Consideration and disposition of the objections to competency
36 For the following reasons, HSU's objections to competency must be upheld. First, it is incontrovertible that Ms Jackson has the burden of establishing the competency of her appeals (see r 36.72(2) of the FCRs). The HSU submitted that the Court should find that this burden was not discharged simply because Ms Jackson did not file her written submissions by the appointed time. That submission should not be accepted in circumstances where the Court subsequently extended the time within which that was to occur. There are other reasons, however, why Ms Jackson has failed to discharge her burden.
37 Secondly, as noted above, Ms Jackson did not contest the HSU's primary submission that, having regard to authorities such as Cummings and Bagshaw, she had no financial interest which gave her standing to appeal in her own name. As the plurality observed in Cummings at [13] (footnotes omitted):
So far as a judgment entered in an action against a bankrupt creates or evidences a provable debt, we respectfully agree that the bankrupt has no financial interest which would confer locus standi to appeal in his own name against the judgment. That is because it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts.
38 It may be noted that Cummings involved appeals against a judgment which had been entered against the appellants. In the proceedings here, the orders made by the primary judge on 19 August 2015 were entered on 19 November 2015. Thus Cummings is directly in point. In any event, having regard to the definition of "provable debt" in s 82(1) of the Bankruptcy Act we strongly doubt that it would have made any difference to the outcome of the HSU's objections to competency if, final orders having been made by the primary judge, they had not formally been entered.
39 Thirdly, as to that part of the appeals which relates to the dismissal of Ms Jackson's cross-claim, we accept the HSU's submission that this claim was part of Ms Jackson's property and vested in her trustee when she became a bankrupt. Any right of appeal in respect of that self-executing order also vested in the trustee and Ms Jackson has no standing (see Cummings at [13]-[14] and Bagshaw at [26]-[32]).
40 Fourthly, Ms Jackson's contention that she had standing to bring these appeals because the primary judge made adverse findings which affected her personal reputation should not be accepted for the following reasons.
41 The first reason is that her contention is inconsistent with Cummings. In that case, the appellants made a similar submission to the effect that, independently of the trustee's interests, the effect on their personal reputation of the trial judge's findings that they had been involved in conspiracy to defraud, deceit and contraventions of statutory obligations not to engage in misleading or deceptive conduct gave them standing to appeal. Both the plurality and the minority in Cummings rejected that submission, albeit on different grounds:
(a) at [14] of Cummings, the plurality observed that if a trustee declined to sue or appeal against such a judgment, the appropriate relief for the bankrupt was to make an application under s 178 of the Bankruptcy Act and the Court could make an order "as it thinks just and equitable". The plurality did not consider that a bankrupt's personal reputation provided a sufficient basis for standing independently of an order made under s 178; and
(b) at [29], the minority in Cummings (Dawson and Toohey JJ) stated that findings of conspiracy to defraud, deceit and contraventions of such statutory obligation could affect the appellants' reputations, but such findings were made in the course of arriving at orders to be made and (footnotes omitted):
Although they affect reputation, they are not themselves a "personal injury or wrong done to the bankrupt" which could form the basis for a separate cause of action".
42 The inconsistency between Ms Jackson's contention and Cummings provides a sufficient basis to reject her contention that her personal reputation gives her standing. We would add, however, that there is a second reason why the contention must be rejected, which relates to the fact that her notices of appeal do not particularise any individual findings of fact made by the primary judge which impugn her personal reputation.
43 While it may be accepted that the primary judge's conclusions that Ms Jackson had contravened provisions of both the WR Act and the FWRO Act affect her reputation, they are not the matters which are particularised in the notices of appeal. Indeed, in neither her written submissions nor in her notices of appeal, has Ms Jackson particularised any individual findings of fact made by the primary judge which could be regarded as "going to [Ms Jackson's] personal reputation". The particularised findings of fact all relate not to the primary judgment, but to the earlier interlocutory judgments or orders. Hence, in the case of her appeals against the dismissal of her interlocutory application for the proceedings to be stayed as an abuse of process, Ms Jackson pleads that the primary judge made findings "that mistake the facts". One of the particularised findings is the primary judge's finding in [1] of Jackson (No 2) that the delay in commencing the trial was "in no small measure, attributable to failures on the part of Ms Jackson to comply with procedural orders made by the Court". That finding scarcely affects Ms Jackson's reputation. In any event, it should also be noted that the primary judge proceeded to say that there were other additional reasons for such delay which were beyond Mr Jackson's control, including health reasons which prevented her from giving instructions to her solicitor and counsel. Those reasons were not critical of Ms Jackson's reputation.
44 As noted above, Ms Jackson's claims that the proceedings were being prosecuted by the HSU for an improper purpose and amounted to an abuse of process were considered by the primary judge in the light of all the evidence, including affidavits affirmed by Mr Jackson. His Honour found, however, that the material did not support the inference claimed by Ms Jackson, namely that the proceedings had been brought "to cause her financial ruin, and as a vehicle for the pursuit of an ongoing campaign of false, smear and attack that has been and is being waged against her by those who now control the Union, and others, since August and September 2011". Again, this finding, while plainly adverse to Ms Jackson's claims, hardly amounts to a finding which was harmful to her personal reputation.
45 The same can be said regarding other findings made by the primary judge in Jackson (No 2) which are particularised in the notices of appeal. They include matters which the primary judge gave as illustrations for why he concluded that it was "simply too tenuous to forge the link between past political differences with other Union officials and the decisions of those presently in elected office in the Union who are responsible for the prosecution of these proceedings". Similarly, the primary judge's references to evidence given to the Royal Commission into Trade Union Governance and Corruption by Mr Brown (the current National Secretary of the HSU) does no harm to Ms Jackson's reputation, particularly in circumstances where the primary judge noted in [23] of Jackson (No 2) that, as Ms Jackson's counsel pointed out, Mr Brown's evidence remained untested.
46 As to Ms Jackson's complaint that the primary judge's findings in [30]-[33] of Jackson (No 2) concerning the prejudice created for her case by the large number of lost or missing documents, the primary judge found that, after analysis, the alleged "gaping holes" in the evidence, were not as large as claimed. Moreover, the primary judge noted that Ms Jackson had not sought by way of discovery many of the documents which she subsequently claimed were unavailable and prejudiced her case. Again, these findings do not harm Ms Jackson's personal reputation.
47 The same may be said in respect of Ms Jackson's complaint regarding the primary judge's finding at [34] of Jackson (No 2) that the absence of documentation would not necessarily operate to the benefit of the Union because it carried the onus at trial and the absence of some of the documentation could undermine its capacity to make good its case. Those observations do no harm to Ms Jackson's personal reputation.
48 Similarly, the primary judge's findings in [40]-[41] to the effect that Ms Jackson had failed to establish that the non-availability of evidentiary material had been "deliberately hidden or destroyed for the purpose of preventing her making good her defence" does not amount to a finding which harms her personal reputation.
49 Ms Jackson pleads in her notices of appeal that these findings by the primary judge in Jackson (No 2) were not open and/or were unreasonable. Whether or not that be so, none of these findings affects Ms Jackson's personal reputation so as to give her standing to bring these appeals even if, contrary to the above, standing could arise in that way.
50 When attention is then turned to those parts of Ms Jackson's notices of appeal which relate to Jackson (No 3) and the grant of leave to the HSU under s 58(3) of the Bankruptcy Act, it is notable that there are no adverse findings particularised at all. Rather, Ms Jackson claims that the primary judge failed to take into account "material considerations", such as that she was unable to afford lawyers because of the actions of the HSU and her medical condition was such that she was medically unfit to appear as a litigant in person and represent herself at the substantive hearing below. Neither of these matters, nor any of the other considerations particularised by Ms Jackson, impacts upon her personal reputation.
51 As noted above, Ms Jackson particularised no specific findings made by the primary judge in Jackson (No 4). Rather, she simply relied upon the errors pleaded in respect of the three interlocutory matters in contending that the primary judge erred in permitting the substantive hearing to proceed.
52 For these reasons, we are not satisfied that Ms Jackson has pointed to any finding made by the primary judge which affects her personal reputation so as to confer standing on her despite her status as a bankrupt assuming, contrary to the above, that standing can arise in that way.
53 The second stated basis for the HSU's objections to competency concerns the operation and requirements of s 24(1A) of the FCA Act and the need to obtain leave to appeal against an interlocutory judgment or order. The orders made by the primary judge on 15 August 2015 (the self-executing order); on 22 June 2015 (dismissing the application for a permanent stay) and on 3 July 2015 (the grant of leave under s 58(3) of the Bankruptcy Act) are all interlocutory orders. We accept Mr Irving's submission that the Full Court's decision in Bourke stands for the proposition that a self-executing order is interlocutory, rather than final. The relevant orders made by the Court in Jackson (No 2) and Jackson (No 3) are plainly interlocutory. Ms Jackson did not contest that the three relevant orders and judgments were interlocutory; indeed, they are described in those terms in her notices of appeal.
54 The HSU did not dispute that under s 24(1E) of the FCA Act a party could found an appeal from a final judgment on an interlocutory judgment and that, under that provision, the Court could take into account an interlocutory judgment in determining an appeal from a final judgment (as to which see Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 at [17]-[18] per Logan J). However, as Mr Irving submitted, the notices of appeal here were drafted in a way which directly challenged the relevant interlocutory orders made by the primary judge rather than simply challenging them derivatively through the final judgment. The drafting of the notices of appeal and their reference to appealing not only from the whole of the judgment and orders made on 19 August 2015, but also "further" from the three relevant interlocutory orders and judgments means that leave to appeal was required under s 24(1A) of the FCA Act. The appeals in respect of these interlocutory matters are incompetent because, at the time the notices of appeal were filed, Ms Jackson had neither sought nor obtained leave to appeal in respect of them. And, although there was no requirement to obtain leave to appeal from the primary judge's final orders made on 19 August 2015, the notices of appeal specified no other grounds of appeal in relation to those final orders other than those pleaded in respect of the interlocutory orders. Necessarily, therefore, the appeals are incompetent in their entirety.