Volkswagen Financial Services Australia Pty Limited v StepUp Group Pty Ltd [2025] FedCFamC2G 900

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. These proceedings were commenced by an application filed in the consumer protection division of this Court on 21 February 2025. Immediately upon the proceedings being commenced they were given a first Court date at 9:45 am on 16 April 2025, which was notified to the parties on the sealed back sheet appended to the application.
2. It is now 9:50am. When I ascended the bench, there was no appearance by or for either the applicant or the respondent.
3. There is email correspondence on file which appears to have been received by my Chambers at 4:25pm yesterday (first email). The first email was sent by a "legal administration assistant" from the law firm who represents the applicant in these proceedings, and for the reasons which follow, warrants setting out in full (anonymisation added):

Good Afternoon Associate,

Please find attached Draft Minutes of Order for the hearing on Tuesday 16 April 2025 at 9:45am, before Her Honour Judge Given.

Service of the court sealed Application and Affidavit was not effected as we are seeking dispensation of service in this matter.

We kindly request that Mr Shane Sankey be granted permission to attend this hearing virtually, or by telephone, given that our office is located in Adelaide. If this is acceptable to Her Honour and the Court, would you be so kind as to forward the relevant Teams or telephone details to Mr Sankey.

Submissions:

1. The Applicant makes this Application pursuant to the Personal Property Securities Act 2009.

2. The Applicant entered into a Loan Contract dated 21 September 2023 (the Contract) with the Respondent and Sangitaben Patel as Guarantor in relation to a motor vehicle (the Collateral).

3. The Respondent and Guarantor defaulted on payments in relation to the Contract causing Default Notices (the Notices) to be issued to them on or about 12 December 2023.

4. Further, on 30 October 2024 the Applicant received correspondence sent on behalf of Higrade Automotive Services stating that an authority to repair agreement had been signed by an Ashley King in relation to the Collateral, however following completion of the repairs, all attempts to contact Ashley King had been unsuccessful. The correspondence also stated that if payment for the repairs was not received promptly, Higrade Automotive Services would charge the Applicant legal costs, and the Collateral and debt would be sold to a third party.

5. Following the Respondent and Guarantor's failure to comply with the Notices, the Applicant instructed Agents to repossess the Collateral.

6. The Agent has not been able to have the Respondent or Guarantor surrender the Collateral or sign the Form 13 required to repossess the Collateral from private land.

7. Accordingly, the Applicant seeks Orders pursuant to the attached Draft Minutes of Order.

Should you have any questions or queries in regard to the above, please do not hesitate to contact Shane Sankey, the solicitor for the Applicant on [number].

1. This morning, further correspondence was received at 9:41am from the same legal administration assistant (second email) in these terms:

Good Morning Associate,

Please note that Nick Crouch will be attending this hearing on behalf of Shane Sankey.

We kindly request that Mr Crouch be granted permission to attend this hearing virtually, or by telephone, given that our office is located in Adelaide. If this is acceptable to Her Honour and the Court, would you be so kind as to forward the relevant Teams or telephone details to us.

Attached, are amended draft Minutes of Order.

1. Section 136 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides as follows:

136 Exercise of jurisdiction - open court or in Chambers

(1) This section does not apply to family law or child support proceedings.

Note: See section 97 of the Family Law Act 1975.

Open court

(2) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must be exercised in open court. However, this rule does not apply where, as authorised by this Chapter or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge of that Court sitting in Chambers.

(2A) For the purposes of subsection (2), the circumstances in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is exercised in open court include where the exercise of jurisdiction is made accessible to the public by way of video link, audio link or other appropriate means.

Judge sitting in Chambers

(3) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) may be exercised by a Judge of the Court sitting in Chambers in:

(a) a proceeding on an application relating to the conduct of a proceeding; and

(b) a proceeding on an application for orders or directions as to any matter which, by this Chapter or any other law of the Commonwealth, is made subject to the direction of a Judge of the Court sitting in Chambers; and

(c) a proceeding on any other application authorised by the Rules of Court to be made to a Judge of the Court sitting in Chambers.

(4) The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is to be exercised by a Judge of the Court sitting in Chambers in a proceeding where:

(a) under the Rules of Court, the Court is authorised to make a decision relating to the proceeding without an oral hearing; and

(b) the parties to the proceeding have consented to the Court making a decision in relation to the proceeding without an oral hearing.

Proceeding in Chambers may be adjourned into court

(5) A Judge of the Federal Circuit and Family Court of Australia (Division 2) may order a proceeding in Chambers to be adjourned into the Court.

Proceeding in open court may be adjourned into Chambers

(6) The Federal Circuit and Family Court of Australia (Division 2) may order a proceeding in open court to be adjourned into Chambers if, apart from this subsection, the jurisdiction of the Court may be exercised by a Judge of the Court sitting in Chambers in that proceeding.

Closed court etc.

(7) The Federal Circuit and Family Court of Australia (Division 2) may order the exclusion of the public or of persons specified by the Court from a sitting of the Court if the Court is satisfied that the presence of the public or of those persons, as the case may be, would be:

(a) contrary to the interests of justice; or

(b) prejudicial to the security of the Commonwealth.

(8) The reference in subsection (7) to a sitting of the Court includes a reference to a sitting of the Court that is conducted by way of video link, audio link or other appropriate means.

1. Section 202 of the Court Act provides as follows:

202 Appearance of persons by video link or audio link

(1) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purposes of any proceeding, direct or allow a person to appear before the Court or the Judge by way of video link or audio link.

Note: See also section 204.

(2) The power conferred on the Federal Circuit and Family Court of Australia (Division 2) or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings concerned; or

(b) on the Court's own initiative or on the Judge's own initiative, as the case may be.

(3) This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

Note: See Part 6 of the Trans‑Tasman Proceedings Act 2010.

1. It is clear from ss 136 and 202 of the Court Act that hearings in this Court are, by default, presumed to be conducted in open Court, in person unless the Court otherwise allows. During the COVID-19 pandemic, the Chief Judge of this Court issued regular Special Measures Information Notices regarding restrictions on in-person hearings which were necessary by reason of that extraordinary situation. Since 6 May 2022, hearings returned to being in-person in accordance with s 136 of the Court Act, meaning that the prevailing practice of the Court for almost three years now has been a return to in-person hearings.
2. The applicant's solicitors are in Adelaide. The respondent appears to be located in Victoria. It seems usual in those circumstances that these proceedings would have been commenced in the Sydney Registry of the Court. Given those geographic matters, the prevailing conditions of the past three years (see paragraph [7] above) and that the applicant (and its solicitors) have been aware since the day these proceedings were commenced some two months ago that the first Court date was listed in Sydney today, they neither:

(a) included in the originating application a request to be allowed to appear other than in person; nor

(b) otherwise complied with the Court's application process for an application for appearance of persons by video link or audio link pursuant to s 202 of the Court Act, which makes clear to parties that to do so they should complete the relevant form 5 business days prior to any hearing.[1]

1. It is eleventh hour, to say the least, to send correspondence to the Court at 4:55pm the evening before an interlocutory hearing to request that the proceeding take place other than in person.
2. There is also a significant presumptuousness contained in the first email that the Court would simply accede to the request that the applicant's lawyer be allowed to appear via video-link, because no proposal was made for what would happen if it were not in fact acceptable or possible for that to occur. The second email reiterated the request, yet, again, made no proposal if it were not acceptable to the Court for the matter to proceed by alternative means.
3. In circumstances where the request was made extremely late and where there is no suggestion by the parties as to what would happen if the Court was not inclined to accede to that request, there is no appearance on behalf of the applicants.
4. In circumstances where there has been no appearance for the applicant this morning, it is in default and the Court has power in those circumstances to dismiss the proceedings:

r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules). However, in the exercise of my discretion I will instead make an order that the proceedings be listed for further directions at 9:45am on 11 June 2025. That directions hearing will take place in person, unless an application is properly made in the interim. The applicant's solicitors should make appropriate arrangements to either apply properly for the directions hearing to take place via video link or, alternately, to attend the proceedings in person.

1. In Amirbeaggi (Trustee), Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 (Amirbeaggi), this Court made a number of observations about proper communication with Chambers. It is alarming that there are a significant number of similarities between the events in this matter, and Amirbeaggi, including:

(a) correspondence being sent to Chambers by a person who is not a legal practitioner which implicitly made an application to the Court (in the instant case pursuant to s 202 of the Court Act); and

(b) an inappropriate degree of informality.

1. However, there is a more significant malady which is that the first email was sent ex parte and sought to make submissions about matters of substance in connection with the proceedings.
2. Rule 22.5 of the South Australian Legal Practitioners Conduct Rules (Solicitors' Rules) is in identical terms to below analogue provision of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015:[2]

22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connection with current proceedings unless -

22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court, or

22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

1. It is presumed that the legal administrative assistance who sent the submissions did so on behalf of the applicant's solicitor and that the submissions were not in fact hers. As was discussed in Amirbeaggi (supra) at [15]:

Where a party is represented, submissions should not be made to the Court by anyone other than a legal representative. An un-admitted law clerk would not, without leave, be permitted to appear in Court for a party. As such, non-legal staff in law firms should not write to the Court to make substantive representations and/or seek orders. Supervision arrangements for lawyers who do write to the Court should also be stringent. Conduct or submissions which are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the Court.

1. However, it is a fortiori that such correspondence, which should not be sent at all, should not be sent ex parte. Rule 22.5.1 of the Solicitors' Rules does not apply because the Court did not first communicate with the applicant's lawyer to invite the submissions which were made. There is no evidence before me that the respondent consented to the applicant's representatives sending the submissions to the Court in the manner which occurred.
2. All of the above is regrettable, and should not have occurred. The solicitors for the applicant should ensure this does not happen again in these proceedings or, in fact, in any other proceedings in this Court.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Other than a final hearing which requires 28 days' notice

[2] Noting that the applicant's solicitor is located in South Australia, albeit the obligation in NSW is also the same