Loevski v Australian Securities & Investments Commission(includes corrigendum dated 21 May 2002) [2002] FCAFC 116 (7 May 2002)

Last Updated: 11 July 2002

FEDERAL COURT OF AUSTRALIA

Loevski v Australian Securities & Investments Commission

[2002] FCAFC 116

YAKOV LOEVSKI v AUSTRALIAN SECURITIES AND

INVESTMENTS COMMISSION and STEVEN SHERMAN

V1167 OF 2001

CARR, MOORE & NORTH JJ

7 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1167 OF 2001

BETWEEN:	YAKOV LOEVSKI Applicant
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent STEVEN SHERMAN Second Respondent
JUDGES:	CARR, MOORE & NORTH JJ
DATE OF ORDER:	7 MAY 2002
WHERE MADE:	MELBOURNE

CORRIGENDUM

Amendment to the reasons for judgment of the Full Court.

Page 5, paragraph 24, Order 3 - respondent's costs should read respondents' costs.

...........................................

Associate to Carr J

21 May 2002

FEDERAL COURT OF AUSTRALIA

Loevski v Australian Securities & Investments Commission

[2002] FCAFC 116

YAKOV LOEVSKI v AUSTRALIAN SECURITIES AND

INVESTMENTS COMMISSION and STEVEN SHERMAN

V1167 OF 2001

CARR, MOORE & NORTH JJ

7 MAY 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1167 OF 2001

BETWEEN:	YAKOV LOEVSKI Applicant
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent STEVEN SHERMAN Second Respondent
JUDGES:	CARR, MOORE & NORTH JJ
DATE OF ORDER:	7 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The time for the applicant to apply for leave to appeal from the orders made by Marshall J on 6 December 2001 be extended to 29 January 2002.

2. Leave to appeal against those orders be refused.

3. The applicant pay the respondents' costs of the application for leave to extend time and for leave to appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1167 OF 2001

BETWEEN:	YAKOV LOEVSKI Applicant
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent STEVEN SHERMAN Second Respondent

JUDGES:	CARR, MOORE & NORTH JJ
DATE:	7 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 In this matter the applicant appeared for himself. He is originally from Russia and does not speak much English. Accordingly, it is difficult to ascertain from the papers prepared and filed by him precisely what relief he seeks from this Court.

2 However, we think it is reasonable to infer, and we do so infer, that the applicant seeks an extension of time in which to apply for leave to appeal from interlocutory orders made by Marshall J on 6 December 2001. If time be extended, the applicant seeks leave to appeal from those orders.

FACTUAL AND PROCEDURAL BACKGROUND

3 On 17 February 1999 the second respondent and a Mr Peter Walker were appointed as joint voluntary administrators of a company called Telegroup Network Services Pty Ltd ("TNS"). The applicant is a former employee of TNS. On 6 April 1999 the second respondent and Mr Walker were appointed as joint liquidators of TNS.

4 On a date which does not appear from the papers the applicant asked the first respondent, the Australian Securities and Investments Commission, to investigate a complaint which he had made in relation to the liquidation of TNS. The first respondent decided not to investigate that complaint.

5 The applicant then applied to the Administrative Appeals Tribunal for review of the first respondent's decision not to investigate the applicant's complaint. The parties named in the proceedings before the Tribunal were the applicant and the first respondent. The second respondent to these proceedings was not a party to the proceedings before the Tribunal.

6 On 8 October 2001 the Tribunal dismissed the application on the basis that it did not have jurisdiction to consider the matter.

7 On 9 November 2001 the applicant filed a notice of appeal from the decision of the Tribunal given on 8 October 2001. In that notice he named two respondents. The first respondent mentioned was Australian Securities and Investments Commission preceded by a handwritten figure 1. Immediately under the reference to the Commission there appeared in handwriting "2. Liquidator of TGNS Mr S Sherman".

8 On 29 November 2001 Mr Sherman's solicitors filed on his behalf a notice of motion seeking an order that these proceedings be struck out as against him as second respondent and that the applicant pay the second respondent's costs. That motion was supported by an affidavit sworn by Ms Georgina Thomas of the firm of solicitors acting for the second respondent. Ms Thomas, deposed, amongst other things, to the fact that she had spoken to the applicant on the telephone, on 26 November 2001, and explained to him that his application as against Mr Sherman was wholly misconceived as Mr Sherman had not been a party to the proceedings before the Tribunal. She warned the applicant that if he did not agree to withdraw the proceedings as against Mr Sherman, a notice of motion would be issued seeking orders that the appeal be struck out as against Mr Sherman and that in those circumstances costs would be sought against the applicant. The applicant had told Ms Thomas, so she deposed, that he would not withdraw the notice as against Mr Sherman.

9 On the same date, namely 26 November 2001, Mr Sherman's solicitors sent a fax to the applicant giving a similar warning.

10 The motion came on for hearing before Marshall J on 6 December 2001. There is in evidence before us a transcript of what took place on that date. In oral submissions to the learned primary judge, Ms Thomas succinctly gave her reasons why Mr Sherman should not be a party to the proceedings in this Court. His Honour then asked the applicant for his response which started off in these terms:

"My response is that Mr Sherman is the main respondent because ...".

11 Shortly thereafter his Honour explained to the applicant that he was only hearing submissions about whether it was proper to have Mr Sherman as a party to the proceeding. The applicant responded:

"Absolutely, he is the main respondent."

12 Again, shortly thereafter, his Honour reminded the applicant that he was only hearing submissions about whether it was appropriate to join Mr Sherman as a respondent to the proceeding. The applicant responded "not the second respondent, but the main respondent."

13 His Honour then made orders in the following terms:

"1. The notice of appeal filed by the applicant on 9 November 2001 be struck out as against the second respondent.

2. The applicant pay the second respondent's costs of the application."

14 His Honour then turned to the question whether the matter should be transferred to the Federal Magistrates Court. This was apparently something which his Honour had raised at the first directions hearing. After some discussion and after referring to the factors set out in Order 82 rule 7 of the Federal Court Rules, his Honour made an order that the matter be transferred to the Federal Magistrates Court.

APPLICATION FOR AN EXTENSION OF TIME

15 The time within which an application for leave to appeal against an interlocutory order (other than an application to the Judge who pronounced the judgment at the time of its pronouncement) is seven days from the date of such pronouncement - see Order 52 rule 10(2). That is, the time within which the applicant could apply for leave to appeal expired on 14 December 2001.

16 We would be content to treat the facts that the applicant is representing himself, has some difficulty communicating in English, and that the application for an extension of time was filed on 29 January 2002 as amounting cumulatively to special reason for extending time to 29 January 2002 being the date upon which the applicant filed a document headed Notice of Appeal.

LEAVE TO APPEAL

17 The authorities show that there are two major considerations when considering whether to grant leave to appeal from an interlocutory order. The first is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. The second major consideration is whether substantial injustice would result if leave were refused, supposing the decision to be wrong - see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397.

18 In relation to the order made by his Honour to transfer the application to the Federal Magistrates Court, in our view, the situation is beyond argument. Section 44AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) gives power to this Court, where an appeal under s 44(1) or (2) is pending in this Court, to transfer that appeal to the Federal Magistrates Court. His Honour exercised that power. Section 44AA(10) provides that an appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under s 44AA(1).

19 Thus, in relation to the order made by Marshall J to transfer the appeal to the Federal Magistrates Court, the applicant's proposed appeal is doomed to failure and leave should not be granted.

20 As to the order striking out the second respondent as a party to the proceedings, we do not think that Marshall J's decision was attended with any doubt, let alone sufficient doubt to warrant its being reconsidered by this Court.

21 In written submissions filed in support of the application for leave to appeal, the applicant sought to rely on a letter dated 27 November 2001, a copy of which can be found in the appeal book at p 28. The letter was addressed to Marshall J and, at best, is not entirely clear as to the applicant's intentions with regard to having Mr Sherman as a party to the proceedings. One of the applicant's complaints to us was that the primary judge had overlooked his letter of 27 November 2001.

22 It is quite clear from the excerpts of the transcript to which we have referred, that the applicant was seeking to maintain Mr Sherman's presence as a respondent to these proceedings. His Honour decided that Mr Sherman was not a proper party to the proceedings.

23 In our view, nothing has been shown to suggest that his Honour erred in any way in the exercise of his discretion to strike the second respondent out of the proceedings.

24 For the foregoing reasons we will make the following orders:

1. Extend the time for the applicant to apply for leave to appeal from the orders made by Marshall J on 6 December 2001 to 29 January 2002.

2. Refuse leave to appeal against those orders.

3. Order that the applicant pay the respondents' costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 7 May 2002

The Applicant appeared for himself:
Counsel for the First Respondent:	Mr M Galvin (instructed by the Australian Securities and Investments Commission)
Counsel for the Second Respondent:	Ms G Thomas
Solicitors for the Second Respondent:	Messrs Baker & McKenzie
Date of Hearing:	7 May 2002
Date of Judgment:	7 May 2002