Mercovich, F.J. v Vanguard Service Print

[1985] FCA 199

p.rddLlce. a..~dPr.Ocedure - holdincr order extending beyond perlod of

five yedrs from the date of bankruptcy the tune when objections

against discharue would expire to enable the hearing of a

substantive application in respect of period at expiration of

whlch such objections should lapse - order made ex parte In public

chambers - application for extension of tlme in which to flle and

serve notice of appeal against holding order - jurisdiction of

Federal Court under s.24(1A) of Federal Court Act to entertain

appeal - whether leave of court required - matters relevant when

exerclsinu dlscretion to extend time or grant leave - effect of

provislon in sub-s.31(1) of Bankruptcy Act that the Court shall

hear and determine "in open Court", inter alia, the application

for an order in respect of a perlod at the expiration of which an

objection will lapse - whether court heard and determined matter

Words and Phra- - "hear and determine", "in open court"

Federal Court of Australia Act 1976 s.24(1A)

Bankruptcy Act 1966 sub-ss.31(1) and ( 2 )

Federal Court Rules Order 52 Rule 5

FRANK JOSEPH MERCOVICH v. VANGUARD SERVICE PRINT

No. WA G44 of 1985

TOOH!ZY J.

PERTH

27 MAY 1985

IN THE FEDERilL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	) No. WA G44 of 1985
DISTRICT REGISTRY	)
GENERAL DIVISION	)
B E T W E E N :
FRANK JOSEPH MEXCOVICH

Applicant

and

VANGUARD SERVICE PRINT

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Toohey J.
DATE OF ORDER	27 May 1985
WHERE MADE	Perth

THE COURT ORDERS THAT:

1. The application be dismissed.

2 . There be liberty to apply as to the costs of the

application.

Note: Settlement and entry of orders is dealt

with in Order 36 of the Federal Court Rules

No. W G44 of 1985

B E T W E E N :

FRANK JOSEPH MERCOVICB

Applicant

and

VANGUARD SERVICE PRINT

Respondent

CORAM: TOOHEY J.

27 MAY 1985

REASONS FOR JUDGMENT

This is an application by Frank Joseph Mercovich, a

bankrupt, for an extension of time in which to file and serve a

notice of appeal from an order made by the Supreme Court of

Western Australia on 12 February 1985 in bankruptcy proceedings.

The circumstances giving rise to the application are dealt with in

reasons for judgment just delivered by me in bankruptcy matter No.

51 of 1980 in which the partles to the present application are

also parties.

In terms the application seeks "an extension of time in

which to flle and serve a notice of appeal from the Judgment of

Mr. Justice Rowland in Chambers on the 12th day of February 1985

under Section 24(la) of the Federal Court of Australia Act".

There is no section numbered 24(la). Sub-section 24(1) of the

L.

Federal..Court of Australia Act 1976 qives to the Court

jurisdlctlon to hear and determine appeals

"(c) ln such cases as are provided by any

other Act, appeals from judgments of a

court of a State, other than a Full

Court of the Supreme Court of a State, exerclsing federal jurisdiction".

There is no doubt as to the jurisdiction of the Federal

Court to entertain an appeal in bankruptcy from a judgment of a

Supreme Court. However, by reason of sub-s.Z4(1A), no appeal may

be brought from such a ~udgment that is an lnterlocutory judgment

unless the Court of a judge gives leave to appeal. The order made

by the Supreme Court on 12 February 1985 was an interlocutory

~udgment, hence leave to appeal is necessary. Order 52 rule 5 of

the Federal-rt Rules requires that, where 'an appeal from a

judgment lies to the Court only with leave, an application for

leave shall be filed within 21 days after the judgment was

pronounced or a later date fixed for that purpose by the court or

judge who pronounced the declsion. Rule 5(3) contemplates that an

application may be made other than in compliance with rule (2);

but in such a case an order must be sought in the application that

compliance with sub-rule (2) be dispensed with.

The applicant faces several difficulties. He has not

complied with order 52 rule 5(3) but, since It is the leave of

this Court that is sought for him to appeal, I do not regard that

defect as a serious obstacle. His application 1s not in Its terms

one for leave to appeal but, the matter having been fully argued

by counsel, I propose to treat it as if it were in proper form.

3 .

However the appllcant must persuade the Court that it is proper to

entertaln his application out of time and that this 1 s an

appropriate case for a grant of leave to appeal. As to the first of these matters, the bankrupt was not served wlth a copy of the

order of the Supreme Court until 13 March 1985 or thereabouts. No

reason was forthcoming for the delay in effecting service. The

application for an extension of time was lodged on 19 April 1985.

Meanwhile there had been proceedings in bankruptcy in the Federal

Court to which reference 1s made in my reasons for judgment lust

delivered. In the clrcumstances and bearing in mind that

initially the bankrupt was unrepresented, I am satisfied that

failure to make the application within the time prescribed should

not of itself stand in the applicant's way. However, leave to

appeal is necessary and I consider that I should be persuaded that

the appeal has a reasonably arguable case before granting leave.

Of course this does not require any concluded expression of

opinion; but if the appeal appears to lack any merit	at all, leave
should be refused.

The basis of any appeal from the order of the Supreme

Court lies in the bankrupt's contention that the order was made in

breach of 5.31 of the Bankruptcv Act and was therefore a nullity.

Sub-section 31(1) provides that in exercising jurisdiction under

the Act the Court shall hear and determine "in open Court" the

matters therein specified. One of those matters is:

"(ba) applications for leave to enter or

withdraw an objection to the discharge of a bankrupt from bankruptcy by force

of section 149, for an order in respect

of a period at the expiration of which

such an oblection will lapse or for an

4.

order that a bankrupt shall not be

dlscharged from bankruptcy by force of

section 149".

Sub-sectlon 31(2) reads:

" ( 2 ) A l l other matters under the Act may, in

the discretion of the Court be heard in

open Court or in Chambers".

The order made by the Supreme Court 1s headed in this

wag.

BEFORE THE HONOURABLE MR. JUSTICE ROWLANDS (sic) IN CHAMBERS

ON THE 12" DAY OF FEBRUARY 1985".

The order reads:

"1.	The time at the expiration of which the
objections dated 18 January 1983 and
filed herein will lapse will be 30 March
1985, or until further order.
2.	There be liberty to apply".

The circumstances which led to the making of this order

are dealt with in my reasons for judgment just delivered in

bankruptcy matter No. 51 of 1980.

An affidavit filed by the solicitor for the respondent,

Vanguard Service Prlnt deposes:

" 3 . The application was heard by the

Honourable Mr. Justice Rowlands Csic3 in

Court No. 4 in the Supreme Court, Barrick

5 .

Csicl Street Perth. The application was

brought on before him by myself on an urgent

basis, prlor arranuements havlng been made

beforehand by telephone with his Associate.

Hls Honour did not at the tlme when the

matter came on before him have the Court flle

which was wlth the Bankruptcy Registry. His

Honour was not robed, neither was I as

counsel.

4. Court No. 4 was open to the public at the

time that the application was dealt with by

his Honour" .

The matter was argued before me in terms of whether the

Supreme Court determined the matter the subject of the order of 12

February 1985 In open court or whether it did so in chambers and,

if it determined the matter in chambers, whether the order made

was a nulllty or otherwise ineffective.

Historically the distinction between a court sitting in

open court and in chambers was the distlnction between a hearing

to which the public had access and a hearing to which it did not.

Even where a court is requlred to deal with a matter in open

court, there may be circumstances justifying it sitting in camera.

It may be necessary for the public safety or for reasons of

confidentiality of the material under consideration by the court

or for other good reason. See generally Halsburv's Laws of Ensland

4th Ed. Vol. 10 para.705. It is well known that for many years

the Supreme Court of Western Australia has conducted what are

known as public chambers. Indeed, as I recall the position, all

chambers matters are heard in public chambers other than matters

of a confidential nature such as adoptlons. Whether the Court, in

making the order of 12 February 1985 was sitting in open court or

in chambers is arquable. But It is of llttle moment for the Court

6.

was not in truth hearlng and determining a matter referred to in

para. 31(1 )(ba). It was domg no more t :han mak .ing an interm

order to preserve the position untll a particular date viz. 30

March 1985 or until further order. The Court granted llberty to

apply and it 1s clear that it sought to do no more than to

maintaln the positlon of the bankrupts	as	bankrupts until the
creditor's appllcation for leave to enter	an objection to the

discharge of the bankrupts could be heard. The Supreme Court was

doing no more than what courts do every day, hearing an

application ex parte in the most appropriate place given the

urgency of the matter.

In those circumstances I am of the clear opinion that

there was no failure to comply with s.31 and that there is no

justification for granting leave to appeal in this matter.

The application will be dismissed.

I certlfy that thls and the flve preceding

pages are a true copy of the Reasons for

Judgmnt herein of his Honour Vx, Justice

Dated: 27 May 1985