FEDERAL COURT OF AUSTRALIA
Pantzer v Wenkart [2007] FCAFC 27
APPEALS – application to re-open appeals after final orders have been entered
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 referred to
DJL v The Central Authority (2000) 201 CLR 226 applied
Bailey v Marinoff (1971) 125 CLR 529 referred to
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 referred to
Autodesk Inc v Dyason[No 2] (1993) 176 CLR 300 referred toWARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2457 OF 2005WARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2459 OF 2005BLACK CJ, RYAN AND MOORE JJ
13 MARCH 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NSD 2457 OF 2005
NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WARREN PANTZER
AppellantAND:
THOMAS RICHARD WENKART
First RespondentANN SEXTON
Second RespondentINSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
JUDGES:
BLACK CJ, RYAN AND MOORE JJ
DATE OF ORDER:
13 MARCH 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The motion on notice is refused.
2.The first respondent pay the appellant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NSD 2459 OF 2005
NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WARREN PANTZER
AppellantAND:
THOMAS RICHARD WENKART
First RespondentANN SEXTON
Second RespondentINSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
JUDGES:
BLACK CJ, RYAN AND MOORE JJ
DATE OF ORDER:
13 MARCH 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
- The motion on notice is refused.
- The first respondent pay the appellant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NSD 2457 OF 2005
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2459 OF 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WARREN PANTZER
AppellantAND:
THOMAS RICHARD WENKART
First RespondentANN SEXTON
Second RespondentINSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
JUDGES:
BLACK CJ, RYAN AND MOORE JJ
DATE:
13 MARCH 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BLACK CJ
On 28 September 2006, the Court gave judgment in two appeals in which there were challenges to orders made by a judge of this Court setting aside certificates of taxation of costs. The Full Court allowed each appeal and published its reasons: see Pantzer v Wenkart [2006] FCAFC 140.
Nearly two weeks later, after business hours on 11 October 2006, Dr Wenkart’s solicitors sent a letter to my associate by facsimile requesting that “the Full Court re-list both appeals for the purposes of varying the orders made in each appeal”. My associate replied by facsimile the following day, noting that Dr Wenkart had not made any application to the Court since judgment had been delivered and suggesting that any…
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- Pantzer v Wenkart [2007] FCAFC 27
- Case
- [2007] FCAFC 27
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the respondent could request undelivered reasons from an intermediate appellate court without seeking leave to appeal from the High Court, and whether such a request could be made after the orders of the Court had been entered. Additionally, the court had to consider whether the respondent's grounds of contention were valid and whether they effectively challenged the primary judge's orders.
The Full Court found that the respondent was not entitled to request undelivered reasons from the appellate court without leave from the High Court, even after the orders of the Court had been entered. The court also found that the grounds of contention raised by the respondent did not effectively challenge the primary judge's orders and were therefore invalid. The Full Court rejected the respondent's grounds of contention and dismissed the motion on notice.
The Full Court ordered that the motion on notice be refused and that the respondent pay the appellant's costs. The court found that the respondent's grounds of contention were not valid and therefore could not effectively challenge the primary judge's orders. The Full Court dismissed the respondent's motion on notice and ordered that the respondent pay the appellant's costs.
Orders
Orders of the court
1. The motion on notice is refused.
2. The first respondent pay the appellant's costs.
1. The motion on notice is refused.
2. The first respondent pay the appellant's costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: BLACK CJ, RYAN AND MOORE JJ
By the notices of motion, Dr Wenkart sought that the orders be varied in the following terms (text which has been struck through represents proposed deletions and underlined text his proposed additions):(a) Order 2 – the Orders made by the Primary Judge on 6 December 2005 be set aside and in lieu thereof the appeal against the decision of the taxing officer in proceedings NSD181 of 2005 be dismissed and the matter otherwise be remitted to the Trial Judge for further consideration in accordance with these reasons.(b) Order 3 – the First Respondent pay the Appellant's costs of the appeal against the decision of the taxing officer in proceeding number NSD181 of 2005 and of the Appeal to this Full Court, such costs to be taxed in default of agreement.(c) Order 4 – The Appellants costs of the Appeal against the decision of the Taxing Officer in Proceeding number NSD1973 of 2004 be in the discretion of the Trial Judge. The notice of contention in NSD 2459 of 2005 contained the following grounds:1.The trial judge ought to have held that there was no evidence before the Court which established that the work for which the taxation was performed was work performed in relation to the administration of the estate as an additional basis to reject the Appellant's claim.2.The trial judge ought to have held that the legal firm, Sally Nash & Co, was never retained by the Appellant in his capacity as Trustee of the Bankrupt Estate of the First Respondent as an additional basis to reject in its entirely the Appellant's claim in relation to costs and disbursements.3.The trial judge ought to have held that upon the true construction of subsection 167(7) of the Bankruptcy Act, that section operates to preclude any bill of costs submitted after 21 November 2003 as an additional basis to reject the Appellant's claim.4.The trial judge ought to have held that the operation of sub-section 167(1) of the Bankruptcy Act 1966, in the circumstances, limits a bill of costs to a bill of costs which was provided by a person in relation to the administration of the Estate was an additional basis to reject the Appellant's claim.5.The trial judge erred in finding that the bill of costs submitted by the Appellant complied with sub-regulation 8.10(1) of the Bankruptcy Regulations 1996. The grounds in each notice of contention were the same, except that the notice of contention in NSD 2457 of 2005 contained this additional ground:The trial judge erred in finding that the claims made by the Appellant extended to the performance by another person of the ordinary duties required of the Appellant (for example Mr Piscopo) notwithstanding subsection 162(6) of the Bankruptcy Act 1996 precluding such a claim. Dr Wenkart submitted that it is permissible for a party to request the delivery of undelivered reasons from an intermediate appellate court without seeking from the High Court leave to appeal: Yevad Products Pty Ltd v Brookfield (2005) 147 FCR 282 and that this can be done even after the orders of the Court have been entered.