FEDERAL COURT OF AUSTRALIA
Kassiou v Heard (Liquidator) [2017] FCA 425
Appeal from: Application for leave to appeal: Heard, in the matter of GEBIE Services Pty Ltd (in liq) [2017] FCA 323 File number: SAD 80 of 2017 Judge: CHARLESWORTH J Date of judgment: 28 April 2017 Catchwords: APPEAL AND NEW TRIAL – whether judgment appealed against is interlocutory – whether leave to appeal is required
CORPORATIONS – examination summons issued under Pt 5.9 of the Corporations Act 2001 (Cth) — whether scope of examination and related orders for production of documents are arguably too wide
PRACTICE AND PROCEDURE – whether application for leave to appeal, and antecedent question of whether leave to appeal is required, should be referred to a Full Court for hearing and determination
Legislation: Bankruptcy Act 1966 (Cth), s 81
Companies Act 1961 (NSW), s 249
Corporations Act 2001 (Cth), ss 9, 53, 596A, 596B, 596D, 596F, 597, Pt 5.9
Federal Court of Australia Act 1976 (Cth), ss 24, 25, 35A, 37M
Federal Court (Corporations) Rules 2000, rr 11.1, 11.5, 16.1
Cases cited: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2000) 204 CLR 559
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Contura Mining Pty Ltd, in the matter of B.J. Jarrad Pty Ltd (in liq) v Mableson [2015] FCA 1362
Cubillo v Commonwealth (2001) 112 FCR 455
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Evans v Wainter Pty Ltd (2005) 145 FCR 176
Fencott v Muller (1983) 152 CLR 570
Gerah Imports Pty Ltd v The Duke Group Pty Ltd (in liquidation) (1993) 61 SASR 557
Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301
House v The King (1936) 55 CLR 499
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Mazukov v University of Tasmania [2004] FCAFC 159
Meteyard v Love (2005) 65 NSWLR 36
O’Neill v Piscopo [2011] FCA 773
Re Banksia Securities Ltd [2013] VSC 416, (2013) 278 FLR 421
Re BPTC Ltd (in liq) (No 3) (1993) 29 NSWLR 708
Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138
Shapowloff v Stirling Henry Ltd (in Liq) (1972) 2 NSWLR 691
Trevor (Liquidator) v Evans [2017] FCAFC 36
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Date of hearing: 19 April 2017 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 84 Counsel for the Applicants: Mr P Hayes Solicitor for the Applicants: McKays Solicitors Counsel for the Respondent: Mr S Evans Solicitor for the Respondent: Lynch Meyer Lawyers ORDERS
SAD 80 of 2017 BETWEEN: THEMELINA KASSIOU
First Applicant
GREGORY MITCHELL
Second Applicant
INDUSTRIES SERVICES TRAINING PTY LTD
Third Applicant
AND: ANDREW JAMES HEARD AND ANTHONY JOHN ARTHUR PHILLIPS AS JOINT AND SEVERAL LIQUIDATORS OF GEBIE SERVICES PTY LTD (IN…
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- AGLC
- Kassiou v Heard (Liquidator) [2017] FCA 425
- Case
- [2017] FCA 425
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the judgment was interlocutory and if leave to appeal was needed. Additionally, the court had to determine whether the application for leave to appeal and the question of whether leave was required should be referred to a Full Court. The primary issues hinged on the interpretation of the relevant statutes and case law, particularly focusing on the distinction between final and interlocutory judgments and the policy behind requiring leave to appeal.
The court concluded that the judgment of the primary judge was indeed interlocutory and that leave to appeal was required. The court found that the application for leave to appeal should be dismissed, as the applicants had not demonstrated sufficient grounds to warrant such leave. The court also dismissed the application for referral to a Full Court, stating that the issues at hand did not require the resolution by three judges. The reasoning emphasised the importance of the policy behind the requirement for leave to appeal and the sensible exercise of discretion in granting such leave.
The court dismissed the amended application for leave to appeal filed on 5 April 2017, and entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The amended application for leave to appeal filed on 5 April 2017 is dismissed.
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
On 23 March 2017 the three applicants filed a notice of appeal against a judgment of a single judge of this Court: Heard, in the matter of GEBIE Services Pty Ltd (in liq) [2017] FCA 323. The judgment concerns the scope of examinations to be conducted under Pt 5.9 of the Corporations Act 2001 (Cth) and the production of documents at or in connection with the examinations. An issue arises as to whether the judgment sought to be appealed against is interlocutory. No appeal lies against such a judgment except with the leave of the Court: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24(1A). The respondents foreshadowed an application for an order that the appeal be struck out as incompetent on that basis. In response, the applicants filed an application for leave to appeal and then an amended application for leave. They nonetheless persist in their primary position that they may appeal from the judgment as of right. Consistent with their primary position, they have not withdrawn the notice of appeal filed on 23 March 2017. It remains on the Court file and is in a different form to a draft notice of appeal annexed to the amended application for leave. An application for leave to appeal must be heard and determined by a single judge unless (relevantly) a judge directs that the application be heard and determined by a Full Court: s 25(2)(a) and (3) of the FCA Act. At a case management hearing, the applicants made an oral application for a direction that the application for leave to appeal be listed before a Full Court together with the antecedent question of whether leave to appeal is required. I dismissed that application. The questions of whether leave was required and, if so, whether leave should be granted were then set down for hearing before me. At the commencement of the hearing, the applicants made a renewed oral application for a direction that the question of whether leave to appeal is required be referred for determination by a Full Court, together with the application for leave (if required). For the reasons given at [6] to [14] below, that application, too, should be dismissed. I have concluded that the judgment of the learned primary judge is interlocutory and that, accordingly, leave to appeal is required: see [15] to [43] below. For the reasons given at [44] to [82] below, the application for leave to appeal should be dismissed.THE APPLICATIONS FOR REFERRAL TO THE FULL COURT Submissions on these two applications proceeded from the footing that the question of whether leave to appeal was required was one attended with unusual difficulty such that it was appropriate to be resolved by three minds rather than one. Further, it was submitted that a Full Court may, depending on the answer to that question, turn immediately to determine the application for leave to appeal and, at the same hearing (if leave be required and granted), the appeal itself. Counsel for the applicants relied on the observations of French J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42] – [43]:42. The application of the leave requirement should not involve the expenditure of significant intellectual energy on the distinction between final and interlocutory judgments. Admittedly, that is a question ‘productive of much difficulty’ – Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 (Gibbs CJ). But the policy of the provision is plain enough. . . .43. Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question. . . . But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre-trial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. . . .