//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] FCAFC 116
respondent. Time to apply for leave to appeal was extended to 29 January 2002; leave to appeal was refused, and the applicant was ordered to pay the respondents’ costs of the applications.
The Court gave Loevski extra time to seek permission to appeal because he was representing himself, had difficulty communicating in English, and filed his application on 29 January 2002. It did not give permission to appeal. The law cited in the judgment prevented an appeal against the transfer to the Federal Magistrates Court. The Court also found no sufficient doubt that the judge had erred by removing Sherman as a respondent. Loevski was ordered to pay the respondents' costs of the applications.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,970 words · generated 01/10/2026
Yakov Loevski was a former employee of Telegroup Network Services Pty Ltd (TNS). Steven Sherman and Peter Walker were appointed joint voluntary administrators of TNS on 17 February 1999, and joint liquidators on 6 April 1999 ([3]). Loevski later complained to the Australian Securities and Investments Commission (ASIC) about the liquidation. ASIC decided not to investigate. Loevski applied to the Administrative Appeals Tribunal (AAT) for review, but on 8 October 2001 the AAT dismissed his application because it considered that it had no jurisdiction ([4]-[6]).
1 cited instrument linked from this judgment.
Loevski then filed a notice of appeal in the Federal Court on 9 November 2001. He named ASIC and Sherman as respondents ([7]). Sherman had not been a party to the AAT proceeding. His solicitors applied to have the appeal struck out as against him. The reasons record that the solicitors had warned Loevski that they considered his position misconceived because Sherman had not been a party before the AAT, and had explained that they would seek costs if they had to bring a motion ([8]-[9]).
On 6 December 2001, Marshall J heard the motion. During the hearing, Loevski repeatedly said Sherman was the “main respondent”, despite the judge explaining that the hearing concerned whether Sherman was properly joined ([10]-[12]). Marshall J struck out the notice of appeal as against Sherman and ordered Loevski to pay Sherman’s costs of that application. The judge also transferred the matter to the Federal Magistrates Court ([13]-[14]).
The Full Court, comprising Carr, Moore and North JJ, considered Loevski’s application for an extension of time and leave to appeal those interlocutory orders. Its orders were mixed in procedural terms: time was extended, but leave to appeal was refused. The Court also ordered Loevski to pay the respondents’ costs of the applications ([24]).
The first question was whether to extend the time for seeking leave to appeal. Under O 52 r 10(2) of the Federal Court Rules, the usual time limit for applying for leave to appeal an interlocutory order was seven days from pronouncement, unless the application was made to the judge at the time of pronouncement. The Full Court said that the time limit expired on 14 December 2001 ([15]). Loevski filed the document treated as his application on 29 January 2002.
The Court accepted that the combined circumstances provided special reason to extend time: Loevski was self-represented, had difficulty communicating in English, and filed on 29 January 2002. The Court expressly treated these facts cumulatively, rather than setting out a general rule that any one circumstance would automatically suffice ([16]). It extended time only to the date he filed.
The next question was whether leave should be granted. The Court referred to two principal considerations from Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: whether the decision was attended with sufficient doubt to warrant reconsideration, and whether refusing leave would cause substantial injustice if the decision were wrong ([17]). The judgment does not say that these considerations operate as a mechanical test; it identifies them as the two major considerations relevant to the application.
The transfer order presented a statutory obstacle. Section 44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) empowered the Federal Court, where an appeal under s 44(1) or (2) was pending, to transfer that appeal to the Federal Magistrates Court. The Court considered that Marshall J had exercised this transfer power. Section 44AA(10) then provided that an appeal did not lie from a Federal Court decision in relation to a transfer under s 44AA(1) ([18]). The Full Court therefore described the proposed appeal against transfer as “doomed to failure” and refused leave on that issue ([19]).
The separate challenge concerning Sherman also failed. The Full Court considered the hearing transcript and concluded it clearly showed Loevski was seeking to keep Sherman in the proceeding ([20]-[22]). The Court found no sufficient doubt about Marshall J’s decision and no demonstrated error in the exercise of discretion to strike Sherman out ([20], [23]). The judgment’s immediate reasoning is therefore specific to the record before it: the transcript showed Loevski’s position, and the Full Court was not persuaded that the primary judge had erred.
The decision applies procedural rules and statutory provisions stated in the judgment; it does not announce a broad new test for every extension-of-time application. On time, it records that O 52 r 10(2) set a seven-day period for seeking leave to appeal an interlocutory order, subject to the stated exception for an application to the judge at pronouncement ([15]). The Full Court’s extension to 29 January 2002 was based on its assessment of the applicant’s particular circumstances ([16]).
On leave to appeal, the Court relied on the two considerations attributed to Decor Corporation: sufficient doubt warranting reconsideration and substantial injustice if leave were refused, assuming the decision were wrong ([17]). The judgment applies those considerations to the two challenged orders rather than elaborating on their general operation.
For transfer orders, the judgment states the statutory position applicable to the matter: s 44AA(1) permitted the relevant transfer, while s 44AA(10) excluded an appeal from a Federal Court decision in relation to such a transfer ([18]). The Court’s conclusion was consequently tied to that express statutory restriction.
The judgment does not set out a “before and after” change in the law, nor does it identify a legislative amendment or replace an earlier doctrine. The most accurate account is that it applies the procedural and statutory rules then cited to the facts before the Full Court. The material supplied does not establish the present status of those provisions or whether they have since been amended.
At [16], the Court said it would treat the applicant’s self-representation, difficulty communicating in English, and filing date “cumulatively” as special reason to extend time. In plain English, the Court assessed those features together and accepted that, in combination, they justified allowing the late application to proceed to consideration. It did not grant the appeal itself.
At [17], the Court identified the two major considerations for leave: whether there was enough doubt about the decision to justify reconsideration, and whether refusing leave would cause substantial injustice if the decision were wrong. This passage provides the stated framework for the leave decision, with Decor Corporation Pty Ltd v Dart Industries Inc given as the authority.
At [18], the Court explained that s 44AA(10) said an appeal did not lie from a Federal Court decision about a transfer under s 44AA(1). In plain English, the statute barred an appeal against this type of transfer decision. That was why the proposed challenge to the transfer could not succeed ([19]).
At [20], the Court said it did not consider the strike-out decision attended with “any doubt”, let alone sufficient doubt for reconsideration. At [23], it added that nothing had been shown to suggest error in the primary judge’s exercise of discretion. These passages explain that the Full Court did not identify a basis to reopen the decision about Sherman’s status as a party.
The Court’s final orders at [24] reflect the distinction between extending time and granting leave: time was extended, but leave was refused. That distinction matters. The extension removed the timing obstacle to the application; it did not determine the merits in Loevski’s favour.
The decision is relevant to applications for leave to appeal an interlocutory order where a party needs to address both timing and the basis for leave. Its time-extension treatment is tied to the combination of self-representation, difficulty communicating in English, and the filing date in this case ([16]). The judgment does not establish that those facts, standing alone or in another combination, necessarily require an extension.
Its leave analysis is relevant where an applicant challenges an interlocutory decision and must show why the decision should be reconsidered. The Court used the Decor Corporation considerations: sufficient doubt about the decision and substantial injustice if leave were refused on the assumption the decision was wrong ([17]). In this case, the transfer order failed because of the statutory no-appeal provision ([18]-[19]); the challenge to the party strike-out failed because the Court found no sufficient doubt or demonstrated discretionary error ([20]-[23]).
The decision may also be relevant where a proposed appellant seeks to challenge a transfer made under s 44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The judgment’s reasoning depends on the provision cited, especially s 44AA(10), and should not be generalised to different transfer powers or statutory schemes without examining their text.
For party joinder, the factual context was that Sherman had not been a party to the AAT proceeding, and the transcript showed Loevski insisting that Sherman remain the main respondent ([5], [10]-[12]). The Full Court upheld the primary judge’s decision in the circumstances before it. The reasons do not formulate a comprehensive test for who may be joined to every statutory appeal.
The judgment itself identifies Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 as authority for the two considerations governing leave to appeal from an interlocutory order ([17]). It does not cite any later judgment treating Loevski as precedent because it is the decision under analysis.
The supplied text contains no subsequent cases, later judicial consideration, or account of how later courts have applied or limited Loevski. It would therefore be unsupported to describe the decision as followed, distinguished, or otherwise treated by later courts on the basis of this material alone. The judgment’s own relationship to Decor Corporation is that it cites that case for the leave considerations; the reasons do not discuss a disagreement with it or claim to alter its approach.
For research or compliance use, the distinction between what this judgment expressly decides and later treatment matters. The text supports identifying the rule the Full Court applied in 2002, including the statutory bar it relied upon. It does not, by itself, verify the current status of the procedural rules or statutory provisions, nor establish the decision’s subsequent precedential history.
The judgment does not explain in detail how the two Decor Corporation considerations interact, or how much weight each should receive in different kinds of interlocutory appeals. It states and applies them, but its reasoning does not develop a broader account of their relationship ([17], [20]-[23]).
The extension-of-time reasoning is also concise. The Court accepted the three circumstances cumulatively but did not identify whether any one of them would have been sufficient, or explain how it assessed the period between the deadline and the filing date ([15]-[16]). The decision should therefore be read as a fact-specific acceptance, not as a categorical rule.
On the strike-out issue, the reasons focus on the transcript and the absence of demonstrated error in the primary judge’s discretion. They do not set out a general test for when a person who was not a party before the AAT may be named as a respondent to an appeal. Nor do they provide a detailed analysis of the relevant statutory appeal provisions in relation to party status. The reasons establish the Full Court’s conclusion in this proceeding, not a complete statement for all comparable cases.
Finally, the judgment states that s 44AA(10) prevented an appeal from the transfer decision. The supplied material does not establish whether the provision remains in force in the same form, whether other statutory regimes contain comparable restrictions, or how later courts have interpreted the provision. Those questions require checking the relevant legislation and subsequent authorities, which are not included here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
introduction 1 In this matter the applicant appeared for himself. He is originally from Russia and does not speak much English. Accordingly, it is difficult to ascertain from the papers prepared and filed by him precisely what relief he seeks from this Court. 2 However, we think it is reasonable to infer, and we do so infer, that the applicant seeks an extension of time in which to apply for leave to appeal from interlocutory orders made by Marshall J on 6 December 2001. If time be extended, the applicant seeks leave to appeal from those orders.
factual and procedural background 3 On 17 February 1999 the second respondent and a Mr Peter Walker were appointed as joint voluntary administrators of a company called Telegroup Network Services Pty Ltd ("TNS"). The applicant is a former employee of TNS. On 6 April 1999 the second respondent and Mr Walker were appointed as joint liquidators of TNS. 4 On a date which does not appear from the papers the applicant asked the first respondent, the Australian Securities and Investments Commission, to investigate a complaint which he had made in relation to the liquidation of TNS. The first respondent decided not to investigate that complaint. 5 The applicant then applied to the Administrative Appeals Tribunal for review of the first respondent's decision not to investigate the applicant's complaint. The parties named in the proceedings before the Tribunal were the applicant and the first respondent. The second respondent to these proceedings was not a party to the proceedings before the Tribunal. 6 On 8 October 2001 the Tribunal dismissed the application on the basis that it did not have jurisdiction to consider the matter. 7 On 9 November 2001 the applicant filed a notice of appeal from the decision of the Tribunal given on 8 October 2001. In that notice he named two respondents. The first respondent mentioned was Australian Securities and Investments Commission preceded by a handwritten figure 1. Immediately under the reference to the Commission there appeared in handwriting "2. Liquidator of TGNS Mr S Sherman". 8 On 29 November 2001 Mr Sherman's solicitors filed on his behalf a notice of motion seeking an order that these proceedings be struck out as against him as second respondent and that the applicant pay the second respondent's costs. That motion was supported by an affidavit sworn by Ms Georgina Thomas of the firm of solicitors acting for the second respondent. Ms Thomas, deposed, amongst other things, to the fact that she had spoken to the applicant on the telephone, on 26 November 2001, and explained to him that his application as against Mr Sherman was wholly misconceived as Mr Sherman had not been a party to the proceedings before the Tribunal. She warned the applicant that if he did not agree to withdraw the proceedings as against Mr Sherman, a notice of motion would be issued seeking orders that the appeal be struck out as against Mr Sherman and that in those circumstances costs would be sought against the applicant. The applicant had told Ms Thomas, so she deposed, that he would not withdraw the notice as against Mr Sherman. 9 On the same date, namely 26 November 2001, Mr Sherman's solicitors sent a fax to the applicant giving a similar warning. 10 The motion came on for hearing before Marshall J on 6 December 2001. There is in evidence before us a transcript of what took place on that date. In oral submissions to the learned primary judge, Ms Thomas succinctly gave her reasons why Mr Sherman should not be a party to the proceedings in this Court. His Honour then asked the applicant for his response which started off in these terms: "My response is that Mr Sherman is the main respondent because …". 11 Shortly thereafter his Honour explained to the applicant that he was only hearing submissions about whether it was proper to have Mr Sherman as a party to the proceeding. The applicant responded: "Absolutely, he is the main respondent." 12 Again, shortly thereafter, his Honour reminded the applicant that he was only hearing submissions about whether it was appropriate to join Mr Sherman as a respondent to the proceeding. The applicant responded "not the second respondent, but the main respondent." 13 His Honour then made orders in the following terms: "1. The notice of appeal filed by the applicant on 9 November 2001 be struck out as against the second respondent. 2. The applicant pay the second respondent's costs of the application." 14 His Honour then turned to the question whether the matter should be transferred to the Federal Magistrates Court. This was apparently something which his Honour had raised at the first directions hearing. After some discussion and after referring to the factors set out in Order 82 rule 7 of the Federal Court Rules, his Honour made an order that the matter be transferred to the Federal Magistrates Court.
Application for an extension of time 15 The time within which an application for leave to appeal against an interlocutory order (other than an application to the Judge who pronounced the judgment at the time of its pronouncement) is seven days from the date of such pronouncement - see Order 52 rule 10(2). That is, the time within which the applicant could apply for leave to appeal expired on 14 December 2001. 16 We would be content to treat the facts that the applicant is representing himself, has some difficulty communicating in English, and that the application for an extension of time was filed on 29 January 2002 as amounting cumulatively to special reason for extending time to 29 January 2002 being the date upon which the applicant filed a document headed Notice of Appeal.
leave to appeal 17 The authorities show that there are two major considerations when considering whether to grant leave to appeal from an interlocutory order. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The second major consideration is whether substantial injustice would result if leave were refused, supposing the decision to be wrong - see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 18 In relation to the order made by his Honour to transfer the application to the Federal Magistrates Court, in our view, the situation is beyond argument. Section 44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) gives power to this Court, where an appeal under s 44(1) or (2) is pending in this Court, to transfer that appeal to the Federal Magistrates Court. His Honour exercised that power. Section 44AA(10) provides that an appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under s 44AA(1). 19 Thus, in relation to the order made by Marshall J to transfer the appeal to the Federal Magistrates Court, the applicant's proposed appeal is doomed to failure and leave should not be granted. 20 As to the order striking out the second respondent as a party to the proceedings, we do not think that Marshall J's decision was attended with any doubt, let alone sufficient doubt to warrant its being reconsidered by this Court. 21 In written submissions filed in support of the application for leave to appeal, the applicant sought to rely on a letter dated 27 November 2001, a copy of which can be found in the appeal book at p 28. The letter was addressed to Marshall J and, at best, is not entirely clear as to the applicant's intentions with regard to having Mr Sherman as a party to the proceedings. One of the applicant's complaints to us was that the primary judge had overlooked his letter of 27 November 2001. 22 It is quite clear from the excerpts of the transcript to which we have referred, that the applicant was seeking to maintain Mr Sherman's presence as a respondent to these proceedings. His Honour decided that Mr Sherman was not a proper party to the proceedings. 23 In our view, nothing has been shown to suggest that his Honour erred in any way in the exercise of his discretion to strike the second respondent out of the proceedings. 24 For the foregoing reasons we will make the following orders:
Counsel for the First Respondent: Mr M Galvin (instructed by the Australian Securities and Investments Commission)
Solicitors for the Second Respondent: Messrs Baker & McKenzie
Loevski
Australian Securities & Investments Commission
(1991) 33 FCR 397
Time to apply for leave to appeal was extended to 29 January 2002; leave to appeal was refused, and the applicant was ordered to pay the respondents’ costs of the applications.