Riva NSW Pty Limited v Official Trustee in Bankruptcy

Riva NSW Pty Limited and Mr. Anthony Riva (the applicants) sought leave to appeal from a decision of Kunc J in the Supreme Court of New South Wales, which had dismissed their application to set aside a bankruptcy notice. The Official Trustee in Bankruptcy (the respondent) had issued the bankruptcy notice based on a judgment debt owed by Mr. Riva. The core of the dispute concerned whether the applicants had engaged in vexatious proceedings and whether the Supreme Court had jurisdiction to hear the matter, given the nature of the legislation under which the appeal was brought.

The Court of Appeal was required to determine two primary issues. First, it had to consider whether the appeal involved a "special federal matter" such that the exclusive jurisdiction of federal courts was engaged, thereby precluding the Supreme Court's jurisdiction under section 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). This question turned on whether the appeal "arose under" the Vexatious Proceedings Act 2008 (NSW). Second, the Court had to assess whether leave to appeal should be granted, considering whether the applicants had a history of instituting vexatious proceedings, whether the primary judge had made an error that was more than merely arguable, and whether the appeal raised an issue of general principle or presented a clear case of injustice.

The Court reasoned that the appeal did not involve a "special federal matter" because the Vexatious Proceedings Act 2008 (NSW) was a state, not a Commonwealth, Act. Therefore, the appeal did not "arise under" a Scheduled Commonwealth Act, and section 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) was not engaged. Regarding the application for leave to appeal, the Court found that the applicants had indeed frequently instituted vexatious proceedings. Furthermore, it concluded that the primary judge had not made any error that was more than merely arguable, nor did the appeal raise an issue of general principle or demonstrate a clear case of injustice.

Consequently, the Court of Appeal refused the applicants leave to appeal from the judgment of Kunc J and the orders made on 4 March 2022. The applicants were also ordered to pay the respondent's costs in the Court of Appeal.