Fullarton v Australian Securities and Investments Commission [2025] FCA 585

(1) an order which I made on 18 December 2024 that the applicant provide written submissions by 4 February 2025 in relation to her application for a stay of the orders made on 22 October 2024. That date was later extended at the request of the applicant to 3 March 2025. Notwithstanding this, the applicant did not file any submissions;

(2) an order of a Registrar of this Court made on 16 April 2025 requiring the applicant to submit a draft index to Part A of the application book by 23 April 2025; and

(3) an order of Perram J made on 16 May 2025 extending the time by which the applicant was required to submit a draft index to Part A of the application book to 29 May 2025.

1. On 4 March 2025, the applicant failed to appear at the hearing of her application for a stay, and, as a consequence, I dismissed the stay application.
2. On 15 May 2025, the applicant failed to appear at a case management hearing before Perram J.
3. Based on the affidavit material and having particular regard to the email exchanges with my chambers and with the respondent's solicitors, the applicant has been made aware of the steps taken in this proceeding, of the hearings at which she has failed to appear, and of the orders which have been made in the proceeding with which she has failed to comply.
4. Relevantly, the applicant, on her own behalf and by her husband Mr David McWilliams, corresponded with the respondent's solicitors on 3 February 2025, 24 March 2025 and 14 May 2025. She has also received, or through Mr McWilliams has received, emails from my associates concerning today's hearing.
5. The respondent's solicitors provided the applicant with a copy of the orders of Perram J and notification of today's case management hearing, including the order sought by the respondent today, by email and by post.
6. On 30 May 2025, emails were exchanged with Mr McWilliams and my chambers in which he indicated an intention to apply for leave to appear on behalf of the applicant. My chambers advised Mr McWilliams that the hearing was at 9.15 am today and he was provided with a Microsoft Teams link and a telephone number to enable him to appear, including by telephone (if required).
7. On 3 June 2025 at 9.21 am, being after the case management hearing had commenced, Mr McWilliams sent an email to my associate advising that he was unable to log in to Microsoft Teams, and he made certain other statements, including that the applicant sought an extension until 30 June 2025 to submit the index to Part A of the application book. For the reasons explained below, I treated the content of that email as the applicant's submissions.
8. No proper reasons were provided in that email to justify a further extension of time to submit the index to Part A, nor was any proper explanation provided as to why previous orders had not been complied with by the applicant. Taking a generous view, the tenor of the 9.21am email was to the effect that the receivers were in breach of orders and, as a consequence, the applicant was unable to access money to enable legal representation to be obtained for the purposes of preparing for her leave application. However, this assertion was contradicted by the affidavit material filed on behalf of the respondent which included an email from Norton Rose Fulbright, the solicitors acting for the receivers, as follows.
9. On 14 May 2025 at 3.39 pm, Ms Bowler (solicitor for the respondent) sent an email to the solicitors for the receivers:

Dear Colleagues,

I refer to my conversation with Rosie a short time ago.

We refer to the application for leave to appeal filed by Laura Fullarton.

Ms Fullarton has failed to comply with the first step of the timetabling orders and the matter is now listed for case management tomorrow.

Ms Fullarton has sent the below email to the Court

Could you please confirm the receivers [sic] position with respect to the defendants' costs?

Kind regards,

1. The reference in Ms Bowler's email to "the below email" is to the email sent by the applicant to the associates to Perram J on 14 May 2025 at 2.02 pm:

Unfortunately again we will not have anyone appearing on our behalf as BDO refuse to allow us payment for defence, our lawyers have indicated and understandably so there invoices still remain unpaid and they cannot act until they are paid. Lawyers involved are aware of this.

I cannot believe this is going on without the common human rights of a defence.

1. At 4.32 pm, Norton Rose Fulbright replied to Ms Bowler's email:

We refer to your email below and to Ms Fullarton's communication to the Court (which appears to have been sent from Mr McWilliams' email account).

We do not agree with the description provided by Ms Fullarton/Mr McWilliams.

In terms of Ms Fullarton's appeal in QUD683/2024, Ms Fullarton (via Strategic Legal) requested the Receivers' consent to legal fees relating to the appeal being paid from funds held in the Strategic Legal trust account, which funds had originated in the account of Harvey Madison Capital Pty Ltd (one of the companies to which the Receivers are appointed). That request was made in November 2024. The Receivers did not consent to that proposal on the basis that the costs of Ms Fullarton's appeal should not be borne by the company but consented to the payment of an invoice from funds held in a bank account in Ms Fullarton's name.

On 21 November 2024, in responding to a series of requests from Strategic Legal for payments of legal fees relating to a number of different issues, the Receivers requested further evidence of a number of matters (including that the funds in Ms Fullarton's account did not originate from the corporate defendants) and stated in respect of any fees relating to Ms Fullarton, that until they understood the source of the funds held by Ms Fullarton in her bank account, they could not consent to the use of the funds in that account for legal fees relating to Ms Fullarton, including in respect of her appeal. On 29 November 2024 the Receivers wrote to Ms Fullerton and asked a series of questions which included seeking an explanation about the source of funds in her account. She has not responded to that letter. Those questions have been re-stated on a number of occasions. Ms Fullarton has never provided the evidence or explanation sought by the Receivers. Nor has she made a further request for payment of the fees relating the appeal since November 2024. The Receivers have not withheld consent to Ms Fullarton incurring fees, but have not agreed at this stage to their payment for the reasons set out in this email. Please let us know if ASIC or the Court would like any further information in relation to the above or the appeal generally.

Kind regards,

1. Based on the email received from the solicitors for the receivers, I do not accept the explanation provided in the email from Mr McWilliams to the extent that it purports to explain that the applicant's failure to comply with this Court's orders is due to a breach by the receivers of orders or any failure by the receivers to provide access to funds to enable lawyers to be engaged. That is because any inability by the applicant to access funds appears to be due to her own failure to address the queries of the receivers and, in any event, the applicant has not made any further request to access funds since November 2024. This is hardly the conduct of an applicant who is eager to progress her application for leave to appeal.
2. Further and in any event, the statements in Mr McWilliams' email are not supported by any affidavit material filed by the applicant and (indeed) they are made by Mr McWilliams, and not the applicant. For these additional reasons, I give little weight to them.
3. Despite being advised by further email from my associate that he was able to do so, Mr McWilliams decided not to appear at the case management hearing today by telephone. He did not respond to that email to say that he was unable to call or why that was the case.
4. By further email from my associate, Mr McWilliams was asked if there was anything further that he wished to add to his 9.21am email, and he responded at 9.35 am stating that there was nothing further.
5. Considering the repeated failure of the applicant to comply with the Court's orders and the applicant's failure to appear at the stay application and two case management hearings, I formed the view that it is appropriate that the order sought by the respondent be made. That is because, by her conduct, it is apparent that the applicant does not have any genuine intention to prosecute her application for leave to appeal.
6. For these reasons, I make the following orders:

(1) The application for leave to appeal be dismissed.

(2) The applicant pay the respondent's costs of the application.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.