FEDERAL COURT OF AUSTRALIA
Anying Group Pty Limited v Wang [2012] FCA 702
Citation: Anying Group Pty Limited v Wang [2012] FCA 702 Appeal from: Wang v Anying Group Pty Ltd [2011] FCA 1196 Parties: ANYING GROUP PTY LIMITED (ACN 126 282 657), YANYAN SUN and YUN CHEN v HUA WEI WANG, XINYING PTY LTD (ACN 118 548 977) and NEW CENTURY 2001 PTY LTD TRADING AS ANYING SYDNEY COMPANY (ACN 114 661 568) File number: NSD 2199 of 2011 Judge: FLICK J Date of judgment: 29 June 2012 Catchwords: PRACTICE AND PROCEDURE – appeals – whether leave required – whether orders interlocutory or final in nature – original proceeding not finally determined – whether any order can be regarded as final while matters remain outstanding – whether determinations of liability with quantum to be assessed final or interlocutory – all orders in proceeding interlocutory until all rights and liabilities of parties determined
PRACTICE AND PROCEDURE – appeals – dismissal for failure to comply with Rules – leave to appeal not sought – no attempt to seek leave or extension of time in which to seek leave – no attendance at interlocutory hearing – appeal dismissed
Legislation: Constitution s 73
Federal Court of Australia Act 1976 (Cth) ss 24(1)(a), 25
Federal Court Rules 2011 (Cth) rr 1.34, 4.01, 35.13, 36.74
Federal Court Rules (Cth) O 52 r 38Cases cited: Abraham v Attorney-General for the Commonwealth [2004] FCA 411, considered
Ah Toy v Registrar of Companies (1985) 10 FCR 280, cited
Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90, applied
Caterpillar Inc v Sun Forward Pty Ltd (1996) 37 IPR 41, considered
City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163, not followed
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767, applied
Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302, cited
Goldie v Commonwealth [2004] FCA 973, cited
Hall v Busst (1960) 104 CLR 206, not followed
Hughes v Australian Competition and Consumer Commission [2004] FCA 1271, considered
Major Engineering Pty Ltd v Timelink Pacific Pty Ltd [2007] VSCA 228, cited
Miki Shoko Co Limited v Merv Brown Pty Limited (1988) 10 ATPR ¶40-858, considered
Moller v Roy (1975) 132 CLR 622, cited
National Australia Bank Ltd v Maher (No 2) [1999] VSCA 189, 3 VR 589, discussed
NZI Securities Australia Ltd v Poignand (1994) 51 FCR 584, applied
Telstra Corp Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 814, discussed
Thai v Commissioner of Taxation (1994) 53 FCR 252, cited
Van Reesema v Giameos (1979) 41 FLR 86, considered
Wang v Anying Group Pty Ltd [2011] FCA 1196, referred to
Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678, 226 ALR 114, discussedDate of hearing: 29 June 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for…
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- AGLC
- Anying Group Pty Ltd v Wang [2012] FCA 702
- Case
- [2012] FCA 702
- Decision Date
CaseChat Overview and Summary
Anying Group Pty Ltd v Wang involved an appeal against a decision that dismissed the Appellants' Notice of Appeal for failure to comply with the rules. The Federal Court of Australia was tasked with determining whether the dismissal of the Notice of Appeal was justified, and if the orders made by the primary judge were interlocutory or final in nature. The central legal issue was whether the Appellants had complied with the procedural requirements necessary to prosecute their appeal, including the timely filing of an application for leave to appeal and seeking extensions of time. Additionally, the Court needed to determine whether the original proceeding had been finally determined, and if any order could be regarded as final while matters remained outstanding.
The Court found that the Appellants had not adequately prosecuted their appeal, failing to comply with the directions made by the Court and the procedural rules. The Appellants were given multiple opportunities to address the deficiencies in their Notice of Appeal, including filing further evidence and seeking extensions of time, but they failed to take appropriate steps. The Court held that the primary judge’s decision was interlocutory, requiring leave to appeal, and that the Appellants' failure to seek leave within the prescribed time, and their subsequent non-compliance with procedural directions, justified the dismissal of their Notice of Appeal. The Court concluded that standing over the Interlocutory Application to the appeal hearing would result in additional expense and delay, and therefore, it was appropriate to resolve the Interlocutory Application immediately.
The Court dismissed the Notice of Appeal as filed on 6 December 2011, finding that the Appellants had not complied with the necessary procedural requirements. The Appellants were ordered to pay the Respondents' costs, including the costs of the present Interlocutory Application and any other costs incurred in respect of the appeal. This decision underscores the importance of strict adherence to procedural rules in the prosecution of appeals.
The Court found that the Appellants had not adequately prosecuted their appeal, failing to comply with the directions made by the Court and the procedural rules. The Appellants were given multiple opportunities to address the deficiencies in their Notice of Appeal, including filing further evidence and seeking extensions of time, but they failed to take appropriate steps. The Court held that the primary judge’s decision was interlocutory, requiring leave to appeal, and that the Appellants' failure to seek leave within the prescribed time, and their subsequent non-compliance with procedural directions, justified the dismissal of their Notice of Appeal. The Court concluded that standing over the Interlocutory Application to the appeal hearing would result in additional expense and delay, and therefore, it was appropriate to resolve the Interlocutory Application immediately.
The Court dismissed the Notice of Appeal as filed on 6 December 2011, finding that the Appellants had not complied with the necessary procedural requirements. The Appellants were ordered to pay the Respondents' costs, including the costs of the present Interlocutory Application and any other costs incurred in respect of the appeal. This decision underscores the importance of strict adherence to procedural rules in the prosecution of appeals.
Orders
Orders of the court
1. The Notice of Appeal as filed on 6 December 2011 is dismissed.
2. The Appellants are to pay the costs of the Respondents including the costs of the present Interlocutory Application and such other costs as may have been incurred in respect to the appeal.
Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Since 6 December 2011, some limited steps have been taken by the Appellants to prosecute their appeal. There were appearances before Emmett J by Counsel on 8 February and 18 April as well as an appearance by Ms Sun on 7 June 2012. Although the settling of an index for the appeal book has not progressed smoothly, if at all, there was nevertheless a telephone call from the former solicitor for the Appellants on 3 April 2012 stating that the Index Conference had been adjourned. Although such limited steps taken by the Appellants fall well below anything which could be properly characterised as a proper and efficient prosecution of the appeal, it is concluded that such conduct does not fall within the reach of r 36.74(1)(d). CONCLUSIONS Had the Appellants not been given an opportunity in which to address the deficiencies in the existing Notice of Appeal, an opportunity to redress perceived deficiences and an opportunity to file further evidence, the relief sought in the Interlocutory Application may not have been granted on 7 June 2012. The difficulties confronting the Appellants as at 7 June 2012 were, however, identified during the course of that hearing and were further particularised in the letter sent to them on 12 June 2012. The Appellants have thus been given an opportunity to give informed consideration to the steps they may have thought appropriate. It is concluded that the Notice of Appeal should be dismissed pursuant to s 25(2B)(bb)(i) and r 36.74(1)(a) and (b). There has been non-compliance by the First Appellant:·with the direction made on 7 June 2012 that it make an application seeking dispensation from the requirements of r 4.01(2).There has also been non-compliance by all of the Appellants with the Rules of this Court, namely:·a failure to seek an extension of time beyond the 14 days in which to seek leave to appeal prescribed by r 35.13. The decision of the primary Judge is interlocutory and leave to appeal is required: s 24(1A). Any application for leave to appeal should have been filed within 14 days: r 35.13. No application was made for an extension of that time prior to the Notice of Appeal being filed. No application has been made even now. Given the opportunity extended to the Appellants to seek an extension of time, and their failure to do so, there should be little reservation in exercising the discretion to dismiss an appeal. There is no reservation in the present proceeding. Separate consideration was also given to whether the Interlocutory Application, together with the consequential questions as to whether the judgment of the primary Judge was properly to be characterised as interlocutory, should itself be stood over to the hearing of the appeal. This course was not considered appropriate. The Interlocutory Application had been properly filed and the Applicant on that application was entitled to have it heard and resolved. To delay the resolution of the Interlocutory Application until the hearing of the appeal would only have exposed the parties to additional expense and delay.
Ratio Decidendi
Legal Principle Established
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