ASIC v Jorgensen

Case [2009] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION:

ASIC v Jorgensen & Ors [2009] QCA 20

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(applicant)
v
ALAN BRADLEY JORGENSEN
(first respondent/respondent)
ZHI LI also known as LYNA JORGENSEN
(second respondent/not a party to the application)
JIM'S WATER TANKS PTY LTD
ACN 123 918 721
(third respondent/not a party to application)
ROBERT WILLIAM MORTON
(fourth respondent/not a party to application)
THE BANKRUPT ESTATE OF ALAN BRADLEY JORGENSEN
(fifth respondent/not a party to application)

FILE NO/S:

Appeal No 12536 of 2008
SC No 7032 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application to Strike Out

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application to strike out Notice of Appeal granted

Ex tempore order of Keane JA:

Leave to apply for costs by way of written submissions granted

CATCHWORDS:

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER RULES OF COURT — JUDGMENT AND ORDERS — RELIEF AGAINST — where appellant framed grounds of appeal against all issues raised in originating court judgment — where originating court orders referred only to costs — where appellant lodged appeal absent leave of primary judge — whether appeal relates to costs only — whether leave of primary judge required under r 307 of the Uniform Civil Procedure Rules 1999 (Qld) — whether appeal incompetent for want of leave

Corporations Act 2001 (Cth), s 1323, s 1324
Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 307

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2, cited
Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd [2004] 2 Qd R 11; [2003] QCA 516, cited
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478;
[2002] HCA 22, cited
Re Golden Casket Art Union Office [1995] 2 Qd R 346; [1994] QCA 480, cited

COUNSEL:

P J Davis SC, with J W Peden, for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Australian Securities & Investment Commission for the applicant
The respondent appeared on his own behalf

  1. KEANE JA: By originating application filed on 14 August 2007 (and amended on 28 November 2007) the Australian Securities and Investments Commission ("ASIC") brought proceedings against Mr Jorgensen and others including a corporation, Jim's Water Tanks Pty Ltd ("the Company"), of which Mr Jorgensen was the sole director. ASIC sought, inter alia, orders for the winding up of the Company and (by paragraph 9 of its originating application) a permanent injunction pursuant to s 1323 and s 1324 of the Corporations Act 2001 (Cth) to restrain the respondents from dealing with property of the Company.

  1. After the commencement of proceedings there was a considerable amount of interlocutory skirmishing between the parties.  In the course of that skirmishing, injunctive relief was granted…

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Details
AGLC
ASIC v Jorgensen [2009] QCA 20
Case
[2009] QCA 20
Decision Date

CaseChat Overview and Summary

The appeal was brought by the Australian Securities and Investments Commission (ASIC) against Jorgensen, a former director of a company. ASIC sought relief on the basis that Jorgensen had engaged in unlawful trading while the company was insolvent, contravening certain provisions of the Corporations Act 2001 (Cth). The Supreme Court of Queensland was the forum for the originating proceedings, where ASIC's claim was ultimately dismissed by the primary judge. ASIC subsequently lodged an appeal against the judgment, framing grounds of appeal against all issues raised in the originating court judgment, even though the originating court orders referred only to costs. The appeal was lodged absent leave of the primary judge, and it was subsequently brought before the Court of Appeal to determine whether the appeal was limited to costs and, if so, whether it was necessary to obtain leave of the primary judge under r 307 of the Uniform Civil Procedure Rules 1999 (Qld) before proceeding with the appeal.

The court was required to decide whether the appeal related solely to the costs incurred in the proceedings and, if it did, whether it was necessary to obtain leave from the primary judge before proceeding with the appeal. The court considered whether the appeal was incompetent for want of leave and whether the appeal related solely to the costs or to other issues as well. The court had to interpret the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) to determine the appropriate procedure in this context.

The court held that the appeal related only to the costs incurred in the proceedings and that it was necessary to obtain leave from the primary judge before proceeding with the appeal. The court found that the appeal was incompetent for want of leave, as the appeal related solely to costs, and the primary judge's leave was required under r 307 of the Uniform Civil Procedure Rules 1999 (Qld). Consequently, the court granted the application to strike out the Notice of Appeal and made an ex tempore order allowing ASIC to apply for costs by way of written submissions. The court determined that the appeal was incompetent due to the absence of leave from the primary judge, and it was necessary for ASIC to seek such leave before proceeding with the appeal.

Orders

Orders of the court

Application to strike out Notice of Appeal granted

Ex tempore order of Keane JA:

Leave to apply for costs by way of written submissions granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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