Quen & Chen [2025] FedCFamC1A 39 (14 March 2025)

Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Hobart International Airport Pty Ltd v Clarence City Council (2022) 399 ALR 214; [2022] HCA 5

Kuang & Kuang [2025] FedCFamC1A 31

Littlefield & Pemble (2023) FLC 94-165; [2023] FedCFamC1A 198

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Neil v Nott (1994) 121 ALR 148; [1994] HCA 23

Randwick City Council v Fuller (1996) 90 LGERA 380; [1996] NSWCA 444

Reese & Ralston [2021] FedCFamC1A 99

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re W: Publication application (1997) FLC 92-756; [1997] FamCA 8

Sahadi & Savva & Anor (2016) FLC 93-704; [2016] FamCAFC 65

Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

The Fourth, Fifth, Sixth, Seventh, Eight, Ninth, and Tenth Respondents:

(a) The application in an appeal to adduce further evidence is dismissed.

(b) The application for leave to appeal is dismissed.

(c) There be no order as to costs.

(a) The application in an appeal to adduce further evidence is granted and the affidavit of the appellant filed 17 February 2025 is admitted.

(b) The application for leave to appeal is allowed.

(c) The appeal is allowed.

(d) The orders made on 4 October 2024 are set aside.

(e) The respondent pay the appellant's costs in the sum of $1,500 such sum to be paid within 60 days.

1. The costs application brought by the respondent against the appellant is remitted for re-hearing by a judge other than the primary judge, but not until after the following contravention and contempt applications are either discontinued or determined:

(a) the Application - Contravention filed on 29 April 2021;

(b) the Application - Contravention filed on 21 June 2021

(c) the Application - Contravention filed on 22 June 2021;

(d) the Application - Contravention filed on 3 August 2021

(e) the Application - Contravention filed on 14 September 2022;

(f) the Application - Contempt filed on 20 October 2022;

(g) the Application-- Contravention filed on 4 April 2023

(h) the Application - Contravention filed on 27 April 2023;

(i) the Application - Contravention filed on 28 April 2023; and

(j) the Application - Contravention filed on 30 May 2023

1. The primary judge is disqualified from further judicial participation in suit number MLC5805/2016.

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 the pseudonym Quen & Chen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Before the court are two applications for leave to appeal filed 28 October 2024 arising from interlocutory determinations by the primary judge on 1 October 2024 and 4 October 2024.
2. The first (NAA281/2024) seeks leave to appeal orders made 1 October 2024 permitting the respondent to provide certain documents to AUSTRAC while the second (NAA282/2024) seeks leave to appeal an indemnity costs order made 4 October 2024.

1. The parties to the two proposed appeals are but two of 11 parties to the extant financial proceedings that commenced in 2016.
2. The appellant is the second respondent in the extant proceedings while the respondent to the applications for leave to appeal is the first respondent.
3. The applicant in the extant proceedings is the respondent's former wife while the appellant is his former de facto partner and mother of some of his children.
4. It is unnecessary to the determination of these proposed appeals to specifically identify the other respondents other than to note that they include children of the first respondent's marriage, two corporations, liquidators to another three corporations and receivers in relation to the three trusts. In addition to the extant proceedings there are parallel proceedings in the Supreme Court of Victoria. In circumstances where the proceedings have had their ninth anniversary, the primary judge's observation that the proceedings have progressed at "glacial speed" is an understatement.
5. The primary judge recorded that the proceedings came into his docket in 2020 and there had been at the time of judgment 42 appearances before the Court. At one such appearance on 5 July 2022, orders were made by consent dealing with the respondent's application for an indemnity costs order against the appellant for a defined period and provided a timetable for the filing of affidavits and submissions.
6. While the respondent appeared on his own at the appeal hearing, his Summary of Argument filed in NAA282/2024 was prepared by King's Counsel. At [23] of that Summary of Argument, King's Counsel contends that at the appearance on 5 July 2022 the primary judge indicated to the parties that his Honour would determine the question of costs on the "papers". The order on its face does not identify how the Court intended to determine the issue of costs, but a review of the transcript makes clear that was the primary judge's determination.
7. As contemplated by the directions, albeit not strictly in compliance with the timetable, the parties filed their documents. Relevantly for the purposes of the second proposed appeal the appellant's submissions open with a heading "[t]he Court is very cautious and sets a high bar in granting indemnity costs". The submissions are 18 pages in addition to which there are numerous pages by way of attachment comprising bank statements, correspondence and schedules. The submissions are dated 25 July 2024 and respond directly to the submissions of the respondent filed on 14 July 2022. On 27 July 2022 the respondent filed submissions in reply.
8. Notwithstanding the 5 July 2022 orders and subsequently a number of appearances before the primary judge, nothing is heard from the Court as to the fate of the indemnity costs application for over two years.
9. The proceedings came before the primary judge on Monday 16 September 2024. The transcript reveals that the matter is listed on the court's motion. The appellant does not appear on the listing.
10. It is apparent from correspondence dated Friday 13 September 2024, attached to the appellant's affidavit in support of the Application in an Appeal, that neither the respondent nor a number of the other respondents received any notice of the listing from the court and only found out about it from the court's portal.
11. We are satisfied as a consequence of both the evidence adduced in the Application in an Appeal and concessions made in the respondent's Summary of Argument that the appellant was in Country U on 16 September 2024, was unable to access email communication sent by way of Gmail and was unaware of the listing.
12. At the appearance on 16 September 2024, King's Counsel for the respondent raised with the primary judge his client's application for indemnity costs. He submitted to the primary judge that the absence of the appellant was immaterial as the Court had previously indicated that it would determine the matter on the "papers".
13. The primary judge enquired as to whether all documents had been filed and was told they had. King's Counsel advised the primary judge of the documents filed and their filing dates, specifically mentioning the appellant's submissions dated 25 July 2022. Relevantly for reasons that will become apparent, there is no reference by King's Counsel to any submission of the appellant dated 20 June 2024. Having been so advised, the primary judge indicated he would deliver judgment.
14. King's Counsel for the respondent then raised the respondent's application for permission to provide certain documents to AUSTRAC. The primary judge requested the respondent's counsel provide a schedule of the nominated documents within 14 days. The transcript reveals that the Court did not turn its mind to a consideration as to whether the appellant should be heard on the making of that order.
15. Later that day the associate to the primary judge emailed the parties advising that the appellant's submissions filed 25 July 2022 could not be located and requested a copy. A copy was duly provided by King's Counsel for the respondent by reply email the same day.
16. On 1 October 2024 the primary judge made orders in accordance with the schedule submitted by the respondent permitting the provision of documents to AUSTRAC. No reasons were delivered for this decision.
17. On 4 October 2024 the primary judge delivered reasons on the indemnity costs application making orders the appellant pay the respondent's costs as assessed on an indemnity basis.
18. In the reasons delivered for the orders made on 4 October 2024, the primary judge recorded that the respondent sought indemnity costs exceeding $496,000 at [20]. The primary judge addressed at length the submissions advanced on behalf of the respondent for an indemnity costs order. The primary judge addresses the submissions advanced on behalf of the appellant as follows:

THE [APPELLANT'S] POSITION IN RELATION TO THE INDEMNITY COSTS SOUGHT

1. The [appellant] provided written submissions which she prepared. They were dated 20 June 2022. They were argumentative in nature, purporting to address the contention of the [respondent] that the [appellant] did not have a proper basis for appointing administrators to the fourth, fifth and sixth respondents. She did not address what seemed to be a major platform of the [respondent's] application, namely, disclosure deficiencies. Be that as it may, in her written submissions the [appellant] asserted as follows -

(a) s 95A of the Corporations Act, which defines solvency, does not refer to a balance sheet or profit and loss report;

(b) cash flow is more relevant in deciding whether a company is solvent or otherwise;

(c) she considered numerous documents over the period January 2021 to May 2022 in reaching the concluded view that "the company" was insolvent;

(d) in paragraph 7 of her written submissions she purported to narrate facts about her conclusions concerning the solvency of one or more companies in the G Group of companies, yet more factual matters should have been put forward in the form of an affidavit;

(e) she asserted that she considered a range of alternative financing;

(f) she asserted that she explained how the proceeds of sale of seven properties were applied; and

(g) she disputed the contention advanced by [King's Counsel for the respondent] to the effect that no attempt was made by her to explain the adequacy of the disclosure she was provided.

1. No meaningful attempt was made by the [appellant] to explain her deficiencies of disclosure. Similarly, she advanced no legal submissions in opposition to the [respondent's] indemnity costs application, whether grounded in s 117(2A) of the Family Law Act or otherwise.

(Footnotes omitted)

1. On 17 February 2025, the appellant filed two Applications in an Appeal seeking to adduce further evidence in both applications for leave. The evidence addressed a number of matters, including her knowledge of the listing on 16 September 2024 and the request from the primary judge's associate for a copy of the appellant's submissions filed 25 July 2022.
2. Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") confers on an appellate court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (No 2) (1998) 197 CLR 172 ("CDJ v VAJ") the High Court observed that further evidence on appeal can be utilised to demonstrate error, bolster the reasons under attack, or provide source material for any re-exercise of discretion.
3. The appellant seeks to adduce the evidence to demonstrate error, while the respondent sought to rely upon aspects of the evidence to demonstrate the correctness of the result. We are satisfied that the further evidence has a bearing on the second appeal and meets the requirements identified by the High Court, namely that it is necessary to receive it to avoid an error "which cannot be otherwise remedied by the application of the conventional appellate procedures" (CDJ v VAJ (No 2) at [109]).

1. As referred to earlier, the appellant requires the grant of leave in respect of both proposed appeals. In Medlow & Medlow (2016) FLC 93-692 (at [57]) the Full Court identified that an applicant for leave must establish:

(a) that the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration; and

(b) that if leave were refused a substantial injustice would result.

Orders permitting the respondent to provide certain documents to AUSTRAC (NAA 281/2024)

1. This appeal concerns the orders made on 1 October 2024, granting the respondent permission to furnish certain documents to AUSTRAC.
2. The grounds in respect of this proposed appeal broadly contend that the appellant had no notice of the listing on 16 September 2024 (Ground 1), the appellant was unaware that the respondent intended to make such an application and was denied an opportunity to be heard (Ground 2) and the respondent misled the court (Ground 3).
3. In the underlying financial proceedings, the respondent alleges the appellant and other third parties have committed crimes in the nature of money laundering and tax fraud, which conduct he believes should be investigated by AUSTRAC - the body invested with wide powers under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The respondent therefore sought the primary judge's permission to furnish AUSTRAC with documents uncovered in the proceedings which he believes will assist in tracing and recovering the money he alleges the appellant and the other third parties have illegally drained from corporations and trusts, now administered by liquidators and receivers who are joined as parties to the financial cause.
4. Such permission was granted by the primary judge on 1 October 2024, in the form of these orders:
   1. The [respondent] has leave to remit to AUSTRAC within 14 days a copy of the following documents ...

[identified documents omitted]

1. The intendment of paragraph 1 of these orders is that the [respondent] will not contravene the implied undertaking referred to in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 by providing those documents to AUSTRAC.

(As per the original)

1. The appeal from those orders invites attention to two issues: first, the origin of the power used by the primary judge to grant such permission; and secondly, the appellant's standing to contest the orders.
2. The privacy of litigants and witnesses in family law proceedings is assured by two overlapping regimes. The first is the common law obligation not to disseminate or use litigious documents outside the confines of the litigation within which they were created or produced, unless granted permission to do so (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [3], [46], [57], [96], [103], [106] and [109]). This issue has been very recently addressed by a differently constituted Full Court in Kuang & Kuang [2025] FedCFamC1A 31 albeit their Honours determination is not germane to the issues in this appeal. The second is the statutory scheme enshrined within Pt XIVB of the Family Law Act 1975 (Cth) ("the Act") which prohibits, subject to certain exceptions or the grant of permission, the publication of accounts of the litigation which identify the persons involved.
3. The coverage of the common law obligation is wider and extends to source documents, like those produced under the discovery process, those produced in answer to subpoena, or those seized pursuant to an interim injunction, together with documents created for use in the litigation, like answers to interrogatories and the affidavits filed in the cause (Hearne v Street at [96]).
4. As the High Court observed in Hearne v Street (at [98]), the common law obligation is often buttressed by protection afforded by rules of Court but, within the jurisdiction conferred by the Act, the obligation is buttressed by the legislative force of Pt XIVB, which prohibits the oral, written or pictorial publication of accounts of the proceedings identifying the participants therein. Publications in written form which are potentially caught by Pt XIVB of the Act include affidavits, experts' reports, and reasons for judgment which have not yet been attributed a pseudonym and anonymised.
5. However, the Pt XIVB prohibition is narrower than the common law obligation and does not cover documents which omit an account of the proceedings, even though such documents might identify a party or witness and be sensitive or confidential. So, for example, Pt XIVB would likely fall short of prohibiting the dissemination of documents produced under subpoena like bank statements which identify the account holder, taxation returns which identify the taxpayer, and police records which identify an offender or person of interest.
6. In this instance, the documents which the respondent sought and was granted permission to furnish to AUSTRAC were:

(a) bank statements of the appellant (Orders 1(a)(i), 1(e) and 1(f));

(b) bank statements of third parties (Orders 1(a)(ii)-(viii));

(c) bank transaction records referred to in a letter sent by the respondent to the appellant (Order 1(b));

(d) an affidavit of the respondent (Order 1(c));

(e) an affidavit of the appellant (Order 1(d));

(f) documents produced on subpoena (Order 1(g)); and

(g) the respondent's written submissions (Orders 1(h) and 1(i)).

1. All such documents were caught by the common law obligation, but only the two affidavits and the written submissions (covered by Orders 1(c), 1(d), 1(h) and 1(i)) were additionally caught by Pt XIVB of the Act, because they contain accounts of the proceedings and identify the participants.
2. The respondent sought and was given relief from the common law obligation, but did not seek and was not given relief from the operation of Pt XIVB of the Act. The respondent's release from compliance with the common law obligation was enough to cover all documents in this instance and, in addition, the Pt XIVB prohibition did not apply to the documents because an exception applied.
3. Supposing documents filed or created within litigation under the Act are covered by the provisions of Pt XIVB of the Act then, unless one of the numerous exceptions to the communication prohibition applies (s 114S), a party who has an interest in using the documents outside the confines of the litigation must first secure the Court's permission to do so (s 114Q(2) and s 114R(2)(b)). An offence is otherwise committed by publishing the documents (s 114Q(1) and s 114R(1)).
4. Of present significance is s 114S(1)(a) of the Act, which provides the communication prohibition imported by Pt XIVB of the Act does not apply to documents and information communicated to a person or body who has a significant and legitimate interest in the subject matter of the communication.
5. To utilise dramatic examples to illustrate the point, suppose a party to litigation under the Act files an affidavit admitting to importing and supplying a commercial quantity of illicit drugs or having molested a child, then s 114S(1)(a) of the Act would permit the other party to give the affidavit to police to investigate the crimes without an anterior grant of permission by the Court. In fact, for the other party to abstain from furnishing the affidavit to the police for investigation would itself probably amount to an offence, like the statutory offences of concealing crimes (s 316 and s 316A of the Crimes Act 1900 (NSW); s 327 and s 337 of the Crimes Act 1958 (Vic)) exposing that party to prosecution.
6. Here, the respondent believes the documents caught by Pt XIVB of the Act will help establish criminal conduct by the appellant and other persons. AUSTRAC is a statutory "body" with ostensible "significant and legitimate interest" in the documents, in which event the exception within s 114S(1)(a) of the Act is engaged and the respondent did not need the Court's permission pursuant to s 114Q(2) or s 114R(2)(b) to provide the two affidavits and written submissions to AUSTRAC. Relief from the common law obligation in respect of all documents was enough.
7. The grant of permission relieving a person from the constraints of either the common law obligation or the Pt XIVB prohibition involves an exercise of discretion, requiring the person to show "special circumstances" to justify such relief (Littlefield & Pemble [2023] FedCFamC1A 198; (2023) FLC 94-165 at [26]-[37]); Sahadi & Savva & Anor [2016] FamCAFC 65; (2016) FLC 93-704; Re W: Publication application [1997] FamCA 8; (1997) FLC 92-756 at 84,272 and 84,274). In this instance, anomalously, the primary judge did not give any ex tempore or published reasons to explain the discretionary grant of relief from the common law obligation, yet there is no challenge by the appellant to the decision on the premises of discretionary error or absence of reasons.
8. Instead, the appellant principally challenges the orders made on 1 October 2024 on the premise of her being denied procedural fairness (Grounds 1 and 2) by being denied the chance to make submissions opposing the respondent's application for relief from the common law obligation. For present purposes it may be accepted the appellant was genuinely ignorant of the Court listing on 16 September 2024 when the respondent made his application for relief from the common law obligation and she therefore had no chance to respond but, even so, the complaint must fail for two conjunctive reasons.
9. First, she only had an interest in maintaining the privacy of some of the documents covered by the appealed orders - being her bank statements and her affidavit (Orders 1(a)(i), 1 (d), 1(e) and 1(f)). She had no standing to oppose the respondent's application for permission to provide AUSTRAC with the other documents in which she had no interest because they did not confer her with any right, duty or liability which the primary judge could adjudicate (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 411 ALR 615 at [75]-[76]; Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214 at [32]-[42], [47]-[77] and [79]-[99]).
10. Secondly, in respect of the documents in which the appellant does have an interest, the deprivation of her chance to make submissions opposing the respondent's application for permission to publish her bank statements and her affidavit could not have reasonably made any tangible difference to the outcome. The respondent contended the documents would tend to expose her criminal conduct to AUSTRAC. Assuming she denies such criminal conduct, AUSTRAC was still bound to consider the respondent's allegations and, if warranted, investigate them. The primary judge's decision permitting the provision of the documents to AUSTRAC entailed no judicial comment, much less any definitive decision, about the correctness of the respondent's allegations against the appellant. Presuming for the moment the documents do happen to excite some interest on the part of AUSTRAC, the appellant will no doubt have the chance to explain her position in due course during any investigation conducted against her by AUSTRAC and/or the police. She has lost nothing by the deprivation of the chance to tell the primary judge the documents should not be published because she has done nothing wrong.
11. To avoid injustice, the concept of procedural fairness is applied in a practical, not abstract, way (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]). No deprivation of procedural fairness will result in the allowance of an appeal and a new hearing if the deprivation had no bearing on the decision from which the appeal is brought (Stead v State GIO [1986] HCA 54; (1986) 161 CLR 141 at 145), which is the situation at hand.
12. The other ground of appeal (Ground 3) alleges the respondent misled the primary judge by failing to disclose he had already furnished sensitive documents to AUSTRAC before receiving his Honour's permission to do so via the orders made on 1 October 2024. The ground is without merit because there is neither evidence nor an admission to prove he did so. The further evidence which the appellant adduced in the appeal proves only that, on 26 July 2024, the respondent admitting having already requested AUSTRAC to proceed with a "fraud investigation" and providing it with "supporting evidence". The nature of the supporting evidence remains unknown.
13. The respondent having been in prior contact with AUSTRAC to register his complaint is not the same thing as him having already furnished it with the privileged documents covered by the orders made on 1 October 2024. If the respondent did furnish the privileged documents to AUSTRAC before being granted permission to do so, he is amenable to prosecution for contempt of the Court (Hearne v Street at [2], [24], [106]-[107], [109], [119], [126], [129], [133] and [134]), but such misconduct does not undermine the decision made by the primary judge.
14. Leave to appeal from the orders made on 1 October 2024 should be dismissed.

1. The grounds in respect of this appeal broadly contend that the appellant had no notice of the listing on 16 September 2024 (Ground 1), the appellant was denied natural justice (Ground 2), the respondent misled the court (Ground 3) and that the primary judge did not address the appellant's submissions (Grounds 4, 5 and 6).
2. Where one of the grounds challenges the integrity of the hearing by contending a denial of natural justice it should in the ordinary course be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [117]. However, where independent of the ground challenging the integrity of the hearing, we are satisfied that a ground or grounds have merit demonstrating an error of fact and law which is dispositive of the appeal then it is unnecessary to consider the procedural fairness ground.
3. Before addressing Grounds 4, 5 and 6 it is necessary to make some observations as to the manner in which the primary judge dealt with the application for indemnity costs. Due allowance must be made for the fact that the appellant is not a lawyer and the Notice of Appeal and Summary of Argument would appear to have been prepared without the benefit of representation. As the High Court observed in Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150:

... A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy ...

1. It is not the task of this court to perpetuate error where it is apparent even if not made so by the grounds of appeal (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531).
2. In that respect there are two matters about the approach of the primary judge in determining the application for costs, unhinged as it was to any application that had not been determined, and proceeding "on the papers" which cause us considerable disquiet and are of wider application in the determination of such applications in the absence of an oral hearing.
3. As to the first, we fail to see why it was necessary to determine the application in circumstances where it did not follow the determination of an application, let alone the failure of one and where the proceedings remained extant. Such applications are best left to a time following the completion of the proceedings. Then the court is best able to reflect, with the benefit of cross-examination that informed findings, whether the circumstances justify having regard to s 117(2A) of the Act in making a costs order including one for indemnity costs. To do so in the midst of the proceedings particularly where disputed facts are resolved by findings critical of the conduct of one party raises the undesirable spectre of a possible application for recusal.
4. As to the second, properly understood, a determination "on the papers" is a process where the court for sound and expedient reasons saves the parties and the court the time and imposition of an oral hearing. It is a practice to be encouraged where the circumstances warrant. It is not, nor ever should be, appropriate in circumstances where the determination requires the making of findings against disputed facts particularly where the findings reflect upon the conduct of a party.
5. In this instance the primary judge was not in a position to make any findings at all, as all that was before his Honour consisted of written submissions (which are themselves not evidence; Randwick City Council v Fuller [1996] NSWCA 444; (1996) 90 LGERA 380 at 382) and disputed factual contentions recited in affidavits untested by cross-examination.
6. If having embarked upon a determination "on the papers" it became apparent that the application could only be determined by making factual findings, then the appropriate course was to either defer the determination to the conclusion of the proceedings or relist the matter and conduct an oral hearing involving cross examination.
7. Neither course was adopted by the primary judge. Instead, unaided by cross examination, the primary judge found the appellant had conducted the litigation "with cavalier disregard for her disclosure obligations and for her compliance with court orders" at [16]; that she had effectively "stymied the applicant wife's advancement of her claims in respect of resulting trusts by reason of the (the appellant's) persistent refusal to do so as she was required to do in relation to disclosure" at [18]; that she had thwarted the attempts to progress the case to a trial for at least four years at [18]; she had "feigned compliance with her disclosure obligations yet she did not discharge those obligations in the manner required by law" at [51]; and that "rather than complying with her disclosure obligations, the (appellant) pursued avenues for the placing of various respondents in external administration, the first meeting of creditors of which was held as counsel was on his feet before me" at [55(c)].
8. Such adverse findings were made notwithstanding:

(a) the appellant denied any failure to give proper financial disclosure, or any other form of misconduct, within her written submissions;

(b) the respondent had filed no less than 10 contravention and contempt applications against the appellant alleging her failure to give proper financial disclosure during the period covered by the costs orders made by the primary judge, yet not one of those applications has been heard and determined against her; and

(c) the appellant had never been cross-examined on her denials of failing to give financial disclosure

1. Having made such adverse findings despite those facts, the primary judge proceeded to make an indemnity costs order, albeit there had been non-compliance by the respondent with the mandatory terms of r 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which required the respondent to disclose to the Court the terms of the cost's agreement.
2. A decision whether to procced "on the papers" involves an assessment of the totality of the evidence and submissions including procedural fairness considerations (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2011) 80 NSWLR 43 at [115]-[120] Tobias JA). Such course was not followed and the findings made in the absence of cross examination were not open and gave rise to an error of law.
3. As to Grounds 4, 5 and 6 the appellant contends that a fulsome reading of the reasons reveals the primary judge did not have regard to her submissions filed 25 July 2022, given the primary judge referred to her submissions filed on 20 June 2022. The respondent contends that a reading of the primary judges' reasons discloses that while the primary judge does not refer to the submissions filed 25 July 2022, they were considered as the primary judge's associate called for a copy and in referring to the submissions the primary judge correctly found there was "no meaningful attempt made by the (appellant) to explain her deficiencies of disclosure" (Respondent's Summary of Argument, paragraph 43).
4. There is no issue the appellant filed submissions on 25 July 2022 in reply to the respondent's application for indemnity costs. Nor is it in issue that at the listing on 16 September 2024 the respondent's King's Counsel informed the primary judge that one of the documents relevant to the determination of the application was the appellant's submissions filed 25 July 2022 and later that day at the request of the primary judge's associate provided a copy of those submissions to the court.
5. In respect of the information relied upon by the appellant the primary judge at an early point in the reasons observed as follows:
   1. On this costs application, the [respondent] made an affidavit on 14 July 2022 in which he deposed, in substance, that the matters extracted in submissions prepared by senior and junior counsel on his behalf were true. So far as the [appellant's] submissions were concerned, they were expressed in narrative form, as if an affidavit, yet the "submissions" (euphemistically so-called) were neither sworn nor affirmed as an affidavit. She did not attach any supporting documents to her submissions. For that matter, her submissions were an exhibit to the [respondent's] affidavit. The [appellant] denied she was liable to the first respondent for costs for any reason asserted by the [respondent].

1. The primary judge did not accurately describe the appellant's written submissions filed 25 July 2022. Those submissions were lengthy, referred to affidavits relied upon by the appellant and contrary to his Honours finding attached numerous documents. Nor were they, nor could they be an exhibit to the respondent's affidavit. As his Honour observed, the respondent's affidavit was filed on 14 July 2022 and the appellant's submissions were not filed until 25 July 2022.
2. The submission by King's Counsel for the respondent that the primary judge had regard to the appellant's submission is not open on a proper reading of the primary judge's reasons. The primary judge referred at [42] to the appellant's submissions having been filed on 20 June 2022. This clearly could not be a reference to the appellant's submissions on the indemnity costs issue as the orders for the filing of submissions were not made until 5 July 2022.
3. Nor can it be accepted that a reference to submissions having been filed on 20 June 2022 is infelicitous and intended to be a reference to the submissions filed on 25 July 2022 for the following reasons:

(a) While there are submissions filed by the appellant on 20 June 2022 comprising some 7 pages those submissions say nothing about the issue of indemnity costs because they are in response to a different application.

(b) The primary judge was accurate in his conclusion that those submissions addressed the appointment of the administrators and not indemnity costs as they were not responding to the indemnity costs application.

(c) The primary judge was correct at [42(a)] of the Reasons in stating the submissions addressed s 95A of the Corporations Act. A submission to the effect is recorded in paragraph 6 of the submissions filed 20 June 2022. It is not mentioned in the submissions filed 25 July 2022.

(d) The primary judge was correct at [42(d)] of the Reasons in stating that paragraph 7 of the submissions addressed issues of company solvency. Paragraph 7 of the submissions filed submissions filed 20 June 2022 addresses that issue while paragraph 7 of the submissions filed 25 July 2022 addresses the issue of indemnity costs.

1. Put simply the primary judge addressed the wrong submissions. In doing so he did not consider at all the 18 pages of submissions filed by the appellant on 25 July 2022 which addressed in detail the respondent's application for indemnity costs.
2. The primary judge's failure to consider the appellant's submissions constituted a material error of fact and his failure to consider her case at all constituted an error of law (Reese & Ralston [2021] FedCFamC1A 99).
3. The application in an appeal to adduce further evidence is granted. Leave to appeal from the orders made on 4 October 2024 should be allowed and the appeal allowed.

1. Leave to appeal in suit NAA281/2024 will be dismissed.
2. Leave to appeal is allowed and the Notice of Appeal filed 28 October 2024 in suit NAA282/2024 will be allowed.
3. The orders made by the primary judge on 4 October 2024 will be set aside.
4. It remains to determine as to what we should do with the respondent's application for indemnity costs. One course would be to remit the application to the primary judge for re-hearing (if it is still pressed), but not until after the respondent's pending contravention and contempt applications against the appellant are either discontinued or determined.
5. However, in circumstances where the primary judge has made the adverse findings to which we have adverted it would be inappropriate to adopt such course. It necessarily and logically follows for the same reasons that it would be inappropriate for the primary judge to take any further part in the proceedings. Consequentially the indemnity costs application will be remitted for hearing before a judge of Division 1 other than the primary judge and the primary judge disqualified from taking any further part in the proceedings (s 36(1)(b) and s 36(1)(c) FCFCOA Act).

1. Neither party complied with the directions of the Appeals Registrar as to costs.
2. In circumstances where appeal NAA281/2024 was dismissed the respondent indicated that he did not seek costs.
3. In circumstances where NAA282/2024 was allowed the appellant sought by way of costs the filing fee in the sum of $1,500. The respondent advised that if the appeal was allowed, he did not oppose an order in that amount.
4. We are satisfied that the circumstances are such pursuant to s 117(2A) of the Act to justify a costs order in the sum sought by the appellant and will make such an order.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann, and Schonell.

MR OO AND MR UU IN THEIR CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF QUEN PTY LTD (IN LIQUIDATION), E PTY LTD (IN LIQUIDATION) AND F PTY LTD (IN LIQUIDATION)

MR OO AND MR UU IN THEIR CAPACITY AS JOINT AND SEVERAL RECIEVERS OF THE ASSETS AND UNDERTAKING OF THE QUEN FAMILY DISCRETIONARY TRUST, E FAMILY TRUST AND F FAMILY TRUST AND G PTY LTD