Spencer v Neo Rock Pty Ltd (In Liquidation) [2009] FCA 1281

Spencer v Neo Rock Pty Ltd (In Liquidation) [2009] FCA 1281

Reid v Nairn established that no appeal lies from a single judge's refusal or grant of leave to appeal in these circumstances. Mr Spencer showed no basis to distinguish that authority: even if he misunderstood the course to be taken before Greenwood J, he suffered no procedural unfairness because Greenwood J had and considered his written submissions on both the s 471A application and the application for leave to appeal. Accordingly it was not open to Mr Spencer to appeal Greenwood J's refusal of leave, and the extension of time application had to be dismissed.

Jurisdiction
Australia
Judgment Date
16 October 2009
Procedural Posture
Application for an Extension of Time to File and Serve a Notice of Appeal / Ex Tempore Reasons for Judgment on Application
Outcome
Application dismissed; no order as to costs.
Legal Topics
['leave to Appeal' 'extension of Time' 'appeal From Refusal of Leave to Appeal' 'procedural Fairness' 'winding Up']
['practice and Procedure' 'corporations'] ['leave to Appeal' 'extension of Time' 'appeal From Refusal of Leave to Appeal' 'procedural Fairness' 'winding Up']

Case Brief

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Procedural Posture

Application for an Extension of Time to File and Serve a Notice of Appeal / Ex Tempore Reasons for Judgment on Application

Legal Issues

  1. 1 ["Whether Mr Spencer should be granted an extension of time to file and serve a notice of appeal from Greenwood J's refusal of leave to appeal." 'Whether there can be an appeal from a decision of a single judge refusing or granting leave to appeal under s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth).' 'Whether the hearing before Greenwood J was vitiated by being determined on the papers so as to deny Mr Spencer procedural fairness.']

Ratio Decidendi

Reid v Nairn established that no appeal lies from a single judge's refusal or grant of leave to appeal in these circumstances. Mr Spencer showed no basis to distinguish that authority: even if he misunderstood the course to be taken before Greenwood J, he suffered no procedural unfairness because Greenwood J had and considered his written submissions on both the s 471A application and the application for leave to appeal. Accordingly it was not open to Mr Spencer to appeal Greenwood J's refusal of leave, and the extension of time application had to be dismissed.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • ['The application for an extension of time to file and serve a notice of appeal be dismissed.' 'There be no order as to costs.']