Amendment without Adjournment
30 The first and second Grounds of Appeal can be dealt with together. Those grounds, in summary form, contend that the primary Judge erred in hearing and allowing an oral application for leave to further amend the existing Amended Application and to proceed to hear and determine the further Amended Application without adjourning the proceeding.
31 Reliance upon these two grounds, however, confronted at the outset either of at least two formidable hurdles raised on behalf of either the Official Trustee and/or Lend Lease, namely:
the decisions sought to be impugned were decisions going to the manner in which discretionary powers going to the practice and procedure of the Court were exercised; and/or
the decisions were interlocutory decisions, which required the leave of the Court to be granted before they could be entertained: Federal Court of Australia Act 1976 (Cth) s 24(1A).
A further contention was that the entire appellate process was "misconceived". The decision which it is said most immediately affected the now Appellants was the decision of the Official Trustee to make the agreement with Lend Lease. And that decision, so it was contended, should have been challenged by way of an application made pursuant to s 178 of the Bankruptcy Act rather than a challenge to the decision made in respect to the application made pursuant to s 134.
32 The Appellants accepted the need to identify some error of principle in the manner in which the primary Judge exercised his discretionary powers: House v R (1936) 55 CLR 499. Dixon, Evatt and McTiernan JJ there expressed the principles to be applied as follows, at 504 to 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
This expression of principle has been repeatedly endorsed: e.g., Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [16], 250 ALR 13 at 19 per Tamberlin, Greenwood and Collier JJ; Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [99] per Besanko, Perram and Katzman JJ; Ali v Collection Point Pty Ltd [2011] FCAFC 87 at [69] per Rares, Foster and Dodds-Streeton JJ.
33 The Appellants, however, denied that the decision of the primary Judge was an interlocutory decision - but further contended, in the alternative, that they satisfied the requirements to be met if leave to appeal was needed. These requirements are frequently expressed as requiring an appellate Court to consider:
whether in all the circumstances the judgment of the primary Judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and
whether substantial injustice would result if leave were refused, supposing the decision would be wrong.
See: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 per Sheppard, Burchett and Heerey JJ. These requirements, it has been said, are "cumulative" and are not satisfied unless each limb is made out: Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139 at [5] per Ryan, Stone and Jagot JJ. But the two limbs are not unrelated: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ. The "sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments": Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908 at 910 per Burchett J. In Re CSR Limited [2010] FCAFC 34 at [5], Keane CJ and Jacobson J observed that "[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice".
34 In seeking to establish the error of principle for the purposes of House v R or the "sufficient doubt" and the "substantial injustice" for the purposes of obtaining such leave as was necessary for the purposes of s 24(1A) of the Federal Court of Australia Act, the Appellants place at the forefront of their submissions:
the not "insignificant" changes which resulted from the further amendment to the existing Amended Application, those changes affecting "the nature of the relief sought in the proceeding, and the scope of the assets which the [Official Trustee] was seeking to have assigned to" Lend Lease; and
the fact that an important affidavit filed in support of the amendment application on behalf of Lend Lease was only affirmed on 22 February 2011, the day prior to the hearing. No satisfactory explanation, it is pointed out, has been forthcoming as to why this affidavit (or at least parts of the affidavit) was not filed in accordance with the direction as made on 20 December 2010 and no explanation as to why there was (in any event) apparent non-compliance with Order 14 r 7 of the now repealed Federal Court Rules. Part of the affidavit may have been in response to an affidavit that had been filed on behalf of the Bufalo Respondents; but that part of the affidavit directed to the further amendment to be made on 23 February 2011 should have been filed much earlier.
Reliance was also placed upon such further matters as:
the absence of any inquiry as to when the decision had been made to further amend; and
the absence of any explanation as to the lateness of the application being made.
35 The Appellants also correctly contended that a distinction was well-recognised between discretionary decisions which were merely matters of practice and procedure and those discretionary decisions which determined substantive rights: National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155. The Full Court there reaffirmed the principles governing the circumstances in which appellate courts would interfere in the exercise of the discretion of primary Judges. In so doing, the Full Court cited with approval the following observations of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; 35 ALR 625 at 629:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively ... For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In Re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323:
"... I am of the opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
Similarly, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572, 104 FCR 564 at 583 to 584 French J (as His Honour then was) summarised the principles as follows:
[42] The application of the leave requirement should not involve the expenditure of significant intellectual energy on the distinction between final and interlocutory judgments. … But the policy supports a general principle, applicable with or without a statutory leave requirement, to the exercise of appellate jurisdiction, including that of the Federal Court even before the enactment of s 24(1A). The principle was expressed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 in terms that: "... appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure." The policy supporting the principle was clearly stated by Jordan CJ in Re Will of Gilbert (1946) 46 SR(NSW) 318 at 323, and repeated with approval by the High Court in the Philip Morris case …
[43] Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question … But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pre-trial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties "... a prima facie case exists for granting leave to appeal" …
[44] The Full Court in Minogue restated the two tests enunciated in Decor Corporation which have been developed to justify the grant of leave to appeal from an interlocutory order. The first is that the decision at first instance should be attended with sufficient doubt to warrant its reconsideration on appeal. The second is that substantial injustice would result if leave were refused.
In the present proceeding, the fact that no general principle is involved tells against allowing an appeal; the finality that the primary Judge's decision had on resolving the direction sought, however, may tell more firmly in favour of an appellate Court intervening. See also: Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39, 182 FCR 124; Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 at [35] per Rares J, at [165] per Foster J.
36 Whatever may be the difficulty confronting the Appellants, it must necessarily be recognised at the outset that any prospects for success on the present appeal depended - not upon any absence of power to proceed in the manner in which the primary Judge did in fact proceed - but upon a contention that the primary Judge erred in the manner in which he exercised one or other of the discretionary powers. The discretionary decision which really had to be successfully challenged was the decision to "proceed with the trial generally" pursuant to the power conferred by Order 32 r 2(1)(d).
37 But the initial hurdle that any appellant must confront when seeking to challenge discretionary decisions turned out, however, not to be the reason for rejecting the first and second of the Grounds of Appeal. Had it been necessary to resolve whether an error in principle emerged from the events as they unfolded on 23 February 2011, that question may have been resolved in favour of the Appellants.
38 Even in expressing that tentative observation, it must constantly be borne in mind that a considerable latitude must necessarily be extended to any Judge at first instance to deal with matters of practice and procedure. The fact that different Judges of this Court may well have approached the application made on 23 February 2011 in a different manner is, with respect, beside the point. Some Judges may well have adjourned the application and made directions requiring notice to be given to the Bufalo brothers and extending to them a further opportunity to be heard. But the fact that different Judges may have so proceeded is not to be equated with appellable error.
39 It must also be recognised at the outset that the source of the difficulties confronting the primary Judge as they emerged on 23 February 2011 was primarily to be found in the conduct of the Official Trustee. The manner in which it had drafted the Application and its initial affidavit evidence lacked the precision necessary when a direction pursuant to s 134(4) is sought. If attention is focussed upon the Application as initially filed, there was considerable uncertainty in the order then sought: namely, an order that the Official Trustee was "justified in accepting the offer to assign the cause of action in the terms of the Deed …". What was intended to be conveyed by the expression "the cause of action" - as opposed to an order that the Court approve the Official Trustee assigning "the Assets" to Lend Lease - remained elusive. And the principal evidence initially relied upon by the Official Trustee (an affidavit of Ms Anderson), with respect, failed to remove any uncertainty. Ms Anderson thus stated in part as follows:
9. By Deed dated 29 September 2010 the Official Trustee has agreed to assign the proceeding to the First Respondent ("Prime Life") subject to this Court's approval. Now produced and shown to me and marked "GMA-5" is a copy of this Deed.
10. Since the signing of the Deed, Prime Life has informed the Official Trustee that it no longer desires to acquire John and Joe Bufalo's shares in Bufalo Corporation (which is defined in clause 1.6 of the Deed). The phrase "the BC shares" ought to be deleted from the definition of "the assets" in clause 1.2 of the Deed. The balance of the Deed will otherwise continue to apply.
The affidavit concluded:
17. I respectfully request this Honourable Court to approve of the Official Trustee entering into the Deed (amended as set out in paragraph 10 above) and to make consequential orders in this regard.
Although Ms Anderson quite properly annexed a copy of the Deed to her affidavit and quite properly sought the Court's approval to the Official Trustee entering into the Deed, with the benefit of hindsight the body of the affidavit could (perhaps) have made express reference to that for which approval was sought rather than that for which approval was not sought. Uncertainty may also be found in correspondence from the Official Trustee to the Bufalo family in October 2010 referring to negotiations "for the assignment of the chose-in-action". That correspondence, it would appear, did not set forth in any detail "the Assets" which were the subject of the agreement; nor did that correspondence annex a copy of the Deed as executed.
40 The oral application for leave to amend as made on 23 February 2011 may properly be characterised as an application that more accurately set forth the direction which may well have been contemplated from the outset. But the fact remains that the application as ultimately made was different to that as previously expressed in either the initial Application or the Amended Application and different in substance to that which had been outlined in earlier correspondence.
41 Considerable care needs to be exercised when drafting any direction that may be sought pursuant to s 134(4). The terms in which a direction is drafted places the Court in a position where it can properly form a view as to whether it is truly a direction "in respect of a matter arising in connexion with the administration of the estate" and not, for example, a merely advisory opinion.
42 As demonstrated by the present proceeding, sufficient care was not initially taken when drafting the direction which was truly necessary to give effect to the Deed. And, as also demonstrated by the present proceeding, the direction which is sought may change over time. When the Deed was first executed, it was thus the intention of the parties to that Deed to assign "the Assets". But, at the time when the Court was asked to make a direction, there was no longer a continuing interest in assigning the shares in Bufalo Corporation Pty Ltd.
43 Little attention, however, was apparently given to the precise direction which was sought until shortly before the hearing on 23 February 2011, if not on the day of the hearing itself. The affidavit affirmed on 22 February 2011 was an affidavit of some significance and foreshadowed the further application to amend that was to be made on the day of the hearing as follows:
I make this affidavit in support of the amended application filed in this proceeding on 20 December 2010 save that the order sought by the First Respondent is that "Pursuant to s.134 of the Bankruptcy Act 1966 a declaration that the Applicant is justified in accepting the offer to assign the Assets (as defined in clause 1.2 of the Deed dated 29 September 2010 being exhibit GMA-5 to the Affidavit of Gina May Anderson sworn 7 December 2010 ("the Deed")), alternatively an order or declaration pursuant to s.134 of the Bankruptcy Act 1966 approving the Deed…
Given the further application to amend which was being foreshadowed, the concern of the now Appellants as to why this affidavit had not been affirmed and filed far earlier is a concern that cannot be summarily rejected.
44 The difficulties occasioned by this lack of attention to the detail of the application in fact being made was only compounded by the fact that the now Appellants were unrepresented and indeed did not appear at the hearing on 23 February 2011.
45 The difficulties that arise when parties are unrepresented is well-recognised. The difficulties have long been recognised by this Court (e.g., Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85, 84 FCR 438; Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147 at [59] to [61] per Beaumont, Conti and Crennan JJ; Croft v Evertop Investments Pty Ltd (No 2) [2011] FCA 749 at [11] to [12] per McKerracher J) and other Courts (e.g., Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 16 June 1986). In passages which have been frequently cited and applied with approval, in Rajski Samuels JA observed:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
In the same decision, Mahoney JA similarly observed:
Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.
A "frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy": Neil v Nott (1994) 121 ALR 148 at 150. The difficulties confronting both the Court - and the duties imposed upon it - and the difficulties confronting an unrepresented party are obviously made only more complex when the unrepresented party fails to appear.
46 Given both the fact that there was little reason why the application for the directions which were ultimately sought could not have been made at the outset and the fact that the amendment as made on 23 February 2011 did in fact substantially change the direction to be made, an error in the exercise of the discretion to allow the amendment and to continue with the "trial generally" may well have occurred.
47 No error in principle, it is separately concluded, arises in respect to those events which emerged when the primary Judge returned to his Chambers and which are the subject of the "Postscript" to his reasons for decision. Any appellable error is to be found, if at all, in the manner in which His Honour "proceed[ed] with the trial generally".
48 The reason for dismissing the first and second of the Grounds of Appeal is to be found in either of two separate conclusions, namely:
a) prior to 23 February 2011 the now Appellants well knew that the substance of the direction being sought by the Official Trustee was approval to go ahead with the agreement set forth in the Deed; and/or
b) the continuation of the hearing in the absence of the Appellants on 23 February 2011 worked no injustice to them.
49 Notwithstanding the potential for obfuscation that the manner in which the Official Trustee failed to properly formulate the direction to be sought, the fact is that the now Appellants well knew prior to 23 February 2011 that the Official Trustee was asking the Court for approval to give effect to the Deed and approval for the assignment of "the Assets". A Notice of Grounds of Opposition was thus filed by Mr Antonio Bufalo on his own behalf and on behalf of his two sons (the then Respondents) on 28 January 2011. That Notice stated:
The Third to Fifth respondents oppose the making of the orders sought by The Official Trustee in Bankruptcy as the assets sought to be assigned as identified in the Deed have revested in them (the Third to Fifth Respondents).
There is, with respect, considered to be no ambiguity in the expression "the assets sought to be assigned as identified in the Deed". The conclusion is thus inevitable that the now Appellants well knew prior to 23 February 2011 the substance of the application to be made.
50 Moreover, it is further concluded that the continuation of the hearing in the absence of the now Appellants worked them no injustice. If the position of Mr Antonio Bufalo is presently left to one side, no injustice was occasioned to either Mr Giovanni Bufalo or his brother Mr Giuseppe Bufalo. They knew as from the hearing on 20 December 2010 that the hearing was listed to commence on 23 February 2011. They had the opportunity to attend that hearing had they so wished. Whatever significance may be attached to any indisposition of the father on that date, they must have known of the father's ill-health and deliberately opted themselves not to attend.
51 That which is required by the rules of natural justice or procedural fairness is that a party be given an opportunity to be heard; the rules do not impose any obligation to ensure that a party takes the best advantage of that opportunity: Sullivan v Department of Transport (1978) 20 ALR 323. Albeit in the context of addressing s 39 of the Administrative Appeals Tribunal Act 1975 (Cth), Deane J (when a member of this Court) said:
The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
Smithers and Fisher JJ agreed. Similar observations have also been made in Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748 per Cooper J; Goodricke v Comcare [2011] FCA 694 at [60]; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ. See also: Re Association of Architects of Australia; Ex parte Municipal Officers of Australia (1989) 63 ALJR 298 at 305 per Gaudron J.
52 Other than to assert that the sons left it to the father to conduct the proceeding, there was no satisfactory explanation for why there was no appearance by anyone on behalf of the now Appellants on 23 February 2011. Nor was there a satisfactory explanation advanced as to why even Mr Antonio Bufalo could not have arranged for somebody - be it a solicitor or a McKenzie friend - to attend and explain his circumstances.
53 Moreover, there was no satisfactory identification of what the now Appellants would have said had they in fact attended. Other than to oppose the direction being sought, the only further factual subject-matter that they may have wished to address was their exclusion from negotiations as between the Official Trustee and Lend Lease. An affidavit that had been filed by Mr Antonio Bufalo on 28 January 2011 thus stated in part as follows (without alteration):
I deny the assertions made by Anderson at paragraph 5 of her affidavit and say that at no time during the course of the negotiations and discussions which, it now appears, the OTB has been conducting with the proposed purchaser of the choses in action ("Lendlease Primelife"), culminating in the preparation of the Deed, did the OTB advise, or inform us, or any of us (my sons and I) of those negotiations discussions with Lendlease Primelife with a view to negotiating and procuring and assignment of the choses in action. We never received, or were advised of, any of the negotiations how they were commenced, in what context those negotiations proceeded and on what bases.
I note that the letters to which Anderson has referred, being exhibits GMA6 and GMA7 of her affidavit are dated the 25th October 20101 and 5 November 2010- after the OTB and its solicitor now appear to have completed their negotiations culminating in the purported Deed between the OTB and Lendlease Primelife, but that Anderson has continued in the conduct of the OTB and tis solicitor, inter alia, in not disclosing to my sons and myself any of the negotiations and discussions between the parties and, in particular, the Deed and its terms. Much of the letters which are exhibits GMA6 (sent to an address at which we were not residing) are misstatements of the facts and the position of the OTB, and are self serving and incorrect in their claims of the state of awareness of my sons and I as to the negotiations, discussions, and dealings between the OTB and Lendlease and their respective solicitors, and I ask this Honourable Court to direct the lawyers for OTB and Lendlease Primelife to produce to produce to the Court their files pertaining to the negotiations and dealings between the parties culminating in the Deed.
Such errors as have been made by Mr Antonio Bufalo in identifying (for example) the paragraphs in Ms Anderson's affidavit to which he was replying assume no relevance. What is of importance is the fact that the subject-matter of such submissions as may have been made in respect to negotiations assumes little importance in the resolution of the present appeal for either of two reasons.
54 First, there was probably no entitlement on the part of the now Appellants to be consulted when the deal between the Official Trustee and Lend Lease was being negotiated. And, second, there was no evidence as to the now Appellants being in any position to now offer the Official Trustee (or the creditors) any better deal than had been embraced by the Deed. The primary Judge was both conscious of the desire on the part of the Appellants to make a submission as to their involvement in negotiations and the need to secure as favourable a result to creditors as possible. As correctly observed by the primary Judge:
[18] The other points raised against the approval of the deed relate to concerns of the Bufalos of a lack of knowledge by them of the course of negotiations between the applicants and Lendlease. One can understand the concerns of the Bufalos about losing a potential asset or assets. However, the approval of the relevant portions of the deed has the advantage of returning to creditors most of the funds owed to them by the Bufalos. This result is in the public interest. It promotes public confidence in the ability of the legal system to assist creditors recover debts from their debtors. Accordingly, I consider it is appropriate to make an order in the terms of the further amended application.
Had the Official Trustee been presented with a better offer on the part of the now Appellants, perhaps different considerations may have arisen. And, in any event, the now Appellants had been on notice as from at least early November 2010 as to the agreement that had been reached. There was no evidence that as between that date and February 2011 they had been denied any opportunity to further negotiate with the Official Trustee during that four month period.
55 In such circumstances, and even if there had been an error in the application by the primary Judge to the discretionary decisions being made on 23 February 2011, the now Appellants have not suffered any injustice. In resolving the first and second Grounds of Appeal, any discretion which is now to be exercised is resolved against the Appellants. Although an appellate Court should proceed with caution in reaching a conclusion that a denial of procedural fairness has had "no bearing on the outcome of the trial of an issue of fact" (cf. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 to 146 per Mason, Wilson, Brennan, Deane and Dawson JJ; House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 at [17] per Greenwood J, at [133] per Gilmour J, at [173] to [174] per Logan J), such is the conclusion to be reached in the present appeal.
56 The decision made by the primary Judge to "proceed with the trial generally" operated no injustice.
57 Grounds one and two of the Grounds of Appeal are rejected.