ASIC v Jorgensen

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.