Storry v Weir [2022] FCA 1484

Storry v Weir [2022] FCA 1484

The application under r 39.05(b) sought to set aside an order made in the exercise of the Federal Court's appellate jurisdiction, so the order of 15 November 2022 dismissing that application was an interlocutory order made after the determination of an appeal and was itself made in appellate jurisdiction. Because s...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 November 2022
Procedural Posture
Application for Leave to Appeal and Application for Stay / Application for Leave to Appeal Against Interlocutory Order Dismissing Application to Set Aside Appellate Judgment
Outcome
Application for leave to appeal dismissed; application for stay dismissed; Registrar directed not to accept the proposed notice of appeal for filing; costs ordered to be fixed in a lump sum by a Registrar and paid from the applicant's bankrupt estate.
Legal Topics
['leave to Appeal' 'interlocutory Judgments' 'application to Set Aside Judgment Obtained by Fraud' 'jurisdiction of the Federal Court' 'appeals to the High Court' 'costs']
['federal Court Appellate Jurisdiction' 'bankruptcy and Insolvency' 'civil Procedure'] ['leave to Appeal' 'interlocutory Judgments' 'application to Set Aside Judgment Obtained by Fraud' 'jurisdiction of the Federal Court' 'appeals to the High Court' 'costs']

Source-derived case record

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Procedural Posture

Application for Leave to Appeal and Application for Stay / Application for Leave to Appeal Against Interlocutory Order Dismissing Application to Set Aside Appellate Judgment

Legal Issues

  1. 1 ['Whether the dismissal of an application under r 39.05(b) of the Federal Court Rules 2011 (Cth) to vary or set aside a judgment or order on the basis it was obtained by fraud is interlocutory or final.' 'Whether the Federal Court has jurisdiction to hear an appeal, or grant leave to appeal, from a judgment or order made by a single judge of the Federal Court exercising appellate jurisdiction.' 'Whether the Registrar should be directed not to accept for filing a notice of appeal purporting to appeal against the order of 15 November 2022.' 'Whether the stay application should be dismissed for want of jurisdiction.' "Whether costs should be ordered against the applicant's bankrupt estate."]

Ratio Decidendi

The application under r 39.05(b) sought to set aside an order made in the exercise of the Federal Court's appellate jurisdiction, so the order of 15 November 2022 dismissing that application was an interlocutory order made after the determination of an appeal and was itself made in appellate jurisdiction. Because s 24 of the Federal Court of Australia Act 1976 (Cth) does not confer a right of appeal or leave to appeal to the Federal Court from a single judge exercising appellate jurisdiction, the Court had no jurisdiction to entertain Ms Storry's application for leave to appeal. Her available challenge lay by special leave to the High Court under s 33 or, exceptionally, by constitutional...

Court Disposition

Application for leave to appeal dismissed; application for stay dismissed; Registrar directed not to accept the proposed notice of appeal for filing; costs ordered to be fixed in a lump sum by a Registrar and paid from the applicant's bankrupt estate.

Orders

  • ['The application for leave to appeal against the order made in QUD103/2022 on 15 November 2022 be dismissed.' 'The application for stay be dismissed.' 'The Registrar is directed not to accept for filing the notice of appeal marked as exhibit-1, which purports to institute an appeal against the Order.' "The costs of...