(1) Unless by 3 December 2021 the appellant has filed an application for leave to appeal, including for an extension of time in which to do so, the appeal be dismissed with costs.
(2) The proceedings are adjourned to 6 December 2021 before the Registrar for further directions.
Catchwords:
CIVIL PROCEDURE – Court of Appeal – Objections to competency of appeal – Whether appeal from exercise of cross-vested jurisdiction and so lies only to Federal Court – Whether leave to appeal required
CIVIL PROCEDURE – Cross-vesting – Where appellant became bankrupt after commencing proceedings in Supreme Court – Whether a “matter arising under” the Bankruptcy Act – Distinction from exercise of jurisdiction in bankruptcy – Cross-vesting legislation not intended to require appeals from judgment in a matter arising under a Commonwealth Act to be instituted in federal Court where first instance court not exercising cross-vested jurisdiction – Primary judge was not exercising cross-vested jurisdiction – Cross-vesting legislation not engaged
CONSTITUTIONAL LAW – The Judiciary – ‘Matter’ – Proceedings not owing existence to federal law but stayed by operation of federal law nevertheless constitute a ‘matter’ arising under federal law
APPEALS – Leave to appeal – Whether leave required from declaratory orders – Whether declarations can be interlocutory – Declarations were interlocutory for purposes of leave to appeal – Leave to appeal required – Appellant directed to file application for leave to appeal lest the appeal be dismissed
[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
Singh v Khan [2021] NSWCA 281
Case
[2021] NSWCA 281
Decision Date
CaseChat Overview and Summary
The Court of Appeal considered objections to the competency of an appeal brought by Mr. Singh against orders made by a judge of the Supreme Court in proceedings against Mr. Khan. The central dispute concerned whether the appeal lay to the Court of Appeal or the Federal Court, and whether leave to appeal was required.
The primary legal issues before the Court of Appeal were: (1) whether the Supreme Court judge had exercised cross-vested jurisdiction, thereby requiring appeals to be heard by the Federal Court; and (2) whether leave to appeal was required from the declaratory orders made by the primary judge.
Brereton JA held that the Supreme Court judge had not been exercising cross-vested jurisdiction. While the appellant had become bankrupt after commencing proceedings, and the proceedings could be considered a "matter arising under" the *Bankruptcy Act 1966* (Cth) for the purposes of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), the judge's decision was not predicated on the exercise of cross-vested jurisdiction. The judge's power to make the orders stemmed from the Supreme Court's inherent jurisdiction. Furthermore, the declaratory orders made by the primary judge were considered interlocutory for the purposes of an appeal, meaning that leave to appeal was required.
Consequently, the Court ordered that unless the appellant filed an application for leave to appeal, including for an extension of time, by 3 December 2021, the appeal would be dismissed with costs. The proceedings were adjourned for further directions.
Orders
Orders of the court
(1) Unless by 3 December 2021 the appellant has filed an application for leave to appeal, including for an extension of time in which to do so, the appeal be dismissed with costs.
(2) The proceedings are adjourned to 6 December 2021 before the Registrar for further directions.