Dunkerley v Comcare

Case [2020] FCAFC 8

FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2020] FCAFC 8

Appeal from: Dunkerley v Comcare [2019] FCA 1002
File number: ACD 51 of 2019
Judges: KATZMANN, ROBERTSON AND ABRAHAM JJ
Date of judgment: 12 February 2020
Catchwords: BANKRUPTCY AND INSOLVENCY - appeal - where primary judge dismissed application to set aside a bankruptcy notice - where bankruptcy notice founded on debts arising from costs orders made in three proceedings - where primary judge held that no fraud, abuse of process or miscarriage of justice had been established - where primary judge held that there were no special circumstances to warrant going behind the earlier judgments and consequential costs orders - where primary judge held that the grounds for setting aside the bankruptcy notice amounted to an attempt to re-litigate the same legal and factual issues tried in the previous proceedings on the same evidence - whether appealable error by primary judge
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Bankruptcy Act 1966 (Cth) ss 41, 52

Federal Court of Australia Act 1976 (Cth) s 25

Judiciary Act 1903 (Cth) ss 55ZF, 55ZG

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

Federal Court Rules 2011 (Cth) rr 17.01, 36.74

Cases cited:

Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312; 76 ALR 137

Commonwealth of Australia v Snell [2019] FCAFC 57; 370 ALR 1

Dunkerley v Comcare [2015] FCA 392

Dunkerley v Comcare [2015] FCA 1076

Dunkerley v Comcare [2015] FCA 1519

Gilbert v Endean (1878) 9 Ch D 259

Hannaford v Telstra Corp Ltd [2005] FCA 1298; 88 ALD 702

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132

Telstra Corp Ltd v Hannaford [2006] FCAFC 87; 151 FCR 253

Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq), Ren v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] FCA 461; 315 ALR 523

Date of hearing:  Determined on the papers
Date of last submission: 11 December 2019
Registry: Australian Capital Territory
Division:  General Division
National Practice Area: Commercial and Corporations
Sub-area General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 55
Solicitor for the Appellant The appellant was self-represented
Counsel for the Respondent: Ms I Sekler of Australian Government Solicitor  
Solicitor for the Respondent: McInnes Wilson Lawyers

ORDERS

ACD 51 of 2019
BETWEEN:

ULLA-MAIJA DUNKERLEY

Appellant
AND:

COMCARE

Respondent

JUDGES:

KATZMANN, ROBERTSON AND ABRAHAM JJ

DATE OF ORDER:

12 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. This appeal is from the judgment of a judge of this Court given on 27 June 2019 dismissing, with costs, the appellant’s application dated 9 October 2018 to set aside bankruptcy notice BN229029 issued on 24 September 2018 and served the same day:  Dunkerley v Comcare [2019] FCA…

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AGLC
Dunkerley v Comcare [2020] FCAFC 8
Case
[2020] FCAFC 8
Decision Date

CaseChat Overview and Summary

Dunkerley v Comcare is an appeal against the dismissal of an application to set aside a bankruptcy notice. The bankruptcy notice was founded on debts arising from costs orders made in three separate proceedings. The primary judge dismissed the application, holding that no fraud, abuse of process, or miscarriage of justice had been established. Furthermore, the judge found that there were no special circumstances to warrant going behind the earlier judgments and the consequential costs orders. The primary judge also held that the grounds for setting aside the bankruptcy notice amounted to an attempt to re-litigate the same legal and factual issues tried in the previous proceedings on the same evidence.

The appeal raised several issues, including whether the primary judge erred in not finding that Flick J failed to carry out a full investigation, in allowing an interlocutory hearing in breach of the Central Practice Note, and in not finding a prima facie case of fraud in the handling of the matter by Flick J. The appeal also contended that the primary judge erred in finding that there was no merit in the appeal without evidence, given no appeal book was allowed at the hearing.

The court found that the primary judge was correct in dismissing the application to set aside the bankruptcy notice. The court held that the appellant had failed to establish any sufficient basis for the court to go behind the judgments which resulted in the costs orders forming the basis of the bankruptcy notice. The court also held that the appellant’s submissions were no more than an attempt to re-litigate the same issues of fact and law that had been considered and rejected in the previous proceedings. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs, as agreed or assessed.

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

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Decision

Reasons for decision

On the application of the appellant, and by consent, this appeal was determined on the papers.The judgment under appeal Before the primary judge, the appellant contended that she did not owe the debt alleged in the bankruptcy notice because the respondent committed fraud and breached its model litigant obligations, its counsel engaged in professional misconduct, and the judges of the Court who dealt with the three proceedings culminating in the costs orders failed to comply with the relevant Rules, made the costs orders against her without evidence, and the bankruptcy notice was an abuse of process. In short, the primary judge held that the appellant had failed to establish any sufficient basis for the Court to go behind the judgments which resulted in the costs orders forming the basis of the bankruptcy notice, and had not made good her serious allegations of abuse of process, fraud, and other misconduct by the respondent. His Honour expressed the view that, in effect, the appellant’s submissions were no more than an attempt to re-litigate the same issues of fact and law that had been considered and rejected in the previous proceedings. Aspects of his Honour’s reasons are discussed more fully below.The notice of appeal It is common ground that, despite the statement in the notice of appeal that the appellant needs leave to appeal, no such leave is required. The notice of appeal contains the following contentions said to establish error on the part of the primary judge:(1)The primary judge erred in failing to find that Flick J failed to carry out a full investigation as required by s 52(1) of the Bankruptcy Act1966 (Cth) (Grounds 2 and 21).(2)The primary judge erred in failing to find that Flick J allowed an application for an interlocutory hearing “in breach of 16 12.1 (sic) of the Central Practice Note, which states that ‘[i]interlocutory hearings should be kept to a minimum’” and “the appellant suffered a detriment when Flick J failed to take case management procedural steps to avoid an interlocutory hearing which resulted in the loss of an opportunity to make representation at a Full Court Hearing” (Grounds 3, 4, 5, 6 and 21).(3)The primary judge erred in finding that no prima facie case of fraud was made out in the handling of the matter by Flick J (Grounds 3, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 21) because:(a)although the parties agreed to an extension of time until 21 August 2015 for the submission of an appeal book, the respondent filed an interlocutory application on 3 August 2015 seeking that the proceeding be dismissed for the reason that the appellant had not provided an explanation for her non-compliance with the order concerning the service of the appeal book;(b)the respondent, a model litigant, deliberately misled the Court when it sought a dismissal of the appeal primarily by reason of the absence of an explanation from the appellant for non-compliance with the Court order;(c)the respondent breached its statutory duty to the Court by failing to disclose to the Court that the parties had agreed to an extension to the date for submission of an appeal book;(d)the respondent deliberately breached case management rules and its agreement with the appellant when it filed its interlocutory application seeking dismissal of the appellant’s appeal;(e)the primary judge erred in failing to find that Flick J erred in allowing the interlocutory application prior to the agreed date for submission of the appeal book and wrongly denied the appellant’s right to submit an appeal book.(4)The primary judge erred in failing to find that Flick J erred:(a)in dismissing the appeal primarily by reason of the absence of an explanation provided by the appellant as to her reasons for non-compliance and the absence of any merit in the appeal itself when, having regard to the parties’ agreement, she was in fact compliant; and(b)in finding that there was no merit in the appeal without evidence, given no appeal book was allowed at the hearing (Grounds 16, 17, 18 and 19).

Ratio Decidendi

Legal Principle Established

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