Croker v Deputy Registrar of the High Court of Australia & Anor

This matter concerned an application by Mr Croker for leave to appeal to the High Court of Australia against a decision of the Federal Court of Australia. The Deputy Registrar of the High Court and the Commonwealth of Australia were the respondents. The dispute arose from Mr Croker's unsuccessful attempt to appeal a decision of the Federal Court, which had dismissed his application for judicial review of a decision made by the Minister for Immigration and Multicultural Affairs. Mr Croker sought to argue that the High Court had jurisdiction to grant him leave to appeal, notwithstanding that the Federal Court had already refused him leave to appeal.

The central legal issue before the High Court was whether it retained jurisdiction to grant leave to appeal from a decision of the Federal Court, even after the Federal Court itself had refused leave to appeal. This question involved an interpretation of section 35A of the *Federal Court of Australia Act 1976* (Cth), which deals with appeals from judgments of the Federal Court constituted by a single judge, and section 35B of the same Act, which concerns appeals from judgments of a Full Court of the Federal Court. The court was required to determine the scope of the High Court's appellate jurisdiction in circumstances where the Federal Court had already exercised its discretion regarding leave to appeal.

McHugh and Heydon JJ held that the High Court did not have jurisdiction to grant leave to appeal in the circumstances presented. Their Honours reasoned that section 35A of the *Federal Court of Australia Act 1976* conferred a specific power on the Federal Court to grant leave to appeal from a single judge's decision, and that this power was exclusive. Once the Federal Court had refused leave, the High Court's jurisdiction to entertain an appeal from that decision was extinguished. The court emphasised that the legislative scheme intended for the Federal Court to be the primary arbiter of whether an appeal should proceed, and that the High Court's appellate jurisdiction was not intended to be a supervisory one over the Federal Court's exercise of its discretion to grant leave.

The application for leave to appeal was dismissed.