Du Bray v ACW

Case [2019] FCA 1586

FEDERAL COURT OF AUSTRALIA

Du Bray v ACW [2019] FCA 1586

Appeal from: ACW v Du Bray [2019] FCA 1075
File number: NSD 1181 of 2019
Judge: JAGOT J
Date of judgment: 25 September 2019
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – insufficient doubt as to the correctness of the primary judge’s decision – no injustice to applicant supposing primary decision to be wrong – application for leave to appeal be dismissed
Legislation:

Evidence Act 1995 (Cth) ss 91, 91(1)

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG(1)(a)

Trans-Tasman Proceedings Act 2010 (Cth)

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533

Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741

Bellamy’s Australia Limited v Basil [2019] FCAFC 147

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Ltd [2001] FCA 237; (2001) 183 ALR 700

The Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

Date of hearing: 18 September 2019
Registry: New South Wales
Division: General
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: Mr C D Wood
Solicitor for the Applicant: Prime Lawyers
Counsel for the Respondent: Dr C Ward SC
Solicitor for the Respondent: Marque Lawyers

ORDERS

NSD 1181 of 2019
BETWEEN:

LEE FRANCIS DU BRAY

Applicant

AND:

ACW

Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

25 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The applicant pay the respondent’s costs of the application as agreed or taxed.

3.Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), for a period of 14 days from the date of these orders, these reasons for judgment not be published other than to the parties and their legal representatives.

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


REASONS FOR JUDGMENT

JAGOT J:

The application for leave to appeal

  1. These reasons for judgment explain why I have decided that the application for leave to appeal should be dismissed.

  2. In Bellamy’s Australia Limited v Basil [2019] FCAFC 147 at [7] Murphy, Gleeson and Lee JJ said:

    …an applicant [for leave to appeal] must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision proposed to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in…

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AGLC
Du Bray v ACW [2019] FCA 1586
Case
[2019] FCA 1586
Decision Date

CaseChat Overview and Summary

Du Bray lodged an application for leave to appeal against a decision made by ACW. The appeal sought to challenge the correctness of the primary judge's decision. The Federal Court was tasked with determining whether there was sufficient doubt regarding the correctness of the primary decision to warrant an appeal. Additionally, the court had to assess whether there would be an injustice to the applicant if the primary decision was found to be incorrect.

The court examined the arguments presented by both parties and the merits of the case. It found that the applicant had not demonstrated sufficient doubt as to the correctness of the primary judge's decision. Furthermore, the court concluded that there would be no injustice to the applicant if the primary decision was ultimately found to be wrong. These findings were critical in determining whether leave to appeal should be granted.

Based on its analysis, the court decided to dismiss the application for leave to appeal. The applicant was also ordered to pay the respondent's costs of the application, either as agreed upon or as taxed. Additionally, the court ruled that the reasons for judgment would not be published for a period of 14 days from the date of the orders, except to the parties and their legal representatives. This decision was made in accordance with section 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal be refused.

2. The applicant pay the respondent’s costs of the application as agreed or taxed.

3. Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), for a period of 14 days from the date of these orders, these reasons for judgment not be published other than to the parties and their legal representatives.

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

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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