Consideration of the notice of appeal
23 The appellant raises three grounds of appeal:
(a) Jurisdictional error: error in law, refusal of procedural fairness, breach of rule of natural justice;
(b) Jurisdictional error: error in law and in fact; and
(c) Jurisdictional error: miscarriage of judicial discretion.
24 The appellant filed and served written submissions for the purposes of this appeal and made oral submissions when the matter was called on for hearing.
25 The oral submissions bore little resemblance to the grounds of appeal, save for the contention that the Court should go behind the District Court judgment.
26 The appellant's written submissions ranged across all the grounds without any apparent differentiation.
27 The first written submission is that in refusing leave to appeal from the Court's interlocutory decision in Scott (No 2) refusing a stay, McElwaine J exhibited actual bias in his decision. That is not a matter which arises from the judgment under appeal. In any event, there is no basis whatsoever put forward by the appellant for that submission and I do not accept it.
28 Next, the appellant refers to what she described as the refusal of the presiding judge to supply reasons for refusing leave to appeal. In so far as that is directed to McElwaine J's decision, delivered 25 January 2024, again that does not arise from the judgment under appeal, however self-evidently, the submission is wrong and I do not accept it.
29 The next written submission from the appellant appears to be that Charlesworth, O'Bryan and McElwaine JJ should all have gone behind the District Court judgment upon which the bankruptcy notice was based.
30 Yet again, that is not a matter which arises from the judgment under appeal insofar as their Honours are concerned. However, if the appellant wished to challenge the District Court judgment, she could have done so utilising the appeal procedures applicable to the State's Courts.
31 Insofar as the primary judge is concerned, his Honour dealt with the same submissions when considering the appellant's fifth ground of opposition. In declining to go behind the District Court judgment, his Honour gave what can only be described as compelling reasons for refusing to do so. The primary judge was correct not to go behind the District Court judgment.
32 The next written submission contends a failure to publish orders, I think concerning practice and procedure, as a failure of the judicial role by each of the Justices of this Court who had dealt with the appellant's matter as well as the Registrar and the primary judge. The submission was not developed and its consequence is not immediately apparent. The submission concerning the three Justices of the Court and the Registrar does not arise from the judgment under appeal.
33 In any event, orders were made by each of their Honours, the Registrar and the primary judge such that this submission has no merit. If what is meant is there was a failure to publish reasons, that submission fails in relation to each of the justices. I deal with the same submission in relation to the Registrar below.
34 The submission continues that the primary judge exercised his discretion as an arbitrary abuse of power. No reason was developed why that should be the case. There is no merit in this submission and I do not accept it.
35 In the next written submission, the appellant contends that the primary judge was wrong to find the appellant had committed an act of bankruptcy in circumstances where there had been an application to the High Court for a constitutional writ of mandamus or certiorari to "make nullity of all judgements". The appellant continues that the judgment of Jagot J was "without jurisdiction of the matter under application a prerogative writs."
36 As I have noted, the primary judge was correct to find that the appellant had committed an act of bankruptcy on the material before him such that I do not accept the submission to the contrary.
37 As to the submission concerning the appellant's application to the High Court, the primary judge observed that Jagot J had dismissed the appellant's application to the High Court in its original jurisdiction as being, "… frivolous, vexatious and accordingly an abuse of process.".
38 In all the circumstances, the submission that Jagot J's judgment was "without jurisdiction" has no basis. To the extent the primary judge referred to Jagot J's judgment, his Honour did not err in doing so. Nor did the primary judge err in considering it as a part of his reasoning process.
39 The appellant's next written submission is that there were procedural violations by the Registry of the Court in refusing to accept for filing what it described as "opposition to creditors petition" with the consequence that the sequestration order made by the Registrar on 13 March 2024 was a nullity.
40 That is not a matter which arises from the judgment under appeal.
41 In any event, this matter has been before a Registrar of the Court, three Justices of the Court, a High Court Justice and the primary judge, with the latter conducting a review de novo. None found any merit in the appellant's submissions. I have already noted that the primary judge was correct to find that the appellant had committed an act of bankruptcy on the material before him such that this submission fails.
42 The next written submission by the appellant appears to rely upon what is contended to be the Registrar's failure to provide reasons for making the sequestration order. That is not a matter raised in the grounds of appeal, nor does it arise from the judgment under appeal.
43 Nonetheless, s 52 of the Bankruptcy Act 1966 (Cth) provides:
(1) At the hearing of a creditor's petition, the Court shall require proof of:
(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
44 The section sets out the matters about which the Court is to be satisfied and expressly provides that the Court may accept the matters stated in the affidavit verifying the petition as sufficient. Under those circumstances the Court may make a sequestration order. That is what occurred. Accordingly, I do not accept the appellant's submission.
45 The next written submission contends that there was a failure on the part of the Registrar and the primary judge to ensure the "legislated requirement of independence of Trustees". That was not a matter raised before the primary judge. In any event, no basis for that submission was advanced, other than the contention itself and I do not accept it.
46 The final submission raised by the appellant relies upon the principle of legality. The principle was explained by French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, at [11]:
… the principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law. That presumption, which is well established, has been called "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". It is a presumption whose longstanding rationale is that it is highly improbable that parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness". Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427 at 437-438:
"curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."
It is a principle of construction which is not to be put to one side as of "little assistance" where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:
"Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction."
(citations omitted)
47 Proceeding in accordance with the Act does not offend the principle of legality.
48 As part of this submission the appellant also refers to the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) ss 37M and 37P of the Federal Court of Australia Act 1976 (Cth).
49 Section 37M sets out the overarching purpose of the civil practice and procedure provisions of the Court. That is not a matter which arises from the judgment under appeal, however in any event, it provides no support to the appellant and no error has been demonstrated on the part of the primary judge.
50 Section 37P provides that the Court or a Judge may make directions about the practice and procedure to be followed in relation to a proceeding or any part of it. As with s 37M, that is not a matter which arises from the judgment under appeal. In any event, s 37P provides no support to the appellant and no error has been demonstrated on the part of the primary judge.
51 So too, the appellant's mere reference to the Access to Justice Act does not arise from the judgment under appeal nor does it provide any support to the appellant.