Tucker v State of Victoria

PROCEDURAL HISTORY 7 The State has drafted a full procedural chronology of the Bankruptcy Proceeding, which was forwarded to the Court on 21 November 2022. In brief summary, the chronology identifies that: (a) the judgment debt the subject of the Bankruptcy Notice was manifest in the order of Associate Justice Ierodianconou dated 21 April 2020; (b) the Bankruptcy Notice was issued on 7 February 2022; (c) the Petition was filed on 11 July 2022; (d) Mr Tucker filed an appearance and a Notice of Opposition on 25 August 2022; (e) on 1 September 2022, the matter was heard before Edwards JR and listed for trial before a Judge; (f) on 28 September 2022, the Court advised that the matter was listed before Judge Mansini on 30 November 2022. On the same day, Mr Tucker filed a summary dismissal application, which was not served on the State until 3 October 2022; (g) Judge Symons held a directions hearing for the summary judgment on 25 October 2022. Judge Symons ordered that the summary judgment application be adjourned for hearing at the same time as the trial on 5 December 2022; (h) Mr Tucker filed an application for leave to appeal on 7 November 2022 and now seeks a stay of the Orders; and (i) on 17 November 2022, Judge Symons' Associates responded to an email from Mr Tucker and declined his request to stay the Orders.

Applicant's position 8 Mr Tucker seeks that his summary judgment application be heard and determined separately and in advance of the final hearing of the Petition. Mr Tucker also seeks a short adjournment of the further hearing of the Petition, whilst the application for leave is heard and determined. 9 In support of his case, Mr Tucker submits that: (a) the applicant has at least an arguable case for the grant of leave to appeal; (b) there is no risk that the Petition will expire; (c) if a stay is not granted, the applicant stands to have both his application for leave and summary judgment application rendered nugatory by the continued operation of the Orders; and (d) if a stay is not granted, this Court and the Federal Circuit and Family Court of Australia (Division 2) will be seized with determining the same matter.

Consideration 10 For the reasons that follow, the interlocutory application filed 7 November 2022 will be dismissed.

Jurisdiction 11 The rules governing the Federal Court's appellate jurisdiction for civil proceedings are found in ss 24 and 25 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Section 24(1)(d) states that the Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising its original jurisdiction under a law of the Commonwealth. A "Judgment" is defined as a "judgment, decree or order, whether final or interlocutory": s 4 FCA Act. Pursuant to s 24(1A) of the FCA Act, leave to appeal is required for all interlocutory orders. 12 It is my view that Mr Tucker has no right to appeal, even with leave, from the Orders under challenge by virtue of s 24(1AA) of the FCA Act. Pursuant to this section, an appeal must not be brought from a judgment referred to in s 24(1)(d) if the order was a decision to, or not to, adjourn or expedite a hearing: FCA Act s 24(1AA)(b)(ii). This prohibition on bringing an appeal from the refusal by the primary judge to adjourn a hearing is unqualified: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 956 at [16] (per Bromwich J); see also Tran v Singh [2019] FCA 70 (Thawley J) and Revill v John Holland Group Pty Ltd [2021] FCA 558. 13 The Butterworths Australian Legal Dictionary defines "adjourn" as "to defer or postpone a hearing to a future day or sine die". The word "adjournment" means "a Court order by which proceedings are postponed, interrupted, or continued at a different time or place before the same court". Section 24(1AA)(b)(ii) states that a party cannot appeal an order which is "a decision to" … "adjourn … a hearing". Therefore, incorporating the legal definition of "adjourn", the section means that a party cannot appeal an order that is a "decision to defer or postpone a hearing to a future day or sine die". 14 It does not matter that the hearing on 25 October 2022 was not an adjournment hearing. What is relevant for the purposes of s 24(1AA) of the FCA Act is that the consequence of Order 1, which "listed" the summary judgment and trial together on 5 December 2022, was that it was a decision by a Judge to defer or postpone the hearing of the summary judgment application to a future date, namely, the date also fixed for the trial and not to a date prior to the trial date of the Bankruptcy Proceeding. 15 In any event, the transcript from the decision of the primary judge in MLG1600/2022, which was heard on 25 October 2022, makes clear that s 24(1AA) of the FCA Act is enlivened by virtue of her Honour adjourning the proceeding in express terms: HER HONOUR: All right. Well, those orders will be made as I've indicated. They will be refined and sent to the parties shortly following the hearing. Unless there's anything further, the court will now adjourn. Thank you both. MR SILVER: Thank you, your Honour. MATTER ADJOURNED UNTIL MONDAY, 5 DECEMBER 2022 16 Accordingly, by operation of s 24(1AA) of the FCA Act, Mr Tucker's leave application must end here.

Leave to appeal 17 If it could be found that Mr Tucker is able overcome this jurisdictional hurdle, which I find against, Mr Tucker would, in any event need to secure a grant of leave to appeal pursuant to ss 25(1AA) and 25(2)(a) of the FCA Act. The discretion to grant leave to appeal is wide but not idiosyncratic. The enquiry for an appeal judge, pursuant to Foster J in SZMTM v Minister for Immigration and Citizenship [2009] FCA 181 at [6], is as follows: (a) the decision in question must be demonstrated to be attended with sufficient doubt to warrant it being reconsidered on appeal; and (b) the Court must be satisfied that substantial injustice would be visited upon the applicant if leave is not granted. 18 Where a party, however, seeks leave to appeal a procedural order, Courts are more reserved in their discretion to grant leave. In this sense, s 24(1A) of the FCA Act essentially acts as a "policy of restraint" on behalf of appellate judges exercising their discretion to interfere with a lower court's jurisdiction to prepare a case for trial. The policy purpose for refusing leave in relation to such orders is directed at preventing "the time and resources of the Court" from being taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [42] (per French J). Thus, if a Court were to grant leave to appeal in respect of an order of practice and procedure, the applicant must demonstrate that it was manifest error that causes substantial injustice: Oswal v Burrup Fertilisers Pty Ltd (Recs and Mgrs Appt) (2011) 85 ACSR 531 at [14] (per Mansfield and Foster JJ). 19 Justice Middleton, in Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280 at [428] described the decision to list the summary judgment application with the trial as being one made in accordance with the principles enunciated in s 37M of the FCA Act. His Honour there explained that the decision was to facilitate "the efficient use of the judicial and administrative resources available for the purposes of the Court, and the more effective and final determination of the main proceeding other than on an interlocutory basis". These observations are also apposite in respect of the approach adopted by the primary judge when making the Orders. 20 The Applicant must persuade the Court that the primary judge's decision was outside the limits of a sound discretionary judgment: Norbis v Norbis (1986) 161 CLR 513 at 520. However, a 'tight reign' must be kept upon an appellate judge's interference with exercises of jurisdiction on matters of practice and management: Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCA 243 at [2] (Lindgren J). 21 Mr Tucker's Submissions, although lengthy and appearing to canvas multiple tests and limbs, fails to demonstrate any error on behalf of the primary judge that meet the well-recognised principles in House v King (1936) 55 CLR 449. 22 Indeed, a review of the transcript from the decision of the primary judge in MLG1600/2022, makes clear that Mr Tucker faces no substantial injustice. At T5.18-24, Mr Tucker's counsel identified that the primary issue his client faces is the jurisdictional point, outlined above: MR MARRA: Your Honour, we certainly think that my client is entitled to - for his summary judgment application to be heard. If the court is minded to dissect out the jurisdiction issue, we don't quarrel with that. That's our main driving force behind the summary judgment application anyway, so - and obviously, if it falls away, then my client shouldn't be put to the costs anyway of having to deal with the balance of the issues. So if the court is minded to do it that way, we're happy to proceed like that. 23 The proposition that the summary judgment application and the interim application be heard with the Petition was not opposed by Mr Tucker's counsel. 24 Mr Tucker has also not demonstrated substantial injustice. Mr Tucker's position, at its highest, appears to state that he is burdened by the Orders because he will have wasted costs on the application, and will need to incur further costs of a three-day hearing on complex issues involving solvency and cross claims, and in circumstances where the State's petition fails at the first jurisdiction step. 25 To the contrary, there is no evidence that Mr Tucker's costs of the summary judgement application have been wasted. If the summary judgment matter were heard separately, Mr Tucker would still need to incur costs of the application and if unsuccessful later costs of the trial. In fact, having the matters heard together lessens the burden of costs and time on both parties, as well as the Court below. Further, the primary judge made it quite clear during the hearing on 25 October 2022 that the matter would likely only take one day. 26 Mr Tucker also conveniently ignores that little or no injustice is suffered when his right to argue the summary judgment application is preserved but will simply be heard with the hearing of the Petition. 27 Accordingly, Mr Tucker has failed to demonstrate any manifest error or substantial injustice to warrant the grant of leave to appeal. 28 To the contrary, her Honour's decision to adjourn the summary judgment application to the same day as the trial was entirely sound and was realistically the only procedural course that could have been taken (other than simply refusing to entertain the application at all) without the programming of the trial being put at risk. 29 This matter must proceed no further. Mr Tucker's application for leave to appeal is prevented by s 24(1AA) of the FCA Act.

disposition 30 For the above reasons, the applicant's interlocutory application filed 7 November 2022 is dismissed. Leave to appeal is refused. The applicant pay the respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.