's view about there being no prospects of success of showing the adjournment to have been wrongly refused has great force. 106 The only order made by the first Federal Court judge on 6 April 2018 was the dismissal of the application for an extension of time. Costs orders were made later. The orders of 17 May 2017 were not the subject of her Honour's reasons, but were in substance encompassed within the order made refusing an extension of time. The 17 May 2017 orders had and have no substantive life separate from those of December 2016 and March 2017. 107 Costs were thereafter debated and were awarded in favour of Mr Bates in a judgment of 30 April 2018 in the sum of $6,000. 108 Before examining what occurred in the High Court it is necessary to address three matters arising from three provisions of the Federal Court Act. 109 First, the first Federal Court judge was exercising appellate not original jurisdiction. Section 25(2) of the Federal Court Act recognises in paras (a) and (b) that applications for leave to appeal and applications for an extension of time within which to institute an appeal are within the appellate jurisdiction. Sections 33(4B)(a) and (d)(iv) recognise that applications of the kind mentioned in s 25(2) and applications for extension of time for making an application for leave to appeal are in the exercise of appellate jurisdiction. 110 Secondly, there is no appeal to a Full Court (a fortiori to another single judge) from judgments of the Court exercising appellate jurisdiction. Appeals are only from a single judge exercising original jurisdiction: s 24(1)(a) of the Federal Court Act. 111 Thirdly, s 33(4B) of the Federal Court Act relevantly provides: (4B) An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction if the judgment is: (a) a determination of an application of the kind mentioned in subsection 25(2); or … (d) a decision to do, or not to do, any of the following: … (iv) extend the time for making an application for leave to appeal; … 112 Thus, not only were the orders in the applications made by a single judge in the appellate jurisdiction of the Federal Court and thus not amenable to appellate review by a Full Court, but also no appeal could be brought against them in the High Court of Australia.

The High Court application: s 75(v) application for an order to show cause against the Federal Court to quash the decision of the first Federal Court judge 113 Perhaps recognising these matters as to the lack of available appellate review and the inability to seek special leave to appeal from the orders of a single judge exercising appellate jurisdiction in matters described in s 33(4B)(a) and (d)(iv), on 2 May 2018 new lawyers (Weighbridge Lawyers) acting for Ms Bechara filed in the High Court an application to show cause under s 75(v) of the Constitution seeking to quash the orders of the first Federal Court judge made on 6 April 2018. 114 The application for an order to show cause sought orders for mandamus and certiorari arising from and in respect of the first Federal Court judge's orders on 6 April 2018. The error of the first Federal Court judge was said to be the failure to set aside the 8 December 2016 and 3 March 2017 orders by the Circuit Court judge. Paragraphs 9-12 of the application clearly set out what Mr Kumar had been arguing before the first Federal Court judge: 9. The Federal Circuit Court did not review the decision of the Registrar exercise [sic] under s 103 on the basis on the basis [sic] it could rely upon FCCA Rules 13.03B and 13.03C to simply dismiss the Plaintiff's application. 10. The Federal Court of Australia misconstrued and misdirected itself as to the construction of s 104 of the Federal Circuit Court of Australia Act 1999 whereby the Court found the Rules displacing the requirements of the Act and thereby fell into jurisdictional error. 11. The Court below misconstrued as to the party that ought to file evidence first (it falling on the Defendant as the Applicant in the FCCA) and misdirected itself as the review under power exercised under s 103 did not change the role of the Plaintiff as appellant. Her Honour thereby asked [the] incorrect question as to which party ought to have filed evidence. 12. The Federal Court of Australia exceeded its jurisdiction and / or fell into error in refusing to grant leave to appeal to the Court. 115 On 5 June 2018, submissions were filed by Weighbridge Lawyers. These submissions succinctly set out the point in the narrative of the matter (now including the orders of 17 May 2017): 13. In the Federal Circuit Court of Australia there was application for sequestration by Bates. 14. The Registrar in exercise of its power made an order pursuant to s 103 of the Federal Circuit Court of Australia Act 1999 (Cth) (the "FCCA Act"). 15. The Registrar exercised its the [sic] power and made sequestration order pursuant to s 103 of the FCCA Act. 16. The plaintiff pursed her right of review pursuant to s 104 of the FCCA Act. 17. On 29 November 2016, the Plaintiff's former solicitor forwarded [a] letter to the FCCA that the Plaintiff needed further adjournment till February 2017. 18. The matter was determined in the absence of the Plaintiff on 08 December 2016. There subsequent attempt to reinstate or set aside default judgment, the applications made on 03 March 2017 and 17 May 2017. 19. Her Honour's construction of s 104 of the FCCA Act stating that the fact a party was absent could give rise to application being refused is correct and that the Court below was not required to otherwise be satisfied that the circumstances in which the requirements of the Bankruptcy Act such as that there was debt was still in existence was not required to be ascertained. A decision of this nature is legally unreasonable. Her Honour therefore has fallen into error. 20. The Court below (second defendant) refused to grant leave to the Plaintiff to appeal the decisions of the Court below. The Plaintiff has already pointed out the flaws in consideration of the review on 08 December 2016. Her Honour has fallen into error of law which is jurisdictional error: Tran v Pu [2015] FCA 97. 21. The Court below must in exercise of its powers review the Registrar's decision: Tran v Pu [2015] FCA 97; Schepis v Osborne [2015] FCA 192; Pattison v Hadjimouratis [2006] FCAFC 153 at [42]-[43]. The non-appearance of the Plaintiff on 8 December 2016 does not alter the fact the review should have been carried out. 116 The submissions went on to identify the misconstruction of s 104 of the Circuit Court Act by the first Federal Court judge as jurisdictional error. 117 The submissions of Mr Bates took two procedural points: that the appellate jurisdiction of the Federal Court had been by-passed and then the ordinary procedure of special leave to appeal should be engaged. He said at para 3: The plaintiff's Application and Summons should be dismissed as they seek to side-step the ordinary appeal court hierarchy, and to leap frog the filter of special leave, by bringing the plaintiff's dispute straight from a judgment of a single judge of the Federal Court of Australia (Perry J) to the High Court of Australia. This procedure would by-pass both the appellate jurisdiction of the Full Court of the Federal Court of Australia, and the regular requirement of a grant of special leave to appeal to the High Court of Australia. Such sidestepping, by-passing and leap-frogging is not appropriate here: Construction Forestry Mining and Energy Union v Director of the Fair Work Building Inspectorate [2016] HCA 41, (2016) 91 ALJR 1 at [22] (Nettle J); Dimitrov v The Supreme Court of Victoria [2017] HCA 51 at [19] (Edelman J). The usual appeal hierarchy should be exhausted. The plaintiff does not enliven any recognised exception (Construction, supra, per Nettle J at [23]-[24]). 118 Mr Bates further supported the first Federal Court judges' construction of s 104. 119 Mr Martin appeared. He had just taken over the matter from Weighbridge Lawyers. He did not contradict the clearly wrong submission of Mr Bates that a Full Court appeal and special leave were available. They were not: see [108]-[112] above. 120 No doubt misled by this submission of Mr Bates, compounded by Mr Martin's failure to address the issues, perhaps understandably in the light of the recency of his retainer, the High Court justice dismissed the application on the basis that the orders of the first Federal Court judge were amenable to appeal: Bechara v Bates & Anor [2018] HCATrans 164 at p 9 ll 345-p 10 ll 366, p 10 ll 379-390, and p 11 ll 398-404. 121 The matter then returned to the Federal Court.

The return of the matter to the Federal Court: the extension of time and granting of leave to appeal 122 In this Court, on 30 October 2018, Mr Payne (formerly of TressCox, now of HWL Ebsworth Lawyers) filed on behalf of Ms Bechara an application for extension of time and leave to appeal from the judgment of the first Federal Court judge on 6 April 2018. The same complaints were made as had been made in the s 75(v) application. 123 Affidavits in support annexed the High Court transcript. Mr Bates opposed the application. An affidavit of Mr Bates attached a report to creditors prepared by the Official Trustee. The report noted that Ms Bechara had not filed a statement of affairs in compliance with s 54 of the Bankruptcy Act. The report gave no information about Ms Bechara's financial affairs or solvency. 124 The submissions in support of the application clearly identified the error that had occurred before the Circuit Court judge. They were, perhaps, articulated more clearly, certainly at more length, than Mr Kumar had done; but his articulation had been tolerably clear and to the same effect. 125 The question of appellate jurisdiction was dealt with by setting out the approach of the High Court justice. 126 Mr Bates' opposition was based on the submitted correctness and merit of the approach taken by the Circuit Court judge. 127 The matter was heard on 13 March 2019. Mr Martin and Mr Bates appeared. No one submitted that the appellate jurisdiction could not be engaged. The submissions and further submissions in the matter were voluminous; but the fundamental issue which we first dealt with in these reasons was by now fully articulated. That said, and with due respect to Mr Kumar, he had articulated it clearly before the first Federal Court judge. 128 On 12 July 2019, the second Federal Court judge delivered judgment granting an extension of time and leave to appeal from the orders of the first Federal Court judge on 6 April 2018: Bechara v Bates [2019] FCA 1077. 129 In his reasons, the second Federal Court judge described as a "new argument" what appeared at [40]-[41] of his reasons: [40] The argument as advanced before the primary Judge was in substance that the task of the Federal Circuit Court Judge in conducting a review under s 104 was not susceptible of the discretionary powers to summarily dismiss a proceeding conferred by the Federal Circuit Court Rules. The task being undertaken by the Federal Circuit Court Judge was, so the argument ran, a task free of the ability to exercise those discretionary powers. The argument was that s 104 stood outside of the ambit of the Federal Circuit Court Rules conferring a summary power of dismissal. That argument was advanced in terms of a process of construing the Federal Circuit Court Rules. [41] The new argument now sought to be relied upon was in substance an argument more directed to the inability of a Registrar to make a sequestration order without the ability of the bankrupt to seek review of that decision by a Chapter III Judge. It was an argument which accepted the ability of a Registrar to make such an order but an argument which mandated a de novo review of the Registrar's decision upon an application for review being made under s 104. Concealed below this broadly expressed new argument was a further question as to what steps needed to be undertaken by an applicant seeking review to require a de novo review to be undertaken. 130 With respect, Mr Kumar had put this argument clearly in early 2018, fleshing out Ms Bechara's application in June 2017. 131 At [49], the second Federal Court judge said: The decisions of the Federal Circuit Court Judge involved the exercise of discretionary powers. It is difficult to contend that that Judge erred in the exercise of those discretions by not resolving an argument not advanced. The difficulty is only compounded when attention is shifted to the decision of present relevance, namely that of the primary Judge. The primary Judge was also exercising a discretionary power, namely the discretion to grant or refuse an extension of time. And that discretion was exercised, at least in part, by reference to a consideration as to whether the Federal Circuit Court Judge had erred. It is even more difficult, with respect, to seek to challenge the decision of the primary Judge by reference to an error said to have been committed by the Federal Circuit Court Judge in not resolving an argument not then advanced and by reference to an argument not advanced to the primary Judge. 132 With respect, a Circuit Court judge sitting in bankruptcy should apprehend the correct approach to a review of a sequestration order of a registrar as explained by at least four Full Courts over the years. Further, the argument was clearly put, on those authorities, or at least some of them to the first Federal Court judge. 133 Leave to appeal was granted limited to what the second Federal Court judge said were new arguments (though they were not new) as set out at [58] of his Honour's reasons: The grant of leave to appeal, it is respectfully considered, should be subject to two qualifications or conditions, namely: • a Notice of Appeal should be filed, confined to the new argument as identified during the course of oral submissions, that new Ground perhaps extending beyond a question simply as to whether the filing of the Interim Application in July 2016 in the Federal Circuit Court was sufficient of itself to occasion the necessity to undertake a de novo review of the Registrar's decision and possibly extending to the necessity to file and serve further evidence as to the basis upon which that Interim Application was sought to be advanced; and • expressly reserving to the Full Court the freedom to revoke the grant of leave to appeal should (for example) the necessity to rely upon further evidence on appeal that was not before the primary Judge render the grant of leave to appeal inappropriate on the facts of the present case. It is left to the Applicant to draft a Notice of Appeal which properly raises for the consideration of the Full Court the questions which are to be resolved. In the absence of any challenge to the finding of fact made by the primary Judge as to the application for review being but "a bare application", it is anticipated that the grant of leave would be confined to the resolution of the two questions as to whether the Interim Application constituted an application for review and whether the making of such an application required a de novo review to be undertaken. 134 The notice of appeal was filed on 26 July 2019 against all the orders of the Federal Court made on 6 April 2018. The grounds, conforming with the conditions of leave, were: 1. The Courts below erred by failing to find that the Interim Application filed on 25 July 2016 constituted a valid application for review for the purposes of s104 Federal Circuit Court of Australia Act, 1999 (Commonwealth). 2. The Courts below erred by failing to find, in conformity with Zdrilic v Hickie [2016] FCAFC 101 at [89]; (2016) 246 FCR 532 at 553; Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193 at 197; and Martin v Commonwealth Bank of Australia [2001] FCA 87, that the discretion exercised by the Federal Circuit Court Judge miscarried at the outset because: (a) there was imposed upon the Federal Circuit Court Judge a "constitutional imperative" to undertake a de novo review of the Registrar's order upon the filing of an application for review under s104 Federal Circuit Court of Australia Act (1999) (Commonwealth), by reference to evidence filed on behalf of the party opposing the review, and (b) there was no necessity on the part of the appellant to file and serve further evidence as to the basis upon which that Interim Application was sought to be advanced. 135 The orders sought included the consequential orders of the setting aside of the orders made by the Circuit Court judge on 8 December 2016 and 3 March 2017. 136 Mr Bates then sought security for costs. On 1 October 2019, this was ordered in the sum of $5,000. 137 A notice of contention was filed. 138 On 14 May 2020, the Chief Justice made it clear to the parties that there was a difficulty with the appeal in that it was from orders made in the appellate jurisdiction. Thereafter the application under s 39B of the Judiciary Act seeking to set aside the Circuit Court orders of December 2016 and March 2017 was filed. It was supported by evidence that set out the history of the matter. 139 For the reasons that we have set out at length there was a fundamental error made by the Circuit Court judge in the approach to the application for review of a sequestration order. The error was repeated by the first Federal Court judge. 140 The appeal must, however, be dismissed as incompetent. There is no appellate jurisdiction in the Federal Court Act to hear appeals from orders made by a judge in the appellate jurisdiction. 141 The error of the Circuit Court judge was jurisdictional. He misunderstood the nature of the judicial task before him and in so doing failed to deal with the hearing of the creditor's petition that was the task before him. 142 Two related questions now arise. The first is that to which the Chief Justice referred at [27]-[29] of his reasons of 14 May 2020 and which divided the Court in Totev v Sfar: Whether, by reference to s 52(4) and (5) of the Bankruptcy Act, the creditor's petition is now stale; and, if it is, the consequences thereof. 143 The second, depending on the answer to the first, is whether discretionary considerations mean that orders setting aside the Circuit Court order should not be made.

The s 52(4) and (5) issue: Is the creditor's petition now stale? And if so, what is the remedial consequence? 144 Subsections 52(4) and (5) of the Bankruptcy Act provide for the lapsing and extension of time of a creditor's petition. They are in the following terms: (4) A creditor's petition lapses at the expiration of: (a) subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or (b) if the Court makes an order under subsection (5) in relation to the petition - the period fixed by the order; unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn. (5) The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order. 145 In Totev v Sfar 167 FCR 193, the Federal Court by a single judge had set aside an order of a Federal Magistrate who had dismissed an application for review of a sequestration order by a registrar. Upon remittal to the Federal Magistrates Court for the de novo hearing of the creditor's petition more than 24 months had elapsed since the original presentation of the creditor's petition. 146 Justice Emmett considered the creditor's petition to be stale by the time of the second rehearing and so the only order that could be made would be to dismiss the petition. Justice Bennett with whom Cowdroy J agreed on this point did not consider the petition stale, though for other reasons given by Cowdroy J the appeal would be allowed. 147 The approach of Emmett J in Totev v Sfar to the intersection of s 104 review and s 52(4) and (5) is seen at 167 FCR 196-197 [10]-[14], 197-198 [16]-[17], and 204 [48]. His Honour's approach was urged upon us by Mr Martin on behalf of Ms Bechara: The rehearing is de novo, involving the exercise of original jurisdiction and the petitioner starting again. Section 103(2) of the Circuit Court Act, which provides that the registrar's order (being the exercise of power delegated) is taken for all purposes to be an order (an exercise of power) of the Circuit Court, made unclear, according to his Honour, when the sequestration order by the reviewing judge takes effect. At [16], Emmett J said: In the light of s 103(2) of the Federal Magistrates Act, the effect of a registrar's sequestration order, when an application is made for review, may be unclear in that there may be a question as to when a reviewing judge's sequestration order takes effect. For example, since the proceeding before the reviewing judge would be a hearing de novo, a sequestration order made by the reviewing judge would ordinarily take effect when it was made. It would not normally operate nunc pro tunc, so as to be effective from the date when the registrar's order was made. On the other hand, if the reviewing judge decided not to make a sequestration order, the registrar's order would cease to be of any effect. 148 At [48], Emmett J said that the rehearing must be regarded as a petition on the basis that no sequestration order has been made, otherwise he said it could not be de novo. His Honour continued: … There had been no order extending the currency of the petition under s 52(5) prior to 15 December 2005, when the period of 12 months from the presentation of the petition had elapsed. Further, by the time that the petition had come before the primary judge for the second time, considerably more than 24 months had elapsed since the presentation of the petition. Thus, even if the primary judge embarked on a hearing of the petition de novo, following remitter by the Federal Court, his Honour could not have made a sequestration order. Accordingly, the second hearing could only have had one result, namely, that the petition be dismissed, since, by that time, the petition had lapsed. That was the only order that was open to the primary judge. 149 With respect, this is to give the notion of the de novo hearing too mechanical and rigid a form. It must take its place in its statutory context, which here includes s 103(2) of the Circuit Court Act. Section 103(2) means a sequestration order has been made and the debtor's status has changed. The hearing is de novo in the original jurisdiction and proceeds again, on the same petition. However, the hearing is undertaken in order to ensure the supervision of the exercise of delegated judicial power by the registrar. The mere bringing of the application for review does not invalidate, revoke or suspend the exercise of that delegated authority. It remains a valid exercise of delegated judicial power but subject to the review. The form of the review hearing is a de novo consideration, but while that review is pending the delegated authority by which the registrar made the order (in the present case the sequestration order) remains in existence and so too the order made in its exercise. 150 Therefore, if after concluding the de novo review the judge would otherwise make a sequestration order, that is, all the matters in s 52(1) are proved and no matter in s 52(2) arises to stand in the way of a conclusion that a sequestration order ought be made, the application for review will be dismissed and the exercise of delegated authority will remain operative. The Court may make this clear by affirming the order of the registrar. On the other hand, if the conclusion reached on the de novo review is that the petition should be dismissed (whether or not for reasons that were available or present before the registrar), that order will be made, and the sequestration order set aside or annulled: see Pattison. 151 Looking at the matter thus, and recognising the effect and status of the registrar's order ("for all purposes") there has been before the times set out in s 52(4)(a) and (b) of the Bankruptcy Act a sequestration order made. An application for review does not make the registrar's orders provisional or ineffective. 152 Thus, even after two years from the presentation of the petition, the hearing of the creditor's petition on the de novo review, re-enlivened for this purpose, could take place. There may seem some tension in saying that it is a hearing de novo of the creditor's petition, but at the same time recognising the effect of the registrar's order until set aside or annulled. That, however, is but a consequence of the nature of the review in its full statutory context. The availability of the review is an aspect of the delegated authority. It is not an appeal to detect error. One begins again. But the application once filed does not affect the order made by the registrar. If, on a hearing de novo, the entitlement for a sequestration order is made out, the protection of the supervision has been effected. There is no call to interfere with the effect of the earlier making of the order. If after full rehearing afresh, de novo, again the judge considers that a sequestration order is appropriate, he or she will not interfere with the registrar's order, will dismiss the application for review and affirm the registrar's order. We leave aside consideration of circumstances where on review some error was shown in the registrar's order such that a view is taken that the order should not have been made then, but it is clear that the order should now be made. Section 104(3) would appear to be wide enough to encompass such a circumstance. 153 Our view accords with the reasoning of Bennett J at 167 FCR 204-205 [53]-[62], with which Cowdroy J agreed at 206 [64]. 154 The view we favour is supported by the text and structure of s 52(4) and (5). The provisions of paras (a) and (b) of subs (4) are informed by subs (5). The lapse occurs after 12 months, or, if extended under subs (5), after 24 months. Both circumstances are qualified by the words thereafter in s 52(4): relevantly, "unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition". 155 Such an order has been made (by the registrar). It is an order of the Court: s 103(2) of the Circuit Court Act. That a review should take place promptly and not be delayed for two years can be accepted. That does not, however, deny the clear words of s 52(4). To accept the view of Emmett J requires the effect of s 103(2) to be undermined by the entitlement to review under s 104(2) and the nature of a de novo review. This is contrary to the effect of the review being an aspect of the delegated authority - making the delegation valid. The de novo review as a rehearing of an existing creditor's petition is given full protective effect even though the registrar's order remains in effect until the reviewing court deals with the petition and makes orders that affect it. 156 Thus we reject the argument that this Court should now dismiss the petition and set aside the sequestration order or remit the matter with a direction for that result to occur.

As a matter of discretion should orders be made setting aside the Circuit Court orders and remitting the application for review to a rehearing? 157 There is no controversy as to the proposition that orders under s 39B(1) of the Judiciary Act (or s 75(v) of the Constitution) are subject to a discretion. That discretion is not at large. In Re Refuge Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 101-110 [43]-[62] Gaudron and Gummow JJ discussed the discretionary considerations to prohibition. The Chief Justice and Hayne J agreed with this discussion: see 204 CLR at 89 [5] and 144 [172], respectively. 158 At 204 CLR 106 [51], Gaudron and Gummow JJ said that the statement of Gibbs CJ in R v Ross-Jones; Ex parte Green [1984] HCA 82; 156 CLR 185 at 194 should be accepted as the correct approach to the exercise of the original jurisdiction in which a writ of prohibition is sought against an officer of the Commonwealth. In Ross-Jones, Gibbs CJ stated (at 194): If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. 159 At 204 CLR 108 [56], Gaudron and Gummow JJ noted: Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [(1949) 78 CLR 389]. Their Honours said [at 400]: For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. 160 Gaudron and Gummow JJ also, at 204 CLR 108 [57], cited Lord Denning in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320 where his Lordship said of a plaintiff who delays proceedings: "He may be disbarred from relief if he has acquiesced in the invalidity or waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing …". 161 The passage by Gaudron and Gummow JJ in Aala 204 CLR at 108 [56] was cited in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; 235 ALR 609 at 618 [28], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observing: This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). 162 At 618 [29], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ then applied the principles discussed in Aala, concluding that no useful result could ensue from the grant of the relief sought by the appellants because the Tribunal to whom the matter would be remitted if relief were granted was bound by the governing statute to refuse the appellants' case. 163 Paragraph 56 of Aala and the cited passage in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 have been referred to in a number of Full Court decisions, including Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; 305 ALR 534 at 543 [13] and SZQBN v Minister for Immigration and Citizenship [2013] FCAFC 94; 213 FCR 297 at 303 [39]-[44]. 164 The following are examples of the discretion not to grant relief: unreasonable delay in bringing the application for relief: R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; where an appeal lies which has not yet been pursued: R v Gray; Ex parte March [1985] HCA 67; 157 CLR 351 at 375; McGowan v Migration Agents Registration Authority [2003] FCA 482; 129 FCR 118; where there is a suitable alternative remedy: Phong v Attorney-General (Cth) [2001] FCA 1241; 114 FCR 75; where an applicant has acquiesced in the conduct of proceedings known to be defective: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372; where no "real injustice" has been suffered: R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538 at 551 and 559; where the cost and injustice flowing from having to repeat the whole process would have been wholly disproportionate to the practical effect of the error: NRMA Insurance Limited v Ainsworth [2011] NSWCA 292; 59 MVR 195 [14]-[16] (though in relation to non-jurisdictional error); where an applicant does not come to the court with clean hands: SZQBN 213 FCR 297; undisclosed improper or fraudulent objects: R v Commissioners of Customs and Excise; Ex parte Cook [1970] 1 WLR 450; futility or lack of utility: Aala 204 CLR 82; Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; 144 ALR 243 at [38], or where events have overtaken the proceedings so as to render the issue moot: Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319; 33 AAR 439. 165 The considerations relevant to the grant of relief here are as follows: It was Mr Bates who urged the misconceived approach to the December 2016 hearing of the application for review. It is he who has maintained that approach up to and including argument in this Court. If he had been ready to read the affidavits that had been before the registrar and rely upon updated affidavits as to debt and search, it may well be that the dismissal of the application would have occurred, for the correct reason: a rehearing of the creditor's petition. Given Ms Bechara's conduct leading up to the December hearing it is difficult to see why there was any error in refusing an adjournment; and that conclusion was drawn by the first Federal Court judge. Thus, perhaps, Mr Bates' own conduct was the only intervening factor in an available proper exercise of power. However, there was no evidence before us as to whether Mr Bates was in a position to proceed with the creditor's petition on 8 December 2016. He may, himself, have required a short adjournment, on which date Ms Bechara may have been able to appear. We do not know. 166 The solvency of Ms Bechara has not been the subject of evidence. The following exchange took place between the Chief Justice and Mr Martin during a case management hearing on 22 May 2020: HIS HONOUR: … Well, the question then arises, what the effect of 52(4) is, what the Full Court said, and what the status of the Registrar's decision - sequestration order is. All that will probably have to be covered and dealt with. If you're right, Mr Martin, then we have to look at what orders flow from any either successful appeal or successful application under 39B(1). Relevant to that might be, Mr Martin, whether Ms Bechara is solvent. Might be, I'm not saying it is, might be, because if she is not solvent what are we doing? … I don't know whether she was solvent in 2016. I don't know whether she's solvent in 2020. But the question of solvency, at some point, will enter a Full Bench's head, collective head, and that is at the point of exercising a discretion, if you're right, to grant relief under 39B(1) it may be relevant to understand her solvency. I only raise that because - this is all going to be sent back for a Circuit Court to hear another creditor's petition and she can't prove her solvency then what's going on and why are we dealing with this. MR MARTIN: Can I interpose there, your Honour. … HIS HONOUR: … What I was raising of [sic: for] your and Ms Bechara's consideration is that if, accepting the fact, that, for the purposes of debate today, that she was entitled to have a hearing in December of 2016 in which Mr Bates went first in a de novo creditor's application, what is the point of taking public resources of requiring that now to happen if she is not solvent? Now, it may be that the proper answer to that is, whether or not she's solvent today, it's when the creditor's application comes on for hearing that matters as to whether she's solvent, and that may be a good answer to that. All I'm doing is raising for your and Ms Bechara's consideration that it may be that if she is not solvent, there may be very little point in all this; however, I will not say any more. Do you take my point? I mean, if it goes back to the Circuit Court and she's not solvent and she can't show she's solvent, what have we been doing in this whole exercise, assuming Mr Bates and those acting for him put together evidence sufficient to establish prima facie an order under section 52? If she is solvent, well, I understand the importance of it. I'm just raising it for your consideration and for Ms Bechara's consideration, given the amount of time and effort that is going to go into hearing the appeal and the application in August and, if you're successful, sending it back to the Circuit Court. MR MARTIN: Your Honour, is your question rhetorical or are you seeking a response? HIS HONOUR: No, … it's neither. I'm raising it for your consideration that you may want to turn your mind to it either in the conduct of this application and whatever evidence you bring or otherwise, that's all, that if she isn't in fact solvent, what are we doing? If she is solvent or she considers she will be solvent if and when this ever went back to the Circuit Court, then I fully understand the importance of the application to her. MR MARTIN: … Now, your Honour is really saying, "Yes, I know all that," and it might be wasted exercise if my client is not solvent. The two answers I have to that, which I'm trying to couch elegantly and not provocatively, is that in relation to my client's solvency, it would be my intention to keep my powder dry on that topic because it's for the petitioning creditor to be the prosecutor, and he would be prosecuting an act of bankruptcy, and there are plenty of solvent people who have committed acts of bankruptcy. And the second thing I would be saying is that because of the constitutional point that was first - well, as far as I'm aware, first talked about in Totev but much more deeply talked about in Zdrilic, if the Full Court were to say, "Yes, this is all fine, but what's the point?" would the court not be giving me an easy run in a special leave application. HIS HONOUR: Right. Well, you've answered my question in a sense because I did not want the application to move forward without an addressing of that issue; you've addressed it and you've obviously thought about it and I won't say any more. This exchange raised for both parties the relevance of proof of Ms Bechara's solvency. 167 There has been a delay of over four years. Some part of that delay has been due to Ms Bechara not advancing her case. Yet, she has, at least since her application of 6 June 2017 and certainly since the submissions of Mr Kumar in March 2018, put the submission that there should have been a hearing de novo of the creditor's petition. 168 Mr Bates put the submission that there was a delay in filing the s 39B application. With respect, that submission lies ill in the mouth of the party or counsel who persuaded the High Court to dismiss the show cause application under s 75(v) (equivalent to the s 39B application) directed to the Federal Court and Circuit Court on the basis of (non-existent) rights of appellate review in the Federal Court. After remittal Ms Bechara prosecuted the appeal until the difficulty was pointed out to her. 169 Mr Bates pointed to the fact that Ms Bechara has not filed her statement of affairs, which was due within 14 days of the registrar's orders. That is for the Official Trustee to take up. The Official Trustee was informed of these proceedings, but did not appear. 170 Mr Bates submitted that Ms Bechara's breaches of timetabling orders leading up to the summary disposal of the matter should count against her on discretion. Mr Bates also submitted that the delay prejudices him as the petitioning creditor. These matters, however, explain only how Mr Bates himself has caused this problem by his misunderstanding of what was called for by the Court in December 2016. 171 Mr Bates did not take on the burden of showing on a prima facie or other basis that Ms Bechara is not solvent. He could have sought to have done so by interlocutory procedures or subpoenas. 172 The Court is left without information as to the solvency position of Ms Bechara. 173 In all the above circumstances and on the state of the evidence before us, and in the light of the absence of a rehearing de novo of the creditor's petition, the seriousness of the change of status to that of a bankrupt, and the role played by Mr Bates in the error and confusion over the years, we would make orders setting aside the orders of the Circuit Court made on 8 December 2016, 3 March 2017 and 17 May 2017 and remit the application for review and the rehearing of the creditor's petition to the Circuit Court. 174 That remitted hearing should take place as soon as possible. 175 As to costs we would order that Mr Bates pay Ms Bechara's costs of the application under s 39B. The appeal in our view is incompetent and there should be no order as to costs in it. They should lie where they fall. As to costs ordered by the first Federal Court judge and the High Court we have no power to vary them or set them aside. We would, however, in support of the hearing of the creditor's petition, order that no step be taken by any party to enforce any costs order until the result of the creditor's petition rehearing is known. All these costs orders may simply be matters with which the trustee in bankruptcy must concern himself or herself.

Final comment 176 Applications for review of exercises of delegated power by registrars should be reheard by judges de novo as soon as reasonably practicable. This is especially so in bankruptcy, and even more so if it is a review of a sequestration order that changes the status of a debtor, enlivens powers of a trustee and brings about changes to property. Delay is not only prejudicial to the debtor or bankrupt, but also to the creditor and potentially to members of the public. 177 Application for review of sequestration orders should be listed and heard conformably with what they are: the (re)hearing of a creditor's petition in bankruptcy.

Orders 178 The orders of the Court will be: A. Upon the application under s 39B of the Judiciary Act (NSD 658 of 2020):

1. The orders of the Federal Circuit Court of Australia made on 8 December 2016 dismissing the Interim Application filed on 25 July 2016 and ordering costs; on 3 March 2017 dismissing the Application in a Case filed on 5 January 2017 and ordering costs; and on 17 May 2017 dismissing the Application in a Case filed on 2 May 2017 and ordering costs be quashed and set aside.
2. The application for review, in the form of the Interim Application filed on 25 July 2016, of the order of Registrar Tesoriero made on 5 July 2016 that the estate of Maria Bechara be sequestrated under the Bankruptcy Act 1966 (Cth) and of the order concerning costs be remitted to the Federal Circuit Court of Australia for hearing according to law as a de novo hearing of the creditor's petition filed on 7 April 2016, to be heard as soon as reasonably possible.
3. The first respondent pay the applicant's costs of the application, such costs, and all other outstanding orders for costs as between the parties in litigation in the Federal Circuit Court of Australia, the Federal Court of Australia and the High Court of Australia, not be enforced and no steps be taken to enforce such costs until after orders are made consequent upon the hearing of the creditor's petition in the application for review. B. In relation to the appeal from a single judge of the Federal Court (NSD 2386 of 2018):
4. The appeal be dismissed as incompetent with no order as to costs.
5. The sum of $5,000 provided by the appellant for security for costs and any interest thereon be returned to the appellant. I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Markovic and Colvin.