The appeal
44 In the proceeding from which the present appeal arises, which was commenced on 13 February 2015, Ms Luck sought to set aside the bankruptcy notice on the following grounds:
a. On 12 November 2014, I filed an application for special leave to appeal, on constitutional grounds pursuant to the Judiciary Act 1901, from the judgments of the Full Court of the Federal Court, made on 15 October 2014, on appeal from the judgments of his Honour, Tracey, J made on 1 November and 11 October 2013 in the matter of Gaye Luck v University of Southern Queensland M116/2014; VID1158/2014; VID357/2009….
b. I seek to set aside BN177801 on the grounds that the issues as submitted in my Special Leave Application currently pending hearing and determination in the High Court of Australia, are a novel set-off to this bankruptcy matter and include strong argument challenging the correctness of the Federal Full Court's decisions in VID1158/2014, VID54/2009 and VlD899/2008 and the validity of the sitting primary judge's judgments in those cases, and in this one, seeking to set aside BN177801 ….
c. In the event that the High Court makes a determination in my favour in the matter of Luck v USQ, M116/2014, it would constitute authority for each of the determinations of my matters, heard by his Honour, Justice Tracey, and the subsequent Full Court appeal determinations, to be invalid, and liable upon judicial review or upon relief in the nature of certiorari or prohibition.
d. It would therefore be in the interests of the administration of justice for this matter to be stayed or adjourned pending the hearing and determination of my special leave application and if leave is granted, upon the hearing and determination of the appeal in the High Court and subsequent hearing and determination of this matter by the Federal Court.
45 In her Originating Application in the proceeding below, Ms Luck included an application for interim orders as follows:
1. That the time for the hearing of this application be extended to a future date pending the hearing and determination by the High Court of Australia of the constitutional High Court of Australia matter, Luck v University of Southern Queensland M116 of 2014; VID1158/2014; VID357/2009;
2. In the event that the Bankruptcy Notice BN177801 not be set aside, that the time for compliance with the Bankruptcy Notice or Orders of the Court be extended for at least up to 90 days following the hearing and determination by the Federal Court of this Bankruptcy Notice.
46 The proceeding came before the primary judge for case management on 24 February 2015. Her Honour then made the following orders:
1. The time for compliance with bankruptcy notice BN 177801 of 2015 be extended until 4.00pm on 16 March 2015.
2. The Respondent file and serve a notice of opposition and any affidavits in support by 4.00pm on Friday 27 February 2015.
3. The proceeding be adjourned to an interlocutory hearing on 16 March 2015 at 10.15am.
4. Costs be reserved.
The "interlocutory hearing" referred to in Order 3 was the hearing of Ms Luck's application for interim orders, to which we have referred.
47 Conformably with Order 2 made on 24 February 2015, on 27 February 2015 the University filed its notice of opposition in the proceeding. Omitting formal parts, it read as follows:
The University of Southern Queensland, creditor, intends to oppose the application to set aside bankruptcy notice BN177801 issued by the Official Receiver on 7 January 2015 (Bankruptcy Notice) on the following grounds:
1. No recognised "counter-claim, set-off or cross demand" within the meaning of ss 40(1)(g) and 41(7) of the Bankruptcy Act 1966 (Cth) (Act) or r 3.02(2) of the Federal Court (Bankruptcy) Rules 2005 (Cth) (Rules) is particularised in either:
(a) the application to set aside the Bankruptcy Notice; or
(b) the affidavit in support of the application to set aside the Bankruptcy Notice,
filed in the Federal Court by the Applicant on 13 February 2015.
2. In relation to the Bankruptcy Notice, the applicant has no "counter-claim, set-off or cross demand" within the meaning of ss 40(1 )(g) and 41 (7) of the Act or r 3.02(2) of the Rules of which the creditor is aware.
3. Given grounds 1 and 2, it would be futile for the Court to adjourn its consideration of the application or to further extend time for the applicant to comply with the Bankruptcy Notice pursuant to s 41 (7) of the Act.
48 On 16 March 2015, Ms Luck's application for interim orders came on before the primary judge. In the course of argument, her Honour noted that the essence of the University's opposition to the making of the interim orders sought was that, to the extent that the application for the setting aside of the bankruptcy notice was based on the alleged existence of a counter-claim, set-off or cross demand, it was bound to fail and that the grant of an adjournment, deferral or extension of time would be "futile". Giving consideration to that contention would inevitably, as her Honour saw it, require her to consider the merits of Ms Luck's case for the setting aside of the bankruptcy notice. Thus her Honour informed the parties that she proposed to receive submissions on the final relief Ms Luck sought in the proceeding, while at the same time making it clear that she would receive and consider any submissions Ms Luck chose to make on her interim application as such.
49 The University was content with the primary judge's proposal. Ms Luck was not, but the reasons she advanced for the position then adopted should be noted. She submitted to her Honour that, if she succeeded in the High Court in proceeding M116/2014, whether she had a counter-claim, set-off or cross demand would be irrelevant because a favourable judgment in that court would undermine the very debt upon which the University relied. The consequence of her High Court challenge being upheld would be that the continuation of the proceeding before the primary judge would amount to nothing more than a waste of public money.
50 Ms Luck did not suggest to the primary judge on 16 March 2015 that she was unprepared to advance her substantive case, or to deal with the points made in the University's notice of opposition. Her Honour then heard argument on all questions arising in the case and, in a reserved judgment delivered on 30 March 2015, dismissed the Application.
51 We mention this aspect of the proceeding at first instance not because Ms Luck made a point of it in her grounds of appeal, but in recognition of the circumstance that the course followed by the primary judge was, on one way of looking at it, unconventional. But, since her Honour made it clear to the parties that she did intend to follow that course, and the issues involved were well-developed in the parties' submissions on the interim application, we take the view that the course was unobjectionable.
52 Turning to the merits of the appeal, we would commence by identifying two series of proceedings that involved judgments of the Court. The first commenced with proceeding VID476/2008, which was initially determined by a judgment of Tracey J on 22 October 2008: Luck v University of Southern Queensland [2008] FCA 1582. Ms Luck's appeal from that judgment was proceeding VID899/2009, and was determined on 19 June 2009 by the judgment to which we have referred in paragraph 3 above. Ms Luck was ordered to pay the University's costs of that appeal. She applied for special leave to appeal to the High Court but, by the operation of an order made in that court by Crennan J on 26 May 2010, that application was deemed to have been abandoned. As noted above, in due course a certificate of the University's costs in proceeding VID899/2009 issued, and it was the debt arising from those certified costs that formed the basis of the bankruptcy notice which Ms Luck sought to have set aside.
53 The second series of proceedings commenced with proceeding VID357/2009, and was initially determined by a judgment of Tracey J on 1 November 2013: Luck v University of Southern Queensland (No 2) [2013] FCA 1141. Ms Luck's appeal from that judgment was proceeding VID1158/2013, and was determined, adversely to herself, on 15 October 2014 by the judgment to which we have referred in paragraph 13 above. Ms Luck applied for special leave to appeal to the High Court from that Full Court judgment, and it was that application, No M116/2014 in the files of the High Court, on which Ms Luck relied in her endeavour to have the University's bankruptcy notice set aside. Likewise, it was that application on which she relied in her interim application for the deferral of the hearing and determination of the proceeding being dealt with by the primary judge.
54 It will be noted that the judgment which, at the time of the hearing before the primary judge, Ms Luck challenged in the High Court was not the judgment which formed the basis of the University's bankruptcy notice. Further, the proceeding which led to that challenge did not involve a money claim by Ms Luck against the University. It was for the review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth), of what were alleged to be decisions made by the Acting Vice Chancellor, and members of the staff, of the University. These circumstances were significant in the way that her Honour disposed of the case before her.
55 The primary judge was prepared, favourably to Ms Luck, to treat her contention that a successful result in M116/2014 would give rise to "a novel set-off" as amounting to the proposition that she had a cross-claim, set-off or cross demand within the meaning of s 40(1)(g) of the Bankruptcy Act, which provides:
A debtor commits an act of bankruptcy …
...
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia - within the time specified in the notice; or
(ii) where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained; …
56 But the only money claim Ms Luck might have had against the University arising from a successful result in M116/2014 would have been (as she contended) a costs order, or (as she might realistically have anticipated) an order for the University to pay her disbursements. Either way, pending the outcome of that proceeding, Ms Luck could point only to an entitlement that might come her way. The primary judge held that Ms Luck did not have a cross-claim, set-off or cross demand within the meaning of s 40(1)(g).
57 Her Honour said:
23. For the following reasons Ms Luck has not shown that she has a counter-claim, set-off or cross demand within the meaning of s 40(1)(g) of the Bankruptcy Act.
24. First, the counter-claim, set-off or cross demand stipulated in s 40(1)(g) must be something sounding in money: that is, it must be in respect of a money demand, whether liquidated or unliquidated: see Re Jocumsen (1929) 1 ABC 82 at 85 (per Henchman J); Vogwell v Vogwell (1939) 11 ABC 83 at 85 (per Latham CJ); Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433 … The constitutional issues relied on by Ms Luck, even if resolved in her favour, would not sound in a monetary award to Ms Luck. The only claim made by Ms Luck which would sound in a monetary award is her claim for costs, as part of the orders that she seeks in her proposed appeal.
25. Secondly, the counter-claim, set-off or cross demand stipulated by s 40(1)(g) must exist at the time when the application to set aside the bankruptcy notice is heard: Re Ganke; … [1995] FCA 195 at [32]. Ms Luck does not have a presently existing counter-claim, set-off or cross-demand in respect of costs because her claim for costs is contingent upon a successful appeal and an order for costs being made in her favour. A counter-claim, set-off or cross-demand has not been created merely because Ms Luck would seek an order for costs on her appeal if special leave is granted and the appeal successful: Re Thompson; … (1995) 61 FCR 544 at 552.
26. Thirdly, it is impossible to quantify the counter-claim set off or cross demand that Ms Luck asserts that she has, and therefore she has not shown that such a claim would equal or exceed the sum of $29,755.87.
58 The primary judge was also prepared, favourably to Ms Luck, to treat her application for special leave in M116/2014 as challenging the University's entitlement to its costs arising from the judgment of the Full Court in VID899/09. But her Honour took the view that any such challenge would be hopeless. She said:
27. Fourthly, the only judgment and orders which can be the subject of challenge by Ms Luck by her proposed appeal are the judgment and orders made in VID 1158/2013. A successful appeal against the judgment and orders made in VID 1158/2013 would not entitle Ms Luck to orders setting aside or quashing the orders made in VID 54/2009 or VID899/2009 or entitle her to costs orders in her favour in substitution for the costs orders that were made in those other proceedings. Ms Luck cannot reopen and relitigate VID54/2009 or VID899/2009 which both have been brought to conclusion and the appeal she wishes to bring from the judgment and orders made in VID1158/2013 would not result in the extinguishment of her liability for the debt on which the bankruptcy notice is founded.
For present purposes, the other proceeding here referred to, VID54/2009, does not require separate consideration.
59 Her Honour's conclusion was stated as follows:
28. Accordingly, as Ms Luck does not have counter-claim, set-off or cross-demand within the meaning of s 40(1)(g) of the Bankruptcy Act, I accept the contention for USQ that there would be no utility in staying or adjourning Ms Luck's application to set aside the bankruptcy notice pending the determination of her special leave application. Ms Luck's application to for a stay or adjournment of her application and her application to set aside the bankruptcy notice should both be dismissed.
60 In the present appeal, Ms Luck's grounds of appeal, omitting footnotes, are as follows:
1. That the Honourable Court erred in and misapplied the law in that it failed to make an order to refuse or grant the appellant's application, made on 12, 16 and 30 March 2015, for a stay or an adjournment of matter VID61/2015, pending the hearing and determination of the appellant's Special Leave Application in the associated High Court matter heard and determined by primary judge Tracey, J on 1 November 2013, and by the Full Court of the Federal Court of Australia on 15 October 2014, in matter Luck v University of Southern Queensland ABN 40 234 732 081 & Anor M116/2015; FCFCA VID1158/2013; FCA VID357/2009, whereby it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour" and, if a stay or adjournment was granted pursuant to the Honourable Court's powers under sections 22 and 23 of the Federal Court of Australia Act 1976, Division 1.3 of the Federal Court Rules, sections 30 and 33 of the Bankruptcy Act 1966 and Rule 3.03 of the Federal Court (Bankruptcy) Rules 2005, it would have prevented the appellant from committing an act of bankruptcy, and the dire consequences of same, prior to the matter involving the important Constitutional questions of law being heard and determined by either the High Court of Australia, and for which the appellant had demonstrated an appropriate case for a stay or an adjournment, and was entitled to commence with the presumption that the primary judgment was correct.
2. That the Honourable Court erred in and misapplied the law, in that it failed to expose its path of reasoning for exclusion of significant material, including the appellant's Special Leave Application in the High Court, M116/2014, Notice of Constitutional Matter in Removal of Cause Application M49/2015, Affidavits and Exhibits and written submissions, copies of which were filed in the Federal Court and served in accordance with the Federal Court Rules and the Federal Court (Bankruptcy) Rules by the appellant, in support of her grounds for a stay or an adjournment of VID61/2015, which involved matters arising under the Constitution, for which the appellant had also filed and served Notices of Constitutional Matter, for this matter, in the Victorian District Registry of the Federal Court of Australia and in the Melbourne Office of the Registry of the High Court of Australia, for her application to the High Court of Australia for Removal of this Cause, to that Court, whereby the Constitutional questions arose as to whether a breach of the doctrine of the separation of the powers occurred when the Federal Court of Australia and the primary judge, his Honour, Justice Tracey, whilst exercising the power of the Federal Court of Australia under Chapter III of the Constitution, as Justices of that Court, in respect of hearing and determining the appellant's matters, and whether the learned justices, in the matter of VID1158/2014, erred in applying the concept of judicial immunity to exclude the operation of s 29 of the Disability Discrimination Act 1992 (Cth), in addition to whether they misconstrued the role of the Judge Advocate General, Major General of the Army, in reporting and being answerable to the executive in accordance with s. 196A of the Defence Force Discipline Act 1982 (Cth), when applying the test for apprehended bias enunciated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which brings into question the validity of the provisions relating to the appointment and required qualifications of the JAG pursuant to the Defence Force Discipline Act 1982 (DFDA), and, if affirmed, would likely invalidate the determinations of the judiciary in both the Federal Court and the High Court in respect of this matter and the appellant's other matters heard and determined, or proposed to be heard and determined by his Honour, Justice Tracey, and as a consequence of the upholding of those ultra vires primary determinations through the appellate processes of the Federal Court and the High Court, the orders and determinations of both Courts would ultimately be subject to, by the High Court, the application of orders of certiorari and prohibition directed to all relevant determinations and orders, and conjointly exercising the power of the Executive government in making decisions to refuse or grant to the appellant, reasonable adjustments sought pursuant to her rights under the Disability Discrimination Act 1992 (Cth), and whether they misconstrued the meaning of the expression in s 29 of that Act, "… a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program …" and whether the learned justices, in the matter of VID1158/2014, erred in applying the concept of judicial immunity to exclude the operation of s 29 of the Disability Discrimination Act 1992 (Cth), in addition to whether they misconstrued the role of the Judge Advocate General, Major General of the Army, in reporting and being answerable to the executive in accordance with s. 196A of the Defence Force Discipline Act 1982 (Cth), when applying the test for apprehended bias enunciated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, which brings into question the validity of the provisions relating to the appointment and required qualifications of the JAG pursuant to the Defence Force Discipline Act 1982 (DFDA), and, if affirmed, would likely invalidate the determinations of the judiciary in both the Federal Court and the High Court in respect of this matter and the appellant's other matters heard and determined, or proposed to be heard and determined by his Honour, Justice Tracey, and as a consequence of the upholding of those ultra vires primary determinations through the appellate processes of the Federal Court and the High Court, the orders and determinations of both Courts would ultimately be subject to, by the High Court, the application of orders of certiorari and prohibition directed to all relevant determinations and orders.
3. That the Honourable Court erred in and misapplied the law by failing to consider the appellant's grounds for a stay or adjournment of this matter, in that the questions for hearing and determination by the High Court submitted in her Special Leave Application in matter M116/2014, directly relate to the grounds in the appellant's originating process (appeal from the Administrative Appeals Tribunal (AAT)) in this Federal Court matter VID61/2015; VID899/2009; VID476/2008, whereby the appellant submitted that the first and second respondents, the University of Southern Queensland and its Chief Executive Officer were subject to the Freedom of Information Act 1982 (Cth) because it was an officer of the Commonwealth, and that the AAT had jurisdiction to hear and determine her application made to that Tribunal. If the question of whether the appellant's submissions in respect of the definitions of "officer of the Commonwealth" and the word "enactment" are affirmed by the High Court, the orders and determinations of both Courts would ultimately be subject to, by the High Court, the application of orders of certiorari and prohibition directed to all relevant determinations and orders and the orders for costs in this case, made in VID899/2009, would be subject to the same treatment, hence this matter and each of the other matters in which judgments were made by the primary judge and upheld by the Full Courts' of the Federal Court would be deemed nugatory.
4. That errors on the face of the record occurred in this matter, firstly, in that the title of this proceeding, as accepted for filing by the Principal Registrar on 13 February 2015, was "University of Southern Queensland and another named in the schedule" and the title of the Honourable Court's judgment and Reasons for Judgment of 30 March 2015, omits the part of the title "and another named in the schedule" and is written as "University of Southern Queensland".
Secondly, that documents filed by the appellant by hand up to the Honourable Court Bench on 16 March 2015, have not been recorded on this matter VID61/2015, in the Federal Law Search Site, and in the judgment of 30 March 2015, the Honourable Court referred to the applicant filing two affidavits in support of her application, without reference to the dates on which they were filed. The Federal Law search shows three affidavits being filed by the applicant and none of them refer to the documents as handed up on the 16 March 2015, which included the Applicant's Submission for Hearing 16 March 2015, accompanied by a 9 page Affidavit sworn before an Officer Acting with the Authority of the Registrar Federal Court of Australia on 16 March 2015, and annexed to the affidavit were Certificates of Identifying Exhibits "GL05 - Copy of Applicant's High Court Affidavit in matter M8/2010" and "GL06 - Copy of Applicant's Amended Special Leave Application, Summons and Affidavit of 16 March 2015". All documents were signed received by Ms Pip Mitchell of the respondents' legal representative, Clayton Utz, following the appellant's hand up.
5. The applicant was denied natural justice in the processing and administration of her matters and denied the opportunity to progress the matter with the presumption that the primary judgment was correct, which should occur following a competent, independent and impartial hearing of the important Constitutional questions that arise in this matter, particularly in reference to the validity of the primary judges determinations. These issues are of great importance and rely on the hearing and determination of them by the High Court of Australia in regard to the appellant's application to the High Court for leave to appeal against the Federal Court of Australia exercising federal jurisdiction. It concerns matters of statutory construction and of significance for the whole country and concerns questions of the separation of powers.
61 Commencing with Ms Luck's first ground of appeal, in her Amended Outline of Submissions filed on 25 September 2015, Ms Luck said that this ground involved the following issue:
Whether the Honourable Court erred in and misapplied the law, in that it failed to make an order to refuse or grant the appellant's application, made on 12, 16 and 30 March 2015, for a stay or an adjournment of matter VID61/2015, pending the hearing and determination of the Constitutional issues, as raised in this matter and the appellant's Special Leave Application in the associated High Court matter, heard and determined by the same primary judge Tracey, J on 1 November 2013, and by the Full Court of the Federal Court of Australia on 15 October 2014, in matter Luck v University of Southern Queensland M116/2015; FCFCA VID1158/2013; FCA VID357/2009?
62 Ms Luck submitted that the primary judge had a duty to hear and determine her application for interim relief by making, or refusing to make, an order staying the further conduct of the matter before her pending the hearing and determination of the constitutional issues that arose in the High Court special leave application. Those issues lay within the jurisdiction of the High Court, and the resolution of them should not, and could not, have been foreclosed by the primary judge permitting the matter before her to proceed to judgment, with the normal result that Ms Luck would have committed an act of bankruptcy (ie by the operation of s 40(1)(g) and s 41(7) of the Bankruptcy Act).
63 To understand and to dispose of this ground of appeal, it is not necessary to recite the terms of the constitutional point around which Ms Luck framed her special leave application. As is apparent from what we have written above, the approach which her Honour took was to propound that, even if it were to be anticipated that Ms Luck would be successful in the High Court, she did not, at the time which was relevant, have a counterclaim, set-off or cross demand. Even complete success, to the extent of achieving the reversal of the Full Court judgment of 15 October 2014, would not disturb the debt based on the costs order of 19 June 2009.
64 By proceeding to hear and determine Ms Luck's application to have the bankruptcy notice set aside, the primary judge was not trammelling upon the High Court's capacity to consider Ms Luck's constitutional point. It is true that, in theory, the impact of s 40(1)(g) of the Bankruptcy Act had the potential to be a strong discretionary consideration in favour of a litigant making a stay application of the kind that Ms Luck did make, but there is nothing in her Honour's reasons to suggest that she was not alive to the reality that Ms Luck would have committed an act of bankruptcy upon the final determination of her application. On the approach she took (and with which we agree), Ms Luck's High Court proceeding was irrelevant to the prospects of her challenge to the University's bankruptcy notice.
65 We reject Ms Luck's first ground of appeal.
66 In her Amended Outline of Submissions, Ms Luck dealt with the second and third grounds together. They were said to involve the following issues:
• Whether the Honourable Court erred in and misapplied the law, in that it failed to expose its path of reasoning for exclusion of significant material, filed in the Federal Court and served in accordance with the Federal Court Rules and the Federal Court (Bankruptcy) Rules by the appellant, in support of her grounds for a stay or an adjournment of VID61/2015?
• Whether the Honourable Court erred in and misapplied the law by failing to consider the appellant's grounds for a stay or adjournment of this matter, in that the questions for hearing and determination by the High Court submitted in her Special Leave Application in matter M116/2014, and submitted in the Notice of Constitutional Matter filed in the Federal Court in this matter, directly related to the grounds in the appellant's originating process (appeal from the Administrative Appeals Tribunal (AAT)) which were not severable from Constitutional issues that arise in this Federal Court matter, VID476/2008; VID899/2008; VID61/2015, as it was before her Honour, Justice Davies on the 16 and 30 March 2015?
It was well that Ms Luck condensed her second ground of appeal in the terms set out above: as expressed in the Amended Notice of Appeal, the ground involved substantial repetition and was, we would have to say, barely comprehensible.
67 Developing her submissions on these issues, in her outline Ms Luck submitted that the primary judge's reasons should have dealt with the constitutional points which had been raised by her, and with her proposition that her allegation as to the validity of Tracey J's judgments in both series of proceedings was a matter that arose under the Constitution or involved its interpretation. That proposition, she said, "was the substantial point made in argument for a stay pending the hearing and determination by the High Court of those constitutional issues under its original jurisdiction". Further, she complained that her Honour did not make any judgment on Ms Luck's application for interim relief. Her Honour did not, it was said, "provide an intelligible explanation of the process of reasoning from the evidence to the finding that the substantive matter was without merit, and from that finding to the ultimate conclusion to fail to make an order for a grant or a refusal of the stay sought by the appellant …". Ms Luck continued that, without properly considering the evidence for the grounds upon which she relied - namely, those which invoked the relevance of the special leave application - the primary judge was in no position to determine the merits of the substantive question presented by the proceeding. Further, her Honour ought to have considered, and dealt with, all of the evidence which Ms Luck had filed and on which she relied in her interim application.
68 In dealing with the second and third grounds of appeal, we commence with the observation that the application which came before the primary judge on 16 March 2015 was an interim one apropos Ms Luck's application to have the bankruptcy notice set aside. Of its nature, such an application is concerned with maintaining or adjusting the state of affairs existing as between the parties over the time it would take to have the claims in the main proceeding heard and determined on a final basis. Where is it both feasible and just to have those claims dealt with, on a final basis, at an early date, the need for, and the point of, an interim order necessarily fall away. Once the primary judge embarked on the process of hearing the parties' final cases, her Honour was concerned with Ms Luck's interim application only against the possibility that the University's grounds of opposition were unsuccessful and the proceeding continued on foot.
69 It must also be accepted that Ms Luck's interim application was not a conventional one. She seemed to be saying that, even though her main application for the setting aside of the bankruptcy notice could be heard and determined in March 2015, given time and a successful result in the High Court, she would be armed with a newly-declared legal order that would greatly improve her prospects in the proceeding before the primary judge. There are two answers to this. First, a respondent to a proceeding of a kind that enlivens the operation of s 41(7) of the Bankruptcy Act should not, at least in the normal case, be obliged to await the outcome of another court proceeding for no better reason than that it might produce a more advantageous legal order for his or her opponent. And secondly, in the present case the primary judge did give attention to what Ms Luck claimed would be the consequence of the success which she anticipated in the High Court: see paragraphs 57 and 58 above. Her Honour's reasoning, which was clear and unquestionably correct, did not engage with Ms Luck's constitutional point because it did not need to do so.
70 At base, Ms Luck's complaint embodied in these grounds of appeal relates to her Honour's failure to deal with the interim application as such and to her Honour's failure to consider the rights and wrongs of the constitutional point. For reasons set out above, her Honour was justified in proceeding the way she did. Ms Luck's complaint about what was said to be her Honour's failure to give reasons is misconceived. Her Honour did give reasons for the conclusion which she reached. Those reasons did not require the making of an excursus into the area covered by Ms Luck's constitutional case in the High Court because that was not why her Honour disposed of the proceeding in the way that she did. Had her Honour been in error not to have taken the prospect of that constitutional case succeeding into account, she might have been corrected on appeal. But she was not in error in this way.
71 We reject Ms Luck's second and third grounds of appeal.
72 Although, in her outline, Ms Luck submitted that one of the issues in the appeal was "whether errors on the face of the record occurred in this matter", nothing further was said about that issue. In the circumstances, we would go no further than to take this opportunity to point out, in relation to the first element of this ground, that the sealed orders made by the primary judge on 30 June 2015 did name the Chief Executive Officer of the University as the second respondent. Otherwise, Ms Luck's fourth ground of appeal is without substance, and should be rejected.
73 Ms Luck submitted that her fifth ground of appeal involved the following issue:
Whether the applicant was denied natural justice in the processing and administration of her matters and denied the opportunity to progress the matter with the presumption that the primary judgment was correct.
In her outline, nothing further was said about this issue. For our own part, once it is accepted, as we have above, that the primary judge's decision to proceed to hear Ms Luck's final claims on 16 March 2015 was unobjectionable, there is nothing in the facts of the case that gives rise to any natural justice point. The only other observation we would make is that what Ms Luck means by "the primary judgment", both in the ground and in the above statement of issue is, with respect to her, quite obscure.
74 In her outline, Ms Luck included the submission that there was a further issue, not referable to any ground of appeal, as follows:
Whether the Honourable Court erred in and misapplied the law by finding that costs in respect of the Certificate of Taxation of 1 February 2010, for which Bankruptcy Notice BN177801/2015 was issued on 7 January 2015 by the Official Receiver, and other incidental costs orders associated and connected with each of the appellant's other matters, heard and determined by the same primary judge, and subsequently by the Full Courts of the Federal Court and other judges of the Federal Court, did not constitute a counter-claim, set-off or cross demand that sounded in money, when the validity of each of those costs orders was dependent upon the hearing and determination by the High Court of Australia, the Constitutional issues raised in this matter VID61/2015, as it was before her Honour, Justice Davies, on the 16 and 30 March 2015?
75 This statement of issue is based on a misunderstanding of what the primary judge said in the first of the reasons given for rejecting Ms Luck's case, set out in paragraph 57 above. Her Honour did not suggest that the costs order achieved by the University in proceeding VID899/2009 did not sound in money. It clearly did, but it was the University which had a money entitlement under that order. It could not have been relevant to Ms Luck's asserted counter-claim, setoff or cross demand. What did not sound in money was the result which Ms Luck might have anticipated in her High Court proceeding. As her Honour rightly held, even a successful outcome in the High Court for Ms Luck would have had no impact on the University's entitlement to its costs in proceeding VID899/2009.
76 It was for the foregoing reasons that we dismissed the appeal with costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Jessup and Katzmann.