Davis v Insolvency and Trustee Service Australia [2010] FCA 518

Davis v Insolvency and Trustee Service Australia [2010] FCA 518

The application for leave to appeal should be referred to a Full Court because the applicant claimed that a section of the Court's enabling Act was constitutionally invalid, the relationship between any conclusion on that claim and Kowalski was a matter of concern, and it was not clear that the constitutional question raised on the leave application was unnecessary to decide. It was therefore appropriate to exercise the discretion under s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).

Jurisdiction
Australia
Judgment Date
24 May 2010
Procedural Posture
Application for Leave to Appeal and for an Extension of Time for Leave to Appeal / Direction Under S 25(2)(e) of the Federal Court of Australia Act 1976 (cth) as to Whether the Applications Should Be Heard and Determined by a Full Court
Outcome
Direction made under s 25(2)(e) that the application for leave to appeal and for an extension of time for leave to appeal be heard and determined by a Full Court; related procedural orders made.
Legal Topics
['leave to Appeal' 'extension of Time' 'referral to Full Court' 'interlocutory Judgments' 'constitutional Validity of Federal Court of Australia Act 1976 (cth) S 24(1 D)(b)']
['federal Court Procedure' 'constitutional Law'] ['leave to Appeal' 'extension of Time' 'referral to Full Court' 'interlocutory Judgments' 'constitutional Validity of Federal Court of Australia Act 1976 (cth) S 24(1 D)(b)']

Case Brief

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Procedural Posture

Application for Leave to Appeal and for an Extension of Time for Leave to Appeal / Direction Under S 25(2)(e) of the Federal Court of Australia Act 1976 (cth) as to Whether the Applications Should Be Heard and Determined by a Full Court

Legal Issues

  1. 1 ['Whether the application for leave to appeal and for an extension of time should be heard and determined by a Full Court under s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).' "Whether the applicant's proposed challenge to the constitutional validity of s 24(1D)(b) of the Federal Court of Australia Act 1976 (Cth) made referral to a Full Court appropriate." "How the applicant's proposed constitutional argument related to Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117."]

Ratio Decidendi

The application for leave to appeal should be referred to a Full Court because the applicant claimed that a section of the Court's enabling Act was constitutionally invalid, the relationship between any conclusion on that claim and Kowalski was a matter of concern, and it was not clear that the constitutional question raised on the leave application was unnecessary to decide. It was therefore appropriate to exercise the discretion under s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).

Court Disposition

Direction made under s 25(2)(e) that the application for leave to appeal and for an extension of time for leave to appeal be heard and determined by a Full Court; related procedural orders made.

Orders

  • ['Pursuant to s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth) direct that the application for leave to appeal and for an extension of time for leave to appeal be heard and determined by a Full Court.' 'Adjourn the hearing of the applications referred to in order 1 to a hearing before the Full Court on a...