HBSY Pty Ltd v Lewis

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FEDERAL COURT OF AUSTRALIA

HBSY Pty Ltd v Lewis [2023] FCAFC 109   

Appeal from: HBSY Pty Ltd v Lewis [2022] NSWSC 841
File number: NSD 726 of 2022
Judgment of: MARKOVIC, DOWNES AND KENNETT JJ
Date of judgment: 14 July 2023
Catchwords:

HIGH COURT AND FEDERAL COURT – Jurisdiction – cross-vesting – bankruptcy – where applicant seeks extension of time to appeal from judgment of Supreme Court of New South Wales – where proceeding involves matter arising under Bankruptcy Act 1966 (Cth) and Supreme Court exercising jurisdiction under s 39(2) of Judiciary Act 1903 (Cth) – whether s 7(5) of Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) has the effect that appeal should be instituted in Federal Court

APPEALS – Whether Federal Court’s appellate jurisdiction invoked by application for extension of time

Legislation:

Constitution ss 51(xxxix), 75, 76(ii), 77(iii)

Bankruptcy Act 1966 (Cth) ss 5, 27, 31, 35, 35A, 58, 60, 153

Federal Court of Australia Act 1976 (Cth) ss 24, 59

Judiciary Act 1903 (Cth) ss 39, 39B(1A)(c), 79, 80

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 4, 7

Federal Court Rules 2011 (Cth) r 36.03

Uniform Civil Procedure Rules 2005 (NSW)

Cases cited:

Ah Yick v Lehmert (1905) 2 CLR 593

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485

Boensch v Pascoe [2016] NSWCA 191; 311 FLR 101

Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; 86 NSWLR 115

Collins (alias Hass) v The Queen (1975) 133 CLR 120

CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1

Director of Public Prosecutions v Leys [2012] VSCA 304; 44 VR 1

Felton v Mulligan (1971) 124 CLR 367

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; 254 CLR 489

Gould v Brown [1998] HCA 6; 193 CLR 346

Guan v Li [2022] NSWCA 173; 371 FLR 531

HBSY Pty Ltd v Lewis [2022] NSWSC 841; 108 NSWLR 558

Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172; 171 FCR 380

Morris Finance Ltd v Brown [2016] NSWCA 343; 93 NSWLR 551

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141

R v Young [1999] NSWCCA 166; 46 NSWLR 681

Re Alcan Australia Limited; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96

In re Judiciary and Navigation Acts (1921) 29 CLR 257

Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511

Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55; 262 CLR 456

Singh v Khan [2021] NSWCA 281; 363 FLR 88

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

Taylor v Owners – Strata Plan 11564 [2014] HCA 9; 253 CLR 531

Thompson (Pauper) v Goold & Co [1910] AC…

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Details
Case
[2023] FCAFC 109
Decision Date

CaseChat Overview and Summary

HBSY Pty Ltd sought an extension of time to appeal a decision from the Supreme Court of New South Wales, which had been made under the Bankruptcy Act 1966 (Cth). The Supreme Court exercised its jurisdiction under section 39(2) of the Judiciary Act 1903 (Cth), and the applicant applied to the High Court for the extension of time, but the application was transferred to the Federal Court. The central legal issue was whether the appeal should have been lodged in the Federal Court under section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Additionally, the court considered whether the Federal Court's appellate jurisdiction was engaged by the application for an extension of time.

The Federal Court found that section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) did not apply to the situation, as it did not cover applications for an extension of time. The court reasoned that the provision only applied to appeals from the original decision, not to procedural applications concerning the timing of those appeals. The court also held that the Federal Court's appellate jurisdiction was not invoked by the application for an extension of time. Consequently, the application for an extension of time was dismissed as incompetent.

In light of the above, the court dismissed the application for an extension of time and ordered that HBSY Pty Ltd pay the respondent's costs of the application as agreed or assessed. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an extension of time is dismissed as incompetent.

2. The applicant is to pay the respondent’s costs of the application as agreed or assessed.

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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