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D v Australian Financial Security Authority

D v Australian Financial Security Authority

Case [2017] NSWCA 50 21 March 2017

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50
Hearing dates: 10 March 2017
Decision date: 21 March 2017
Before: Ward JA; Sackville AJA
Decision:
1. Leave to appeal from the decision of Mahony SC DCJ is refused with costs.
2. Summons seeking leave to appeal from the decision of Sidis ADCJ be dismissed with costs.

Catchwords: PROCEDURE – application for leave to appeal against interlocutory decisions made in District Court of NSW – refusal of application by self-represented litigant for leave to issue a subpoena – limitations on grant of leave to self-represented applicant to amend pleadings – Leave to appeal refused in respect of both impugned decisions
Legislation Cited: Family Law Act 1975 (Cth), s 121
Privacy Act 1988 (Cth), s 25
Uniform Civil Procedure Rules 2005 (NSW), rr 7.3 14.28, 14.30
Cases Cited: Attorney General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
House v The King (1936) 55 CLR 499; [1936] HCA 40
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), ss 6(1), 6(3)
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303
Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52
Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397
Portal Software v Bodsworth [2005] NSWSC 1115
Re Will of Gilbert (1946) 46 SR (NSW) 318
The Age Company Ltd v Liu [2013] NSWCA 26
Category: Principal judgment
Parties: D (Applicant)
Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia (First Respondent)
Philip Madden (Second Respondent)
Tara Czinner (Third Respondent)
Sally Susan Nash (Fourth Respondent)
The Registrar General of New South Wales (Fifth Respondent)
Australian Restructuring Insolvency & Turnaround Association (Sixth Respondent)
Savice Pty Limited trading as LJ Hooker, Picton (Seventh Respondent)
Representation:
Counsel:
Applicant in person
Ms TA Berberian (First, Second and Third Respondents)
Ms M Avenell (Fourth Respondent)
H Altan (Fifth Respondent)
Solicitors:
HWL Ebsworth Lawyers (First, Second and Third Respondents)
Mullane and Lindsay (Fourth respondent)
Ms F Harris, Department of Finance & Services (Land & Property Information) (Fifth respondent)

File Number(s): 2016/227940; 2016/277430
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

01 July 2016

Before:

Mahony SC DCJ; Sidis ADCJ

File Number(s):

2015/00124114

Judgment

THE COURT: The applicant seeks leave to appeal from separate interlocutory decisions made in the course of the same proceedings commenced by her in the District Court of New South Wales. The applicant is referred to by pseudonym on the coversheet of this judgment, since the gravamen of the underlying dispute relates to her identification in public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D v Australian Financial Security Authority

Details

AGLC: D v Australian Financial Security Authority [2017] NSWCA 50
Case: [2017] NSWCA 50
Decision Date: 21 March 2017

CaseChat Overview and Summary

The applicant, D, sought leave to appeal against two interlocutory decisions made in the District Court of New South Wales. The first decision, made by Mahony SC DCJ, refused D's application for leave to issue a subpoena. The second decision, made by Sidis ADCJ, refused D's application for leave to amend his pleadings. D was self-represented in the District Court proceedings and in his applications for leave to appeal.

The Court of Appeal was required to determine whether to grant D leave to appeal against both the refusal to allow the issuance of a subpoena and the refusal to allow amendment of pleadings. In essence, the court had to consider whether there were sufficient grounds to interfere with the discretionary decisions of the District Court judges.

Ward JA and Sackville AJA refused leave to appeal in respect of both impugned decisions. The court applied the principles governing appeals against interlocutory decisions, particularly where leave to appeal is required. The court considered the limitations on granting leave to a self-represented litigant to amend pleadings, and the general approach to granting leave to appeal against discretionary decisions.

Leave to appeal from the decision of Mahony SC DCJ was refused with costs. The summons seeking leave to appeal from the decision of Sidis ADCJ was dismissed with costs.

Orders

Orders of the court

1. Leave to appeal from the decision of Mahony SC DCJ is refused with costs.

2. Summons seeking leave to appeal from the decision of Sidis ADCJ be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

D v Australian Financial Security Authority [2017] NSWCA 50

Most Recent Citation

Jong Mi Hong v Blacktown City Council [2021] NSWLEC 38

Cases citing this decision · 11 of 11 shown

Vang & Chung (No 6)
[2024] FedCFamC1F 604 Para 7

…0 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw…
Jingyi & Chao (No 5)
[2024] FedCFamC1F 473 Para 9

…at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw l…
Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd
[2022] NSWCA 206 Para 49

…ere is a high hurdle for an applicant for leave: D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [49] per Ward JA and Sackville AJA.…
Vader & Dantes
[2022] FedCFamC1F 613 Para 21

…at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw l…
Kehoe & Seden (No 2)
[2022] FedCFamC1F 346 Para 16

…rance Australia Ltd (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something co…
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council
[2021] NSWCA 145 Para 49

…NSWCA 303 at [12] ( Lowery ); and D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56] (“sufficient apparent connection”).…
Jong Mi Hong v Blacktown City Council
[2021] NSWLEC 38 Para 70

…ue to justify their production and inspection ( D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56]). This conclusion is reinforced when regard is had to the schedule to the Hong subpoena in answer to which these documents were produced. The…
DOQ17 v Australian Financial Security Authority
[2020] FCAFC 219 Para 5

…earlier stage of the District Court proceedings: D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50. These passages summarise the background to the summary dismissal application to which the judgment of Taylor SC DCJ related: 14. Before the applican…
DOQ17 v Australian Financial Security Authority (No 3)
[2019] FCA 1488 Para 13

…niently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 ( D v AFS (NSWCA) ) as follows: 6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the…
DOQ17 v Australian Financial Security Authority
[2018] FCA 561 Para 20

…niently summarised by Ward JA and Sackville AJA on an application for leave to appeal by the applicant in D v Australian Financial Security Authority [2017] NSWCA 50 ( D v AFS (NSWCA) ) as follows: 6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the…
B1 v B2
[2017] NSWDC 252 Para 18

…ry v Chaudhary [2017] NSWCA 222 and, where a transfer for a “special Federal matter” is involved, see D v Australian Financial Security Authority [2017] NSWCA 50 at [72] – [73]) as well as injunctive relief. The District Court has no similar power, but does possess ancillary powers to prohibit the continuing publi…

View all 11 citing cases →

Cases cited in this decision · 11 of 11 shown

Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd
[2015] NSWCA 397

…303 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Portal Software v Bodsworth [2005] NSWSC 1115 Re Will of Gilbert (1946) 46 SR (NSW) 318 The Age Company Ltd v Liu [2013] NSWCA 26 Category: Principal judgmen…
Lowery v Insurance Australia Ltd
[2015] NSWCA 303 Para 47

…the notice to produce and subpoena were liable to be set aside on that basis (see Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at 329-330; [2015] NSWCA 303 at [42] (Emmett JA) (Lowery); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [13]-[21]; [28] (Tobias AJA) (ICAP Australi…
Dank v Cronulla Sutherland District Rugby League Football Club Ltd
[2014] NSWCA 288

…neral of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 House v The King (1936) 55 CLR 499; [1936] HCA 40 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Jurisdiction of Courts (Cross Ve…
The Age Company Ltd v Liu
[2013] NSWCA 26 Para 50

…In The Age Company Ltd v Liu [2013] NSWCA 26, Bathurst CJ, with the agreement of Beazley JA (as her Honour then was) and McColl JA said (at [13]) that:…
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2]
[2012] WASCA 73 Para 48

…course of the proceedings if those orders are allowed to stand (referring to Attorney General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 at [142] (Martin CJ)). It is submitted that in the present case the orders do not prejudice the applicant because the factual basis of her claim has be…
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd
[2009] NSWCA 307 Para 47

…tralia Ltd (2015) 90 NSWLR 320 at 329-330; [2015] NSWCA 303 at [42] (Emmett JA) (Lowery); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [13]-[21]; [28] (Tobias AJA) (ICAP Australia)).…
The Nominal Defendant v Gabriel
[2007] NSWCA 52 Para 48

…rmitted at trial to lead evidence or make submissions controverting those admissions (referring to Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [110]. It is thus submitted that there has been no specific forensic disadvantage identified that would be suffered as a result of the orders.…
Portal Software v Bodsworth
[2005] NSWSC 1115 Para 56

…ce is whether the documents sought have a sufficient apparent connection to justify their production or inspection (see Portal Software v Bodsworth [2005] NSWSC 1115). There was no error in the primary judge considering the potential relevance of the material sought when deciding whether to grant leave to issue the…
Latoudis v Casey
[1990] HCA 59 Para 60

…nt the meaning of an order that costs be in the cause. The making of a costs order is not to punish a party (see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59); rather it is compensatory in nature. Costs in general will follow the event. In that regard, the making of an order of the kind that was here made…
House v R
[1936] HCA 40 Para 51

…to be granted) it would be necessary for her to demonstrate that the primary judge erred in the House v The King sense ((1936) 55 CLR 499 at 504-505; [1936] HCA 40) so as to warrant appellate intervention; i.e., that the primary judge made an error of principle, a material error of fact, took into account irrele…
House v The King
63 WN 176

…v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 House v The King (1936) 55 CLR 499; [1936] HCA 40 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), s…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 2005 (NSW)
14.30, 7.3 3 mentions (from Para 13)
Family Law Act 1975 (Cth)
121 2 mentions (from Para 4)
Privacy Act 1988 (Cth)
25 2 mentions (from Para 9)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention

Medium Neutral Citation:	D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50
Hearing dates:	10 March 2017
Decision date:	21 March 2017
Before:	Ward JA; Sackville AJA
Decision:	1. Leave to appeal from the decision of Mahony SC DCJ is refused with costs. 2. Summons seeking leave to appeal from the decision of Sidis ADCJ be dismissed with costs.
Catchwords:	PROCEDURE – application for leave to appeal against interlocutory decisions made in District Court of NSW – refusal of application by self-represented litigant for leave to issue a subpoena – limitations on grant of leave to self-represented applicant to amend pleadings – Leave to appeal refused in respect of both impugned decisions
Legislation Cited:	Family Law Act 1975 (Cth), s 121 Privacy Act 1988 (Cth), s 25 Uniform Civil Procedure Rules 2005 (NSW), rr 7.3 14.28, 14.30
Cases Cited:	Attorney General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 House v The King (1936) 55 CLR 499; [1936] HCA 40 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), ss 6(1), 6(3) Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Portal Software v Bodsworth [2005] NSWSC 1115 Re Will of Gilbert (1946) 46 SR (NSW) 318 The Age Company Ltd v Liu [2013] NSWCA 26
Category:	Principal judgment
Parties:	D (Applicant) Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia (First Respondent) Philip Madden (Second Respondent) Tara Czinner (Third Respondent) Sally Susan Nash (Fourth Respondent) The Registrar General of New South Wales (Fifth Respondent) Australian Restructuring Insolvency & Turnaround Association (Sixth Respondent) Savice Pty Limited trading as LJ Hooker, Picton (Seventh Respondent)
Representation:	Counsel: Applicant in person Ms TA Berberian (First, Second and Third Respondents) Ms M Avenell (Fourth Respondent) H Altan (Fifth Respondent) Solicitors: HWL Ebsworth Lawyers (First, Second and Third Respondents) Mullane and Lindsay (Fourth respondent) Ms F Harris, Department of Finance & Services (Land & Property Information) (Fifth respondent)
File Number(s):	2016/227940; 2016/277430
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 01 July 2016 Before: Mahony SC DCJ; Sidis ADCJ File Number(s): 2015/00124114