Dye v Commonwealth Securities Ltd (No 2)

Case [2010] FCA 817

FEDERAL COURT OF AUSTRALIA

Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817

Citation: Dye v Commonwealth Securities Limited (No 2) [2010] FCA 817
Appeal from: Application for leave to appeal: Dye v Commonwealth Securities Limited [2010] FCA 720
Parties: VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
File number(s): NSD 909 of 2010
Judge: NICHOLAS J
Date of judgment: 4 August 2010
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment of primary judge refusing the applicant leave to amend statement of claim – whether application for leave to appeal competent – effect of s 24(1AA) and s 20(3) of the Federal Court of Australia Act 1976 (Cth)

Held: Application dismissed as incompetent – no right to appeal decision of single judge refusing leave to amend statement of claim

CONSTITUTIONAL LAW – assertion by applicant that s 24(1AA) of the Act invalid as inconsistent with Ch. III of the Constitution – whether application for leave to appeal involves a matter arising under the Constitution or involving its interpretation – whether Court bound not to proceed to allow required notices to be given pursuant s 78B of the Judiciary Act 1903 (Cth)

Held: No s 78B notice required – application does not involve a matter that “really and substantially” arises under the Constitution – asserted invalidity of s 24(1AA) based on a misunderstanding of relevant statutory provisions
Legislation: Access toJustice (Civil Litigation Reforms) Amendment Act 2009 (Cth)
Constitution s 73, Ch. III
Federal Court of Australia Act 1976 (Cth) ss 19, 20, 24, 33
Federal Court Rules O 4, rr 1, 6
Judiciary Act 1903 (Cth) s 78B
War Crimes Act 1945 (Cth) s 9
Cases cited: Amrit Lal Narain v Parnell (1986) 9 FCR 479 applied
Australian Competition and Consumer Commission v C J Berbatis Holdings Pty Ltdd (1999) 95 FCR 292 applied
Cockle v Isaksen (1957) 99 CLR 155 cited
Polyukhovich v Commonwealth (1991) 172 CLR 501 cited
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 cited
Watson v Federal Commissioner of Taxation (1952) 87 CLR 353 cited
Date of hearing: 30 July 2010
Date of last submissions: 30 July 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 27
Counsel for the Applicant: P King
Solicitor for the Applicant: Turner Freeman
Counsel for the Respondent: P Gray SC & G Wright
Solicitor for the Respondent: Freehills

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 909 of 2010

BETWEEN:

VIVIENNE LOUISE DYE
Applicant
AND:

COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399)
Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

4 AUGUST 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s notice of motion seeking leave to appeal is dismissed as incompetent.

2.The respondent’s notice of motion is dismissed.

3.The applicant is to pay the respondent’s costs of the applicant’s notice of motion.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AGLC
Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817
Case
[2010] FCA 817
Decision Date

CaseChat Overview and Summary

The case of Dye v Commonwealth Securities Ltd (No 2) involved an application for leave to appeal from an interlocutory judgment of a primary judge. The applicant sought permission to amend their statement of claim, which was refused by the primary judge. The applicant then sought leave to appeal this decision. The court had to determine whether the application for leave to appeal was competent and whether the asserted invalidity of a statutory provision was valid. The court found that the application for leave to appeal was incompetent as there is no right to appeal a decision of a single judge refusing leave to amend a statement of claim. The court also found that the applicant's assertion that a statutory provision was inconsistent with the Constitution was based on a misunderstanding of the relevant statutory provisions.

The court was required to decide whether the application for leave to appeal was competent and whether the asserted invalidity of a statutory provision was valid. The court found that the application for leave to appeal was incompetent as there is no right to appeal a decision of a single judge refusing leave to amend a statement of claim. The court also found that the applicant's assertion that a statutory provision was inconsistent with the Constitution was based on a misunderstanding of the relevant statutory provisions. The court held that the application for leave to appeal did not involve a matter that "really and substantially" arose under the Constitution. The court held that the asserted invalidity of the statutory provision was based on a misunderstanding of the relevant statutory provisions.

The court dismissed the application for leave to appeal as incompetent. The court held that there is no right to appeal a decision of a single judge refusing leave to amend a statement of claim. The court also held that the asserted invalidity of a statutory provision was based on a misunderstanding of the relevant statutory provisions. The court ordered that the applicant's notice of motion seeking leave to appeal is dismissed as incompetent, the respondent's notice of motion is dismissed, and the applicant is to pay the respondent's costs of the applicant's notice of motion.

Orders

Orders of the court

1. The applicant’s notice of motion seeking leave to appeal is dismissed as incompetent.

2. The respondent’s notice of motion is dismissed.

3. The applicant is to pay the respondent’s costs of the applicant’s notice of motion.

Note:

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

The Explanatory Memorandum to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 states:80.As a result of item 12, only judgments of a single Judge exercising original jurisdiction can be appealed to the Full Court. However, new subsection 24(1AA) provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.81.These interlocutory matters involve minor procedural decisions for which there should be no avenue of appeal. The removal of the right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by appeals from these decisions.82.New subsection 24(1AA) provides that there will be no appeal avenue in relation to the following minor interlocutory decisions:·all decisions under subsection 20(3) (i.e. for leave or special leave to institute proceedings in the Court, for an extension of time within which to institute proceedings in the Court, for leave to amend the grounds of an application or appeal to the Court, or to stay a decision of the tribunal or authority); or·to join or remove a party; or·decisions about security for the payment of costs in relation to a proceeding under s 56; or·decisions to adjourn a hearing, to vacate a hearing date or expedite a hearing.(emphasis added) The Attorney General said of the proposed amendments in his Second Reading Speech to the House of Representatives (Hansard, 22 June 2009, pp 6732-6734 at p 6733):The new appeals measures will assist the court to provide greater flexibility in dealing with appeal proceedings.Uncertainty surrounding appeal rights in relation to interlocutory judgments will be removed, so that the court’s time will no longer be spent unnecessarily hearing appeals from certain interlocutory decisions.The court’s power to manage cases will be strengthened. The amendments ensure that a single judge is able to deal with ancillary and interlocutory matters in most circumstances without the need to constitute a full court. Consideration For present purposes, s 24(1AA) is the key provision. When read with s 24(1)(a), it provides that an appeal may not be brought from a judgment of the Court constituted by a single judge exercising the original jurisdiction of the Court if the judgment is, relevantly, “a determination of an application of the kind mentioned in subsection 20(3)”. The kinds of application mentioned in s 20(3) include an application “for leave to amend the grounds of an application or appeal to the Court”. It is clear enough, in my view, that this includes an application to amend a statement of claim. The proceeding to be heard by her Honour was commenced by application and statement of claim filed on 24 July 2008. According to that application, the accompanying statement of claim stated the “grounds” of the applicant’s claims. In this respect the application was in a form satisfying the requirements of the rules: Order 4, Rule 1 and Schedule 1, Form 5 of the Federal Court Rules. The rules also required that the statement of claim show the nature of the applicant’s claim and the material facts on which it was based: Order 4, Rule 6(2) of the Federal Court Rules.

Ratio Decidendi

Legal Principle Established

The Attorney General said of the proposed amendments in his Second Reading Speech to the House of Representatives (Hansard, 22 June 2009, pp 6732-6734 at p 6733):The new appeals measures will assist the court to provide greater flexibility in dealing with appeal proceedings.Uncertainty surrounding appeal rights in relation to interlocutory judgments will be removed, so that the court’s time will no longer be spent unnecessarily hearing appeals from certain interlocutory decisions.The court’s power to manage cases will be strengthened. The amendments ensure that a single judge is able to deal with ancillary and interlocutory matters in most circumstances without the need to constitute a full court. Consideration For present purposes, s 24(1AA) is the key provision. When read with s 24(1)(a), it provides that an appeal may not be brought from a judgment of the Court constituted by a single judge exercising the original jurisdiction of the Court if the judgment is, relevantly, “a determination of an application of the kind mentioned in subsection 20(3)”. The kinds of application mentioned in s 20(3) include an application “for leave to amend the grounds of an application or appeal to the Court”. It is clear enough, in my view, that this includes an application to amend a statement of claim. The proceeding to be heard by her Honour was commenced by application and statement of claim filed on 24 July 2008. According to that application, the accompanying statement of claim stated the “grounds” of the applicant’s claims. In this respect the application was in a form satisfying the requirements of the rules: Order 4, Rule 1 and Schedule 1, Form 5 of the Federal Court Rules. The rules also required that the statement of claim show the nature of the applicant’s claim and the material facts on which it was based: Order 4, Rule 6(2) of the Federal Court Rules. Since her Honour’s judgment was a determination of an application to amend the grounds of an application to the Court, it is a determination of the kind mentioned in sub-section 20(3). Section 24(1AA) provides that an appeal must not be brought from such a judgment. This interpretation of the relevant provisions accords with their ordinary meaning. If regard is had to the Explanatory Memorandum and Second Reading Speech for the purpose of seeking confirmation that it was Parliament’s intention to amend s 24 to exclude any right of appeal from interlocutory judgments of the kind specified in s 24(1AA) (including determinations of the kind specified in s 20(3)) then the position is put beyond doubt. The change brought about by the introduction of s 24(1AA) is significant and far reaching. The statement appearing in the Explanatory Memorandum at para [81] to the effect that the interlocutory judgments to which s 24(1AA) now applies are “minor procedural decisions” is a generalisation to which there will inevitably be exceptions. In some cases s 24(1AA) may be the source of considerable hardship where there is reason to believe that a judge’s discretion has miscarried. But it is clear when one has regard to the extrinsic material to which I have referred as well as other important amendments that were made to the Act by the Access Act that Parliament intended that there should be no appeal from interlocutory decisions of the kinds specified in s 24(1AA). The applicant’s constitutional point