McElligott v Australian Securities and Investments Commission
[2025] QCA 76
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- McElligott v Australian Securities and Investments Commission[2025] QCA 76
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McElligott v Australian Securities and Investments Commission[2025] QCA 76
McElligott v Australian Securities and Investments Commission[2025] QCA 76
SUPREME COURT OF QUEENSLAND
CITATION: | McElligott v Australian Securities and Investments Commission [2025] QCA 76 |
PARTIES: | LORAIN RONDA McELLIGOTT (applicant) v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (respondent) |
FILE NO/S: | Appeal No 13634 of 2022 SC No 4907 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension of Time |
ORIGINATING COURT: | Supreme Court at Brisbane – Unreported, 2 September 2022(Williams J) |
DELIVERED ON: | 20 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 May 2025 |
JUDGES: | Mullins P and Boddice JA and Kelly J |
ORDER: | The application filed 4 November 2022 is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the primary judge refused a further adjournment of an application made under s 601AH(2) of the Corporations Act 2001 (Cth) to reinstate a company – where the applicant requires an extension of time to appeal – whether the extension of time should be granted Human Rights Act 2019 (Qld), s 15, s 25, s 31, s 52 Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, cited Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, considered Carborough Downs Coal Management Pty Ltd v Nicholson [2023] QCA 119, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Taiepa v State of Queensland [2025] QCA 36, cited |
COUNSEL: | The applicant appeared on her own behalf No appearance for the respondent |
SOLICITORS: | The applicant appeared on her own behalf with J McElligott assisting No appearance for the respondent |
- [1]MULLINS P: I agree with Kelly J.
- [2]BODDICE JA: I agree with Kelly J.
- [3]KELLY J: This is an application to extend time to appeal a decision which refused a further adjournment of an application, made under s 601AH(2) of the Corporations Act 2001 (Cth) (“the Act”), to reinstate Westwood Enterprises (Qld) Pty Ltd ACN 083054139 (“the company”).
Background to the application to reinstate the company
- [4]The applicant was the company’s sole director. On 8 July 2009, a statutory demand was served upon the company by the trustees of a trust trading under the name of “Butler McDermott Lawyers”. The statutory demand claimed a debt of $5,270.62. The sum was not paid. On 14 October 2019, an order was made for the company to be wound up in insolvency under the provisions of the Act. During 2010, two unsuccessful applications were made to effectively stop the winding up, one by the applicant and one by her mother. On 3 June 2011, this Court refused an application for an extension of time within which to file a notice of appeal from the winding up order.[1] The company was eventually deregistered.
- [5]On 7 May 2019, the applicant, on her own behalf and as litigation guardian for her son, filed a proceeding against 13 defendants seeking damages caused by the wrongful winding up of the company and declarations in relation to the ownership of a parcel of land. It is unclear which, if any, of the defendants were served with the proceeding. On 5 November 2021, the applicant filed an application in the proceeding seeking an order for the reinstatement of the company. The application as filed was served on ASIC and made returnable, but was not heard, on 2 March 2022. On 30 June 2022, the applicant filed an amended application which again sought an order for the reinstatement of the company. By in or about July 2022, the proceeding was being managed on the self-represented supervised case list. On 25 July 2022, the supervising judge listed the amended application in the applications list on 22 August 2022.
The application is adjourned and then a further adjournment is refused
- [6]On 22 August 2022, the amended application came on for hearing in the applications list before the primary judge. The amended application had been served on ASIC, which did not oppose the application. Mr Farr, a lawyer, appeared for the first to fourth defendants, the trustees of the trust trading under the name “Butler McDermott Lawyers” who had served the statutory demand. Mr Hall, a lawyer, appeared for the eighth defendant, a former liquidator of the company. The proceeding had not been served on these five defendants. The applicant made a submission to the primary judge that she had not served the amended application on any of these defendants. The primary judge allowed the appearances of Messrs Farr and Hall, who relied upon written submissions. The primary judge allowed an adjournment until 2 September 2022, to afford the applicant an opportunity to consider issues raised in the written submissions.
- [7]On the adjourned hearing date, 2 September 2022, the applicant applied for a further adjournment on the basis that she had not had time to properly prepare. On that occasion, the applicant relied upon a mismatch of documents which were in some respects relevant to allegations made in the proceeding, in other respects relevant to the application for reinstatement, in other respects relevant to the initial adjournment and in other respects relevant to the application for a further adjournment. This material had been progressively provided by the applicant during the course of 1 and 2 September 2022, as attachments to emails sent in the applicant’s name to the primary judge’s associate and copied to, amongst others, Messrs Farr and Hall. At the hearing on 2 September 2022, the material was admitted and marked as exhibits. That material revealed that the applicant was applying for a further adjournment of between 3 or 4 months. The reasons for the further adjournment appeared from the material as follows. The applicant suffered from a medical condition and required time to recover from an injury to the third and fourth fingertips of her left hand which had involved damage to nerve endings and meant that she was unable to operate a keyboard without doing further damage. The applicant contended that she was unable to comply with standard timelines due to her disabilities. The applicant wished to obtain legal advice or representation and assistance from the Civil Law Legal Aid Scheme within Legal Aid. The applicant had first contacted Legal Aid on 22 November 2019. Further, on 1 September 2022, the applicant had provided a form of notice to the Queensland Human Rights Commission pursuant to s 52 of the Human Rights Act 2019 (Qld) (“the Human Rights Act”) seeking that the commission intervene in the proceeding on the basis that a question of law arose as to the interaction between r 5 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”), ss 15, 25 and 31 of the Human Rights Act and s 11 of the Anti-Discrimination Act 1999 (Qld) (“the Anti-Discrimination Act”).
- [8]In refusing the further adjournment, the primary judge reasoned as follows. The proceeding was being managed on the self-represented supervised case list and had been “subject to case management for a period of time”. The applicant had received the benefit of an extended timetable for the hearing of her amended application. The extended timetable had been ordered in a context where the proceeding had “been languishing for some time”. The time provided or allowed by the extended timetable was “ample”. The adjournment on 22 August 2022 had been “primarily focused on providing [the applicant] with an opportunity to respond to the issues raised in the written submissions”. Those submissions had raised questions of law. The applicant had been afforded an opportunity to consider the issues and to prepare anything further in respect of those issues. Section 52(3) of the Human Rights Act did not require a court to adjourn a proceeding in relation to which a notice under s 52 had been given.
- [9]The primary judge’s ex tempore reasons relevantly conclude with the following passage:
“Whilst [the applicant] has indicated that she is under some disadvantage in respect of being a self-represented litigant and, also, her personal circumstances, a period of over one month has been provided to enable her to prepare and to progress her own application. Since the commencement of these proceedings in 2019, the reinstatement of the company has been a relevant issue and has been a necessary element of the matter progressing beyond the initial stages. In the circumstances, I am not satisfied that there is any justification for adjourning the application further and the application for an adjournment is dismissed”.
Disposition of the application to extend time to appeal
- [10]The decision whether to extend time to appeal involves an “open-textured discretion”.[2] Factors recognised as relevant to the decision include whether there is an acceptable explanation for the delay, the extent of the delay and the merits of the proposed appeal, to the extent those merits are revealed by an impressionistic assessment of the proposed grounds.[3]
- [11]The application to extend time to appeal was filed on 4 November 2022, some 35 days after the expiry of the appeal period. The applicant’s affidavit filed in support of the application did not provide any reasoned explanation as to why a notice of appeal was not filed within time or reveal the cause or causes of the delay which had occurred, including in relation to the filing of the application to extend time. Rather, the affidavit included general, high-level references to the applicant as suffering from “multiple disabilities (difficulties with transport, mobility and everyday living tasks)”, being reliant on her daughter and living in a regional remote area, two hours north of Townsville. I am not satisfied that the evidence provides an acceptable explanation for the delay.
- [12]Adopting an impressionistic assessment by reference to the material filed by the applicant, the appeal would appear to lack merits. Decisions about amendments and adjournments have been described as “pre-eminently interlocutory decisions on matters of practice and procedure”.[4] In Sali v SPC Ltd,[5] Toohey and Gaudron JJ described a decision by a court to grant or refuse an adjournment as a decision “made in the exercise of a discretion vested in that court” and one which “will not lightly be set aside on appeal”. Their Honours cited House v The King[6] in support of the latter proposition. A similar approach can be seen in Aon Risk Services Australia Ltd v Australian National University,[7] where the High Court dealt with an appeal from a decision to allow an amendment after an adjournment, as an appeal involving whether the power to allow an amendment had miscarried by reference to error of the kind explained in House v The King.[8] In the present case, the decision as to whether to allow a further adjournment turned on the application of legal principles, to a large extent articulated in Aon, which did not demand a unique decision but rather tolerated a range of outcomes.[9] In any proposed appeal from the primary judge’s decision, it would be incumbent upon the applicant to demonstrate that the decision was vitiated by error of the kind explained in House v The King.[10] Further, as the decision was an interlocutory decision on a matter of practice and procedure, any appeal from the decision would call for an exercise of appellate restraint.[11] In re The Will of F B Gilbert (dec),[12] in a passage recently approved of by this Court,[13] Sir Frederick Jordan observed:
“… if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
- [13]The applicant did not identify any reasonable basis for a contention that, in the exercise of her Honour’s discretion, the primary judge misapplied the law or that the refusal of the further adjournment involved a miscarriage of justice. The proposed grounds of appeal involve contentions to the effect that the applicant was denied a fair hearing (in contravention of s 31 of the Human Rights Act), did not receive recognition and equality before the law (in contravention of s 15 of the Human Rights Act) and had her rights infringed because this Court failed to provide an independent body to assess her disability (in contravention of s 25 of the Human Rights Act). These contentions implicitly assume that the procedural steps involved unfairness which prejudiced the applicant’s conduct of the amended application. No such assumption is warranted by the material. Before the primary judge, it was objectively clear that there had been an apparently sufficient time for the applicant to marshal and prepare a significant amount of material. The primary judge aptly referred to the material received on the day of the hearing as “an extensive bundle of documents”. The voluminous material involved, at least in some significant part, typed written submissions advancing the applicant’s interests. In that objective context, the applicant’s arguments before the primary judge did not descend into any detail as to what relevant issue or issues on the amended application she had been unable to address or properly consider. The material does not demonstrate any reason for impugning the primary judge’s factual finding that the extended procedural timetable had afforded the applicant ample time to prepare. In making that finding, the primary judge expressly took account of the applicant’s personal circumstances related by her material, including the fact that she was self-represented. The proposed grounds involving the Human Rights Act and its suggested interaction with r 5 of the UCPR, would appear to involve hypothetical questions, not anchored to the facts of this case.
- [14]The material otherwise does not reveal any cogent reason for a suggestion that, as a matter of substance, the conduct of the amended application involved any real unfairness or relevant prejudice to the applicant. The primary judge averted to s 52(3) of the Human Rights Act and noted that nothing in s 52 required a court to adjourn a proceeding in relation to which a notice under s 53 had been given. There was nothing procedurally unfair about the appearances of Messrs Farr and Hall, who represented parties to the proceeding with an interest in the amended application. The primary judge correctly recognised that Messrs Farr and Hall had appeared to “protect their clients’ interests”.
- [15]In my respectful view, the decision reached by the primary judge appears as one which was well within the proper exercise of her Honour’s discretion.
- [16]There is no proper basis to extend the time for an appeal.
- [17]The orders I propose are as follows:
- The application filed 4 November 2022 is dismissed.
Footnotes
[1] McElligott v Boyce [2011] QCA 117.
[2] Carborough Downs Coal Management Pty Ltd v Nicholson [2023] QCA 119 at [27].
[3] Ibid at [25]; see also Taiepa v State of Queensland [2025] QCA 36 at [2].
[4] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 227 [150].
[5] (1993) 116 ALR 625 at 632.
[6] (1936) 55 CLR 499.
[7] (2009) 239 CLR 175 at 217 [110].
[8] (1936) 55 CLR 499 at 505.
[9] Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [15].
[10] (1936) 55 CLR 499 at 505.
[11] Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141 at [12]–[14] per Bond JA with whom Fraser JA and Wilson J agreed.
[12] (1946) 46 SR (NSW) 318 at 323.
[13] Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141 at 149 [12].