Legal Research
Cases
Allison v Murphy (No 2)

Allison v Murphy (No 2)

Case [2021] FCA 1631 22 December 2021

Type to search within this case.

FEDERAL COURT OF AUSTRALIA
Allison v Murphy (No 2) [2021] FCA 1631

File number: QUD 389 of 2021

Judgment of: ALLSOP CJ

Date of judgment: 22 December 2021

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13

Federal Court of Australia Act 1976 (Cth) ss 25(1AA), 25(2), 37M(1), 37M(3)

Federal Court Rules 2011 (Cth) r 36.05

Cases cited:
Allison v Murphy [2021] FCA 1551

Allison v Murphy [2021] FCAFC 232

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Edwards v Santos Limited [2010] FCA 34

Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822

Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCA 368

Minister for Immigration & Multicultural &Indigenous Affairs v WAKX [2005] FCA 227; 222 FCR 446

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153

Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536

Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 22

Counsel for the Applicant: Mr J Frankcom

Solicitor for the Applicant: CCA Legal Pty Ltd

Counsel for the Respondent: Mr AJH Morris QC

ORDERS

QUD 389 of 2021

BETWEEN:
PAUL FRANCIS ALLISON

Applicant

AND:
JOHN PAUL MURPHY

Respondent

ORDER MADE BY:

ALLSOP CJ

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.The respondent’s purported request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:

On 29 November 2021, I made a direction under s 25(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the application made by the applicant for an extension of time within which to institute an appeal be heard and determined by a Full Court immediately prior to, or concurrently with, any appeal in this matter. In answer to the applicant’s request for expedition of the application, I granted expedition and the application and any appeal was set down for hearing by a Full Court on 15 December 2021. On 30 November 2021, the Court received from the respondent, through his senior counsel, a purported request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for reasons in support of my s 25(2) direction. What follows are the reasons for my direction under s 25(2) and my grant of expedition. The direction is not an administrative act subject to the ADJR Act, but a decision so intimately connected to the exercise of judicial power and the discharge of the Court’s business as to be judicial.
Background
This matter concerns an appeal against a decision of the Federal Circuit and Family Court of Australia (Division…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allison v Murphy (No 2)

Details

AGLC: Allison v Murphy (No 2) [2021] FCA 1631
Case: [2021] FCA 1631
Decision Date: 22 December 2021

CaseChat Overview and Summary

In the case of Allison v Murphy (No 2), the plaintiff, Allison, brought proceedings against the respondent, Murphy, concerning a dispute under the Corporations Law. The Federal Court was tasked with determining the validity of the respondent’s attempt to seek judicial review of a decision made by a statutory body. The crux of the dispute lay in whether the respondent’s application for review was compliant with the requisite statutory provisions and procedural requirements.

The legal issues before the court centred on the interpretation and application of section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Specifically, the court had to decide whether the respondent’s application was properly made and whether it complied with the procedural prerequisites set out in the Act. The court also had to assess the timeliness and scope of the respondent’s request for review, given the context of the statutory decision at hand.

In delivering its judgment, the court examined the statutory language and relevant case law to determine the parameters of section 13. It found that the respondent’s application did not meet the necessary criteria for judicial review as it was neither made within the specified time limits nor did it address the correct subject matter. Consequently, the court dismissed the respondent’s request for review. The court’s reasoning underscored the importance of strict adherence to statutory procedures in judicial review applications.

The court subsequently entered orders dismissing the respondent’s request under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This decision was in line with the procedural directives outlined in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The respondent’s purported request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Allison v Murphy (No 2) [2021] FCA 1631

Most Recent Citation

Lu v Beijing Hua Xin Liu He Investment (Australia) Pty Ltd [2022] FCA 440

Cases citing this decision · 1 of 1 shown

Lu v Beijing Hua Xin Liu He Investment (Australia) Pty Ltd
[2022] FCA 440 Para 15

…nus of proof, but since a party who wants such a direction to be made is seeking the favourable exercise of a discretion (see Allison v Murphy (No 2) [2021] FCA 1631 at [19] (Allsop CJ)), it does seem that the party must establish some good reason why it should be exercised.…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Allison v Murphy
[2021] FCAFC 232 Para 3

…ent appeal application. The matter has now been heard and decided by a Full Court (on 15 December and 20 December, respectively: Allison v Murphy [2021] FCAFC 232). An extension of time was granted and the appeal dismissed.…
Allison v Murphy
[2021] FCA 1551 Para 11

…ith a security for costs application made by the respondent. That application was heard and dismissed with costs on 9 December 2021: Allison v Murphy [2021] FCA 1551. The orders made by Justice Downes on that occasion do not bear extracting here, except for the note contained in those orders that: “the respondent…
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19
[2021] FCAFC 153 Para 19

…bility in the allocation of judicial resources: see further Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [25]–[26]. Whilst, as evidenced in the authorities referred to at [14] above, there may be a greater presumption in favour of a single judge under…
Porter v Ghasemi
[2021] FCAFC 144 Para 16

…nsider the factors relevant to exercising the power to extend time: see e.g. Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144 at [40]. I considered it relevant that the applicant prima facie provided an acceptable explanation for the delay in filing the notice of appeal, tha…
Robson v Body Corporate for Sanderling at Kings Beach CTS 2942
[2021] FCAFC 143 Para 19

…f bankruptcy law. As discussed in Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143, including at [7], the bankruptcy jurisdiction, particularly sequestration orders, involves the exercise of great power over human lives, with potentiall…
Martin & Pleasance Pty Ltd v A Nelson & Co Limited
[2021] FCA 368 Para 14

…that a direction under s 25(2) may be warranted where some degree of expedition is appropriate: Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCA 368 at [19] per Wigney J. Finally, it is important to note that by virtue of s 15(1) of the FCA Act, the Chief Justice has final authority, under s 25(2), to de…
Ensham Resources Pty Limited v AIOI Insurance Company Limited
[2012] FCA 822 Para 14

…Inc (1991) 33 FCR 397; Edwards v Santos Limited [2010] FCA 34 at [10] per Collier J; and Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 at [9] per Griffiths J. It has also been said that a direction under s 25(2) may be warranted where some degree of expedition is appropriate: Martin & Pleas…
Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed)
[2011] FCA 536 Para 14

…r advantage to be gained by having a Full Court determine” the application: Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536 at [12] per Barker J. While the circumstances in which a direction under s 25(2) may be appropriate are not prescribed or limited, past decisions of this…
Edwards v Santos Limited
[2010] FCA 34 Para 14

…e to make such a direction: see Oswal at [16]–[17] citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Edwards v Santos Limited [2010] FCA 34 at [10] per Collier J; and Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 at [9] per Griffiths J. It has also been said that a directi…
Minister for Immigration and Multicultural and Indigenous Affairs v WAKX
[2005] FCA 227 Para 14

…ermine whether a matter be heard by a Full Court or single judge; see e.g. Minister for Immigration & Multicultural &Indigenous Affairs v WAKX [2005] FCA 227; 222 FCR 446 at [28]–[32] per French J (as his Honour then was). The question is one of the balancing of competing factors, some of which may be more or les…
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd
[2004] HCA 14 Para 14

…leave to appeal, outlined situations in which it might generally be appropriate to make such a direction: see Oswal at [16]–[17] citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Edwards v Santos Limited [2010] FCA 34 at [10] per Collier J; and Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 at [9] pe…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 14

…ns in which it might generally be appropriate to make such a direction: see Oswal at [16]–[17] citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Edwards v Santos Limited [2010] FCA 34 at [10] per Collier J; and Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 at [9] per Griffiths…

Legislation cited in this decision · 4

Federal Court of Australia Act 1976 (Cth)
25(1AA), 25(2), 37M(1), 37M(3) 5 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
13 2 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
36.05 2 mentions (from Para 4)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 3)

File number:	QUD 389 of 2021
Judgment of:	ALLSOP CJ
Date of judgment:	22 December 2021
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13 Federal Court of Australia Act 1976 (Cth) ss 25(1AA), 25(2), 37M(1), 37M(3) Federal Court Rules 2011 (Cth) r 36.05
Cases cited:	Allison v Murphy [2021] FCA 1551 Allison v Murphy [2021] FCAFC 232 Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Edwards v Santos Limited [2010] FCA 34 Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCA 368 Minister for Immigration & Multicultural &Indigenous Affairs v WAKX [2005] FCA 227; 222 FCR 446 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536 Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	22
Counsel for the Applicant:	Mr J Frankcom
Solicitor for the Applicant:	CCA Legal Pty Ltd
Counsel for the Respondent:	Mr AJH Morris QC

QUD 389 of 2021
BETWEEN:	PAUL FRANCIS ALLISON Applicant
AND:	JOHN PAUL MURPHY Respondent
ORDER MADE BY:	ALLSOP CJ
DATE OF ORDER:	22 DECEMBER 2021