Hacker v Weston

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from orders made by the court on 27 May 2015 in Hacker v Weston (No 2) [2015] FCA 521. Those orders were in relation to the finalisation of proceedings that had been substantively resolved a month or so earlier in Hacker v Weston [2015] FCA 363. The orders made on 27 May 2015 were directed principally to the question of costs. 2 One issue is whether the applicant, Ms Hacker, had an entitlement to appeal from those orders as part of the final orders of the Court or whether, because of their character as costs orders, she always needed leave to appeal. There are a number of decisions of single judges of this court indicating that costs orders are, by their nature, interlocutory. The parties today have not agitated that as a live issue. Ms Hacker is prepared to accept that she may need leave to appeal. 3 It may or may not be a real issue and it may be necessary to understand the legal effect of the costs orders. At least some of the single judge orders have been in relation to substantive orders that were interlocutory in character themselves. There may be a difference between an order for costs in an interlocutory matter and an order for costs as part of the final disposition of proceedings. It might be thought appropriate for the Federal Court of Australia Act 1976 (Cth) to make this clear. I note that in New South Wales there are specific provisions requiring that leave be obtained if the appeal was to be against an order for costs alone (see s 127(2)(b) of the District Court Act 1973 (NSW) and s 101(2)(c) of the Supreme Court Act 1970 (NSW)). 4 For the reasons that follow that issue need not delay the disposition of the matter. The applicant was out of time because her solicitor misunderstood the time for filing a notice of appeal. He thought it was 28 days, when it is 21. An application for leave to appeal must be filed within 14. 5 The issues broadly concern the conduct of the respondent to this application as the trustee in bankruptcy of the applicant's estate. The primary judgment of April dealt with the manner in which the trustee's duties had been discharged. It is unnecessary to deal with any of these matters with precision but it is relevant to note that there was found to be default in some respect. 6 His Honour also found that there was some criticism to be made as to the way in which the applicant, Ms Hacker, put her complaints. It is not said with disrespect to either party, but it does appear that the bankruptcy, and its administration, has led to a degree of heat in the litigation over time. 7 Dealing with the matter as the parties have put it forward to me what I propose to do is the following. I propose to grant an extension of time for filing and serving either, or both, an application for leave to appeal and a notice of appeal. I do so with some hesitancy. With the utmost respect to the solicitor involved, it is deeply disappointing to see that he did not understand what the Federal Court Rules 2011 (Cth) said in relation to a matter of bankruptcy where the court has, together with the Federal Circuit Court, exclusive jurisdiction in such matters. 8 That said there is no real prejudice. The balance of the moneys of the estate that remain after litigation will be kept in the trust account of the solicitor. Some moneys have been disbursed to the trustee himself and his legal team. They can be repaid if necessary; not by the legal team for which the trustee was personally liable in any event but by the trustee, should it be found that the orders should not have been made. 9 I am prepared to make an order extending time. Dealing with the question of leave, it is not appropriate to say anything in detail because the course that I propose to take is the following. No application for leave to appeal has yet been filed. I agreed to, in effect, hear the parties on the matter today because the issues on a leave application had some significant correspondence with issues on the extension of time application. If it could be demonstrated that there were clearly no reasonable prospects of success, then I would not have granted the extension of time as in those circumstances leave would not be given. 10 The parties have addressed me on leave. I am not prepared to grant leave, but what I propose to do is order that the application for leave to appeal be filed, and, in light of the submissions that have been put, I will refer the application for leave to appeal to a Full Court to hear the leave application and, if necessary, concurrently or consecutively, the appeal. I do so without commenting on the merits of the matter. There is a question in any circumstance such as this of the care with which the Court should understand and supervise the work of trustees in bankruptcy. 11 Secondly, the question as to whether leave is needed or not might deserve some clarification. And so, subject to the question of the trustee being protected as to costs to an appropriate extent for today's application, I will make orders extending time and preparing the matter for hearing by a Full Court. The parties should bring in draft short minute of orders. 12 [The parties later submitted orders that were settled as follows.] The Court: