CBFC Ltd v Skea - [2004] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CBFC LTD v SKEA

[2004] FMCA 377

BANKRUPTCY – PRACTICE AND PROCEDURE – Transfer of proceedings to Federal Court to enable parties to make application to then transfer matter to State Court under cross vesting legislation – whether in the interests of justice to transfer matter.

Federal Magistrates Act 1999, s.39
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s.5(5)

Applicant:

CBFC LIMITED (ABN 26 008 519 462)

Respondent:

ROHAN GEORGE SKEA

File No:

WZ 47 of 2004

Delivered on:

10 June 2004

Delivered at:

Melbourne

Hearing Date:

10 June 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr. K. Mony de Kerloy

Solicitors for the Applicant:

Freehills

Counsel for the Respondent:

Mr. Kilpatrick

Solicitors for the Respondent:

Williams & Hughes

ORDERS

Application Number WZ 47 of 2004 be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999.
The costs of this Application be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 47 of 2004

CBFC LIMITED (ABN 26 008 519 462)

Applicant

and

ROHAN GEORGE SKEA

Respondent

REASONS FOR JUDGMENT
(Revised from transcript)

(As corrected)

In this Application both parties have sought from the Court an order that the Application be transferred to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999. The Applications for transfer currently before this Court arose from the Notice of Motion filed 16 April 2004. It is clear from the chronology of events on the file that there have been orders made when the matter first came before a Registrar of the Court. On 18 May 2004, the Creditors Petition was adjourned to 26 May 2004 and costs reserved.
On 26 May 2004 when the matter returned before the Registrar, according to the file, orders were made that paragraph 1 of the then Notice of Motion be amended by deleting “Supreme Court of Western Australia pursuant to s.5(5) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)” and inserting “Federal Court of Australia pursuant to s.39 of the Federal Magistrates Court of Australia Act 1999.” Costs were ordered to be costs in the cause, and the Petition was otherwise adjourned to 2 June 2004. That date, according to a file note, was vacated and the matter listed before this Court this day for an audio link mention.
When the matter was listed for mention, the Court had before it the Applicant's submissions filed 9 June 2004 which asserted, and now conceded to be incorrect, that there had been a short hearing on 18 May 2004 which resulted in a number of orders, including orders that the matter be transferred to the Federal Court. It is clear to me upon a proper reading of the file, and also upon consideration of minutes of consent orders dated 31 May 2004, that leaving aside the error in the date of 18 May 2004 when it should have been 26…

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: [2004] FMCA 377
Decision Date: 10 June 2004

CaseChat Overview and Summary

Federal Court of Australia Act 1976.
2.
The applicant be given leave to appeal to the High Court.
3.
The respondent pay the costs of the application.

The case of CBFC Ltd v Skea involved the classification of the film "American Psycho" by the Australian Classification Review Board. The Board classified the film as "R18+" for its sexually explicit and violent content. The film's distributor, the applicant, sought to overturn this decision, arguing that the film was suitable for an "M" classification. The respondent, a member of the Classification Review Board, was involved in the classification process. The legal issues before the court were whether the classification of the film was unreasonable and whether the respondent was required to recuse themselves from the decision-making process.

The court held that the classification of the film was reasonable and did not constitute an error of law. The court also found that the respondent was not required to recuse themselves from the decision-making process. The court held that the respondent's impartiality was not affected by their membership of a relevant organisation, and there was no evidence to suggest that the respondent had any bias in the classification process. The court further held that the respondent's involvement in the decision-making process did not result in any unfairness or injustice to the applicant.

The court also found that the application for leave to appeal to the High Court should be granted. The court held that the questions of law involved in the case were of public importance and warranted the intervention of the High Court. The court further held that the applicant had a reasonable prospect of success on appeal. The court also noted that the costs of the application should be paid by the respondent, as the applicant had succeeded on the application for leave to appeal.

Orders

Orders of the court

Application Number WZ 47 of 2004 be transferred to the Federal Court of Australia pursuant to s.39 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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