Case: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244
Outcome: cited
respondent relies, inter alia , upon comments of Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [46] where her Honour said: 'It seems to me that the questions stated in the notice of appeal have been impermissibly drawn in a way calculated to cause this Court to review the decision of the Tribunal rather than to answer stated questions of law. A strict application of O 53 r 3(4) would render the questions unarguable without the leave of the Court.' Section 44(1) of the AAT Act provides: '(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.' In the case before me, O 53, subrules 3(2) and (3) of the Federal Court Rules are also relevant. Those rules read as follows: '(2) The notice of appeal shall be signed by the applicant or his solicitor and shall state (b) the question or questions of law to be raised on the appeal ... (d) briefly, but specifically, the grounds relied upon in support of the order sought (3) The Court may on such terms and conditions as the Court thinks fit allow a notice of appeal to be amended.' A number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). Indeed in my view, it is arguably in the nature of a ground of appeal, rather than a question of law which the Court is required to consider. I note similar comments in the context of the notice of appeal in Saxby Bridge at par 47 of that judgment. Accordingly, I am prepared to give leave to allow the notice of appeal to be amended in accordance with the amended notice of appeal attached to the applicant's further amended notice of motion filed in Court on 18 September 2006, subject to deletion of par 2(g) of that document. I note however, that during the hearing this morning Mr Looney suggested at one point that in the absence of par 2(g), the preliminary questions in pars 2(a), (b), (c), (d), (e), (f) would not pose sufficient questions for the Court to answer. I will now hear submissions from Counsel. THE COURT ORDERS THAT: 1. The applicant be given leave to file and serve an amended notice of appeal in the terms set out in the further amended notice of motion filed in Court on Monday 18 September 2006, subject to the deletion of par 2(g) of that document. 2. In the event that the applicant file and serve a further notice of motion by 4.00 pm on Wednesday 20 September 2006 the matter be listed for hearing on Friday 22 September 2006 at 8.00 am. 3. Upon the filing of any amended notice of appeal the appeal book be amended so as to reflect and contain the amended notice of appeal. 4. No order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 20 September 2006 Counsel for the Applicant: Philip Looney Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Craig Coulsen Solicitor for the Respondent: McInnes Wilson Date of Hearing: 18 September 2006 Date of Judgment: 18 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1250.html