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[2021] FCA 1631
Federal Court of Australia
2021-12-22
Mr J, Allsop CJ
Original judgment source is linked above.
ALLSOP CJ: 1 On 29 November 2021, I made a direction under s 25(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the application made by the applicant for an extension of time within which to institute an appeal be heard and determined by a Full Court immediately prior to, or concurrently with, any appeal in this matter. In answer to the applicant's request for expedition of the application, I granted expedition and the application and any appeal was set down for hearing by a Full Court on 15 December 2021. On 30 November 2021, the Court received from the respondent, through his senior counsel, a purported request under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for reasons in support of my s 25(2) direction. What follows are the reasons for my direction under s 25(2) and my grant of expedition. The direction is not an administrative act subject to the ADJR Act, but a decision so intimately connected to the exercise of judicial power and the discharge of the Court's business as to be judicial.
Background 2 This matter concerns an appeal against a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) delivered on 24 September 2021, in which a judge confirmed a sequestration order made by a registrar against the estate of the applicant, the debtor. The sequestration order was a determination of a creditor's petition filed by the respondent, the creditor, in the FCFCOA on 4 March 2021. 3 The applicant sought orders from this Court that the creditor's petition filed on 4 March 2021 be dismissed or that the matter be remitted to the FCFCOA for determination of the issue raised under s 52(2)(b) of the Bankruptcy Act 1966 (Cth). The applicant also sought costs against the respondent in relation to the creditor's petition and the present appeal application. The matter has now been heard and decided by a Full Court (on 15 December and 20 December, respectively: Allison v Murphy [2021] FCAFC 232). An extension of time was granted and the appeal dismissed. 4 On 10 November 2021, the applicant filed an application in this Court for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011 (Cth). A draft notice of appeal was annexed to the affidavit accompanying the application. It is unnecessary to provide a detailed explanation here of the reasons that the applicant failed to file a notice of appeal within the requisite timeframe. An explanation of this is provided in the affidavit said to be affirmed by the applicant's solicitor on 16 November 2021, filed 10 November 2021, and was dealt with at the hearing of the application. Briefly, however, the applicant's solicitor deposed that he originally attempted to file a notice of appeal within the requisite timeframe, but that application was rejected by the Court for reasons notified. The applicant's solicitor deposed that he did not, however, receive the notification of rejection from the Court and only learnt of the rejection once he was out of time to file a notice of appeal. 5 On 23 November 2021, in email communication to the Court, copied to the respondent, the applicant requested that the hearing of the matter be expedited on the basis that the applicant had been diagnosed with a terminal illness and had a shortened life expectancy. In separate email communication to the Court, not copied to the respondent, the applicant attached a letter from his treating physician verifying the information contained in the applicant's earlier email regarding his illness and shortened life expectancy. The letter was provided to the Court on a confidential basis, so its content will not be repeated here. 6 On 25 November 2021, the respondent notified the Court of his objection to the extension of time on the basis that: 'the notice of appeal was filed very late, no proper explanation has been given for that delay, and the appeal has no merit in any event'. The registrar then notified the parties that, noting the nature of the expedition request, the Court proposed to list the application for hearing immediately prior to, or concurrently with, any appeal, as soon as practicable. Both parties provided their available dates for hearing in response. The parties were then provided with a file note under s 25(1AA) of the FCA Act, documenting that I considered it appropriate for the appellate jurisdiction to be exercised by a Full Court in relation to any appeal in this matter. 7 Following my consideration of the applicant's request for expedition, a registrar of this Court emailed the parties on 29 November 2021 to advise that, in accordance with paragraph 5.5 of Practice Information Note APP1: Case Management of Full Court and Appellate Matters, I had considered and decided to grant the request for expedition. In addition, the registrar advised the parties that, pursuant to s 25(2) and having regard to s 37M of the FCA Act, I had directed that the application for an extension of time to file a notice of appeal be heard and determined by a Full Court immediately prior to, or concurrently with, any appeal and that a Full Court bench had been convened by special fixture on 15 December 2021. 8 Despite there being no requirement that a direction under s 25(2) be in writing, in response to a request by the respondent I issued a written direction under s 25(2) on 30 November 2021 in the same terms that were outlined in the email to the parties on 29 November 2021. 9 On 30 November 2021, following my issuing the s 25(2) direction and prior to a case management hearing before Justice Collier, the Court received from the respondent's senior counsel a purported request under s 13 of the ADJR Act for "a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision" on the assumption that the s 25(2) decision was administrative in character. 10 Due to disagreement between the parties regarding proposed timetabling, the matter was referred to Justice Collier as duty judge and her Honour held an urgent case management hearing on 30 November 2021. Her Honour made orders that, amongst other things, the matter be listed before a Full Court for the hearing of the application filed 10 November 2021, immediately prior to or concurrently with any appeal and that the hearing be listed for an estimate of half a day on 15 December 2021. 11 On 1 December 2021, a further case management hearing was held before Justice Downes to deal with a security for costs application made by the respondent. That application was heard and dismissed with costs on 9 December 2021: Allison v Murphy [2021] FCA 1551. The orders made by Justice Downes on that occasion do not bear extracting here, except for the note contained in those orders that: "the respondent agreed to the hearing of the extension of time application at the same time as the hearing of the appeal on 15 December 2021." Following this case management, a registrar contacted the respondent's senior counsel seeking clarification as to whether the purported request under s 13 of the ADJR Act was pressed in light of this concession. The respondent's senior counsel indicated that the purported application was still pressed. 12 Given this position of the respondent through his senior counsel and the necessity to explain the operation of the business of the Court, I propose to take the unusual step of giving reasons for the grant of expedition and the direction, made in the exercise of judicial power, under s 25(2) of the FCA Act.
Reasons for the s 25(2) direction and expedition 13 Under s 25(2) of the FCA Act, an application for an extension of time within which to institute an appeal to the Court must be heard and determined by a single Judge unless, relevantly, a Judge directs that the application be heard and determined by a Full Court. While there is no criteria laid out in s 25(2) as to the circumstances in which a Judge might exercise this discretion, the discretion must be exercised in a way that best promotes the overarching purpose of the civil practice and procedure provisions of the FCA Act: s 37M(3). The overarching purpose of these provisions is to facilitate the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible: s 37M(1) of the FCA Act. 14 It has been suggested by this Court that s 25(2) creates a presumption that favours the categories of applications listed in s 25(2) being heard by a single Judge "unless some good reason is advanced to suggest that there is some value, some benefit or advantage to be gained by having a Full Court determine" the application: Oswal v Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) [2011] FCA 536 at [12] per Barker J. While the circumstances in which a direction under s 25(2) may be appropriate are not prescribed or limited, past decisions of this Court have, in relation to applications for leave to appeal, outlined situations in which it might generally be appropriate to make such a direction: see Oswal at [16]-[17] citing Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Edwards v Santos Limited [2010] FCA 34 at [10] per Collier J; and Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCA 822 at [9] per Griffiths J. It has also been said that a direction under s 25(2) may be warranted where some degree of expedition is appropriate: Martin & Pleasance Pty Ltd v A Nelson & Co Ltd [2021] FCA 368 at [19] per Wigney J. Finally, it is important to note that by virtue of s 15(1) of the FCA Act, the Chief Justice has final authority, under s 25(2), to determine whether a matter be heard by a Full Court or single judge; see e.g. Minister for Immigration & Multicultural &Indigenous Affairs v WAKX [2005] FCA 227; 222 FCR 446 at [28]-[32] per French J (as his Honour then was). The question is one of the balancing of competing factors, some of which may be more or less relevant depending on the circumstances and the views of the parties. 15 I am satisfied, as I was when I initially made the direction under s 25(2), that it was appropriate in the circumstances to exercise my discretion under s 25(2) to direct that the application for an extension of time be heard and determined by a Full Court immediately prior to, or concurrently with, any appeal. Such a direction was appropriate in the circumstances to ensure the matter was dealt with as expeditiously as possible and in the interests of justice, having regard to the email communication with the Court on 23 November 2021 concerning the applicant's illness and shortened life expectancy and the letter from the applicant's treating physician. Additionally, it is apparent that the orders made by the primary judge, being sequestration orders, have significant personal and practical consequences for the applicant. I considered that by directing that the application be heard immediately prior to, or concurrently with any appeal, both the parties and the Court would be spared the cost and delay of having to reconvene to hear the appeal, should an extension of time be granted. As it happened, it is highly likely the respondent was in fact spared the costs of a separate hearing for the extension of time application, given the application was ultimately successful. In the context of the applicant's condition, I also considered the time it may have taken to finally resolve the controversy, if the applicant were successful in the appeal and the matter remitted back to the FCFCOA. All of these factors weighed in favour of making a direction under s 25(2), as well as a grant of expedition. 16 It was and is recognised that in making such a direction, the respondent will be required to prepare for and expend money in the preparation of the hearing of the appeal despite an extension of time not having been granted. Therefore, it was relevant to consider the factors relevant to exercising the power to extend time: see e.g. Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi [2021] FCAFC 144 at [40]. I considered it relevant that the applicant prima facie provided an acceptable explanation for the delay in filing the notice of appeal, that the extent of the delay was not inexcusably long and that the substantive appeal was not, on its face, without merit, indeed it raised subtle issues about the nature of the review of decisions of registrars made in the exercise of judicial power. 17 Further, it was relevant that the respondent was given sufficient opportunity to object to the making of this direction and did not raise any prejudice beyond the need to prepare for an appeal, said to be hopeless, where an extension had not, at that time, been granted. Beyond the communications outlined at [5]-[6] above, the Court did not consult the parties prior to making the s 25(2) direction. However, once the respondent was notified of the s 25(2) direction, the respondent had an opportunity to raise its concerns first in writing, then before Justice Collier on 30 November 2021, when the Court was convened to consider the proposed timetable, and then before Justice Downes, when the Court was convened for a case management hearing on 1 December 2021. At that case management hearing, Justice Downes put to the respondent's senior counsel, on four occasions, an opportunity to comment upon any objection to the listing of the application together with the appeal. It is appropriate to extract a few lines of the transcript: HER HONOUR: No. But, I mean, I just want to be clear that you're not, your client's position is not that the application for the extension of time needs to be heard prior to the hearing of the appeal itself. They can be heard together. MR MORRIS: No. No. The key issue will still be whether the appeal has any 5 merit, and that's a point which, obviously, is better determined by the Full Court. 18 I was and am therefore satisfied that the respondent was provided with a sufficient opportunity to be heard on the issue of the application and the appeal being listed together before a Full Court. 19 Further, I considered it relevant that a Full Court bench would provide final resolution of the question on appeal within this Court. The statutory default position under both ss 25(1AA) and 25(2) allow the Court flexibility in the allocation of judicial resources: see further Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [25]-[26]. Whilst, as evidenced in the authorities referred to at [14] above, there may be a greater presumption in favour of a single judge under s 25(2) as compared to s 25(1AA), both are questions within the Court's discretion, to be exercised by balancing factors relevant under s 37M of the FCA Act. Here, the Court had the capacity and availability to convene a special fixture on 15 December 2021 and provide an authoritative answer to the issues on appeal, thereby potentially facilitating the resolution of the dispute as expeditiously as possible. Further, both the circumstances of expedition and the substantive appeal raise potentially important issues concerning the exercise of appellate jurisdiction and the operation of bankruptcy law. As discussed in Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143, including at [7], the bankruptcy jurisdiction, particularly sequestration orders, involves the exercise of great power over human lives, with potentially life-altering consequences. I considered it important that such a matter should be resolved by a Full Court with precedential value to ensure clarity of principle and justice to the parties before the Court in this controversy. 20 In relation to the applicant's request for expedition, as notified to the parties, I granted expedition on 29 November 2021 in accordance with paragraph 5.5 of Practice Information Note APP 1: Case Management of Full Court and Appellate Matters. I am satisfied that, as I was then, having regard to the applicant's illness and shortened life expectancy, the matter warranted expedition in order to facilitate the just resolution of the issues at hand as quickly, inexpensively and efficiently as possible: see s 37M(1). 21 In all of the relevant circumstances, and as originally notified to the parties on 29 November 2021, I am satisfied that the applicant's request for expedition should have been granted and that directions under s 25(2), as well as under s 25(1AA), were appropriate, namely that the application for an extension of time within which to institute an appeal be heard and determined by a Full Court immediately prior to, or concurrently with, any appeal in this matter. I made the determinations having regard to the particular factual circumstances of this matter and the overarching purpose of the civil practice and procedure provisions of the FCA Act, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. 22 I do not consider that any of the decisions were administrative in character, but rather intimately connected with the exercise of judicial power and so judicial. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.
Allison
Murphy