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Primary Securities Ltd (Receivers & Managers appointed) (in liquidation) v Saker [2010] FCA 1471

by Martha.Ware 28. January 2011 09:14

Facts

The applicant filed a notice of motion seeking an extension of time in which to file and serve a notice of appeal from a judgment delivered in proceedings to which it was not a party: [1].

 

The applicant subsequently amended the motion to seek leave to appeal the judgment, such leave being necessitated by the fact that it had no right of appeal given that it was not a party to the proceedings: [2] and [9].

 

To enliven the Court’s jurisdiction to hear and determine the appeal, the applicant had to show there existed a “justiciable controversy” or “matter” within the meaning of Chapter III of the Constitution (Cth) that could be the subject of appeal from the judgment: [13].

 

A justiciable controversy ends when the possibility of an appeal being commenced, either by a party to the proceeding or not, is exhausted or foregone: [27].

 

Outcome

Because no appeal had been brought within the appeal period, there did not exist any “justiciable controversy”, or “matter” within the meaning of Chapter III of the Constitution (Cth), which could be the subject of an appeal from the judgment: [32].

 

Accordingly, the Court has no power to grant the applicant leave to appeal: [28] and [35].

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Ford's Principles of Corporations Law



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