FEDERAL COURT OF AUSTRALIA
Burnett v Browne (No 2) [2019] FCA 1597
File number: TAD 49 of 2018 Judge: KERR J Date of judgment: 25 September 2019 Catchwords: PRACTICE AND PROCEDURE – whether Court has jurisdiction to entertain application for stay of order dismissing appeal from a decision of the Federal Circuit Court of Australia pending filing of an application for special leave – Court has jurisdiction
PRACTICE AND PROCEDURE – application for stay of order dismissing appeal from a decision of the Federal Circuit Court of Australia pending filing of an application for special leave - no substantial prospect of special leave being granted – application dismissed
Legislation: Bankruptcy Act 1966 (Cth) s 37(2)
Federal Court Act 1976 (Cth) s 25(2B)
Federal Court Rules 2011 (Cth) r 41.11
Cases cited: Burnett v Browne [2019] FCA 1233
Carter v Geoff Layton & Co Pty Ltd (1993) 43 FCR 392
Fitzgerald & Anor v Burnett [2018] FCCA 2866
Guss v Johnstone [2000] FCA 1593
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd ( No 1) [1986] HCA 84; 161 CLR 681
Kimber v Owners of Strata Plan 48216 [2017] FCAFC 226; 258 FCR 575
National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58
Date of hearing: 9 September 2019 Date of last submissions: 23 September 2019 Registry: Tasmania Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: Ms Burnett appeared in person Counsel for the Respondents: Mr R Browne Solicitor for the Respondents: FitzGerald and Browne Other: Mr A Johnston (Paul Cook and Associates) appeared in person as a friend of the Court ORDERS
TAD 49 of 2018 BETWEEN: GAIL LOUISE BURNETT
Applicant
AND: ROLAND BROWNE AND ANTHONY FITZGERALD
Respondents
JUDGE:
KERR J
DATE OF ORDER:
25 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The Applicant’s interlocutory application for a stay of the orders made by Justice O’Callaghan on 8 August 2019 be dismissed.
2.The Applicant pay the Respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KERR J:
This is an interlocutory application for a stay of orders made by O’Callaghan J on 8 August 2019 dismissing an appeal from a decision of a judge of the Federal Circuit Court of Australia: see Fitzgerald & Anor v Burnett [2018] FCCA 2866. That decision dismissed an application by the Applicant in these proceedings, Ms Burnett, for review of a decision and sequestration order made by a Registrar of that court. His Honour O’Callaghan J found that the appeal had no reasonable prospects of success. Accordingly his Honour dismissed it with costs: see Burnett v Browne [2019] FCA 1233.
Justice O’Callaghan summarised the background to these proceedings at [3]-[15] of his Honour’s reasons. For the purpose of these reasons it is unnecessary to set out that background, except to note that…
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- AGLC
- Burnett v Browne (No 2) [2019] FCA 1597
- Case
- [2019] FCA 1597
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether a single judge of the Court had jurisdiction to grant a stay of its orders pending the filing of an application for special leave to appeal to the High Court. The Court considered the statutory provisions of the Federal Court Act 1976 (Cth) and the Federal Court Rules 2011 (Cth) and relevant case law, including National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) and Carter v Geoff Layton & Co Pty Ltd. The Court found that there was no requirement for an application for special leave to be filed before the Court could consider an application for a stay. The Court also found that it was capable of crafting any orders for a stay such that they would lapse if a foreshadowed application for special leave were not in fact made within a reasonable time.
The Court dismissed the applicant's interlocutory application for a stay of the orders made by Justice O’Callaghan on 8 August 2019. The Court held that there was no substantial prospect of special leave being granted, and therefore, the application for a stay should be dismissed. The Court also ordered the applicant to pay the respondent’s costs of the application. This decision clarifies the jurisdiction of the Federal Court of Australia to grant a stay of its orders pending the filing of an application for special leave to appeal to the High Court.
Orders
Orders of the court
1. The Applicant’s interlocutory application for a stay of the orders made by Justice O’Callaghan on 8 August 2019 be dismissed.
2. The Applicant pay the Respondents’ costs of the application.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr Browne further submits that this Court presently lacks jurisdiction to stay Order 2, being the order for costs. Only the High Court would have jurisdiction to grant such a stay pending an application for special leave being filed. Mr Browne however accepts that if an application for special leave had been filed, this Court would have jurisdiction to stay Order 2.Consideration: jurisdiction I reject Mr Browne’s submission that a single judge of the Court would be without jurisdiction to entertain the application in question. Nor is this Court’s jurisdiction to grant a stay of its orders conditioned upon an application for special leave having actually been made, rather than merely foreshadowed. Applications of the kind made by the Applicant are not infrequently made. I am unaware of any instance where the failure of an application has been on the basis that an application for special leave has yet to be filed: see for example National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58. Mr Browne’s submission, if accepted, would require a party otherwise having 28 days in which to file a well-considered application for special leave to rush to file a hasty application, potentially incurring the requirement of amendment and increased costs, in order to invoke the protective jurisdiction of this Court. There is nothing in either the Federal Court Act 1976 (Cth) (Federal Court Act) or the Federal Court Rules 2011 (Cth) (Rules) as would require such an unattractive outcome. The very premise of the jurisdiction as was referred to by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd ( No 1) [1986] HCA 84; 161 CLR 681 (Burgundy Royale) at 683 is to the contrary:The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. This Court is well capable of crafting any orders for a stay such that they would lapse if a foreshadowed application for special leave were not in fact made within a reasonable time. In Carter v Geoff Layton & Co Pty Ltd (1993) 43 FCR 392 (Carter) Cooper J said with respect to former Order 37 Rule 10:[I]t is clear, in my opinion, that a single judge of the court has the power, concurrently with a Full Court, to stay a judgment, which is a final order of the Full Court, pending determination of a special leave application to the High Court of Australia. Since Carter was decided the Federal Court has acquired a significantly enhanced appellate jurisdiction, capable of being exercised or required to be exercised as was the case in the matter before O’Callaghan J, by a single judge of the Court. Those changes reinforce the position stated by Cooper J. Section 25(2B) of the Federal Court Act provides as follows: (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:…(ab)make an interlocutory order pending, or after, the determination of an appeal to the Court;