Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The question whether leave to appeal should be granted falls to be determined according to the criteria set down by the Full Court in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. First, whether the impugned decision is attended with sufficient doubt to warrant its reconsideration. Secondly, whether substantial injustice would result if leave were not granted, supposing that the impugned decision was wrong. 21 The applicant, by his submissions, contends that: "9. ... The proposition that [the second respondent] and/or Mr Ariss could have been expected to contend for, if present before the [Federal Magistrates] Court, namely, that they or one of them was the true owner of the jewellery, was clearly articulated as was the basis upon which they might seek to rely to establish such a claim: (a) there was express disclosure that [the second respondent] and Mr Ariss were persons named as insureds in relation to the jewellery; (b) there was express disclosure that the bankrupt gave evidence that when she asked her husband (ie, Mr Ariss) for the jewellery, he said the jewellery was the property of [the second respondent] and that she could not have it; (c) there was express disclosure that when the husband had been examined pursuant to s81 of the Bankruptcy Act , he asserted that he had given certain items of the jewellery to one or both of this daughters, consistent with ownership of the jewellery by him or [the second respondent]; (d) there was express disclosure that the bankrupt expressed the opinion that some of the house contents, the subject of the same policy of insurance, might be owned by [the second respondent] although, like the jewellery, such items of contents were not disclosed as an asset in the balance sheet of [the second respondent]. 10. In order to determine whether or not there was 'material' non-disclosure, it is necessary to have regard to the evidence of the bankrupt as a whole. It is asserted that the fact she had earlier given evidence contrary to the proposition the jewellery was hers was not disclosed. What the transcript of the evidence given by the bankrupt on 22 December 2005 discloses is that she did on occasion give contrary evidence. That is, on occasion she gave evidence that she thought that the jewellery was either that of Mr Ariss or [the second respondent]. However, what is critical is that she was examined as to why she might hold to that view. She said in evidence that she held that view for two reasons, namely: (a) because those persons were named as insureds in relation to the jewellery; and (b) her husband had told her that the jewellery was the property of [the second respondent] or of himself. Both considerations which had led [the bankrupt] to on occasion state that the jewellery might be the property of [the second respondent] or of Mr Ariss were disclosed on the ex parte application, as was the fact there was evidence consistent with such potential claims. 11. The cases establish that, on an application made ex parte, there must be disclosure of material facts. The material facts which were required to be disclosed here were: (a) that [the second respondent] and Mr Ariss were persons who were named as persons having an insured interest in relation to the jewellery. This was disclosed in the King ... affidavit and the relevant insurance documents were exhibited; (b) that Mr Ariss, currently the sole director of [the second respondent], held the view that the jewellery in question was either his or [the second respondent's]. This was also disclosed. 12. The best evidence that Mr Ariss and/or [the second respondent] would claim to be the owners of the jewellery, and the basis of that claim, was before the Federal Magistrates Court. There was direct evidence, of which the Court was informed, that Mr Ariss asserted the jewellery was his or [the second respondent's] and, on that basis, refused to return it to his wife. In those circumstances, the fact there was additional evidence from the bankrupt that, on the basis of the insureds' interest and on the basis of what her husband told her, she believed that the jewellery may be his or [the second respondent's] jewellery, was not material. ... ... 17. The King ... affidavit disclosed that [the second respondent] or Mr Ariss would assert an entitlement to the jewellery. The ... Magistrate knew that was the case they would make and knew there was documentary evidence in support of that case, at least as to an arguable insurable interest, notwithstanding none of the jewellery appeared on the balance sheet of [the second respondent]." 28 The Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration. I do not think it necessary to go on to consider whether substantial injustice would result if leave were not granted, supposing that the Magistrate's decision was wrong. The two limbs of the test in D&eacute;cor Corporation cannot be considered in isolation from one another: see D&eacute;cor Corporation at 398-399. The prospect that an appeal, if leave were granted, would be successful is so remote that it would be artificial to suppose that the decision below is wrong. See Applicant VMAO v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 427 at [22] .