Du Bray v ACW - [2021] FCAFC 103

FEDERAL COURT OF AUSTRALIA
Du Bray v ACW [2021] FCAFC 103

Appeal from: ACW v Du Bray (No 2) [2020] FCA 994

File number(s): NSD 800 of 2020

Judgment of: JAGOT, YATES AND COLVIN JJ

Date of judgment: 17 June 2021

Catchwords: PRACTICE AND PROCEDURE – interlocutory application – single judge exercising appellate jurisdiction of Court under Federal Court of Australia Act 1976 (Cth) to dismiss appeal by way of final orders for failure on part of appellant to provide security for costs – appeal dismissed for failure to provide security for costs

Legislation:
Bankruptcy Act 1966 (Cth) s 77CA

Federal Court of Australia Act 1976 (Cth) ss 20, 25(2B)(aa), 25(2B)(ba), 25(2B)(bb)(i), 25(2BB), 56

Jurisdiction of Courts Legislation Amendment Act 2002 (Cth)

Law and Justice Legislation Amendment Act 2004 (Cth)

Migration Litigation Reform Act 2005 (Cth)

Federal Court Rules 2011 (Cth) rr 1.32, 36.09

Cases cited:
ACW v Du Bray(No 2) [2020] FCA 994

Du Bray v ACW [2020] FCA 1142

Du Bray v ACW [2020] FCA 1680

Endormer Pty Ltd (In Liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510

Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224

Lafferty v Waterton (No 2) [2020] FCA 1673

Mead v Mead (No 2) [2010] FCA 432

Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 28

Date of last submission/s: 14 May 2021

Date of hearing: Determined on the papers

Counsel for the Appellant: Appellant was self-represented

Solicitor for the Respondent: Marque Lawyers

ORDERS

NSD 800 of 2020

BETWEEN:
LEE FRANCIS DU BRAY

Appellant

AND:
ACW

Respondent

ORDER MADE BY:

JAGOT, YATES AND COLVIN JJ

DATE OF ORDER:

17 JUNE 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and in connection with the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT
THE COURT:

By an interlocutory application, filed on 30 March 2021, the respondent seeks orders that the appellant’s appeal be dismissed pursuant to r 1.32 of the Federal Court Rules 2011 (Cth) (the Rules), and for costs.
Rule 1.32 provides that:
The Court may make any order that the Court considers appropriate in the interests of justice.
The background to the respondent’s application may be briefly stated.
Justice Wigney made an order against the appellant sequestrating his estate in ACW v Du Bray(No 2) [2020] FCA 994.
The appellant appealed against the sequestration order.
The respondent filed an interlocutory application seeking security for the costs of the appeal.
On 24 November 2020, for reasons given in Du Bray v ACW [2020] FCA 1680, Flick J made these orders (amongst others):
1. On or before 8 December 2020 the Appellant is to provide security for the costs of the appeal in the sum of…

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.

Continue reading Du Bray v ACW

Details

AGLC: Du Bray v ACW [2021] FCAFC 103
Case: [2021] FCAFC 103
Decision Date: 17 June 2021

CaseChat Overview and Summary

In the matter of Du Bray v ACW, the appellant sought to appeal a decision made in the Federal Circuit Court. The appeal was dismissed by a single judge of the Federal Court exercising appellate jurisdiction under the Federal Court of Australia Act 1976. The basis of the appeal was the appellant's failure to provide security for costs as required by the Federal Court Rules 2011. The primary legal issue before the court was whether the appellant's failure to comply with the rules regarding security for costs justified the dismissal of the appeal.

The court considered the requirements of the Federal Court Rules 2011 and the relevant case law. It was noted that the rules provide that where an appeal is made, the appellant must provide security for the respondent's costs of the appeal. The court found that the appellant had failed to comply with this requirement, despite being given multiple opportunities to do so. The court held that the failure to provide security for costs was a significant procedural default that warranted the dismissal of the appeal. The court also emphasised the importance of adhering to procedural requirements to ensure the efficient administration of justice.

As a result, the appeal was dismissed and the appellant was ordered to pay the respondent's costs of and in connection with the appeal, as agreed or taxed. The court's decision was in line with the established principles regarding the enforcement of procedural requirements in the Federal Court. The dismissal of the appeal and the order for costs reflect the court's commitment to upholding procedural integrity in litigation.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and in connection with the appeal, as agreed or taxed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	ACW v Du Bray (No 2) [2020] FCA 994
File number(s):	NSD 800 of 2020
Judgment of:	JAGOT, YATES AND COLVIN JJ
Date of judgment:	17 June 2021
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – single judge exercising appellate jurisdiction of Court under Federal Court of Australia Act 1976 (Cth) to dismiss appeal by way of final orders for failure on part of appellant to provide security for costs – appeal dismissed for failure to provide security for costs
Legislation:	Bankruptcy Act 1966 (Cth) s 77CA Federal Court of Australia Act 1976 (Cth) ss 20, 25(2B)(aa), 25(2B)(ba), 25(2B)(bb)(i), 25(2BB), 56 Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) Law and Justice Legislation Amendment Act 2004 (Cth) Migration Litigation Reform Act 2005 (Cth) Federal Court Rules 2011 (Cth) rr 1.32, 36.09
Cases cited:	ACW v Du Bray(No 2) [2020] FCA 994 Du Bray v ACW [2020] FCA 1142 Du Bray v ACW [2020] FCA 1680 Endormer Pty Ltd (In Liquidation) v Australian Guarantee Corporation Ltd [2001] FCA 510 Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224 Lafferty v Waterton (No 2) [2020] FCA 1673 Mead v Mead (No 2) [2010] FCA 432 Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	28
Date of last submission/s:	14 May 2021
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Appellant was self-represented
Solicitor for the Respondent:	Marque Lawyers

ORDER MADE BY:	JAGOT, YATES AND COLVIN JJ
DATE OF ORDER:	17 JUNE 2021