French v Bremner [2020] NSWCA 77

French v Bremner [2020] NSWCA 77

The appellant's motion had to be dismissed because there was no proper basis for this Court to remove the appeal to the High Court or grant default substantive relief: no appeal was pending when the removal application was filed, s 17 was not engaged because there was no matter pending in the High Court and a removal application must be determined by two justices rather than a Justice in Chambers, the statutory criteria for removal were not satisfied, the High Court had already dismissed the removal application, and without removal no default substantive orders could be made. The hearing directions were nevertheless set aside because the hearing date had been fixed in the appellant's...

Jurisdiction
Australia
Judgment Date
24 April 2020
Procedural Posture
Civil Procedure Ruling in Court of Appeal Proceedings / Hearing of Appellant's Motion Filed on 17 December 2019, Including Proposed Removal to the High Court, Proposed Default Judgment, and Request to Vacate Hearing Date
Outcome
Appellant's motion filed on 17 December 2019 dismissed; earlier directions and motion hearing direction vacated; matter returned to Registrar's list for further directions.
Legal Topics
['application to Vacate Hearing Date' 'covid 19 Pandemic and Appeal Preparation' 'removal to the High Court' 'default Judgment for Failure to Enter Appearance' 'jurisdiction Under Judiciary Act 1903 (cth) S 17' 'judiciary Act 1903 (cth) S 40 Removal Power' 'high Court Control of Its Own Business']
['civil Procedure' 'federal Jurisdiction' 'constitutional Law'] ['application to Vacate Hearing Date' 'covid 19 Pandemic and Appeal Preparation' 'removal to the High Court' 'default Judgment for Failure to Enter Appearance' 'jurisdiction Under Judiciary Act 1903 (cth) S 17' 'judiciary Act 1903 (cth) S 40 Removal Power' 'high Court Control of Its Own Business']

Case Brief

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Procedural Posture

Civil Procedure Ruling in Court of Appeal Proceedings / Hearing of Appellant's Motion Filed on 17 December 2019, Including Proposed Removal to the High Court, Proposed Default Judgment, and Request to Vacate Hearing Date

Legal Issues

  1. 1 ['Whether the Court should order removal of the proceedings to the High Court under Judiciary Act 1903 (Cth), s 40.' 'Whether Judiciary Act 1903 (Cth), s 17 empowered a judge of the Supreme Court to make an order that could be made by a Justice of the High Court sitting in Chambers in relation to the removal application.' 'Whether the appellant could obtain substantive default judgment because the respondent had not filed an appearance in the High Court.' "Whether the appeal hearing date and Registrar's directions should be vacated in light of the appellant's circumstances, self-representation, and COVID-19 pandemic arrangements."]

Ratio Decidendi

The appellant's motion had to be dismissed because there was no proper basis for this Court to remove the appeal to the High Court or grant default substantive relief: no appeal was pending when the removal application was filed, s 17 was not engaged because there was no matter pending in the High Court and a removal application must be determined by two justices rather than a Justice in Chambers, the statutory criteria for removal were not satisfied, the High Court had already dismissed the removal application, and without removal no default substantive orders could be made. The hearing directions were nevertheless set aside because the hearing date had been fixed in the appellant's...

Court Disposition

Appellant's motion filed on 17 December 2019 dismissed; earlier directions and motion hearing direction vacated; matter returned to Registrar's list for further directions.

Orders

  • ["Vacate the direction for the hearing of the appellant's motion on 4 May 2020." "Dismiss the appellant's motion filed on 17 December 2019." 'Order that the costs of the motion be costs in the appeal.' 'Set aside the directions made by the Registrar on 1 April 2020.' "Return the matter to the Registrar's list for...