Mercovich, F.J. v. Vanguard Service Print [1985] FCA 199

Mercovich, F.J. v. Vanguard Service Print [1985] FCA 199

Although the applicant's delay in seeking leave would not of itself bar the application, leave to appeal was refused because the proposed appeal lacked merit. The Supreme Court's order did not constitute the hearing and determination of a matter under s.31(1)(ba) of the Bankruptcy Act 1966; it was only an interim order made urgently ex parte to preserve the bankrupts' status until the creditor's substantive application could be heard. Accordingly, there was no failure to comply with s.31 and no justification for granting leave to appeal.

Jurisdiction
Australia
Judgment Date
27 May 1985
Procedural Posture
Application for Extension of Time to File and Serve a Notice of Appeal, Treated as Including Leave to Appeal, in Bankruptcy Proceedings / Federal Court Application From an Interlocutory Order of the Supreme Court of Western Australia
Outcome
Application dismissed.
Legal Topics
['extension of Time to Appeal' 'leave to Appeal From Interlocutory Judgment' 'open Court Requirement' 'public Chambers' 'objections to Discharge From Bankruptcy']
['bankruptcy' 'practice and Procedure'] ['extension of Time to Appeal' 'leave to Appeal From Interlocutory Judgment' 'open Court Requirement' 'public Chambers' 'objections to Discharge From Bankruptcy']

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Procedural Posture

Application for Extension of Time to File and Serve a Notice of Appeal, Treated as Including Leave to Appeal, in Bankruptcy Proceedings / Federal Court Application From an Interlocutory Order of the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction to entertain an appeal in bankruptcy from a Supreme Court judgment exercising federal jurisdiction.' 'Whether leave to appeal was required because the Supreme Court order was an interlocutory judgment.' 'Whether time should be extended or non-compliance with the time for seeking leave should be excused.' 'Whether the Supreme Court order was made in breach of s.31 of the Bankruptcy Act 1966 because it was made in chambers rather than in open Court.' 'Whether the alleged breach of s.31 made the Supreme Court order a nullity or otherwise ineffective.']

Ratio Decidendi

Although the applicant's delay in seeking leave would not of itself bar the application, leave to appeal was refused because the proposed appeal lacked merit. The Supreme Court's order did not constitute the hearing and determination of a matter under s.31(1)(ba) of the Bankruptcy Act 1966; it was only an interim order made urgently ex parte to preserve the bankrupts' status until the creditor's substantive application could be heard. Accordingly, there was no failure to comply with s.31 and no justification for granting leave to appeal.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' 'There be liberty to apply as to the costs of the application.']