Chandrasekaran, In the matter of an application for leave to issue or file

[2021] HCATrans 119

[2021] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S101 of 2021

In the matter of -

an application by SUJATHA CHANDRASEKARAN for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON WEDNESDAY, 4 AUGUST 2021, AT 9.41 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 9 July 2021, the applicant seeks leave to issue or file an application for special leave to appeal.  For the reasons that I now publish I would dismiss the application.  The order is:  the application for leave to issue or file be dismissed.  I publish that order.  I direct that the reasons as published be incorporated into the transcript.

On 1 July 2021, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), Gordon J directed the Registrar to refuse to issue or file an application by the applicant for special leave to appeal without the leave of a Justice first had and obtained. On 9 July 2021, the applicant filed this application, ex parte, for leave to issue or file the application for special leave to appeal.

The background to this application concerns proceedings commenced by the applicant on 14 June 2019 in the Federal Court of Australia against the Commonwealth of Australia, the State of New South Wales and, subsequently, the Australian Centre for Advanced Computing and Communications Pty Ltd.  On 11 November 2020, Wigney J entered summary judgment in favour of each of the three respondents[1].

[1]Federal Court of Australia Act1976 (Cth), s 31A; Federal Court Rules 2011 (Cth), r 26.01. See Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629.

The Federal Court of Australia Act 1976 (Cth) provides that the decision to grant summary judgment is “taken to be [an] interlocutory judgment[]” with the effect that leave is required before an appeal can be brought from that decision[2]. On 25 November 2020, the applicant filed an application for leave to appeal from the decision of Wigney J. Subject to exceptions that do not apply in this case, s 25(2)(a) of the Federal Court of Australia Act provides that an application for leave to appeal to the Federal Court must be heard and determined by a single judge of the Federal Court.  The single judge exercises the “appellate jurisdiction” of the Federal Court[3].  The applicant’s application for leave to appeal was heard and determined by Flick J, who refused leave to appeal[4].  In the exercise of original jurisdiction, Flick J also dismissed an application that he disqualify himself.

[2]    Federal Court of Australia Act 1976 (Cth), s 24(1D)(b) read with s 24(1A).

[3]    Federal Court of Australia Act 1976 (Cth), s 25(1).

[4]Chandrasekaran v Commonwealth of Australia [2021] FCA 481.

Section 33(4B)(a) of the Federal Court of Australia Act provides that an appeal must not be brought to the High Court from a judgment of the Federal Court in the exercise of what the legislation describes as its “appellate jurisdiction”[5] if the judgment is “a determination of an application of the kind mentioned in subsection 25(2)”.  Subsection 25(2) includes applications for leave to appeal to the Federal Court[6] (which includes the Full Court[7]).  The determination by Flick J of the application for leave to appeal to the Federal Court is therefore a judgment from which an appeal to the High Court must not be brought.  The proposed application for special leave to appeal from the decision of Flick J to refuse leave to appeal is incompetent[8]. The applicant did not seek to bring any application in the original jurisdiction of this Court under s 75(v) of the Constitution[9].

[5]    See also Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431; Hamod v New South Wales (2002) 188 ALR 659 at 663 [15]. But compare Dobson v Australian Postal Corporation [2013] HCASL 140 at [3]; SZSLE v Minister for Immigration and Border Protection [2014] HCASL 29 at [3], both citing Collins v The Queen (1975) 133 CLR 120 at 122 and United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30]‑[31].

[6]    Federal Court of Australia Act 1976 (Cth), s 25(2)(a).

[7]    Federal Court of Australia Act 1976 (Cth), s 25(2)(a).

[8]See Bechara v Bates (2021) 388 ALR 414 at 441 [112]; Plaintiff S65-2019 v Minister for Immigration and Border Protection [2019] HCATrans 144 at ll 33‑36. See further Dobson v Australian Postal Corporation [2013] HCASL 140 at [3]; SZSLE v Minister for Immigration and Border Protection [2014] HCASL 29 at [2]-[3].

[9]Compare Edwards v Santos Ltd (2011) 242 CLR 421 at 426 [8], 430 [21]. See also Houston v State of New South Wales [2020] HCATrans 203 at ll 93‑95.

The applicant submits that an exception applies in this case under s 33(4C) of the Federal Court of Australia Act, which provides that “[t]he fact that there has been, or can be, no appeal to the High Court from an interlocutory judgment of the [Federal] Court in a proceeding does not prevent (a) a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or (b) the High Court from taking account of the interlocutory judgment in determining: (i) an appeal from a final judgment in the proceeding; or (ii) an application for special leave to appeal from a final judgment in the proceeding”. That submission cannot be accepted. Section 33(4C) ensures that a provision such as 33(4B)(a), which precludes appeals to the High Court from certain interlocutory decisions, does not impair any grounds of appeal from a separate final decision. Contrary to the applicant’s submission, s 33(4C) does not “negate[]” the exclusion of the appellate jurisdiction of the High Court in a provision such as s 33(4B)(a).

To the extent that any argument might be made that Flick J was exercising original jurisdiction in his decision not to disqualify himself and that, independently of the decision of Flick J to refuse leave to appeal, a separate appeal might lie from the decision of Flick J not to disqualify himself, such a separate appeal could not be brought to the High Court[10].

[10]     Federal Court of Australia Act 1976 (Cth), s 33(2).

The proposed application for special leave to appeal is incompetent. It is appropriate that, under r 13.03.1 of the High Court Rules, the application be determined without listing it for hearing.  Leave to issue or file is refused.  The application for leave to issue or file, filed 9 July 2021, is dismissed.

AT 9.42 AM THE MATTER WAS CONCLUDED