Kyriackou v Australian Securities and Investments Commission

In the case of Kyriackou v Australian Securities and Investments Commission, the applicants sought leave to appeal from orders made by a Judge of the Federal Court of Australia. These orders, delivered on 20 January 2010, granted the Australian Securities and Investments Commission (ASIC) leave to discontinue a proceeding against the applicants and directed that there be no order as to the costs of the proceeding, except for the costs of a specific application which were to be borne by the applicants. The applicants argued that they did not require leave to appeal and could appeal of right, and alternatively, that they should be granted leave to appeal. The central legal issue was whether the applicants were entitled to appeal the Judge’s orders without obtaining leave, or if leave was necessary and should be granted.

The Court considered the applicants’ contentions and concluded that the applicants could not appeal as of right. The Court emphasised that having agreed to ASIC's discontinuance of the proceeding, the applicants could not subsequently challenge the merits of ASIC's case by attacking the provisional views expressed by the primary Judge about the nature and strength of each party's case. The Court found that it was not open to perform the task for which the applicants contended. The Court also concluded that leave to appeal was not warranted because the applicants had not shown any grounds that would justify an appeal. Consequently, the Court refused the applicants leave to appeal and ordered that the applicants pay ASIC's costs of the application for leave.