FEDERAL COURT OF AUSTRALIA

Sheahan (Trustee) v Scott, In the matter of Livingstone

[2002] FCA 1440

PRACTICE AND PROCEDURE – leave to appeal – interlocutory decision

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Jarrett v Seymour (1993) 119 ALR 46 applied

Yapp v Granich & Associates [2001] FCA 1735 applied

House v The King (1936) 5 CLR 499 applied

Norbis v Norbis (1986) 161 CLR 513 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

JOHN SHEAHAN (Trustee of the bankrupt estate of Kenneth Robert Livingstone) v JOHN JOSEPH SCOTT and JOHN JOSEPH SLATTERY

N 7294 OF 2001

GYLES J

SYDNEY

21 NOVEMBER 2002

IN THE MATTER OF KENNETH ROBERT LIVINGSTONE

THE COURT ORDERS THAT:

1.         The motion is dismissed.

2.         The applicant on the motion is to pay the costs of the respondent to the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF KENNETH ROBERT LIVINGSTONE

REASONS FOR JUDGMENT

1                     This is a notice of motion by John Joseph Scott (the applicant) for leave to appeal against the judgment and orders of Branson J on 23 October 2002 dismissing the applicant’s motion to discharge an examination summons issued on the application of John Sheahan, the respondent to this motion, who is the trustee of the bankrupt estate of Kenneth Robert Livingstone, requiring the applicant to attend to be examined in relation to the examinable affairs of the bankrupt.

2                     The draft notice of appeal included three grounds, the first two of which are not now pursued.  The ground which is pursued is as follows:

“Her Honour erred in finding that the proposed further examination of John Joseph Scott on a fourth occasion was not oppressive or an abuse of process.”

The grounds no longer pressed raised or included questions of law related to power.  It is accepted by counsel for the applicant that the ground which is intended to be pressed, if leave be granted, would involve setting aside a discretionary decision.  It is also accepted that the decision was interlocutory.

3                     The principles governing applications for leave to appeal are not in doubt, relevant considerations being:

(a)        whether, in all the circumstances, a judgment of a primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court;  and

(b)       whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

There is also a distinction to be drawn between an interlocutory decision on a point of practice or procedure and an interlocutory decision on a point of substance.  In the latter case, the second consideration is not difficult to satisfy.  (See Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397;  Jarrett v Seymour (1993) 119 ALR 46;  and Yapp v Granich & Associates [2001] FCA 1735).  I approach the present matter on the basis that the issue was substantive in the sense that it effectively determined the point.

4                     In considering whether the first consideration is satisfied, as the decision was discretionary, if leave be granted it would be necessary for the appellant to satisfy the tests laid down in such cases as House v The King (1936) 5 CLR 499 at 504-505 and Norbis v Norbis (1986) 161 CLR 513 at 520.  As the decision is not obviously outside the normal limits, it is necessary for the applicant for leave to demonstrate that there is an arguable case that the primary judge erred in principle in considering the issue before her.  It was contended for the applicant that the primary judge erred in principle by not taking into consideration, and so not weighing up, the interest which the applicant had in the privacy of his own affairs in arriving at the discretionary judgment not to intervene.

5                     Counsel for the respondent to the motion submits that whilst the primary judge did not, in terms, spell out that consideration, it was so obvious as not to require express reference to be made to it.  Consideration of the reasons of the primary judge, it was submitted, show anxious consideration of relevant matters, including the position of the applicant.  The interference to privacy caused by compulsory examination was the obvious and essential backdrop against which the judgment was to take place.

6                     It appears to me that once it is accepted, as it has been, that the applicant was an examinable person and that the proposed topic of further examination is within power, the statute does not lay down any prescribed criteria by which a discretionary judgment as to oppression should be exercised.  Whilst I am inclined to agree with counsel for the respondent that it hardly needs stating that a compulsory examination would impinge upon the privacy of the applicant, I cannot see any proper basis for arguing that the exercise of discretion by the primary judge was constrained in any particular fashion.  In the case of an unconfined discretion, it may be possible to discern that a consideration which is taken into account is irrelevant in the sense of outside the scope of a particular discretion, but it is rare that any one consideration is required to be taken into account.  The well-known analysis by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42of a similar point arising in administrative law is applicable here.

7                     With all respect to the valiant endeavours of counsel for the applicant to discern error in principle, in my opinion, the judgment of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by the Full Court. 

8                     The application is dismissed, with costs.

Associate:

Dated:              22 November 2002