Bilioara Pty Ltd v Leisure Investments Pty Ltd

[2001] NTCA 2

Bilioara Pty Ltd v Leisure Investments Pty Ltd [2001] NTCA 2

PARTIES:BILIOARA PTY LTD

v

LEISURE INVESTMENTS PTY LTD

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION:  CIVIL

FILE NO:AP 1 of 2001 (200032251)

DELIVERED:  8 February 2001

HEARING DATES:  8 February 2001

JUDGMENT OF:  MILDREN J

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant/Respondent:               L. Silvester

Respondent/Applicant:               T. Young

Solicitors:

Appellant:Hunt and Hunt

Respondent:  Ward Keller

Judgment category classification:    B

Judgment ID Number:  

Number of pages:  3

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA

Bilioara Pty Ltd  v Leisure Investments Pty Ltd [2001] NTCA 2

No. AP 1 of 2001 (20003251)

BETWEEN:

BILIOARA PTY LTD

Appellant

AND:

LEISURE INVESTMENTS PTY LTD  

Respondent

CORAM:    MILDREN J

REASONS FOR JUDGMENT

(Delivered 8 February 2001)

MILDREN J:

1. This is an application by the respondent to an appeal seeking an order dismissing the appeal as incompetent. The application is brought by summons pursuant to O84 r16 of the Supreme Court Rules.

2. The matter has been listed before me and I have raised with the parties the question of the power of a single judge to determine this matter. There are certain powers which single judges have pursuant to s52 of the Supreme Court Act in relation to exercising the jurisdiction of the Court of Appeal. It was suggested that under s52(2)(b) a judge could exercise the appellate jurisdiction of the Court of Appeal as an exercise of what was put as ‘other prescribed cause’.

3. As I said during argument, the word ‘prescribed’ is defined by the Interpretation Act, s18 to mean: ‘prescribed by the Act in which the word is used or by an instrument of a legislative or administrative character made under that Act.’ That being so, the word ‘prescribed’ in s52(2)(b) must mean prescribed by regulations made under the Supreme Court Act or by rules of court.

4. I was unable to find and nor were counsel able to direct me to, any specific rule or regulation enabling a single judge of the Court to exercise the powers of the Court in relation to r84.16.   There is nothing in r84.16 itself and nor is there any specific rule in either ch 1 or ch 2 of the Supreme Court Rules which bears on the matter.

5. A similar matter was dealt with by Martin J as he then was in the matter of Collins v Godhino & Anor (unreported decision on 3 March 1988), but it does not appear that the question of jurisdiction was raised on that occasion and that in any event, his Honour was able to deal with the matter without having to exercise the powers under O84 r16.

6. There are no authorities of which I am aware which bear on the matter.

7. The only other potentially relevant provision is s52(3)(a) which provides that the appellate jurisdiction of the court under s51 (1) may, subject to s53, be exercised by a judge as provided by the Act, by the Rules or by any other law in force in the Territory and, (b) in all matters of practice and procedure.

8. As I have already indicated, there is nothing in the Act, the Rules or any other law which enables a single judge to exercise the powers of the Court of Appeal in relation to this application, and in my view, the application is not a matter of practice and procedure.

9. That being so, I have reached the conclusion somewhat reluctantly that I have no power to deal with this application, although I may have power to deal with some of the other applications which are before me, but it seems that it is prudent that this particular application be dealt with first.

10. In those circumstances, I make an order adjourning the summons of the respondent to the appeal to a date to be fixed by the Registrar.  I also adjourn the summons of the appellant to a date to be fixed by the Registrar.