Storry v Weir

[2022] FCA 1484

FEDERAL COURT OF AUSTRALIA

Storry v Weir [2022] FCA 1484

Appeal from:

Application for leave to appeal:  Storry v Weir(No 2) [2022] FCA 1360

File number:

QUD 423 of 2022

Judgment of:

LOGAN J

Date of judgment:

30 November 2022

Catchwords:

HIGH COURT AND FEDERAL COURT – appellate jurisdiction of the Federal Court of Australia – application for leave to appeal interlocutory judgment of single judge sitting in appellate jurisdiction – where single judge dismisses application to vary or set aside order on the basis it was obtained by fraud – whether dismissal of application interlocutory or final – whether Federal Court has jurisdiction to hear appeal from a single judge sitting an appellate jurisdiction

Held:

(1) an order dismissing an application to vary or set aside a judgment or order under r 39.05(b) of the Federal Court of Australia Rules 2011 (Cth) is interlocutory

(2)     only the High Court of Australia has jurisdiction to hear an appeal from a single judge of the Federal Court of Australia exercising appellate jurisdiction

Legislation:

Constitution s 75

Federal Court of Australia Act 1976 (Cth) ss 24, 25, 33

Federal Court Rules 2011 (Cth) r 39.05

Cases cited:

Storry v Weir [2022] FCA 794

Storry v Weir (No 2) [2022] FCA 1360

Weir v Storry [2022] FedCFamC2G 183

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

34

Date of hearing:

30 November 2022 

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Mr P Van Grinsven

Solicitor for the Respondent:

SLF Lawyers

ORDERS

QUD 423 of 2022

BETWEEN:

VENETIA LOUISE STORRY

Applicant

AND:

JONATHAN DAVID WEIR

Respondent

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	30 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The application for leave to appeal against the order made in QUD103/2022 on 15 November 2022 (Order) be dismissed.

2.The application for stay be dismissed.

3.The Registrar is directed not to accept for filing the notice of appeal marked as exhibit-1, which purports to institute an appeal against the Order.

4.The costs of and incidental to the application, including reserved costs be:

(a)fixed in a lump-sum by a Registrar; and

(b)paid from the applicant’s bankrupt estate.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 18 March 2022, in the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court), a sequestration order was made against the estate of the present applicant, Ms Venetia Louise Storry (Ms Storry), upon a creditor’s petition presented by the respondent, Mr Jonathan David Weir:  see Weir v Storry [2022] FedCFamC2G 183.

2. Mr Weir’s rights are the subject of exercise by subrogation by an insurer.

3. As was her right, Ms Storry appealed to this Court against the sequestration order made by the Federal Circuit Court.  The jurisdiction which Ms Storry invoked thereby was appellate, not original, jurisdiction.

4. That appellate…