Scully v Jones

[2002] FCA 1396

FEDERAL COURT OF AUSTRALIA

Scully v Jones [2002] FCA 1396

PRACTICE AND PROCEDURE – application for extension of time within which to file notice of appeal – whether appeal would be futile – applicant becomes bankrupt while judgment below reserved – whether right of appeal would be property vested in trustee in bankruptcy – whether applicant has an “interest” in orders below which would give locus standi to appeal.

BANKRUPTCY – application for extension of time within which to file notice of appeal – applicant becomes bankrupt while judgment below reserved – whether right of appeal would be property vested in trustee in bankruptcy – whether applicant has an “interest” in orders below which would give locus standi to appeal.

Bankruptcy Act 1966 (Cth) subs 5(1) (“property”)

Cummings v Claremont Petroleum NL (1996) 185 CLR 124 discussed

OLGA SCULLY v JEREMY JONES

N 1026            OF 2002

LINDGREN J
8 NOVEMBER 2002
SYDNEY (VIA VIDEO LINK TO LAUNCESTON)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1026 OF 2002

BETWEEN:	OLGA SCULLY APPLICANT
AND:	JEREMY JONES RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	8 NOVEMBER 2002
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO LAUNCESTON)

THE COURT ORDERS THAT:

1.        The application for extension of time be dismissed.

2.        The applicant pay the respondent’s costs of that application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1026 OF 2002

BETWEEN:	OLGA SCULLY APPLICANT
AND:	JEREMY JONES RESPONDENT

JUDGE:	LINDGREN J
DATE:	8 NOVEMBER 2002
PLACE:	SYDNEY (VIA VIDEO LINK TO LAUNCSTON)

REASONS FOR JUDGMENT

1. The applicant (“Ms Scully”) seeks an extension of time in which to file and serve a notice of appeal against orders made by a Judge of the Court (Hely J) on 2 September 2002.  The application for extension of time, together with a form of the proposed notice of appeal, was filed on 30 September 2002.  Clearly the twenty-one day period allowed by O 52 r 15 of the Federal Court Rules had not long passed.  The respondent (“Mr Jones”), through senior counsel, does not argue that he is prejudiced by the lateness.

2. When the application came on for hearing it appeared that the only issue to be determined was whether the granting of an extension of time would be futile because an appeal would be doomed to fail.  However, senior counsel for Mr Jones raised a second issue.  He established that Ms Scully presented her own petition for bankruptcy on 23 July 2002, a date between the reservation and delivery of judgment; that the petition was accepted on that date; and that the Official Trustee is trustee of Ms Scully’s estate.  Senior counsel submitted that Ms Scully’s bankruptcy had the effect that the proposed appeal would be incompetent.

3. His Honour’s orders of 2 September 2002 were as follows: 

   “1.It be declared that [Ms Scully] has engaged in conduct rendered unlawful by…