Issitch v Worrell[2000] QCA 304

McPHERSON JA:  This is an application to extend the time within which to appeal against an order made by a Judge in Supreme Court Chambers for the sale of a residential property in the suburb of Wishart. The order was made at the instance of the trustee in bankruptcy, who is Mr Ivor Worrell, who was appointed to that office in respect of the estate of Sigfried Tantner deceased who, before his death, was evidently married to the applicant before us. Her name is Ludmilla Issitch.

The delay involved in lodging the appeal, which is about six days, is said to have arisen from difficulty in obtaining instructions from the applicant. She is said to have been extremely emotional about the decision that was given against her and is not English speaking, so that it has been necessary for her solicitor, Mr Abaza, to take instructions from her through interpreters.

I would not be unsympathetic to that explanation for the delay, but the real question is whether there is anything in this appeal that would justify our allowing it to proceed. The first point that is raised is that there is a question of Constitutional validity as regards the original sequestration order. It was made by a Deputy Registrar on 29 September 1994. It is said that under the Constitution the Deputy Registrar could not validly have been invested with the judicial power of the Commonwealth.

In Cheeseman v. Waters (1994) 148 ALR 21, the Full Court of the Federal Court upheld the validity of s 31A(1)(n) of the Bankruptcy Act 1966 under which jurisdiction is conferred on the Federal Court to delegate to the Registrar of that Court the power of making a sequestration order. An application for leave to appeal against that decision was refused by the High Court on 19 May 1998. It was submitted by Mr Abaza in support of this application that the decision in Cheeseman v. Waters is distinguishable.

At one point in his written outline, the suggestion seems to have been made that it was distinguishable because the Registrar here was not an officer of the Federal Court, but was a Registrar in Bankruptcy, who of course is not a judicial officer. However the relevant delegation, a copy of which is included in the record, shows that the delegation, which was dated 10 April 1987, was in favour of Mr G K Ramsay, who is a Deputy Registrar of the Federal Court or so he was at the time at which the delegation took place, and not a Registrar in Bankruptcy.

The point therefore seems to me to be precisely covered by the decision in Cheeseman v. Waters. I would add only that if the constitutional matter had been raised (and I see it as an attempt to apply the Boilermakers' case), it would have been necessary for us to adjourn the application now before us to enable notices to be given to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903. That step has not so far been taken.

However in my view, a matter does not arise under s 78B simply because someone asserts that it does arise. See Re Finlayson (1997) 72 ALJR 73, at 74. No issue or matter has been shown to arise here having regard particularly to the decision of the Federal Full Court in Cheeseman v. Waters and the refusal by the High Court of leave to appeal from that decision.

When confronted with this proposition, Mr Abaza said that he was also challenging the efficacy of the delegation, or the instrument of delegation, on the basis of its nonconformity with the power in the Federal Bankruptcy Act on which it was said to rely. That however is to my mind a question within the jurisdiction of the Federal Court acting in bankruptcy, and not one which it is open to the applicant to take in this Court. It is one that falls directly within the exclusive jurisdiction of that Court. It should be pursued there and it cannot be pursued in this Court.

In the result, it seems to me that nothing can be said in favour of the applicant in support of the submission that the sequestration order which gives title to the trustee in bankruptcy is for some reason invalid.

Apart from, or perhaps I should say in addition to, that, it seems to me that no questions are raised by the applicant that are capable of being described as even arguable. The proposed notice of appeal sets out what the points are that it is intended to raise. They are referred to on page 96 of the record and, although I will not go through each of them one by one, it appears to me that none of them have any such substance as to justify our extending the time within which this appeal might be lodged.

Reference was made to s  99(1) and s  99(2) of the Property Law Act as suggesting that there was no power in the particular circumstances for the Judge at first instance to have made an order for sale of the property which is subject to a charge in favour of the trustee in bankruptcy.

But a consideration of s  99, both in subsection (1) and subsection (2) and the other subsections to which reference is made in the written outlines, persuades me that there is simply no arguable question of law that we could fairly permit to be pursued in the appeal if the application to extend time were granted.

The other point that was urged in the submissions by Mr Abaza is that the decision of the Federal Court, which involved setting aside a disposition of property under s  124 of the Bankruptcy Act, was somehow invalid because another person had an interest in the property that was the subject of that disposition. That person is the son of the applicant, Mrs Issitch, whose name is Timothy Bolotnikoff.

What is said is that he was not given notice of, or in any way represented at, the proceedings which led to the order avoiding or setting aside the disposition in respect of the subject property and vesting it as a consequence in the trustee Mr Worrell. From that point it is argued that the Federal Court decision and order to that effect must be void.

In my view, however, if there were any such question in the Federal Court, or if the defect was one which would invalidate the Federal Court order in any way, it is a matter which has to be pursued in the Federal Court, which has jurisdiction in respect of such a question which is exclusive of our own in this Court.

The Federal Court is, by the Federal Court Act that constitutes it, declared to be a superior court of record having jurisdiction in this and other matters invested in it. Its decisions are therefore not open to collateral challenge in the way in which it is sought to do here, because it is a superior court in the sense I have mentioned.

It follows in my view that if Mr Timothy Bolotnikoff, who is not a party before us, were disposed to challenge the decision of the Federal Court which it is said affects his rights, he must go to the Federal Court in order to achieve that result. He cannot successfully pursue the question in this Court by what really amounts to a side-wind to attempt to upset a decision on which the trustee relies only as a step in the process of obtaining the title on which he relies to sue in this Court.

In my view, none of the questions raised in the written outlines or in the oral submissions before us is sufficient to persuade me that a fairly arguable point is available to the applicant or that she should in consequence be given an extension of time within which to pursue this appeal in this Court.

I would dismiss the application to extend the time within which to appeal against the decision of Justice Holmes that was given in this matter on 25 May 2000.

DAVIES JA:  I agree.

MULLINS J:  I agree.

McPHERSON JA:  Costs?

MR MARTIN:  I'd ask for costs, your Honours. Might I also ask that those costs be included in what Justice Holmes called the costs of sale in paragraph 8 of her order. There were various-----

McPHERSON JA:  In other words you want a right to retain these costs out of the proceeds of sale when you sell the property?

MR MARTIN:  Yes, because the costs at first instance were ordered to be costs in the sale and, in my submission, this application seems to flow from the application before Justice Holmes.

McPHERSON JA:  What is the authority for making the original order?  I'm not really doubting -----

MR MARTIN:  I think it flowed from the general sort of orders that are made for example for an appointment of statutory trustees to a sale it's normal that the applicant's costs of such application are included in the costs of sale.

McPHERSON JA:  One needs to look at the formal order I suppose to see -----

MR MARTIN:  It was paragraphs 8 and 9 at page 87 of the record.

McPHERSON JA:  Yes. It's actually paragraph 9, isn't it?

MR MARTIN:  Yes.

McPHERSON JA:  And included in the costs of sale. Yes, very well. What have you got to say about that, Mr Abaza?

MR ABAZA:  We don't resist the order for costs or on the basis suggested.

McPHERSON JA:  Thank you.

McPHERSON JA:  The Court will order that the applicant pay the costs of and incidental to this application to be assessed and that those costs be part of the costs of sale as referred to in paragraph 9 of the order made by Justice Holmes on 25 May 2000.