Croker v Secretary, Department of Employment and Workplace Relations

[2008] FCA 1549

FEDERAL COURT OF AUSTRALIA

Croker v Secretary, Department of Employment and Workplace Relations [2008] FCA 1549

CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1084 OF 2008

GRAHAM J
8 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1084 OF 2008

BETWEEN: CLAYTON ROBERT CROKER
Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	8 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which an application for leave to appeal from the interlocutory judgement of Stone J in proceedings NSD 2548 of 2007 may be brought be extended up to and including 21 July 2008.

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	NSD 1084 OF 2008

BETWEEN: CLAYTON ROBERT CROKER
Applicant

AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

JUDGE:	GRAHAM J
DATE:	8 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Under Order 52, rule 10(2A)(b) an application for leave to appeal from an interlocutory judgment of a single judge of the Court may be brought, provided that the necessary Notice of Motion is filed within seven days after the date on which the interlocutory judgment was pronounced or within such further time as the Court or a judge may allow. 

2. In the present case, Stone J delivered a judgment on 27 June 2008 in which her Honour dismissed the application then before her as incompetent and ordered that the applicant pay the costs of the respondent.  Those orders were made in proceedings NSD 2548 of 2007.

3. In the present matter, which is the subject of proceedings NSD 1084 of 2008, a Notice of Appeal was filed on 15 July 2008 from the judgment of her Honour.  Subsequently, on 21 July 2008 a Notice of Motion seeking a grant of leave to appeal from the judgment of Stone J was filed by the applicant with a view to allowing the Notice of Appeal filed 15 July 2008 to proceed.  Apart from seeking a grant of leave to appeal, the Notice of Motion filed 21 July 2008 sought an order that compliance with the time restriction for filing the Notice of Motion be dispensed with. 

4. The position taken by the respondent is that the circumstances warrant an extension of time for the filing of the Notice of Motion and it is unnecessary to go into the detail of those circumstances, provided that the position of the respondent, in relation to opposing a grant of leave, is protected.

5. It seems to me that the time within which the Motion should be filed should be extended up to and including 21 July 2008.  In so ordering, I do not intend to preclude any argument otherwise available to the respondent opposing the grant of leave which is sought.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       16 October 2008

The Applicant appeared in person.
Solicitor for the Respondent:	D J Watson of the Australian Government Solicitor

Date of Hearing:	8 September 2008
Date of Judgment:	8 September 2008