Shields, Isaac John Mackay v Australia & New Zealand Banking Group - [1995] FCA 931

CATCHWORDS

PRACTICE - Federal Court Rules - refusal of application seeking extension of time for filing notice of appeal to Full Court - no error of legal principle - whether any reason shown as to why time for appeal should be extended.

Thomas Borthwick & Sons (Pacific Holdings) Limited v. T.P.C. (1988) 18 F.C.R. 424
Gallow v. Dawson (1990) 64 A.L.J.R. 458
Jess v. Scott (1986) 12 F.C.R. 187
Lovell v. Lovell (1950) 81 C.L.R. 513
Reid v. Nairn (1985) 60 A.L.R. 419

Federal Court of Australia Act 1976, subsec. 25(2)
Federal Court Rules, Order 52, Rule 15

ISAAC JOHN MACKAY SHIELDS AND JENNIFER MARGARET SHIELDS V. AUSTRALIA AND NEW ZEALAND BANKING GROUP
NG97 OF 1995

SHEPPARD, LEE, SACKVILLE JJ.
SYDNEY
27 OCTOBER 1995

IN THE FEDERAL COURT )
OF AUSTRALIA        )
NEW SOUTH WALES     )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO. NG97 OF 1995

APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N: ISAAC JOHN MACKAY SHIELDS and
JENNIFER MARGARET SHIELDS

Applicants

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP

Respondent

MINUTE OF ORDER

THE COURT: SHEPPARD, LEE, SACKVILLE JJ.

DATE OF ORDER: 27 OCTOBER 1995

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

The application filed as a notice of appeal on 20 February 1995 be dismissed.

The applicants pay the respondent'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        )
NEW SOUTH WALES     )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO. NG97 OF 1995

APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N: ISAAC JOHN MACKAY SHIELDS and
JENNIFER MARGARET SHIELDS

Applicants

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP

Respondent

THE COURT: SHEPPARD, LEE, SACKVILLE JJ.
DATE : 27 OCTOBER 1995
PLACE: : SYDNEY

REASONS FOR JUDGMENT

THE COURT: This matter was commenced as an appeal from an order of a Judge of this Court (Whitlam J.) which dismissed the applicants' application, made under O.52 sub-r.15(2) of the Federal Court Rules, for leave to appeal from the judgment of another Judge of this Court (Einfeld J.) which ordered that the appellants' application to set aside a Bankruptcy Notice served upon them be dismissed. There is a question whether the order made by Whitlam J. was an interlocutory or a final order. Whether the order be final or interlocutory, it would appear that neither an appeal as of right nor by leave is available to the applicants; see subsec. 25(2) of the Federal Court of Australia Act 1976; Order 52 rule 15(2) of the Federal Court Rules; Reid v. Nairn (1985) 60 A.L.R. 419; and Thomas Borthwick & Sons (Pacific Holdings) Limited v. Trade Practices Commission (1988) 18 F.C.R. 424. Counsel for the respondent ("the Bank") did not raise the argument that the appeal was incompetent and proposed that the matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Shields, Isaac John Mackay v Australia & New Zealand Banking Group [1995] FCA 931
Case: [1995] FCA 931
Decision Date: 27 Oct 1995

CaseChat Overview and Summary

The case of Shields, Isaac John Mackay and Jennifer Margaret Shields v. Australia and New Zealand Banking Group [1995] FCA 1619 was heard in the Federal Court of Australia, Sydney Registry. The applicants, Isaac John Mackay Shields and Jennifer Margaret Shields, sought leave to appeal from an order dismissing their application to set aside a Bankruptcy Notice served upon them. The respondents, Australia and New Zealand Banking Group, opposed the application. The legal issues before the court included whether the applicants had demonstrated any special reasons justifying an extension of the time for filing a notice of appeal and whether the primary judge had erred in his discretion to grant leave to appeal.

The court considered the statutory and rule provisions regarding appeals from interlocutory or final orders, as well as relevant case law. The court held that the applicants had failed to demonstrate any special reasons for an extension of the time for filing a notice of appeal, as required by the Federal Court Rules. The applicants' affidavit did not comply with the rule, as it did not outline the nature of the case to be considered on appeal. Furthermore, the applicants had not adequately explained the delay in making the application for leave to appeal out of time. The primary judge, Whitlam J., concluded that the proposed appeal had no prospect of success and, therefore, dismissed the application for leave to appeal.

In their submissions to the Full Court, the applicants did not argue that the primary judge had erred in his application of legal principles. The Full Court held that in the absence of such an error, a discretionary judgment of this nature should stand. The applicants were unable to demonstrate that the reasons expressed by the primary judge demonstrated any misunderstanding of the material before him or any error in legal reasoning. Consequently, the proposed appeal would be without substance.

The final orders of the court were that the application filed as a notice of appeal on 20 February 1995 be dismissed, and the applicants pay the respondents' costs.

Orders