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Key decisions

  • Kimber v The Owner Strata Plan No 48216 [2017] FCAFC 226
  • GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1
  • Fair Work Ombudsman v Lohr [2018] FCA 5
  • Giddings v Australian Information Commissioner [2017] FCAFC 225

Bankruptcy – practice and procedure

Duties of represented parties and their lawyers in proceedings against litigants in person

In Kimber v The Owner Strata Plan No 48216 [2017] FCAFC 226 (22 December 2017) the Full Court allowed an appeal against the primary judge’s summary dismissal of an application for review of a Registrar’s decision not to set aside a bankruptcy notice. The successful ground of appeal that was the subject of leave to the Full Court was that the primary judge erred in failing to consider whether the appellant had reasonable prospects of success in claiming that a bankruptcy notice was invalid having regard to s 41(5) of the Bankruptcy Act 1966 (Cth).

The material of the appellant litigant in person was generally deficient in form throughout the litigation process. The Full Court (Logan, Kerr and Farrell JJ) stated at [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 … or misconceived … 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’.

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