Tucker v State of Victoria

• Jurisdiction: Australia Federal only
• Judgment Date: 01 December 2022
• Neutral Citation: [2022] FCA 1449
• Date: 01 December 2022
• Court: Federal Court

Federal Court of Australia

Tucker v State of Victoria [2022] FCA 1449

File number:	VID 658 of 2022
Judgment of:	ANDERSON J
Date of judgment:	1 December 2022
Date of publication of reasons:	2 December 2022
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal interlocutory orders – where the applicant has no right to appeal pursuant to s 24(1AA) of the Federal Court of Australia Act 1976 (Cth) – application refused
Legislation:	Federal Court of Australia Act 1976 (Cth)
Cases cited:	Bright v Femcare Ltd (2002) 195 ALR 574; [2002] FCA 243 Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) (No 3)[2022] FCA 1280 House v King (1936) 55 CLR 449 Johnson Tiles Pty Ltd v Esso Australia Ltd(2000) 104 FCR 564 Norbis v Norbis(1986) 161 CLR 513 Oswal v Burrup Fertilisers Pty Ltd (Recs and Mgrs Appt) (2011) 85 ACSR 531 Revill v John Holland Group Pty Ltd[2021] FCA 558 Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCA 956 SZMTM v Minister for Immigration and Citizenship [2009] FCA 181 Tran v Singh [2019] FCA 70
Division:	General Division
Registry:	Victoria
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	30
Date of hearing:	1 December 2022
Counsel for the applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr A Silver with Ms A Tresise
Solicitor for the Respondent:	BlueRock Law

ORDERS

		VID 658 of 2022
BETWEEN:	TOBIAS JOHN TUCKER Applicant
AND:	STATE OF VICTORIA Respondent

order made by:	ANDERSON J
DATE OF ORDER:	1 DECEMBER 2022

THE COURT ORDERS THAT:

1. The interlocutory application filed 7 November 2022 be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1. By an interlocutory application filed 7 November 2022, the Applicant, Tobias John Tucker (MrTucker), has sought leave to appeal from the interlocutory orders of Judge Symons made on 25 October 2022 (the Orders) in the matter of MLG1600/2022 filed in the Federal Circuit and Family Court of Australia (Div 2) (BankruptcyProceeding).

2. Those Orders listed both the creditors’ petition (Petition) and Mr Tucker’s summary judgment application to be heard together on 5 December 2022.

3. Mr Tucker’s leave application argues that:

1. the Orders are attended with sufficient doubt to warrant them being reconsidered on appeal;

2. if the Orders are not corrected on appeal, the applicant will suffer substantial injustice; and

3. the matter is of great importance and the Court’s approach to listing the summary judgment application at the same time as the trial defeats the efficiency underpinning summary judgment.

4. Mr Tucker relies upon his written submissions filed 22 November 2022 and 1 December 2022, as well as the following evidence:

1. Affidavit of Tobias Tucker dated 7 November 2022;

2. Affidavit of Tobias Tucker dated 21 November 2022; and

3. Affidavit of Tobias Tucker dated 30 November 2022.

5. The Respondent (State) opposes Mr Tucker’s application for leave to appeal and his application for a stay of the Orders.

6. The State relies upon its written submissions filed 23 November 2022, as well as the following evidence:

1. Affidavit of Claudia Baskett dated 23 November 2022.

PROCEDURAL HISTORY

7. The State has drafted a full procedural chronology of the Bankruptcy Proceeding, which was forwarded to the Court on 21 November 2022. In brief summary, the chronology identifies that:

1. the judgment debt the subject of the Bankruptcy Notice was manifest in the order of Associate Justice Ierodianconou dated 21 April 2020;

2. the Bankruptcy Notice was issued on 7 February 2022;

3. the Petition was filed on 11 July 2022;

4. Mr Tucker filed an appearance and a Notice of Opposition on 25 August 2022;

5. on 1 September 2022, the matter was heard before Edwards JR and listed for trial before a Judge;

6. on 28 September 2022, the Court advised that the matter was listed before Judge Mansini on 30 November 2022. On the same day, Mr Tucker filed a summary dismissal application, which was not served on the State until 3 October 2022;

7. Judge Symons held a directions hearing for the summary judgment on 25 October 2022. Judge Symons ordered that the summary judgment application be adjourned for hearing at the same time as the trial on 5 December 2022;

8. Mr Tucker filed an application for leave to appeal on 7 November 2022 and now seeks a stay of the Orders; and

9. on 17 November 2022, Judge Symons’ Associates responded to an email from Mr Tucker and declined his request to stay the Orders.

Applicant’s position

8. Mr Tucker seeks that his summary judgment application be heard and determined separately and in advance of the final hearing of the Petition. Mr Tucker also seeks a short adjournment of the further hearing of the Petition, whilst the application for leave is heard and determined.

9. In support of his case, Mr Tucker submits that:

1. the applicant has at least an arguable case for the grant of leave to appeal;

2. there is no risk that the Petition will expire;

3. if a stay is not granted, the applicant stands to have both his application for leave and summary judgment application rendered nugatory by the continued operation of the Orders; and

4. if a stay is not granted, this Court and the Federal Circuit and Family Court of Australia (Division 2) will be seized with determining the same matter.

Consideration

10. For the reasons that follow, the interlocutory application filed 7 November 2022 will be dismissed.

Jurisdiction

11. The rules governing the Federal Court’s appellate jurisdiction for civil proceedings are found in ss 24 and 25 of the Federal Court of Australia Act 1976 (Cth) (FCAAct). Section 24(1)(d) states that the Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) exercising its original jurisdiction under a law of the Commonwealth. A “Judgment” is defined as a “judgment, decree or order, whether final or interlocutory”: s 4 FCA Act. Pursuant to s 24(1A) of the FCA Act, leave to appeal is required for all interlocutory orders.

12. It is my view that Mr Tucker has no right to appeal, even with leave, from the Orders under challenge by virtue of s 24(1AA) of the FCA Act. Pursuant to this section, an appeal must not be brought from a judgment referred to in s 24(1)(d) if the order was a decision to, or not to, adjourn or expedite a hearing: FCA Act s 24(1AA)(b)(ii). This prohibition on bringing an appeal from the refusal by the primary judge to adjourn a hearing is unqualified: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCA 956 at [16] (per Bromwich J); see also Tran v Singh [2019] FCA 70 (Thawley J) and Revill v John Holland Group Pty Ltd[2021] FCA 558.

13. The Butterworths Australian Legal Dictionary defines “adjourn” as “to defer or postpone a hearing to a future day or sine die”. The word “adjournment” means “a Court order by which proceedings are postponed, interrupted, or continued at a different time or place before the same court”. Section 24(1AA)(b)(ii)...