Perrett v Ray

REASONS FOR JUDGMENT 1 By a notice of motion filed on 29 October 2007 the applicant (Mr Perrett) seeks leave to appeal from orders made by Graham J in proceeding NSD 1975 of 2007 on 26 October 2007 (see Ray v Perrett [2007] FCA 1672). His Honour dismissed a motion brought by Mr Perrett seeking interlocutory orders and ordered that Mr Perrett pay Mr Ray's costs of the motion on an indemnity basis. 2 An application for leave to appeal from an interlocutory order of the Court is made in the Court's appellate jurisdiction under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and O 52 r 10 of the Federal Court Rules. The order made by Graham J dismissing Mr Perrett's motion was an interlocutory order. 3 According to the notice of motion by which he brings his present application for leave to appeal, Mr Perrett seeks the following orders: 1. Leave be given to appeal the interlocutory decision to refuse to grant to the applicant the right to choose whomsoever he desires to be his advocate in bankruptcy, by reference to s 308(d) of the Bankruptcy Act 1966 by Justice Peter Ross Graham on the 26th October 2007. 2. Leave be given to appeal the interlocutory decision of Justice Peter Ross Graham, refusing to grant a jury trial to the respondent on the same day. 3. That the matter be heard by a Full Court in compliance with s 24 of the Federal Court of Australia Act 1976. 4 The notice of motion is supported by an affidavit by Mr Perrett sworn on 29 October 2007, the date on which the notice of motion was filed. 5 It is not necessary to give many of the background facts. Proceeding NSD 1975 of 2007 is a bankruptcy proceeding in which Mr Ray seeks a sequestration order. The alleged act of bankruptcy is Mr Perrett's failure to comply with a bankruptcy notice. The bankruptcy notice was based on an order that Mr Perrett pay Mr Ray's costs associated with the discontinuance by Mr Perrett as against Mr Ray of a proceeding for defamation that he had brought against Newcastle Newspapers Pty Ltd and Mr Ray. Apparently on the final hearing of the creditor's petition Mr Perrett will ask the Court to go behind that order. 6 By the amended notice of motion that was before Graham J, Mr Perrett sought the following relief: ... an order that the questions of fact stated below be tried and determined by a jury as a "feigned issue" and the jury determine the following facts: 1. The fact that at the Federation of Australia in 1900, Section 118 Constitution came into effect and all "courts" in the New Nation of Australia became, by the "autochthonous expedient" federal courts, and were charged with exercising the Judicial power of the Commonwealth on behalf of Her Majesty Queen Victoria as the Majesty and only Majesty in the now complete New Nation. 2. That unless a "court" is constituted as a "court" with a judge and jury, or consent of all the parties, the Federal Court of Australia refuse to receive and give full faith and credit to the proceedings, and refuse to accept any orders made in such a Court, for the purposes of bankruptcy. 3. That before the Federal Court of Australia makes a sequestration order, it order an account under s 86(1) Bankruptcy Act 1966 under section 30(2) Bankruptcy Act 1966 and determines such inquiry into the mutual dealings between the parties as a feigned issue. 4. That Newcastle Newspapers Pty Ltd, as the employer of Greg Ray, and the real instigator of these proceedings be joined as a party. 7 Mr Perrett has not addressed submissions to paragraph 1 of his notice of motion seeking leave to appeal (set out at [3] above). In fact, Mr Perrett appeared before Graham J by Dr Walsh of counsel instructed by Robert G Christie, solicitor. Graham J does not appear to have made an order refusing to allow Mr Perrett to appear by Mr PA Gargan, who was not a legal practitioner and who, apparently, was authorised by Mr Perrett to appear for him. If his Honour had gone so far as not to allow Mr Gargan to appear for Mr Perrett, it would be futile to grant leave to appeal from that interlocutory order. The refusal would be appropriately considered as a ground why leave should be granted to appeal from the ultimate order of dismissal itself. If the refusal had denied to Mr Perrett the benefit of s 308(d) of the Bankruptcy Act 1966 (Cth) (the Act), I would not have given Mr Perrett leave to appeal from the order of dismissal on that account, because Mr Perrett lost nothing by not having Mr Gargan, rather than Dr Walsh, pursue a manifestly hopeless cause on his behalf. 8 I turn now to the second paragraph of the notice of motion. The Court is given express power to direct that the trial of a question of fact in a proceeding before the Court under the Act be had before a jury. Section 30(3) provides: If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action. 9 In his reasons for judgment, Graham J discussed all four paragraphs of the amended notice of motion and observed, correctly with respect, that paragraphs numbered 1 and 2, if they could be seen to pose questions at all, posed questions of law, not of fact. 10 As his Honour also correctly observed, paragraphs 3 and 4 in Mr Perrett's amended notice of motion did not identify questions of fact either. Paragraph 3 asked that the Court make an order and determine an inquiry. Paragraph 4 sought joinder of a party. 11 There was an attempt by Dr Walsh, who had appeared for Mr Perrett before Graham J, to read five affidavits. His Honour upheld an objection to all five affidavits on grounds of relevance. On the hearing this morning, Dr Walsh submitted that the material in the affidavits could be relevant to demonstrate that paragraphs 1 to 4 of the amended notice of motion stated questions of fact. They could not be. 12 Notwithstanding paragraph 3 of the present notice of motion (see [3] above), it is clearly appropriate that the present application be heard and determined by a single Judge. I should note that the question of whether the present application for leave to appeal should be heard and determined by a single Judge or a Full Court is a matter of the administration of the Court and,