Shaw v The Official Trustee in Bankruptcy [2026] FCAFC 32

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. These reasons concern a number of appeals heard together. The appeals arise from decisions in different proceedings connected with the appellant, Mr John Rashleigh Shaw, an undischarged bankrupt. The respondent in each appeal is the Official Trustee in Bankruptcy, the trustee of Mr Shaw's bankrupt estate.
2. The first proceeding relates to the administration of Mr Shaw's bankrupt estate - Mr Shaw was unsuccessful in obtaining an order under s 90-10 of the Insolvency Practice Schedule (Bankruptcy) (IPSB) and consequential orders under s 90-15 for an inquiry into the Trustee's conduct: Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569 (Wigney J) (Shaw v OT (No 3)). Relatedly, Mr Shaw also seeks leave to appeal from an interlocutory decision made in the course of that proceeding.
3. The second proceeding was an application by the Trustee seeking to obtain a vexatious proceeding order under s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against Mr Shaw (s 37AO Proceeding). The Trustee obtained leave to discontinue this proceeding on terms as to costs over Mr Shaw's objection: The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345 (SC Derrington J) (OT v Shaw (No 4)). After the proceeding was discontinued, Mr Shaw sought to pursue an extant interlocutory application that he had filed in the s 37AO Proceeding in which he sought to obtain an order under s 90-15 of the IPSB for an inquiry into the Trustee's conduct. Mr Shaw was precluded from pursuing his application on the basis that he was estopped from doing so and further because the interlocutory application did not survive the discontinuation of the proceeding by the Trustee: The Official Trustee in Bankruptcy v Shaw (No 5) [2024] FCA 1490 (SC Derrington J) (OT v Shaw (No 5)). In this appeal, an order was made by consent granting leave to appeal out of time to the extent such leave was required: Order 2 of the orders made on 30 October 2025.
4. The appeals were heard together because they involve the same parties, the same estate, and overlapping procedural histories.
5. The decisions under appeal or the subject of the application for leave to appeal were made in the exercise of the Court's supervisory or procedural jurisdiction. The final decision to decline to order an inquiry into the Trustee's conduct in Shaw v OT (No 3) was made in the Court's supervisory jurisdiction in relation to the administration of a bankrupt estate under the Bankruptcy Act 1966 (Cth) and the IPSB. The other decisions, including the interlocutory decision addressed in Shaw v OT (No 3), were procedural decisions concerning interlocutory case management, discontinuance, finality, and the consequences of earlier determinations, giving rise to questions of competency and preclusion. In these reasons, preclusion refers to the operation of established principles of finality, including issue estoppel and res judicata in the narrower sense, that is res judicata proper.
6. Save for in limited respects, the appeals concern discretionary and evaluative judgments: whether to direct or decline an inquiry under the IPSB, whether to grant leave (to issue a subpoena, to re-open, to discontinue), and whether to make various impugned case management orders. For these parts of the appeals, the Court's task is not to determine the "correct" outcome afresh; appellate intervention is confined to error of the kind described in House v The King [1936] HCA 40; 55 CLR 499 (wrong principle, irrelevant considerations, mistake of fact, failure to take account of a material consideration, or a result that is plainly unreasonable or plainly unjust).
7. The limited exceptions are twofold. First, with respect to the decision in OT v Shaw (No 5), in which it was held that Mr Shaw's interlocutory application did not survive discontinuance and was in any event barred by issue estoppel or res judicata, the applicable appellate standard in respect of that aspect of the decision is the correctness (de novo) standard, not House v The King restraint. To the extent that the appeal in relation to OT v Shaw (No 4) and OT v Shaw (No 5) also involve challenges to a separate discretionary step (eg, the grant of leave to discontinue or other case management choices) then House v The King restraint is warranted. The second exception is in relation to the ground of appeal from Shaw v OT (No 3), by which Mr Shaw contends that Wigney J erred in misconstruing s 90-15 of the IPSB as permitting a "two-stage" process to determine whether to inquire into the Trustee's conduct. The correctness standard applies to the point of construction but thereafter House v The King restraint informs the Court's approach to the discretionary decision to decline to order an inquiry.
8. In each of the discrete matters before us, resolution of one or two threshold questions is sufficient to determine the outcome of the appeal. The Court's task is confined to identifying whether each of the appeals is competent and, if so, whether error of a kind warranting appellate intervention is demonstrated. For the application for leave to appeal, the Court must be satisfied that there is sufficient doubt as to the correctness of the impugned interlocutory case management decisions and a real risk of substantial injustice if leave is refused.

1. The decisions which are the subject of appeal are as follows.

NSD9/2022 - Inquiry into the Conduct of the Trustee

1. Mr Shaw relies on a second amended notice of appeal filed 28 October 2025 in NSD9/2022 (the NSD9 Appeal Notice).
2. This appeal concerns the refusal to direct or pursue an inquiry into the conduct of the Trustee under the IPSB and queries whether the primary judge misconceived the statutory task or otherwise committed appealable error in declining to exercise the Court's supervisory jurisdiction. It is an appeal from orders made on 17 December 2021 in Shaw v OT (No 3).

NSD42/2022 - Subpoena and Interlocutory Procedural Orders

1. Mr Shaw relies on a second amended application for extension of time in which to appeal and leave to appeal filed 28 October 2025 in NSD42/2022 (the NSD42 Leave Application).
2. This is an application for leave to appeal from interlocutory procedural orders made by Wigney J on 25 November 2020 and the subsequent refusal of Mr Shaw's application (which included an application to re‑open) in January 2021. The relevant case management orders concerned the setting aside of a subpoena directed to the Australian Financial Security Authority (AFSA) which Mr Shaw had caused to be issued after the close of evidence in the substantive hearing of his application for an inquiry into the conduct of the Trustee. At the time the subpoena was set aside, Wigney J ordered that certain document which formed part of the subpoena's intended target be produced by the Trustee to Mr Shaw. Mr Shaw's subsequent application in January 2021 also involved his attempts to obtain documents from AFSA and to re-open his case. The application for leave turns on whether any error of a kind warranting appellate intervention is shown in the exercise of a case management discretion by Wigney J. Mr Shaw must demonstrate a real risk of substantial injustice if leave is refused.

QUD26/2025 - Discontinuance of the s 37AO Proceeding and the consequential preclusion

1. Mr Shaw relies on a second amended notice of appeal filed 28 October 2025 in QUD26/2025 (the QUD26 Appeal Notice).
2. The first part of this appeal concerns orders granting leave to discontinue the proceeding and raises procedural questions as to finality and whether any appeal lies from the decision to bring the proceeding to an end. This appeal arises in the context of an application by the Trustee seeking to have a vexatious proceeding order made against Mr Shaw under s 37AO of the FCA Act. It is an appeal from orders made on 12 November 2024 in OT v Shaw (No 4).
3. The second part of this appeal concerns orders holding that Mr Shaw's interlocutory application for an inquiry into the Trustee's conduct fell away upon discontinuance of the s 37AO Proceeding and was, in any event, barred by issue estoppel. It raises questions of competency and preclusion rather than the merits of any proposed inquiry. It is an appeal from orders made on 20 December 2024 in OT v Shaw (No 5).
4. An objection to competency was heard in relation this appeal which resulted in the scope of this appeal being considerably narrowed from the way in which it was previously framed: Shaw v Official Trustee in Bankruptcy [2025] FCA 1148 (Markovic J) (Shaw v OT (appeal competency)).
5. To avoid confusion, we refer to each of the primary judges whose decisions are the subject of these appeals by name in these reasons.

1. These appeals represent the most recent chapter in a lengthy and complex litigation between Mr Shaw and the Trustee. The background to the present appeals includes a series of unsuccessful challenges to the sequestration of Mr Shaw's estate which occurred on 11 June 2014 in proceeding VID1371/2013: Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616 (Gordon J). First, Mr Shaw appealed the sequestration order; then sought to have his bankruptcy annulled while attempting to restrain solicitors from acting on behalf of the respondents to that proceeding; then appealed against the orders dismissing his annulment application; then sought special leave to appeal to the High Court. Next, Mr Shaw unsuccessfully sought an interim order preventing the sale of 5/12 Tivoli Road, South Yarra (Tivoli Road) and, by way of final relief, a review of the Trustee's partial admission of a proof of debt, along with a restraint on the Trustee's solicitors from continuing to act. That attempt failed before the primary judge and on appeal to the Full Court.
2. The respondent in each of the present appeals (and the application for leave to appeal) is the Trustee. The Trustee is a body corporate created by s 18 of the Bankruptcy Act. AFSA, established by s 13 of the Bankruptcy Act, provides the personnel and resources through which the Trustee performs its statutory functions, including the administration of bankrupt estates where no private trustee is appointed or where administration by the Trustee is otherwise required under the Bankruptcy Act.
3. Mr Shaw was the registered proprietor of three properties in Victoria. In addition to Tivoli Road, the other two properties were 8/145 Cubitt Street (also known as 116 Gwynne Street), Cremorne (Gwynne Street) and 5 Mast Gully Road, Upwey. Each property was leased and was also subject to a mortgage in favour of the National Australia Bank Limited (NAB), which secured a loan advanced to Mr Shaw (NAB Loan).
4. On 27 October 2018, NAB as mortgagee sold Gwynne Street at auction for $980,000. The sale settled around 30 days later on 28 November 2018. After selling costs and repayment of the NAB Loan, the Trustee received $686,373.21 in surplus proceeds.
5. On 6 July 2019, the Trustee sold the Tivoli Road property for $363,000.

1. The procedural history culminating in these appeals is byzantine - it is protracted, involving recurring applications and interlocutory steps across multiple related proceedings. We set out a chronological list of the steps in the extensive litigation between Mr Shaw and the Trustee in the period from the sequestration of his estate in June 2014 up to and including this appeal in Annexure A. We adopt that approach to enable these reasons to focus on the key procedural stages that inform the disposition of the appeals.

NSD9/2022 - Inquiry into the Conduct of the Trustee

1. On 9 October 2019, Mr Shaw commenced the proceeding below, by which he sought to impugn almost all aspects of the Trustee's handling of his estate and sought an inquiry into the administration of his estate pursuant to s 90-10 of the IPSB and consequential orders under s 90-15.
2. Mr Shaw's complaints about the Trustee were many and varied. Relevantly, he alleged that the Trustee acted negligently, unconscionably and unreasonably in the administration of his estate, in particularly in relation to the sale of properties formerly owned by Mr Shaw which vested in the Trustee upon his bankruptcy. Mr Shaw sought compensation to the estate for loss said to have been sustained as a result of those alleged breaches of duty.
3. Mr Shaw's central complaint concerned the sale of the Gwynne Street property which he contended should not have been sold at all. As mentioned above, that property was sold by NAB in its capacity as mortgagee. Mr Shaw claimed, in effect, that if any of the three properties had to be realised, it should have been one of the properties other than the Gwynne Street property. According to Mr Shaw, the Trustee should have ensured that the NAB Loan did not go into default, or should otherwise have prevented NAB from selling the Gwynne Street property. He also complained, in that context, that the Trustee did not tell him that NAB was selling the Gwynne Street property and that the Gwynne Street property was sold at less than its market value. Finally, Mr Shaw asserted that the mortgage over the Gwynne Street property did not secure his loan facility with NAB and NAB was therefore not entitled to exercise its power of sale in respect of that property when the loan went into default.
4. Mr Shaw also complains about the sale of the Tivoli Road property. He contends that the Trustee should not have sold the property at all. He asserts that the sale was unnecessary because he maintains that the proceeds from the sale of the Gwynne Street property ($686,373 following satisfaction of NAB's debt) were sufficient to meet the claims of all of the creditors of the estate.
5. On 9 October 2019, Mr Shaw agitated his grievances against the Trustee by commencing the proceeding below - NSD1690/2019 - against the Trustee. The proceeding was heard before Wigney J over four days on 8 and 9 October 2020, 25 November 2020 and 20 April 2021.
6. On 24 July 2020, Mr Shaw filed an interlocutory application seeking to strike-out the Trustee's defence and obtain summary judgment in his favour. He also sought to enjoin the Trustee's solicitors from continuing to act.
7. On 8 October 2020, in response to an apprehended bias application brought by Mr Shaw, Wigney J refused to recuse himself.
8. On 9 October 2020, Wigney J dismissed Mr Shaw's interlocutory application filed 24 July 2020 seeking summary judgment: Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 2) [2020] FCA 1575.
9. The substantive hearing before Wigney J commenced on 8 October 2020 and completed on 9 October 2020. Mr Abid Hasan (the AFSA officer supervising the administration of the estate) gave evidence and was cross‑examined by Mr Shaw. During Mr Hasan's oral evidence on 9 October 2020, he referred to the Trustee's general practice in administering estates to realise real property rather than to continue to rent the property and service the secured debt, and in that context he mentioned the existence of "procedure manuals" recording "standard practice" (including to "realise properties as soon as practicable"): Shaw v OT (No 3) at [100].
10. Although the "procedure manuals" were mentioned while Mr Hasan was still being cross‑examined, Mr Shaw did not pursue further cross‑examination on the content of the manual or call for its production at that time: Shaw v OT (No 3) at [100].
11. The evidence closed on 9 October 2020 (after dealing with interlocutory applications), with final submissions adjourned to a later date.
12. On 19 October 2020, after the close of evidence, Mr Shaw caused a subpoena to be issued to the proper officer of AFSA seeking the production of extracts of "the AFSA Procedure Manual": Shaw v OT (No 3) at [101].
13. On 26 October 2020, the Trustee applied to set aside the subpoena on various grounds, including that the documents sought were not relevant to the proceeding. Wigney J listed the matter for final submissions on 25 November 2020. At the commencement of that hearing, Wigney J heard the Trustee's application to set aside the subpoena. Wigney J made orders setting aside the subpoena (on the basis that it was an abuse of process) and instead required the Trustee to produce "[t]he procedure manuals or practice guides relating to the standard practice of the Official Trustee in Bankruptcy to not engage in letting out properties, to not speculate, and to realise properties as soon as practicable". Wigney J also granted Mr Shaw leave to reopen his case to tender documents produced in answer to that order: Shaw v OT (No 3) at [105]-[107]; Order 2 of the Orders made on 25 November 2020.
14. On 21 January 2021, Mr Shaw filed an interlocutory application by which he sought, among other things, leave to amend his statement of claim, leave to reopen the proceeding to re-examine the Trustee's sole witness, Mr Hasan, and to admit fresh evidence in the form of Mr Shaw's affidavit dated 22 January 2021, Mr Hasan's affidavit dated 24 November 2020 (which the Trustee relied on in support of setting aside Mr Shaw's subpoena to AFSA), and orders to restrain the Trustee's solicitors from continuing to act on the basis of a conflict of interest, as well as a "review of orders" made on 9 October 2020 and 25 November 2020.
15. On 20 April 2021, Mr Shaw's interlocutory application filed 22 January 2021 came before Wigney J for hearing.
16. On 17 December 2021, Wigney J dismissed the interlocutory application filed 22 January 2021 and the originating process filed 10 October 2019 and published reasons in Shaw v OT (No 3).
17. Wigney J dismissed the originating application on the basis that the evidence and submissions relied on by Mr Shaw failed to demonstrate any misfeasance, neglect or other error in the conduct of the administration of the estate by the Trustee, or even that there were any grounds for believing that the Trustee erred in the conduct of the administration: Shaw v OT (No 3) at [24], [192].
18. On 10 January 2022, Mr Shaw commenced proceeding NSD9/2022, appealing against the whole of the orders made by Wigney J on 17 December 2021.

NSD42/2022 - Subpoena and Interlocutory Procedural Orders

1. On 21 January 2022, Mr Shaw commenced proceeding NSD42/2022, seeking leave to appeal, out-of-time, against the orders made on 25 November 2020 setting aside his subpoena to AFSA. In this proceeding, Mr Shaw also seeks "the admission of new [and] relevant contemporary evidence with regards to the administration of the estate since judgement", the "reopening of the hearing with admission of Shaw affidavit 21 Jan 2021, 24 Feb 2021 [and] Hasan affidavit 24 Nov 2021", the "[r]emit[tal] [of] the matter for enquiry into conduct of the [Trustee] in accordance with s 90-10 or in the alternative a rehearing", and an "order that the [Trustee] not be permitted to charge legal costs to my estate".
2. The additional claims for relief in this proceeding over and above the orders setting aside the subpoena to AFSA are not connected with the application for leave to appeal and in the main repeat the content of the NSD9 Appeal Notice.

QUD26/2025 - Consequences of Discontinuance and Estoppel

1. As mentioned, in a separate proceeding commenced on 2 July 2021 (VID361/2021), the Trustee sought a vexatious proceeding order under s 37AO(2) of the FCA Act prohibiting Mr Shaw from instituting any proceeding without leave of the Court and dismissing any extant proceedings instituted in the Court by Mr Shaw.
2. The NSD9 Appeal Notice and the NSD42 Leave Application were stayed pending determination of the s 37AO Proceeding: Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority [2022] FCA 775 (Cheeseman J). In the course of the s 37AO Proceeding, Mr Shaw pressed for certain issues raised in his defence to be determined as separate questions.
3. In The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178 (OT v Shaw (No 3)), SC Derrington J determined the separate questions as follows:

(1) the Trustee was authorised under the Bankruptcy Act to institute proceedings under s 37AO(2) of the FCA Act against Mr Shaw;

(2) the proceedings had been validly instituted by the Trustee with the authority of the Official Receiver (a statutory office established by s 15(1) of the Bankruptcy Act) under ss 15 and 18 of the Bankruptcy Act; and

(3) the Trustee's solicitors had been validly instructed and conducted the proceedings with the authority of the Trustee in accordance with ss 15 and 18 of the Bankruptcy Act.

1. Mr Shaw applied for leave to appeal OT v Shaw (No 3) - his application was dismissed: Shaw v The Official Trustee in Bankruptcy [2024] FCA 137 (Jackman J) (Shaw v OT (refusal of leave to appeal separate questions)).
2. In QUD26/2025 Mr Shaw appeals against two subsequent decisions of SC Derrington J: OT v Shaw (No 4) and OT v Shaw (No 5). Both decisions relate to the discontinuance of proceeding VID361/2021 (the s 37AO Proceeding instituted by the Trustee), which the Trustee discontinued on 15 November 2024 pursuant to a grant of leave on terms as to costs. Specifically, the decisions relate to the effect of the discontinuance of the proceeding on Mr Shaw's interlocutory application filed 19 September 2024 in that proceeding (September 2024 Interlocutory Application). Relevantly, in paragraphs 19 and 20 of the September 2024 Interlocutory Application Mr Shaw sought orders for an inquiry into the conduct of the Trustee pursuant to ss 90-1, 90-2, 90-5, 90-10, 90-15 and 90-20 of the IPSB (the Inquiry). Paragraphs 19 and 20 also raised complaints about the Trustee's authority to bring the s 37AO Proceeding, the validity of the proceeding, and the validity of the Trustee's instructions to its solicitors to conduct the proceeding.
3. Having granted the Trustee leave to discontinue the proceeding in OT v Shaw (No 4), SC Derrington J determined in OT v Shaw (No 5) that Mr Shaw was estopped from pursuing the Inquiry under the IPSB because the complaints raised by Mr Shaw in the September 2024 Interlocutory Application had already been the subject of the Court's determination in OT v Shaw (No 3) in respect of which leave to appeal had been refused in Shaw v OT (refusal of leave to appeal separate questions). Moreover, Mr Shaw's application being an interlocutory application in the s 37AO Proceeding fell away upon the Trustee discontinuing the proceeding: OT v Shaw (No 5) at [48]-[51].
4. The Trustee objected to the competency of the appeal in QUD26/2025 on the ground of res judicata. As mentioned, Markovic J determined the competency objection on 18 September 2025: Shaw v OT (appeal competency). The objection to competency succeeded in part - some but not all of the paragraphs of Mr Shaw's amended notice of appeal filed in QUD26/2025 were dismissed as incompetent. Following this decision, Mr Shaw filed the QUD26 Appeal Notice (which was amended in consequence of the decision as to competency).

1. By the NSD9 Appeal Notice Mr Shaw identifies what he describes as 12 grounds of appeal. Mr Shaw also identifies 7 grounds of appeal in the NSD42 Leave Application and 10 grounds of appeal in the QUD26 Appeal Notice. Although the grounds in each appeal are prolix, they can be grouped by reference to a small number of recurring complaints. For that reason, it is convenient to address the appeals by focusing on the determinative issues rather than taking each ground in turn. In each of the appeals, a small number of threshold determinations were the principal focus in the way in which the appeals were presented.
2. The central questions are:

(1) NSD9 Appeal Notice: whether Wigney J correctly identified and applied the correct statutory framework when exercising the discretionary supervisory power under s 90‑15 of the IPSB to decline to direct an inquiry into the conduct of the Trustee (Shaw v OT (No 3));

(2) NSD42 Leave Application: whether there is sufficient doubt as to the correctness of the interlocutory case management decision in relation to the subpoena to AFSA and the refusal of Mr Shaw's January 2021 application (which included an application to re‑open) and whether there is a real risk of substantial injustice if leave is refused (Shaw v OT (No 3)); and

(3) QUD26 Appeal Notice:

(a) whether SC Derrington J erred by denying Mr Shaw procedural fairness when making discretionary case management decisions to:

(i) grant leave to the Trustee to discontinue the s 37AO Proceeding on terms as to costs (OT v Shaw (No 4)); and

(ii) determine whether the balance of Mr Shaw's September 2024 Interlocutory Application survived the discontinuance of the s 37AO Proceeding (OT v Shaw No 5);

(b) whether the decision in OT v Shaw (No 5) was affected by apprehended bias; and

(c) whether SC Derrington J erred in finding that Mr Shaw was issue estopped from pursuing the application for the Inquiry into the Trustee's conduct as sought in paragraphs 19 and 20 of the September 2024 Interlocutory Application in the s 37AO Proceeding after the Trustee discontinued the proceeding with leave.

1. By the Notice of Contention filed 14 February 2025, the Trustee contends that the decision in OT v Shaw (No 5) should be affirmed on the basis that the discontinuance of the s 37AO Proceeding had the effect that paragraphs 19 and 20 of the September 2024 Interlocutory Application fell away because those paragraphs did not constitute a "cross-claim" that could survive discontinuance under r 15.11 of the Federal Court Rules 2011 (Cth) (the Rules).
2. The level of detail required to explain the disposition of each appeal necessarily differs. Some appeals raise discrete procedural or competency questions capable of being resolved shortly. Others require a more detailed engagement with the procedural history and the statutory framework to demonstrate why threshold principles of finality, preclusion, or appellate restraint are dispositive. The variation in treatment reflects the relative complexity of the issues raised, not their relative importance, and does not indicate that any aspect of the issues raised by Mr Shaw received closer scrutiny than another. In each case, the appeals have been determined by reference to the questions necessary for their resolution and no further.

Grounds relating to NSD9/2022 - Inquiry into the Conduct of the Trustee

1. As mentioned, for the reasons outlined above, we will address Mr Shaw's "grounds" thematically rather than in seriatim. Mr Shaw has not established appealable error, and the appeal in NSD9/2022 will be dismissed.

Complaint as to approach to determine whether to order an inquiry

1. The threshold question raised is whether Wigney J correctly identified and applied the statutory framework when exercising the discretionary supervisory power under s 90‑15 of the IPSB to decline to direct an inquiry into the conduct of the Trustee.
2. Mr Shaw essentially contends that Wigney J erred in approaching his application under s 90‑15 by reference to a "two‑stage" process: first, determining whether there were substantial grounds warranting an inquiry into the Trustee's administration; and - only if that threshold was met - proceeding to the inquiry itself and the making of any appropriate orders.
3. Wigney J was cognisant that the terms of ss 90‑10 and 90‑15 do not expressly require a two‑stage process, and that there may be cases in which orders under s 90‑15 may be made without any inquiry (or any broad inquiry) into the Trustee's administration: Shaw v OT (No 3) at [20].
4. The approach taken by Wigney J was premised on recognising that in an appropriate case a "two‑stage" approach to an application under s 90‑15 may be warranted. His Honour observed that although ss 90‑10 and 90‑15 do not require a two‑stage process, in some cases the Court may first require the applicant to demonstrate that an inquiry is warranted before embarking on a full merits hearing: Shaw v OT (No 3) at [21].
5. Wigney J considered that to approach the exercise of the discretion by first ascertaining whether the applicant had established substantial grounds for believing the Trustee has erred and that an inquiry would reveal misconduct was consistent with the long‑standing policy that the Court should not unduly interfere with a trustee's day‑to‑day administration, and should not put a trustee (and potentially creditors) to the trouble and expense of what would in effect be an inquiry unless satisfied as to the threshold issue: Shaw v OT (No 3) at [22].
6. In the present case, Wigney J correctly recognised that Mr Shaw's allegations were broad‑ranging, encompassing "just about every aspect" of the Trustee's administration and that it was conceivable that a final determination of Mr Shaw's allegations would effectively amount to a detailed inquiry over years. Accordingly, Wigney J concluded that there was "much to be said" for not putting the Trustee to that burden unless Mr Shaw first demonstrated that an inquiry was warranted - particularly given Mr Shaw's own acknowledgement that the two‑stage approach was practical and to his advantage: Shaw v OT (No 3) at [23].
7. No error of law is established by Mr Shaw's complaint about Wigney J's approach. The powers conferred by ss 90‑10 and 90‑15 of the IPSB are broad but discretionary and are directed to the Court's supervisory function in relation to the administration of a bankrupt estate. Where the conduct relied upon has been fully ventilated in the proceeding, and the factual foundation for complaint has been rejected, the ordering of an inquiry would serve no proper supervisory purpose. Accordingly, it would not be an appropriate exercise of the powers under ss 90-10 and 90-15 of the IPSB to proceed to an inquiry. Approaching the issue by first ascertaining whether there is a proper basis for the Court's intervention is orthodox: see the comprehensive canvas of the relevant authorities on the antecedent provision, being s 536 of the Corporations Act 2001 (Cth) (repealed), and ss 90-10 and 90-15 of the IPSB in Djordjevich v Rohrt (in his capacity as liquidator of ACN 091 518 302 Pty Ltd (in liq)) [2022] VSCA 84; 67 VR 161 (Kennedy and Whelan JJA, sitting as an appellate bench of two), at [44] citing Leslie, in the matter of the Aboriginal Councils and Associations Act 1976 v Hennessy [2001] FCA 371 (Ryan, Dowsett and Hely JJ); see also ACN 153 364 491 Ltd (in liq) v GP No 1 Pty Ltd (in liq), in the matter of GP No 1 Pty Ltd (in liq) (No 3) [2020] FCA 694 at [40]- [44] (Charlesworth J) citing Australian Securities and Investment Commission v Macks (No 2) ; at (Doyle J).
8. In circumstances such as here where the allegations made are wide ranging and the inquiry sought is broad in nature, the Court does not embark upon an inquiry into a trustee's conduct merely because allegations have been made. The Court must first be satisfied as to the threshold question, namely that there is material which establishes a sufficient basis to warrant the exercise of the Court's supervisory jurisdiction.
9. It bears emphasis that Wigney J further concluded that in the particular circumstances before him it made little (if any) difference whether the matter was approached as two stages or as a full merits hearing. That was because Mr Shaw was required to demonstrate substantial grounds for believing that the Trustee had erred in the administration of his estate and he had every opportunity to adduce evidence and submissions but failed to do so. For that reason, Wigney J concluded that the application would have failed even if the matter had proceeded directly to an inquiry: Shaw v OT (No 3) at [24].
10. A recurrent theme in Mr Shaw's submissions before Wigney J, which he reprised on appeal, was that his application for relief under ss 90‑10 and 90‑15 operated as a species of reverse‑onus or "show cause" exercise, requiring the Trustee to justify the administration of the estate in all respects. That approach was misconceived. Where the application was directed to broad-ranging allegations effectively encompassing the whole of the Trustee's administration, it was appropriate first to assess whether Mr Shaw had established substantial grounds warranting the Court to embark upon an inquiry. To proceed otherwise would invert the statutory task and impose on the Trustee (and indirectly the estate) the burden and expense of an inquiry, with the attendant risk of undue interference in the administration of the estate, absent any demonstrated basis for doing so.
11. Mr Shaw has not demonstrated any error in relation to Wigney J's conclusion that Mr Shaw's evidence and submissions failed "to demonstrate any misfeasance, neglect or other error in the conduct of the administration of the estate by the Trustee, or even that there are grounds for believing that the Trustee so erred in the conduct of the administration", and that "Mr Shaw's allegations of maladministration, breach of trust and negligence on the part of the Trustee were entirely unsupported by the evidence": Shaw v OT (No 3) at [24], [192].

Complaint as to denial of procedural fairness

1. Mr Shaw raises a raft of complaints that he characterises as a denial of procedural fairness and natural justice.
2. Mr Shaw's procedural fairness and "natural justice" grounds are misconceived. The proceeding below was an adversarial process in which Mr Shaw bore the onus of establishing "substantial grounds" warranting an inquiry at the first stage. No error is demonstrated by Wigney J not proceeding to the "second stage" inquiry in circumstances where Mr Shaw did not establish that threshold. Mr Shaw's argument is premised on an asserted entitlement to a further second stage hearing regardless of whether he established the threshold basis to embark upon an inquiry at all. The necessary consequence of Mr Shaw failing to demonstrate that there were substantial grounds for an inquiry into the Trustee's conduct was that such an inquiry was not undertaken.
3. Mr Shaw's related complaint that Wigney J dismissed his "unchallenged sworn evidence" as "bare assertions" without reasons also proceeds on an incorrect premise. Evidence that is unchallenged is not by virtue of that fact rendered probative. There is no rule compelling acceptance of uncontradicted evidence where it is fanciful, contradicted by established facts, or otherwise lacks probative value. Mr Shaw does not identify how the rejection of any of his evidence involved error. By way of example, his contention that the Gwynne Street property was worth $1.4 million at the time of sale was no more than inadmissible lay opinion, unsupported by any valuation or explained foundation. That complaint is therefore incapable of establishing error.
4. Mr Shaw's complaints that the Trustee "withheld" relevant evidence are another instance where Mr Shaw seeks to reverse the onus he bore on the application. It was for Mr Shaw, in an adversarial process, to establish by admissible evidence that substantial grounds existed to warrant an inquiry; the Trustee was not obliged to tender evidence at all, and the premise of "withholding" is therefore unsustainable. In the same way, Mr Shaw's complaint about Wigney J's asserted failure to consider material matters is, in substance, a merits disagreement founded on Mr Shaw's mistaken premise that the Trustee was legally obliged to service the NAB Loan so as to prevent default and mortgagee sale. In any event, Wigney J in fact considered and rejected Mr Shaw's argument to that effect: Shaw v OT (No 3) at [131]-[145]. Mr Shaw's grounds relating to the broad assertion of denial of procedural fairness must be dismissed.

Complaint as to delegation and authority of Mr Hasan

1. Mr Shaw sought to agitate an argument directed to Mr Hasan acting in excess of the financial limit on his delegation. Mr Shaw sought to raise this argument belatedly after judgment was reserved. No error has been shown with respect to Wigney J's refusal to entertain the argument in the circumstances. In any event, the same contention was later raised and rejected in the s 37AO Proceeding: OT v Shaw (No 3) at [42]-[53].

1. Mr Shaw contends that Wigney J erred by misapprehending the nature and content of a trustee in bankruptcy's duties. In substance, he asserts that the Trustee was obliged to apply surplus rental income, or otherwise make arrangements, to service or discharge the NAB Loan so as to prevent default; to minimise the accrual of interest; and to collect and maximise rental income so as to preserve the value of the estate assets until realisation was necessary to pay a dividend to creditors.
2. Mr Shaw does not identify what he posits is the "correct test" or how Wigney J misinterpreted the Trustee's duties. Wigney J set out and applied the orthodox statement of a trustee in bankruptcy's duties and the Court's supervisory restraint in such matters: Shaw v OT (No 3) at [25]-[30]. This complaint overlaps with - but does not add to - Mr Shaw's related complaints as to what he contends is the Trustee's duty to service the mortgage which we will separately address. No error is demonstrated in relation to Wigney J's analysis of the Trustee's duties.

Complaint regarding re-opening and related matters

1. This complaint concerns Wigney J's dismissal of Mr Shaw's interlocutory application filed 22 January 2021 after the proceeding below had been reserved for judgment. Wigney J's reasons for dismissing the application are at Shaw v OT (No 3) at [98]-[129]. No error, still less an appealable error in the House v The King sense, is articulated in relation to what was a routine case management decision.
2. The role of an appellate court in an application for leave to appeal on a matter of practice and procedure is well established: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170 at [9] (Gibbs CJ, Aickin, Wilson and Brennan JJ, citing with approval the statement of Sir Frederick Jordon in Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323; see also Isuzu Australia Ltd v Directed Electronics OE Pty Ltd [2025] FCAFC 150 (Burley, McEvoy and Stellios JJ). Indeed, the principles were summarised in Shaw v The Official Trustee in Bankruptcy [2023] FCA 570 at [12]- [17] (Mortimer CJ). In short, an application for leave to appeal from an interlocutory decision concerning practice and procedure must ordinarily demonstrate that the orders below are attended with sufficient doubt to warrant appellate consideration and that substantial injustice would result if leave were refused. Where the decision involves the exercise of a procedural discretion, that burden requires at least a real prospect of showing error of the kind identified in House v The King, including the application of a wrong principle, the consideration of irrelevant matters, or the failure to take account of a material consideration. Given the primary responsibility of the Court at first instance for interlocutory case management, appellate supervision is restrained. Leave will not be granted too readily where the result is to encourage interlocutory disputation and to transfer the exercise of discretion in interlocutory applications to the Full Court. The requirement of substantial injustice serves to ensure that any grant of leave bears upon the resolution of the real issues in dispute, rather than distracting from and postponing that resolution.
3. In any event, and contrary to Mr Shaw's submissions, Wigney J at [121] correctly stated that the mere failure to follow an internal practice and procedure of an AFSA manual "would not in any event necessarily constitute any maladministration, breach of duty or negligence on the part of the Trustee."

Complaint concerning manifestly unreasonable / glaringly improbable findings

1. Mr Shaw complains that Wigney J made "[m]anifestly unreasonable [and] glaringly improbable findings ... without conducting an inquiry and/or contrary to the obvious evidence and circumstances or made relying on irrelevant facts or unreasonable inferences when there is no evidence [and] this was an error of law."
2. A fair reading of Wigney J's reasons demonstrates that the impugned findings were well open and consistent with the contemporaneous documentary records. Contrary to Mr Shaw's submissions, Wigney J did not fail to properly consider the evidence. It is well established that a judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue: Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [62] (Gleeson CJ, McHugh and Gummow JJ). The reasons given sufficiently exposed the basis for the conclusions reached.
3. Moreover, many of Mr Shaw's complaints as to findings being unreasonable or glaringly improbable are, in substance, an attempt to challenge the Trustee's commercial decisions. That is not the function of an inquiry.
4. No error is demonstrated by Mr Shaw's complaints on this topic.

Complaint as to failure to properly consider relevant facts and material matters

1. Mr Shaw claims that certain facts and circumstances were "not properly considered [and] it was unreasonable and contrary to a fair hearing [and] natural justice [and] an error of law."
2. This is another iteration of Mr Shaw's assertion that the Trustee should have been servicing the NAB Loan at all material times, to avoid the NAB Loan falling into default, so that NAB would not take steps to sell the Gwynne Street property. It is sufficient to dispose of this part of Mr Shaw's appeal by reference to some only of the critical flaws in his argument. The matters which Mr Shaw advances in argument on this part of the appeal as being not properly considered were in fact considered by Wigney J: see Shaw v OT (No 3) at [91], [95], [131]-[145].
3. Mr Shaw's complaint presupposes that trustees in bankruptcy have some absolute legal obligation to service secured loans owed by bankrupts to whose bankrupt estates they are appointed. There is no such specific duty. Mr Shaw's bankruptcy did not immunise him from default or interest accrual. NAB, as secured creditor, stood outside the proof-of-debt process and was entitled to enforce its securities and select the order in which it realised assets. Mr Shaw makes various allegations about what caused the default on the NAB Loan but does not grapple with the fact that if the loan was not already in default, it would have become so on the sequestration of Mr Shaw's estate. Mr Shaw does not demonstrate a proper basis on which the Trustee could or should have interfered with NAB's decision-making. Responsibility for servicing the loan rested with Mr Shaw. It was Mr Shaw who elected not to apply the rental income from the properties towards servicing the loan during the period in which the Trustee permitted him to receive the rent.
4. As a factual matter, Mr Shaw's complaint is premised on the Trustee having sufficient funds in the estate at all relevant times to service the NAB Loan in accordance with its terms. However, he does not demonstrate that this was in fact the case. Nor does he demonstrate that it was necessarily in the best interests of Mr Shaw's estate for the Trustee to service - or alternatively, discharge - the NAB Loan. Again, Mr Shaw puts that as a bare assertion. He does not address whether the Gwynne Street property, or either of the other two properties, would have needed to be realised in any event to satisfy Mr Shaw's creditors in the ordinary course.
5. NAB had an unfettered discretion to enforce each of its three mortgages in accordance with their terms and to select which property or properties to sell, and in which order, to satisfy the debt due to it. There was no basis for the Trustee to interfere with NAB's decision-making.
6. Finally, in relation to Mr Shaw's complaints that Wigney J did not examine the five affidavits filed in the annulment hearing or determine if the Trustee's solicitors' costs were necessary or reasonable, there was no occasion for Wigney J to "examine" affidavits filed in a separate proceeding which did not form part of the evidence Mr Shaw chose to tender in the proceeding below. Nor was there a requirement for Wigney J to engage in some form of cost taxation exercise. His Honour considered - and rejected - Mr Shaw's cost complaints: Shaw v OT (No 3) at [183]-[186].
7. Again, no error is demonstrated by Mr Shaw's complaints on this topic.

1. Mr Shaw claims Wigney J "erred by not properly examining [and] dealing with [Mr Shaw's] request to not award costs due to alleged breaches of the [Trustee] to comply with the CDRA to mediate [and] engage in reasonable discussions to narrow issues in dispute." Mr Shaw's submissions on this ground simply restate the ground.
2. Wigney J ordered that Mr Shaw pay the Trustee's costs on the orthodox basis that costs follow the event, rejecting Mr Shaw's submission that costs should be withheld because of alleged unreasonable conduct by the Trustee or its solicitors, including purported failures to engage, narrow issues, comply with the Civil Dispute Resolution Act 2011 (Cth), or the challenge to the AFSA subpoena.
3. His Honour found those complaints to be meritless, unsupported by evidence, and inconsistent with the Court's own case management observations, noting in particular that it was Mr Shaw who expanded rather than confined the issues: Shaw v OT (No 3) at [201]. Accordingly, Wigney J made a costs order in the Trustee's favour, including interlocutory costs, without prejudice to the Trustee's right to claim those costs as an expense of the administration of the bankrupt estate.

1. Finally, and for completeness, we note that in one subparagraph of the grounds of appeal, Mr Shaw raises a complaint about apprehended bias: ground 12. Mr Shaw submits that the cumulative effect of repeated adverse characterisations of his evidence and conduct in Wigney J's reasons together with the making of contested factual findings at the threshold stage of a s 90‑10 inquiry, would lead a fair‑minded lay observer to apprehend that Wigney J had prejudged the application and was predisposed against reopening or ordering an inquiry. Mr Shaw seizes on the use of language such as "bare assertion", "speculation", "prolix", and "quarrelsome", coupled with Wigney J making critical remarks about Mr Shaw's motives and cooperation. Mr Shaw further contends that the tone and content in particular goes beyond permissible robustness, were unnecessary to the statutory task, and were procedurally unfair in circumstances where Mr Shaw's evidence was untested and the proceeding was said to be confined to a preliminary inquiry, thereby reinforcing the appearance of prejudgment.
2. There is no substance to this complaint. The remarks of Wigney J that Mr Shaw seeks to impugn are ordinary evaluative findings and credibility‑neutral assessments of the probative value of Mr Shaw's evidence, made in the course of resolving whether the discretion to order an inquiry should be exercised. The fact that the remarks are strongly expressed and adverse to Mr Shaw do not establish apprehended bias: SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [5], [52]-[54] (Gageler CJ, Gleeson J), [86]-[88], [90] (Gordon J), [161]-[166] (Jagot J), [172] (Beech-Jones J). Mr Shaw has not established that a fair‑minded lay observer would reasonably apprehend that Wigney J might not bring an impartial mind to the determination of the issues: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
3. We have separately addressed Mr Shaw's repeated submissions about the rejection of unchallenged evidence earlier in these reasons.

1. Mr Shaw has not demonstrated any appealable error. The appeal will be dismissed with costs.

1. In NSD42/2022 Mr Shaw applies for leave to appeal against the orders made on 25 November 2020 by which Wigney J set aside the subpoena directed to AFSA on the basis that it was an abuse of process and the subsequent refusal of Mr Shaw's application made in January 2021. The Trustee opposes the grant of leave. The parties addressed their argument to the substantive issue as to whether leave should be granted rather than whether an extension of time in which to seek leave should be given. We will do likewise.
2. Leave to appeal is not an occasion to relitigate interlocutory rulings as part of a broader merits appeal. Mr Shaw has not demonstrated that this is an appropriate case for the grant of leave to appeal in respect of the case management decisions that he seeks to impugn. The decisions are not attended by doubt as to their correctness as an exercise of discretion and Mr Shaw has not established that substantial injustice will result if he is not granted leave to appeal. We refer to and repeat what we have earlier said in relation to the principles which apply to the grant of leave to appeal and discretionary decisions on matters of procedure.
3. Mr Shaw claims that the setting aside of the subpoena was "an error of discretion and denial of procedural fairness [and] natural justice [and] has had a direct [and] prejudicial consequence on the outcome of the final hearing" as the classes of documents sought are "directly relevant to the complaints made out in my statement of claim" and Wigney J "erred by incorrectly limiting the range of documents that should be provided."
4. Contrary to Mr Shaw's contentions, the correctness of the decision to set aside the subpoena as a matter of procedural discretion is not attended by any real doubt, bearing in mind the appellate restraint mandated by House v The King. The subpoena sought the production of extracts of internal AFSA guidelines regarding a range of issues not relevant on the pleadings and after the close of evidence. The absence of a legitimate forensic purpose, or a conclusion that the issuing party is fishing for a case rather than evidence in support of a case, is a proper basis to set aside a subpoena. That is particularly so in circumstances where nowhere in Mr Shaw's statement of claim did he plead any breach of internal AFSA guidelines.
5. As Wigney J noted, whether the Trustee followed AFSA guidance on bankrupt estates is not determinative of any breach of statutory or common law duty in this case: Shaw v OT (No 3) at [167]-[169]. The Trustee was not required by law to follow internal AFSA guidance.
6. Mr Shaw did not demonstrate that the setting aside of the subpoena resulted in any denial of procedural fairness. His submissions went no further than asserting prejudice without explaining how the decision deprived him of a reasonable opportunity to present his case. In circumstances where the subpoena was issued after the close of evidence, where the material sought was at most, of peripheral relevance to the pleaded issues, and where the primary judge nevertheless ordered production of any part of the manual bearing on matters on which Mr Hasan was cross‑examined and permitted limited leave to re-open to tender that material, no procedural unfairness is shown.
7. Mr Shaw has not demonstrated error attendant on the dismissal of his January 2021 application. Wigney J's reasons for dismissing that application are comprehensive. They serve to highlight that the decision which Mr Shaw seeks to challenge is a decision that is properly the province of the trial judge. Mr Shaw has not demonstrated that Wigney J's dismissal of his January 2021 application was attended by House v The King error.
8. Mr Shaw has not established appealable error in the decision to set aside the subpoena. Further, Mr Shaw fails to identify any substantial injustice that will result if he is not granted leave to appeal that decision. In these circumstances, to the extent that Mr Shaw requires an extension of time within which to seek leave to appeal we would decline to give that extension.

1. Before turning to the substance of the grounds of appeal, we will briefly address the determination of the Trustee's objection as to the competency of Mr Shaw's appeal in QUD26/2025.

1. In Shaw v OT (appeal competency), Markovic J determined a further amended notice of objection to competency and dismissed, as incompetent, those parts of the amended notice of appeal which sought to challenge the decision of SC Derrington J in OT v Shaw (No 3).
2. Markovic J held that, although interlocutory for the purposes of s 24(1A) of the FCA Act, the orders made in OT v Shaw (No 3) were final for the purpose of applying the doctrine of res judicata. As mentioned, leave to appeal was refused: Shaw v OT (refusal of leave to appeal separate questions). The refusal of leave to appeal left that determination conclusively undisturbed. Section 24(1E) of the FCA Act did not permit Mr Shaw to re‑agitate matters finally determined.
3. Markovic J further held that r 36.72 of the Rules permits the dismissal of part only of an appeal as incompetent and dismissed those paragraphs of the amended notice of appeal which were foreclosed by finality or were incomprehensible or bore no intelligible relation to the judgment appealed from. The effect of the decision was to confine Mr Shaw's appeal to challenges directed to the orders in OT v Shaw (No 4) and OT v Shaw (No 5).
4. Although in its final iteration, the QUD26 Appeal Notice advances a large number of grounds directed to the decisions of SC Derrington J. The scope of those grounds has been significantly narrowed by the competency ruling of Markovic J.

1. In substance, the appeal in QUD26/2025 challenges SC Derrington J's treatment of Mr Shaw's proposed supervisory Inquiry (as sought in the September 2024 Interlocutory Application) as barred, extinguished, and lacking utility. Mr Shaw contends that errors of law and a denial of procedural fairness arose from an undifferentiated application of issue estoppel, a failure to confine or sever the Inquiry, and the summary dismissal of alleged post‑authority conduct notwithstanding the discontinuance of the underlying s 37AO Proceeding. By post-authority conduct in this context we mean what the Trustee did after the question as to the Trustee's authority to commence and conduct the s 37AO Proceeding was determined in OT v Shaw (No 3), not whether the authority existed in the first place.
2. We will continue the approach we have used with respect to the NSD9 Appeal Notice and address Mr Shaw's grounds thematically, rather than in seriatim.

Complaint about issue estoppel and res judicata

1. Mr Shaw's proposed inquiry which was the object of the September 2024 Interlocutory Application was correctly held to be barred by issue estoppel: OT v Shaw (No 5) at [49]. In OT v Shaw (No 3), SC Derrington J finally and necessarily determined the legality of the Trustee's authority to commence and conduct the s 37AO Proceeding. Leave to appeal that determination was refused: Shaw v OT (refusal of leave to appeal separate questions). The Inquiry sought by paragraphs 19 and 20 of the September 2024 Interlocutory Application was not confined to discrete or later matters but was directed in substance to impugning the initiation and maintenance of the proceeding itself. Those matters were legally indispensable to the earlier judgment and could not be reopened indirectly under the guise of a supervisory inquiry. SC Derrington J was therefore correct to conclude that Mr Shaw was estopped from pursuing the Inquiry.

Complaint about failure to sever or confine the inquiry

1. Once issue estoppel was engaged, SC Derrington J was under no obligation to reformulate, confine, or salvage Mr Shaw's application for an Inquiry. The application was framed broadly and deliberately to encompass matters already determined, and it was not for the Court to recast it into a different application directed to hypothetical non‑estopped issues. The absence of severability was a function of the way in which Mr Shaw sought to plead and pursue the Inquiry. In those circumstances, summary dismissal of the Inquiry in its entirety did not involve an error of law.

Complaint about effect of discontinuance of the s 37AO Proceeding

1. In any event, the Inquiry contained in the September 2024 Interlocutory Application did not survive the discontinuance of the s 37AO Proceeding. The application was interlocutory to that proceeding. The subject matter of the Inquiry which Mr Shaw sought was directed to vindicating his defence of the s 37AO Proceeding. That is reflected in the fact that Mr Shaw did not commence by way of cross‑claim but instead filed an interlocutory application. Once the Trustee discontinued that proceeding, there was no remaining utility in the September 2024 Interlocutory Application.
2. Rule 15.11 of the Rules is confined to cross-claims. It does not operate to preserve the September 2024 Interlocutory Application after the discontinuance of the s 37AO Proceeding. Once leave to discontinue was granted and the s 37AO Proceeding was brought to an end, the interlocutory application fell away: OT v Shaw (No 5) at [48]-[51].
3. Mr Shaw has not demonstrated any error in SC Derrington J rejecting his contention that the Inquiry remained live notwithstanding the discontinuance of the s 37AO Proceeding.

Complaint about procedural fairness in the conduct of the interlocutory applications

1. Mr Shaw claims that SC Derrington J granted the Trustee leave to discontinue the proceeding without requiring it to make a formal application and without proper notice to Mr Shaw. No denial of procedural fairness is established.
2. Mr Shaw had notice of the issues to be addressed, including the effect of discontinuance and the applicability of issue estoppel, and was given an opportunity to make submissions on those matters. SC Derrington J explained the evidentiary basis for her finding that Mr Shaw was given sufficient notice of the Trustee's intention to seek leave to discontinue the proceeding, including in the absence of the Trustee's consent, and that in the circumstances it was appropriate to dispense with the requirement for the Trustee to file a formal interlocutory application: OT v Shaw (No 4) at [29]-[35]. Mr Shaw's complaint reduces to a complaint about an exercise of case management discretion, with which an appellate court is ordinarily loathe to interfere: Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs v MB [2021] FCAFC 194 at [14] (Griffiths J, Thomas and Stewart JJ agreeing).
3. SC Derrington J was entitled to manage the proceeding with a degree of informality where to do so was efficient, fair and cost effective, consistent with the Court's case management powers and the overarching purpose in s 37M of the FCA Act. Mr Shaw's dissatisfaction with the outcome, or with the manner in which case management discretions were exercised, does not establish procedural unfairness.

Complaint about disposition being impermissibly summary in nature

1. Mr Shaw complains that SC Derrington J summarily dismissed the September 2024 Interlocutory Application without providing reasons. That complaint is misconceived.
2. The dismissal of the September 2024 Interlocutory Application was not an impermissible summary determination on the merits. It followed from threshold legal conclusions that the Inquiry was barred by issue estoppel and, in any event, extinguished by the discontinuance. In those circumstances, no formal application under r 26.01 of the Rules was required. Once the legal impediments were identified, the Court was entitled to dispose of the application without embarking upon a merits inquiry that it lacked power to conduct.
3. Mr Shaw had opportunity to address on this issue. That was the effect of Order 2 in OT v Shaw (No 4). The Court did not shut out Mr Shaw from agitating those complaints, which were ultimately determined against him in OT v Shaw (No 5) at [48]-[51].

Complaint about delegation, authority and post-authority conduct

1. Mr Shaw's attempt to establish error by drawing a distinction between authority to commence the s 37AO Proceeding and alleged deficiencies in the later conduct of this proceeding is rejected. In OT v Shaw (No 3), SC Derrington J determined that the Trustee had authority to both institute and conduct the proceeding: at [54]-[73]. This is a conclusion supported by s 134(1)(j) of the Bankruptcy Act which gives a trustee in bankruptcy power to "bring, institute or defend any action or other legal proceeding relating to the administration of the estate" and which is a power that should not be read in a way "which narrows rather than enlarges the authority of a trustee in bankruptcy to take appropriate steps in the administration of the estate": McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 at 472 (Lehane J).
2. The determination that the Trustee had authority to institute and conduct the proceeding necessarily encompassed continuation of the litigation, including decisions as to how it was run and if it was to be brought to an end.
3. Contrary to Mr Shaw's contention, the financial delegation thresholds applicable to individual employees of AFSA did not operate to strip the Trustee of authority to conduct the s 37AO Proceeding after it had been commenced pursuant to an authority validly conferred by the Trustee under ss 15 and 18 of the Bankruptcy Act: OT v Shaw (No 3) at [41]. Mr Shaw's contention that financial delegations applicable to individual AFSA employees involved in the administration of Mr Shaw's estate and by extension in the s 37AO Proceeding in some way gave rise to a free‑standing basis for a supervisory inquiry into the Trustee's conduct was misconceived. Mr Shaw's attempt to focus on "post‑authority conduct" does not avoid the estoppel arising from the earlier determination in OT v Shaw (No 3).
4. Finally, the Inquiry sought by Mr Shaw in paragraphs 19 and 20 of the September 2024 Interlocutory Application was not confined to the conduct of the proceeding post 6 October 2023. By those paragraphs, Mr Shaw asked the Court to "enquire into the legality, conduct [and] reasons for the [Trustee] initiating [and] maintaining this application" (emphasis added).

Complaint about refusal of undertakings and proportionality

1. Mr Shaw submits that the Trustee's refusal to accept undertakings and its maintenance of the s 37AO Proceeding over several years at significant cost were matters warranting supervisory inquiry under ss 19 and 134 of the Bankruptcy Act. The Trustee's decisions about whether to accept undertakings, how to conduct litigation, and when to discontinue proceedings are matters that are squarely within the Trustee's statutory discretion. The fact that Mr Shaw disagreed with those decisions, or considered them disproportionate or unnecessary, does not provide a basis for a supervisory inquiry into the Trustee's conduct in the present circumstances where the Trustee's authority to commence and maintain the proceeding has already been upheld. Section 90‑10 of the IPSB does not provide a vehicle for collateral review of a trustee's discretionary litigation choices made within power.

Complaint about utility and evidentiary threshold

1. For reasons already given, the proposed Inquiry which was the subject of the September 2024 Interlocutory Application lacked utility. It was directed to matters already determined or rendered moot by the discontinuance of the s 37AO Proceeding. The Court is not required to embark upon an inquiry where no legally permissible or practical outcome could be achieved. Mr Shaw has not established error in SC Derrington J's conclusion that in the circumstances the Inquiry could serve no useful purpose.

1. Mr Shaw claims the decision in OT v Shaw (No 5) was affected by apprehended bias. The allegations of apprehended bias are without substance. They amount to dissatisfaction with case management decisions and adverse rulings. No matter is identified that could lead a fair‑minded lay observer to reasonably apprehend that SC Derrington J might not bring an impartial mind to the determination of the issues: Ebner at [6]; Charisteas at [11]. That is particularly so when considering the active role a modern judge is likely to play in case management decisions which are unlikely to disqualify a judge from hearing the proceeding: British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [140] (Heydon, Kiefel and Bell JJ). The bias ground was correctly rejected.
2. The exercise by SC Derrington J of the case management discretion, to defer Mr Shaw's application for the Inquiry and later to reserve the question of whether paragraphs 19 and 20 of the September 2024 Interlocutory Application survived as a valid cross-claim, does not demonstrate a "pattern of ambush" as Mr Shaw contends. In fact, the way in which the orders were crafted was directed to affording Mr Shaw a further opportunity to make submissions on the issue of whether paragraphs 19 and 20 survived the discontinuance of the s 37AO Proceeding: OT v Shaw (No 4) at [37]. Mr Shaw has failed to show any logical connection between the case management of the September 2024 Interlocutory Application and a fear that SC Derrington J would decide whether that application survived discontinuance other than on its merits.

Complaint about finding that s 37AO Proceeding was not a "bankruptcy matter"

1. Mr Shaw asserts that SC Derrington J erred in stating that the s 37AO Proceeding was "not a bankruptcy matter" and that this was inconsistent with her Honour's earlier conclusion in OT v Shaw (No 3) that the s 37AO Proceeding was "related to" the administration of the bankrupt estate so as to fall within s 134(1)(j) of the Bankruptcy Act (and therefore within the Trustee's power to institute it).
2. Mr Shaw's complaint proceeds from a conflation of distinct concepts. In OT v Shaw (No 3), the question for determination was whether the Trustee had jurisdiction under s 134(1)(j) of the Bankruptcy Act to institute a proceeding under s 37AO of the FCA Act, requiring an assessment as to whether that proceeding was one "relating to the administration of the estate". SC Derrington J concluded that it was for that purpose.
3. In OT v Shaw (No 5), her Honour explained that the earlier conclusion that the proceeding was "related to" the administration of Mr Shaw's estate was directed to the jurisdictional inquiry under s 134(1)(j) of the Bankruptcy Act and did not entail (and could not entail) that the proceeding was thereby characterised as a "bankruptcy matter". Her Honour said, in terms, that it was "another matter entirely whether the proceeding is a bankruptcy matter", and that "it is beyond doubt that it is not", noting that the proceeding sought relief under s 37AO(2) of the FCA Act and that reference to provisions of the Bankruptcy Act in the analysis does not confer upon the proceeding the character of a "bankruptcy matter": OT v Shaw (No 5) at [21].
4. Properly understood, therefore, the statement that the proceeding is "not a bankruptcy matter" is not inconsistent with, and does not undermine, the earlier conclusion that the proceeding related to the administration of Mr Shaw's estate for the purposes of s 134(1)(j) of the Bankruptcy Act. The two propositions address different questions. No error is established.

1. In substance, the appeal fails because Mr Shaw's proposed supervisory inquiry was foreclosed by issue estoppel arising from OT v Shaw (No 3) and, in any event, extinguished by the discontinuance of the s 37AO Proceeding. The primary judge's disposition involved no error of law or denial of procedural fairness but reflected an orthodox application of finality principles and case management discretion.

1. Mr Shaw seeks leave to rely upon "further" evidence which was not before SC Derrington J. The application appears to be directed to the admission of the following evidence: Mr Shaw's affidavits of 14 August 2023, 8 September 2023, 19 September 2024 and 31 October 2024 and other unidentified evidence "relating to the actions [and] omissions of the [Trustee] since 6 [October] 2023 [and] 20 [December] 2024 that are directly relevant to the question of any s 90-10 enquiry." The Trustee opposes the application.
2. The admission of further evidence is neither necessary nor appropriate. The proposed material is directed to issues already determined, irrelevant to the dispositive questions of estoppel and discontinuance, or otherwise incapable of affecting the outcome. Its admission would undermine finality and the efficient resolution of the proceeding.
3. Mr Shaw's affidavit of 14 August 2023 was not accepted for filing but exhibits correspondence between Mr Shaw and AFSA intended to support Mr Shaw's challenge to the delegation, an issue that was determined in OT v Shaw (No 3). To the extent that Mr Shaw purported in this appeal proceeding to challenge the decision in OT v Shaw (No 3), his appeal has been held to be incompetent: Shaw v OT (appeal competency). Leave to rely upon the 14 August 2023 affidavit is refused on the same basis.
4. The 8 September 2023 affidavit was filed "in response to the affidavit of Mr Burke" in OT v Shaw (No 3) and is, by its terms, directed to show that Mr Burke did not hold an EL2 position. SC Derrington J had this affidavit before her in determining that Mr Burke held an acting EL2 position at the relevant time. That issue cannot be revisited in this proceeding.
5. The affidavits of 19 September 2024 and 31 October 2024 were before SC Derrington J in deciding both OT v Shaw (No 4) and OT v Shaw (No 5). They do not constitute "further evidence" for the purpose of s 27 of the FCA Act and r 36.57 of the Rules.
6. In so far as Mr Shaw seeks leave to file unidentified evidence "relating to the actions [and] omissions of the [Trustee] since 6 [October] 2023 [and] 20 [December] 2024" that application must also be refused. A principal issue in this appeal is whether SC Derrington J was correct to find that Mr Shaw was estopped from pursuing the Inquiry the subject of the September 2024 Interlocutory Application by the decision in OT v Shaw (No 3) (in respect of which leave to appeal was refused). Consideration of further evidence, the scope of which is unconfined in practical terms, does not assist in determination of that issue. To permit it to be led at this stage would not further the overarching purpose as set out in s 37M of the FCA Act and there is nothing to suggest that it would be in the interests of justice for the Court to exercise its discretion to grant it: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29; 296 ALR 465 at [42]- [44] (North, Cowdroy and Katzmann JJ).

1. For these reasons, the appeals and the application for leave to appeal will be dismissed with costs. So too, Mr Shaw's application in relation to additional evidence. Costs are to be taxed on a lump sum basis if not agreed.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Perram, Cheeseman and Meagher.

ANNEXURE A - Chronological list of decisions involving Mr Shaw and The Trustee

* Denotes decision is the subject of the present appeal.

** Denotes decision is the subject of the present application for leave to appeal.

Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616

Gordon J granted a sequestration order against Mr Shaw.

Shaw v Yarranova Pty Ltd [2014] FCAFC 171

The Full Court dismissed Mr Shaw's appeal from Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616.

Shaw v Yarranova Pty Ltd [2016] FCA 88

Pagone J dismissed Mr Shaw's application to annul or to set aside the sequestration order made in Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616.

Shaw v Buljan [2016] FCA 829; 153 ALD 252

Charlesworth J ordered that Mr Shaw's interlocutory application dated 10 May 2016 and affidavit in support sworn 10 May 2016 be accepted for filing.

The interlocutory application sought to restrain the respondent creditors' solicitors from continuing to act in the annulment proceeding.

Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 267

The Full Court dismissed Mr Shaw's appeal from Shaw v Yarranova Pty Ltd [2016] FCA 88.

Shaw v Yarranova Pty Ltd & Anor [2017] HCASL 219

The High Court refused special leave to appeal from Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 267.

Shaw v The Official Trustee in Bankruptcy Vic 1697/14/1 of Australian Financial Security Authority [2019] FCA 1412

Mr Shaw commenced proceeding VID778/2019 seeking an interim order preventing the settlement of the sale of the Tivoli Road property and, by way of final relief, a review of the Trustee's partial admission of the petitioning creditors' proof of debt and a review of the Trustee's decision to sell the Tivoli Road property.

Snaden J dismissed Mr Shaw's interlocutory application seeking to restrain the Trustee's solicitors from acting.

Shaw v The Official Trustee in Bankruptcy Vic 1697/14/1 of Australian Financial Security Authority (No 2) [2019] FCA 1574

Snaden J dismissed proceeding VID778/2019 and ordered that the admission of a proof of debt in the administration of the bankruptcy be confirmed, and set aside three subpoenas as a fishing attempt.

Shaw v The Official Trustee in Bankruptcy Vic 1697/14/1 of Australian Financial Security Authority [2020] FCAFC 142

The Full Court dismissed Mr Shaw's appeal from Snaden J's judgment in Shaw v The Official Trustee in Bankruptcy Vic 1697/14/1 of Australian Financial Security Authority [2019] FCA 1412.

Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority [2020] FCAFC 136

The Full Court dismissed Mr Shaw's appeal from the interlocutory judgment in Shaw v The Official Trustee in Bankruptcy Vic 1697/14/1 of Australian Financial Security Authority (No 2) [2019] FCA 1574.

Shaw v The Official Trustee in Bankruptcy of the Australian Financial Services Authority [2020] FCA 1570

Wigney J refused Mr Shaw's application for recusal on the basis of apprehended bias.

Shaw v The Official Trustee in Bankruptcy of the Australian Financial Services Authority [2020] FCA 1575

Wigney J dismissed Mr Shaw's interlocutory application filed 24 July 2020 seeking summary judgment.

Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority (No 3) [2021] FCA 1569

Wigney J ordered that the originating process filed 9 October 2019 be dismissed as Mr Shaw failed to demonstrate any misfeasance, neglect, or other error in the conduct of the administration by the Trustee.

Wigney J also ordered that the interlocutory application filed by Mr Shaw on 22 January 2021 be dismissed as unmeritorious.

The reasons also explain Wigney J's decision to set aside Mr Shaw's subpoena dated 25 November 2020 compelling AFSA to produce copies of sections of the AFSA Procedure Manual. Wigney J instead ordered the Trustee to produce the "procedure manuals or practice guides relating to the standard practice of the Official Trustee in Bankrupty to not engage in letting out properties, to not speculate, and to realise properties as soon as practicable."

Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority [2022] FCA 775

Cheeseman J stayed the NSD9/2022 and NSD42/2022 appeals pending determination of the s 37AO Proceeding.

Previously, Cheeseman J also ordered, by consent, that Mr Shaw be given leave to appeal out of time in respect of QUD26/2025.

The Official Trustee in Bankruptcy v Shaw [2023] FCA 298

Collier J dispensed with the Trustee's obligation to comply with three notices to produce issued by Mr Shaw.

Mr Shaw subsequently on 8 May 2023 filed an interlocutory application seeking Collier J's recusal.

Shaw v The Official Trustee in Bankruptcy [2023] FCA 570

Mortimer CJ reallocated the matter from Collier J to avoid occupying further time and resources of the Court.

Mortimer CJ also ordered that Mr Shaw's complaint about Collier J going beyond the relevance of the documents the subject of the subpoena was to be heard together with the s 37AO Proceeding.

The Official Trustee in Bankruptcy v Shaw (No 3) [2023] FCA 1178

SC Derrington J made orders in respect of three separate questions finding that the Trustee's institution and conduct of the s 37AO Proceeding was valid and authorised, and that its solicitors had been validly instructed.

Shaw v The Official Trustee in Bankruptcy [2024] FCA 137

Jackman J refused Mr Shaw's application for leave to appeal from OT v Shaw (No 3).

The Official Trustee in Bankruptcy v Shaw (No 4) [2024] FCA 1345

SC Derrington J granted the Trustee leave to discontinue the s 37AO Proceeding by filing a notice of discontinuance.

SC Derrington J also permitted the parties to file submissions as to the continuation of paragraphs 19 and 20 of the September 2024 Interlocutory Application as a valid cross-claim.

The Official Trustee in Bankruptcy v Shaw (No 5) [2024] FCA 1490

SC Derrington J dismissed the September 2024 Interlocutory Application, including paragraphs 19 and 20, and found that Mr Shaw was estopped from pursuing the Inquiry under the IPSB and the application, being interlocutory, fell away once the Trustee discontinued the s 37AO Proceeding.

Shaw v Official Trustee in Bankruptcy [2025] FCA 1148

Mr Shaw filed a notice of appeal on 16 January 2025 appealing from SC Derrington J's judgments.

The Trustee filed a notice of contention on 14 February 2025 claiming that paragraphs 19 and 20 of the September 2024 Interlocutory Application did not survive discontinuance of the s 37AO Proceeding because they did not constitute a cross-claim.

Markovic J determined the Trustee's objections to competency on the ground of res judicata.

The objection to competency succeeded in part. Some but not all of the paragraphs of Mr Shaw's amended notice of appeal were dismissed as incompetent.