Australian Litigation Fund Pty Ltd; v Mearns (No.2)
[2005] FMCA 1805
•25 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUSTRALIAN LITIGATION FUND PTY LTD v MEARNS (No.2) | [2005] FMCA 1805 |
| BANKRUPTCY – Whether Federal Magistrates Court has power to grant leave to appeal to the Federal Court. |
| Federal Court of Australia Act 1976 (Cth), ss.24, 25 Federal Court Rules 1979 (Cth), Order 52 Rule 10 |
| Australian Litigation Fund Pty Limited v Mearns & Anor [2005] FMCA 1727 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 79 ALR 171 |
| Applicant: | AUSTRALIAN LITIGATION FUND PTY LIMITED |
| Respondent: | ROBYN HAYDN MEARNS |
| File Number: | SYG2819 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Dawson |
| Solicitors for the Applicant: | Abbott Tout Lawyers |
| Counsel for the Respondent: | Mr R Killalea |
| Solicitors for the Respondent: | Nil |
ORDERS
The application for leave to appeal to the Federal Court is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2819 of 2003
| AUSTRALIAN LITIGATION FUND PTY LIMITED |
Applicant
And
| ROBYN HAYDN MEARNS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By notice of motion filed in Court today the respondent seeks (among other things) leave to appeal to the Federal Court from a judgment that I delivered yesterday (Australian Litigation Fund Pty Limited v Mearns & Anor [2005] FMCA 1727). The basis on which leave is sought is that it is submitted that my judgment may be an interlocutory judgment. If so leave would be required. Counsel for the respondent contends that such leave may be given by this Court. It was submitted that because the Federal Magistrates Court Rules 2001 are silent on such matters, this Court should adopt Order 52 of the Federal Court Rules, in particular Order 52 Rule 10 which deals with leave to appeal from interlocutory judgments. It appears that it is suggested that such Rules be applied pursuant to Rule 1.05(2) of the Federal Magistrates Court Rules.
I am not persuaded that this Court has the power to grant such leave. There is nothing in the Federal Magistrates Act 1999 that has been brought to my attention as dealing with this situation. The Federal Magistrates Court Rules are silent on such matters.
Section 24 of the Federal Court of Australia Act 1976 confers jurisdiction on the Federal Court of Australia to hear appeals from this Court. Subsection (1) provides that the Federal Court has jurisdiction to hear and determine appeals in a number of categories including, in paragraph (d), appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth, other than certain exceptions which relate to the family law jurisdiction.
Section 24(1A) is as follows:
An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
The “Court” in this context means the Federal Court of Australia (s.4). It does not mean the Federal Magistrates Court. Similarly “Judge” means a Judge of the Federal Court (s.4) and not a Federal Magistrate. Section 25(1A) of the Federal Court of Australia Act 1976 provides that the appellate jurisdiction of the Federal Court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice of the Federal Court considers it appropriate to be exercised by a single Federal Court judge. Section 25(2)(a) provides that applications for leave to appeal to the Court may be heard and determined by a single judge (of the Federal Court ( s.4) or by a Full Court. Such applications for leave are heard by the Federal Court in the exercise of its appellate jurisdiction.
In this context Order 52 deals with the means by which applications for leave to appeal should be made (see in particular Order 52 Rule 10) and the procedure to be followed on appeal. It is applicable in relation to the Federal Court’s exercise of appellate jurisdiction.
It is the case that these provisions apply to applications for leave to appeal from interlocutory judgments of single judges of the Federal Court, whether made to a single judge or the Full Court. However the jurisdiction to hear and determine an application for leave is within the Federal Court’s appellate jurisdiction whether exercised by the Full Court or a single judge (see Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 79 ALR 171 at 179 – 180). This Court does not have such a jurisdiction. It is neither necessary or appropriate to apply Rules of the Federal Court relevant to the exercise by that Court of its appellate jurisdiction.
I note the consistency of approach demonstrated in the Federal Court of Australia Act. Section 29 provides in relation to applications for a stay of proceedings pending an appeal that where there is an appeal to the Federal Court from another court the Federal Court or a Judge (of the Federal Court) or a judge of that other court (not being the Federal Magistrates Court) may grant such a stay.
It is clear from the Federal Court of Australia Act that the leave of the Federal Court or a Judge of that Court is a prerequisite to an appeal from an interlocutory judgment of this Court. Insofar as the notice of motion seeks that this Court grant leave to appeal from the decision in Australian Litigation Fund Pty Ltd v Mearns & Anor [2005] FMCA 1727 it should be dismissed. Hence I need not consider whether my judgment was in fact an interlocutory judgment from which leave to appeal is required. That will be a matter for the Federal Court.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 December 2005
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