Sutherland v Vale - [2007] FCA 1876

FEDERAL COURT OF AUSTRALIA
Sutherland v Vale [2007] FCA 1876
APPLICATION FOR LEAVE TO APPEAL – restatement of the law sought – unable to conclude that the matters to be raised on appeal are not arguable
Acts Interpretation Act 1901 (Cth) s 36
Bankruptcy Act 1936 (Cth) s 5, s 115, s 120(3)(b), s 139ZQ, s 139ZS, s 139ZT, s 306
Federal Court of Australia Act 1976 (Cth) s 25(1A)
Adams v Lambert (2006) 228 CLR 409
Halse v Norton (1997) 76 FCR 389
RODERICK MACKAY SUTHERLAND v MALCOLM GEOFFREY VALE
NSD 2121 OF 2007
BUCHANAN J
6 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2121 OF 2007

BETWEEN:

RODERICK MACKAY SUTHERLAND
Applicant

AND:

MALCOLM GEOFFREY VALE
Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

6 DECEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.An extension of time in which to appeal is granted;
2.Costs of the application are reserved.

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

NSD 2121 OF 2007

BETWEEN:

RODERICK MACKAY SUTHERLAND
Applicant

AND:

MALCOLM GEOFFREY VALE
Respondent

JUDGE:

BUCHANAN J

DATE:

6 DECEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BUCHANAN J:

This judgment deals with an application for an extension of time in which to appeal against a judgment of Lloyd-Jones FM (Sutherland v Vale [2007] FMCA 1617).
Mr Sutherland’s application is supported by an affidavit by the solicitor who had the day to day carriage of the proceedings in respect of which leave is sought, Mr Patrick Kaluski. Mr Kaluski explains in his affidavit sworn on 26 October 2007 that at the time judgment was to be delivered (2 October 2007) counsel appearing for the appellant was away and unavailable until 18 October 2007. On the first available date for a conference with counsel, 23 October 2007, advice was given that ‘an appeal is warranted’. Mr Kaluski swears that at the time of this conference he did not appreciate that an appeal was to be filed within 21 days and that the time in which to appeal expired on the day of the conference. He thought 28 days was available. The time involved is very short. In the circumstances I can see no prejudice to the respondent if time is extended.
However an extension of time will not normally be granted if an appeal would have no prospects of success. Attention is therefore required to the nature of the issues which may arise for consideration.
In his judgment the Federal Magistrate traced a long history explaining the factual circumstances in which:
•Mr and Mrs Vale (the respondent) came to be the joint owners of certain properties in the Gulgong and Mudgee area;
• Mrs Vale’s injury in 1992 in a motor vehicle accident;
•the fact that Mrs Vale commenced an action for damages for personal injuries, nominally against Mr Vale but to which the…

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 Sutherland v Vale

Details

AGLC: Sutherland v Vale [2007] FCA 1876
Case: [2007] FCA 1876
Decision Date: 6 December 2007

CaseChat Overview and Summary

The case of Sutherland v Vale involves a dispute where Sutherland, represented by Mr. Skinner, appeals against certain orders made by the Federal Magistrate, with Mr. Johnson representing the opposing party. The core of the appeal hinges on the interpretation and application of sections 139ZS and 139ZQ of the relevant legislation, particularly focusing on the onus of proof and the strictness with which notices under section 139ZQ should be dealt. The legal issues that the court had to decide include whether the appeal grounds presented by Mr. Skinner are reasonably arguable and if there is a realistic prospect of success. Additionally, the court needed to determine if there was any justification for granting a stay of the orders and if an extension of time to appeal should be granted.

The court examined the arguments presented and found that while some grounds of appeal might not have a realistic prospect of success, others, particularly those concerning the interpretation of sections 139ZS and 139ZQ, were reasonably arguable. The court declined to grant a stay of the orders based on the application presented, noting that the appellant could renew such an application with appropriate evidentiary support. The court concluded that it was not desirable to express a view on the merits of the appeal at this stage but acknowledged that the appellant's grounds for appeal were arguable enough to warrant an extension of time to lodge the appeal. The court also reserved costs for the application and noted the appellant's request for a Full Court hearing, which will be brought to the attention of the Chief Justice.

The final orders of the court include granting an extension of time in which to appeal and reserving costs of the application. The appellant's request for a Full Court hearing will be considered by the Chief Justice. This decision ensures that the appellant has the opportunity to present their case fully, without the immediate pressure of the initial orders, while maintaining the procedural integrity of the court process.

Orders

Orders of the court

1. An extension of time in which to appeal is granted;

2. Costs of the application are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BUCHANAN J

In my view this Ground of appeal is reasonably arguable. Mr Johnson did not suggest otherwise.CONCLUSION Although the matters raised by Ground 1 of the appeal appear to raise a possible issue for attention and Ground 3 of the proposed appeal seems reasonably arguable I would not assess Ground 2 as having any realistic prospect of success on the present state of the authorities. Unless this Ground of appeal is upheld the s 139ZQ notice cannot stand, whatever the result of the other challenges and the appeal will not succeed. However, Mr Skinner has advanced the application squarely upon the basis that he wishes to seek a restatement of the law in relation to the onus arising under s 139ZS and also seek at least a review of the position concerning the strictness with which s 139ZQ notices should be dealt. I do not think that opportunity should be denied in the absence of any prejudice arising from the delay in bringing the appeal. There is no such prejudice. Mr Johnson properly did not suggest any.STAY At the hearing of the present application Mr Skinner made an oral application for a stay of the orders of the Federal Magistrate. The application appeared to be prompted by Mr Johnson’s written argument pointing out that no stay had been sought. I was told from the bar table that the trustee has lodged a caveat over the properties in question and there has been correspondence between the parties. I declined to entertain the application for a stay on the basis presented. The applicant may renew any such application if it wishes, in a more formal way, with appropriate evidentiary support if that is necessary.ORDERS It is not desirable for me to express any further view about the merits of the arguments that the appellant wishes to advance on the appeal. It is sufficient to say that I am unable to conclude that the matters which the appellant wishes to advance are not arguable. In the circumstances I will grant an extension of time in which to appeal. Costs of the application will be reserved. I note that the appellant requests that the appeal be heard by a Full Court. That is a matter which I will bring to the attention of the Chief Justice (see s 25(1A) of the Federal Court of Australia Act 1976 (Cth)).

Ratio Decidendi

Legal Principle Established

Established by: BUCHANAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2121 OF 2007

BETWEEN:	RODERICK MACKAY SUTHERLAND Applicant
AND:	MALCOLM GEOFFREY VALE Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	6 DECEMBER 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2121 OF 2007

JUDGE:	BUCHANAN J
DATE:	6 DECEMBER 2007
PLACE:	SYDNEY