Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2) [2008] FCA 1006

Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2) [2008] FCA 1006

Although the examinee's contention that an examination summons is not an originating process was arguable and clarification by the Full Court would be desirable, the appropriate mechanism was not reservation under s 25(6) where the decision granting leave had already been made and acted upon. The preferable course, if the examinee wished to challenge the order, was to apply for leave to appeal. The Court therefore declined to reserve the question and dismissed the application.

Jurisdiction
Australia
Judgment Date
02 July 2008
Procedural Posture
Application to Set Aside Ex Parte Order Granting Leave to Serve Examination Summons Outside Australia and Request to Reserve a Question to the Full Court / Single Judge Reasons After Leave to Serve the Examination Summons Outside Australia Had Been Granted and Service Had Been Effected
Outcome
Application dismissed; request to reserve the matter to the Full Court under s 25(6) declined.
Legal Topics
['reservation of a Question to the Full Court Under S 25(6) of the Federal Court of Australia Act 1976 (cth)' 'examination Summons as Originating Process' 'service Outside Australia Under O 8 of the Federal Court Rules' 'discretion of a Single Judge to Reserve a Question']
['practice and Procedure' 'corporations and Insolvency' 'jurisdiction and Service Outside Australia'] ['reservation of a Question to the Full Court Under S 25(6) of the Federal Court of Australia Act 1976 (cth)' 'examination Summons as Originating Process' 'service Outside Australia Under O 8 of the Federal Court Rules' 'discretion of a Single Judge to Reserve a Question']

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Procedural Posture

Application to Set Aside Ex Parte Order Granting Leave to Serve Examination Summons Outside Australia and Request to Reserve a Question to the Full Court / Single Judge Reasons After Leave to Serve the Examination Summons Outside Australia Had Been Granted and Service Had Been Effected

Legal Issues

  1. 1 ['Whether the Court should reserve to the Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth) the question whether an examination summons is an originating process.' 'Whether an examination summons falls within the definition of originating process in O 8 r 1 of the Federal Court Rules so that leave may be granted under O 8 r 2 and r 3 for service outside Australia.' 'Whether the fact that the earlier leave order had already been made and acted upon made reservation to the Full Court an inappropriate mechanism.']

Ratio Decidendi

Although the examinee's contention that an examination summons is not an originating process was arguable and clarification by the Full Court would be desirable, the appropriate mechanism was not reservation under s 25(6) where the decision granting leave had already been made and acted upon. The preferable course, if the examinee wished to challenge the order, was to apply for leave to appeal. The Court therefore declined to reserve the question and dismissed the application.

Court Disposition

Application dismissed; request to reserve the matter to the Full Court under s 25(6) declined.

Orders

  • ['The application be dismissed.' 'The parties file and serve within 7 days written submissions not exceeding two pages in length in relation to costs.']