FEDERAL COURT OF AUSTRALIA
DOQ17 v Australian Financial Security Authority [2020] FCAFC 219
Appeal from: DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488 File number: NSD 1572 of 2019 Judgment of: REEVES, ANASTASSIOU AND ABRAHAM JJ Date of judgment: 4 December 2020 Catchwords: PRACTICE AND PROCEDURE – appeal under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) from a decision of a single judge of the Federal Court of Australia – where the appellant failed to identify any appellable error in the primary decision – appeal dismissed Legislation: Bankruptcy Regulations 1996 (Cth)
Commonwealth of Australia Constitution Act (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Real Property Act 1900 (NSW)
Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
Giddings v Australian Information Commissioner [2017] FCAFC 225
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: Determined on the papers by agreement of the parties Counsel for the Appellant: The Appellant appeared in person Counsel for the First, Second, Third and Seventh Respondents: Ms CK Amato Solicitor for the First, Second, Third and Seventh Respondents: HWL Ebsworth Lawyers Counsel for the Fourth Respondent: Mr GP Craddock SC Solicitor for the Fourth Respondent: Mullane & Lindsay Solicitors Counsel for the Fifth Respondent: Mr H Altan Solicitor for the Fifth Respondent: The Office of the Registrar General ORDERS
NSD 1572 of 2019 BETWEEN: DOQ17
Appellant
AND: AUSTRALIAN FINANCIAL SECURITY AUTHORITY (AFSA) FORMERLY KNOWN AS INSOLVENCY & TRUSTEE SERVICE AUSTRALIA (ITSA)
First Respondent
PHILLIP MADDEN
Second Respondent
TARA CZINNER (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
REEVES, ANASTASSIOU AND ABRAHAM JJ
DATE OF ORDER:
4 DECEMBER 2020
THE COURT ORDERS THAT:
1.The notice of appeal filed 25 September 2019 is dismissed.
2.The appellant is to pay the respondents’ costs of this appeal to be taxed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
It is well-established that an appeal to this Court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) is an appeal by way of re-hearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [20] per Allsop J (as he then was) (Drummond and Mansfield JJ…
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Details
- Case
- [2020] FCAFC 219
- Decision Date
CaseChat Overview and Summary
The case of DOQ17 v Australian Financial Security Authority involves an appeal by DOQ17 against a decision of a single judge of the Federal Court of Australia. The primary dispute pertains to the Federal Court's handling of certain evidence and judgments from previous proceedings in the District Court of New South Wales. The appeal focuses on the Federal Court's perceived failure to adequately consider the judgment of Taylor SC DCJ from the earlier District Court proceedings.
The legal issues central to this appeal revolve around the weight and relevance of the judgment of Taylor SC DCJ in the Federal Court proceedings. DOQ17 argues that the primary judge erred by not giving sufficient consideration to the judgment of Taylor SC DCJ and by not allowing her to draw on evidence from the District Court proceedings. The respondents, including the Australian Financial Security Authority, contend that the judgment of Taylor SC DCJ was not determinative of any issue in the Federal Court and that the primary judge correctly assessed its relevance.
The Federal Court of Australia, in dismissing the appeal, found that DOQ17 had not identified any appellable error in the primary decision. The court held that the judgment of Taylor SC DCJ, while relevant, was interlocutory and did not determine the issues at hand in the Federal Court. The primary judge appropriately assessed the status and relevance of the earlier judgment, and there was no indication of bias in her handling of the case. The court emphasized that the primary judge had dealt with the issues raised by DOQ17 in a considerate and respectful manner, as evidenced by her detailed reasons and the transcript of the hearing.
The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal. The Federal Court's decision underscores the importance of correctly interpreting and applying previous judgments in subsequent proceedings, while also highlighting the need for clear and precise articulation of grounds for appeal.
The legal issues central to this appeal revolve around the weight and relevance of the judgment of Taylor SC DCJ in the Federal Court proceedings. DOQ17 argues that the primary judge erred by not giving sufficient consideration to the judgment of Taylor SC DCJ and by not allowing her to draw on evidence from the District Court proceedings. The respondents, including the Australian Financial Security Authority, contend that the judgment of Taylor SC DCJ was not determinative of any issue in the Federal Court and that the primary judge correctly assessed its relevance.
The Federal Court of Australia, in dismissing the appeal, found that DOQ17 had not identified any appellable error in the primary decision. The court held that the judgment of Taylor SC DCJ, while relevant, was interlocutory and did not determine the issues at hand in the Federal Court. The primary judge appropriately assessed the status and relevance of the earlier judgment, and there was no indication of bias in her handling of the case. The court emphasized that the primary judge had dealt with the issues raised by DOQ17 in a considerate and respectful manner, as evidenced by her detailed reasons and the transcript of the hearing.
The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal. The Federal Court's decision underscores the importance of correctly interpreting and applying previous judgments in subsequent proceedings, while also highlighting the need for clear and precise articulation of grounds for appeal.
Orders
Orders of the court
1. The notice of appeal filed 25 September 2019 is dismissed.
2. The appellant is to pay the respondents’ costs of this appeal to be taxed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
In this ground of appeal (see at [7] above), DOQ17 is critical of the primary judge’s failure to take account of the judgment of Taylor SC DCJ, without expressing precisely why that constitutes an error on her Honour’s part. That deficiency is compounded in DOQ17’s written submissions, where she sets out her concerns with respect to the primary judge’s treatment of that judgment in question and answer format as follows:1.WERE PROCEEDINGS AND EVIDENCE BEFORE TAYLOR [SC] DCJ & HIS JUDGMENT ON THE RESPONDENTS’ SUMMARY DISMISSAL APPLICATIONS GIVEN CREDIBILITY, STANDING AND WEIGHT IN THESE PROCEEDINGS?a) No, despite their dismissal and costs awarded to me. No appeals were filed.b)[The primary judge] states (Pt A tab 17, 373 - 25 [83]) that “Taylor [SC] DCJ’s decision was interlocutory only” and gives no relevance to it. Taylor DCJ states that “the orders of the court are a part of the proceedings, perhaps the final part. To recite the orders is to recite a part of the proceedings”. (Pt B tab 1, V5 at 1461 [18])c)This would align with s73 of the Commonwealth of Australia Constitution Act 1900 which states that judgments, decrees, orders and sentences are decisions made in the exercise of judicial power. It is reiterated by French CJ in Momcilovic v The Queen [2011] HCA 34 at [101].d)[The primary judge] allowed the Respondents to make the same or additional submissions in the Federal Court proceedings (Pt A tab 17, 373 - 25 [83]) although they withdrew the Affidavit of Mr Olson of HWL Ebsworths (TB tab 1, Index) which included AFSA’s and the Trustees submissions in the District Court, so that I was not able to cross-examine. Her Honour however, would not allow me to draw on the evidence of the contents of documents produced or comments made (and recorded in transcripts) during the District Court hearings upon which the Respondents had relied.(Emphasis and errors in original) For their part, the AFSA respondents contended that the judgment of Taylor SC DCJ was not determinative of any issue before the primary judge. Ms Nash contended that the primary judge “dealt with the status of that decision, correctly, at [83]”. Both of these contentions are correct. To explain why that is so, it is necessary to record some more details of the factual context to this appeal. As the primary judge pointed out at [81] of her reasons, the present proceeding was originally commenced in the District Court of New South Wales. The judgment of Taylor SC DCJ was delivered in that proceeding. At [82] of her reasons, the primary judge adopted the following passages from the judgment of the New South Wales Court of Appeal concerning an 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 applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).
Decision
Reasons for decision
In rejecting this ground of appeal, it suffices to say that the vague and general allegations made by DOQ17 in this ground of appeal, and in her written submissions concerning it, do not come close to meeting either of the tests for bias set out above. To the contrary, there is not the slightest indication of bias in the considerate and respectful manner in which her Honour dealt with the various issues which DOQ17 raised before her, as reflected in her reasons for judgment and in those parts of the transcript of the hearing to which reference is made below.GROUND OF APPEAL 4 – JUDGMENT OF TAYLOR SC DCJ In this ground of appeal (see at [7] above), DOQ17 is critical of the primary judge’s failure to take account of the judgment of Taylor SC DCJ, without expressing precisely why that constitutes an error on her Honour’s part. That deficiency is compounded in DOQ17’s written submissions, where she sets out her concerns with respect to the primary judge’s treatment of that judgment in question and answer format as follows:1.WERE PROCEEDINGS AND EVIDENCE BEFORE TAYLOR [SC] DCJ & HIS JUDGMENT ON THE RESPONDENTS’ SUMMARY DISMISSAL APPLICATIONS GIVEN CREDIBILITY, STANDING AND WEIGHT IN THESE PROCEEDINGS?a) No, despite their dismissal and costs awarded to me. No appeals were filed.b)[The primary judge] states (Pt A tab 17, 373 - 25 [83]) that “Taylor [SC] DCJ’s decision was interlocutory only” and gives no relevance to it. Taylor DCJ states that “the orders of the court are a part of the proceedings, perhaps the final part. To recite the orders is to recite a part of the proceedings”. (Pt B tab 1, V5 at 1461 [18])c)This would align with s73 of the Commonwealth of Australia Constitution Act 1900 which states that judgments, decrees, orders and sentences are decisions made in the exercise of judicial power. It is reiterated by French CJ in Momcilovic v The Queen [2011] HCA 34 at [101].d)[The primary judge] allowed the Respondents to make the same or additional submissions in the Federal Court proceedings (Pt A tab 17, 373 - 25 [83]) although they withdrew the Affidavit of Mr Olson of HWL Ebsworths (TB tab 1, Index) which included AFSA’s and the Trustees submissions in the District Court, so that I was not able to cross-examine. Her Honour however, would not allow me to draw on the evidence of the contents of documents produced or comments made (and recorded in transcripts) during the District Court hearings upon which the Respondents had relied.(Emphasis and errors in original) For their part, the AFSA respondents contended that the judgment of Taylor SC DCJ was not determinative of any issue before the primary judge. Ms Nash contended that the primary judge “dealt with the status of that decision, correctly, at [83]”. Both of these contentions are correct. To explain why that is so, it is necessary to record some more details of the factual context to this appeal. As the primary judge pointed out at [81] of her reasons, the present proceeding was originally commenced in the District Court of New South Wales. The judgment of Taylor SC DCJ was delivered in that proceeding. At [82] of her reasons, the primary judge adopted the following passages from the judgment of the New South Wales Court of Appeal concerning an 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 applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).
Ratio Decidendi
Legal Principle Established
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