Re Mercovich, Frank Joseph & Anor v Vanguard Service Print [1985] FCA 197

Re Mercovich, Frank Joseph & Anor v Vanguard Service Print [1985] FCA 197

The application failed because the order sought to be set aside was made by the Supreme Court of Western Australia, not the Federal Court, so Order 35 Rule 7(2)(a) did not apply; no appeal had been instituted so sub-s.29(1) of the Federal Court of Australia Act 1976 could not assist; and any application under s.37 of the Bankruptcy Act 1966 to discharge the order had to be made to the Supreme Court that made it.

Jurisdiction
Australia
Judgment Date
27 May 1985
Procedural Posture
Bankruptcy / Application by Frank Joseph Mercovich to Set Aside an Ex Parte Order Made by the Supreme Court of Western Australia on 12 February 1985 in Bankruptcy Jurisdiction
Outcome
Application dismissed.
Legal Topics
['discharge From Bankruptcy' 'objections to Discharge' 'power to Set Aside Ex Parte Orders' 'concurrent Bankruptcy Jurisdiction' 'appeals and Stays']
['bankruptcy' 'federal Jurisdiction' 'civil Procedure'] ['discharge From Bankruptcy' 'objections to Discharge' 'power to Set Aside Ex Parte Orders' 'concurrent Bankruptcy Jurisdiction' 'appeals and Stays']

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Procedural Posture

Bankruptcy / Application by Frank Joseph Mercovich to Set Aside an Ex Parte Order Made by the Supreme Court of Western Australia on 12 February 1985 in Bankruptcy Jurisdiction

Legal Issues

  1. 1 ['Whether the Federal Court could set aside, under Order 35 Rule 7(2)(a) of the Federal Court Rules, an order made by the Supreme Court of Western Australia in its bankruptcy jurisdiction.' 'Whether sub-s.29(1) of the Federal Court of Australia Act 1976 permitted a stay of proceedings under the Supreme Court order when no appeal to the Federal Court had been instituted.' 'Whether s.37 of the Bankruptcy Act 1966 permitted the Federal Court to rescind, vary or discharge the Supreme Court order.']

Ratio Decidendi

The application failed because the order sought to be set aside was made by the Supreme Court of Western Australia, not the Federal Court, so Order 35 Rule 7(2)(a) did not apply; no appeal had been instituted so sub-s.29(1) of the Federal Court of Australia Act 1976 could not assist; and any application under s.37 of the Bankruptcy Act 1966 to discharge the order had to be made to the Supreme Court that made it.

Court Disposition

Application dismissed.

Orders

  • ['The application made by the applicant on 19 April 1985 be dismissed.' 'There be liberty to apply as to the costs of the application.']