Watson v National Australia Bank

FEDERAL COURT OF AUSTRALIA

Watson v National Australia Bank [2017] FCA 128

File number(s):

QUD 853 of 2016

Judge(s):

GREENWOOD J

Date of judgment:

21 February 2017

Catchwords:

BANKRUPTCY AND INSOLVENCY – consideration of an application for leave to appeal from orders of the Court made on 27 October 2016

Legislation:

Bankruptcy Act 1966 (Cth), ss 5(1), 58(1), 58(3), 60(2), 60(4), 116(1), 116(2), 116(2)(g)

Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225

Cox v Journeaux (No 2) (1935) 52 CLR 713

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

Faulkner v Bluett (1981) 52 FLR 115

Fletcher v Westpac [2012] WASCA 154

Mannigel v Hewlett Phelps [1991] NSWCA 186

Samootin v Shea [2010] NSWCA 371

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238

Date of hearing:

10 February 2017

Date of last submissions:

10 February 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

58

Counsel for the Applicants:

The applicants appeared in person

Counsel for the Respondent:

Philip O’Higgins

Solicitor for the Respondent:

DibbsBarker

ORDERS

QUD 853 of 2016

BETWEEN:

WEZLEY BRIAN WATSON

First Applicant

GLORIA LORRAINE WATSON

Second Applicant

AND:

NATIONAL AUSTRALIA BANK

Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	21 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed. 

2.The applicants pay the respondent’s costs of and incidental to the application. 

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

REASONS FOR JUDGMENT

GREENWOOD J:

1. These proceedings are concerned with an application for leave to appeal from interlocutory orders made by Dowsett J on 27 October 2016. 

2. The orders made by the primary judge were these:

   (1)The application for leave to amend the originating application filed on 9 August 2016 be refused.

   (2)The proceedings be dismissed.

   (3)The applicant pay the respondent’s costs of the application. 

3. There is no dispute about the principles to be applied in determining such an application.  In Bienstein v Bienstein (2003) 195 ALR 225, McHugh, Kirby and Callinan JJ said this at [29]:

   … The principles that govern the grant of leave to appeal are well established.  An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave.  The applicant must also show that substantial injustice will result from a refusal of leave to appeal. 

4. Those observations are entirely consistent with the two‑part test identified in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398‑400 and the observations of the Full Court in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [25] to [33]. Thus, there are two considerations. First, whether in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and second, whether substantial injustice would result if leave were refused supposing…