BLG23 v BLH23, in the matter of BLG23

1. The appeal be dismissed, with costs.
2. The first respondent file and serve a written submission of no more than five (5) pages as to the form of the costs order by 21 July 2023.
3. The second respondent file and serve any submission in response of no more than five (5) pages by 11 August 2023.
4. The question of the form of the costs order be dealt with on the papers.
5. The parties have liberty to apply on three (3) days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GOODMAN J 1 On 2 June 2023, I ordered that the appellant provide security for the first respondent's costs of the appeal in the sum of $30,000 within 21 days, and stayed the appeal until such security had been provided: BLG23 v BLH23, in the matter of BLG23 [2023] FCA 572 (BLG23 (No 1)). 2 The date for the provision of security has passed without the security being provided. 3 The first respondent now seeks, and the appellant resists, an order for the dismissal of the appeal with costs. The second respondent, consistent with his position in this proceeding to date, has taken a neutral position. I propose to make the order sought by the first respondent for the following reasons. 4 Pursuant to a direction made by the then Chief Justice of the Court on 6 February 2023, for the purposes of s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), I am exercising the appellate jurisdiction of the Court on this appeal and there can be no question that there is power under s 56(4) of the FCA Act to dismiss the proceeding. (I note in passing that if such a direction had not been made I would have had power under s 25(2B)(bb)(i) of the FCA Act: see Du Bray v ACW [2021] FCAFC 103 (Jagot, Yates and Colvin JJ)). 5 The security has not been provided. Although only a short period of time has elapsed since the expiry of the time allowed for the provision of the security, there is no suggestion that it will be provided. No explanation has been proffered by the appellant for her failure to provide the security and no extension of time in which to provide the security has been sought. 6 Further, as Colvin J noted in Lafferty v Waterton (No 2) [2020] FCA 1673 at [23], there is injustice to any parties facing proceedings that are not progressing due to the conduct of another party. The first mentioned parties are entitled to have the proceeding brought to an end rather than have the prospect of an appeal held open indefinitely. This observation applies with particular force to the position of the second respondent, who is the appellant's trustee in bankruptcy (and through him, the creditors of that estate). 7 I also do not accept the reasons put forward by the appellant for resisting the making of a dismissal order. Those reasons are essentially: (1) the bankruptcy notice which led to her bankruptcy was based upon a costs order made by the Full Court of the Family Court of Australia (as the Federal Circuit and Family Court of Australia, Division 1 was then known) on 19 August 2021 (see BLG23 (No 1) at [21] and [22]) (19 August 2021 costs order); (2) the 19 August 2021 costs order was invalid; (3) the appellant proposes to file an application seeking the issue of constitutional writs from the High Court of Australia concerning the 19 August 2021 costs order (among many other things). She anticipates filing that application (a draft of which accompanied her affidavit affirmed 29 June 2023) by early next week; (4) after filing an application in the High Court, the appellant will file applications in this Court and the Family Court seeking a stay or dismissal of actions consequential to the 19 August 2021 costs order; and (5) when the relief sought by the appellant is provided by the High Court she will seek the annulment of the sequestration order made against her. 8 The appellant's proposed course does not provide a reason not to dismiss the appeal, for the following reasons. 9 First, the appellant has had ample time in which to seek relief from the High Court. The 19 August 2021 costs order is approaching its second anniversary. Further: (1) at first instance: (a) the appellant opposed the setting down of the creditor's petition for hearing on the basis that the proceeding might have been referred to the High Court as it raised a constitutional issue, and the primary judge found this argument to be misconceived (see BLG23 (No 1) at [42]); (b) the primary judge, in his December 2022 judgment explaining the making of the sequestration order stated: [BLG23] has also indicated that she proposes to seek constitutional writs in the High Court for review of the decisions of the Federal Circuit and Family Court of Australia (Division 1) in her case. However, I am told that no application of that sort has been filed and it would not be appropriate to adjourn this matter to permit that to be done at this point, given that such proceedings could have been filed by now or at least readied, or appropriate to delay the relief to which the applicant is entitled. (see BLG23 (No 1) at [69]) (2) the appellant has not filed the foreshadowed application since the commencement of this appeal in December 2022 despite: (a) her notice of appeal suggesting that she sought an order staying her appeal until "the questions of law raised by the appellant in the proceeding, are submitted and considered by the High Court"; and (b) an order that I made on 23 February 2023 requiring the appellant to "file and serve any interlocutory application for a stay of her appeal on the basis of an application to the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth) and affidavit evidence in support of that application by 14 March 2023" (see BLG23 (No 1) at [53]) (emphasis in original). 10 Secondly, it does not seem to be necessary for this appeal to be on foot for the appellant to seek the foreshadowed relief from the High Court. 11 Thirdly, I do not accept the implicit premise that the foreshadowed application to the High Court has reasonable prospects of success. 12 Fourthly, in any event, it is far from clear that the dismissal of this appeal would prevent the appellant, in the event that she obtains the relief she proposes to seek from the High Court, from then seeking the annulment of her bankruptcy. 13 Finally, the filing of an application in this Court for a stay of this appeal (see [7(4)] above) would be otiose in circumstances where this appeal is already stayed by dint of the orders made on 2 June 2023. 14 For the reasons I have stated, I will order that the appeal be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.