Consideration
56 We are satisfied that leave is required to appeal the primary judge's decision to set aside the subpoenas given the appeal is a direct challenge to this interlocutory decision and is not merely part of the grounds of appeal to challenge a final substantive decision: Jackson at [54].
57 The applicable principles as to when leave is required are well settled and were recently restated by the Full Court of this Court in Nationwide News Pty Ltd v Rush [2018] FCAFC 70 per Lee J at [2]-[6] (Allsop CJ and Rares J agreeing), as follows:
(1) The starting point is that, in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2) Consistent with the facilitation of a just resolution, an applicant must show that:
(a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and
(b) supposing the decision to be wrong, substantial injustice would result if leave were refused. The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that a degree of doubt which is sufficient in one case may be different from that required in another. The considerations are cumulative such that leave ought not be granted unless each limb is made out: Décor Preparation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.
(3) Additionally, and consistent with the facilitation of a quick, inexpensive and efficient resolution, we note the principle which emerged from the warning of Jordan CJ in Re The Will of F.B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that, if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result would be "disastrous to the proper administration of justice".
(4) Even if it was reasonably arguable that the primary judge's discretion miscarried, that would not, in of itself, be a sufficient basis to grant leave.
58 In our view, the primary judge's decision is not attended with sufficient doubt to warrant its reconsideration on appeal.
59 The primary judge correctly identified the subpoenas as a fishing exercise at [43]-[46] where the primary judge provided a cogent basis for the conclusion that the subpoenas were "wholly exploratory". The appellant has not demonstrated any error of the kind required by House v The King [1936] HCA 40; 55 CLR 499.
60 The primary judge correctly identified that the subpoenas had been issued for the impermissible purpose of relitigating the previous decisions of the Supreme Court of Victoria and of this Court which his Honour set out in detail at [5]-[18] of the primary judgment.
61 The s 104 Application is the appellant's fifth attempt, including previous unsuccessful appeals, to persuade this Court, in the exercise of its bankruptcy jurisdiction, to go behind the previous costs orders. The primary judge correctly identified the problem for the appellant at [45] of his Honour's reasons, as follows:
45. The facts to which Mr Shaw points are established by the evidence (and, in any event, are not materially challenged). The problem for him now, as it has always been, is that none of them individually is, and no two or more of them in combination are, sufficient to amount to "fraud, collusion or miscarriage of justice" or "other sufficient cause" of the kind that might warrant an exercise of the court's discretion to go behind the Costs Orders. Mr Shaw has no proper basis for his contention that the Costs Orders are unreliable or were irregularly obtained such that the court should venture behind them. In reality, he has nothing more than a bald hope or suspicion that they are or were; a hope or suspicion that he wished to investigate by means of the court's coercive subpoena process.
46. The subpoenas were, then, wholly exploratory. Again intending no disrespect, Mr Shaw has no idea whether Yarranova and Newquay were liable for the legal fees to which the Costs Orders relate. He has no idea as to the nature of the arrangements - formal or otherwise, express or implicit - that existed as between Yarranova and Newquay, their lawyers and the related entity that paid their lawyers. He complains that nobody has ever properly explained to him (or to this or any other court) what those arrangements were. Let it be assumed that Mr Shaw is right about that: in the absence of some basis for suspecting something untoward, those arrangements are not of concern to Mr Shaw or the court. The court will not default to a position of suspicion; particularly not in light of what, on its face, appears to be an entirely unremarkable example of one entity in a group performing a treasury-type function for others. It most certainly will not do so in circumstances where Mr Shaw has agitated and lost precisely the same contention on as many occasions as he has, both in this court and in the Victorian Supreme Court.
62 An appeal by way of rehearing requires demonstration of error: see Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1835; 117 FCR 424 at 435 [22] per Allsop J, as the Chief Justice then was (Drummond and Mansfield JJ agreeing). Moreover, what is required is a demonstration of error in the orders made by the primary judge and not the reasons given for those orders. There is no sufficient doubt as to the correctness of the primary judge's orders.
63 Finally, no substantial injustice would result if leave to appeal were refused. This is principally because the appellant has been afforded numerous opportunities in different courts to challenge the costs orders and on each occasion has been unsuccessful. The issue of the subpoenas by the appellant represents, as the primary judge correctly found, a further attempt by the appellant to relitigate previous costs orders.
64 It follows that neither limb of Décor has been made out and the application for leave to appeal from the orders of the primary judge should be dismissed with costs.
65 Finally, at the completion of the hearing of this matter on 4 August 2020, the appellant raised, for the first time, the existence of a revised draft notice of appeal, apparently sent to and received by the Federal Court of Australia's registry, but not filed, on 7 October 2019. No mention was made of it by any of the parties during the course of their oral submissions, and no leave was sought by the appellant to rely upon it.
66 In any event, before making final orders, the Court adjourned to consider this document which was titled "Revised Draft Notice of Appeal". After that adjournment, and having considered this document, the Court is of the opinion that the document titled "Revised Draft Notice of Appeal" does not contain any ground not addressed in substance by the parties or in these reasons.
67 Accordingly, leave to appeal the interlocutory orders of the primary judge is refused. The applicant will pay the respondent's costs of and incidental to the appeal.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O'Callaghan, Anastassiou and Anderson.