Shaw v The Official Trustee in Bankruptcy

1. The application for leave to appeal is dismissed.
2. Mr Shaw is to pay the Official Trustee in Bankruptcy's costs of that application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J: 1 Mr Shaw seeks leave to appeal pursuant to r 35.11 of the Federal Court Rules 2011 (FCA Rules) from the judgment of the primary judge in The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178. In that judgment, the primary judge dealt with three separate questions in proceedings brought pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act) seeking orders prohibiting Mr Shaw from instituting any proceedings without leave of the court and dismissing any extant proceedings instituted in this court by Mr Shaw. 2 The three separate questions were as follows: (1) Is the applicant authorised under the Bankruptcy Act 1966 (Cth) to institute proceedings under s 37AO(2) of the FCA Act against the respondent? (2) Have these proceedings, VID 361 of 2021, been validly instituted by the applicant with the authority of the official receiver under ss 15 and 18 of the Bankruptcy Act 1966 (Cth)? (3) Have the applicant's solicitors been validly instructed and conducted the proceedings with the authority of the applicant in accordance with ss 15 and 18 of the Bankruptcy Act 1966 (Cth)? 3 The primary judge answered each of those separate questions in the affirmative. As the primary judge stated at [3], the parties agreed that her Honour could determine the separate questions on the papers, that is without an oral hearing, which is what the primary judge did. 4 Mr Shaw has provided a draft notice of appeal as required by the FCA Rules. The draft notice contains 26 grounds of appeal. The parties have filed and served detailed written submissions in relation to the application for leave, and Mr Shaw has made very substantial oral submissions in support of his application today. 5 The primary tests which are applicable for the grant of leave to appeal, although not necessarily exhaustive, are whether the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal, and whether substantial injustice would result if leave were refused: Mayne Nickless Ltd v Multigroup Distribution Services Pty Ltd [2001] FCA 1620; (2001) 114 FCR 108 at [33] (Wilcox, French and Drummond JJ). 6 In my view, the primary judge answered the three separate questions correctly and there is no error in her Honour's reasons. There is no demonstrated merit in any of the proposed grounds of appeal and there does not appear to be any realistic prospect of success for Mr Shaw on appeal. That is sufficient to dispose of the application for leave and it is not necessary to consider whether substantial injustice would result if leave were refused on the assumption (which in this case is not realistic) that the decision is wrong. In any event, I regard the argument for substantial injustice as relatively weak. 7 Accordingly, leave to appeal should be refused with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.