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[2016] FCA 1104
Federal Court of Australia
2016-09-05
Darke J, Gleeson J, Leeming J, Allsop CJ
Original judgment source is linked above.
ALLSOP CJ: 1 In this matter, the applicant, Franz Boensch, who is the trustee of a family trust, the Boensch Trust, seeks an extension of time for filing and serving a notice of appeal. The matter comes before the Court as an appeal from the orders made by a judge of the Supreme Court of New South Wales in the Equity Division, dismissing an application made by Mr Boensch concerning the propriety of his former trustee, Mr Pascoe, lodging a caveat against certain property which he, Mr Boensch, held as trustee for the trust to which I refer: see Franz Boensch as Trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882. 2 An appeal was lodged in the Court of Appeal of New South Wales: see Boensch v Pascoe [2016] NSWCA 191. It came before Justice Leeming, who noted that the Court of Appeal did not have jurisdiction to hear the appeal because of the operation of ss 7(5) and 7 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the Cross-vesting Act). That explains why the applicant is out of time. 3 Ordinarily those facts would be a straightforward explanation as to why there ought be an extension of time, given that the parties appear to have, jointly or independently, made the same mistake that the Court of Appeal had jurisdiction. I note also that while Darke J in the Supreme Court may have had jurisdiction, the parties probably also overlooked the compulsory transfer of the matter to the Federal Court in the first instance, under different provisions of the Cross-vesting Act. But that matter has been overtaken by the operation of the Cross-vesting Act on the appeal. 4 While the course of granting leave to appeal may appear an appropriate course, given the mutual mistake of the parties, the applicant nevertheless is out of time and the respondent wishes to put the submission that the appeal is so lacking in merit as to warrant rejection of the application for an extension of time. There will also be an application for security for costs of the appeal. If an extension of time be granted, that security would be sought in part on the basis of the lack of merit in the appeal. The putative appellant's answer to having to give security is that the lack of funds of the trust has been caused, at least in part, by the conduct of the respondent to the putative appeal. 5 Thus in both the extension of time application and the security for costs application, there will be an issue about whether the appeal has fundamental merit at a summary level of abstraction. In those circumstances, I think it unfair on the respondent, Mr Pascoe, to grant an extension of time without a full opportunity to mount the argument of lack of merit in the appeal, given that the same argument will be at the foundation of the security for costs argument. 6 Therefore, what I propose to do is to refer the matter to a judge of the Court to hear both the extension of time application and the security for costs application. Should an extension of time be granted, and should such orders as might be made in the security for costs application be complied with and an appeal go forward, the judge who hears the applications for an extension of time and security for costs, will be one of the appeal judges so the time taken to explain the matters and to deal with the matters, will not, in that sense, be wasted either to the parties or to the Court. 7 The two applications, that is for the extension of time and security for costs, can be heard at the same time with a little bit of imagination in the drafting of them. The application for an extension of time was filed on 25 August 2016 and is on foot. I would grant leave to the respondent to that application to bring a conditional application for security for costs based upon the hypothesis that an extension is to be granted, and I would order, subject to any other order of a judge of the Court, that: (1) The conditional application for security be heard at the same time as the application for an extension of time. (2) The parties be at liberty to file and serve documents that were used or prepared to be used in the Court of Appeal without the need to rework them in Federal Court form. The parties decide jointly on how to file the documents with a view to minimising costs and whether they require a dispensation in relation to the electronic filing of those documents. (3) The conditional application for security for costs and any evidence and submissions in support of it be filed and served within seven days. (4) The respondent to that application, the putative appellant on appeal, file and serve any evidence and submissions on the security for costs application within seven days thereafter. (5) The respondent to the extension of time application file and serve any submissions and evidence in relation to that application within 14 days. (6) The matter be referred to the docket of Justice Gleeson. (7) The parties are to liaise with the chambers of Justice Gleeson as soon as practicable to set a date for the hearing of the security for costs and extension of time applications. (8) In relation to the extension of time application and the security for costs application, Justice Gleeson as docket judge, having heard and disposed of those applications to the extent appropriate or necessary, will make case management orders for the preparation of appeal books and submissions in the substantive appeal, should that become necessary, with a view, to the extent possible, of having the matter heard in the February sittings.
The notice to produce 8 In the Court of Appeal, there was a notice to produce from Mr Pascoe to Mr Boensch for documents that went to the impecuniosity of the trust. It is accepted that the trust is impecunious, and therefore, it may not be necessary to call on any documents. If there is a need to call on any documents, I make it clear to the applicant for the extension of time, that in a security of costs application, proper production of financial material should be made without the need for the costs of things such as subpoenas or notices to produce. 9 If there be any difficulty about the need for documents in relation to this issue or any other issue, the matter can be taken up by the parties with Gleeson J, but I would urge the parties to read the draft central practice note for the Court and indicate that there should be, on such a request for documents, clear cooperation of the parties. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.
Boensch
Pascoe