Case: Iyer v MIMIA [2000] FCA 1788
Outcome: cited
principle has also been applied in many decisions of the Federal Court, including Iyer v MIMIA [2000] FCA 1788 and Gomez v MIMIA (2002) 190 ALR 543. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.' In the case before me although the appellant was not legally represented, I understand that he is in fact a solicitor and therefore at somewhat less of a disadvantage in conducting a case before a court than self-represented litigants without legal qualifications. No explanation was provided by the appellant as to why this ground of appeal was not raised before her Honour indeed that hearing would have been a timely opportunity to do so other than the fact that the appellant considered that he was entitled to raise new issues by way of appeal before this Court. Finally, the fact that this ground of appeal is but one of a number involving issues which were not raised before her Honour suggests, to paraphrase Gyles J in Iyer v MIMIA [2001] FCA 929 at 61, that the appellant is asking this Court to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. In my view the Court should not permit the proper process to be so ignored. In any event, a brief consideration of this ground of appeal indicates that it is without merit. The respondents had satisfied their obligations by conducting a search and filing the required affidavit the day before the nominated date for the hearing of the petition, namely the date on which the matter came before District Registrar Ramsey and was adjourned to be heard before a Federal Magistrate. This is clear because: &#8226; section 104 Federal Magistrates Act 1999 (Cth) contemplates registrars of the court hearing, continuing to hear, or not hearing, applications which come before them &#8226; To find otherwise would in my view impose unnecessary additional burdens on creditors in such circumstances.