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Kimber v The Owners Strata Plan No. 48216 [ 2017] FCAFC 226  (22 December 2017)

Last Updated: 4 January 2018

FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan No. 48216  [2017] FCAFC 226 

ORDERS

THE COURT ORDERS THAT:

1. The appeal is allowed.
2. The orders made on 8 September 2016 are set aside.
3. In lieu of the orders made on 8 September 2016, the application made orally by the respondent on 27 July 2016 is dismissed.
4. The matter is remitted to the original jurisdiction of the Court for hearing and determination of the appellant’s application to review a decision of the Registrar made on 4 May 2016.
5. Costs are reserved and will be determined on the papers.
6. The appellant must, on or before 31 January 2018, file and serve:
   1. An affidavit supporting any amounts she claims in relation to her out of pocket expenses, such as any filing fees, photocopying fees (less those related to Part D) and travel expenses in relation to the leave application and this appeal; and
   2. Any submissions (not exceeding 3 pages) which she wishes to make in relation to the appropriate order as to costs.
7. On or before 21 February 2018, the respondent may file and serve any submissions it wishes to make (not exceeding 3 pages) in relation to the appropriate order as to costs.
8. On or before 28 February 2018, the appellant may file and serve any submissions in reply (not exceeding 2 pages).

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

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a decision of a Judge of this Court to dismiss summarily an application for review of a decision of a Registrar to refuse to set aside bankruptcy notice 188465 with costs: see Kimber v The Owners Strata Plan No. 48216 [2016] FCA 1090 (the primary judge’s decision).
2. On 7 April 2017, the appellant, Ms Kimber was granted leave to appeal the primary judge’s decision on a limited ground: see Kimber v The Owners Strata Plan No. 48216 [2017] FCA 364 (leave decision). In accordance with that leave, by a notice of appeal lodged on 9 June 2017, Ms Kimber appeals against all of the orders made by the primary judge on the following ground:

That the primary judge erred in failing to consider whether the applicant had reasonable prospects of success in claiming that Bankruptcy Notice 188465 was invalid having regard to section 41(5) of the Bankruptcy Act 1966 (Cth).

3. We have determined that the appeal should be allowed for the following reasons.

INTRODUCTION

4. Ms Kimber owns lot 110 in SP 48216. The Official Receiver issued the bankruptcy notice on 19 February 2016 and it was served on her on 17 March 2016. The bankruptcy notice required Ms Kimber to pay an aggregate amount of $12,369.48 to the respondent (Owners Corporation) comprising the amount for which judgment was entered in favour of the Owners Corporation for costs by the Local Court of New South Wales on 7 May 2014 ($10,767) (Local Court judgment) plus interest of $1,602.48. The background to the Local Court judgment is set out in the primary judge’s decision at [9]-[13].
5. Ms Kimber lodged an application in this Court to set aside the bankruptcy notice on 5 April 2016. Based on an error in the title to the proceedings, it was not accepted for filing until 20 April 2016. In the meantime, the solicitors for the Owners Corporation conducted a search of the Court’s registry which did not disclose that an application to set aside the bankruptcy notice had been filed. On 18 April 2016, the Owners Corporation filed a creditor’s petition in the Federal Circuit Court of Australia based on Ms Kimber’s failure to comply with the bankruptcy notice. The Owners Corporation accepts that it is not in a position to pursue the creditor’s petition until the question of whether the bankruptcy notice should be set aside has been finally determined. The period before which the creditor’s petition will lapse has been extended to 18 April 2018.
6. The application to set aside the bankruptcy notice contained the following paragraphs which had been numbered by hand as 18, 19 and 20 (as written):
   18. *NB: The creditor’s Secretary and Manager were both informed by phone and email prior to 7 April, 2016 about the defective notice:

19 BANKRUPTCY ACT 1966-SECT 41-Bankruptcy Notices
(1) The Official Receiver who issued the bankruptcy notice on application of the creditor’s agent is informed that (2) the notice is not in accordance with the form prescribed by the regulations and invalidated by reasons that (5) the sum specified in the notice as the amount due to the creditor exceeds the amount to be formally stated.

20. I am alleging that the overstated amount on the notice is a the result of either recklessness, negligence or intentional negligence and that imposing the legal action itself was meant to ‘silence’ me, cause further distress and manipulate circumstances to create more fees and costs for the solicitors and agents.

7. The Registrar made three orders on 4 May 2016: order 1 dismissed the application, order 2 discharged the order made on 20 April 2016 extending the time for compliance with the bankruptcy notice to 4 May 2016 and order 3 required Ms Kimber to pay the Owners Corporation’s costs.

REVIEW AND SUMMARY DISMISSAL APPLICATIONS

Application for review of Registrar’s decision and 30 May Affidavit

8. On 20 May 2016, Ms Kimber filed an interlocutory application comprising five pages. The application sought eight orders, the first of which was (as written):

ORDER 1: I SEEK REVIEW OF THE REGISTRAR’S DECSION OF 4 May 2016ORDER 2:

9. This application contained no reference to s 41(5) of the Bankruptcy Act 1966 (Cth).
10. The application for review was accompanied by an affidavit comprising 471 pages. The affidavit bore a date of 4 April 2016 and it was affirmed on 19 May 2016. In its final version (after apparent errors in the witnessing of the affidavit had been corrected), it was accepted as filed on 30 May 2016 (30 May Affidavit). This affidavit was read at the hearing of the Owners Corporation’s application for summary dismissal of the review application (see [30] below), although some material was excluded because it related to without prejudice communications relating to mediation and settlement matters. In the first two pages of the affidavit, Ms Kimber stated (as written):

Contents - Paragraph 1
My name is Janelle Mary KIMBER and I was born on [date redacted].
The Bankruptcy Notice No: 18846 issued on 19 February, 2016 served on me 17 March, 2016 should be set aside for the following reasons:
(1) I do not believe I deserve this bankruptcy notice or what it represents and I claim that the parties ‘in concert’ obtained an ill-gained judgement order and are pursuing enforcement by oppressive and conspicuously dishonest means. It is my view and the view of some other responsible persons who intervened on the last attempted bankruptcy notice (No 173900) that the discovery and acknowledgement of a ‘debt creation’ by the ‘creditor’ was considered an unjust threat to a person’s financial security, personal well-being and enjoyment of life.
From December 2013 to May 2014, a ‘constructed’ court case was imposed by solicitors and committee and managers that chose to disobey the local court order of CJC Mediation to provide ‘further and better particulars’ before the questionable court case had begun.
November 2014 – May 2015 saw some committee members intervene on the first bankruptcy notice promising to formally investigate, bringing adduced evidence themselves to the CJC identifying unfair treatment, ‘the creditor’ offered to make restitution, acknowledging serious ‘mistakes’ made by both officers and agents. Over many months, not one meeting or formal offer or investigation came about/ Meanwhile the manager removed my levies and created a ‘new arrears’ amount to start collection proceedings.
I believe that I have a claim against the applicant(s) and agents for cause harm and damage through intentional negligence and dishonesty set to deliberately mislead and deceive those significant others in the scheme of things, taking financial advantage’ of me using silence and intimidation, administration and legal processes for pure profit and ill-gain
Owners Corporation SP 48216 Committee Of Management
[names redacted]
Linders Strata Management P/L T/A Stratachoice (Linders Stratachoice)
[Names redacted]
Grace Lawyers P/L
[Names redacted]

11. This is a neat presentation of Ms Kimber’s expressed case theory. It is notable that it does not refer to s 41(5) of the Bankruptcy Act or provide a foundation (or coherent explanation) for any of the documents contained in the attachments. Pages 2 and 3 list the attachments to the affidavit. We will deal with attachments JMK 1 and JMK 3 in more detail below, but it is notable that those attachments do contain references to s 41(5).
12. The affidavit has six attachments to it numbered JMK 1 to JMK 6. The labels appear to be designed to suggest thematic organisation of the attachments:
    • JMK 1 is said to be a copy of “NEW EVIDENCE –Re_Solicitor Manager ‘Prima Facie’”.
    • JMK 2 is said to be a copy of “The Statement of Claim”, being a document filed on 21 April 2016 in the proceedings before the primary judge setting out claims against a range of people including past and present members of the executive committee of the Owners Corporation, the body corporate manager “Stratachoice” and named solicitors at Grace Lawyers, including Mr Radman.
    • JMK 3 is said to be a copy of “Grace Lawyers Solicitor’s Focus” although the material contained in JMK 3 deals with the “Court Focus”.
    • JMK 4 is said to be a copy of “Federal Court Focus” although the material contained in JMK 4 deals with the “Solicitor’s Focus”.
    • JMK 5 is said to be a copy of the “Strata Manager Focus”.
    • JMK 6 is said to be a copy of the “Executive Committee Focus”.

Amended interlocutory application

13. On 1 June 2016, a Registrar made orders granting leave to Ms Kimber to file an amended interlocutory application “to seek review of all of the orders made by [the Registrar] on 4 May 2016”: primary judge’s decision at [28]. That leave was designed to allow Ms Kimber the opportunity to clarify whether she was seeking review of only the second order made by the Registrar or review of all of his orders (see [7] above).
14. Ms Kimber filed an amended interlocutory application on 11 July 2016. It contained eight pages of material which is difficult to follow. Unlike the interlocutory application filed on 20 May 2016, it did not contain a numbered list of orders sought by Ms Kimber. Although it was not an interim application in accordance with Form B3, the primary judge determined to treat the amended interlocutory application as an interim application in the interests of justice: primary judge’s decision at [37]. We will refer to this application as the “review application”.
15. The primary judge summarised the review application at [29]-[32] as follows (as written):
    29. On 11 July 2016, Ms Kimber filed the amended application. The amended application contained a preamble in which she asked the Court:

...to assist to direct my case on a growing set of complex legal issues involving related matters that are in concurrently and presently in process in the Federal Court, Federal Circuit Court and the NSW Supreme Court

Much needed relief from the oppressive circumstances of having multiple proceedings in multiple courts involving multiple parties and need to address court(s) errors took toll. I ask the Honourable Justice to decide to completely and finally determine ALL related matters by constitutional laws, to ‘reign in’ this controversy and to bring ALL matters together and deal with how an erroneous $154 set aside default created a $10000 judgement order, 2 bankruptcy notices and a creditors petition.
(emphasis and errors in the original)

30. In the preamble, Ms Kimber also alleged that there was a need formally to address unidentified officers of the Commonwealth for unidentified errors or unfair procedures that had allegedly impacted on her legal status and well-being.
31. In the body of the amended application, Ms Kimber sought a number of orders which can be summarised as follows.

(1) An order that the Registrar’s order on 4 May 2016 for Ms Kimber to pay the Owners Corporation’s solicitor’s costs be annulled and substituted by an order that the Owners Corporation pay Ms Kimber’s costs.
(1) The joinder of parties to the proceedings, including the solicitors for the Owners Corporation, strata managing agents and members of the executive committee “to counter claim & cross claim or start vital ‘restoration’ proceedings”. These claims seem to be related to the request that the Federal Court “go behind” the judgment of the Local Court based on allegations which were described as scandalous by the solicitor for the Owners Corporation and appear to be the same claims which Ms Kimber had sought to raise in the Local Court proceeding in her proposed statement of cross-claim (see above at [11]-[13]).
(2) An estoppel on the creditor’s petition before the Federal Circuit Court based upon (it would appear) the delay in the Federal Court accepting the application to set aside the bankruptcy notice for filing.
(3) An order that these proceedings be “‘cross-vested’ with the power of accrued jurisdiction” – an order which seems to be related to the request in the preamble to the amended application for relief from multiple proceedings in multiple courts with multiple parties.
(4) An injunction against the respondent’s solicitors and strata manager on the grounds that they continue to promote “immoral and illegal activities with no constitutional authorisation from Owners Strata Plan 48216”, have acted oppressively in issuing her with invoices for allegedly “false arrears”, and other allegations described by the Owners Corporation as scandalous.
(5) An order that the Orders made on 20 April 2016 extending the date of compliance to 4 May 2016 not be discharged but that Ms Kimber be given additional time to submit further materials to “go behind the judgements”.

32. In the amended application, Ms Kimber also claims rights under the International Covenant on Civil and Political Rights and the Privacy and Personal Information Protection Act 1998.

16. This summary makes no reference to the material at pages 2-3 of the review application which refers to s 41(5) of the Bankruptcy Act. It appears immediately before what the primary judge interpreted as the first order sought by Ms Kimber. That material is (as written):

I CLAIM THE RESPONDENT’S SOLICITORS HAVE AGAIN DENIED RELEVANT EVIDENCE IN COURT
‘Where, a party is represented by competent and experienced lawyers and is opposed by a litigant in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigant in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions”
Serobian v Commonwealth Bank of Australia [2010] NSWCA at [42]
‘Failure to provide information constitutes misleading or deceptive conduct where circumstances give rise to a reasonable expectation that if a relevant fact exists it will be disclosed to the other”
Demagogue [Pty Ltd v Ramensky [1992] FCA 557; (1990) 39 FCR 31 at 41; [1992] FCA 557; 110 ALR 608 at 618] Gummow J
This precedent did not occur (again) on 4 May 2016 when the last Grace Lawyers solicitor [name] knew statements to be false, but still conscientiously argued against the ‘bona fide’ emails and addressee details that confirmed that the bankruptcy notice had been invalidated when the applicant had spoken to the strata manager, sending a ‘CC’ email to S Martin and all (available) strata committee members email addresses before 21 days on 1 April 2016 under Bankruptcy Act 1966 ss 41 (2) and (5) that related to the ‘overstated’ amount in the defective bankruptcy notice. 12 days later the ledger was dramatically altered (‘Jimmied to-fit’) the flawed bankruptcy notice.
Evidence: Ledger 3 June 2106. Manager/Committee email 1 April 2016-Court email 6 April 2016
Based on the relevant correspondence and on the ‘balance of probabilities’ I believe it is probable that [the Registrar’s] ‘irregular’ and unprofessional court conduct with me, his choice to ‘silently read’ evidence(s) handed up in court, his need for a ‘prompted response’ from the solicitor to the evidence and his use of irrelevant facts and ‘deliberations’ to try to justify a dismissal of a valid application, was because he had pre-decided that it was “in the court’s best interests” (and possibly the Registrar’s) to solve the complex legal implications of how to deal with the anomalous production of the ‘hybrid’ creditors petition SYG 931/2016 in the circuit court of 19 April 2016 issued as a result of the court’s administrative errors. A Statement of Reasons was formally requested by the applicant of the decision to dismiss, but this was refused by a duty registrar on behalf of [a named Registrar]. See Reasons To Order An Estoppel pg 4
THE ORDER MADE BY REGISTRAR [NAME] ON 4 MAY 2016 FOR THE APPLICANT TO PAY THE RESPONDENT SOLICITOR COSTS SHOULD BE ANNULLED. THE APPLICANT’S COSTS SHOULD BE MET BY THE RESPONDENTS
[Emphasis in bold added].

Material in JMK 1 concerning allocation of payments in Owners Ledger for lot 110

17. At page 24 of JMK 1 is a copy of a document headed “your levy notice” for SP 48216. It is addressed to Ms Kimber and relates to lot 110. Its issue date of 1 February 2016 has been circled. Relevantly it provides:

Admin Sinking
01/03/16-31/05/16 587.70 428.00 1,015.70
Total of this notice (including GST-92.34) $1,015.70
Arrears 5,861.80
Interest on arrears (calculated to 1/03/16) 503.34
Outstanding owner invoices 7,051.23
Less prepaid NIL

[There follows a handwritten endorsement, with an arrow pointing at 5,861.80:
MISLEADING

• NOT LEVIES BUT LEGAL INVOICES

AMOUNT OVERSTATED ON BANRUPTCY NOTICE]

Total Payable $14,432.07
Payable due 01/03/2016

In a panel next to this, there appears the following:

Amounts Due: Pay by:
Overdue – Pay Now: 6,365.14 NOW
Current: 1,015.70 01/03/2016
Total Payable: $14,432.07

The amount of $14,432.07 is underlined with a question mark.

18. In the leave decision at [41]-[44], the Court drew on material in JMK 1 concerning the copies of the Owners Ledger for lot 110 printed on 25 February 2015 and on 6 and 13 April 2016 in making the following comments:
    41. There does not appear to be a document which answers the description of “Ledger 3 June 2016” (on the assumption that 2106 is an error). There was, however, at pages 27 and 28 of the 30 May 2016 affidavit in an annexure marked “JMK 1” what purports to be a copy of the 1 April email and there is written at the top of the page “Email to “creditor” Section 41 Notifying the Creditor Re: overstated amount”. This document is described in a form of table of contents to annexure “JMK 1” as “S41(5) Email to the Owners”.
    42. At pages 12-14, 21-23 and 24-26 of “JMK 1” are what purport to an “Owner Ledger” as at 13 April 2016, an “Owner Ledger” as at 6 January 2016 and an “Owner Ledger” as at 25 February 2015 respectively. The following is a summary of what appears in respect of accounts rendered by Grace Lawyers for “recovery action” prior to the judgment obtained in the Local Court on or before 7 May 2014:

[Summary chart not reproduced here for convenience: see [19] below].

43. Having regard to the “Receipts” schedules to the 6 January 2016 ledger (which indicate to which levy number a receipt was banked), there may be reason to think that cheques for amounts which appear to equate to quarterly levies which were banked between 16 June 2014 and 1 December 2016 were applied to Grace Lawyers’ 14 February and 3 April 2014 invoices. It appears from the 13 April 2016 ledger, that this position was reversed in relation to the invoice dated 3 April 2014. It is not clear when this purported reversal occurred after 1 [sic: 6] January 2016.
44. If Owners Corporation was legally entitled to allocate payments made by Ms Kimber to payment of Grace Lawyer’s February and April 2014 accounts in that way (which is likely to be an issue: see: see Owners – Strata Plan No 14120 v McCarthy [2017] FCA 242), then the failure to recognise that allocation in the bankruptcy notice resulted in it being overstated, as claimed by Ms Kimber in the 1 April email.

19. For convenience, the chart which appeared in the leave decision at [42] is set out here:

++ The first item on this copy of the ledger is “balance brought forward $2,774.15”, followed by the information concerning 13 April 2014.

20. For completeness, we note that the documents included in JMK 1 at pages 19-31 contained many hand annotations drawing attention to allocations of payments which Ms Kimber claims were altered, inviting comparison between the ledgers and notices and claiming that information in the Owners Ledgers was either false or misleading.

1 April 2016 email exchange

21. At pages 32-33 of JMK 1 is a copy of an email chain bearing times on 1 April 2016. Page 32 is endorsed with a hand written heading “Email to “CREDITOR” Section 41 Notifying the Creditor Re Overstated amount”. Ms Kimber claims that she had a conversation with Mr Scott Martin, managing director of Linders Strata Management Pty Ltd which trades as Stratachoice, and an email exchange with him on 1 April 2016 in which she gave notice that the bankruptcy notice was overstated. Stratachoice provides body corporate management services to the Owners Corporation.
22. The first email in the chain (which appears at page 33 of JMK 1) is an email sent on 1 April 2016 at 5.29 pm by Mr Martin:

Hi Janelle
Thank you for our long discussion with regards to your legal matter. I look forward to the instructions from the EC – as per your initiative. As requested I have attached a copy of your lot ledger.
Have a good weekend.

Next to this email, Ms Kimber appears to have written “NOTE misleading NO LEDGER WAS ATTACHED only Owner’s Statement “altered” (10 March 2016 see LEDGER)”.

23. Ms Kimber’s reply, which is recorded as sent at 9.57 pm on 1 April 2016 and copied to a number of other people (Ms Kimber says that they were members of the executive committee of the Owners Corporation at the time) states (as written):

Dear Mr Martin,
Thank you for sending my current Owner’s Statement. [In handwriting: (NOT the ledger!)]
I have question the column displaying ‘00’ allocation of levies. ‘00’ set against all levies banked does not seem right and I would rather have all the details not just partial on the one pag. I have always found your accounts confusing. At at this crucial moment I seek crystal-clear clarity. SO please also SEND THE LEDGER TOO ... ASAP? Much appreciated.
Also, I really would like to view the account/ledger dating from the ‘00’ zero balance in early 2014, just before Grace Lawyers were engaged and their costs were put on to :ot 110 during 2013-2014 small claims case, unnecessarily and unlawfully instituted by Jim McDonald’s ‘SOLO+ ONE (?)’ instructions to Grace Lawyers, Daniel Radman in 2013.
Scott,
I spent my time too this afternoon talking to you, having not received any replies to my recent correspondence to the Secretary and to the email/connection with the committee of the Owners Corporation SP48216 .. Initiative? Thanks to Grace Lawyers ‘mistake’ as I was not ever meant to know? What a nonensical approach. Even members of parliament can be emailed.
...
Requests LISTED again?
1. For the Owner’s Statement/Owners ledger (LEDGER TOO PLEASE?)
2. As Jim McDonald’s employer, I appealed to you to inform your manager to advise the committee about the IRREGULARITIES of the bankruptcy Notice that I shared with you. [In handwriting: RE: OVERSTATED AMOUNT. Bold words hand underlined]
3. You were politely requested to advise your manager to advise the committee to withdraw the bankruptcy notice immediately to save on EXTRA costs and a court process.
4. I added that I saw you as taking a position of condoning the exploitation of legal processes If a process was ‘unnecessary’ to produce more costs for the owners/solicitors/me.
5. Please have Mr McDonald (Secretary) acknowledge my correspondence of 17 March, 2016 and encourage others to respond to the appeal for peace and settlement conditions.
6. Please confirm the minutes that point to where it states clearly that the Owners Corporation committee AND the manager made the decision together on the issue of issuing and serving another bankruptcy notice on 17 Marc, 2016. Meeting dates, place and time is please?
Please note the laws.
[Emphasis added in bold].

Other references to alleged invalidity of bankruptcy notice in JMK 1 and JMK 3

24. Page 35 of JMK 1 is headed “AFFIDAVIT ON ANNEXURES”. Pages 35 to 37 of JMK 1 are confusingly written. They nonetheless contain statements to the effect that Ms Kimber does not accept the decision made by the Registrar on 4 May 2016 and believes that the bankruptcy notice was invalid having regard to s 41(5) of the Bankruptcy Act. At pages 36 and 37 of JMK 1, Ms Kimber states (as written):

JMK was not informed that a ‘Hearing’ was being enacted at the First Directions Hearing for NSD 562/2016 and when confronted with producing evidence ‘in the moment’ [named Registrar] did not accept the ‘handing up’ of a piece vital hardcopy evidence. Bona fide copies of 2 on-line communication emails were presented on the day.
...
It seemed that at the behest of the Grace Lawyer solicitor, [named Registrar] was influenced to doubt whether or not an email or ‘its’ addressees were authentic. The Registrar was seemingly closed to my objection concerning the arguments put to him and I was again facing ‘the misrepresentations’ of Grace Lawyers solicitor.
A ‘material event’ was supported by evidence proving the bankruptcy notice had been INVALIDATED in accordance with S 41(2) and (5) of the Bankruptcy Act 1966
JMK was forced to reduce her argument against suspected fraud to statute s 41(5) After being ‘shouted down’ for objecting the solicitor’s misleading ‘speel’ I sought the constitutional right to be heard by a judge ...
[Underlining in the original, bold emphasis added].

25. We take the reference to “vital hardcopy evidence” and the “2 on-line communications” to be references to the 1 April emails.
26. In subsequent pages of JMK 1, Ms Kimber alleges improper conduct and mismanagement by the strata managers and others, puts forward her case theory in relation to events since 2009, quotes a range of statutory provisions, points out that she is self-represented and includes a range of material which is very difficult to follow or is otherwise inapposite in an application to review a decision of a Registrar to refuse to set aside a bankruptcy notice.
27. JMK 3 is directed to the many difficulties Ms Kimber experienced in conducting her matter as a self-represented litigant. Included in JMK 3 is a copy of Ms Kimber’s application lodged on 5 April 2016 which is prodigiously hand marked. Page 17 of JMK 3 duplicates paragraphs 18-20 of the application which are set out at [6] above. It is useful to set out her endorsements which we will indicate in italics and bold type:

* KEYNOTE S 41 (5)

18. *NB: The creditor’s Secretary and Manager were both informed by phone and email prior to 7 April, 2016 about the defective notice:

19 BANKRUPTCY ACT 1966-SECT 41-Bankruptcy Notices
(1) The Official Receiver who issued the bankruptcy notice on application of the creditor’s agent is informed that (2) the notice is not in accordance with the form prescribed by the regulations and invalidated by reason that (5) the sum specified in the notice as the amount due to the creditor exceeds the amount to be formally stated. JMK REMISS HERE NOT QUOTING S 41(5) HERE

20. I am alleging that the overstated amount on the notice is a the result of either recklessness, negligence or intentional negligence and that imposing the legal action itself was meant to ‘silence’ me, cause further distress and manipulate circumstances to create more fees and costs for the solicitors and agents.

BUT JMK PRODUCED EVIDENCE SUPPORTING S 41(5)?

28. At page 20 of JMK 3, Ms Kimber has set out a copy of the bankruptcy notice, circled the amount claimed, written above it “OVERSTATED!” and written elsewhere on the page “LOT 110 ACCOUNT ALTERED AFTER ISSUANCE”.
29. As part of her complaints in the “Court Focus”, at page 10 of JMK 3, there is what purports to be a copy of a note to the Court which says (among other things):

The letter (below) was written to the Registrar at the counter and taken ‘out the back’ for him to read.
14/4/2016 SYDNEY FEDCOURT REGISTRY
I would the court to hold/secure my levy payment that was due 1 March, 2016 for the period 1/3/16 – 1/6/16.
I have not paid $1015.70 as planned because I feared the levy will be used, as the previous 4 5 levies were used, to pay solicitor’s invoices instead of payment to the Owners Funds as appropriate in this case.
[Emphasis added – note that the numeral 4 in the emphasised passage is struck through in the original]

Application for summary dismissal

30. At a case management hearing on 27 July 2016, the Owners Corporation made an oral application for summary dismissal of the application for review. In relation to this application, the primary judge said at [4]-[5]:
    4. By an application made orally on 27 July 2016 (the summary dismissal application), the Owners Corporation seeks orders that Ms Kimber’s amended application be struck out and the proceeding dismissed pursuant to s 37P(6) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Alternatively, the Owners Corporation seeks summary judgment pursuant to s 31A(2) of the Federal Court Act. The Owners Corporation also seeks an order that Ms Kimber pay its costs. The orders sought are confirmed by the outline of submissions filed by the Owners Corporation on 11 August 2016. The basis on which the orders are sought are that the amended application “is ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, discloses no cause of action and is an abuse of court process.” The Owners Corporation also alleges that the amended application is vexatious and contains scandalous allegations against it, its officers, officers of the Court and others.
    5. For the reasons set out below, I consider that Ms Kimber’s amended application suffers from all of these deficiencies and difficulties and the proceeding should be summarily dismissed under s 31A(2) of the Federal Court Act. Furthermore, in so far as Ms Kimber seeks to challenge the Registrar’s decision to dismiss the application to set aside the bankruptcy notice, she seeks to raise claims for which no evidence has been proffered before the Registrar or in this Court to support the vague and conclusory allegations of dishonest and other improper conduct made against the Owners Corporation and others.

Owners Corporation’s submissions

31. The submissions filed by the Owners Corporation noted that the Local Court judgment resulted from defended proceedings and that it had not been appealed. They cited rr 16.02, 16.21, 16.59, 26.01 and 40.01 of the Federal Court Rules 2011 (Cth) (Rules) dealing with the form and content of pleadings, amending pleadings, costs and the grounds on which pleadings may be struck out or judgment given and ss 31A, 37P and 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) dealing with summary judgment, striking out or dismissing pleadings and costs.
32. At paragraph [9] of its submissions, the Owners Corporation summarised Ms Kimber’s review application as follows (as written):

On 11 July 2016 the Applicant filed the Amended Interlocutory Application seeking the following orders:

1. Pursuant to rule 1.31 of the Federal Court Rules 2011, the order made by [named Registrar] on 4 May 2016 for the Applicant to pay the Respondent’s solicitor’s costs should be annulled.
2. Pursuant to rules 1.32 and 9.05 of the Federal Court Rules 2011, the joinder of parties to the proceedings including the Respondent’s solicitors, strata managing agents and members of the Executive Committee.

100. An “estopple on the creditor’s petition.”

4. “For the Court of this legal proceeding to be ‘cross-vested’ with the power of accrued jurisdiction.”
5. An injunction against the Respondent’s solicitors, Grace Lawyers, and Strata managing agent, Linders Strata Management Pty Ltd.
6. Reliance on correspondence or undisputed documents.
7. Human rights.
8. The Privacy and Personal Information Protection Act 1998.

33. The Owners Corporation noted that the interlocutory application originally filed by Ms Kimber sought a number of orders. However, although the Registrar made three orders on 4 May 2016 (see [7] above), Ms Kimber only sought review of the second order (which dealt with discharging the order extending time for compliance with the bankruptcy notice). Following leave being granted to Ms Kimber to amend the interlocutory application to seek review of all of the orders made on 4 May 2016, the review application now seeks review of only the third order made on that day which relates to costs.
34. The Owners Corporation submitted that the review application should be struck out in its entirety as it does not comply with rr 16.02 or 16.59 because :
    22. ... The Amended Interlocutory Application is defective in form, style and content; does not contain consecutively numbered paragraphs each dealing with a separate matter; it is not brief but rather a verbose diatribe attacking the Court, the Respondent and the Respondent’s lawyers, Strata manager and executive committee; does not state clearly and concisely the orders sought by the Applicant or the factual and legal basis for the Applicant to seek those orders in the Amended Interlocutory Application; has not been amended in accordance with Rule 16.59, that is, the amendments have not been marked on the initial Interlocutory Application; and is not an amended version of the initial Interlocutory Application, rather it is an entirely new document which the Applicant did not have leave to file.
    23. The Respondent is unable to decipher what orders are being sought or the legal or factual basis for those orders such that the pleading is unintelligible, ambiguous and vague. Further the pleading fails to identify a valid cause of action which this Court has jurisdiction to hear or material factual or legal basis for the Registrar’s orders to be disturbed.
    24. The pleading is embarrassing, confusing and contains irrelevant allegations which will increase expense if they are to be responded to. The prejudice that will be suffered by the Respondent in having to interpret and respond to Amended Interlocutory Application is extreme.

35. The Owners Corporation went on to submit that the defects in the pleading are so extensive that no amendment was capable of rectifying them and, when given an opportunity to rectify the pleading, Ms Kimber had failed to do so and should not be given a further opportunity.
36. The submissions recorded at [34] and [35] above were reiterated at paragraphs [43]-[45] under the heading “Conclusion”.
37. The Owners Corporation submitted that the first order sought by Ms Kimber (see the Owners Corporation’s summary at [32] above), that is, to annul the Registrar’s costs orders pursuant to r 1.31, does not disclose a reasonable cause of action. It submitted that r 1.31 does not authorise the Court to amend the costs order and the usual order as to costs is that they follow the event. In circumstances where Ms Kimber was not seeking review of the Registrar’s other orders, it said that there was no factual or legal basis to set aside the order for costs.
38. Further, it submitted that the review application (including the other orders sought) was an abuse of process because Ms Kimber was not seeking merely a review of the Registrar’s orders, but rather a whole raft of orders that the Court sitting on review of a registrar’s orders does not have jurisdiction to hear or determine in an interlocutory application. It notes (at paragraph [27]) that on page 4 of the review application Ms Kimber “pleads”:

“This Interlocutory Application is not simply seeking to review one set of decisions made by one decision-maker on one day, the 4^th May 2016 as the applicant orders that the words said and things done or not said and not done in the NSW District Registries of the Federal Court and the Federal Circuit Court between 5^th-20^th April 2016 by other officers of the Commonwealth claiming unfair procedures have jeopardised her rights and rightful access to the law and natural justice.

Ms Kimber’s submissions

39. The submissions filed by Ms Kimber in relation to the summary dismissal application did not address s 41(5) of the Bankruptcy Act or the 1 April 2016 email exchange at all. The submissions comprised 13 very difficult to follow pages. In many respects they may be summarised as a plea that, in her dealings with the Owners Corporation, the strata managers, the solicitors and the Court (in relation to the review application), they have regard to substance rather than form and compliance with “rules”. She says that:

Legal problems (created and) prolonged (by agents and officers) in my case, have seen permanent losses, the onset of chronic illness and broken relationships and (the effects of) a dysfunctional, (and allegedly) corrupt governance (system) with a tendency to put ‘profit before people’ and ‘rules before facts’, is an oppressive reality in my daily life.

40. Ms Kimber rejected the claims made in the Owners Corporation’s submissions at paragraph [23] saying (among other things) the following (as written):

RE: CLAIMING UNINTELLIGIBLE (DR Pg 7 No 23)
12. The solicitor ‘and others’ were well versed in the rules of form and style, should (as a rare event) be able to decipher an ‘unusual’ document in a form and style received from a self represented person. It is not reasonable to label a document ‘unintelligible’ or expect that a ‘usual’ document informal style will be a ‘usual’ event. Solicitors or judges have intelligence, training and practice well beyond that of a layperson. Just as professional practitioners of the law can make errors and are allowed to add or omit details “at any time” to amend and further amend documents, a self represented person should have liberty to do the same with rules allowing for non-compliance (to ‘strict’ conventions).
...
DID THE SOLICTOR DECIPHER THE INTERLOCUTORY DOCUMENTS? I BELIEVE HE DID.
...
[Ms Kimber refers to paragraph [27] of the Owners Corporation’s submissions set out at [38] above]
26. Mr Radman reveals he not only deciphered but (also) had insight into the content and pleadings and in critiquing form and style, he has not given a single defence to any pleading in submissions obviously read. His first hand knowledge and evidence in his possession of material facts that support the applicant’s case implicate him (I propose a breach to solicitor client confidentiality will be an issue).
27. The need to clarify, simplify and bring the ‘unusual’ into the realm of ‘usual’ is challenging for a layperson novice and form and style complex and in the solicitors own words are extremely prejudicial I am not only becoming tempered but also fortified through this court experience, and I am thankful for any court mercies. I will attempt to disclose specific evidence in an unambiguous way, with the permission of the court and trust the solicitors and managers accept that embarrassment is a natural consequence of guilt. To have the light shine on dark corners of a messy house is embarrassing
28. For 3 years in the five systems of the local court, the NSW Tribunal, the Supreme Court, the Federal Circuit Court and the Federal Court administration and executive systems of management the focus of ALL Grace Lawyers court presentations are broad brushed with laws and arguments about regulations that somehow manages to evade answers and distance (the truth) or distort the facts.
30. As a layperson self representing and observing first hand, it is clear to me that content is being avoided (along with facts) and form and style are the focus. The solicitor makes his unambiguous claims, evading the specific complaints with no suggestion of support evidence I will now attempt to refute his arguments by presenting specific facts and specific points of law under the following statutes.

41. At the hearing of the application for summary dismissal, Ms Kimber confirmed that the grounds articulated by her in the review application with respect to the Registrar’s orders made on 4 May 2016 superseded the grounds in the original application which was considered by the Registrar and both parties proceeded on that basis in their written and oral submissions: see primary judge’s decision at [38]. No transcript of the hearing of the summary judgment application is in evidence.

SUBMISSIONS ON THE APPEAL

Ms Kimber’s submissions

42. On the first page of her written submissions on the appeal, Ms Kimber said (as written):

Judicial Facts And Error- Procedural Unfairness
The primary judge erred in failing to consider whether the applicant had a reasonable prospect of success in her claim that the bankruptcy notice BN 188465 was invalid having regard to s 41(5) of the Bankruptcy Act 1966 (Cth) failing to find that the evidence already handed up at the first directions hearing proving that the applicant had made a lengthy phone call with SP 48216 agent Linders “Stratachoice” General Manager on 1 April 2016 one week before her Court application was due, carbon copying this email to The Owners SP 48216 committee members to inform them all that she objected to this second maliciously overstated notice misguided by a strata manager and/or solicitor acting outside strata scheme bylaws for ‘debt’ collection. Information was deliberately concealed by the SP 48216 strata manager and access to a vital ledger was deliberately with held by the general manager on 1 April 2017.
A judicial obligation of the primary judge was to provide a ‘rehearing de novo’ as a remedy to reviewing a registrar’s decision. Months of effort had to be spent to have rights restored. This appeal was ordered, except that in orders limiting the criteria the difficulty is that it is very hard not to address the underlying core matters creating misrepresented figures that invoked s41.5
...
[The primary judge] did not correct herself and did not find the evidence handed up in the first court.
The initial NSW registry filing delay had set a course for a case of unfair procedure from the first directions hearing where the applicant contends that the registrar failed to pass evidence onto the primary judge, clearly written and given in oral testimony in presenting a case that was complex and therefore eligible to list before a judge with the right to subpoena witnesses having all the evidence against a bankruptcy case founded on fraudulent misrepresentations.
...
Evidence to be relied on in support of the arguments related to this appeal are produced in the Appeal Book “D”, and essentially extracted from the relevant affidavits, annexures and the other documents with the court’s own record accessible to a judge at this stage, only because it was naturally assumed that evidence handed up court on 4 May 2016 would be kept on file from the first directions hearing that, had proceeded to a hearing without the knowledge or consent from the applicant.

43. Ms Kimber then makes a number of submissions in support of the Full Court allowing her to rely on the “Part D” appeal book documents which she filed and makes a number of complaints about the process by which the Appeal Book was put together.
44. Under the heading “CHRONOLOGY AND QUESTIONS” Ms Kimber poses a number of questions. Her point concerning them is often cryptic. For convenience, we will address each of them in turn here.

(1) Concerning 5 April 2016:

Was the court informed that the overstated notice was challenged according to S 41 5?
TAB 1 – Pg 5 Para 18-20 Form 2 Application
TAB 66 – Court Transcript 4 May 2016 pg 17 – line 25

5 April 2016 was the date of Ms Kimber’s first attempt to file her application to set aside the bankruptcy notice. That document contained the material referring to s 41(5) which is set out at [6] above. As noted at [41] above, the parties agreed to proceed before the primary judge on the basis of the review application, not the application which was before the Registrar. The transcript of proceedings before the Registrar was not before the primary judge. It forms part of Part D. We are not satisfied that that new evidence should be allowed to be admitted on the appeal. We do not understand there to be a contest that a copy of the 1 April 2016 email exchange was before the Registrar and it was included in JMK 1.

(2) Concerning 18 April 2016:

On the face of that document, does an inordinately issued Creditors Petition contain evidence pointing to acts of dishonesty, negligence, deception or fraud?
TAB 2 – pg 14 to 18

Ms Kimber’s sense of injustice and confusion in these proceedings has undoubtedly been made worse by the fact that the creditor’s petition was accepted for filing by the Federal Circuit Court of Australia on 18 April 2016. However, insofar as that sense of injustice results from the fact that the creditor’s petition was filed before her application to set aside the bankruptcy notice has been determined, it is unwarranted. Ms Kimber appears to be unwilling to accept an innocent explanation for the timing of the filing of the creditor’s petition. Because of inadequacies in the form of the application to set aside the bankruptcy notice which Ms Kimber attempted to file on 5 April 2016, including Ms Kimber’s error in reversing the parties on the form she filed, the application was not accepted until 20 April 2016 and therefore was not visible when the solicitors for the Owners Corporation conducted a litigation search prior to filing the creditors position. There is no injustice to Ms Kimber because the Owners Corporation and the Federal Circuit Court have accepted that it is necessary first to deal with her application to set aside the bankruptcy notice.

(3) Concerning 21 April 2016:

Were these torts and others raised in the Statement Of Claim to be addressed by the court?
TAB 3 pg 19 – 23

Before the primary judge, Ms Kimber sought to have all of her issues with the Owners Corporation dealt with in a single proceeding. She was not granted leave to raise this matter on appeal. The primary judge did not have jurisdiction to resolve the claims made in the document headed “Statement of Claim”, even if that document had not been of a kind that would clearly be susceptible to being struck out or not accepted for filing had Ms Kimber sought to commence separate proceedings on the basis of it.

(4) Concerning 2 May 2016:

Did Genuine Steps taken by the applicant receive any attention from the respondent to attempt to settle matters of concern before and during the second bankruptcy action?
TAB 6 – Pg 29 – 46

While, again, this reflects Ms Kimber’s sense of injustice arising from her dealings with the Owners Corporation, its agents and legal advisors, is not relevant to an application for review of the Registrar’s decision not to set aside the bankruptcy notice.

(5) Concerning 4 May 2016:

Did the court have the evidence ready to be argued and handed up to be assigned to a judge?
TAB 66 – Court Transcript 4 May 2016 (pg 17)

The force of this question appears to be Ms Kimber’s misplaced expectation that anything that was before the Registrar would automatically be before the primary judge. We comment on this issue under the heading “Consideration” below.

(6) Concerning 30 May 2016:

Had the judicial errors, jurisdictional facts and unfair procedures been raised before the court?
TAB 40 – Pg 61 – 64 Affidavit 30 May 2016

This is an obscure, unparticularised remark. These pages of the 30 May Affidavit relate to Ms Kimber’s complaints concerning the proceedings before the Registrar and her dealings with the Registry, the “Right to name liable parties”, various provisions of the Corporations Act which have no relevance and s 43 of the Bankruptcy Act, leading to a denial that Ms Kimber committed an act of bankruptcy. All of them are (in terms) outside the scope of the leave to appeal.

(7) Concerning 11 July 2016:

Were the issues raised in this application addressed in the respondent’s outline of submissions?
TAB 10
TAB 12

We understand this issue to be whether the summary of the review application at paragraph [9] of the Owners Corporation’s submissions filed in support of their application for summary dismissal of the review application adequately addressed the issues raised in the review application. We address this issue in “Consideration” below.

(8) Concerning 6 Sept 2017:

Did [the primary judge] take new evidence into account before the dismissal decision was made?
TAB 15

To the extent that Ms Kimber seeks to raise whether the primary judge erred in failing to accept new evidence, that is beyond the scope of the leave to appeal which was granted.

(9) Undated comment:
The overstatement on a bankruptcy notice shed light on methods used by ‘a class of persons’ in control of a body corporate, who in disregarding numerous laws and by-laws continue unchecked in positions of power, to abuse legal proceedings without timely costs disclosures or accurate invoices, taking full financial advantage of procedural errors seemingly exploited for pure profit and personal benefits.

45. Ms Kimber then quotes a passage from the High Court’s decision in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; HCA 58 at 177 and purports to quote a passage from that Court’s decision in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; HCA 57 at 598 dealing with jurisdictional error and aspects of procedural fairness, and a “19 Century Law Text” which is directed to the proposition that a court of equity will interfere in order to prevent a party to proceedings obtaining an unjust advantage in them. She concludes (as written):

The High Court stated that this includes:

1. entertaining a matter that lies outside the limits of the court’s powers;

b) acting in the absence of a jurisdictional fact

100. failing to consider a matter that the relevant statute required to be taken into account as a condition of jurisdiction

4. considering an irrelevant matter; and misconstruing the relevant statute in a way that leads to the decision maker misconstruing the extent of its powers or influence or pursuant to the doctrine of unconscionability.

“The court may, on application or of its own motion, correct clerical mistake or an error arising from an accidental slip in a judgment, order or certificate:” Uniform Civil Procedure Rules 36.17
This rule extends to where the judge has misunderstood the evidence Hall v Harris [1900] VicLawRp 87; (1900) 25 VLR 455 at 457); Yore Contractors Pty Ltd v Holcon Pty Ltd (unrep 17/7/89 NSWSC)

46. While each of the matters which Ms Kimber raises in relation to procedural fairness have their place depending on the context in which the issue arises, in this context we consider that the relevant question is, as submitted by Owners Corporation, whether in exercising her discretion to summarily dismiss the review application, the primary judge erred in the manner addressed by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499; HCA 40 at 504-505 per Dixon, Evatt and McTiernan JJ:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

47. Ms Kimber then addresses aspects of the leave decision relating to the changes to the Owners Ledger. Ms Kimber repeats allegations that the Owners Ledger was manipulated to place her into arrears to ensure that claims for legal costs were being made “together with” the “collection of levies arrears as strata law states”, creating arrears and an “unfinancial” status such that her “right to vote was forcibly taken”. She says that, by the reallocations in the Owners Ledger, “imposing arrears achieved and the reversal of levies used to pay Grace Lawyers invoices, suited the objective of correcting a solicitor’s overstated bankruptcy notice by an exact amount”.
48. Ms Kimber then makes reference to s 35A(5) of the FCA Act (referring to it as part of the Rules), r 1.31 (the Court’s power to make orders having regard to the nature and complexity of proceedings), r 1.34 (the Court’s power to dispense with compliance with rules), r 9.05 (dealing with the joinder of parties) and r 39.05 (the power of the Court to set aside or vary a judgment or order after it is made). She then sets out the following passage:

NSW PROFESSIONAL CONDUCT AND PRACTICE RULES2013 (Solicitors’ Rules)
“Counsel must not mislead the court, must not cast aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients which the law or the standards of his profession require him to produce.” Breach Of Professional Conduct Rules-Virginia Shervington B.A L.L B (Syd) Senior Ethics Solicitor Law Society Of NSW

49. Ms Kimber then cites s 37M of the FCA Act (dealing with the overarching purpose of the civil practice and procedure provisions), s 21 of the FCA Act (which deals with declarations of right), s 39B(1A) of the Judiciary Act 1903 (Cth) (dealing with the jurisdiction of this Court), s 5F of the Bankruptcy Act (which deals with when a person shall be taken to control an entity for the purposes of that Act). She refers to s 41(5) of the Bankruptcy Act. She the cites s 33(b) of the Bankruptcy Act which is said to allow the amendment of any written process or proceeding or notice under that Act “if any document or any proceeding is considered to be prejudicial” (emphasis in the original). She then cites, s 303(a) of the Bankruptcy Act which she purports to quote in part. She then makes reference to provisions of the Strata Schemes Management Act 2015 (NSW) dealing with spending by large strata schemes, the duties of the strata committee and the strata manager and breaches by the strata managing agent. She then refers to sections of the Property, Stock and Business Agents Act 2002 (NSW) said to be dealing with the liability of licensees for acts of employees including among other things fraudulent conversion and false accounts of money received by a licensee or registered person, many provisions of the Corporations Act 2001 (Cth) dealing with (among other things) duties of directors and responsibility for actions of delegates, negotiable instruments, indemnification exemption of offices or auditor, insurance premiums and indemnities, false and misleading statements or information and offences committed partly in or outside the jurisdiction; ss 51 and 52 of the Trade Practices Act 1974 (Cth) dealing with misleading or deceptive conduct and a bare heading of “Public Service Act 1999 (Cth)”. These references to legislative enactments are not paired with any particular claim made by Ms Kimber.
50. Ms Kimber then goes on to cite a number of cases under the heading “Case Law”. The cases cited appear to deal with when there is “a single controversy”, the capacity of the Court to receive new evidence in a hearing de novo, the desirability of addressing error without resort to “expensive and time-consuming appeal proceedings”, the capacity to set aside a judgment or order entered or made irregularly (having regard to “r 36.15(1)” of an unspecified legislative instrument), the ability to set aside a judgment for fraud and the obligation of a legal practitioner not to use litigious procedures for purposes for which they were not intended, whether instructed to do so or not.
51. In this context, Ms Kimber repeats the propositions from Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [42] and Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; FCA 851 at 41 quoted at pages 2-3 of the review application. Ms Kimber concludes this section with a statement that there are many judgments saying that there is no discretion where the vitiated error is “manifest” and the applicant for the remedy is a person directly aggrieved, relying on Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; HCA 57.
52. Ms Kimber concludes with references to articles 17 and 26 of the International Covenant on Civil and Political Rights.

Owners Corporation’s submissions

53. The Owners Corporation submit that the failure of the primary judge to consider expressly the question of whether a ground that the bankruptcy notice was defective in the sense required by s 41(5) of the Bankruptcy Act had any reasonable prospect of success was not an appealable error.
54. The Owners Corporation notes that Ms Kimber’s application to set aside the bankruptcy notice, which was taken as filed on 20 April 2016, pleads that the “overstated amount on the notice is a the result of either recklessness, negligence or intentional negligence and that imposing the legal action itself was meant to ‘silence’ me”. In the body of the 30 May Affidavit, she says that she does not “deserve” the bankruptcy notice because of her claim that “the parties ‘in concert’ obtained an “ill-gained judgement order”, but there is no reference to s 41(5).
55. Submitting that there is no reference in Ms Kimber’s evidence to how the amount in the bankruptcy notice has been overstated and that is not explained in any document, the Owners Corporation says the only inference that can be drawn is that the basis on which Ms Kimber sought to set aside the bankruptcy notice was that the Local Court judgment on which the bankruptcy notice was based was invalid and should not have been obtained and the references to s 41(5) must be understood in that context. The Owners Corporation says that the body of the 30 May Affidavit (see [10] above), contains statements of belief rather than evidence, and does not refer to s 41(5), to any “overstatement” in the bankruptcy notice, to any payments made towards the Local Court judgment or describe the relevance of any of the documents in the exhibits. It notes that there is one brief reference to s 41(5) in the review application (which we take to be the one quoted at [16] above), however no order is sought on that basis nor is there any “evidence” referred to in order to identify any defect, irregularity or misstatement apparent in the bankruptcy notice. It says that at paragraphs [9]-[13], [42] and [69] of the primary judge’s decision, the primary judge noted the circumstances in which the Local Court judgment was given and finds that there is no basis to “go behind” that judgment. At [69], the primary judge found that Ms Kimber had led no evidence lending any credence to her claims that the Local Court judgment had been obtained by dishonest conduct and that her claims were conclusory with the result that the Court could not set aside the bankruptcy notice by “going behind” the judgment debt. At [70], the primary judge concluded that:

In those circumstances, no basis has either been identified in the pleadings or demonstrated by any evidence for the bald allegations made of serious misconduct against the Owners Corporation and others, and the allegations should not have been made. It is no answer to this to say that the deficiency in Ms Kimber’s evidence might be addressed by the issue of subpoenas or other compulsive processes of the Court, by material which is plainly relevant to any ground on which the Local Court judgment might be challenged such as the alleged provision of invoices for legal costs, or by generalised submissions about overwhelming evidence and identified material.

56. The Owners Corporation notes that, in connection with the reference to s 41(5) in the review application, Ms Kimber refers to “Evidence: Ledger 3 June 2016. Manager/committee email dated 1 April 2016 - Court email dated 6 April 2016”. However, the Owners Corporation says in relation to this alleged “evidence”:

(1) None of those documents is mentioned in the body of the 30 May Affidavit.
(2) Ms Kimber failed (in the pleadings, written submissions and oral submissions) to direct the Court and the Owners Corporation to relevant pages or tabs of the attachments to the 30 May Affidavit which relate to the “overstated” amount.
(3) The attachments to the 30 May Affidavit do not include a “Ledger dated 30 June 2016” and the “manager/committee email dated 1 April 2016” does not refer to an overstatement in the bankruptcy notice. Rather, the 1 April 2016 email vaguely refers to “irregularities”.
(4) At [68], the primary judge expressly found that “no irregularity or non-compliance with requirements for the issue and service of a bankruptcy notice is apparent; nor is any sought to be raised by Ms Kimber” (emphasis added).
(5) The 1 April 2016 email was not sent to the creditor’s solicitors, as required by the bankruptcy notice.
(6) Ms Kimber does not assert that the bankruptcy notice was overstated by reason of payments made, nor did she provide any evidence of payments made towards the Local Court judgment.

57. Having regard to the Owners Ledgers dated 25 February 2015 and 6 January and 13 April 2016 included in JMK 1, the Owners Corporation submitted that the relevant question is whether, at the date the bankruptcy notice was issued, Ms Kimber had knowingly or intentionally made payments towards the Local Court judgment debt. It says that:

(1) The Owners Corporation itself did not allocate the payments made by Ms Kimber prior to 25 February 2015 to the costs which underlay the judgment debt as the Owners Ledgers for lot 110 suggest;
(2) It is irrelevant that the computer system employed by Stratachoice allocated payments it received to liabilities of a lot in chronological order with the result that some payments were allocated to Grace Lawyers’ invoices of 14 February and 3 April 2014 before the bankruptcy notice was issued.
(3) The reversal of the allocation of payments to the Grace Lawyers’ accounts (as reflected in the 13 April 2016 Owners Ledger for lot 110) reflects Ms Kimber’s wishes. Ms Kimber does not assert that the reversals should not have been made but rather that no payments should be allocated to the “ill-gotten” judgment debt and she does not “deserve” the bankruptcy notice.
(4) The Local Court judgment has never been appealed or set aside and no payments have been made in relation to it so that the bankruptcy notice is not overstated.

58. The Owners Corporation points out that Ms Kimber made no reference to s 41(5) in the written submissions filed by her in the proceedings before the primary judge. Nor did she refer to any overstatement in the bankruptcy notice, any payments being made on the judgment debt, what the evidence was that the Registrar failed to have regard to when making orders on 4 May 2016. She made no submissions regarding the prospects of success of a claim made under s 41(5).
59. The Owners Corporation says that, having given detailed consideration to the circumstances in which the Local Court judgment was entered and whether there was cause to “go behind” that judgment, the primary judge gave proper consideration to Ms Kimber’s claim based on s 41(5) having regard to how it was framed in the review application (as set out at [16] above). In those circumstances, it says that there is no basis for an appeal court to set aside the decision of the primary judge in exercise of her Honour’s discretion to summarily dismiss the application for review, relying on House v The King.

CONSIDERATION

60. The review application and the 30 May 2016 Affidavit are difficult documents. They do not comply with the Rules, they are repetitive and they contain complaints about Court staff and members of the executive committee of the Owners Corporation, the strata managers and Grace Lawyers which are personal and some are plainly scandalous. Her oral and written submissions are no less challenging. The exact nature of many of Ms Kimber’s complaints is hard to establish. Many of the matters she raises are either outside the scope of the Court’s jurisdiction on an application to set aside a bankruptcy notice (for instance, to change the outcome of the Local Court proceedings having regard to the course taken in attempts at mediation) or misconceived (in effect, treating the review application as an appeal from the Registrar’s decision). She has plainly struggled as a litigant in person, both with accepting the limits of the Court’s jurisdiction and the disciplines imposed by the FCA Act and the Rules designed to ensure fairness to all parties.
61. Faced with these difficulties, the primary judge gave proper and careful consideration to:

(1) the fact that the review application under s 35A(5) and (6) of FCA Act requires a hearing de novo;
(2) the requirements for how a pleading must be set out and what it must not contain under paragraphs (1) and (2) of r 16.02 of the Rules, correctly noting that those requirements reflect the function of pleadings, namely to state with sufficient clarity the case that must be met so as to ensure procedural fairness and, incidentally, to define the issues for decision;
(3) the fact that even if a pleading should be struck out under r 16.02, it does not necessarily follow that a proceeding should be stayed or dismissed - an opportunity to re-plead might be allowed;
(4) the legislative bases on which such an application might be struck out or summarily dismissed or evidence disallowed, being s 37P of the FCA Act or judgment given against a party under s 31A(2) of the FCA Act and r 26.01 where an application has “no reasonable prospect of success”; and
(5) the matters which she understood the amended application to raise (see [15] above).

62. In relation to the question of whether an application has “no reasonable prospects of success” for the purposes of s 31A, the primary judge, again correctly, relied on the principles which she summarised in Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381; FCA 1045 at [35]-[39] as follows:
    35. First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J).
    36. Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129–130...”: White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) at [54] (Lindgren J); see also Cassimatis at [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

...effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. ...[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

37. Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at [50] (Reeves J).
38. In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).
39. Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at [46] that:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

63. In relation to the issues which the primary judge identified as having been raised by the review application, she honoured each of these principles in reaching her conclusion that the review application should be dismissed summarily.
64. However, the primary judge did not identify the question of whether a ground based on s 41(5) of the Bankruptcy Act had any reasonable prospect of success even though there is an explicit reference to s 41(5) at pages 2-3 of the review application (see [16] above) and there are a number of explicit references to that section in JMK 1 and JMK 3 in connection with complaints about changes in allocation of payments made by Ms Kimber to the Owners Corporation in the Owners Ledger for lot 110 between 6 January 2016 and 13 April 2016, a period which includes the time of the issue of the bankruptcy notice. Ms Kimber’s claim that the Owners Ledgers had been “jimmied to fit” the bankruptcy notice is pointed. Section 41(5) is not mentioned in the primary judge’s reasons nor is there any finding in relation to the relevance of the 1 April 2016 email exchange between Ms Kimber and Mr Scott Martin or the Owners Ledgers.
65. It is certainly the case that the focus of Ms Kimber’s submissions and the review application is her claim that the Local Court judgment was an “ill-gotten” judgment with the result that she did not “deserve” the bankruptcy notice. None of the body of the 30 May Affidavit, the orders sought in the review application or Ms Kimber’s written submissions to the primary judge in relation to the summary dismissal application contained a reference to s 41(5). Those documents clearly did repeatedly express Ms Kimber’s concern that the bankruptcy notice was part of a concerted, malicious effort by Stratachoice, Grace Lawyers and the executive committee of the Owners Corporation to prosecute the Local Court judgment. That remains the bias of Ms Kimber’s argument even in her submissions to the Court despite the fact that she was granted leave to appeal only on the basis of s 41(5): see [42] above.
66. Such a confined understanding is not, however, consistent with the language used at pages 2-3 of the review application. It is true that Ms Kimber does not assert that she intentionally made payments towards the amount of the Local Court judgment; she says she intended moneys which she paid to be allocated to periodic levies. She certainly would accept that the bankruptcy notice was “overstated” because (she says) the Local Court judgment should not exist. However, she does also focus on the fact that the allocations in the lot 110’s Owners Ledger to solicitors’ fees which formed part of the Local Court judgment debt before the bankruptcy notice was issued were changed to remove those allocations and assign moneys paid to periodic levies instead. The language which is emphasised in bold at [16] complains about the conduct of the Owners Corporation’s legal representative in the proceedings before the Registrar on the basis that that representative sought to minimise the invalidation of the bankruptcy notice under s 41(5). Ms Kimber clearly states that she claimed the invalidity because of her conversations with Mr Martin and the 1 April 2016 email exchange. In the bolded material, Ms Kimber notes that the telephone call and the email exchange occurred within the 21 days period for compliance with the bankruptcy notice as required by ss 41(2) and (5). She uses the term “overstated” and refers to the “defective” bankruptcy notice. She states her belief that the “ledger” had been “jimmied to fit” the defective bankruptcy notice 12 days after her conversations with the strata manager and the 1 April 2016 email (that is, on 13 April 2016). Those claims are supported by the materials in JMK 1 and JMK 3 identified above.
67. The primary judge found that the requirements of reg 4.02 of the Bankruptcy Regulations 1966 (Cth) and s 41(2) of the Bankruptcy Act had been met in relation to the bankruptcy notice. Her Honour also found that the 30 May Affidavit did not support contentions that the strata managers or Grace Lawyers had engaged in serious misconduct in relation to procuring the Local Court judgment such that it was not appropriate to “go behind” that judgment. Her Honour therefore found that there were no reasonable prospects of success of such claims: see primary judge’s decision at [68]-[71].
68. In contrast, there is no evidence that the primary judge understood that Ms Kimber relied on s 41(5) to claim that the bankruptcy notice was invalidated because her payments had been allocated to solicitors’ costs included in the Local Court judgment as recorded in the Owners Ledgers for lot 110. There is no reference to such a claim or findings relating to it in the primary judge’s reasons. In those circumstances, the primary judge could not have formed a view as to the prospects of success of that ground.
69. For clarity, it is undoubtedly true that the review application fails to comply with the requirements of rr 16.02-16.04 and 16.59 as to the form, content and amendment of pleadings in almost every conceivable respect. Contrary to some of Ms Kimber’s submissions to the primary judge, we do not think that it was for the primary judge to search out the import of the reference to s 41(5) from the review application and the 471 pages of the 30 May Affidavit to find the materials at JMK 1 and JMK 3 referred to above. The fact that a litigant is unrepresented cannot impose such a duty on the judge. The Rules do apply to unrepresented litigants even if some tolerance for non-compliance with the Rules is often afforded to such litigants in the interests of justice. The justice system of Australia would be bogged down to an unacceptable extent if the standard a trial judge dealing with an unrepresented party was expected to meet was that asserted by Ms Kimber.
70. Having said that, where a represented litigant brings an application for summary dismissal of an application made by a litigant in person, it is the duty of the applicant party to assist the Court to understand the claims made by the litigant in person and what might be the evidence called in aid of those claims. It is the duty of the lawyer representing the applicant party to assist it to fulfil that duty. Those duties are made explicit by ss 37M and 37N of the FCA Act. Section 37M(1) states that the overarching purpose of the civil practice and procedure provisions, being the Rules and any other provision made by or under the FCA Act with respect to the practice and procedure of this Court, is to “facilitate the just resolution of disputes ... according to law; and ... as quickly, inexpensively and efficiently as possible”. Section 37N(1) imposes an obligation on the parties to civil proceedings before this Court to conduct proceedings in a way which is consistent with the overarching purpose. Section 37N(2) imposes an obligation on a party’s lawyer to take account of the obligation imposed on that party by s 37N(1) and assist the party to comply with it. In exercising its discretion to award costs, the Court or a Judge may take into account the failure to comply with either of ss 37N(1) or (2).
71. That view is supported by the decision of the New South Wales Court of Appeal in Serobian at [42]. Ms Kimber relied on Serobian on page 2 of the review application, quoted at [16] above, and in her submissions on appeal. At [42], the Court of Appeal noted that s 56(3) of the Civil Procedure Act 2005 (NSW) imposes an obligation on parties to civil proceedings to assist the court to further the overriding purpose of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”. We endorse the view expressed by the Court of Appeal in Serobian at [42] that:

Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.

72. That is the case whether or not the unrepresented litigant has complied with the Rules in the presentation of claims and evidence. Indeed, it might be expected that there will be departures from the Rules of some dimension when a litigant with no legal training is involved. The existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts. Section 31A of the FCA Act is concerned with the summary disposition of proceedings. The Court must come to a view about the prospect of the proceedings and look beyond deficient pleadings unless the deficiency is incurable: see Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118; HCA 28 at [22]-[23] per French CJ and Gummow J.
73. In our view, the proper observance of the represented party’s duty to the Court encompasses telling the Court what may be the weaknesses of their summary judgment or summary dismissal application as well as making the case for it. To use an old expression, if summary judgment is claimed, it must be a “clean kill”. Otherwise, justice demands that the issues raised by the litigant in person’s application be tried.
74. The Owners Corporation’s written submissions filed in relation to the summary dismissal application summarise its understanding of the orders which Ms Kimber sought in the review application at paragraph [9]. Although paragraph [9a] summarises some of the underlined words at the end of the extract from pages 2-3 the review application set out at [16] above, it does not refer to the matters preceding it which relate to s 41(5) of the Bankruptcy Act at all, even though the Owners Corporation does (perhaps in error) refer to r 1.31 in that context. The whole focus of the Owners Corporation’s submissions to the primary judge was on matters of form and compliance with the Rules, not to the substance of Ms Kimber’s claims. Ms Kimber’s submissions (which also do not refer to s 41(5)) responded to that approach.
75. In our view it was for the Owners Corporation to make the primary judge aware of the s 41(5) issue and the relevance of the materials in JMK 1 and JMK 3 which bear on it. This is for two reasons. First, because the Owners Corporation was seeking summary dismissal or summary judgment of the review application. As the applicant for those orders, the Owners Corporation carried the onus of demonstrating that the review application had no reasonable prospect of success. Second, because Ms Kimber was unrepresented.
76. At paragraph [23] of its submissions to the primary judge, the Owners Corporation states that it could not decipher Ms Kimber’s claims. It is our view that the legal representatives for the Owners Corporation were in a position to understand the nature of Ms Kimber’s claims at pages 2-3 of the review application concerning s 41(5) and that the claims did not simply relate to an “ill-gotten judgment”. In terms, they related to the 1 April 2016 email exchange and to the question of the reversal of allocations made after the date on which the bankruptcy notice was issued. That can be derived from Ms Kimber’s statement that the “ledger” was “jimmied to fit” the bankruptcy notice. The detail of how Ms Kimber arrived at that conclusion can be found in the documents and handwriting on JMK 1 and JMK 3 concerning the need for comparison of the Owners Ledgers printed on 25 February 2015 and 6 January and 13 April 2016 and the 1 April 2016 email exchange. In our view, while her claims were that the allocations were made with ill-intent, she nonetheless asserted that her payments to the Owners Corporation in amounts required to meet regular administrative and sinking fund levies were applied to payment of solicitor’s invoices issued in 2014 such that the bankruptcy notice was overstated.
77. Mr Radman made submissions on the appeal that the allocations referred to in the Owners Ledgers were made by the computer system employed by Stratachoice and not by the Owners Corporation. We note that, possibly contrary to this submission, the levy notice issued on 1 February 2016 appears to have relied on those allocations (see [17] above). Mr Radman also submitted that Ms Kimber has always claimed that the Owners Corporation had no right to allocate moneys paid by her to the solicitors’ invoices comprised in the Local Court judgment so that the reallocations reflected in the 25 February 2015 and 6 January and 13 April 2016 Owners Ledgers were only in accordance with her wishes. He says that, accordingly, there is no defect in the bankruptcy notice.
78. Mr Radman might be right. However, there is no evidence that those submissions were made to the primary judge (nor did Mr Radman suggest that they were) and the resolution of those contentions relies on evidence (not submissions from the bar table) and submissions concerning the application of relevant case law or statutes to that evidence. That gives rise to complexity that traditionally requires a trial and, generally speaking, proceedings which have this aspect are unsuitable for summary dismissal. As was said by Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; FCA 641 at [49], the moving party on an application for summary judgment or dismissal would have to show a substantial absence of merit on either issues of fact or law to have a chance of persuading the Court that those questions should be resolved summarily.
79. As a factual matter which may distinguish this case from others, Grace Lawyers (and Mr Radman in particular) acted for the Owners Corporation in the Local Court proceedings and in mediation attempts. They had issued the solicitors’ invoices which founded the Local Court judgment. An employed solicitor had appeared for the Owners Corporation before the Registrar and that firm (and Mr Radman in particular) represented the Owners Corporation at the hearing of the summary dismissal application. A competent lawyer should, as part of his or her professional duty, have considered all of the relevant documents filed by Ms Kimber (however long, and even if they contain claims which are likely to be personally offensive) and the implications of the matters she raised in them.
80. In our view, the Owners Corporation and its solicitors have not satisfied that duty to the Court imposed by s 37N of the FCA Act. The failure to identify a ground based on s 41(5) raised by Ms Kimber and therefore to consider whether it has reasonable prospects of success is an error not of the primary judge’s making but that failure is nonetheless an error which vitiates her Honour’s decision. If only in relation to the s 41(5) ground, a triable issue existed. Justice demands that the appeal be allowed.
81. It is appropriate to add a few other remarks. As noted by the Full Court in Zdrilic v Hickie [2016] FCAFC 101; (2016) 246 FCR 532; FCAFC 101, applications for summary judgment or dismissal do not sit easily with applications for review of a Registrar’s decision in light of the “constitutional imperative” that the Registrar’s decision be subject to review by a judge. Further, debtors in the bankruptcy jurisdiction are often not legally represented. They often have a minimal grasp on the legal issues directly relevant to an application to set aside a bankruptcy notice or to resist a sequestration order. The essentially technical issues concerning pleadings and the form of evidence which arise on applications for summary judgment or dismissal can add to confusion and bewilderment at the process which seems to some litigants in person to have little or nothing to do with the underlying facts in circumstances where the proceedings have substantial consequences for them.
82. Worse, such applications are often not time or cost efficient compared to a prompt hearing of the review application. As in this case, applications for summary judgment or dismissal may open new avenues of appeal and involve consideration of whether or not leave to appeal the summary judgment or summary dismissal should be given, all of which add to time and cost of resolving the proceedings. There should be no reason why review applications cannot be heard quickly, with primary reliance on the materials which were before the Registrar. Indeed, like Ms Kimber, it is likely that many debtors without legal representation make the unsafe assumption that evidence which was submitted to the Registrar will automatically be before the judge on the review application.

DISPOSITION

83. The appeal is allowed. The primary judge’s orders should be set aside. The matter should be remitted to a single judge of this Court for a hearing and determination of Ms Kimber’s review application on the merits. Costs normally follow the event. It may be appropriate that we order the Owners Corporation to pay some or all of Ms Kimber’s out of pocket expenses (such as filing fees, photocopying fees (less those related to Part D) and travel expenses) in relation to the leave application and this appeal. However, in accordance with the exchange which occurred between Mr Radman and the bench at the hearing of the appeal, the parties will be given an opportunity to make submissions.
84. For completeness, as all material relevant to the appeal was contained in Parts A and B of the Appeal Book, we refuse leave to Ms Kimber to rely on Part D filed by her. To the extent that Part D contained material which was not before the primary judge, such as the transcript of proceedings before the Registrar on 4 May 2016, that was new evidence which should not be accepted on the appeal.

Associate:
Dated: 22 December 2017