Reaper v Baycorp Collections PDL

Federal Court of Australia|2020-05-15|Before: Snaden J

[2015] FCAFC 86 Towle v Secretary, Department of Social Services (2018) 264 FCR 127

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Solicitor for the Respondent: Ms D McCredden of White Cleland Pty Ltd

AND: BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LIMITED (ACN 119 478 778) Respondent

JUDGE: SNADEN J DATE OF ORDER: 15 MAY 2020

The appellant, insofar as he might require it, have leave to appeal from the judgment of the Federal Circuit Court of Australia pronounced on 16 February 2017 in matter (P)MLG887/2012.
The appeal be allowed in part.
The orders of the Federal Circuit Court of Australia made on 16 February 2017 in matter (P)MLG887/2012 be set aside.
The application in respect of which the orders referred to in order 3 above were made be remitted to the Federal Circuit Court for determination in accordance with the reasons published herein. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 By a notice of appeal dated 8 March 2017, the appellant (hereafter, "Mr Reaper") appeals from the judgment of the Federal Circuit Court of Australia (hereafter, the "FCCA") in Baycorp Collections PDL (Australia) Pty Ltd v Reaper (No.2) [2017] FCCA 244 (Judge Wilson; hereafter, the "Judgment Below"). 2 The Judgment Below was made in a proceeding that the respondent (hereafter, "Baycorp") commenced against Mr Reaper in July 2012. By that proceeding, Baycorp sought - and, in March of 2013, obtained - a sequestration order in respect of Mr Reaper under s 52 of the Bankruptcy Act 1966 (Cth) (hereafter, the "Bankruptcy Act"). By the Judgment Below - which, as the timeline makes clear, came nearly four years after that sequestration order was made (and the proceeding by which it was sought - hereafter, the "Bankruptcy Proceeding" - might normally be understood to have come to an end) - the FCCA made what are known as vexatious proceedings orders against Mr Reaper under s 88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) (hereafter, the "FCCA Act"). In doing so, it permanently stayed a number of interlocutory applications that Mr Reaper had made within the confines of that otherwise long-dormant Bankruptcy Proceeding (the particulars of which are analysed in some detail below). 3 By his appeal to this court, Mr Reaper seeks to have those vexatious proceedings orders set aside. Although not obviously within the parameters of his notice of appeal, it is apparent that he also seeks to have set aside another order of the FCCA - specifically, one made in December of 2016 - by which he was restrained from "…referring to, quoting from, reproducing, paraphrasing, relying on or otherwise lifting the contents of" a letter dated 2 May 2012 that Baycorp received from its solicitors. That letter, it appears, was the subject of an extant privilege dispute. Again, the circumstances leading to that order (hereafter, the "9 December Injunction") are explored in more detail below. 4 Upon its receipt by the court in March 2017, Mr Reaper's appeal was allocated to the docket of his Honour, Justice North. In February 2018, his Honour made various case management orders and, on 8 June 2018 - a few months prior to his retirement - directed that the matter be fixed for trial. Upon my appointment to the court in April 2019, the matter was reallocated into my docket. It was fixed for hearing on 23 September 2019 and was the subject of a pre-hearing conference on 30 August 2019. On both occasions, Mr Reaper appeared for himself and Baycorp was represented by its solicitor, Ms McCreddin 5 For the reasons that follow, Mr Reaper's appeal will be, in part, allowed.

Procedural History 6 It is prudent to invest some time mapping the history of the dispute between Mr Reaper and Baycorp. As the brief introduction above might suggest, it is long and regrettable. 7 On 27 October 2011, Baycorp appears to have obtained judgment against Mr Reaper in a proceeding brought against him in the Melbourne Magistrates' Court. For reasons that needn't be explored, Mr Reaper denies that that occurred. Whether it did or not doesn't immediately matter. 8 In any event, it was that judgment debt, alleged or otherwise, that was the basis upon which Baycorp commenced the Bankruptcy Proceeding. As the summary above states, that occurred in July 2012; and, on 7 March 2013, the FCCA made a sequestration order under s 52 of the Bankruptcy Act (hereafter, the "Sequestration Order"). 9 On 16 September 2013, Mr Reaper made an application to this court under s 153B of the Bankruptcy Act for an order to annul his bankruptcy (hereafter, the "Annulment Application"). Although nothing presently turns upon it, that application appears to have been made on two bases, namely that: (1) the debt in respect of which the Sequestration Order was made was not owed by him personally (but, rather, was owed by a related corporate entity); and/or (2) he was, in any event, solvent. 10 On 28 January 2014, the court dismissed the Annulment Application with costs: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13 (Pagone J; hereafter, the "Annulment Decision"). A few months later, it dismissed a related application that Mr Reaper had brought seeking orders to punish for contempt an officer of the Westpac Banking Corporation: Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No 3) [2014] FCA 729 (Pagone J). 11 On 26 February 2014, Mr Reaper applied for an extension of time within which to file a notice of appeal in respect of the Annulment Decision. On 30 April 2014, that application was dismissed, again with costs: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 (Tracey J). 12 Almost two years later (and after a series of other applications brought by Mr Reaper in this court were dismissed), Mr Reaper again applied for an extension of time within which to appeal the Annulment Decision. On 26 May 2016, that application was also dismissed with costs: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2016] FCA 579 (Davies J). 13 In mid-2016, Mr Reaper made an application in this court by which he sought judicial review of decisions made by a registrar to refuse to "…accept for filing an application for an extension of time to file a notice of appeal and [to] disclose the procedure for bringing new evidence". That was the third judicial review application that Mr Reaper had made since the Annulment Decision that concerned decisions by which this court's registry had refused to accept for filing various processes that he had sought to initiate. Both of the previous applications were dismissed, in each case on the basis that it was open to construe the proceeding that Mr Reaper had sought to initiate as an abuse of the court's process: Reaper v Luxton [2015] FCA 430 (Tracey J); Reaper v Luxton [2015] FCA 1296 (Mortimer J). Perhaps unsurprisingly, the third application was also dismissed: Reaper v Luxton [2016] FCA 784 (Pagone J). 14 Apparently undeterred, Mr Reaper turned his attention back to the Bankruptcy Proceeding. On 16 July 2016 - more than three years after the Sequestration Order had been made - Mr Reaper lodged an application therein (which was accepted by the court on 18 July 2016) by which he sought, amongst other things, orders to: (1) set aside the bankruptcy notice in respect of which the Sequestration Order had been made (hereafter, the "Bankruptcy Notice"); (2) set aside the Sequestration Order; and (3) annul his bankruptcy pursuant to s 153B(1) of the Bankruptcy Act. 15 That appears not to have been the first occasion upon which Mr Reaper had sought to initiate an application of that nature in the FCCA. In an affidavit that he affirmed on 23 December 2016 (in respect of a different application to which reference will shortly be made), he referred to having made 17 prior attempts to do so, all of which were rejected for filing by the FCCA registry. 16 Regardless, by the same application (hereafter, the "18 July Application"), Mr Reaper sought to have various passages struck from affidavits apparently sworn some four years earlier, as well as various forms of declaratory relief to vindicate the position (or positions) that he wished to advance (including that some of the affidavit material that Baycorp advanced against him in the Bankruptcy Proceeding was false or misleading). 17 On 26 July 2016, Mr Reaper filed another application in the Bankruptcy Proceeding, that time for orders to stay the Sequestration Order (that application is referred to, hereafter, as the "Stay Application"). 18 On 11 August 2016, the 18 July Application and the Stay Application were brought before Judge Hartnett of the FCCA. Her Honour dismissed the latter and listed the former for hearing on a date to be fixed. Programming orders concerning evidence and submissions were made to that end. 19 Thereafter, Mr Reaper filed further interlocutory applications, each brought within the Bankruptcy Proceeding that had otherwise lain dormant for three-and-a-half years. On 3 September 2016, Mr Reaper applied for orders in the following terms (the "Second Stay Application"): 1. That paragraph 6 of the orders of Burchardt J made on 18 September 2015 and amended on 9 October 2015 be stayed under rule 29.04 of the Federal Circuit Court Rules 2001 (Cth) pending the hearing and determination of the Respondent's application in a case. 2. That, pursuant to section 178 of the Bankruptcy Act 1966 (Cth), the trustee in bankruptcy, Petr Vrsecky, adjudicate, investigate and/or verify the petitioning creditor's proof of debt. Further or alternatively to [1]: 3. That an order in the nature of an injunction be made under subsection 30(1) of the Bankruptcy Act 1966 (Cth) restraining the trustee in bankruptcy, Petr Vrsecky, acting on the orders of Burchardt J made on 18 September 2015 and amended on 9 October 2015 pending the hearing and determination of the Respondent's application in a case. 20 Although not clear, the "application in a case" to which the Second Stay Application referred appears to have been the 18 July Application. "[P]aragraph 6 of the orders of Burchardt J made on 18 September 2015" was an order concerning a property that appears to have had some significance in Mr Reaper's bankruptcy. It is not directly relevant to the current appeal. 21 On 9 September 2016, Mr Reaper applied - again - for orders to set aside the Bankruptcy Notice, this time on the basis that he had a counter-claim, set-off or cross demand equal to or exceeding the amount of the debt to which it pertained. 22 To summarise: some three-and-a-half years after he first lost his fight against being declared bankrupt - and after numerous failed attempts in this court to reverse that outcome - Mr Reaper came back to the FCCA in the hopes of resuming his cause via a series of applications in the Bankruptcy Proceeding that began the process. 23 On 13 September 2016, Baycorp applied to the FCCA - again, within the confines of the Bankruptcy Proceeding - for the following orders, namely: 1. That [Mr Reaper's] [a]pplication(s) in [the Bankruptcy Proceeding] be dismissed. 2. That the [r]espondent Brett Vincent Reaper be prohibited from issuing further applications in [the Bankruptcy Proceeding] or in any other proceeding without first obtaining the leave of the court. 3. Such further or other order as the court sees fit. 24 That application (hereafter, the "Vexatious Proceedings Order Application") was supported by an affidavit sworn by Ms McCredden on 13 September 2016. It was scheduled for a hearing on 20 October 2016 - a date that assumes some significance. 25 On 22 September 2016, the Second Stay Application came before the FCCA (on that occasion, Judge Wilson), apparently for the purposes of case management. On that day, the court dismissed that application insofar as concerned proposed orders 1 and 3 (above, [19]). The application for proposed order 2 was adjourned for hearing before Judge Hartnett on 20 October 2016. 26 On 9 October 2016, Mr Reaper filed a "response" in opposition to the Vexatious Proceedings Order Application. Somehow, it was accepted for filing. By that document (hereafter, the "Response"), Mr Reaper indicated his opposition to Baycorp's Vexatious Proceedings Order Application, and pressed for orders that it be dismissed, that passages within Ms McCreddin's 13 September 2016 affidavit be struck out and that Baycorp be required to disclose to him how it came to possess a document that Ms McCreddin had annexed to her affidavit. 27 On 11 October 2016, Mr Reaper filed some written submissions in opposition to the Vexatious Proceedings Order Application. He relied upon his Response, as well as upon an affidavit that he affirmed on 7 October 2016. By his submissions, he contended (amongst other things) that the Vexatious Proceedings Order Application was "…irregular and fails to comply with the [r]ules", that it was "…not clear or unambiguous and fail[ed] to specify sufficient particularity" and that the affidavit sworn in support of it "…contains objectionable material". 28 On 14 October 2016, Baycorp filed and served written submissions in support of its Vexatious Proceedings Order Application. Amongst other things, it described Mr Reaper as someone who "…has engaged in repeated and prolonged litigation in both [the FCCA] and the Federal Court in relation to the debt which was the basis of the Sequestration Order" and who "…has demonstrated that he is prepared to bring essentially the same application repeatedly, even where previous applications have been decided overwhelmingly against him." 29 Neither the Vexatious Proceedings Order Application nor what remained of the Second Stay Application were heard on 20 October 2016. Instead, each was adjourned until 9 December 2016, to be heard before Judge Wilson. Another application in another matter - namely, an application brought by Mr Reaper to stay the execution of a warrant of possession issued in respect of his home (hereafter, the "Warrant Application") was also listed for determination on that day, also before Judge Wilson. 30 Over the course of November 2016, Mr Reaper filed in the Bankruptcy Proceeding a series of what he described as statements of claim. Each purported to outline various claims that Mr Reaper sought to agitate, presumably in support of his 18 July Application (or, possibly, what then remained of his Second Stay Application). Again, somehow, each was accepted for filing. It is not necessary to explore why, nor what, if any, relevance those documents purported to serve. 31 On 16 November 2016, Mr Reaper sought to file in the Bankruptcy Proceeding a cross-claim. It is not clear why he sought simultaneously to agitate a statement (indeed, statements) of claim and a cross-claim within the same proceeding; but, happily, that question does not arise for consideration in this appeal. The cross-claim was rejected by the FCCA registry. It appears that Mr Reaper made at least one (and possibly two) further attempts to file it but each such attempt met with the same fate. 32 Matters were brought to something of a head on 9 December 2016, at a hearing that took place before Judge Wilson (hereafter, the "9 December Hearing"). At the commencement of that hearing, his Honour delivered judgment on the Warrant Application. It is fair to say that Mr Reaper did not take his Honour's judgment well. Despite the need to deal (in one way or another) with other matters on that occasion - most importantly, Baycorp's Vexatious Proceedings Order Application - Mr Reaper left the courtroom abruptly. It was, to say the least - and for reasons that will become apparent - extremely regrettable that he did so. 33 After Mr Reaper's departure, his Honour considered the future conduct of the Vexatious Proceedings Order Application and a series of directions were made concerning the filing of submissions. It was determined that the Vexatious Proceedings Order Application would be determined on the papers. It was also at that hearing that his Honour - presumably upon an oral application made by Baycorp - made the 9 December Injunction. 34 Baycorp's solicitors then drew up a minute of the orders made during the 9 December Hearing. That minute was provided to his Honour's chambers, whereupon it was approved and entered into the records of the court. The orders made were in the following terms, namely that (emphasis and errors original): 1. The application made by the applicant filed 20 October 2016 be heard and determined on the papers. 2. By no later than 4.00 p.m. on 16 December 2016, the applicant file and serve any supplementary submissions in relation to the application filed 20 October 2016. 3. By no later than 4.00 p.m. on 23 December 2016, the respondent file and serve any supplementary submissions in response. 4. Until further order the respondent is restrained by himself, his servants or agents from referring to, quoting from, reproducing, paraphrasing, relying on or otherwise lifting the contents of a letter dated 2 May 2012 from White Cleland to Baycorp Collections PDL (Australia) Pty Ltd. 5. The costs of the applicant and the trustee in bankruptcy are reserved. 35 As will be immediately apparent, the orders of 9 December 2016 (hereafter, the "9 December Orders") wrongly referred to an application of "20 October 2016". There was no such application. In an affidavit read for the purposes of the present appeal, Baycorp explained that the order had been incorrectly drafted so as to identify the date upon which the Vexatious Proceedings Order Application had initially been scheduled to be heard (20 October 2016 - above, [24]), rather than the date upon which it had been filed (13 September 2016). It is not credibly doubted that the directions issued by the court on 9 December 2016 were issued in respect of the Vexatious Proceedings Order Application. Had Mr Reaper been inclined to remain in the courtroom following the determination of the Warrant Application, he would have understood that to have been so. 36 On 16 December 2016, Baycorp filed a written submission in compliance with the 9 December Orders. An attempt to serve that document upon Mr Reaper by email was unsuccessful (the transmission appears to have generated an automated reply that the communication could not be completed). On or about 19 December 2016, Baycorp's representatives forwarded a copy of the submission to Mr Reaper by ordinary mail at his nominated address for service. As it transpires, Mr Reaper was no longer living at that address, no doubt in consequence of the manner in which the Warrant Application had been determined. He did not identify an alternative address for service until 10 January 2017. Regardless, he did not receive Baycorp's submission. 37 On 23 December 2016, Mr Reaper filed a submission of his own, again in compliance with the 9 December Orders. That was, to say the least, a curious document. As the 9 December Orders had contemplated, it was headed "supplementary submissions of the respondent". The 9 December Orders had contemplated that Mr Reaper would file a "supplementary" submission, presumably on account of the fact that he had already, unprompted, filed a submission in opposition to the Vexatious Proceedings Order Application (see above, [26]-[27]). By his 23 December 2016 submission, Mr Reaper indicated that he had not received an application dated 20 October 2016 (which, of course, was a function of the fact that there was no such application) nor any submission from Baycorp in compliance with the 9 December Orders. He also indicated, regardless (and amongst other things), that: (1) the court should make various other orders, including orders having the effect of staying or reversing orders previously made (both in the Bankruptcy Proceeding and the proceeding within which the Warrant Application had been made); (2) the court should dismiss the Vexatious Proceedings Order Application; (3) Judge Wilson should "…disqualify himself on the ground that he is not equipped to handle these proceedings"; and that (4) his "…applications [should] be listed for hearing before a Court of competent jurisdiction on 23 January 2017". 38 I pause to note what is recorded in subparagraphs (3) and (4) above. Although perfectly entitled to request recusal on proper grounds, Mr Reaper did not have, much less did he identify, any basis upon which to properly extend that criticism of his Honour. The comment was needlessly disrespectful and highly inappropriate. As a self-represented litigant (albeit one who has represented himself on many occasions before many judges of this court and the FCCA), Mr Reaper is to be extended some latitude insofar as concerns his interactions with the court; but not such as might license conduct that, if engaged in by counsel, would attract the prospect of serious disciplinary sanction. 39 A few hours after filing his submission, Mr Reaper lodged yet another interlocutory application in the Bankruptcy Proceeding. It was lodged late in the evening of Friday, 23 December 2016 and was not approved for filing until after the Christmas and New Year break, on 20 January 2017. By that application (hereafter, the "20 January Application"), Mr Reaper sought orders in the following terms, namely: 1. That this Application be determined ex parte, urgently, on the papers. 2. The transfer judge, Judge Wilson, rescind or vacate the orders made on 22 September 2016 and the orders made on 9 December 2016. 3. That the Other party, Petr Vrsecky, be restrained from himself or by his servants or agents from listing for sale, selling and entering the property at [Mr Reaper's former address] in the State of Victoria ("the Property") pending the hearing and determination of the Respondent's Application in a case filed 18 July 2016. 4. The transfer judge, Judge Wilson, rescind the Order made on 9 December 2016 under proceeding MLG931/2013, pursuant to section 37 of the Bankruptcy Act 1966 (Cth) or at his discretion. 5. Warrant AP1600466990046699 issued by Registrar Luxton on 23 September 2016 be stayed until further order or, alternatively, be set aside on the ground that Judge Hartnett had care and conduct of the matters concerning the trustee before the Federal Circuit Court. 6. That the Other party, Petr Vrsecky, provide the Respondent the keys to the Property to allow the Respondent and his family access to their personal belongings and arrange insurance repairs. 7. Bankruptcy Notice 8629 issued on 16 November 2011 by Insolvency and Trustee Service Australia, which was served on Brett Reaper on 2 February 2012, be set aside on the ground that the Applicant creditor is unable to establish the existence of a relevant debt at the relevant time. 8. That the Applicant's document entitled "Application" filed with the Registry of the Federal Circuit Court of Australia on 14 September 2016 be dismissed or, alternately, be set aside on the ground that Applicant was not permitted to file the document. 9. That the Respondent's Notice of cross-claim dated 20 November 2016 be accepted for filing and the Respondent file any further documents he wishes to file. 10. That the Respondent's Application in a case be listed for hearing before a Court of competent jurisdiction on 23 January 2017 for an estimated 3½ day hearing. 11. Damages and costs of the Respondent be reserved. 12. The transfer judge, Judge Wilson, disqualify himself on the ground of ostensible bias. 13. The transfer judge, Judge Wilson, disqualify himself on the ground that the transfer of these proceedings into his docket was contrary to the Central Practice Note. 40 It appears that proposed orders 3, 4, 5 and 6 related to the Warrant Application (which was not made within the confines of the Bankruptcy Proceeding). Proposed order 8, clearly enough, pertained to the Vexatious Proceedings Order Application. Proposed order 10, equally clearly, pertained to the 18 July Application. 41 The 20 January Application was supported by an affidavit that Mr Reaper affirmed on 23 December 2016. That affidavit made additional - and very serious - accusations against Judge Wilson that are not worthy of repetition here. 42 On 16 February 2017, Judge Wilson determined the Vexatious Proceedings Order Application: Baycorp Collections PDL (Australia) Pty Ltd v Reaper (No.2) [2017] FCCA 244. His Honour made orders in the following terms (hereafter, the "16 February Orders"), namely that: (1) Pursuant to s.88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) and the Court's power at common law to prevent abuse of its process, the following applications are permanently stayed - (a) the [18 July Application]; (b) paragraph 2 of the [Second Stay Application]; and (c) the [20 January Application]. (2) Pursuant to s.88Q(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth), the respondent is prohibited from instituting proceedings in the Federal Circuit Court of Australia. (3) The respondent pay the costs of the applicant.

The present appeal 43 It is from the 16 February Orders that Mr Reaper now appeals. He asserts that they were the product of error that it is appropriate for this court to correct on appeal. His notice of appeal advances eight grounds in that respect, namely: 1. The transfer judge erred in fact and law at [34] of his reasons in invoking rule 1.05 of the Federal Circuit Court Rules so as to apply rule 26.01 of the Federal Court Rules: a. The provisions of the Federal Court Rules set out in Part 2 of Schedule 3 of the Federal Circuit Court Rules do not extend to rule 26.01; b. The Federal Circuit Court did not have jurisdiction to make an order under rule 26.01 of the Federal Court Rules permanently staying the proceeding; c. The Federal Circuit Court did not have jurisdiction to entertain an application presumably brought under rule 26.01 of the Federal Court Rules. 2. The transfer judge erred in fact and law in making a section 88Q(2) order against the respondent on the application of the applicant in failing to: a. assess compliance of the application of the applicant against the Rules; b. give directions or make orders regarding the hearing of the application of the applicant filed 14 September 2016; c. hear the respondent pursuant to section 88Q(5) of the Act; d. take into account that the learned docket judge previously assessed the merits of the application in a case filed by the respondent on 18 July 2016; e. take into account that his Honour previously assessed the merits of paragraph 2 of the application in a case filed by the respondent on 13 September 2016. 3. The transfer judge erred in failing to give any or any adequate weight to: a. The respondent's Response and supporting affidavit filed 10 October 2016; b. The respondent's Submissions filed 11 October 2016; c. The respondent's Supplementary Submissions filed 23 December 2016. 4. The transfer judge erred in disregarding the ethical principles applying to practitioners' dealings with unrepresented litigants in making, or allowing to be made, orders on 9 December 2016 behind the respondent's back, specifically order (4). 5. The transfer judge was wrong and incorrect in giving priority to the application by Baycorp for orders preventing Mr Reaper from impeding Baycorp's collection of sums due to it, prior to establishing the existence of a relevant debt at the relevant time. 6. The transfer judge erred in making the factual findings at [10] of his reasons: a. Westpac had obtained a default judgment against Mr Reaper; b. Further, at no stage has Mr Reaper adduced any evidence of his own solvency; i. when it was not a live issue, ii. the respondent had not been heard on the matter, iii. when the ground for acting under s.153B is the established circumstance, the additional step of proving solvency is not required. 7. The transfer judge was wrong and incorrect in disregarding the application in a case filed by the respondent on 20 January 2017 and prior to resolving the matters therein. 8. The transfer judge erred in failing to accord procedural fairness in accepting the application of the applicant filed 14 September 2016 and refusing the respondent's cross-claim filed under the same conditions. 44 It is apparent that not all of the grounds upon which Mr Reaper seeks to rely pertain to the 16 February Orders (despite their being identified as the orders from which his appeal is brought). Appeal ground 4, in particular, appears to attack the FCCA's 9 December Orders instead. That confusion extends throughout the notice of appeal. Under the heading "Orders sought", Mr Reaper's notice of appeal enumerates a series of orders that he would have the court make. They, too, are not restricted to the 16 February Orders. Mr Reaper seeks orders in the following terms, namely: 1. That the orders made by the transfer judge on 9 December 2016 be set aside; 2. The orders appealed from be set aside and in lieu of, order: a. That the application in a case filed by the respondent on 18 July 2016 be remitted to the Federal Circuit Court for final hearing and determination; b. That the respondent file his notice of cross-claim within 14 days; c. That paragraphs 1, 3(a) and 5 to 17 of the affidavit of Danielle Jane McCredden sworn on 13 September 2016 be struck out under rule 15.29 of the Federal Circuit Court Rules 2001 (Cth); d. That the Other party, Petr Vrsecky, verify the petitioning creditor's proof of debt pursuant to paragraph 2 of the application in a case filed by the respondent on 13 September 2016, within 7 days; e. The applicant bear its own costs of and incidental to its application filed on 14 September 2016; f. The applicant's costs of and incidental to its application filed on 14 September 2016 be that of the respondent. 3. The parties bear their own costs of and incidental to the appeal. 45 Before me, Baycorp contended that the court ought not to entertain Mr Reaper's appeal insofar as it seeks to impugn the 9 December Orders (or any one or more of them). Put simply, it is said that the orders from which the appeal is brought (as the notice of appeal identifies them) are the 16 February Orders, not the 9 December Orders. I will address that contention in the context of appeal ground 4. 46 In the course of case-managing the present appeal, an issue arose as to whether Mr Reaper required the leave of the court to pursue his appeal. Mr Reaper contended that he did not and Baycorp agreed, at least insofar as concerned the 16 February Orders. Baycorp contended that leave was required in respect of the 9 December Orders, if, indeed, they featured at all in the challenge that Mr Reaper agitates by this appeal. The hearing of the appeal was, it is fair to say, limited to whether or not any of Mr Reaper's stated grounds of appeal was made out, rather than upon the potentially more immediate question of whether or not he should have leave to pursue them. 47 In the absence of debate on the point, the analysis herein is focused upon the substantive grounds of appeal, rather than whether or not Mr Reaper should, if he requires it, have leave to agitate them. It is my view that all of the orders (or sets of orders) that Mr Reaper seeks to challenge (namely, the 16 February Orders and at least order 4 of the 9 December Orders) were interlocutory in nature. That being the case, I consider that Mr Reaper requires this court's leave to appeal from them: Federal Court of Australia Act 1976, s 24(1A); Re Luck (2003) 203 ALR 1, 3 [6] (McHugh ACJ, Gummow and Heydon JJ). 48 Commonly, leave to appeal will not be granted unless a would-be appellant can demonstrate a prima facie case that the judgment from which he or she seeks to appeal was tainted in some way by error: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 399 (Sheppard, Burchett and Heerey JJ). In that sense, there is a correlation between whether leave to appeal should be granted and whether a substantive appeal is made out. Occasionally enough, those questions are heard together. In the present case, although no application for leave to appeal was made, I have approached the appeal on the basis that, if any of the grounds that Mr Reaper has identified has merit, leave to agitate it should be granted. At worst, that would result in a superfluous grant of leave. At best, it would serve to regularise what is otherwise a deficiency in the manner in which this matter was conducted. In my view, it is proper to excuse that deficiency (if it exists). Although something of a "frequent flyer" (both in this court and the FCCA), Mr Reaper nonetheless appeared on his own behalf and should be afforded some accommodation in respect of any unfamiliarity with applicable procedural requirements. All the more is that so given that Baycorp accepted - I think wrongly - that leave to appeal was not required. 49 In addition to the issue of leave to appeal, there is another circumstance common to all of the orders that Mr Reaper seeks to have set aside. Save for the broader issue of procedural fairness to which I shall shortly advert, all of them involved the exercise of a judicial discretion. In order to impugn them on appeal, it is necessary that Mr Reaper demonstrate that they are the product of error in the sense identified by the High Court in House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ; hereafter, "House"). That requirement is analysed in more detail below in respect of individual grounds.

Procedural fairness complaint 50 Before me, the grounds that Mr Reaper sought to agitate on appeal underwent some refinement. At the end of what was, with respect, an unstructured oral submission that was, at times, difficult to follow, I attempted to summarise the bases upon which Mr Reaper appeared to contend that the 16 February Orders should be overturned. The following exchange took place: HIS HONOUR: All right. So your - if I can distil - there's a lot of grounds in your notice of appeal, and again I don't intend that as a criticism, Mr Reaper, but if I can distil them to their essence, your complaint is that you were denied procedural fairness. Perhaps I can put it in this way, that the orders that were made on 16 February were the product of a denial of procedural fairness in that you didn't know what the application dated 20 October was[, y]ou didn't appreciate that in fact it was an application of 13 September of which you had notice, and you didn't receive any submissions from Baycorp as to why relief of the nature that's in that application ought to be granted. MR REAPER: Yes, your Honour. HIS HONOUR: And then you have the second, or let's call it a parallel attack, on order 4 of the 9 December orders which you put on the two bases that we discussed earlier, firstly, because other judges had made some rulings about the document, it wasn't open to his Honour to make the order in the terms that he made, and, secondly, because he made it, as you say, behind your back. MR REAPER: Yes, your Honour. HIS HONOUR: Is there anything else I need to know? MR REAPER: Only about the document, I think, 13 September, and - I will just have a quick look at it - the submissions, yes, touch upon the document referred to as - or the application filed by Baycorp, 13 September. It's not open or transparent, your Honour, and it was very hard to respond to. HIS HONOUR: Well, the issue, it seems to me, you say it was very hard to respond to, if [you'd] got[ten] their submissions it wouldn't have been hard to respond to. You would have seen from those submissions a number of things, firstly, that the application upon which they were moving was in fact dated 13 September, not 20 October, so that would have cleared that up. And you would have seen why it was that they wanted - if I can put it in these terms - why they wanted to shut down what I think Judge Wilson refers to as the avalanche of applications. So that seems to me to have been a pivotal point in the chronology, the fact that you, for the reasons you've identified, didn't get their submissions. Is that unfair? Is that an unfair summary from me? MR REAPER: No, it's not unfair. 51 Respectfully, the discrete grounds that are identified in Mr Reaper's notice of appeal are poorly drafted and do not marry perfectly with the submissions that he advanced in support of them. As a self-represented litigant - albeit one with a bewildering litigation history - it is more appropriate to forgive Mr Reaper any failure to adhere strictly to his originating process than might be so in respect of a party assisted by counsel: see, for example, the reference to the affording of "considerable latitude" in Sadyal v Minister for Home Affairs [2019] FCA 1462, [22] (Charlesworth J). In the case of self-represented litigants whose documentation lacks the precision that the court and opposing litigants would typically expect, it is common and appropriate for the court to consider on appeal claims that, although not squarely raised within an originating process, were nonetheless directly advanced by means of submissions: Towle v Secretary, Department of Social Services (2018) 264 FCR 127, 131-132 [16] (Logan J, with whom Farrell and Thawley JJ agreed); Australian Super Pty Ltd (formerly STA) and Another v Woodward and Another (2009) 262 ALR 402, 407 [26] (Finkelstein , Greenwood and Logan JJ). 52 By his written submissions in reply in this appeal, Mr Reaper squarely put his procedural fairness complaint. He there contended that, by his submission of 23 December 2016, he had brought to the FCCA's attention the fact that he had not received any application dated "20 October 2016", nor any submissions from Baycorp, as the 9 December Orders had contemplated. He submitted that the FCCA's decision to make the 16 February Orders in the face of those indications meant that it had "…failed to accord procedural fairness", which in turn "…caused the trial to miscarry". Appreciating that that complaint could have been more clearly articulated in Mr Reaper's grounds of appeal, it was nonetheless a complaint that was squarely advanced and it is appropriate for the court now to consider it. 53 I shall return to address that overlying aspect of the appeal after addressing the discrete grounds to which Mr Reaper's notice of appeal lends voice.

Ground one: JURISDICTION TO MAKE THE 16 FEBRUARY ORDERS 54 By his first ground of appeal, Mr Reaper contends - or appears to contend - that the FCCA lacked jurisdiction to make the 16 February Orders. That submission is put, it appears, on the basis that the provision identified by the primary judge as the source of his power to make those orders did not, in fact, authorise him to do so. 55 That submission must be rejected. It is important, at the outset, to draw a distinction between what the primary judge said in his decision and the order that was, in any event, made. In his decision, the primary judge identified that the Federal Circuit Court Rules 2001 (Cth) (hereafter, the "FCCA Rules") are silent insofar as concerns that court's power to permanently stay matters. It is convenient to record what his Honour said in that regard: 33. The rules of the Federal Circuit Court of Australia are silent on the question of staying a proceeding, an aspect of the proceeding or an application in the proceeding on the basis that an abuse of the process of the court has been committed. Where the rules of this Court are silent on a particular point, r.1.05 of the Federal Circuit Court Rules 2001 (Cth) ("Federal Circuit Court Rules") provides that the rules of the Federal Court of Australia may be invoked. Rule 26.01 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules") permits any party to a proceeding to apply for a permanent stay on the basis that the proceeding is vexatious or an abuse. 56 Thereafter, under the heading "Conclusion", his Honour observed as follows: 34. In this case, I have invoked r.1.05 of the Federal Circuit Court Rules so as to apply r.26.01 of the Federal Court Rules in the making of an order under r.26.01 by which I grant orders in favour of Baycorp permanently staying the proceeding. 57 The 16 February Orders were made in the exercise of both: (1) the power conferred upon the FCCA by s 88Q(2)(a) of the Federal Circuit Court Act 1999 (Cth); and (2) the power conferred upon the FCCA by the common law to prevent the abuse of its processes. 58 Insofar as concerned the latter, it was not strictly necessary for his Honour to identify a provision in the rules that governed (or purported to govern) his making of the 16 February Orders. As his Honour indicated elsewhere in his judgment (with respect, correctly), the FCCA possesses an inherent power to prevent the abuse of its processes, including by permanently staying applications that amount to as much. The existence of that power is not dependent upon the existence of a procedure enshrined in rules of court that govern the manner in which it might be exercised. 59 In that sense, Mr Reaper's complaint that it was inappropriate for his Honour to invoke r 1.05 of the FCCA Rules is academic. There is no question - and Mr Reaper does not contest - that the FCCA had the power to make the orders that it made. Whether it did so pursuant to the practice or procedure enshrined in a particular rule is neither here nor there. 60 Mr Reaper's submission that the FCCA "…did not have jurisdiction to make an order under rule 26.01 of the Federal Court Rules" is, strictly speaking, correct. That rule does not confer jurisdiction at all. This court's jurisdiction (like that of the FCCA) to permanently stay applications that amount to an abuse of process is inherent: a function of the court's status as a court. Rule 26.01 merely identifies a practice or procedure that should be followed when that jurisdiction is exercised (at least in most cases - as to which, see Federal Court Rules 2011 (Cth) (hereafter the "FCA Rules"), r 1.34). 61 Mr Reaper also submitted that the FCCA erred by permanently staying interlocutory applications that had been accepted for filing and that, in one case (namely, the 18 July Application) had been the subject of case management (above, [18]). He advanced the following contentions in that regard, namely that: [his] application in a case filed 18 July 2016, for example, had already been assessed under rule 2.06, evaluated by the Federal [Circuit] Court of Australia and scrutinised by the learned docket judge in the Court below on 11 August 2016 [and that i]t was not open to [Judge Wilson] to revisit that which had already been dealt with extensively let alone invoke rule 1.05 of the Federal Circuit Court Rules when the Rules sufficiently or appropriately provide for documents that appear to be an abuse of process, frivolous, scandalous, vexatious, non-compliant. 62 Rule 2.06 of the FCCA Rules confers upon registrars of that court a power to refuse to accept documents for filing, including on the basis that they appear on their face to amount to an abuse of process. Respectfully, there is nothing about the fact that an application has been accepted for filing that forecloses upon the possibility of its later being permanently stayed as an abuse of process. Acceptance by the court of a document that a party seeks to file is not proof that the document does not amount to an abuse of process. Likewise, an application may amount to an abuse of process - and may, for that reason, be liable to the grant of a permanent stay - notwithstanding that it has been the subject of case management orders. Respectfully, the submissions that Mr Reaper advanced on those scores are without merit. 63 Finally, Mr Reaper contended that the FCCA's invocation of r 26.01 of the FCA Rules (under r 1.05 of the FCCA Rules) was in error because "…[d]ivision 13.3 of the Federal Circuit Court Rules 2001 sufficiently or appropriately provides for summary disposal and stay". That submission is fairly made. Rule 13.10 of the FCCA Rules recognises the power of the FCCA to permanently stay proceedings, or parts of proceedings, on the basis that they amount to an abuse of process. The FCCA's statement that "…[t]he rules of the Federal Circuit Court of Australia are silent on the question of staying a proceeding, an aspect of [a] proceeding or an application in [a] proceeding on the basis that an abuse of the process of the court has been committed" (above, [55]) was wrong. However, the point is entirely academic. The 16 February Orders will not be overturned as the product of error simply because the court, in its reasons, has misstated the source of its power to make them. It will only be if the exercise of that power has miscarried in some way that the orders resulting from such an exercise will be set aside on appeal. 64 Respectfully, the FCCA was competent to order as it did. Mr Reaper's first ground of appeal is not made out.

Ground two: misapplication of the court's jurisdiction 65 Mr Reaper's second ground of appeal is at least partly related to his first. He contends that Baycorp's Vexatious Proceedings Order Application did not comply with the FCCA Rules. By his written submissions, Mr Reaper complains that that application: (1) was "irregular and fails to meet the standards made essential by the Federal Circuit Court Rules"; (2) is not "clear or unambiguous"; (3) deprived him of his right to "be [apprised] not only of the legal nature of an order sought but also of the particular act, matter or thing alleged as the foundation of an order"; and (4) was such as required him to "…manipulate a track through Ms McCredden's Application to resolve questions of doubt or ambiguity". 66 Additionally, Mr Reaper complains that the affidavit that Ms McCredden swore in support of the Vexatious Proceedings Order Application contained numerous factual errors, none of which require restating here. 67 Those complaints are all unparticularised. Respectfully, the Vexatious Proceedings Order Application was both regular and unremarkable. It identified, as it should have, the orders that Baycorp hoped to persuade the FCCA to make. If there were good reasons why the FCCA ought not to have made those orders - including reasons relating to procedural fairness - it was open to Mr Reaper to advance them in opposition to the application (more is said about that opportunity below). I do not accept that the Vexatious Proceedings Order Application offended any rule of procedure such that the FCCA ought not to have entertained it (or ought otherwise to have rejected it). 68 Mr Reaper also complains that the FCCA ought to have but did not give directions regarding the hearing of the Vexatious Proceedings Order Application and, contrary to s 88Q(5) of the FCCA Act, failed to hear from him before making the 16 February Orders. 69 As to the first of those points, Mr Reaper is mistaken. The FCCA did give directions regarding the hearing of the Vexatious Proceedings Order Application - specifically, on 9 December 2016 (above, [33]). As the above summary of relevant events records, Mr Reaper was not present when it did so because he had instead decided to storm out of the hearing following an unfavourable ruling on the Warrant Application. Had he not done so, he would have understood what was ordered and would have been alive to the error made subsequently within the written minute of the court's 9 December Orders. 70 It is also apparent that the FCCA in fact did hear from Mr Reaper as to whether or not Baycorp's Vexatious Proceedings Order Application should be granted. Mr Reaper filed two documents in opposition to that application: the Response and a written submission advanced in support of it (above, [26]-[27]). His opposition to what Baycorp sought - and the bases upon which that opposition were advanced - were matters of record. 71 Also under the guise of his second appeal ground, Mr Reaper complains that the FCCA failed to take into account that: (1) "…the learned docket judge previously assessed the merits of the application in a case filed by the respondent on 18 July 2016"; and (2) Judge Wilson had "…previously assessed the merits of paragraph 2 of the [Second Stay Application]". 72 Again with respect, neither of those propositions holds true. When she listed the 18 July Application for hearing and made consequential programming orders in relation to it (above, [18]), her Honour Judge Hartnett did not "assess the merits" of that application. Similarly, when he adjourned paragraph 2 of the Second Stay Application for further hearing (above, [25]), his Honour Judge Wilson did not assess its merits. Mr Reaper appears to be equating unremarkable procedural orders with the court's having considered those applications on their merits. As has already been stated, the fact that an application has been the subject of some case management directions does not mean that a court is prohibited from concluding thereafter that it amounts to an abuse of process. 73 Respectfully, the errors that Mr Reaper seeks to illustrate by his second ground are not made out.

Ground three: Failure to accord weight to submissions 74 By his third appeal ground, Mr Reaper submits that the FCCA did not accord proper weight to the material that he filed in opposition to the Vexatious Proceedings Order Application (above, [26]-[27]) or to the submissions that he filed on 23 December 2016. 75 It is a matter for a primary judge to determine what weight should be given to material that is advanced in support of or opposition to the exercise of a discretionary power such as those upon the exercise of which the 16 February Orders were made: Shaw v Yarranova Pty Ltd and Another (2017) 252 FCR 267, 285 [73], 293 [117] (North, Perry and Charlesworth JJ); Gronow v Gronow (1979) 144 CLR 513, 519-520 (Stephen J, with whom Mason, Murphy, Aickin and Wilson JJ agreed in the result). In order to impugn the 16 February Orders as the product of error, Mr Reaper needs to demonstrate that the FCCA's discretion miscarried in any one or more of the ways famously outlined by the High Court in House. That the primary judge might not have accorded to the material upon which Mr Reaper relied the weight that Mr Reaper felt was warranted is not sufficient. Mr Reaper's submission in this respect boils down to little more than an assertion that the primary judge ought not to have made the orders that were made. That submission, with respect, falls well short of what must be demonstrated in order to have set aside discretionary orders like the ones presently under consideration. 76 Mr Reaper's third appeal ground is not made out.

Ground four: the 9 December Orders 77 By his fourth appeal ground, Mr Reaper sets out to impugn the 9 December Orders (or, perhaps more specifically, the 9 December Injunction). Baycorp submits that he ought not to be permitted to do so because his notice of appeal nominates only the 16 February Orders as those that are sought to be set aside. There is force to that submission, with respect. However, on balance, I consider it sufficiently clear from the grounds recorded in the notice - and, in particular from this ground - that Mr Reaper has sought to impugn at least order 4 of the 9 December Orders (that is, the 9 December Injunction). The written submissions that he filed in support of his appeal make the issue clearer still. 78 Baycorp also points out that, if he hopes to attack the 9 December Orders, Mr Reaper requires leave to do so, as there can be no doubt that those orders were interlocutory in nature. It also points out that Mr Reaper requires an order extending the deadline by which an application for such leave was otherwise due. The present appeal was lodged with the court on 9 March 2017. Rule 35.13(a) of the FCA Rules requires that applications for leave to appeal against interlocutory orders be filed within 14 days. Even accounting for this court's summer vacation period, Mr Reaper missed that deadline by more than seven weeks. There are, then, two obstacles that Mr Reaper must first clear before his attacks on the 9 December Orders can even be entertained. 79 Despite Baycorp raising the need for both an extension of time and a grant of leave to appeal in respect of the 9 December Orders, Mr Reaper did not apply for either. Again, that might be understood to reflect a want of familiarity with court procedure, itself a reflection of his status as a self-represented litigant. Regardless, the points that Baycorp raised are valid and require analysis. 80 The criteria to which a court should have regard in determining whether or not to extend the deadline for an application for leave to appeal are relatively well-settled. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the full court, at [20], listed them as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. See also: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths and Perry JJ) 81 As with the considerations that govern extensions of time, the criteria to which a court should have regard in determining whether or not to grant leave to appeal are also relatively well-settled. Leave will not ordinarily be granted unless the applicant can show that he or she has a sufficiently arguable case on appeal which, if successful, would rescue him or her from the prospect of suffering substantial injustice: Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2020] FCAFC 27, [44] (McKerracher, Farrell and Markovic JJ); Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ). 82 As may be apparent, then, there is a criteria common to both courses. If the substantive point that an applicant hopes to agitate appears to lack sufficient merit, the court's discretion to grant either or both of an extension of time or leave to appeal will typically not be exercised: on the similarity of the tests, see Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802, [20] (Lindgren J). 83 The 9 December Orders were, by their nature, discretionary. In the case of the first three, they concerned procedural matters. The 9 December Injunction - the fourth of the five 9 December Orders - was, of course, in the nature of an injunction, which is inherently discretionary. The final order was as to costs, which also called for an exercise of judicial discretion. In order that he might have any of those orders set aside, Mr Reaper would need to establish that the exercise of those discretions miscarried in any one or more of the ways identified in House. 84 Before me, Mr Reaper failed to identify any basis upon which this court might conclude that the primary judge's discretion miscarried; that is to say that he did not identify any wrong principle by which any of the 9 December Orders was informed, any extraneous matter that guided or affected them, any mistake of fact by reason of which the primary judge's discretion miscarried, or any material consideration that went unconsidered. 85 Instead (and simply enough), Mr Reaper complains that the orders were made in his absence. That, of course, is the case. It is also a matter entirely of his making. Had Mr Reaper not left the 9 December hearing so impetuously, the exchanges that led to the orders that were made would have been made in his presence; and, no doubt, those orders would have been subject to the input that he now complains he was denied. 86 Insofar as concerns the 9 December Injunction, there is, perhaps, slight (but only slight) cause for concern. That order appears to have been made in consequence of an oral application that Baycorp made after Mr Reaper had absented himself. It is not apparent that Mr Reaper had notice that such an application would be made. It appears that the order was made ex parte. 87 That, in and of itself, is not necessarily troubling. It is common for injunction applications to be made and granted ex parte. It is not uncommon for such applications to be made orally. In the absence of further information (for example, about why there was no urgency for the order to be made on that basis), this court should be slow to presume that there was something untoward about the circumstances in which the primary judge made the 9 December Injunction. Mr Reaper simply complains that it (along with the other 9 December Orders) was made "behind his back". Respectfully, that is not a basis upon which to conclude (or, in some cases, even to suspect) that the primary judge's discretion miscarried in some way. 88 In the absence of error of the sort described in House, Mr Reaper's prospects of having the 9 December Orders set aside are not sufficient to warrant either a grant of leave or an extension of time. I would, on that basis alone, decline to entertain his contention that the primary judge erred in the manner alleged by his fourth ground of appeal. 89 There are two other circumstances that solidify my inclination in that regard. The first is that Mr Reaper has not identified any compelling reason as to why he was unable to challenge the 9 December Orders (including the 9 December Injunction) sooner than he sought to. It is apparent that he was aware, at least by 23 December 2016, that the 9 December Orders had been made. On that day, he filed (much as the 9 December Order contemplated that he would) some submissions in which he referred directly to them. Why it took until 9 March 2017 (when he lodged the present notice of appeal) for him to challenge those orders in this court was never explained. The absence of a good explanation for that delay inclines against the exercise of the court's discretion to grant an extension of time within which to seek leave to appeal against the 9 December Orders. 90 Secondly, the 9 December Injunction - which appears to be the primary target of this appeal ground - was expressed to apply "until further order". As is so with interlocutory injunctions generally, it was open to Mr Reaper to make an application to the FCCA to have that order set aside if there was a proper basis to do so. Indeed, by his 20 January Application, Mr Reaper did just that (albeit, as events transpired, not successfully). I would be reluctant, to say the least, to interfere with an interlocutory judgment that was liable to adjustment by the very court that made it. Again, the availability of that course tends against an exercise of the court's discretion to grant leave to appeal in respect of this ground, or to grant an extension of time within which to seek such leave. 91 Mr Reaper's fourth ground (or proposed ground) of appeal is without merit. Were he given leave to pursue it, it would fail. For that reason and the others identified above, I decline to extend the deadline by which Mr Reaper ought to have applied for leave to agitate that ground on appeal. Had an extension not been necessary, I would, on account of its insufficient prospects of succeeding, have declined to grant that leave in any event. Either way, Mr Reaper's fourth appeal ground (or, perhaps more accurately, what is proposed as his fourth appeal ground) is not (or would not be) made out.

Ground five: error in priority 92 By his fifth ground of appeal, Mr Reaper alleges that the primary judge erred by "giving priority to the [Vexatious Proceedings Order Application] prior to establishing the existence of a relevant debt at the relevant time". 93 Intending no disrespect, this aspect of Mr Reaper's appeal was particularly difficult to follow. As I followed it, his contention was, in effect, that he was wrongly brought into bankruptcy; and that, in truth, he does not (and did not) owe Baycorp the debt that lay at the centre of the Bankruptcy Proceeding. 94 How any of that might translate into an error of the sort described in House was never explained. As a self-represented litigant, that observation should not be mistaken for criticism of Mr Reaper. Nevertheless, the challenge remains unanswered. Even assuming that Mr Reaper is right about what he says about the debt in question (an assumption that I draw only for the purposes of addressing - and dismissing - this ground of the appeal), it does not follow that the primary judge's discretion to make the 16 February Orders miscarried in some way. Mr Reaper effectively invites this court to conclude that he is not a vexatious litigant and that the primary judge ought, therefore, not to have made the 16 February Orders. That is not the function of this court on appeal. 95 Mr Reaper's fifth ground of appeal is not made out.

Ground six: wrong factual findings 96 By his sixth appeal ground, Mr Reaper contends that the primary judge erred in making certain factual findings. In the Judgment Below, the primary judge observed (at [10], references omitted): 10. The facts giving rise to Mr Reaper's bankruptcy have been addressed in other judgments collected together in my decision handed down on 9 December 2016. No useful purpose is served in reciting those details here. Suffice it to say that prior to the assignment of the debt to Baycorp, Westpac had obtained a default judgment against Mr Reaper, which judgment was not set aside nor was it the subject of an appeal. That judgment has stood for over four years. The judgment debt has not been compromised, compounded or discharged. Further, at no stage has Mr Reaper adduced any evidence of his own solvency. That last mentioned matter was singled out by Mortimer J as having significance in Reaper v Luxton [[2015] FCA 1296, [15]]. 97 Mr Reaper maintains that those observations are not grounded in fact. Westpac, he says, has not obtained any judgment against him. The primary judge, he continues, wrongly relied upon "erroneous findings from other proceedings to substantiate his Reasons for judgment and in circumstances where the fresh evidence filed in the Court below was not available in those previous proceedings". What that "fresh evidence" is was not the subject of explanation; but, for the reasons that follow, it wouldn't matter if it was. 98 The difficulty with this appeal ground is that it does not identify (or even suggest) error in the sense described in House. Again, Mr Reaper invites this court to conclude that the primary judge's conclusions (or some of them) were wrong and that, therefore, the 16 February Orders ought not to have been made. Again, that is not the function of this court on appeal. 99 Mr Reaper's sixth ground of appeal is not made out.

Ground seven: failure to recuse 100 By his seventh appeal ground, Mr Reaper contends that the primary judge was wrong to "disregard" his 20 January Application. By his written submissions in this court, he advanced the following contentions: 43. In his Reasons for judgment the transfer judge states that on 9 December 2016 Mr Reaper told me he did not pursue the recusal application: a) The application in a case filed by Mr Reaper on 20 January 2017 ("the Recusal Application") was made and lodged with the Registry of the Federal Circuit Court on 23 December 2016, being two (2) weeks after "the debate on 9 December 2016"; b) The orders appealed from confirms the filing date of the Recusal Application; c) The Appellant states that he did not tell the transfer judge that he did not wish to pursue the Recusal Application, the dates are testament to that statement. 44. The Appellant asserts that the transfer judge took Ms McCredden's Application, nurtured it, or otherwise received another clandestine, and prioritised it to circumvent the Recusal Application and Mr Reaper's application in case. The misleading statement regarding the Recusal Application corroborates the Appellant's assertion. 45. A recusal application has priority over and above all else. A decision-maker cannot continue to preside over a matter until he or she has dealt with such an application: see for example; Luck v Chief Executive Officer of Centrelink [2015] FCA 1234 at [5 to 6]. 101 In the paragraph immediately following those passages, Mr Reaper embarked upon another extraordinary and inappropriate attack against the primary judge, the particulars of which it is beneath the dignity of this court to repeat. Although nothing presently turns on it, I feel compelled to observe that Mr Reaper's tendency to indulge in appalling slurs reflects poorly upon him. His comments (despite my inclination not to repeat them) stand condemned in the strongest possible terms. 102 Notwithstanding that distraction, it must be acknowledged that the primary judge's reasons could, with respect, have been better expressed. His Honour acknowledged that, by his 20 January Application, Mr Reaper had sought "…orders that I disqualify myself on the grounds of 'ostensible bias' and that the transfer of this proceeding to me was 'contrary to the Central Practice Note'" (emphasis original). Later, his Honour referred to the hearing that took place on 9 December 2016. His reasons record that, at that hearing, "Mr Reaper told me he did not pursue the recusal application". Evidently enough, that reference to "the recusal application" could not have been a reference to what was sought by the 20 January Application (which, of course, had yet to be filed). 103 It is, then, correct to say that Mr Reaper did not tell the primary judge that he did not pursue the recusal application that was contained within the 20 January Application. That, however, is not the full story. Before me, Mr Reaper explained that he had made "a previous application" for recusal. As I followed it, Mr Reaper did indicate to the primary judge that there was a recusal application that he did not pursue. So understood, it is unfair - and plainly inappropriate besides - to stigmatise his Honour's comments as "misleading". 104 Regardless, Mr Reaper's primary point remains sound: at the point that his Honour made the 16 February Orders, Mr Reaper had on foot an application (found within his 20 January Application) that the primary judge should recuse himself. 105 There is no basis for Mr Reaper's assertion that the primary judge "nurtured" the Vexatious Proceedings Order Application as a means of "circumvent[ing]" the recusal application inherent in his 20 January Application. That submission ought not to have been made. 106 Whether "[a] decision-maker cannot continue to preside over a matter until he or she has dealt with" a recusal application is not as clear as Mr Reaper might suggest. The authority that Mr Reaper cites in favour of that proposition does not, in fact, support it. I am unaware of any other authority that does so in terms. That said, a judge who determines an issue without first determining an extant recusal application might well risk a charge that he or she has denied procedural fairness. A recusal application is akin to a submission that the court as constituted cannot properly exercise its jurisdiction (generally for want of freedom from bias). Were it to do so without first determining that question of competence, there is at least some risk that it might be thought, on appeal, to have ignored or failed to evaluate a submission advanced as a reason why it ought not do so (and, thereby, to have effected a denial of procedural fairness). 107 In any event, it is apparent from his Honour's reasons - although, admittedly, not from the 16 February Orders - that his Honour dismissed Mr Reaper's 20 January Application. He said as much at [9] of his decision. It would appear that he did so on the papers and, quite possibly, on an ex parte basis, as Mr Reaper had requested (above, [39]). I make that observation with some hesitation, acknowledging that the 16 February Orders do not, on their face, reflect his Honour's reasons - they state, instead, that the 20 January Application stood permanently stayed. That inconsistency cannot easily be explained (if it can be explained at all). 108 Albeit with some hesitation, I do not consider that Mr Reaper's seventh ground of appeal is made out.

Ground eight: refusal of cross-claim 109 By his eighth ground of appeal, Mr Reaper complains, in effect, that the FCCA discriminated against him in the way that it accepted or rejected various documents for filing within the Bankruptcy Proceeding. Whereas the documentation (or some of the documentation) upon which Baycorp sought to rely was promptly accepted for filing, the same courtesy, he complains, was not extended to him. In particular, he complains that his "notice of cross-claim" (above, [31]) was rejected on multiple occasions. 110 How this ground pertains to the relief that Mr Reaper hopes to obtain by this appeal is not immediately apparent. It doesn't obviously seem to rise beyond a general complaint that he has been unfairly treated. Even if that were true, it is unclear what Mr Reaper would have this court do. On its face, the treatment of which Mr Reaper complains is not a reason why this court might entertain the setting aside of the 16 February Orders or the 9 December Orders. 111 In any event, it is not difficult to imagine why it was that the FCCA rejected Mr Reaper's notice of cross-claim. The Bankruptcy Proceeding notionally resolved in 2013, when the Sequestration Order was made. How, nearly three-and-a-half years later, Mr Reaper might simultaneously agitate, within that same proceeding, multiple statements of claim and a cross-claim has never been explained. That at least one of those documents (or sets of documents) was rejected by the FCCA registry (or by a judge of that court) is, to say the least, unsurprising. 112 Mr Reaper's eighth and final ground of appeal is without merit.

Mr Reaper's procedural fairness Submissions 113 Having traced through (and drawn conclusions about) each of the grounds identified in Mr Reaper's notice of appeal, it is prudent to say something about the submissions that Mr Reaper filed, particularly his submissions dated 30 May 2019, in reply to those advanced by Baycorp. 114 By those submissions, Mr Reaper complains that the primary judge's decision to rule on the Vexatious Proceedings Order Application involved a denial of procedural fairness. That, so Mr Reaper contends, reflects in the fact that, by his written submissions of 23 December 2016, he had made it clear that he had not received the "20 October 2016" application to which the 9 December Orders referred, nor Baycorp's 16 December 2016 submission (the filing and service of which those same orders contemplated). 115 In Jones v National Coal Board [1957] 2 QB 55, the English Court of Appeal (Denning, Romer and Parker LJJ) noted: There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. That passage was cited with approval in Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane, Dawson JJ; hereafter, "Stead"). 116 It is elemental to the notion of a "fair trial" that "…a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 (Gaudron and Gummow JJ); DKX17 v Federal Circuit Court of Australia and Others (2019) 268 FCR 64, 77 [70] (Rangiah J, with whom Reeves and Bromwich JJ agreed; hereafter, "DKX17"). 117 In some respects, the difficulties under which Mr Reaper laboured in December 2016 were largely (and, in one sense, entirely) of his own making. Had he remained in the court on 9 December 2016, he would have been privy to the discussions that led to the 9 December Orders and would have understood that those orders pertained to the Vexatious Proceedings Order Application, which was to be the subject of attention on that day (see above, [29]). After ceasing to reside at the address that he had nominated for service, it was incumbent upon Mr Reaper to identify a new address at which Baycorp might serve upon him its submissions of 16 December 2016. Baycorp did what it could to effect service - the failures that ensued were not of its making. 118 Nonetheless, it must have been apparent to the primary judge that Mr Reaper laboured under the difficulties to which he adverted in his written submissions of 23 December 2016: namely, that there was significant (and real) confusion about the reference in the 9 December Orders to the application of "20 October 2016"; and, more importantly, that he had not received the written submissions by which Baycorp invited the court to make what ultimately became the 16 February Orders. 119 I am unable to see, in those circumstances, how Mr Reaper might fairly be understood to have been informed of the case that Baycorp advanced against him in connection with the Vexatious Proceedings Order Application. In the absence of his having enjoyed that opportunity - and the concomitant occasion to explain to the court why that case should fail - a conclusion that he was denied procedural fairness is all but inescapable. Respectfully, the primary judge ought not to have determined the Vexatious Proceedings Order Application unless or until satisfied that the procedural shortcomings that Mr Reaper's 23 December submissions identified had been addressed (or were otherwise not present). 120 A finding on appeal that a judgment was the product of procedural unfairness will not always translate into orders that it be set aside. An appellate court "…will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge [because a]n order for a new trial in such a case would be a futility": Stead, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); DKX17, 79 [78] (Rangiah J, with whom Reeves and Bromwich JJ agreed). 121 In the present case, there is at least some cause to wonder whether a remittal of the Vexatious Proceedings Order Application for rehearing before the FCCA will produce a different result. Although I express nothing more than a superficial suspicion, the manner in which Mr Reaper has conducted the Bankruptcy Proceeding - and, it would appear, a remarkable array of related proceedings in both the FCCA and this court - exhibits many of the hallmarks that courts typically associate with orders of the kind that were made. It may well be the case that orders in the nature of those made on 16 February will be made even after Mr Reaper is afforded an opportunity to understand and respond to the case that was put against him. 122 Suspicious though I am, the possibility of a different outcome cannot be discounted. Even assuming the worst - namely, that he is something of vexatious nuisance in respect of whom orders of the kind made on 16 February 2017 should appropriately apply - Mr Reaper is, nonetheless, entitled to the same degree of procedural fairness as any other litigant.

Conclusion 123 To the extent that Mr Reaper requires the leave of this court to prosecute his appeal, that leave is granted. The appeal should be allowed, in part. The 16 February Orders should be set aside and the Vexatious Proceedings Order Application should be remitted to the FCCA to be heard again. It will be a matter for that court as to what case management directions should be made in respect of it. 124 Respectfully, it is not appropriate to make any of the other orders that Mr Reaper invites the court to make (above, [44]). None of them relates to the setting aside of the 16 February Orders; and certainly not to the basis upon which I have resolved to do so. Instead, they all pertain to other relief that Mr Reaper hopes to obtain by other processes. 125 Consistently with the relief claimed (above, [44]), I shall make no order as to costs. I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.

Federal Circuit Court Act 1999(Cth)

Federal Court Rules 2011(Cth)rr 1.34, 26.01

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