Young v Hughes Trueman Pty Ltd

The applicant's dispute with her neighbours 8 In about 2001, Mr and Mrs King, the applicant's next door neighbours in Forestville in suburban Sydney, built a granny flat which required excavation of their property. The works that the neighbours carried out caused drainage problems for the applicant because of the physical features of the two adjoining properties, which are situated in a natural depression. Only a part of the works carried out by the neighbours was the subject of a valid consent. The part of the works that was ultimately the subject of consent was carried out before consent was obtained from the local council.

Overview of the original L&E Court proceedings and the ensuing litigation 9 By an application dated 14 April 2003, the applicant commenced proceedings in the L&E Court in relation to what had been done by her neighbours. Those proceedings were resolved in the applicant's favour on 19 February 2004, following a conclave of the experts retained by the parties. 10 The second respondent in these proceedings was one of the experts who participated in the conclave. He was a hydrological engineer retained by the applicant for the purposes of the L&E Court proceedings to give evidence as to what her neighbours had done and the requisite remedial works. The first respondent in these proceedings was the company that employed the second respondent. 11 The L&E Court proceedings were finalised by consent orders formally dismissing those proceedings (the 2004 Consent Orders). The 2004 Consent Orders were made by the then Chief Justice of the L&E Court upon his Honour accepting and noting as part of those orders an undertaking by the neighbours to carry out certain works as part of those orders. His Honour gave a judgment on the issues leading to the orders being made: Young v King [2004] NSWLEC 93 (McClellan CJ). A costs order was also made in the applicant's favour. 12 The applicant was later dissatisfied with the 2004 Consent Orders and in particular was unhappy with the scope of the undertaking upon which they were predicated. The applicant's complaint is an allegation that there was a material difference between the benefit she thought that she would be getting from the performance of the undertaking by her neighbours and the benefit she would in fact be getting. She considered that she had been misled. 13 Since discovering the asserted difference between the benefit the applicant thought that she would be getting and the benefit she would in fact be getting from the undertaking given by her neighbours, she has claimed that she would not have agreed to the 2004 Consent Orders had she properly understood what the undertaking in fact required her neighbours to do. She has vigorously litigated this issue since 2008. 14 The history of the litigation sparked initially by the applicant's dispute with her neighbours has included: (1) a negligence suit in the Supreme Court against, inter alia, the present respondents, in relation to the conclave, undertaking, settlement and 2004 Consent Orders in the L&E Court; (2) attempts by the applicant to set aside the 2004 Consent Orders; and (3) collateral to the failed attempts to set aside the 2004 Consent Orders, applications for costs against those who successfully resisted the setting aside of the 2004 Consent Orders, and against a range of others who had no involvement in that failed application, including the present respondents, based on their conduct allegedly causing her to have to bring all of this (failed) litigation. 15 Underpinning the attempts by the applicant to set aside the 2004 Consent Orders has been an allegation of collusion or conspiracy by which those orders were arrived at, with the applicant alleging the respondents were parties to that conduct.

Negligence suit and costs orders upon which the bankruptcy notice is based 16 In February 2010, the applicant commenced proceedings in the Supreme Court, alleging negligence on the part of her former lawyers and on the part of the respondents as her former engineering experts for their part in bringing about the 19 February 2004 settlement of her L&E Court proceedings, including in particular the 2004 Consent Orders and related undertaking. It is important to note that it would seem that negligence as an explanation for the terms of the undertaking given to the L&E Court does not sit well with an allegation of conspiracy, because the latter suggests deliberate malign behaviour, not an inadequate standard of professional conduct. The very bringing of the negligence suit seems to entail the applicant contemplating the reasonable possibility that this is an explanation for how the applicant came to be misled about the effect of the undertaking given by her neighbours. 17 On 27 September 2013, the Supreme Court negligence proceedings were dismissed by Garling J: Young v Hones (No 2) [2013] NSWSC 1429. His Honour reached that conclusion by answering agreed separate questions concerning advocate immunity and witness immunity adversely to the applicant. In upholding claims of both advocate immunity and witness immunity to defeat the applicant's negligence suit, his Honour applied the High Court decision of D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1. His Honour ordered the plaintiff (the applicant in these proceedings) to pay the costs of the defendants to the negligence suit, including the present respondents. It is those costs orders that were the basis of the present bankruptcy notice. 18 On 1 October 2014, an appeal by the applicant to the Court of Appeal was dismissed: Young v Hones [2014] NSWCA 337. The judgment of Ward JA at [41] to [64] provides a detailed summary of the history of the prior litigation which has been running in various New South Wales Courts since 2003. Those paragraphs do not need to be reproduced, but do assist in better understanding the negligence suit and related litigation if that is needed. 19 On 6 May 2015, the High Court dismissed an application for special leave to appeal from the above Court of Appeal decision in which the scope of D'Orta-Ekenaike was expressly raised: Margo Young v Brian Keith Hones & Ors [2015] HCASL 73. The reason the High Court gave for refusing special leave was that this case did not provide a suitable vehicle for reconsidering that issue because of the procedural course adopted of separate questions and did not otherwise raise a question of principle sufficient to warrant the grant of special leave. 20 One year later, the High Court decided that while D'Orta-Ekenaike should not be overturned, the scope of the immunity arising from that case should be limited so that it does not preclude the possibility of a successful claim against a lawyer in respect of negligent advice which contributes to the making of a voluntary agreement (such as to settle proceedings), irrespective of whether that agreement is embodied in consent orders: Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 331 ALR 1 at 4 [6]. 21 If the proceedings had been brought before Garling J or the appeal brought in the Court of Appeal after Attwells was handed down, the result might well have been different on the issue of immunity from suit (leaving the issue of alleged negligence still to be determined, which was by no means straightforward or assured of success, or perhaps even soundly based). However, the decision in Attwells avails the applicant nothing as the High Court had already refused her application for special leave to appeal. Accordingly the decision of the Court of Appeal upholding the decision of Garling J must stand, and as a consequence the costs order upon which the bankruptcy notice is based cannot be impugned.

Summary of litigation since the 2004 Consent Orders 22 As noted above, since 2008 the applicant has unsuccessfully sought to set aside the 2004 Consent Orders and in effect reopen her L&E Court proceedings. That process commenced with a notice of motion filed in the L&E Court on 23 May 2008. After a number of amendments, prior decisions and an appeal, that motion was finally dismissed on 9 July 2015 in Young v King (No 6) [2015] NSWLEC 111, discussed further below. 23 The basis of that motion was an assertion that the undertaking underpinning the 2004 Consent Orders had been deliberately brought about as a result of the conspiracy referred to above and in further detail below. 24 In Young v King (No 6), the applicant was ordered to pay the costs of the respondents to that motion (being her neighbours, not the present respondents), subject to a stay during which the parties were directed to file any notices of motion seeking a different costs order (at [237]). 25 On or about 6 August 2015, the applicant appealed against Young v King (No 6) and pending that appeal also sought costs not only against her neighbours but against 16 other respondents who were not parties to the proceedings or to the motion, including the present two respondents. The applicant (and her lawyers) treated the leave granted to file notices of motion to seek a different costs order as a result of the applicant's motion failing as a means of seeking to have all 18 respondents pay her costs of the entire L&E Court proceedings. This application was plainly beyond the evident purpose and intention of the stay of the costs orders made against the applicant by Sheahan J on 9 July 2015. 26 On 1 December 2015, the costs application made against eight of those additional sixteen respondents (not including the present respondents) was summarily dismissed, with costs: Young v King (No 8) [2015] NSWLEC 187. 27 On 19 February 2016, the costs application made against the neighbours and the other eight additional respondents, including the present respondents, was heard and dismissed: Young v King (No 9) [2016] NSWLEC 4. Sheahan J held at [93] of Young v King (No 9) that the application for costs was an abuse of process. This passage was referred to by the primary judge in these proceedings at [16]. 28 The applicant has filed an application for leave to appeal against both Young v King (No 6) and Young v King (No 9) in the Court of Appeal. The applicant's case before the primary judge and in this Court depends in part upon the success of those applications and any appeal if leave is granted. This is addressed in greater detail below. However, at this stage I observe that it is difficult to see how any competent lawyer could ever imagine that to respond to failing on a motion by seeking costs against persons who were not parties to that motion, or indeed to those proceedings, was appropriate in the circumstances of that case. That is not to say that third party costs orders can never be made, but rather no attempt appears ever to have been made to establish a proper factual or legal foundation for such an application.

The allegation of conspiracy or collusion to explain the applicant being misled by the undertaking to the L&E Court 29 If the applicant is correct about there being a material difference between the benefit the applicant thought that she would be getting and the benefit she would in fact be getting from the undertaking given by her neighbours (and I later assume that to be so), that might rationally be thought to have arisen due to error, misunderstanding, miscommunication, a canny or even deceptive opponent, or perhaps negligent advice on the effective settlement. However, in the proceedings in the Federal Circuit Court and in this Court, as well as elsewhere, the applicant did not accept any benign explanation for what happened. 30 The applicant relied, and continues to rely, on sinister and improper reasons for the terms of the undertaking given to the L&E Court in aid of the 2004 Consent Orders, motivated by malign intent on the part of everyone around her at the time. An affidavit by Mr Leonardo Carlo Muriniti, the principal of L.C. Muriniti & Associates, the solicitors on the record for the applicant in these proceedings and in the Court below, sworn 30 September 2015, filed in the Federal Circuit Court proceedings and admitted into evidence on this application deposes to the following - noting that most of what follows is in the format of assertion and conclusion: (1) there had been a long-standing history of the applicant's local council failing to address, or even acquiescing to, historic unauthorised building works taking place at the property next door, long before the present neighbours even became the owners; (2) the local council wanted to engage in a "cover up" of their historic "delinquent and corrupt conduct"; (3) in order to perpetuate this alleged cover up, the council "conscripted" the assistance of the applicant's own lawyers, and a wider "conspiracy" was hatched which also involved the neighbours' lawyers; (4) the present respondents, in their capacity as the expert engineer and his employer company retained by the applicant, contributed to this nefarious outcome by what the applicant's solicitor asserted was their "dishonest conduct" and "wilful disregard and breaches of … their obligations under the Expert Code of Conduct"; (5) the respondents were also "conscripted" and were "initially brought into the matter ostensibly as hydraulic experts on behalf of the applicant", but had only addressed ground water and not surface water - the explanation given by the present second respondent in the L&E Court that he had not been asked to consider surface water by the applicant's then solicitors was dismissed in this affidavit as "completely unsatisfactory"; (6) what was "now known" was that the respondents were working collaboratively with the council, the applicant's former lawyers, the neighbours' solicitors and a number of other experts to "create a false version of reality", apparently a reference to the undertaking given by the neighbours to the L&E Court and noted as part of the 2004 Consent Orders; and (7) the undertaking was the means by which the applicant would be left with an unacceptable outcome to which she would have purportedly acquiesced. 31 The reliance on a conspiracy was maintained in the written submissions for the applicant in this Court, which were signed by Mr Muriniti. Those written submissions contain references to the malign intention of the local council, and to the L&E Court proceedings being conducted so as to cause the applicant to think that she was getting the benefit of a solution to the drainage problem coming from her neighbours' land, but was in fact being burdened with that problem and being made to look like she was agreeing to that burden. The present respondents were said to have knowingly contributed to that false representation being made to the applicant, being an inference to be drawn by the terms of the undertaking and documents that were said to contradict those terms, with references made both to conspiracy and to misconduct on the part of the respondents. 32 In oral submissions for the applicant made by Mr Newell, a former barrister and now solicitor advocate employed by the firm of solicitors acting for the applicant, it was said that: (1) the "gravamen of her [the applicant's] allegations [was] that there was a conspiracy according to which the council intended to shift the burden of drainage to her land from that of [her neighbour's land]"; (2) "it was the misconduct of the respondents informed by the fact of a conspiracy, that is to say that what they did was deliberate as opposed to accidental"; (3) "The conspiracy is to deceive the applicant for the purpose of creating an obligation by which she has a drain on her side of the boundary"; (4) the conspirators were "Initially, the Kings [the neighbours] and the council", later joined by the applicant's former lawyers and the applicant's former experts [being the present respondents]; (5) the existence of the conspiracy was "all to be inferred from conduct"; (6) "It's a conspiracy if it was represented to be drain and retain and there was no such intention" and "if they all agreed to participate in that same outcome, that's the conspiracy. A single person's conduct in holding out to the court it's drain and retain or to the applicant in the court is serious misconduct if they intend something fundamentally different with different implications for her obligations and for the future of her house. If they work together to achieve that, then you have a conspiracy …"; (7) the applicant's case was "not a cause of action in conspiracy, it's a section 98 claim [referring to s 98 of the Civil Procedure Act 2005 (NSW) concerning the powers as to costs]. The evidence of conspiracy is simply the factual matrix in which the breach of the expert code of conduct occurs", but the breach of the code of conduct was part and parcel of the second respondent's component or contribution to the alleged conspiracy. 33 The oral submissions by Mr Newell for the applicant also referred to the terms of the undertaking, contemporaneous correspondence, certain affidavits and other documents, and parts of the transcript from the Federal Circuit Court hearing and the hearing before Sheahan J on 2 December 2015 in Young v King (No 9). 34 Mr Newell's argument about what the terms of the undertaking in fact meant, the work that was in fact required to be carried out to address the problem created by excavation, and the material difference between the two, entails understanding some convoluted, and indeed confusing, arguments advanced by him. Those arguments were disjointed, laced with technical terms and asserted regulatory and other legal and technical requirements, and were very difficult to follow, let alone understand. I do not consider that I need to become a de facto L&E Court judge and attempt to decide whether this threshold argument is correct or not. 35 For present purposes only, and because it does not affect the outcome of this application and therefore prejudice the respondents, I am prepared to assume in the applicant's favour that there is an arguable case that: (1) there was a material difference between the benefit that the applicant thought that her neighbours, acting upon their undertaking, would give her and what in fact that benefit would be; and (2) the applicant had been misled in that regard. 36 I am thereby giving the applicant the benefit of those parts only of the argument advanced by Mr Newell. However, I expressly do not take the next step of making any assumptions in the applicant's favour as to how or why such an assumed misleading of the applicant took place. That is largely because that critical part of the applicant's case depends on her establishing at least a prima facie or arguable case as to the existence of an alleged conspiracy (to which the respondents are alleged by her to have been either parties, or at least knowing contributors in deliberately assisting in the misleading of her by way of improper collusion). 37 It was accepted by Mr Newell that in order for the applicant to succeed in this Court, her conspiracy claim would have to be accepted, at least to a prima facie level. That was an unavoidable concession given the way in which the applicant's case was presented and argued both in the Federal Circuit Court and in this Court. As is apparent from the above summary of parts of the affidavit of Mr Muriniti, the substance of which was maintained in oral and written submissions, the applicant's case before the primary judge and before this Court relied upon the only reasonable explanation for the terms of the undertaking that she regarded not just as unsatisfactory, but fraudulent, being a collusion between not just her neighbours, their lawyers, and their expert witness in achieving an unduly favourable outcome against her, but also involving her own lawyers, her own expert witness and his employer company (who together are the present respondents), officers of the local council and others. That alleged collusion has been advanced on the applicant's behalf as being in the nature of a conspiracy to defraud her of what she was entitled to obtain from her success in the L&E Court proceedings. 38 During the course of the hearing of this application for an extension of time I repeatedly indicated to Mr Newell that he would need to satisfy me that there was a proper factual foundation for drawing the necessary inference as to the existence of the alleged conspiracy and that it was up to him on behalf of his client to make good that claim, at least to the point of it being an arguable or prima facie case. Mr Newell's argument seemed to be largely based upon an assertion that the series of events that had taken place leading up to the settlement of the L&E Court proceedings in 2004, including in particular the terms of the undertaking when compared to work that actually needed to be carried out, were so unreasonable and unacceptable and involved such a measure of departure between what the applicant thought she was settling the case for and what she was in fact settling the case for, that this could only be explained by a wide-ranging and extraordinary conspiracy or collusion. 39 Most alleged conspiracies (including this alleged conspiracy) be they civil or criminal, involve drawing an inference as to the existence of the required agreement from proof of things said and done by the participants, because express agreements are rare. In criminal proceedings these are commonly referred to as "overt acts", being the overt manifestations of the agreement from which its existence can be inferred. Most conspiracies are therefore established by circumstantial evidence from which the existence of the agreement constituting the conspiracy is inferred. All circumstantial cases, at least as to indispensable ultimate findings, require the person advancing them to exclude any reasonable alternative explanation for what has happened, because without that the necessary inference cannot safely be drawn. In the case of criminal proceedings, that is described as excluding any reasonable explanation, or hypothesis, consistent with innocence, but the concept is the same for civil conspiracies reliant on circumstantial evidence. In criminal proceedings, alternative reasonable explanations must be excluded beyond reasonable doubt and in civil proceedings on the balance of probabilities. 40 As stated above, any reasonable alternative explanation for the applicant being misled had to be excluded as a reasonable possibility by the applicant at the hearing of the proposed appeal. It may be that this does not need to be done at the extension of time stage, as opposed to at a final appeal, but this may still be relevant to the exercise of discretion because it goes to the question of the ultimate merit of the proposed appeal. For that reason I have used the term "arguable case" and not just "prima facie case", because pointing to a bare prima facie case alleging conspiracy may not suffice to support the grant of an extension of time. In the result, that distinction did not need to be decided because not even a prima facie case was established for the existence of a conspiracy, and thus there could not be any arguable case. 41 During oral submissions, in common with the prior written submissions signed by Mr Muriniti, Mr Newell devoted most of his time to the intricacies of the problems with the applicant's property caused by the excavation next door, why the works contemplated by the undertaking were incapable of remedying those problems, and the disparate things that were said by various people on that topic at the time and since then. It seems that this was done in order to prove the existence of a conspiracy by reverse engineering the existence of that conspiracy as being the only explanation for this disparity. Repeated requests made to Mr Newell to identify any basis for a conspiracy beyond this were to no avail. The case for a conspiracy at no time rose higher than an assertion that collusion in the nature of a conspiracy was the only explanation for what had happened. It never got close to even the barest of prima facie cases, and certainly never came close to excluding a range of possible innocent explanations, such as mistake or miscommunication, or even adverse conduct by the neighbours and their advisors independently, relevantly, of the respondents. 42 The applicant, both in this Court and before the primary judge, has therefore failed at the first hurdle of showing any proper basis for inferring the existence of the conspiracy that she relied upon. That is so both to ground the costs application she needs to succeed in order to have a counter-claim, set-off or cross demand equal to or exceeding the costs order upon which the bankruptcy notice was based, and, as a practical matter, to ground the abuse of process argument based on the alleged collateral purposes behind the bankruptcy notice. The applicant did not even get to the point of excluding other reasonable explanations for how the undertaking underpinning the 2004 Consent Orders was arrived at so as to mislead her as these were not even addressed, let alone displaced. There has not been placed before me a single scrap of evidence capable of demonstrating the existence of a conspiracy, in the sense of supporting the reading of anything extra into the face of the events, documents and transactions to which I was referred, let alone one to which the present respondents were either a party, or in some way accessories. Indeed the allegation of conspiracy or collusion does not appear to have any factual foundation at all. 43 It simply will not do for any party in litigation to make such serious allegations upon nothing more substantial than a bare assertion that this is the only possible explanation for what has transpired. It is no answer to say, as Mr Newell did, that the alleged conspiracy was only the factual matrix relied upon to ground the applicant's entitlement to costs, so as to establish a prima facie or arguable case for the likely existence of a counter-claim, set-off or cross demand equal to or exceeding the costs order upon which the bankruptcy notice was based. 44 The applicant in substance has relied upon the baseless conspiracy theory referred to above to explain all that has gone wrong for her in the course of proceedings in the L&E Court that commenced in 2003 and later in the Supreme Court and Court of Appeal. That conspiracy theory continues to underpin the basis for her assertion that the respondents, who originally were experts retained by her, should have paid their share of her costs arising out of her entire litigation history in the L&E Court, following her unsuccessful application to set aside the 2004 Consent Orders. The conspiracy theory also underpins the basis for the assertion that the bankruptcy notice is an abuse of process, and for each of the particulars relied upon for the asserted improper collateral purpose in having the bankruptcy notice issue. 45 The success of the application for an extension of time to bring an appeal against the decision of the primary judge ultimately depended on demonstrating that such a conspiracy exists, and then in demonstrating how it entitles the applicant to the relief she now seeks in this Court. The applicant's central problem is that the conspiracy she alleges has never risen above a theory, and a mostly fanciful theory at that. Unfortunately, the applicant's lawyers have fuelled this conspiracy theory and appear to be resolutely convinced of its existence as the only explanation they can find for their lack of success in acting for the applicant over many years. 46 The balance of these reasons proceed on the basis of the finding that I have made that no prima facie or arguable case has been established for the existence of the conspiracy upon which the applicant relies, nor of any like impropriety by way of collusion or otherwise on the part of the respondents in contributing to the process by which the undertaking, including its terms, came to be given by the applicant's neighbours as part of the making of the 2004 Consent Orders. It follows that I have independently reached the same conclusion as the primary judge that no conspiracy has been proven.

Before the Federal Circuit Court 47 The grounds for the application to set aside the bankruptcy notice before the primary judge may be summarised as follows: (1) an asserted counter-claim, set-off or cross demand equal to or exceeding the costs order upon which the bankruptcy notice was based, relying on s 40(1)(g) of the Bankruptcy Act 1966 (Cth) - this was in substance a claim that the pending appeal to the Court of Appeal referred to above would be likely to be successful in overturning the refusal of a costs application in the L&E Court in Young v King (No 9); (grounds 1 and 2 before the primary judge) and further or in the alternative (2) an assertion that the bankruptcy notice itself was an abuse of process served by the respondents for any of three alleged collateral purposes, being to: (a) prevent the applicant from prosecuting proceedings to set aside the 2004 Consent Orders; (b) prevent exposure of misconduct engaged in by the respondents and others to procure the 2004 Consent Orders, including in particular misconduct involving deliberate breaches of obligations under the applicable expert code of conduct; and (c) facilitate or mandate the sale of the applicant's home with a view to pre-empting access to evidence of the alleged misconduct. (ground 3 before the primary judge) 48 As to grounds 1 and 2 asserting an entitlement to costs in the L&E Court proceedings, the primary judge summarised the applicant's case as being that the respondents (among others) caused her to incur costs in the application to set aside the 2004 Consent Orders and beyond, which were asserted, without evidence, to be $3 million. The asserted basis for the respondents (among others) causing these costs to be incurred was that they, together with some or all of the council staff, her former solicitors and counsel, and the engineers retained by her neighbours were all parties to a conspiracy to defraud her by ensuring a drain to draw water off her neighbours' land was placed on her land. As noted above, his Honour agreed with Sheahan J's conclusion in Young v King (No 9) that the application for costs was an abuse of process, finding that there was no basis whatever for the allegation of conspiracy, and concluding on this point that such a conspiracy was unarguable and should never have been put by members of the legal profession. 49 A further argument before the primary judge (going beyond the written grounds) that Sheahan J gave inadequate reasons was dismissed by his Honour as being plainly wrong and in any event not a basis for setting aside the bankruptcy notice. His Honour found that there were in any event strong discretionary grounds upon which the Court of Appeal might refuse leave to appeal, including the fact that the interlocutory judgment concerned an application for costs against non-parties in long drawn out and multifaceted proceedings. Moreover, his Honour reasoned, even if leave were to be granted and the appeal were to succeed, that remained an insufficient basis for setting aside the bankruptcy notice because the applicant's costs claim was for joint and several liability against many parties, whereas the judgment of Garling J in which costs were awarded to the respondents was in favour of them alone. 50 The primary judge's final basis for refusing to set aside the bankruptcy notice was that there was no admissible evidence that established to his Honour's satisfaction that any prospective costs order that the applicant might obtain against the respondents would, as required, equal or exceed the amount of the costs order in the respondents' favour. (The primary judge only made reference to "exceed", but in context it is clear that his Honour was aware that the correct test was "equal or exceed", and that this was in the nature of a mere slip, rather than an error.) 51 The primary judge concluded by characterising the applicant's case as ill-conceived, ill-prepared and poorly presented. Rather than being complicated and difficult as asserted, the primary judge stated that the matter was simple as there was no evidence of a conspiracy of any sort as relied upon by the applicant and no basis whatsoever for setting aside the bankruptcy notice.

The evidence in this Court 52 For completeness, it is desirable to refer in further detail to the case that the applicant sought to advance in this Court. The applicant relied upon three lever arch folders of documents, comprising: (1) A folder containing: (a) the application; (b) grounds; (c) grounds of opposition; (d) submissions; (e) transcripts in the Federal Circuit Court; and (f) exhibit MKT-1 to the affidavit of Michael Keith Thornell of 8 October 2015; (2) Two folders containing: (a) the written undertaking dated 17 February 2002 and given by the applicant's neighbours in the course of the settlement of L&E Court proceedings - the applicant's later dissatisfaction with that undertaking, and how it came into existence, is the wellspring of many years of litigation since then; (b) the exhibits that were before the primary judge, being documents concerning or arising out of L&E Court proceedings, or transcript of those proceedings and including an affidavit of Dr Stephen John Perrens sworn 5 December 2008; (c) an affidavit of John (Jack) Thomas Davies sworn 1 March 2016 concerning expert conclusions reached in the course of the L&E Court proceedings, and expressing contrary views; (d) an affidavit of Warwick Davies sworn 23 May 2011 again concerning expert conclusions reached in the course of the L&E Court proceedings, and expressing contrary views; and (e) an affidavit of the applicant's solicitor, Leonardo Carlo Muriniti sworn 30 September 2015. 53 The parties were informed that the Court would not be reading through three volumes of material to work out what was or was not relevant, but rather would only rely on those parts that the Court was taken to. Mr Newell confirmed that the applicant's case was restricted to what he took me to during the hearing and the documents in his written submissions. I have considered all of the materials that I was taken to by Mr Newell during oral submissions. I have, to a limited extent, gone beyond the self-imposed restriction and perused the material before the Court and read some parts in greater detail in order to better understand aspects of the applicant's case, most particularly the affidavit of Mr Muriniti. 54 The applicant also relied upon written and oral submissions, which were noteworthy in particular for taking this Court to very little of the material listed above, and being largely directed to technical matters and inferences to be drawn from them. 55 The respondent relied upon clear and concise submissions, both orally and in writing. In short, those submissions assert, correctly in my view, the lack of merit in every aspect of the case the applicant now seeks to advance on appeal to this Court.

Grounds advanced in this Court 56 In this Court, the applicant relies upon various asserted errors on the part of the primary judge in relation to both the process in the Federal Circuit Court hearing and the outcome by which her application to set aside the bankruptcy notice was dismissed. Those grounds are as follows, as set out in both the application for an extension of time and in the draft notice of appeal (as per original save for minor formatting or typographical differences between the application for an extension of time and draft notice of appeal): (1) The learned trial judge erred in not considering or determining the Applicant's claim that the Respondents' Bankruptcy Notice was an abuse of process by reason of a collateral purpose. (2) The learned trial judge erred in holding that there was no evidence whatever of the underlying conspiracy. (3) Further, or in the alternative, the learned trial judge fell into error in that he did not have regard to or consider the submissions of the Applicant and the considerable evidence on which those submissions were based concerning the underlying conspiracy. (4) By reason of the matters in (3) and generally the learned trial judge erred in that [sic] omitted to give any or any adequate reasons for his conclusion that there was no evidence of the "underlying conspiracy". (5) The learned trial judge erred in that he did not consider or deal with the Applicant's submissions concerning her prospects of appeal from the decisions in Young v King No. 6 and [sic] ("No. 6") and Young v King No. 9 ("No. 9") by reason of: (a) The matters referred to in the paragraphs 2, 3 and 4 above; and, (b) The evidence of material impact upon the decisions of Justice Sheahan in Young v King No. 6 and Young v King No. 9 by reason of the rejection of the tender in that case of Stephen Perrens ("Perrens") and Warwick Davies ("Davies") as witnesses. (6) The learned trial judge was in error in holding that that [sic] Justice Sheahan gave adequate reasons for the purpose of his judgment in No. 6. (7) The learned trial judge was in error in holding that Sheahan J. did not give inadequate reasons or that such reasons would not be a basis to set aside a bankruptcy notice in that he misapprehended the Applicant's case which was based as well upon the Applicant's good prospects of appeal by reason of the erroneous rejection of the tender of Perrens and Davies as witnesses in No. 6. (8) The learned trial judge erred in holding that the fact that there are strong discretionary grounds for refusing leave to appeal those being that it concerns an application for costs in long drawn out and multifaceted proceedings was a ground to deny relief under section 40(1)(g) Bankruptcy Act 1966 (Cth). (9) The learned trial judge erred in not having regard to the fact that the matter concerns an application for costs in long drawn out and multifaceted proceedings for the purpose of considering the Applicant's allegation of collateral purpose. (10) By reason of the matters in paragraphs 2 to 8 above the learned trial judge erred in holding (as he impliedly did) that the Applicant had not established a prima facie case as required by section 40(1)(g) Bankruptcy Act 1966 (Cth). (11) The learned trial judge erred in that he held that the liability of the Costs Respondents alleged by the Applicant was a joint and several liability ipso facto disentitling the Applicant's claim under section 40(1)(g) Bankruptcy Act 1966 (Cth). (12) The learned trial judge erred in holding that there was no admissible evidence that the award of costs in favour of the Applicant against the Respondents would exceed the amount of the Bankruptcy Notice. (13) The learned trial judge erred in denying natural justice in that he held that the costs application in No. 9 was an abuse of process having informed the Applicant's legal representative that there was no need to hear him on the question of "abuse of process". (14) The conduct of the learned trial judge before and during the hearing and by reason of the terms of his reasons for judgment exhibited a basis for a reasonable apprehension of bias and/or an inference of actual bias. (15) The learned trial judge erred in that he wrongly rejected the tender of: (a) The affidavit of Leonardo Carlo Muriniti sworn 15 March 2016. (b) The affidavit of Jack Davies sworn 8 October 2015. (c) The affidavit of Warwick Davies sworn 23 May 2011. 57 Rather than deal with the above grounds in the order in which they appear, I will instead address the first ground last. In doing so, I note that Mr Newell did not address, either orally or in writing, most of the parallel grounds for an extension of time and draft grounds of appeal, focussing instead on showing that the applicant was misled about the terms of the undertaking (which I have assumed to be so for the purposes of this application), and seeking to show that this situation was arrived at by reason of a conspiracy or like collusion to deceive her, involving the respondents (which I have rejected as not having been established even to the level of a prima facie or arguable case).

Grounds 2 to 5 - grounds expressly referring to a conspiracy 58 The effect of grounds 2 and 4 was that the primary judge had an obligation to go through all the material presented and give reasons as to why that did not constitute evidence of a conspiracy, and that failure to do this constituted an error of law. That approach, and accordingly grounds 2 and 4, ignores the concept of onus. If, as here, a state of affairs is relied upon by a party bringing a proceeding, by first principles that party is required to adduce and then point to evidence to demonstrate that the asserted state of affairs exists, even if only at a prima facie or arguable case level in deciding whether an appeal on the point should be permitted to proceed out of time. A court has no role or obligation to show why there is no or insufficient evidence of that state of affairs existing, unless some process of weighing or evaluation of competing evidence is involved. Here there was no such process required because, as the primary judge correctly concluded, there was simply no evidence whatsoever of a conspiracy, in the sense of there being nothing that was pointed to that was capable of supporting any such inference. 59 Grounds 2 and 4 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon them in a substantive appeal. 60 Grounds 3 and 5 assert that the primary judge failed to have regard to the submissions and evidence concerning the asserted conspiracy, and failed to consider or deal with the applicant's submissions concerning her prospects of [successfully] appealing from Young v King (No 6) and Young v King (No 9). On 16 March 2016, his Honour heard the application (having heard an interlocutory application about further evidence on 4 March 2016). At the hearing on 16 March 2016, his Honour had written submissions from the parties. On 29 April 2016, some six weeks later, his Honour ordered the application be dismissed and delivered reasons. Those reasons were concise but adequate for the task at hand. A judge does not necessarily have to deal, letter and verse, with the entirety of the case that is presented, especially, as here, when there is a threshold point relied upon, and that point has not been sustained. It follows that there is no foundation for the suggestion that his Honour did not have regard to the submissions and evidence before him. 61 Grounds 3 and 5 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon them in a substantive appeal. 62 Although the primary judge did not provide any detailed reasons for concluding that the applicant's prospects of success in the Court of Appeal were poor (a matter which is also relevant to grounds 7 and 8 which are addressed below), it is appropriate that I do so. 63 The application to the Court of Appeal for leave to appeal against the decision of Sheahan J in Young v King (No 6) in relation to the dismissal of the notice of motion to set aside the 2004 Consent Orders has, at best, very poor prospects of success. Even if that is not correct, the most that can come out of that appeal is a reinstatement of the L&E Court proceedings as between the applicant and her neighbours. 64 The failed application to seek costs of the L&E Court proceeding at large as against non-parties, including the present respondents, decided by Young v King (No 9) was hopelessly misconceived and doomed to failure. I can see no realistic possibility of the applicant's Court of Appeal proceedings in relation to Young v King (No 9) succeeding. I can discern no error on the part of the primary judge in forming the same view. That is because the suggested counter-claim, set-off or cross demand relied upon the applicant succeeding in convincing the Court of Appeal that: (1) she should have been granted a costs order in her favour following her failed application for interlocutory relief, without being able to point to any other outcome in her favour in the L&E Court proceedings to ground an application for costs; and (2) the costs order should have extended beyond the parties to the interlocutory application to the respondents (and to 16 others), despite them not having been parties to the failed application or to the prior proceedings in the L&E Court, and despite the L&E Court judge finding that the costs application was an abuse of process. 65 Success on the first limb in the Court of Appeal would be difficult in the extreme, although not conceptually impossible. It is not unheard of, even without an offer of compromise or the like, for the unsuccessful party to litigation nonetheless to obtain a favourable costs order. I hasten to add that there was nothing to indicate that this was such a case, let alone sufficient to warrant setting aside a bankruptcy notice. In fact, the applicant's case was even weaker than that, because the second limb was fanciful and ludicrous, relying as it did on establishing an entitlement to an asserted $3 million in costs based upon a wildly improbable conspiracy, without any precise expression of its terms and formation, let alone evidence. There is no foundation that I can see for any such entitlement to be established, let alone to the degree required to set aside a bankruptcy notice by reason of a counter-claim, set-off or cross demand equal to or exceeding the costs order upon which the bankruptcy notice was based. As the applicant had to succeed on both limbs, and neither had any proper foundation, this was a hopeless basis for seeking to set aside the bankruptcy notice.

Grounds 6 to 9 - grounds referring to the decision of Sheahan J in Young v King (No 6) and the appeal from that decision 66 Each of grounds 6 to 9 rely upon asserted errors in the treatment by the primary judge of either the judgment of Sheahan J in Young v King (No 6), or in the assessment of the prospects of the Court of Appeal granting leave to appeal from that decision. Each of those asserted grounds, which were not developed or addressed in either written or oral submissions on behalf of the applicant, are devoid of merit. In particular: (1) it was open to the primary judge to conclude that Sheahan J's reasons were adequate, but even if that was not so, no basis has been advanced for permitting an appeal to be conducted on such a finding which could not of itself be a basis for overturning the primary judge's orders or any part of his Honour's substantive reasons (ground 6); (2) the primary judge was not obliged to find that Sheahan J's reasons were inadequate, nor to consider whether the applicant's appeal in that case might succeed on a procedural point concerning the adducing of evidence, including the evidence of Dr Stephen John Perrens and Warwick Davies, especially in light of his Honour independently not being satisfied that there was any evidence of the conspiracy upon which the applicant relied in the Federal Circuit Court (ground 7); (3) it was open to the primary judge to conclude that there were strong discretionary reasons for the Court of Appeal to refuse leave to appeal against an unsuccessful application for costs, especially in protracted proceedings (ground 8); and (4) there is no apparent reason why the primary judge had to have regard to any particular aspect of the application for costs upon which the applicant relied - it was sufficient for his Honour to identify why that application for costs had poor prospects both at first instance and on appeal (ground 9). 67 Each of Grounds 6 to 9 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon them in a substantive appeal.

Ground 10 - error by reason of grounds 2 to 8 in impliedly holding that no prima facie case had been established for the purposes of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) 68 As each of grounds 2 to 8 in support of the extension of time application must fail, so too must ground 10. 69 More directly, in any event, the primary judge was correct in implicitly finding that no prima facie case had been established for the asserted counter-claim, set-off or cross demand equal to or exceeding the costs order upon which the bankruptcy notice was based, relying on s 40(1)(g) of the Bankruptcy Act 1966 (Cth). As the reasons above should make abundantly clear, I am satisfied in my own right that there is no proper basis for any such counter-claim, set-off or cross demand. 70 In light of the findings I have made about no prima facie or arguable cast for the existence of conspiracy or like collusion being established, and the lack of reasonable prospects of overturning the refusal of the costs application in Young v King (No 6) and Young v King (No 9), the primary judge would plainly have erred in setting aside the bankruptcy notice upon the basis of the asserted counter-claim, set-off or cross demand. 71 Ground 10 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 11 - asserted error about the bankruptcy notice costs order as against the applicant's alleged costs entitlement 72 This ground fails at a more fundamental level. Contrary to this ground, the primary judge did not hold, as the ground states, that "the liability of the Costs Respondents alleged by the Applicant was a joint and several liability ipso facto disentitling the Applicant's claim under section 40(1)(g) Bankruptcy Act 1966 (Cth)". What his Honour did decide is that even if, contrary to his primary finding, the applicant succeeded in the Court of Appeal in relation to the costs order she sought against, inter alia, the present respondents, that was a joint and several responsibility against many parties, whereas the costs judgment upon which the bankruptcy notice was based was in favour of only the present respondents. His Honour found that even such a costs order in the applicant's favour would be, in this case, insufficient reason to justify setting aside the bankruptcy notice. I can see no error in his Honour's reasoning or conclusion. 73 Ground 11 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 12 - error in finding no admissible evidence that the [claimed] award of costs in favour of the applicant against the respondents would exceed the amount of the bankruptcy notice 74 Again, this ground misstates what his Honour in fact found. His Honour said that there was no admissible evidence that established to his Honour's satisfaction that any award of costs in favour of the applicant against the respondents in the L&E Court would exceed the amount of the bankruptcy notice. His Honour noted that no costs agreement was tendered and no time sheets or tax invoices were relied upon, noting also that the asserted overall quantum of $3 million of costs owing to the applicant's lawyers was remarkable. 75 I endorse the primary judge's conclusion, not least because the situation was not remedied in this Court. There was no basis at all, let alone any proper basis, for being able to ascertain at all, let alone with any degree of precision, what the quantum of costs liability of the respondents to the applicant might be. Even that conclusion assumes that there would likely be any entitlement to a costs order against the respondents at all, which I consider to be at best extremely remote. 76 Ground 12 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 13 - denial of natural justice [procedural fairness] in holding that the application in Young v King (No 9) was an abuse of process having informed the applicant's legal representative that there was no need to hear him on the question of "abuse of process" 77 This ground also misrepresents the effect of the primary judge's reasons. His Honour did not himself find that the application in Young v King (No 9) was an abuse of process, but rather did no more than record in his reasons the fact that Sheahan J had made such a finding in that case, albeit that his Honour agreed with that finding. In any event, the primary judge said that he did not need to hear the applicant about abuse of process in the course of argument as to whether certain affidavit evidence (an affidavit of John (Jack) Davies of 8 October 2015) should be allowed to be read, not on the question of abuse of process at large. A ruling on that evidence immediately followed, without any reliance on abuse of process, such that there was no denial of procedural fairness. The evidence was not permitted to be read because it was hearsay and did not meet the requirements for the expert evidence exception to apply to prevent it from being inadmissible opinion evidence. 78 Ground 13 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 14 - alleged apprehended bias or actual bias on the part of the primary judge 79 Recent cases on bias such as AXQ15 v Minister for Immigration and Border Protection [2016] FCAFC 73 at [31]-[32], quoting from both ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36] and Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493 [13], and other well-established authority cited in ALA15, demonstrate a need for an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits. Clear and distinct proof of such a serious allegation is needed. 80 Merely pointing to prior adverse conclusions or comments by a judge will not suffice to establish even apprehended bias, let alone actual bias. Yet this ground, as argued very briefly in writing and not at all orally, goes no further than baldly asserting "palpable bias" on the part of the primary judge because doubts were raised by his Honour as to how any solicitor could argue for conspiracy in this case. A further and even less tenable complaint is made about the primary judge accepting statements made in judgments by Sheahan J as evidence of bias. It is perhaps understandable that sometimes a lay person might blame a loss in litigation upon bias as an emotional reaction, but no such latitude should be afforded to legal practitioners. Such an allegation should not be made at all by a lawyer without a proper basis. As it turns out, his Honour was entirely justified in questioning how a lawyer could argue for a conspiracy in this case. 81 The applicant's solicitors' written submissions on this point, and presumably in drafting this ground, are beneath the standard that any court is entitled to expect of a legal practitioner. 82 Ground 14 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 15 - rejection of affidavit evidence of Leonardo Carlo Muriniti sworn 15 March 2016, John (Jack) Thomas Davies sworn 8 October 2015 and Warwick Davies sworn 23 May 2011 83 This ground was not addressed in the written submissions, nor orally. I received into evidence by tender the affidavit of Warwick Davies sworn 23 May 2011, which is apparently the same as the affidavit listed in this ground. I received into evidence by way of tender different affidavits to the other two described in this ground, being those of Leonardo Carlo Muriniti sworn 30 September 2015 (not 15 March 2016) and of John (Jack) Thomas Davies sworn 1 March 2016 (not 8 October 2015). 84 The rejection of the affidavit of John (Jack) Davies of 8 October 2015 is referred to above in relation to ground 13. Having reviewed the transcript in the Federal Circuit Court I can see no error in the reasoning of his Honour in rejecting that affidavit, albeit that I have not been provided with, let alone taken to that affidavit, or given the benefit of any argument as to why his Honour erred. 85 The primary judge gave ex tempore reasons for refusing leave to file the affidavit of Mr Muriniti sworn 15 March 2016. Those reasons were not provided to this Court and, as noted above, were not addressed in any event in written or oral submissions. Nor was that affidavit placed before this Court. In those circumstances the applicant has simply failed to advance any evidentiary or legal case for this part of this ground. 86 The tender of the affidavit of Warwick Davies sworn 23 May 2011, sworn for the purposes of L&E Court proceedings, was objected to by the respondent before the primary judge upon the basis that it was rejected by Sheahan J in the course of the case which resulted in Young v King (No 9). However, that objection was overridden and the tender allowed by the primary judge, save for paragraph 20 which his Honour rejected. I have read the transcript of his Honour's exchange with counsel for the applicant in relation to paragraph 20 and cannot see any error in the way his Honour dealt with the rejection. Accordingly, this aspect of this ground is baseless because most of the evidence was not rejected, and the part that was rejected was not rejected in an impermissible way. 87 Ground 15 in support of the extension of time application must fail, and further would enjoy no reasonable prospect of success in this Court if leave were granted to rely upon it in a substantive appeal.

Ground 1 - asserted error in not addressing ground 3 before the primary judge 88 The applicant asserts that the bankruptcy notice was itself an abuse of process because it was served by the respondents for the collateral purposes of: (1) preventing the applicant from prosecuting her proceedings to set aside the 2004 Consent Orders in the L&E Court; (2) preventing the exposure of the respondents' misconduct and the misconduct of others, with particular reference to alleged deliberate breaches of the obligations under the expert Code of Conduct; and (3) facilitating or mandating the sale of the applicant's home with a view to pre-empting access to evidence of the alleged misconduct. 89 While it is true that the primary judge did not in terms refer to or expressly deal with ground 3 and those particulars that were before his Honour, in my view they are a manifestation of the conspiracy alleged and relied upon by the applicant. They would have no foundation and no life without that conspiracy being established, because the asserted factual substratum would not exist. To that extent, the primary judge did deal with that claim in dismissing the conspiracy upon which it was based. In case that characterisation is not properly available I will in any event address that ground myself. 90 The primary judge would plainly have erred in acceding to ground 3 before his Honour. That is because the suggested abuse of process on the part of the respondents in causing the bankruptcy notice to issue was based on supposition and assertion, not any proven fact capable of establishing any purpose other than enforcement of the debt upon which it was based, let alone the Machiavellian collateral purposes alleged. 91 As noted above, the L&E Court judge found that the unsuccessful application for costs which gave rise to the costs order in favour of the respondents was itself found to be an abuse of process. A court would need very clear and compelling evidence that a bankruptcy notice seeking to enforce a costs debt incurred in such circumstances had any collateral purpose at all, even if the perhaps predictable outcomes relied upon might eventuate. That is, if the bankruptcy notice was not satisfied, and the applicant was made a bankrupt, she could indeed be prevented from continuing her litigation; she might well be prevented from using the courts to continue her campaign against the respondents and others; and she may have her house sold to pay her debts. However, if any of these things happened, that would be no more than the ordinary and natural consequences of bankruptcy due to being unwilling or unable to pay the debt, and would not of itself establish any improper motive. 92 Rather than there being any compelling evidence in support of the alleged abuse of process in having the bankruptcy notice issue, including the alleged improper collateral purposes, there was no proper evidentiary foundation established for any of this. What might objectively happen in the event of bankruptcy of the applicant was sought to be reverse engineered into being the purpose of having the bankruptcy notice issued, rather than the simple, ordinary and logical purpose of issuing the bankruptcy notice to have the debt paid.

Comment on legal representation 93 The asserted conspiracy underlying this litany of litigation has never risen above a conspiracy theory, in the pejorative sense in which that term is used in common parlance. It is unfortunate, but perhaps understandable, that a lay person seeking to explain to themselves and those closest to them an undesirable outcome might assume the worst and, by a process of reverse engineering, conclude that this is the only explanation for what has happened. In the hands of a legal practitioner such fevered imaginings are unacceptable. Courts are entitled to expect that lawyers acting for litigants will remain dispassionate, and examine what is before them calmly and rationally and have proper regard to what can be proved and not merely asserted. Of equal importance, members of the public are also entitled to expect those qualities of their lawyers. 94 The conduct of the applicant's solicitors in this matter can only be described as reprehensible. The way in which the application has been brought in the Federal Circuit Court and in this Court is a matter that should be considered by the appropriate regulatory authority for the legal profession. Due regard may also need to be had to the conduct of the litigation in the L&E Court, the Supreme Court and the Court of Appeal that preceded the applications before the primary judge and before me. I will therefore direct the District Registrar of this Court to provide a copy of these reasons to the Office of the Legal Services Commissioner.

Conclusion 95 Having failed on every ground, the application for an extension of time is dismissed. The applicant must pay the respondents' costs as agreed or assessed. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.