Australian Prudential Regulation Authority v Holloway - [2001] FCA 1240

Australian Prudential Regulation Authority v Holloway [2001] FCA 1240

Superannuation Industry (Supervision) Act 1993 (Cth), ss 19, 85, 194, 197, 263, 264

Federal Court Rules, O 52, r 15

Jess v Scott (1986) 12 FCR 187 cited

Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 referred to

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v ANTHONY PHILIP HOLLOWAY & ANOR

SG 111 of 1998

SPENDER, DRUMMOND, CARR JJ

ADELAIDE

28 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SG 111 OF 1998

BETWEEN: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
APPLICANT
AND: ANTHONY PHILIP HOLLOWAY & ANOR
RESPONDENT

JUDGES:
SPENDER, DRUMMOND, CARR JJ
DATE OF ORDER: 28 AUGUST 2001
WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

The application for an extension of time be dismissed with costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SG 111 OF 1998

BETWEEN: AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
APPLICANT
AND: ANTHONY PHILIP HOLLOWAY & ANOR
RESPONDENT

JUDGES: SPENDER, DRUMMOND, CARR JJ
DATE: 28 AUGUST 2001
PLACE: ADELAIDE

REASONS FOR JUDGMENT

SPENDER J:

1 This is an application for an extension of time within which to appeal from a judgment of Mansfield J which was given on 6 September 2000. An extension of time is required because a notice of appeal was not filed or served within the time limited by O 52 r 15 of the Federal Court Rules. Order 52 r 15(1) provides:

"The notice of appeal shall be filed and served:
(a) within 21 days after:
(i) the date when the judgment appealed from was pronounced;
(ii) the date when leave to appeal was granted; or
(iii) any later date fixed for that purpose by the court appealed from; or
(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph."

Rule 15(2) provides:

"Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal."

2 In this particular case, the application was made on 10 April 2001 in respect, as I said, of the orders made by Mansfield J on 6 September 2000. Having regard to the period of 21 days referred to in O 52 r 15(1), that means there has been a delay of six and a half months in the filing of the notice of appeal.

3 The material before this court sets out the grounds on which an appeal would be argued should an extension of time be granted. The requirements of O 52 r 15(2) of the Federal Court Rules was considered by a Full Court in Jess v Scott (1986) 12 FCR 187. There the court said at 195:

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.

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Details

Case: [2001] FCA 1240
Decision Date: 28 AUGUST 2001

CaseChat Overview and Summary

The case of Australian Prudential Regulation Authority v Holloway was heard in the Federal Court of Australia. The applicant, the Australian Prudential Regulation Authority (APRA), sought an extension of time to serve a document on the respondent, Mr Holloway. The dispute centred on whether Mr Holloway's application to vacate an interim order should be granted and whether APRA should be permitted an extension of time to serve its response.

The primary legal issues before the court were whether there were exceptional circumstances justifying an extension of time under the rules of court, and whether the application to vacate the interim order should be granted. The court considered whether Mr Holloway had acted promptly in making his application and whether APRA's delay in serving the document was excusable.

The court held that the delay was not excusable and that there were no exceptional circumstances to warrant an extension of time. The court found that APRA had not demonstrated any impediment or difficulty in serving the document and that the delay was due to an oversight on APRA's part. The court also found that Mr Holloway's application to vacate the interim order was not well-founded and that there were no grounds to grant the application.

The application for an extension of time was dismissed with costs, to be taxed if not agreed.

Orders

Orders of the court

The application for an extension of time be dismissed with costs, to be taxed if not agreed.

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.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 111 OF 1998

BETWEEN:	AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY APPLICANT
AND:	ANTHONY PHILIP HOLLOWAY & ANOR RESPONDENT
JUDGES:	SPENDER, DRUMMOND, CARR JJ
DATE OF ORDER:	28 AUGUST 2001
WHERE MADE:	ADELAIDE

JUDGES:	SPENDER, DRUMMOND, CARR JJ
DATE:	28 AUGUST 2001
PLACE:	ADELAIDE