Pantzer v Wenkart [2007] FCAFC 27

Pantzer v Wenkart [2007] FCAFC 27

The motions were refused because the Full Court lacked power to re-open final appellate orders after entry; O 35 r 7(2) and the slip rule did not apply; and, even if there were such a power, no exceptional circumstances justified re-opening. The notices of contention did not require variation of the orders because some grounds were not proper contentions and the remaining grounds were necessarily rejected by the Full Court's earlier reasoning. The costs orders stood because the appellant was successful overall despite abandoning a jurisdictional argument.

Jurisdiction
Australia
Judgment Date
13 March 2007
Procedural Posture
Appeals; Motions on Notice to Re Open Appeals and Vary Final Orders / After Full Court Final Orders Had Been Entered
Outcome
Motions on notice refused with costs.
Legal Topics
['re Opening Appeals After Entry of Final Orders' 'variation of Entered Orders' 'notices of Contention' 'certificates of Taxation of Costs' 'finality of Litigation' 'costs Orders']
['appellate Procedure' 'civil Procedure' 'bankruptcy' 'costs'] ['re Opening Appeals After Entry of Final Orders' 'variation of Entered Orders' 'notices of Contention' 'certificates of Taxation of Costs' 'finality of Litigation' 'costs Orders']

Case Brief

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Procedural Posture

Appeals; Motions on Notice to Re Open Appeals and Vary Final Orders / After Full Court Final Orders Had Been Entered

Legal Issues

  1. 1 ['Whether the Full Court of the Federal Court had power to re-open final orders after their entry in appellate jurisdiction.' 'Whether the entered orders should be varied to address notices of contention and remit matters to the primary judge.' 'Whether the costs orders should be varied because the appellant had abandoned a jurisdictional argument.' 'Whether an intermediate appellate court was required to give express reasons on every notice of contention ground.']

Ratio Decidendi

The motions were refused because the Full Court lacked power to re-open final appellate orders after entry; O 35 r 7(2) and the slip rule did not apply; and, even if there were such a power, no exceptional circumstances justified re-opening. The notices of contention did not require variation of the orders because some grounds were not proper contentions and the remaining grounds were necessarily rejected by the Full Court's earlier reasoning. The costs orders stood because the appellant was successful overall despite abandoning a jurisdictional argument.

Court Disposition

Motions on notice refused with costs.

Orders

  • ['In NSD 2457 of 2005, the motion on notice is refused.' "In NSD 2457 of 2005, the first respondent pay the appellant's costs." 'In NSD 2459 of 2005, the motion on notice is refused.' "In NSD 2459 of 2005, the first respondent pay the appellant's costs."]