Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
Conde commenced proceedings in the Federal Magistrates Court to have the bankruptcy notice set aside and interim orders granting an extension of time for him to comply with the bankruptcy notice. The matter came before Wilson FM, who dismissed the application to set aside the bankruptcy notice ( Conde v Hunter [2009] FMCA 751). In his reasons for decision, his Honour found in summary as follows: Mr Conde made no attack on the form of the bankruptcy notice itself. Although Mr Conde contended that Mr Hunter did not have a final judgment or final order (the execution of which had not been stayed in terms of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (" Bankruptcy Act ")) the argument was misconceived. His Honour continued: A final order is one that disposes finally of an issue between the parties. The concept of what is a final order is discussed in cases such as Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. In this case, the issue was who should pay the costs of the application to set aside the applicant's pleading. The order made by Judge Searles was a final order, insofar as it concerned that issue. His Honour ordered that the applicant pay the respondent's costs. There is no merit in the first ground sought to be advanced by the applicant. (at [3]) Notwithstanding Mr Conde's prospective challenge to Orders 3 and 4 of Searles DCJ, it was clear on the material before his Honour that: because the order sought to be challenged on appeal was only as to costs, leave to appeal was required by the Court of Appeal; the application for leave to appeal was filed many months out of time and therefore required an order from the Court of Appeal granting an extension of time. The Federal Magistrate noted that no contest had been made against the Orders 1 and 2 made by Searles DCJ, namely to strike out Mr Conde's amended statement of claim and give leave to Mr Conde to replead in that Court. The Federal Magistrate considered that, in those circumstances and having read Mr Conde's application to the Court of Appeal and supporting affidavit, that application to the Court of Appeal has no prospects of success. It followed that no good reason was shown for either setting aside the bankruptcy notice or extending time for compliance with it to await the outcome in the Queensland Court of Appeal. Accordingly the Federal Magistrate dismissed the application to set aside the bankruptcy notice. Appeal from decision of the Federal Magistrate In this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.