Griffiths, R.F. v Civil Aviation Authority - [1994] FCA 938

ROY FREDERICK GRIFFITHS v. CIVIL AVIATION AUTHORITY
No. QG82 of 1994
FED No. 938/94
Number of pages - 2
Dismissal of Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
KIEFEL J

CATCHWORDS

Dismissal of Appeal - statutory right to appeal - institution of appeal after sequestration - whether statutory right of appeal is property which vested in trustee.

Federal Court Rules O 52, r 18
Bankruptcy Act 1966 s 60

Fuller v. Beach Petroleum NL and Anor (1993) 43 FCR 60

HEARING

BRISBANE, 1 December 1994
#DATE 2:12:1994

Counsel for the Applicant: Mr D.P. O'Gorman

Solicitors for the Applicant: L.W. Hewitt

Counsel for the Respondents: Mr D.G. Ryan

Solicitors for the Respondents: Mallesons Stephen Jacques

ORDER

The Court Orders That:
1. The appeal be dismissed as incompetent.
2. The appellant pay the respondent's costs of the motion and
of the appeal to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

KIEFEL J The Civil Aviation Authority is the respondent to an appeal instituted by Mr Griffiths on 28 June 1994 and moves the Court on notice under O 52 r 18 for a dismissal of the appeal as incompetent on the basis that, prior to its institution, Mr Griffith's property had been sequestrated.

The appeal to this Court was from a decision of the Administrative Appeals Tribunal affirming the decision of the Civil Aviation Authority varying Mr Griffith's licences to fly helicopters and aeroplane by imposing restrictions. The relevant dates are:

8/2/94 Hearing concluded before the

Tribunal and decision reserved 18/5/94 Sequestration

31/5/94 Tribunal delivers its decision 28/6/94 Notice of Appeal filed

As Mr Ryan for the respondent observed in his submissions the chronology bears a striking resemblance to the sequence of events in Fuller v. Beach Petroleum NL and Anor (1993) 43 FCR 60. The majority of the Full Court (Gummow and Whitlam JJ) there held that an appeal was an action commenced within the meaning of s 60 of the Bankruptcy Act. Where it was brought after, and not before, sequestration it was not then governed by the provisions as to the stay of proceedings in s 60, and the matter fell to be determined on the question whether the statutory right of appeal was "property" which vested in the trustee. In that regard the majority held that the statutory right to prosecute the appeal given by s 24 of the Federal Court Act fell within the meaning of the expression "personal property of every description" and therefore within the definition of "property" in s 5(1), as a result of which it vested in the bankrupt's trustee. That was so, in their Honour's view, even though the statutory right of appeal they were there concerned with was from a judgment creating a liability in the bankrupts (and involving findings of personal misconduct). In particular (66,67) their Honours pointed to the exclusion in s 116 from property divisible amongst the creditors…

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 Griffiths, R.F. v Civil Aviation Authority

Details

AGLC: Griffiths, R.F. v. Civil Aviation Authority [1994] FCA 938
Case: [1994] FCA 938
Decision Date: 02 DECEMBER 1994

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Griffiths, R.F. v Civil Aviation Authority involved a dispute regarding the statutory right of appeal. The appellant, who had been subject to a sequestration order, filed an appeal after the sequestration. The respondent sought to dismiss the appeal, arguing that the statutory right of appeal had vested in the trustee in bankruptcy and was thus no longer available to the appellant.

The central legal issue before the court was whether the statutory right of appeal constitutes property that vests in a trustee upon the sequestration of an appellant. If it were to be considered property, the right would vest in the trustee and could not be exercised by the appellant post-sequestration. The court had to determine the nature of the statutory right of appeal and its implications in the context of bankruptcy.

The court held that the statutory right of appeal is not property that vests in the trustee upon sequestration. Consequently, the appellant's right to appeal was not extinguished by the sequestration order. However, the court found that the appeal was incompetent because it was initiated after the appellant's sequestration, and thus, the appellant lacked the legal standing to pursue the appeal. The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the motion and the appeal.

Orders

Orders of the court

The Court Orders That:

1. The appeal be dismissed as incompetent.

2. The appellant pay the respondent's costs of the motion and

of the appeal to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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