George v Fletcher (Trustee) (No 2) - [2010] FCA 655

FEDERAL COURT OF AUSTRALIA
George v Fletcher (Trustee) (No 2) [2010] FCA 655

Citation: George v Fletcher (Trustee) (No 2) [2010] FCA 655

Appeal from: Fletcher v George & Ors (No 6) [2009] FMCA 69

Parties: LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD ACN 008 126 387, DR PETER GEORGE IRONSIDE, NATIONAL AUSTRALIA BANK LIMITED and SUSAN WILSON

File number: QUD 47 of 2009

Judge: LOGAN J

Date of judgment: 18 June 2010

Catchwords:
PRACTICE AND PROCEDURE – Stay of order of the Full Court of the Federal Court pending application for special leave to appeal to the High Court – Where jurisdiction may be exercised by single judge of Full Court if Full Court considers that appropriate – Consideration of factors relevant to exercise of discretion to grant stay

HIGH COURT AND FEDERAL COURT – Application to stay orders made by the Full Court pending application for special leave to appeal to the High Court – Where matter already assigned to Full Court – Need under Federal Court of Australia Act 1976 (Cth), s 25 for view of that Full Court as to whether it is appropriate for application for stay to be heard by the Full Court to be taken into account – Where all judges of that Full Court agree that the stay application should be heard by the single Judge

Held: Application for stay of the orders of the Full Court dismissed by the single Judge

Legislation: Federal Court of Australia Act 1976 (Cth) s 25
Judiciary Act 1903 (Cth) s 35A

Cases cited: George v Fletcher (Trustee) [2010] FCAFC 53 cited
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd No. 1 (1986) 161 CLR 681 applied
George v Fletcher (Trustee) [2009] FCA 264 cited

Date of hearing: 18 June 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: Holman Webb Lawyers

Solicitor for the Second and Third Respondents: Mr R Galloway

Solicitor for the Fourth Respondent: Thynne & Macartney

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 47 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
LAUREN KAY GEORGE
Appellant

AND:
WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD ACN 008 126 387
Second Respondent

DR PETER GEORGE IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK LIMITED
Fourth Respondent

SUSAN WILSON
Fifth Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

18 JUNE 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for a stay of the orders of the Full Court is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

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: [2010] FCA 655
Decision Date: 18 June 2010

CaseChat Overview and Summary

The matter of George v Fletcher (Trustee) (No 2) involved an application by the applicant to stay the orders of the Full Court of the Federal Court, pending an application for special leave to appeal to the High Court. The applicant sought to challenge the orders made by the Full Court, which were already assigned to that Court. The applicant's primary contention was that the orders should be stayed to allow for the application for special leave to the High Court to be heard.

The legal issues before the Court were whether the jurisdiction of the single Judge of the Full Court could be exercised to hear the application for a stay, and if so, what factors should be considered in deciding whether to grant the stay. The Court was required to consider the provisions of the Federal Court of Australia Act 1976 (Cth), particularly section 25, which requires the Full Court to consider whether it is appropriate for the application for a stay to be heard by the Full Court. Additionally, the Court had to assess the agreement of all judges of the Full Court on whether the stay application should be heard by a single Judge.

The Court found that the jurisdiction of the single Judge could indeed be exercised to hear the application for a stay. The Court considered the factors relevant to the exercise of discretion, including the provisions of the Federal Court Act and the agreement of the Full Court judges. In this instance, all judges of the Full Court agreed that the stay application should be heard by a single Judge. However, the Court ultimately dismissed the application for a stay, as it did not consider the matter to be one in which a stay should be granted. The Court concluded that the stay should not be granted, as the interests of justice did not favour such an outcome.

The Court's decision resulted in the dismissal of the applicant's application for a stay of the orders of the Full Court. The orders of the Court were clear: the application for a stay of the orders of the Full Court was dismissed.

Orders

Orders of the court

1. The application for a stay of the orders of the Full Court is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		George v Fletcher (Trustee) (No 2) [2010] FCA 655
Appeal from:		Fletcher v George & Ors (No 6) [2009] FMCA 69
Parties:		LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD ACN 008 126 387, DR PETER GEORGE IRONSIDE, NATIONAL AUSTRALIA BANK LIMITED and SUSAN WILSON
File number:		QUD 47 of 2009
Judge:		LOGAN J
Date of judgment:		18 June 2010
Catchwords:		PRACTICE AND PROCEDURE – Stay of order of the Full Court of the Federal Court pending application for special leave to appeal to the High Court – Where jurisdiction may be exercised by single judge of Full Court if Full Court considers that appropriate – Consideration of factors relevant to exercise of discretion to grant stay HIGH COURT AND FEDERAL COURT – Application to stay orders made by the Full Court pending application for special leave to appeal to the High Court – Where matter already assigned to Full Court – Need under Federal Court of Australia Act 1976 (Cth), s 25 for view of that Full Court as to whether it is appropriate for application for stay to be heard by the Full Court to be taken into account – Where all judges of that Full Court agree that the stay application should be heard by the single Judge Held: Application for stay of the orders of the Full Court dismissed by the single Judge
Legislation:		Federal Court of Australia Act 1976 (Cth) s 25 Judiciary Act 1903 (Cth) s 35A
Cases cited:		George v Fletcher (Trustee) [2010] FCAFC 53 cited Jennings Construction Limited v Burgundy Royale Investments Pty Ltd No. 1 (1986) 161 CLR 681 applied George v Fletcher (Trustee) [2009] FCA 264 cited
Date of hearing:	18 June 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Holman Webb Lawyers
Solicitor for the Second and Third Respondents:	Mr R Galloway
Solicitor for the Fourth Respondent:	Thynne & Macartney

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 47 of 2009

JUDGE:	LOGAN J
DATE OF ORDER:	18 JUNE 2010
WHERE MADE:	BRISBANE