Consideration
33 None of the appellant's submissions has merit.
34 An issue which it is convenient to address first is the appellant's contention that the proceeding before Flick J was an uncontested hearing. This is not so, as the appellant appeared and presented argument in those proceedings.
35 Second, s 52 of the Bankruptcy Act is irrelevant. Contrary to the submissions of the appellant, the proceeding before Flick J had nothing to do with s 52 or with any other provision of the Bankruptcy Act. No question of bankruptcy then arose. We consider s 52 further at [50]-[51] below.
36 Third, as to the appellant's reliance on Ahern v Deputy Commissioner of Taxation (Qld), there is no doubt about the principle that if a genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before the debtor is made bankrupt, but here there is no such genuine dispute and so the principle is inapplicable.
37 Fourth, the appellant appears to contend that r 17.01 of the Rules, dealing with interlocutory applications, governs the powers available to a judge of the Court under s 25 of the FCA Act. This is to confuse process with power. A single judge may exercise the appellate jurisdiction of the Court by making an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court. The power is expressly conferred by s 25(2B)(bb)(i) of the FCA Act.
38 Fifth, we do not accept the appellant's submission to the effect that a judge case managing an appeal may only make orders in the nature of injunctions. The clear words conferring the power which was exercised by Flick J (in s 25(2B)(bb)(i) of the FCA Act) show that such a submission is untenable.
39 Sixth, the appellant's reliance on what Cotton LJ said in Gilbert v Endean is misplaced. The context is provided by a fuller passage from the judgment, at 268-269, as follows:
I am not now adverting to the question as to whether or no the evidence ought to have been given vivâ voce or by affidavit, but to the question whether the rule that on interlocutory applications the Court may act upon evidence given on the witness's information and belief applies to the present case. But for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties. Now many of the cases which are brought before the Court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties, and whatever the form may be in which such questions are brought before the Court, in my opinion the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause.
Contrary to the appellant's submission, the judgment does not stand for the proposition that the rights of parties may not be considered on an interlocutory application.
40 Seventh, the Central Practice Note upon which the appellant relied did not exist at the time of Flick J's decision. In any case, there is nothing in the Central Practice Note to suggest that Flick J erred in allowing the interlocutory application to be heard. There was no miscarriage of justice (or fraud).
41 Eighth, the letter from the solicitors for the respondent to the appellant dated 29 July 2015 should be considered in light of the interlocutory application dated 1 July 2015 (and filed the next day), listed for hearing on 23 July 2015. That interlocutory application sought that the proceeding be dismissed pursuant to s 37AO of the FCA Act. That provision concerns the powers of the Court when satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. The appellant did not appear on 23 July 2015. In her absence, the matter was stood over to 9:30 AM on 25 August 2015.
42 The letter of 29 July 2015 noted that the appellant was in default of the Court's orders 1 and 2 of 10 June 2015 to the effect that the appeal book was to be completed by 26 June 2015 and on or before 9 July 2015, the appellant was to file and serve an outline of submissions. The letter continued that the respondent's solicitors were instructed to file a further interlocutory application seeking the dismissal of the matter under r 36.74 of the Rules. That rule provides that a respondent may apply to the Court for an order that an appeal be dismissed for the failure by an appellant to: comply with the direction of the Court; comply with the Rules; attend the hearing relating to the appeal; or prosecute the appeal.
43 The letter stated that the respondent's additional interlocutory application would be made on the bases that the appellant was in default of orders 1 and 2 made by the Court on 10 June 2015; that she had failed to prosecute a matter by not complying with those orders, not attending, attempting to attend or appointing a representative to attend Court on 23 July 2015; and failing to comply with the Rules relating to appeals generally. The letter stated that if the appellant did not remedy her non-compliance by 5 PM on Friday 21 August 2015, the respondent reserved its right to seek an order that her matter be dismissed pursuant to r 36.74. The letter noted that the Court did not proceed to hear the respondent's interlocutory application filed on 1 July 2015 in the appellant's absence, but that the respondent's solicitors were instructed to request that the Court proceed with that application on 25 August 2015.
44 The letter involved neither fraud nor a breach of any model litigant obligations.
45 Ninth, contrary to the submissions of the appellant, the Administrative Decisions (Judicial Review) Act has no application, as the judgments of the Court are not decisions of an administrative character within the meaning of that Act. The judgments of the Court are made in the exercise of judicial power.
46 Tenth, we see no error on the part of the primary judge in his consideration of whether there was a proper basis for going behind the judgment of Perram J. The appellant's submissions take no proper account of the decision of the Full Court in Telstra Corp Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253, applied more recently by a Full Court in Commonwealth of Australia v Snell [2019] FCAFC 57; 370 ALR 1. Instead, the appellant's submissions refer to the discussion in Hannaford at first instance, Hannaford v Telstra Corp Ltd [2005] FCA 1298; 88 ALD 702, which was reversed by the Full Court on appeal. Justice Perram, at [23], followed the Full Court's judgment at [57] and [59] in finding there was no doubt the "Comcare, is entitled to take the course of reassessing a claim if fresh evidence suggests the injury is no longer extant".
47 Eleventh, no question arises of breach by the respondent of its model litigant obligations in the appeal before Perram J. His Honour said at [26]:
As to contention (c), I do not accept either that Comcare has behaved in any way inappropriately or that, even if it had, that this would be relevant in this proceeding. As with several features of this litigation, there is a gulf separating Ms Dunkerley's perceptions of reality and reality itself. In any event, a breach of the model litigant requirements has no consequences in terms of civil litigation. Such a breach may be relevant to other inquiries, such as discipline, but it is not relevant to the case in which the breach is said to arise: Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 at 357 [110] (FC); Croker v Commonwealth [2011] FCAFC 25 at [19].
48 Contention (c) was that the hearing before the AAT had involved a miscarriage of justice, in that Comcare had failed to clarify for the AAT what her case was. The appellant submitted to Perram J that this was a breach of the respondent's obligations as a model litigant.
49 We consider that Perram J was not addressing any consequences of procedural unfairness or any issue of costs, but had in mind s 55ZF of the Judiciary Act 1903 (Cth), which provides for the Attorney-General to issue Legal Services Directions applying to Commonwealth legal work, and s 55ZG of that Act, which specifies which persons or bodies must comply with Legal Services Directions. Section 55ZG(2) provides that compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General. Section 55ZG(3) provides that the issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.
50 It is unnecessary separately to consider Ramsay Health Care, Simon v Vincent J O'Gorman Pty Ltd, Corney v Brien and HWY Rent Pty Ltd v HWY Rentals (in liq). The principles are not in dispute. In the present case no occasion arises for their application. Each case turns on its own facts. We note, however, that Ramsay Health Care, for example, concerned the hearing of a creditor's petition and therefore s 52 of the Bankruptcy Act. Section 52 provides:
52 Proceedings and order on creditor's petition
(1) 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.
51 The present case did not involve the hearing of a creditor's petition. Consequently, s 52, which is only concerned with the hearing of a creditor's petition, has no application. The source of the Court's jurisdiction to set aside a bankruptcy notice was considered in Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq), Ren v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] FCA 461; 315 ALR 523.
52 The primary judge considered the relevant principles and applied them. In so doing, he did not fall into appealable error. Indeed, we respectfully agree with his Honour that the appellant did not provide any reason to warrant the Court going behind the costs orders and judgments underlying the bankruptcy notice.
53 For completeness, we note that there was a dispute between the parties as to the inclusion of certain supplementary documents in the appeal book before this Court, the appellant contending for their inclusion. We have read those documents, but do not regard them as relevant to the issues that arise on the appeal. They would perhaps have had some relevance if this Court were hearing an appeal from any of the three judgments of Perram J, Flick J and Rares J, or if the appeal before Perram J from the AAT were not by statute limited to a question of law. Further, as the primary judge observed, at [72], the current proceeding cannot be converted into a surrogate appeal from Perram J's judgment, especially when the appellant's appeal from that judgment was dismissed by Flick J.
54 Also for completeness, and with reference to the remedies sought by the appellant set out at [11] above, as Robertson J noted in Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq), Ren v Wan Ze Property Development (Aust) Pty Ltd (in liq) at [57], this Court does not have the power to set aside the judgments on which the bankruptcy notice is based, even if it were to go behind the judgments. This Court is not hearing an appeal from those judgments.