In dealing with an unmeritorious bankruptcy law appeal, a Federal Court Judge has made a suggestion to limit appeal rights in order to avoid a “waste of judicial resources where 90 to 95% of the appeals have little if any merit”. In fact “the lower court is doing a fine job in its adjudication of the cases before it.”
The appeal came before Justice Beach from orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) refusing leave to a creditor to pursue litigation against a bankrupt under s 58(3)(b) of the Bankruptcy Act. It concerned various VCAT and Supreme Court of Victoria proceedings which had already been disposed of, or, if not, the bankrupt was not a party to them; the appeal was therefore dismissed: Davey v Vrsecky (Trustee), in the matter of Dessmann [2023] FCA 1274.
Skipping over other detail in the judgment – including that the creditor, a self-represented litigant, had “sought belatedly and unjustifiably for the first time to raise s 82(2)” as to debts provable in bankruptcy … “too little, too late and too lame [and] meritless” – Justice Beach offered this suggestion, paraphrased, that:
The legislature should consider imposing a requirement for a party to obtain leave to appeal to the Federal Court from all judgments emanating from the Federal Circuit and Family Court of Australia (Division 2), whether relating to migration, bankruptcy or otherwise.
Section 25(1AA) of the Federal Court of Australia Act 1976 requires that a single judge of the Federal Court hear an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) unless a Judge considers that it is appropriate for the appeal to be heard by a Full Court. Chapter 4 of the Federal Court Rules 2011 applies to these appeals.
Justice Beach continued:
”These cases are of course important for the individual litigants, but this is no justification for the waste of judicial resources at this Court’s level where 90 to 95% of the appeals emanating from the lower court have little if any merit and should be filtered out through a leave threshold. Moreover, implicit in the justification for the leave threshold is that the lower court is doing a fine job in its adjudication of the cases before it. Further, introducing a general leave requirement would be conducive to promoting the use of short-form judgments which would enhance efficiency in this Court’s functioning”.
Comment
The merits or otherwise of this broad-ranging suggestion are best left to others, including those who could advise whether the statement that “90 to 95% of the appeals emanating from the lower court have little if any merit” applies across all areas of jurisdiction, or might predominate in, say, migration matters. Likewise, as to the low rate of successful appeals to the Federal Court.
As to “promoting the use of short-form judgments which would enhance efficiency in this Court’s functioning”, Justice Beach might have in mind the approach of the High Court, in giving judgment in certain special leave applications, for example:
… The application raises no issue of principle that would warrant the grant of special leave. Moreover, no reason is shown to doubt the correctness of the decision of the Full Court of the Federal Court of Australia. The application should be refused. … Shaw v The Official Trustee in Bankruptcy [2020] HCASL 262 (10 December 2020) (austlii.edu.au)
In so far as Justice Beach would have wanted his suggestion to be heard, this website report may assist.
