Bechara v Bates

Case [2019] FCA 1077

FEDERAL COURT OF AUSTRALIA

Bechara v Bates [2019] FCA 1077

Appeal from: Application for Extension of Time and Leave to Appeal:  Bechara v Bates [2018] FCA 460
File number: NSD 2386 of 2018
Judge: FLICK J
Date of judgment: 12 July 2019
Catchwords:

PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal – delay in commencing application – intervening application to the High Court – extension granted

PRACTICE AND PROCEDURE – new argument not previously relied upon – new argument warrants grant of leave in the interests of the administration of justice – a question of importance going beyond the interests of the parties

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss 103, 104

Federal Circuit Court Rules 2001 (Cth) r 13.03C

Cases cited:

AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193, (2015) 238 FCR 341

Bates v Bechara (No. 2) [2017] FCCA 985

Bates v Bechara [2016] FCCA 3489

Bechara v Bates [2018] FCA 460

Bechara v Bates [2018] HCATrans 164

Dart Industries Inc v Decor Corp Pty Ltd (1989) 15 IPR 403

Harris v Caladine (1991) 172 CLR 84

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788

Martin v Commonwealth Bank of Australia [2001] FCA 87

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195, (2006) 156 FCR 419

Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426

Totev v Sfar [2008] FCAFC 35, (2008) 167 FCR 193

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, (2004) 238 FCR 588

Water Board v Moustakas (1988) 180 CLR 491

Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321

Zdrilic v Hickie [2016] FCAFC 101, (2016) 246 FCR 532
Date of hearing: 13 March 2019
Date of last submissions: 3 April 2019
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 65
Solicitor for the Applicant: Mr A R Martin of Martin Legal
Counsel for the Respondent: The Respondent appeared in person
Solicitor for the Respondent: Bannister Law

ORDERS

NSD 2386 of 2018
BETWEEN:

MARIA BECHARA

Applicant
AND:

PHILIP BATES

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

12 JULY 2019

THE COURT ORDERS THAT:

1.The Application for Extension of Time and Leave to Appeal is granted. 

2.The Applicant is to file a Notice of Appeal giving effect to these reasons within fourteen days. 

3.Costs reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J:

  1. In July 2016, a Registrar of the Federal Circuit Court of Australia made a sequestration order against the estate of Ms Maria Bechara.

  2. Ms Bechara applied for review of the Registrar’s decision.  In December 2016, the Federal Circuit Court refused an application made by Ms Bechara for an adjournment of her application.  Reasons for refusing the adjournment were provided…

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Details
AGLC
Bechara v Bates [2019] FCA 1077
Case
[2019] FCA 1077
Decision Date

CaseChat Overview and Summary

In the matter of Bechara v Bates, the applicant sought an extension of time and leave to appeal against a decision of the Federal Circuit Court. The case involved a sequestration order made by a Registrar and subsequent attempts to set it aside. The Federal Circuit Court was tasked with determining whether the application for an extension of time and leave to appeal should be granted, considering the delay in commencing the application and the introduction of new arguments not previously relied upon.

The primary legal issues before the court were whether the applicant's delay in commencing the application and the introduction of new arguments warranted granting an extension of time and leave to appeal. The court had to balance the interests of justice with the need to maintain the integrity of the legal process. Additionally, the court had to assess whether the new arguments warranted the grant of leave in the interests of the administration of justice, considering the potential importance of the questions raised beyond the interests of the parties involved.

The court granted the application for an extension of time and leave to appeal. The reasoning behind this decision included the recognition that the new arguments raised important questions that went beyond the private interests of the parties. The court noted that the matters concerning the sequestration order and the constitutional imperative for de novo review by a Chapter III Judge were of fundamental importance to the manner in which the Federal Circuit Court resolves applications under s 104 of the Federal Circuit Court Act. The court concluded that these issues should be addressed and resolved, and thus, an extension of time and leave to appeal should be granted.

The final orders of the court were as follows: (1) The application for extension of time and leave to appeal was granted. (2) The applicant was to file a notice of appeal giving effect to these reasons within fourteen days. (3) Costs were reserved for consideration by the Full Court.

Orders

Orders of the court

1. The Application for Extension of Time and Leave to Appeal is granted.

2. The Applicant is to file a Notice of Appeal giving effect to these reasons within fourteen days.

3. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

No extension of time and no leave to appeal is granted with respect to the Amended Draft Notice of Appeal provided to the Court on 19 March 2019. Concealed within those amended Grounds of Appeal are questions which overlap those initially set forth in the proposed Grounds of Appeal as initially formulated and go well beyond the limited issues which now attract the grant of leave. CONCLUSIONS The factual background to the two decisions of the Federal Circuit Court Judge (including the lack of compliance with Court orders) and the manner in which the Applicant sought to challenge the decision of the primary Judge expose the Applicant as a person not warranting any great judicial indulgence. Indeed, the belated manner in which the new argument has been raised by the Applicant only further underscores the prior lack of any real consideration being given to the argument at the centre of her attempt to have the sequestration order made by the Registrar in July 2016 set aside. Whether there is any continued utility in now making such an order, if appropriate, is also a separate question that may need to be addressed. But the argument has been finally identified. Whether the argument should prevail, or even whether it is susceptible of being resolved in the absence of further facts being found, are matters which can be addressed by a Full Court. Upon further consideration, a Full Court may even set aside the order now to be made granting leave to appeal. The making of a sequestration order, and the “Constitutional imperative” that it be susceptible of de novo review by a Chapter III Judge, are matters which potentially go beyond the private interests of the parties to the present proceeding and are matters fundamental to the manner in which the Federal Circuit Court is to resolve applications made under s 104 of the Federal Circuit Court Act. They are matters which should, it is respectfully considered, be addressed and resolved. An extension of time in which to commence the proceeding and leave to appeal should thus be granted. The costs of the present Application are reserved for consideration by the Full Court. THE ORDERS OF THE COURT ARE: 1. The Application for Extension of Time and Leave to Appeal is granted. 2. The Applicant is to file a Notice of Appeal giving effect to these reasons within fourteen days.3. Costs reserved.

Ratio Decidendi

Legal Principle Established

The application to cross-examine was rejected for either of two reasons, namely:·the present proceeding being interlocutory in character and the normal course pursued in such a proceeding is not to permit cross-examination. The Court, it has been said, “…has a discretion to permit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made, although the discretion to permit such cross-examination is exercised cautiously and … ‘normally’ ‘somewhat sparingly’”: Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18] per Kenny J; and ·the absence of any real prejudice to Mr Bates. The discretion to refuse cross-examination was exercised adversely to Mr Bates. It was considered that the unexplained action in September/October was only of peripheral concern as were the reasons why Ms Bechara elected to seek relief in the High Court rather than this Court. It was the absence of any real prejudice to Mr Bates which led to the conclusion that the affidavits could be read even though the deponents were not to be cross-examined. The sequestration order & the application for review before the Federal Circuit Court The power exercised by the Registrar in making the sequestration order in July 2016 was that conferred by s 103 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “Federal Circuit Court Act”). That section provides, in part, as follows: Delegation of powers to Registrars (1)The Rules of Court may delegate to the Registrars any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2). (2)A power delegated by Rules of Court under subsection (1), when exercised by a Registrar, is taken, for all purposes, to have been exercised by the Federal Circuit Court of Australia or a Judge, as the case requires. (3)The delegation of a power by Rules of Court under subsection (1) does not prevent the exercise of the power by the Federal Circuit Court of Australia or a Judge. Ms Bechara sought review of that sequestration order by way of an Interim Application filed in July 2016. That Interim Application sought the following relief: 1.The orders made by Registrar Tesoriero on 5 July 2016 be set aside pursuant to section 104(3) of the Federal Circuit Court of Australia Act 1999.2.The Applicant’s Creditor’s Petition dated 7 April 2016 be dismissed pursuant to s 52(2)(b) of the Bankruptcy Act 1966.3.Costs. The statutory source of power being invoked by Ms Bechara was that conferred by s 104(2) of the Federal Circuit Court Act which states as follows:A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may: (a) within the time prescribed by the Rules of Court; or (b) within any further time allowed in accordance with the Rules of Court; apply to the Federal Circuit Court of Australia for review of that exercise of power.