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Storry v Business Licensing Authority

Storry v Business Licensing Authority

Case [2023] FCA 964 15 August 2023

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FEDERAL COURT OF AUSTRALIA
Storry v Business Licensing Authority [2023] FCA 964

Appeal from: Storry v Business Licensing Authority (No 2) [2023] FCA 102

File number: QUD 77 of 2023

Judgment of: SARAH C DERRINGTON J

Date of judgment: 15 August 2023

Date of publication: 18 August 2023

Catchwords:
APPEAL AND NEW TRIAL – application for leave to appeal from summary dismissal of appeal from Administrative Appeals Tribunal – where relief sought from Tribunal is futile – whether primary judge’s decision is attended by sufficient doubt – whether substantial injustice if leave refused

PRACTICE AND PROCEDURE – application for adjournment of application for leave to appeal pending removal application under s 40 of the Judiciary Act 1903 (Cth) – consideration of relevant factors

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth)

s 42B(1)(b)

Federal Court of Australia Act1976 (Cth) ss 23, 24(1A), 24(1D)(b), 31A, 37M

Judiciary Act 1903 (Cth) s 40

Mutual Recognition Act 1922 (Cth) s 23(1)(a)

Federal Court Rules 2011 (Cth) r 26.01

Judicial Review Act 1991 (Qld)

Property Occupations Act 2014 (Qld) s 77

Cases cited:
Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141

Davidson v Official Receiver [2021] FCAFC 73

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ex parte Bucknell (1936) 56 CLR 221

In the Matter of An Appeal by Gaye Alexandra Mary Luck [2003] HCA 70; 78 ALJR 177

Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572

Macatangay v New South Wales (No 2) [2009] NSWCA 272

Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95

Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156

Storry v Chief Executive of the Office of Fair Trading [2021] QCA 30

Storry v Chief Executive of the Office of Fair Trading [2022] QCATA 43

Storry v Weir [2022] FCA 1484

Storry v Weir [2023] QCA 4

Tampion v Anderson (1973) 48 ALJR 11

Victorian Building Authority v Andriotis [2019] HCA 22

Division: General Division

Registry: Queensland

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 33

Date of hearing: 15 August 2023

Counsel for the Applicant: The Applicant represented herself

Counsel for the Respondent: Dr M Sharpe

Solicitor for the Respondent: S Spee

ORDERS

QUD 77 of 2023

BETWEEN:
VENETIA LOUISE STORRY

Applicant

AND:
BUSINESS LICENSING AUTHORITY OF VICTORIA

Respondent

ORDER MADE BY:

SARAH C DERRINGTON J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:
1.The application for leave to appeal filed on 6 June 2023 be refused.
2.The Applicant pay the Respondent’s costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SARAH C DERRINGTON J:

On 16 February 2023, the primary…

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.

Continue reading Storry v Business Licensing Authority

Details

AGLC: Storry v Business Licensing Authority [2023] FCA 964
Case: [2023] FCA 964
Decision Date: 15 August 2023

CaseChat Overview and Summary

The case of Storry v Business Licensing Authority involves an appeal against the summary dismissal of an appeal from the Administrative Appeals Tribunal. The dispute centres around the refusal of relief by the Tribunal, and the applicant, Storry, seeks to challenge this decision. The Federal Court was tasked with determining whether there was sufficient doubt in the primary judge’s decision to warrant leave to appeal and if denying leave would result in a substantial injustice.

The legal issues before the court were twofold: firstly, whether the primary judge’s decision was sufficiently questionable to merit an appeal; and secondly, whether denying leave to appeal would cause a substantial injustice. The court was also required to consider an application for an adjournment of the leave to appeal pending a removal application under the Judiciary Act 1903.

In delivering the judgment, the court found that the primary judge’s decision was not attended by sufficient doubt to justify an appeal. Furthermore, the court determined that refusing leave to appeal would not result in a substantial injustice. Additionally, regarding the application for adjournment, the court weighed the relevant factors and concluded that the application should not proceed. Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The application for leave to appeal filed on 6 June 2023 be refused.

2. The Applicant pay the Respondent’s costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Storry v Business Licensing Authority [2023] FCA 964

Most Recent Citation

Storry v Parkyn [2023] FCA 1141

Cases citing this decision · 3 of 3 shown

Storry v Parkyn (Vexatious Proceedings Order)
[2024] FCAFC 100

…378 at 393. The applicant has failed to demonstrate any legal error by the 5 BP20 Storry v Business Licensing Authority [2023] FCA 964 (Sarah C Derrington J) Application for leave to appeal from summary dismissal of appeal from Administrative Appeals Tribunal - dismissed BP28 [27] it would be futile to revisit th…
Storry v Parkyn
[2024] FCAFC 67 Para 5

…ckground, which has been summarised in a number of judgments of the Court: see J (at [7]–[12] per Rangiah J); Storry v Business Licensing Authority [2023] FCA 964 (at [1]–[3] per Sarah C Derrington J); Storry v Business Licensing Authority (No 2) [2023] FCA 102 (at [1]–[21] per Thomas J); Storry v Weir [2022] FCA…
Storry v Parkyn
[2023] FCA 1141 Para 10

…In Storry v Business Licensing Authority [2023] FCA 964, SC Derrington J treated the applicant as having sought leave to appeal since Thomas J’s judgment was interlocutory. Her Honour refused leave to appeal on the basis that the judgment was not attended with sufficient doubt and refusal of leave would not cause…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

Storry v Business Licensing Authority (No 2)
[2023] FCA 102

…FEDERAL COURT OF AUSTRALIA Storry v Business Licensing Authority [2023] FCA 964 Appeal from: Storry v Business Licensing Authority (No 2) [2023] FCA 102 File number: QUD 77 of 2023 Judgment of: SARAH C DERRINGTON J Date of judgment: 15 August 2023 Date of publication: 18 August 2023 Catchwords: APPEAL AND NEW TRI…
Storry v Weir
[2023] QCA 4 Para 26

…n order were closed by the judgment of Logan J: Storry v Weir [2022] FCA 1484. Ms Storry’s Supreme Court proceedings remain stayed: Storry v Weir [2023] QCA 4. The primary judge took into account the circumstances of Ms Storry’s challenges to her bankruptcy which, at the time of judgment, had reached finality u…
Storry v Weir
[2022] FCA 1484 Para 26

…stration order was made against Ms Storry. All avenues to appeal from the sequestration order were closed by the judgment of Logan J: Storry v Weir [2022] FCA 1484. Ms Storry’s Supreme Court proceedings remain stayed: Storry v Weir [2023] QCA 4. The primary judge took into account the circumstances of Ms Storry’s…
Storry v Chief Executive, Department of Justice and Attorney-General
[2022] QCATA 43 Para 20

…, Ms Storry lodged an appeal from that decision. Leave to appeal was refused on 26 April 2022: Storry v Chief Executive of the Office of Fair Trading [2022] QCATA 43. It does not appear that any further appeal has been filed in the State Courts.…
Davidson v Official Receiver
[2021] FCAFC 73 Para 12

…R 397 at 398; Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35]; Davidson v Official Receiver [2021] FCAFC 73 at [15]. While those two criteria may not represent a “hard and fast rule” ( Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156…
Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General
[2021] QCA 30 Para 19

…appeal from that judgment was dismissed by the Queensland Court of Appeal on 2 March 2021: Storry v Chief Executive of the Office of Fair Trading [2021] QCA 30.…
Victorian Building Authority v Andriotis
[2019] HCA 22 Para 24

…he primary judge was correct to observe, at [60], that Ms Storry’s reference to the High Court decision in Victorian Building Authority v Andriotis [2019] HCA 22 takes the matter no further. To the extent that she relies on it for the proposition that it precludes the BLA from considering whether she made a mate…
Rawson Finances Pty Ltd v Commissioner of Taxation
[2016] FCAFC 95 Para 12

…ey nevertheless provide “general guidance which the Court should normally accept”: Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39]. Is the decision of the primary judge attended by sufficient doubt?…
Samsung Electronics Co Ltd v Apple Inc
[2013] FCAFC 138 Para 12

…[2021] FCAFC 73 at [15]. While those two criteria may not represent a “hard and fast rule” ( Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [29]), they nevertheless provide “general guidance which the Court should normally accept”: Rawson Finances Pty Ltd v Commissioner of Taxati…
Samsung Electronics Co Ltd v Apple Inc
[2011] FCAFC 156 Para 12

…[15]. While those two criteria may not represent a “hard and fast rule” ( Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [29]), they nevertheless provide “general guidance which the Court should normally accept”: Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95…
Davis v Insolvency and Trustee Service Australia
[2010] FCAFC 141 Para 4

…th the consequence that Ms Storry requires leave to appeal: ss 24(1A) and 24(1D)(b) of the FCA Act ; Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 at [11]. If the primary judge relied solely on s 23, it too bears the characteristics of an interlocutory judgment because its result was summary dis…
Macatangay v State of New South Wales (No 2)
[2009] NSWCA 272 Para 6

…The NSW Court of Appeal explained in Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [11]-[12], that an order summarily dismissing a proceeding because it is frivolous, vexatious, an abuse of the process of the court, or does not disclose a reasonable cause of action, was interlocutory because of its legal…
Re Luck
[2003] HCA 70 Para 5

…In the Matter of An Appeal by Gaye Alexandra Mary Luck [2003] HCA 70; 78 ALJR 177 at 178-179, the High Court reiterated at [9] the clear rule in Tampion v Anderson (1973) 48 ALJR 11, An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with a…
Bienstein v Bienstein
[2003] HCA 7 Para 8

…relation to which the removal application is made. Secondly, I have borne in mind the observations of the High Court itself in Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [45], in which it was said: Orders for removal interfere with the processes of the courts hearing the proceedings sought to be…
Johnson Tiles Pty Ltd v Esso Australia Ltd
[2001] FCA 458 Para 29

…ast a strong ground, for the grant of leave to appeal: Ex parte Bucknell (1936) 56 CLR 221 at 225-226; Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43].…
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd
[2000] FCA 1572 Para 29

…for the grant of leave to appeal: Ex parte Bucknell (1936) 56 CLR 221 at 225-226; Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43].…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 12

…ubstantial injustice would result if leave were refused, supposing the decision to be wrong”: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35]; Davidson v Official Receiver [2021] FCAFC 73 at [1…
Decor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 655 Para 12

…idered by the Full Court”; and secondly, that “substantial injustice would result if leave were refused, supposing the decision to be wrong”: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35]; Davidson v Official Receiver [2021] FCA…
Ex parte Bucknell
[1936] HCA 67 Para 29

…t 400. Those circumstances generally provide a prima facie case, or at least a strong ground, for the grant of leave to appeal: Ex parte Bucknell (1936) 56 CLR 221 at 225-226; Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43].…
Advanced Holdings Pty Ltd v Commissioner of Taxation
[2020] FCAFC 157 Para 12

…Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35]; Davidson v Official Receiver [2021] FCAFC 73 at [15]. While those two criteria may not represent a “hard and fast rule” ( Samsung Electronics Compan…

Legislation cited in this decision · 6

Federal Court of Australia Act 1976 (Cth)
23, 24(1A), 24(1D)(b), 31A, 37M 6 mentions (from Para 3)
Administrative Appeals Tribunal Act 1975 (Cth)
42B(1)(b) 2 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
26.01 2 mentions (from Para 3)
Judiciary Act 1903 (Cth)
40 2 mentions (from Para 7)
Property Occupations Act 2014 (Qld)
77 2 mentions (from Para 26)
Judicial Review Act 1991 (Qld)
1 mention (from Para 19)

Appeal from:	Storry v Business Licensing Authority (No 2) [2023] FCA 102
File number:	QUD 77 of 2023
Judgment of:	SARAH C DERRINGTON J
Date of judgment:	15 August 2023
Date of publication:	18 August 2023
Catchwords:	APPEAL AND NEW TRIAL – application for leave to appeal from summary dismissal of appeal from Administrative Appeals Tribunal – where relief sought from Tribunal is futile – whether primary judge’s decision is attended by sufficient doubt – whether substantial injustice if leave refused PRACTICE AND PROCEDURE – application for adjournment of application for leave to appeal pending removal application under s 40 of the Judiciary Act 1903 (Cth) – consideration of relevant factors
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(b) Federal Court of Australia Act1976 (Cth) ss 23, 24(1A), 24(1D)(b), 31A, 37M Judiciary Act 1903 (Cth) s 40 Mutual Recognition Act 1922 (Cth) s 23(1)(a) Federal Court Rules 2011 (Cth) r 26.01 Judicial Review Act 1991 (Qld) Property Occupations Act 2014 (Qld) s 77
Cases cited:	Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 Davidson v Official Receiver [2021] FCAFC 73 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Ex parte Bucknell (1936) 56 CLR 221 In the Matter of An Appeal by Gaye Alexandra Mary Luck [2003] HCA 70; 78 ALJR 177 Johnson Tiles Pty v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 Macatangay v New South Wales (No 2) [2009] NSWCA 272 Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Storry v Chief Executive of the Office of Fair Trading [2021] QCA 30 Storry v Chief Executive of the Office of Fair Trading [2022] QCATA 43 Storry v Weir [2022] FCA 1484 Storry v Weir [2023] QCA 4 Tampion v Anderson (1973) 48 ALJR 11 Victorian Building Authority v Andriotis [2019] HCA 22
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	33
Date of hearing:	15 August 2023
Counsel for the Applicant:	The Applicant represented herself
Counsel for the Respondent:	Dr M Sharpe
Solicitor for the Respondent:	S Spee

ORDER MADE BY:	SARAH C DERRINGTON J
DATE OF ORDER:	15 AUGUST 2023