Federal Court of Australia

Storry v Weir [2022] FCA 1484

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal against the order made in QUD103/2022 on 15 November 2022 (Order) be dismissed.

2.    The application for stay be dismissed.

3.    The Registrar is directed not to accept for filing the notice of appeal marked as exhibit-1, which purports to institute an appeal against the Order.

4.    The costs of and incidental to the application, including reserved costs be:

(a)    fixed in a lump-sum by a Registrar; and

(b)    paid from the applicant’s bankrupt estate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 18 March 2022, in the Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court), a sequestration order was made against the estate of the present applicant, Ms Venetia Louise Storry (Ms Storry), upon a creditor’s petition presented by the respondent, Mr Jonathan David Weir: see Weir v Storry [2022] FedCFamC2G 183.

2    Mr Weir’s rights are the subject of exercise by subrogation by an insurer.

3    As was her right, Ms Storry appealed to this Court against the sequestration order made by the Federal Circuit Court. The jurisdiction which Ms Storry invoked thereby was appellate, not original, jurisdiction.

4    That appellate jurisdiction was conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). Such appellate jurisdiction is ordinarily exercised by a single judge of this Court, although it can be exercised by a Full Court if a judge of this Court considers that is appropriate: see s 25(1AA) of the Federal Court of Australia Act.

5    In this instance, the appellate jurisdiction was exercised by a single judge.

6    In the result, on 7 July 2022, Ms Storry’s appeal was dismissed with costs: see Storry v Weir [2022] FCA 794.

7    Ms Storry formed the view that that judgment had been obtained by fraud. Accordingly, she applied, pursuant to r 39.05(b) of the Federal Court Rules 2011 (Cth) (Federal Court Rules), for the judgment given on the appeal to be set aside.

8    On 15 November 2022, Ms Storry’s application to set aside the judgment given on the appeal was dismissed: see Storry v Weir (No 2) [2022] FCA 1360.

9    Ms Storry then sought to challenge in this Court the dismissal of her application to set aside the judgment given on her appeal. It may very well be that she was given by a registry officer an understanding that such a challenge in this Court was possible, at least in the sense of being directed to the use of a particular Court form.

10    Last week, in circumstances of some apparent urgency, apparent not only to Ms Storry but also to me, Ms Storry applied to have various persons associated with her bankruptcy either removed from office or particular conduct stayed. It is not necessary for present purposes to consider the adequacy of the repondency – only one named – in respect of that stay application, much less to consider its merits.

11    Apprehending last week that the judgment dismissing the application to reopen the appeal judgment may be characterised as interlocutory, I directed that the notice of appeal which Ms Storry had sought to file but which had not been accepted for filing be an exhibit, and that her oral application for leave to appeal be deemed a sufficient application for such leave, if the same be required.

12    Thereafter, and by my direction, the Registrar raised with each of the parties two questions going to whether the Court had jurisdiction to entertain Ms Storry’s challenge, even by a grant of leave. Those questions concerned the extent of the Federal Court's appellate jurisdiction as conferred by s 24 of the Federal Court of Australia Act and also the provision, including related restriction, in s 33 of the Federal Court of Australia Act in respect of appeals to the High Court of Australia.

13    I have already mentioned s 24(1)(d) of the Federal Court of Australia Act. Section 33 of the Federal Court of Australia Act provides materially:

(1)    The jurisdiction of the High Court to hear and determine appeals from judgments of the Court, whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section.

…

(4)    An appeal must not be brought from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court unless the High Court gives special leave to appeal.

14    It was submitted on behalf of the respondent that the judgment of the Court given on 7 July 2022, dismissing the appeal, was a final judgment. That submission is, with respect, correct.

15    What was controversial this morning was whether or not the judgment of 15 November 2022 refusing leave to reopen was given in original or appellate jurisdiction. It was common ground that the judgment of 15 November 2022 was interlocutory. That position is, in my view, correct.

16    The subject is free from direct authority.

17    Ms Storry drew attention to the differentiation in the Federal Court Rules as between the practice with respect to appellate jurisdiction as found in ch 4, and the provision in ch 5 in relation to judgments, costs and other general provisions. Her application to set aside the order dismissing her appeal was one made under r 39.05, which is found within ch 5. That grounded a submission by her, having regard to the differentiation mentioned, that the order dismissing her reopening application was therefore not one given in appellate jurisdiction, but rather original jurisdiction.

18    But the jurisdiction exercised by the Court in hearing and determining her appeal against the sequestration order was appellate jurisdiction. The application under r 39.05 which Ms Storry made was an application to set aside an order made in the exercise of appellate jurisdiction.

19    It necessarily follows, in my view, that the order of 15 November 2022, although interlocutory, was one made in the exercise of that same appellate jurisdiction.

20    By s 25(2B)(ab), it is provided that “a single judge (sitting in chambers or in open Court) or a Full Court may … make an interlocutory order pending or after the determination of an appeal to the Court …”.

21    The order of 15 November 2022 is, in my view, to be characterised as an interlocutory order made after the determination of an appeal to the Court. The Court had jurisdiction to entertain Ms Storry’s application under r 39.05, but the jurisdiction which the Court exercised was appellate. That being so, no right of appeal against such an order is conferred by s 24 of the Federal Court of Australia Act. There is a right of appeal from judgments of the Court constituted by a single judge, but the judge concerned must be exercising the original jurisdiction of the Court: see s 24(1)(a).

22    Further, the requirement for leave in respect of interlocutory judgments, as to which see s 24(1A), is in respect of interlocutory judgments given in the original jurisdiction.

23    Chapter 5 of the Federal Court Rules, and in particular r 39.05 has application both to judgments given in the appellate as well as original jurisdiction. The distinction which Ms Storry sought to draw was, for that reason and also because the source of jurisdiction is statutory, not in the rules, misplaced.

24    It necessarily follows that the Court has no jurisdiction to entertain an application for leave to appeal against the judgment given on 15 November 2022.

25    It also follows, as, with respect, Ms Storry quite properly accepted, in the event of an adverse conclusion, that the Registrar should be directed not to accept the notice of appeal for filing, because it would institute a proceeding which is correctly to be characterised as vexatious.

26    I should make it plain that that characterisation does not in this instance carry with it any pejorative quality in relation to Ms Storry. The question of the characterisation of the order of 15 November and, further, whether any right of appeal to this Court existed was hitherto a novel one. Further, and as I have already mentioned, it may be that she was given an understanding by the Registry that such an appeal was possible.

27    Ms Storry’s only rights of challenge, in my view, to the order of 15 November 2022, lie by special leave to the High Court of Australia, by virtue of s 33 of the Federal Court of Australia, or, exceptionally and for completeness, by way of a constitutional writ granted by the High Court in the exercise of the entrenched original jurisdiction of that Court found in s 75(5) of the Constitution.

28    The orders therefore must be:

(1)    The application for leave to appeal against the order made in QUD103 of 2022 on 15 November 2022 be dismissed.

(2)    The Registrar is directed not to accept for filing a notice of appeal, marked as exhibit 1, which purports to institute an appeal against the order of 15 November 2022.

29    It necessarily follows that the application for a stay, which is reliant upon the existence of jurisdiction, must be dismissed.

30    As to costs, the respondent sought an order for costs. Although there is a discretion in respect of the awarding of costs, that discretion is one which has to be exercised judicially. The ordinary exercise of a judicial discretion in respect of costs is that costs follow the event. The event here is one of comprehensive dismissal for want of jurisdiction.

31    Ms Storry put, with respect, quite understandably, that the element of seeming involvement of the Registry in the provision of guidance ought to be taken into account such that no order for costs was made.

32    I do take that consideration into account. It is of concern to me, and the subject is one which will be investigated internally within the Court, if only so as to ensure a better understanding by registry staff of the limits of this Court’s jurisdiction.

33    For all that, when all is said and done, a party is responsible for the conduct of his, her or its proceedings. That can be particularly difficult for litigants in person, but there are no separate rules of court or separate statutory provisions as to jurisdiction in respect of litigants in person.

34    I accept also, as I must, for reasons already given, that the point at large has its novelties. Even so, proceedings were instituted; there is no jurisdiction; and the respondent has, as he is entitled, incurred the expense of counsel and a solicitor. In my view, the case is one which warrants an order for costs. The costs of and incidental to the application, including reserve costs, are to be fixed in a lump-sum by a registrar and paid from the estate of the applicant.

Associate:    

Dated:    9 December 2022