Scully v Jones [2002] FCA 1396

FEDERAL COURT OF AUSTRALIA

Scully v Jones [2002] FCA 1396

PRACTICE AND PROCEDURE – application for extension of time within which to file notice of appeal – whether appeal would be futile – applicant becomes bankrupt while judgment below reserved – whether right of appeal would be property vested in trustee in bankruptcy – whether applicant has an "interest" in orders below which would give locus standi to appeal. BANKRUPTCY – application for extension of time within which to file notice of appeal – applicant becomes bankrupt while judgment below reserved – whether right of appeal would be property vested in trustee in bankruptcy – whether applicant has an "interest" in orders below which would give locus standi to appeal.

Bankruptcy Act 1966 (Cth) subs 5(1) ("property")

Cummings v Claremont Petroleum NL (1996) 185 CLR 124 discussed

OLGA SCULLY v JEREMY JONES

N 1026 OF 2002 LINDGREN J 8 NOVEMBER 2002 SYDNEY (VIA VIDEO LINK TO LAUNCESTON)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1026 OF 2002

BETWEEN: OLGA SCULLY

APPLICANT

AND: JEREMY JONES

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 8 NOVEMBER 2002

WHERE MADE: SYDNEY (VIA VIDEO LINK TO LAUNCESTON)

THE COURT ORDERS THAT: 1. The application for extension of time be dismissed. 2. The applicant pay the respondent's costs of that application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1026 OF 2002

BETWEEN: OLGA SCULLY

APPLICANT

AND: JEREMY JONES

RESPONDENT

JUDGE: LINDGREN J

DATE: 8 NOVEMBER 2002

PLACE: SYDNEY (VIA VIDEO LINK TO LAUNCSTON)

REASONS FOR JUDGMENT 1 The applicant ("Ms Scully") seeks an extension of time in which to file and serve a notice of appeal against orders made by a Judge of the Court (Hely J) on 2 September 2002. The application for extension of time, together with a form of the proposed notice of appeal, was filed on 30 September 2002. Clearly the twenty-one day period allowed by O 52 r 15 of the Federal Court Rules had not long passed. The respondent ("Mr Jones"), through senior counsel, does not argue that he is prejudiced by the lateness. 2 When the application came on for hearing it appeared that the only issue to be determined was whether the granting of an extension of time would be futile because an appeal would be doomed to fail. However, senior counsel for Mr Jones raised a second issue. He established that Ms Scully presented her own petition for bankruptcy on 23 July 2002, a date between the reservation and delivery of judgment; that the petition was accepted on that date; and that the Official Trustee is trustee of Ms Scully's estate. Senior counsel submitted that Ms Scully's bankruptcy had the effect that the proposed appeal would be incompetent. 3 His Honour's orders of 2 September 2002 were as follows: "1. It be declared that [Ms Scully] has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed the following leaflets in letterboxes in Launceston, Tasmania and by selling or offering to sell such leaflets at a public market in Launceston being the leaflets described as: (a) 'The Inadvertent Confession of a Jew'; (b) 'The Jewish Khazar Kingdom'; (c) 'Russian Jews Control Pornography'; (d) Untitled document appearing at page 25 of applicant's affidavit; (e) 'The Most Debated Question of Our Time – Was There Really a Holocaust?'; (f) Untitled document appearing at page 30 of applicant's affidavit; and (g) Untitled document with handwritten annotations appearing at page 35 of applicant's affidavit. 2. [Ms Scully] be restrained from repeating or continuing such conduct. 3. [Ms Scully] be restrained from distributing, selling or offering to sell any leaflet or other publication which is to the same effect as any of the leaflets referred to in Order 1. 4. [Ms Scully] pay [Mr Jones's] costs." 4 The ground of appeal stated in the proposed notice of appeal is as follows: "The Court Order No 3 is an open-ended restriction limiting freedom of information in a very drastic way. The law (R.D. Act) [a reference to the Racial Discrimination Act 1975 (Cth)] is invalid because Parliament cannot legislate to remove common law rights of sovereign Australians. 5 Under the heading "Order Sought", Ms Scully states: Court Orders No 1 and 3 have brought censorship into effect, outlawing scientific evidence concerning historical controversy, most notably under Order 1(e) and centuries-long information has been prohibited by 1(b). Under Order 1(d) discussion of biblical information is prohibited, and a vast area of world history is outlawed by Order 1(g). All orders should be struck out as they conflictwith the Constitution." 6 On the hearing Ms Scully made brief submissions in support of these grounds. She contended that the injunctions prohibited anyone from challenging commonly held views and common understandings of facts in relation to the Holocaust. I pointed out to Ms Scully that the orders have been made against her alone, and that they relate only to the particular leaflets identified in Order 1 and any leaflet or other publication which is "to the same effect as any of the leaflets referred to in Order 1". 7 Issues of constitutionality were dealt with by the learned primary Judge at pars [234]–[240] of his reasons for judgment. Ms Scully pointed to no particular error in those paragraphs; she did no more than make the general assertion that restrictions of the kind found in the orders were unconstitutional because they were an unwarranted inhibition of freedom of speech. A similar submission was answered fully and effectively, if I may say so with respect, by his Honour in the paragraphs to which I have referred. 8 In my view an appeal by Ms Scully would be doomed to fail and for this reason an extension of time for the filing of the notice of appeal should not be granted. 9 The bankruptcy question is an interesting one on which, in view of my conclusion just expressed, I refrain from expressing a final view.