Dunkerley v Comcare

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.