Thompson v Ellis (No 2)

Case [2025] FCA 649

FEDERAL COURT OF AUSTRALIA

Thompson v Ellis (No 2) [2025] FCA 649

Appeal from: Applications for extension of time and leave to appeal:  Thompson v Ellis [2024] FCA 1200
File number: QUD 699 of 2024
Judgment of: VANDONGEN J
Date of judgment: 19 June 2025
Catchwords: PRACTICE AND PROCEDURE - applications for extensions of time within which to seek leave to appeal against orders made in a review conducted under s 35A of the Federal Court of Australia Act 1976 (Cth) of two lump sum costs assessments made by a registrar - whether proposed grounds of appeal have reasonable prospects of success - whether application incompetent - applications dismissed
Legislation:

Bankruptcy Act 1966 (Cth) s 153B

Federal Court of Australia Act 1976 (Cth) ss 24, 25, 33, 35A

Federal Court (Bankruptcy) Rules 2016 (Cth) rr 2.02, 13.01, Schedule 1 item 13

Federal Court Rules 2011 (Cth) rr 3.01, 35.12, 35.13, 35.14, 39.05, 40.02, 40.06, Schedule 1, Schedule 2 item 220

Body Corporate and Community Management Act 1997 (Qld) ss 94, 100

Legal Profession Act 2007 (Qld) ss 308, 315, 319, 340, 341

Australian Solicitors Conduct Rules 2012 (Qld) rr 3, 5, 19

Uniform Civil Procedure Rules 1999 (Qld) Chapter 8

Legal Profession Regulation 2017 (Qld) reg 69
Cases cited:

AIX20 v Director-General of Security [2025] FCAFC 38

AZO24 v Commonwealth of Australia [2025] FCAFC 77

Bienstein v Bienstein [2003] HCA 7

Bingham v Boensch [2023] FCA 117

Caratti v Commissioner of the Australian Federal Police [2021] FCA 1067

FJE20 v Minister for Home Affairs [2022] FCAFC 45

Frigger v Trenfield(No 12) [2022] FCA 900

Frigger v Banning(No 13) [2023] FCA 923

GrayvLavan [2024] WASCA 147

Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd v Aviation 3030 Pty Ltd [2018] FCA 600

Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140; (2023) 299 FCR 244

Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90

Marsh v Baxter [No 2] [2016] WASCA 51

Natch v Stennson Pty Ltd(No 2) [2024] FCA 1498

Oil Basins Limited v Watson [2017] FCAFC 103; (2017) 252 FCR 420

Olympic Holdings Pty Ltd v Lochel [2004] WASC 61

Pryles & Defteros (a firm) v Green [1999] WASC 34; (1999) 20 WAR 541

Thompson v Lane (Trustee) (No 3) [2022] FCA 128

Thompson v Lane (Trustee) (No 4) [2022] FCA 616

Thompson v Lane (Trustee) (Costs) [2023] FCA 568

Thompson v Lane (Trustee) [2023] FCAFC 32

Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 57
Date of hearing: 28 April, 11 and 13 June 2025
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: The respondent filed a submitting notice save as to costs

ORDERS

QUD 699 of 2024
BETWEEN:

EMMA NARELLE CATHRYN THOMPSON

Appellant

REGISTRAR ELLIS

Respondent

ORDER MADE BY:

VANDONGEN J

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AGLC
Thompson v Ellis (No 2) [2025] FCA 649
Case
[2025] FCA 649
Decision Date

CaseChat Overview and Summary

In the matter of Thompson v Ellis (No 2), the Federal Court was called upon to determine whether Ms Thompson should be granted an extension of time within which to seek leave to appeal against orders made in a review conducted under section 35A of the Federal Court of Australia Act 1976 (Cth) of two lump sum costs assessments made by a registrar. The primary judge had set aside the registrar's orders in QUD 419 and QUD 420, and Ms Thompson sought to appeal those orders. The court needed to decide whether the proposed grounds of appeal had reasonable prospects of success and whether the application was incompetent. Additionally, the court had to consider whether the unfiled affidavits relied upon by Ms Thompson should be taken into account.

The court held that the proposed grounds of appeal did not have reasonable prospects of success. The unfiled affidavits were not considered due to their non-compliance with court rules, and the court found that the applications were incompetent. Consequently, the court dismissed the applications for extensions of time within which to seek leave to appeal. The reasons provided by the court were based on the merits of the proposed grounds of appeal, the procedural non-compliance, and the lack of reasonable prospects of success.

Ms Thompson's applications for extensions of time were dismissed. The court found that the proposed grounds of appeal were unlikely to succeed and that the applications were incompetent due to procedural issues. The court did not consider the unfiled affidavits because they were not filed in accordance with the rules. The primary judge's orders in QUD 419 and QUD 420 remained in place, and Ms Thompson's attempts to appeal those orders were unsuccessful.

Orders

Orders of the court

1. The application for an extension of time within which to appeal against the orders made in QUD 419/2023 is dismissed.

2. The application for an extension of time within which to appeal against the orders made in QUD 420/2023 is dismissed.

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

Background

Background to the litigation

I would refuse to grant Ms Thompson an extension of time within which to seek leave to appeal against the orders made by the primary judge in both QUD 419 and QUD 420. Before explaining why I have reached that conclusion, it is convenient to set out some further background to Ms Thompson's attempts to appeal against the primary judge's review of the registrar's costs assessments.Background After presenting a debtor's petition to the Official Receiver on 26 June 2020, Ms Thompson became a bankrupt on 1 July 2020. Almost a year later, Ms Thompson applied for an order that her bankruptcy be annulled pursuant to s 153B(1) and s 153B(2) of the Bankruptcy Act 1966 (Cth). However, that application failed in Thompson No 3. Costs orders were subsequently made by Logan J, including orders that the respondents' costs be paid out of Ms Thompson's bankrupt estate and that those costs be fixed by a registrar on a lump-sum basis: Thompson No 4. A registrar later ordered that the costs payable to the first respondent in Thompson No 3 were to be fixed in the sum of $44,975.98, and that the costs payable to the second respondent in those proceedings were to be fixed in the sum of $45,195.12. Ms Thompson unsuccessfully appealed the orders in Thompson No 3: Thompson Appeal. When that appeal was dismissed, an order was made that Ms Thompson pay the respondents' costs of the appeal. However, the Full Court subsequently ordered that an application that was later made by the respondents for further orders as to the costs of the appeal be heard and determined by a single judge. That task was assigned to Goodman J, who was one of the judges who formed part of the coram that heard the appeal. Later, Goodman J made orders in Thompson (Costs), that the second respondent's costs of the appeal be paid out of Ms Thompson's bankrupt estate in a lump sum. Those orders also provided that the quantum of costs was to be determined by a registrar of the Court, and that upon making such a determination, the registrar was to make an order fixing the amount of costs. Pursuant to the orders made by Goodman J, the registrar ultimately determined that the costs payable to the second respondent in the appeal were to be fixed in the sum of $40,087.65. As I have already said, in QUD 419 and QUD 420, Ms Thompson sought judicial review of each of the registrar's decisions. However, the primary judge decided that Ms Thompson's applications for judicial review should be treated as if they were applications made pursuant to s 35A(5) of the FCA Act, in which a de novo review of the registrar's exercise of delegated power was sought. After conducting those reviews, the primary judge set aside the registrar's orders, and then made the orders referred to at [5] of these reasons. It is against those orders in QUD 419 and QUD 420 that Ms Thompson now seeks an extension of time within which to seek leave to appeal. In support of her applications for extensions of time within which to seek leave to appeal, Ms Thompson relies on an unfiled affidavit sworn by her on 22 May 2025. She also relies on a further affidavit sworn by her on 17 March 2025, which has also not been filed, but which appears to have been filed in proceedings in the District Court of Queensland. It is unnecessary to summarise the contents of either of those affidavits.Relevant general legal principles

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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