Gilbert v Parkyn [2025] FCA 1182

1. Section 60(2) Of The Bankruptcy Act 1966 States:

'An action commenced by a person who subsequently becomes bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes an election, in writing, to prosecute or discontinue the action'.

1. The Applicant is seeking permission of the Federal Court for self‑representation in the Federal Court in order for the Applicant to serve a 'Creditors Statutory Demand' in terms of Section 459E of the Corporations Act. See attached 'Statement of Claim' dated 31st. March 2025 for explanation.

1. It seems that the statutory demand Mr Gilbert had in mind here would be one served on Sila Australia Pty Ltd in respect of the debt that Mr Gilbert had been pursuing in the District Court.

1. The Registrar notified Mr Gilbert of his decision, with reasons, in a letter dated 4 April 2025. The Registrar refused to accept the documents under both r 2.26 and r 2.27 of the Federal Court Rules 2011 (Cth). Rule 2.26 is:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a) on the face of the document; or

(b) by reference to any documents already filed or submitted for filing with the document.

1. The Registrar construed the Proposed Application as seeking the Court's permission to lodge a statutory demand, which is not a document that is filed with any court. The Registrar decided that the application was therefore doomed to fail and so was an abuse of process.
2. Rule 2.27 relevantly provides that a document will not be accepted for filing if it does not substantially comply with the Federal Court Rules: r 2.27(b). For reasons set out below, the Registrar considered that the statement of claim did not substantially comply with r 16.02 of the Federal Court Rules, which governs the contents of pleadings.
3. A decision under r 2.26 is administrative in nature: see Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [32], [41] (Barker, Banks-Smith and Colvin JJ). While there is no direct authority that a decision under r 2.27(b) is also of that character, there is no reason to treat it any differently: see e.g. Pearson v Ng [2015] FCA 1160 (Perry J); Mbuzi v Curnow (Registrar) [2025] FCA 213 at [44]- [48]. I also note the observations of Colvin J in AMB19 v Minister for Home Affairs [2020] FCA 439 at [63], albeit in the context of r 2.27(f). It is therefore open to Mr Gilbert to seek judicial review of the decisions: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [49]- [50]; Nyoni v Murphy at [41].

1. Mr Gilbert's application for the Registrar's decision to be set aside does not say how the Court's jurisdiction is invoked. But the form he has used is the form that pertains to applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). I therefore take the application for judicial review to have been made under that Act.
2. Section 5 of the ADJR Act specifies a number of different grounds on which an application can be based. When given an opportunity to specify which one he relies on, Mr Gilbert referred to s 5(1)(a), which permits an application on the ground 'that a breach of the rules of natural justice occurred in connection with the making of the decision'.

The refusal to accept the documents under r 2.26

1. Under the heading 'details of claim' in the application for judicial review, Mr Gilbert asserts that the Proposed Application was not an abuse of process because it does not do various things that can amount to an abuse, for example, it is not a misuse of the legal system to achieve an ulterior purpose. However, this part of the application does not engage with the reason why the Registrar characterised the Proposed Application as an abuse, as set out above. So it does not need to be addressed here.
2. Mr Gilbert does engage with the Registrar's reasons in paragraph 2 of the 'Details of claim' where he says that he was not seeking by means of the Proposed Application to lodge a statutory demand, even though that was his aim. What he says he was seeking was 'the Federal Court's permission for self-representation in the Federal Court'.
3. These details of the claim are repeated in an outline of written submissions that Mr Gilbert has filed in support of his application for judicial review.
4. If Mr Gilbert were to succeed by this argument in demonstrating that the Registrar had misunderstood the nature of the Proposed Application, that could conceivably amount to a breach of the rules of natural justice, by analogy with the principles concerning misstating, and so failing to deal with a claim, as applied in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [23]- [24] (Gummow and Callinan JJ), [95] (Hayne J agreeing).
5. I am not satisfied, however, that the Registrar did misstate the nature of the claim as set out in the Proposed Application. As set out above it was 'seeking permission of the Federal Court for self-representation in the Federal Court in order for the Applicant to serve a "Creditors Statutory Demand"'.
6. The Statement of Claim, on which the Registrar relied, says (at para 7, emphasis in original):

THE PURPOSE AND OBJECTIVE of this 'STATEMENT OF CLAIM' is

a) To achieve permission to be a self-litigant, and then

b) To lodge a Creditors Statutory Demand against Sila Australia Pty. Ltd. in the Federal Court, in order to

c) Achieve repayment of debt through a mutually acceptable outcome.

1. Sub-paragraph (b) says that Mr Gilbert wishes to lodge the statutory demand in the Federal Court. Read in the context of the Proposed Application, it was open to the Registrar to understand at least one aspect of the documents Mr Gilbert sought to file as seeking the Court's permission to lodge in the Court and serve a statutory demand.
2. The Registrar was correct to say that a statutory demand is not filed in the Court. Mr Gilbert does not suggest otherwise. Any application for permission to do so was, therefore, doomed to fail. It was open to the Registrar to characterise it as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); see also Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [36].
3. I am not persuaded that the Registrar misunderstood the nature of the Proposed Application as it appeared on the face of the documents sought to be filed. Whatever Mr Gilbert might have subjectively intended by the Proposed Application, he did not express that with any clarity in the documents he sought to file.

The refusal to accept the documents under r 2.27

1. In his letter of 4 April 2025, the Registrar said:

I do not consider the statement of claim substantially complies with the rules as to pleadings. The general requirement for pleadings is set out in rule 16.02 of the Federal Court Rules 2011. Rule 16.02(1) sets out what a pleading must do, whereas Rule 16.02(2) explains what a pleading must not do. Among other things, a pleading must not be likely to cause prejudice, embarrassment or delay in a proceedings. Having read your statement of claim, I am satisfied that it does not substantially comply with the rules as to pleadings because it:

• Is in the nature of a discursive narrative, rather than a document that is appropriately brief, with each paragraph dealing with a separate matter;
• Includes documents that may constitute evidence, rather than pleaded facts; and
• Contains material which I consider is frivolous or vexatious.

As such, I consider that the statement of claim you sought to file would be likely to cause prejudice, embarrassment or delay in the proceeding if it were accepted for filing.

1. Mr Gilbert's details of claim and outline of written submissions contradict this by merely asserting that his statement of claim does substantially comply with the rules (they also engage with other grounds in r 2.27 on which a document will not be accepted for filing, but they are not grounds on which the Registrar's decision was based).
2. Neither the details of claim nor the outline of submissions filed in this proceeding say why the statement of claim substantially complied with the rules as to pleadings. They make a reference to s 90-20 of Sch 2 (Insolvency Practice Schedule (Bankruptcy)) to the Bankruptcy Act 1966 (Cth) as giving Mr Gilbert standing to make an application under s 90-15. The relevance of this is not apparent. The outline of submissions then goes on to give a brief chronology of Mr Gilbert's attempt to file the Proposed Application, and some background to the debt Mr Gilbert seeks to claim in the proposed statutory demand. But none of this establishes that the Registrar was incorrect to say that the statement of claim did not comply with r 16.02 of the Federal Court Rules.
3. Even if the Registrar was incorrect, that would not necessarily be enough to succeed in an application for judicial review. This application is not an appeal, in which the Court might engage directly with the merits of the matter, and substitute its own view for that of the Registrar. In order to succeed, Mr Gilbert needs to establish one or more errors of the kind set out in s 5(1) of the ADJR Act. As has been said, he relies on s 5(1)(a) concerning the rules of natural justice.
4. Mr Gilbert's details of claim and outline of submissions do not contain anything capable of establishing a breach of the rules of natural justice. The only point at which he attempts to address the topic is in a written submission he sent in response to an invitation from my Chambers for him to specify which of the grounds in s 5(1) of the ADJR Act he relied upon, and why. At the end of the resulting submission Mr Gilbert says the following (emphasis in original):

(1) Disregarding any technical and legal issues, there can be no doubt that Sila has a moral obligation to meet its commitment in 2015 to make defined payments to [the Gilbert Family Trust] and/or me (JW Gilbert) personally.

(2) Importantly, no defence on the merits has been entered by Sila at any point in past proceedings

(3) My wife and I have demonstrably been left with literally nothing because we put everything we had into the Sila business in order to keep it going.

(4) Given the above two points, it could reasonably be argued that permission to continue with self-representation in Court is natural justice.

1. Regrettably, this reflects a misunderstanding of the legal meaning of the rules of natural justice, as used in s 5(1)(a) of the ADJR Act. In general terms, those rules concern what is required for a person to have a fair hearing, including a fair opportunity to put any relevant matters to the decision maker: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582-583 (Mason J). Speaking very broadly, the rules of natural justice concern the fairness of the process, not the fairness of the outcome.
2. Mr Gilbert evidently has deeply held convictions about the injustice of the situation in which he finds himself. But those convictions do not concern the fairness of the process by which the Registrar came to the decision under review here. They are not capable of establishing that the Registrar committed an error of the kind specified in s 5(1)(a).
3. Nor does it appear to me that the Registrar has made any of the other errors listed in s 5(1). On my review of the statement of claim, it was open to the Registrar to characterise it as being in the nature of a discursive narrative. It sets out, in unnumbered paragraphs, the history of the matter from Mr Gilbert's point of view.
4. It was similarly open to the Registrar to say that it contains documents that may be evidence rather than pleaded fact. The statement of claim annexes correspondence from the Official Trustee in Bankruptcy as well as the Australian Financial Security Authority concerning a complaint Mr Gilbert made.
5. Finally, it was open to the Registrar to conclude that the statement of claim contains material that is frivolous and vexatious. For example, it alleges that:

Making me (John Gilbert) bankrupt was a desperate last resort and vexatious legal tactic, in the total absence of any defence on the merits, used by the defendants' lawyer on the basis of a minor debt ($15,314.77 awarded Court costs) which was clearly primarily intended to disrupt my Court process.

1. Once again, it is not for this Court to reach its own view as to the correctness of the Registrar's conclusions. It is enough to say that those conclusions were open to the Registrar, in the sense that it is not apparent that in reaching them, he committed any error of a kind listed in s 5(1) of the ADJR Act. None of Mr Gilbert's submissions identify an error of that kind.

1. Mr Gilbert has not established that the Registrar made any error in deciding not to accept the Proposed Application and the statement of claim for filing. The application will be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.