Nand v Fuji Xerox Australia Pty Ltd

REASONS FOR JUDGMENT 1 In this matter, the appellant filed a notice of appeal from a decision of the Federal Circuit Court on 25 June 2014, which affirmed the decision of a registrar of that court on 28 April 2014 to make a sequestration order against the appellant (Nand v Fuji Xerox Australia Pty Limited [2014] FCCA 1300). On 18 July 2014, Yates J of this Court delivered an interlocutory judgment (Nand v Fuji Xerox Australia Pty Limited [2014] FCA 757), ordering that proceedings under the sequestration order be stayed pending determination of this appeal. In that judgment, at paragraph 23, his Honour expressed reservations as to whether the primary judge had undertaken the review of the registrar's sequestration order in the manner required by s 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth). At paragraph 28, his Honour also said: The difficulty [with a submission made by the respondent creditor was] that if the primary judge had not approached the review as a hearing de novo, then there was no proper review according to law. 2 His Honour referred to the observations of Lander J in Pattison v Hadjimouratis (2006) 155 FCR 226 at [122] to [127] ("Pattison"). 3 On 1 August 2014, I conducted a directions hearing in this matter. The appellant was self-represented. On that occasion the respondent conceded that it was arguable that the primary judge had not approached the review as a hearing de novo and, therefore, had not conducted a proper review according to law. On that basis, the respondent conceded that the appeal should be allowed, but sought to make submissions as to the appropriate orders. The matter was listed for hearing today for argument, including the respondent's submission that in all of the circumstances this Court should itself conduct a full review of the matter. That contention was supported by reference to the decision of this Court in Martin v the Commonwealth Bank of Australia [2001] FCA 87. 4 After the directions hearing, I decided that the Court would issue a referral certificate to the appellant, pursuant to rule 4.12 of the Federal Court Rules 2011 (Cth), with a view to securing the benefit of submissions on behalf of the appellant about the Court's powers to conduct a review of the sequestration order in the exercise of appellate jurisdiction. There was a also a question as to whether, even if the Court had power, it ought to hear the substantive review, as requested by the respondent, or to remit the matter to the Federal Circuit Court, having regard to the fact that if it did so, the only avenue of appeal would be by way of an application to the High Court for special leave to appeal. 5 This morning, having considered the written submissions for the appellant and the decision of Yates J, I formed the view that the question of the appropriate relief in this case was not a matter which I would be able to determine on an ex tempore basis. In particular, I noted at [124] of the reasons of Lander J in Pattison, the following passage from the judgment of McHugh J in Harris v Caladine (1991) 172 CLR 84 at 164: It follows, in my opinion, that this Court or a Federal Court, created under section 71 of the Constitution, may be authorised to delegate the exercise of its judicial powers to an officer of that Court, provided that the exercise of the power is subject to review by way of a de novo hearing by a justice or judge of that Court who has been appointed in accordance with section 72 of the Constitution. It goes without saying that the parliament cannot require the Court to delegate any of its power nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient. That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete re-hearing of the facts and the law, as they exist, when the justice or judge reviews the order made by the officer. Otherwise, the officer, and not the justices or judges of the Court, would be exercising the original jurisdiction of the Court. 6 I have previously received submissions from the respondent, which were not contested by the appellant, to the effect that there are multiple secured creditors, including one who is charging of interest, at a rate of seven per cent per month. Furthermore, a judgment has been handed down by the New South Wales Court of Appeal in Nand v Fuji Xerox Australia Pty Limited [2014] NSWCA 294, from which it appears that Mrs Nand's application to appeal the decision of Nicholas J earlier this year to set aside the judgment on which the sequestration order was made (Fuji Xerox Australia Pty Limited v Print Media & Publishing Group (Australia) Pty Ltd [2014] NSWSC 112) has been dismissed as incompetent. In those circumstances, it seems to me that the respondent is entitled to a degree of expedition in dealing with this matter. I am not in a position to influence the degree of expedition that is able to be accorded in the Federal Circuit Court, however, what I can do is refer the matter to the duty judge in the Federal Circuit Court to be listed on Monday 15 September in the afternoon and I will take steps, through my associate, to ensure that the Federal Circuit file is available to the duty judge on 15 September. 7 Accordingly, it seems to me, notwithstanding that the notice of appeal does not specify this particular relief, that the appropriate orders in this case are that: 1. the appeal be allowed; and 2. the matter be remitted to the Federal Circuit Court and in particular, to the list of the duty judge on the afternoon of Monday 15 September 2014. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.