Australian Securities and Investments Commission v Churche

[2006] FCA 1341

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Churche [2006] FCA 1341

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v WARWICK JAMES CHURCHE

NSD 1515 OF 2006

BENNETT J
7 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1515 OF 2006

BETWEEN:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Applicant
AND:	WARWICK JAMES CHURCHE Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	7 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file a notice of appeal is granted.

2.The applicant is to pay the respondent’s costs of the application for an extension of time to file a notice of appeal.

3.No orders as to costs is made in respect of the application for leave to appeal prior to 14 August 2006.

4.The applicant is to pay the respondent’s costs of the application for leave to appeal from 14 August 2006 until 6 September 2006.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1515 OF 2006

BETWEEN:	AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Applicant
AND:	WARWICK JAMES CHURCHE Respondent

JUDGE:	BENNETT J
DATE:	7 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 20 July 2006, a judge of the Court answered a preliminary question concerning the entitlement of Mr Churche to a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the Act’) (Churche v Australian Securities and Investments Commission (No 2) [2006] FCA 923). This is an application for an extension of time in which to file a notice of appeal from orders made by his Honour pursuant to that decision on 14 August 2006.

2. The application was filed three days after the expiry of the deadline for the filing of the notice of appeal (Federal Court Rules O 52 r 15). No prejudice on the part of Mr Churche occasioned by the delay is suggested and an explanation has been provided for the delay ([5] to [7] below). It is apparent from the subject matter of his Honour's judgment that Mr Churche’s entitlement to a statement of reasons pursuant to s 13 of the Act is an important question that has not been determined previously by the Court. It is also apparent from submissions made by the Australian Securities & Investments Commission (‘ASIC’), without opposition, that his Honour’s decision has wide ranging repercussions for ASIC and the conduct of its affairs in the future.

3. The issues arising from his Honour’s judgment are set out in detail in ASIC’s written submissions and it is not necessary to repeat them here.  It is conceded by Mr Churche that an appeal cannot be termed futile.  I am satisfied that that there is merit in the appeal and sufficient prospects of success to constitute special reasons why an extension of time to file a notice of appeal should be granted.

4. Also before me today, but not pressed, is an application for leave to appeal from the primary judge’s decision.  The circumstances in which that application came before the Court  require some consideration in determining what order, if any, should be made in respect of the costs of both applications. 

5. His Honour’s initial orders made on 20 July 2006 in answer to the preliminary question were interlocutory in nature.  For that reason, on 10 August 2006, an application for leave to appeal was filed (Federal Court of Australia Act 1976 (Cth) s 24(1A)). His Honour then made orders on 14 August 2006, at Mr Churche’s request and in the presence of ASIC, that were final in nature. The parties did not appreciate that fact at the time. It was only yesterday, in preparing for the hearing of the application for leave to appeal that ASIC appreciated that the orders were final and that leave to appeal was not necessary but an extension of time to file a notice of appeal was required.

6. The misunderstanding was occasioned in part by the fact that there were discussions between ASIC’s representatives and Mr Churche between 30 August 2006 and 7 September 2006.  As a result of those discussions ASIC deferred commencement of the preparation of its motion for leave to appeal until shortly before 6 pm on 5 September 2006.

7. While it is understandable that ASIC deferred its preparation because of the discussions, the fact is that it was ASIC’s responsibility to protect its own position whether discussions were continuing or not.  ASIC should have appreciated from 14 August 2006 onwards that the orders were final and that it was necessary to file a notice of appeal within time.  ASIC should pay Mr Churche’s costs of the application for an extension of time in which to file a notice of appeal.

8. As to the costs of the application for leave to appeal it is appropriate that there should be no order as to costs prior to 14 August 2006.  Both parties acted reasonably in commencing and defending the application for leave to appeal prior to the making of final orders by his Honour (Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 at 625).

9. Following that time both parties laboured under the misunderstanding that the orders were interlocutory in nature.  Mr Williams SC, who appears with Dr Allars for ASIC, submits that as both parties were under the misapprehension that leave to appeal was required there should be no order as to costs.  Mr Cashion SC, who appears for Mr Churche, submits that it was not for Mr Churche to have appreciated the procedural defect in the applicant's case. 

10. I accept Mr Cashion’s submission.  In my view, it is appropriate that ASIC pay Mr Churche’s costs of the application for leave to appeal from 14 August 2006 until the true position was appreciated and communicated to Mr Churche on 6 September 2006.

    Conclusion

11. The application for an extension of time in which to file a notice of appeal is granted.  ASIC is to pay Mr Churche’s costs of the application. 

12. No order as to costs is made prior to 14 August 2006 in respect of the abandoned application for leave to appeal.  ASIC is to pay Mr Churche’s costs of that application for the period from 14 August 2006 to 6 September 2006. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        12 October 2006

Counsel for the Applicant:	N Williams SC and M Allars
Solicitor for the Applicant:	C Gray
Counsel for the Respondent:	M Cashion SC
Solicitor for the Respondent:	Henry Davis York
Date of Hearing:	7 September 2006
Date of Judgment:	7 September 2006