QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes Benz Macarthur
[2024] FCA 1062
•13 September 2024
FEDERAL COURT OF AUSTRALIA
QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes Benz Macarthur [2024] FCA 1062
Appeal from: QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 File number: ACD 15 of 2024 Judgment of: YATES J Date of judgment: 13 September 2024 Catchwords: PRACTICE AND PROCEDURE – appeal from Federal Circuit and Family Court of Australia (Division 2) – notice of objection to competency – application for appeal to be summarily dismissed – whether notice of appeal complies with r 36.01 of the Federal Court Rules 2011 (Cth)
PRACTICE AND PROCEDURE – interlocutory application seeking order that the appeal be heard by a Full Court and not a single Judge
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), s 54
Evidence Act 1995 (Cth) s 135
Federal Court of Australia Act 1976 (Cth) ss 25, 32AB
Federal Court of Australia Rules 2011 (Cth) rr 4.01, 8.01, 36.01, 36.72
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.04
Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833
QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 364
Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 68 Date of hearing: 20 August 2024 Counsel for the Appellant: Leave granted for the appellant to be represented by Michael Van Thanh Quach at the hearing of the objection to competency and the interlocutory application Solicitor for the Respondent: Mr J Tass of Hunt & Hunt Lawyers ORDERS
ACD 15 of 2024 BETWEEN: QE FAMILY PTY LTD
Appellant
AND: PETER WARREN AUTOMOTIVE TRADING AS MERCEDES BENZ MACARTHUR
Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The appellant’s interlocutory application dated 9 August 2024 be dismissed.
2.The respondent’s objection to the competency of the appeal be upheld.
3.The appeal be summarily dismissed.
4.The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2). There are two matters presently before the Court for determination.
By a notice of objection to competency dated 22 April 2024, the respondent seeks, in effect, an order that the appeal be summarily dismissed.
By an interlocutory application dated 9 August 2024, the appellant seeks, in effect, an order that, in this appeal, the appellate jurisdiction of the Court be exercised by a Full Court and not by a single Judge.
For the following reasons, I uphold the objection to competency and dismiss the interlocutory application.
THE JUDGMENT BELOW
The case before the primary judge concerned the respondent’s alleged failure to comply with the guarantee of acceptable quality imposed by s 54 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) in relation to its supply of a Mercedes Benz motor vehicle.
The proceeding had been commenced in this Court by the filing of an originating application and statement of claim. However, it was transferred to the Federal Circuit and Family Court of Australia by an order made on 6 December 2022, pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).
After a final hearing conducted on 30 October 2023, the primary judge dismissed the originating application with costs against the appellant: QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 (PJ).
At the commencement of his reasons for judgment, the primary judge noted a number of unsatisfactory aspects of the proceeding before him. By way of overview, the primary judge said (at PJ [3]) that:
3 … the conduct of the trial, as well as the semi-regular attempted Directions hearing, bordered on the shambolic. The Applicant regularly simply refused (or was unable) either to comply with Court Orders (such as those relating to securing a single expert), or to follow basic directions regarding the conduct of the trial and the filing of documents. In addition to not complying with Orders and directions, the Applicant simply made the conduct of his own case ever so much more difficult than it should have been. Every attempt by the Court to assist him was either directly rebuffed or simply ignored. …
(Footnotes omitted.)
The reference to “him” in this quotation is to Michael Van Thanh Quach (Dr Quach), a director of the appellant, who was permitted to represent the appellant in the proceeding notwithstanding r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which provides that, subject to certain exceptions or with leave of the court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
The primary judge described Dr Quach at PJ [64] as “regrettably overly confident and ill‑informed”. However, at PJ [14], his Honour said, with some resignation:
14On the Court’s own motion, in the interests of justice in accordance with r.1.07, the Court dispenses with the requirements of the Rules regarding a corporation being legally represented in the circumstances of the current matter where Dr Quach clearly uses, from time to time, his family company as an agent for his business affairs and other related interests. Without stating this in these terms, perhaps partly out of exasperation, the Respondent’s submissions seem also to acknowledge this reality, which I also take to be further support for the Court’s procedural course.
The appellant’s evidence at the hearing comprised affidavits by Dr Quach; a single page tax invoice dated 6 April 2023 from Expert Auto Electrics; a tax invoice dated 19 October 2020 from Anthony Costello Automotive; and a Vehicle System Report prepared by Mr Kiernan, an auto electrician (who, it seems, is the principal of Expert Auto Electrics). The “primary trial Affidavit” (as the primary judge described it) provided by Dr Quach was in excess of 500 pages, although the body of the affidavit comprised only three short paragraphs: see PJ [104].
At PJ [21], the primary judge observed:
21Although scheduled to give evidence at the final hearing according to the trial plan, Dr Quach was not cross examined. Perhaps surprisingly (but perhaps not given how fraught every aspect of the trial was), there was little if any objection to this unusual circumstance. Although he filed multiple Affidavits, including an Affidavit affirmed on 9 June 2023 that was in excess of 530 pages (together with two USBs which had assorted “screen shots” and videos taken by Dr Quach, including some he confirmed he took whilst driving at approximately 110 kph in circumstances where he had previously averred that the vehicle was effectively stuck in his driveway), his “primary” evidence for the final hearing actually came from Mr Kiernan. This was on the basis that he was/is an expert, who generally satisfied the requirements of Rule 15.06 of the Court’s General Federal Law Rules. He also contended that this remarkably sparse, single page Expert Auto Electrics tax invoice prepared by Mr Kiernan was a relevant “expert report.” Formally, and in every other respect, the Tax Invoice, which comprised two paragraphs and sundry references to labour cost (of $165 and a “call out fee” of $110), and is simply self-described on its face as a “Tax Invoice”, and not an expert report, cannot and does not constitute an expert report. It does not remotely comply with the Rules regarding such Reports. The same general comments and formal ruling applies equally to the Tax Invoice from Anthony Costello Automotive. This must be the case even more so because no one gave evidence (or likewise provided no Affidavit annexing a Report) in relation to that Tax Invoice. Simple, and invariably forceful, assertion by the Applicant arguing for the admission of his two “expert reports” was his usual approach.
(Footnotes omitted.)
Mr Kiernan gave oral evidence. The primary judge recorded that Mr Kiernan’s evidence was given on the voir dire, although his Honour seems to have contemplated its reception as evidence at trial: PJ [22] and fn 15. His Honour discussed, and commented on, this evidence in some detail. I will return to that matter.
At PJ [29], his Honour found:
29Subject to what is said later in these reasons, the following observations can readily be made about Mr Kiernan’s quite limited evidence, none of which should be taken as a personal criticism of him (and I will not repeat the earlier determination that Mr Kiernan’s Tax Invoice is not, and cannot be accepted as, an expert report in any respect, either in terms of lack of compliance with the Rules of Court, or in terms of common law principles, discussed below):
(a)The Court (or the Respondent) was never advised, or provided with relevant detail, of what the Applicant provided to Mr Kiernan in terms of documentation, or in terms of any points of “reference” for the preparation of his “Tax Invoice” report;
(b)While the comments in the Tax Invoice are relatively plain (e.g. “Checked all of the owners records and found that there has been many ongoing problems with this vehicle since it was bought …”), they remain at such a level of generality as to be quite meaningless, and certainly unhelpful. Mr Kiernan referred to only two issues (the park brake and the cruise control) and then opined: “… I believe the vehicle should be repaired or replaced by Mercedes as it has had ongoing problems and major defects affecting the safety of the vehicle” (emphasis added). How this rather equivocal evidence, and also because of its utter brevity, assisted the Applicant was never explained.
(c)As he stated, he referred to either “repair” or “replacement”, while the Applicant sought only “replacement” as his remedy. And having referred to only two items of concern (park brake and cruise control), it is impossible to determine how Mr Kiernan came to the conclusion, albeit a completely general one, about “repair or replacement.” “repair”, perhaps; “replacement” — on what basis? It was simply never explained. Even giving every allowance for Mr Kiernan’s experience, the brevity and other significant short-comings of his evidence, provided quite limited assistance to the Court, but essentially no assistance in support of the Applicant’s case. Indeed, in certain respects, in the light of the comments already made, it could reasonably be said that Mr Kiernan’s evidence somewhat undermined it. His evidence certainly did not contain the requisite explanation of how he formed his “opinion”, other than in the most general terms, as required according to the authorities discussed below.
The primary judge then turned to the evidence given by Mr Browne, who he described as the Dealer Principal of the respondent and the manager of its day-to-day operations. Once again, his Honour discussed, and commented on, this evidence in some detail.
At PJ [46], his Honour found:
46 Mr Browne’s evidence was clear and helpful. Among other things, for example, his comments about the “stored [fault] messages” was, in fact, the only evidence on that subject before the Court. It clarified a significant matter, whereas the Applicant (and Mr Kiernan) simply noted such records, without comment and obviously assumed that it was self-evident that “faults” were shown but did not appreciate the difference between historical and current faults, with, apparently, those shown or recorded, being almost totally “historical.” This would also accord with (a) the evidence of Mr Browne, and (b) the records of the assessment done by Mercedes-Benz where its service team was, in large part, unable to replicate the faults complained of by the Applicant. As already noted, this was set out in the Service Tax Invoice of 6 October 2022. The historicity of those faults, and the operation of the car’s recording of the history of faults, was never addressed, let alone explained, by the Applicant (or Mr Kiernan). Plainly, an independent expert would have been able to shed light on such matters. In my view, Mr Browne had no “agenda” for or against the Applicant. His evidence was quite “matter-of-fact”, free of any bias or obvious preference. I accept his evidence without qualification.
At PJ [48] – [65], the primary judge detailed the parties’ oral and written submissions. There were a number of written submissions, covering a number of different topics, including procedural matters and a submission by the appellant that the primary judge should disqualify himself (which the primary judge refused to do). Some submissions were filed by the appellant without leave. The primary judge nevertheless considered them. The primary judge quoted extensively from both the appellant’s and the respondent’s written submissions.
At PJ [66] – [89], the primary judge set out his understanding of various legal principles, particularly with respect to: (a) various provisions of the Evidence Act 1995 (Cth) (the Evidence Act), including with respect to opinion evidence; and (b) the application of s 54 of the Australian Consumer Law.
At PJ [90] – [122], the primary judge provided his analysis of the case before him. In essence, the primary judge found that there were flaws in the appellant’s “expert” evidence which were “significant and fatal” to the claim: PJ [93].
At PJ [94] – [102], the primary judge discussed various aspects of the evidence adduced by the appellant. At PJ [102], the primary judge found:
102 Neither Mr Kiernan, and still less Mr Costello, made clear (doubtless because they were not asked or provided with relevant information regarding “expert reports”) how their respective, generally unstated expertise applied to the facts assumed or observed to produce the “opinion here. Indeed, especially in the case of Mr Kiernan his invoice simply noted a number of matters without explaining them. I generally accept that Mr Kiernan outlined his experience in the automotive industry but somewhat more limited expertise regarding Mercedes-Benz vehicles of the kind in issue here.
At PJ [105], the primary judge observed that:
105 There may be, and clearly have been, various problems of one kind or another with the vehicle. According to the “stored” records displayed by the vehicle, many if not most of them seem to be historical, as the evidence of Mr Browne confirmed. Even Mr Kiernan questioned the extent of the “issues” because of the flat battery and how many of the “stored fault” codes disappeared after it had been somewhat re-charged. The issues were (and maybe still are) matters of detail and degree. Bare assertion by the Applicant, as was mostly the case throughout the proceeding, assisted the Court not one jot. Asking (or usually demanding) that the Court draw inferences from various unexplained photographs and screen shots of a dashboard at different times, also assisted the Applicant not one bit. To state again: an independent expert would have provided up to date and clear evidence about what, if any, issues had been or remained with the vehicle. The lack of that evidence, especially in the face of the Respondent’s mechanics being regularly unable to replicate the faults complained of (now of some time ago), effectively crippled his own case.
As I have noted, the primary judge contemplated that Mr Kiernan’s evidence on the voir dire might be admitted as evidence at the final hearing. He concluded, however, that this evidence should be excluded under s 135 of the Evidence Act. Even so, the primary judge went on to say:
112 … even if I am wrong to exclude Mr Kiernan’s limited evidence under s.135 of the Evidence Act, and in turn to let it remain before the Court, it would not, and could not, affect the result because the Applicant’s evidence even with that from Mr Kiernan was and is so poor, together with the absence of independent expert evidence to clarify (one way or the other) the claims of defect, there is simply insufficient evidence to support the Applicant’s claims. It follows that the Applicant has not discharged the onus he bears to establish the claims under s.54 of the ACL.
In addition, the primary judge noted, at PJ [114], the appellant’s acceptance that the business records of “Mercedes Benz Australia/Pacific” should be admitted into evidence. As to this, the primary judge found:
115 Given that (a) the records provided by the Respondent show no issues with the vehicle, or (b) those that had been identified to have been fixed, (c) any remediation work was quite some time ago, and that (d) neither of the Applicant’s late-breaking “reports” used “Mercedes-Benz equipment”, on these grounds alone, and the apparent assumption by the Applicant that his evidence is essentially flawless and self-evident, the claim cannot succeed. Apart from his assertions, the Applicant’s evidence is simply insufficient and flawed to sustain his claims under s.54 of the ACL. There are, however, multiple other obstacles to the Application succeeding which, however repetitious, I recall and summarise as follows.
The primary judge then repeated at PJ [116] – [121] a number of criticisms of the appellant’s evidence and case, which he had earlier discussed.
Finally, at PJ [122], the primary judge recorded his acceptance of the respondent’s submissions “in their entirety”.
The primary judge’s reasons are detailed and contain many factual and legal findings. The reasons span 55 pages.
THE COURSE OF THE APPEAL PROCEEDING
The appeal was commenced on 26 March 2024 by filing a notice of appeal under r 36.01(1)(a) of the Federal Court Rules 2011 (Cth) (the Rules). It was allocated to my docket. On 10 April 2024, I listed the proceeding for a case management hearing on 1 May 2024.
At the case management hearing on 1 May 2024, I raised two issues for the appellant’s consideration.
The first issue was its representation and the significance of r 4.01(2) of the Rules, which provides that a corporation must not proceed in the Court other than by a lawyer. I granted leave to allow Dr Quach to represent the appellant on that occasion but pointed out that the appellant would need to instruct a lawyer to act for it. The exchange I had with Dr Quach on that occasion indicates that he assumed that the dispensation that had been granted by the primary judge to permit him to appear on behalf of the appellant in the proceeding below applied equally in this Court. I endeavoured to disabuse Dr Quach of that view.
The second issue was the form of the notice of appeal, which contained a single ground of appeal expressed as a simple statement of asserted fact:
Pursuant to s 140 of the Evidence Act 1995 (Cth), on the balance of probabilities the vehicle Mercedes Benz V-Class VIN WDF44781323550055 is defective.
The notice of appeal sought the following relief:
1.Pursuant to the warranty provisions of the Australian Consumer Law, under the Competititon [sic] and Consumer Act 2010 (Cth), a new V-class (as specified with options on the purchase order dated 10 September 2018) be formally requested/replaced by Peter Warren Automotive Pty Ltd trading as Mercedes-Benz Macarthur for the defective vehicle WDF44781323550055, delivered on 27 February 2019.
2.Costs
3.Interests
4.Compensatory damages
I observe that this is the relief that the appellant claimed in its amended originating application and amended statement of claim. I expressed the view that the notice of appeal was not in proper form because it did not state a ground of appeal as required by r 36.01(2)(c) of the Rules. I explained that the matter before the Court was an appeal, not another trial of the proceeding that had been transferred. I said, however, that I would allow the appellant time to file an amended notice of appeal.
At this point I was informed by the solicitor appearing for the respondent that his firm had raised the form of the notice of appeal with Dr Quach on 17 April 2024 and had, in fact, lodged, on 22 April 2024, a notice of objection to competency for filing under r 36.72(1)(a). The notice was accepted for filing later on 1 May 2024.
I decided that the objection need not be formally determined as I was prepared, in any event, to grant time to the appellant to file an amended notice of appeal. The then notice of appeal was obviously defective on its face.
In order to progress the appeal, I made the following orders:
THE COURT ORDERS THAT:
1.Leave be granted to the appellant to be represented by Michael Van Thanh Quach at the case management hearing on 1 May 2024.
2.By 3 June 2024, the appellant submit to a Registrar a draft of the index to Part A of the appeal book and Part B of the appeal book.
3.Within 14 days of being notified of the Registrar’s approval of the drafts referred to in Order 2, the appellant file and serve Parts A and B of the appeal book in accordance with Practice Note APP2 and Format 1 of the eBook Practice Note.
4. The appellant inform the Associate to Yates J of its compliance with Orders 2 and 3.
5.By 15 July 2024, the appellant file and serve an amended notice of appeal complying with r 36.01(2) of the Federal Court Rules 2011 (Cth) (the Rules).
6.By 22 July 2024, the appellant file and serve an outline of submissions and chronology of relevant events in accordance with Practice Note APP2.
7.The proceeding be adjourned for further case management to 5 August 2024 at 9:30 am.
THE COURT NOTES:
8. The appellant has been informed of the requirements of r 4.01(2) of the Rules.
9.For the avoidance of doubt, the leave granted in Order 1 does not extend to further case management hearings.
My objective in ordering the appellant to file an outline of its submissions (Order 6) was to ensure that the ground(s) of the amended notice of appeal that was to be filed were consistent with the submissions that the appellant wished to make.
The appellant complied with Order 2. The submitted documents were reviewed by the National Duty Registrar. On 4 June 2024, the Court sent an email to Dr Quach advising on the amendments that were required and attached a draft copy of the documents, with the proposed amendments shown in track changes. The email stated:
The draft index, as amended, needs to be agreed by all parties. Please confirm by return email, with the respondent copied in, that they are agreed.
Subject to the amendments and confirmation of the above, the draft indexes will be approved.
Please let me know if you have any questions.
On 2 August 2024, the National Duty Registrar sent an email to Dr Quach and the respondent’s solicitor which, in effect, repeated the statement in the 4 June 2024 email. By way of return email later that day, the respondent’s solicitor confirmed that, whilst they had not been consulted by Dr Quach in relation to the documents, they were agreeable to the drafts as proposed by the National Duty Registrar.
Despite receiving these emails, the appellant did nothing further other than (I was told) raise a query with the National Duty Registrar on 5 August 2024 (the morning of the appointed case management hearing). The appellant’s inaction impeded timely compliance with Order 3 (the appellant has still not complied with the order). The appellant did not comply with Order 4 or Order 6.
As to Order 5, the appellant filed an amended notice of appeal on 10 July 2024 expressing the ground of appeal as follows:
The Court below is required to rule on the balance of probabilities, pursuant to s 140 of the Evidence Act 1995 (Cth), that the vehicle Mercedes Benz V-Class VIN WDF44781323550055 is defective.
As a matter of substance, this ground of appeal is no different to the ground pleaded in the notice of appeal as originally filed. It does no more than contend for a different result than the result found below. Although it contends that the court below was required to find that the vehicle was defective, it fails to articulate why that is so and how the contrary result was arrived at by error. At its highest, it implies error in the result but does not identify, in specific terms, where the error or errors lie, if there be error, or the nature of that error or those errors.
When the matter came back before the Court for case management on 5 August 2024, I granted leave to the appellant to be represented by Dr Quach for the purposes of that hearing. I raised the appellant’s substantial non-compliance with the orders made on 1 May 2024 and expressed my concern that very little had been done to progress the appeal over three months. The appellant, through Dr Quach, raised various excuses for this non-compliance. None of them was a satisfactory explanation.
The respondent stated that it wished to re-agitate the notice of objection to competency it had filed. To this end, I made the following orders:
THE COURT ORDERS THAT:
1.Leave be granted for the appellant to be represented by Michael Van Thanh Quach at the case management hearing on 5 August 2024.
2.The respondents’ notice of objection to competency of appeal filed 22 April 2024 (the Objection) be treated as applying to the amended notice of appeal filed on 10 July 2024.
3. The Objection be heard on 20 August 2024 at 10:15 am.
On 9 August 2024, the appellant filed, without prior notice, an interlocutory application seeking the following order:
1.The Appeal is transferred to the Full Court of the Federal Court of Australia.
When the respondent’s notice of objection to competency was called on for hearing on 20 August 2024, I raised the prospect of also hearing the appellant’s interlocutory application. The appellant was agreeable to this course. Although the respondent was not expecting to deal with the appellant’s interlocutory application, it was, nonetheless, in a position to make submissions. The appropriateness of this course was confirmed by the appellant’s submissions in respect of the objection to competency. I granted leave to the appellant to be represented by Dr Quach on the hearing of the objection to competency and the interlocutory application.
RELEVANT PROVISIONS
Section 25(1AA) of the Federal Court Act provides:
25Exercise of appellate jurisdiction
…
(1AA) The appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) is to be exercised by:
(a) a single Judge; or
(b) if a Judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court—a Full Court.
Section 25(1B) provides that s 25(1AA) has effect subject to ss 25(2) and (2B). There is nothing in those provisions that qualifies s 25(1AA) in any relevant respect so far as the present applications are concerned. However, s 25(2B) does enumerate various powers that are available to a single Judge or a Full Court exercising the appellate jurisdiction of the Court:
(2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:
(a) join or remove a party to an appeal to the Court; or
(aa) give summary judgment; or
(ab) make an interlocutory order pending, or after, the determination of an appeal to the Court; or
(b) make an order by consent disposing of an appeal to the Court (including an order for costs); or
(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or
(bb) make an order that an appeal to the Court be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the appellant to attend a hearing relating to the appeal; or
(bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or
(bd) give directions under subsection 37P(2); or
(c) give other directions about the conduct of an appeal to the Court, including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
Section 25(2BB) provides:
(2BB) An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless:
(a) a Judge directs that the application be heard and determined by a Full Court; or
(b) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.
Rule 36.01 of the Rules provides for the form of a notice of appeal. Rule 36.01(2) provides:
36.01 Form of notice of appeal
…
(2) The notice of appeal must state:
(a) whether the whole judgment or all of the orders, or only part of the judgment or some of the orders, are appealed from; and
(b) if only part of the judgment, or some of the orders, is appealed from—the part of the judgment or the particular orders appealed from; and
(c) briefly but specifically, the grounds relied on in support of the appeal; and
(d) the judgment or orders the appellant wants instead of the judgment or orders appealed from.
Rule 36.72 provides:
36.72Notice of objection to competency of appeal
(1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency:
(a) in accordance with Form 125; and
(b) that, briefly but specifically, states the grounds of the objection.
(2) The appellant carries the burden of establishing the competency of an appeal.
(3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.
(4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.
(5) If the Court decides that an appeal is not competent, the appeal is dismissed.
THE OBJECTION TO COMPETENCY
The grounds of objection in the respondent’s notice are as follows:
1. The appeal filed by the Appellant does not raise any valid grounds of appeal.
2. The appeal filed by the Appellant does not identify any error of law or a question of law that is to be challenged.
3. The appeal filed by the Appellant has no reasonable prospects of success.
Apart from advancing certain matters of background, including the appellant’s failure to comply with the Court’s orders (as referred to above), the respondent advanced submissions substantially to the effect of the grounds stated in its notice of objection to competency. The respondent submitted that the amended notice of appeal does not cure the defects of the original notice of appeal. It submitted that the respondent had been put to significant cost to date and that, as a matter of fairness, the appeal should be “brought to finality” and summarily dismissed.
The appellant advanced two main submissions. The first submission was to the effect that, in this appeal, I could not exercise the appellate jurisdiction of the Court sitting as a single Judge.
The starting point for this submission is the fact that the appellant had commenced its first instance proceeding in this Court by filing an originating application under r 8.01 of the Rules. Even though that proceeding was transferred to the Federal Circuit Court and Family Court of Australia by an order made on 6 December 2022, and the judgment under appeal was given by that Court, Dr Quach submitted on behalf of the appellant that:
The Federal Court of Australia does not have appellate jurisdiction of an application made under Rule 8.01(1). So in my respectful submission … your Honour doesn’t have jurisdiction to decide this appeal.
Dr Quach argued that it would be an error of law not to “delineate the Full Court from the Federal Court”. He developed his argument by contending that the Full Court:
… is a high court. It is separate as a higher court. It holds the appellant (sic) jurisdiction of applications made under Rule 8.01(1) and that’s the intention of the Act, being the Federal Court of Australia Act 1976 (Cth) jurisdiction, as well as the subordinate law of the Federal Court Rules 2011 (Cth). …
In my respectful submission, your Honour, there is a clear demarcation between the level of the Federal Court of Australia and its higher court of the Full Court of the Federal Court of Australia being the appellant court under the Federal Court of Australia Act 1976 Commonwealth jurisdiction. So if your Honour is not persuaded that the application made before your Honour is an application in the Federal Court of Australia and that we are – I am appealing the decision on that application. Your Honour, in my respectful submission, it shouldn’t be that there is a interchangeability between the Full Court of the Federal Court of Australia and the Federal Court of Australia itself. No such interchangeability or blurring the lines exists. In fact, the law makes it very clear that the higher court is the Full Court of the Federal Court of Australia. So, in my respectful submission, your Honour, this application, unfortunately, is before the wrong court. …
I reject this submission. Leaving aside aspects of Dr Quach’s argument that are plainly erroneous (such as the contention that a Full Court of this Court is a separate and higher court), the judgment under appeal is a judgment of the Federal Circuit Court and Family Court of Australia (Division 2). Section 25(1AA) of the Federal Court Act provides that the appellate jurisdiction of the Court in respect of such a judgment is to be exercised by a single Judge unless that Judge considers that it is appropriate for that jurisdiction to be exercised by a Full Court. I do not consider that it is appropriate that the appellate jurisdiction invoked in the present appeal be exercised by a Full Court. The consequence of this finding is that the appellant’s interlocutory application seeking to have the Court’s appellate jurisdiction exercised by a Full Court will be dismissed.
I am satisfied that the respondent’s notice of objection to competency is properly before me for determination. There is nothing in the present appeal that limits the powers that I can exercise under s 25(2B) of the Federal Court Act.
The second submission advanced by the appellant was that the ground of appeal in its amended notice of appeal is precise because it has “cited the precise law”—as I understand it, a reference to s 140 of the Evidence Act—and that it is “plain wrong to say that [the] notice of appeal is vague”.
I reject this submission. The amended notice of appeal is plainly deficient in its statement of the ground of appeal, for the reasons I have already given. It fails to engage with the complex and detailed reasons of the primary judge and the many findings his Honour made. It provides no sensible framework for the determination of the appeal. As such, it fails to comply with r 36.01(2)(c) of the Rules: see the observations of Branson J in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 55 IPR 364 at [5].
In the same case, Weinberg and Dowsett JJ discussed the nature of an appeal in this Court with reference to the principles stated by Allsop J (with whom Drummond and Mansfield JJ agreed) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833. Their Honours observed (at [49]) that the inadequacies of the notice of appeal in that case created the impression that the appellants were inviting the Court to rehear the matter ab initio. As their Honours said:
It is unrealistic to expect an appellate court to revisit the evidence at large as is invited by the grounds of appeal …
Although the amended notice of appeal in the present case suffers from a different deficiency, the same observation applies. The ground specified in the amended notice of appeal is no more than a platform for an apparently intended re-trial of the action, with the hope of a different result. This is not the nature of an appeal in this Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2).
For these reasons, the amended notice of appeal will be struck out.
I have considered whether it would be appropriate to grant further leave to the appellant to file a further amended notice of appeal. I have reached the conclusion that providing that opportunity would be fruitless.
First, the previous opportunity given to the appellant to bring its notice of appeal into line with the requirement of r 36.01(2)(c) of the Rules simply resulted in a restatement, in substance, of the originally deficient ground with no greater illumination of whether, and if so why, there is error in the judgment below.
Secondly, leaving to one side the requirement of r 4.01(2) of the Rules, the appellant has consistently indicated through Dr Quach that it will not engage a lawyer. In these circumstances, I am not satisfied that there is any realistic prospect that the notice of appeal can be brought into line with the requirement of r 36.01(2)(c).
Thirdly, it is for the appellant to establish the competency of its appeal. It has failed to demonstrate that it has any arguable grounds. It failed to comply with Order 6 made on 1 May 2024 which, had it been complied with, should have provided some insight into whether such grounds exist. Certainly, no viable grounds were advanced at the hearing of the objection to competency.
Fourthly, there is no obvious or patent error in the primary judge’s ultimate finding that the appellant failed to prove its case at trial.
DISPOSITION
For these reasons, the objection to competency will be upheld and the appeal will be dismissed. The appellant must pay the respondent’s costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 13 September 2024
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