Ebner v Official Trustee in Bankruptcy

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 27 June 2025, a deputy registrar made orders prefaced with a notation in these terms:

This matter came before me today in chambers in the absence of the parties as duty registrar to consider the urgent listing of the husband's application in a proceeding filed on 16 June 2025 and his further application in a proceeding filed on 26 June 2025.

The order goes on to list those applications in a proceeding before a senior judicial registrar on 17 July 2025 in Melbourne. There are some other orders, but they are the operative ones for present purposes.

1. On 1 July 2025, the applicant before me, Mr Fowles who is the respondent in the principal proceedings, filed an application to review that decision of the registrar. In the application for review, he specifies the orders against which he seeks the review as follows:

The registrar's decision made on 27 June 2025, communicated via email by the National Support Pool, to list my application in a proceeding (filed 26 June 2025) for hearing on 17 July 2025 before Registrar Conlon, rather than referring it to a division 1 judge for urgent determination prior to the 4 July 2025 contravention hearing. The decision denied urgent judicial review of my conflict and disqualification application, despite the serious procedural prejudice I face if the matter is not resolved before conflicted counsel appear at a liberty-limiting hearing.

1. In Part D of the Application for Review, the applicant sets out the orders that he seeks.
2. An application for the review of a registrar's decision, such as the present, is a hearing de novo of the application before the registrar. The application before the registrar was for the urgent listing of two applications in a proceeding, and perhaps arguably although the material is not before me to make this out (but I will assume it in the applicant's favour in any event) an application to have those applications in a proceeding listed before a judge rather than a registrar.
3. The Application for Review has been overtaken by events. 4 July 2025 has passed, and whatever was to occur on that day did not occur. But more than that, it is now patently clear from both the submissions made by each of the parties and the court file itself that the relevant applications and some others have now been listed for hearing before a judge of Division 1 in Melbourne on 22 July 2025.
4. The applications that have been listed are those filed on 2 April 2025, 15 April 2025, 25 June 2025, 26 June 2025, 27 June 2025, 4 July 2025 and, by implication, those filed on 28 March 2025 and 30 April 2025. The Application in a Proceeding filed by Mr Fowles filed on 28 March 2025, seeks certain declarations about the conduct of solicitors and counsel appearing for the respondent in these applications (who is the applicant in the principal proceedings). It seeks a range of other relief in respect of a third-party debt notice and various other orders, some of which are completely outside of the Court's jurisdiction. The application of 30 April 2025 seeks an order that it be heard ex parte and seeks certain relief in respect of passport and watchlist orders that were made on 9 August 2024 and 12 December 2024. There are some other orders sought as well. The application filed on 2 April 2025 seeks an order that the solicitors on the record for the respondent, Lander & Rogers, be restrained from continuing to act in the proceedings on the basis of a conflict of interest. It seeks a similar order in respect of counsel retained by those solicitors. It is, in effect, a repetition of some of the relief sought in the application filed on 28 March 2025. Importantly, it seeks an order that the application be heard by Hartnett J.
5. The application in a proceeding filed on 15 April 2025 seeks relief for contempt against the solicitors Lander & Rogers, It seeks that Lander & Rogers pay to the applicant a certain sum within seven days. It seeks that there be "a segregated accounting proceeding", whatever that might be, and a number of other orders relating to abuse of process. Significantly, it seeks an order that a person called Mr FU be incarcerated for a term of 365 days. The application in a proceeding filed on 25 June 2025 seeks more extensive relief, but refers back to the applications that were filed on 30 April 2025, 15 April 2025 and 28 March 2025. It seeks a range of orders, asserting conflicts of interest both in respect of Lander & Rogers and counsel who have been engaged from time to time by them, Mr Sheales and Mr Nehmy of Senior Counsel.
6. The application of 26 June 2025 specifically seeks relief against Mr Nehmy SC and Mr Sheales and Lander & Rogers. It is a fairly repetitive application. The application filed on 27 June 2025 seeks relief in respect of some subpoenas and that leave might be granted to issue subpoenas for production against a list of named persons, and, finally, the application of 4 July 2025 seeks that the operation and enforcement of orders made by Judicial Registrar Sudholz on 12 June 2025 be stayed in their entirety pending the determination of the respondent's application for review filed on 1 July 2025.
7. All of those applications, either directly or indirectly, are listed before a judge of the Federal Circuit and Family Court of Australia (Division 1) in Melbourne on 22 July 2025.
8. The utility of the present Application for Review is illusory. It has no utility, and in circumstances where the relief that might be granted on this application is entirely illusory and futile, there is no basis to allow the application. The application for review of the orders of the registrar made on the 27 June 2025 will be dismissed.
9. All of the outstanding applications have been listed before a judge of the Federal Circuit and Family Court of Australia (Division 1) for hearing. It is not the case that litigants get to pick and choose the judges who hear their cases. Cases are allocated according to the Court's processes. Sometimes, litigants are content with the judges they are allocated, and sometimes they are not, but it does not matter one way or the other, because litigants have no choice. The only basis upon which a judge might divest themselves of the obligation to hear and determine a case that has been listed before them is if the rules identified by Mr Fowles in this case, set out by the High Court of Australia in cases like Johnson v Johnson [2000] HCA 48 and Ebner v Official Trustee in Bankruptcy [2000] HCA 63, are engaged.
10. But those applications, described as applications for disqualification or recusal, are applications which are to be determined by the judge who is seized of the case, not by some other judge who is not. Any attempt in the present proceedings to have me deal with these applications which are presently listed before another judge is entirely inappropriate. It was said during the course of submissions that such is the "entanglement" of the Melbourne Registry of this court, that somebody outside of that Registry needs to have a look at the case. However, this submission ignores two fundamental propositions. The first is that the Court decides who will hear cases, not litigants, and second, a judge who is seized of and who is to determine a case will do so according to his or her oath of office, and it is only in circumstances identified in cases such as Ebner and Johnson, that a judge has any authority to divest themselves of the obligation to hear and determine a case. I cannot do that for another judge, and even if I could, I would refuse to do so in the circumstances of this case.
11. This case, as the submissions have made clear, is a prime example of each party playing the man rather than the ball. Neither party has their eye on what, ultimately, they should have their eye on - that is, a proper outcome in the proceedings. The submissions made for both parties have concentrated on doing nothing more than slandering the other side. I have no interest in such things, nor does this court.
12. The orders will be as I have pronounced.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett.