Currie, J. v The Queen

[1992] FCA 862

Re: JAMES CURRIE
And: THE QUEEN
No. A G13 of 1992
FED No. 862
Number of pages - 4
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Burchett(1), Miles(2) and O'Loughlin(3) JJ.

CATCHWORDS

Practice and Procedure - application for extension of time within which to appeal - rule providing that application is for "leave to file and serve a notice of appeal" - effect of rule - whether cases dealing with leave to appeal against interlocutory judgment apply so that a single judge may exercise powers of a Full Court and there is no appeal from his decision to a Full Court and no right to make a second application for extension of time to a Full Court.

Federal Court of Australia Act 1976, s. 25(1) and (2)

Reid v. Nairn (1985) 60 ALR 419

Thomas Borthwick and Sons (Pacific Holdings) Ltd v. Trade Practices Commission (1988) 18 FCR 424.

HEARING

CANBERRA

#DATE 6:11:1992

Counsel for the Appellant: Mr B.S. Robison

Solicitors for the Appellant: Messrs Hansen and Co.

Counsel for the Respondent: Mr K.J. Crispin QC with Mr

S.G. Madden

Solicitors for the Respondent: Office of Director of Public

Prosecutions (ACT)

ORDER

The Court orders that:

1. The application for leave to appeal be dismissed.

2. The appeal be dismissed as incompetent.

3. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT J. In this matter there have been filed in the registry a notice of appeal, an application for leave to appeal, and a motion for dismissal of the appeal as incompetent. All these arise out of: (1) the refusal of Higgins J., sitting as a judge of the Supreme Court of the Australian Capital Territory, to make an order for costs against the Crown upon the acquittal of the appellant (as I shall call him) by a jury upon an indictment for incest; and (2), the dismissal by Neaves J. of an application for an extension of time in which to file and serve a notice of appeal from the judgment of Higgins J. with respect to the question of costs.

1. Section 25 of the Federal Court of Australia Act 1976 provides by sub-ss. (1) and (2):
   

"(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

(2) Applications:

(a) for leave or special leave to appeal to the Court; or

(b) for an extension of time within which to institute an appeal to the Court; or

(c) for leave to amend the grounds of an appeal to the Court; or

(d) to stay an order of a Full Court; may be heard and determined by a single Judge or by a Full Court.

1. The reference in s. 25(2) to applications for leave embraces, inter alia, applications under s. 24(1A) for leave to appeal from interlocutory judgments, including (by s. 24(1)(b)) those of judges of the Supreme Court of the Australian Capital Territory. A line of cases dealing with applications for leave to appeal from interlocutory judgments establishes that, where such an application is made to a single judge in reliance on s. 25(2) and Order 52 rule 10, there is no right of appeal from the decision of the judge, nor is there any remaining right to make an application directly to a Full Court: Reid v. Nairn (1985) 60 ALR 419 at 421, 425-426; General Motors Holden's Limited v. Noack (Smithers, Lockhart and Neaves JJ., unreported, 7 March 1986); and Thomas Borthwick and Sons (Pacific Holdings) Ltd v. Trade Practices Commission (1988) 18 FCR 424.

2. In the last case, the judgment of the Court expressly includes in the same rule applications for extension of time, when it states, at 431:
   

"Applications for leave to appeal to the Court or for an extension of time within which to institute an appeal are heard and determined by the Court in the exercise of its appellate jurisdiction, not its original jurisdiction, notwithstanding that such applications may be heard not only by a Full Court but by a single judge."

The Court also said (at 431-432):

"In the expression 'the Court or a Judge', which appears in s. 24(1A), the term 'Judge' means a judge sitting in chambers. The combined effect of ss. 24(1A) and 25(2) is that applications for leave to appeal to the Court and applications for extension of time to appeal shall be heard and determined by a Full Court or by a single judge sitting either in open court or in chambers. By whomsoever the jurisdiction is exercised it is exercised as part of the Court's appellate jurisdiction. This conclusion is plain from the language of ss. 24 and 25. In particular, s. 25(1) provides that the appellate jurisdiction of the Court shall, subject to that section and to the provisions of any other Act, be exercised by a Full Court. It is immediately followed by s. 25(2) the terms of which are mentioned earlier. Although Gibbs C.J. in Re Keely; Ex parte Nuchman Pty Ltd (1984) 52 ALR 666 at 667 appears to have regarded the question of whether a single judge of the Court exercised appellate or original jurisdiction in determining an application for leave to file and serve a notice of appeal out of time as open to doubt, in our view any uncertainty has been resolved by the amendment to s. 5(2). The section as amended applies not only to applications for leave to appeal from a judgment of another court but also to applications for leave to appeal and for an extension of time within which to institute an appeal in respect of a judgment of a single judge of this Court. The appellate jurisdiction of the Court is generally exercised by a Full Court, but the legislature made an exception to this with respect to the hearing and determination of applications for leave to the Court and for extensions of time within which to institute appeals. This exception has sound practical reasons, given the difficulty of convening Full Courts at short notice in certain circumstances and given the obvious desirability in some cases of applications for leave to appeal being heard and determined by the judge who made the orders in respect of which leave to appeal is sought, because of his knowledge of the issues in the case. Although it may seem anomalous at first glance that the appellate jurisdiction of the Federal Court may be exercised in these cases by a single judge, the apparent anomaly disappears when it is remembered that the sound considerations of policy mentioned earlier underly the legislative amendments to ss. 24(1A) and 25(2)."

The Court decided (at 432 to 433):

"In our opinion, ss. 24(1A) and 25(2) of the Federal Court Act, when read together, mean that application may be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment, whether an interlocutory judgment of the Court constituted by a single judge or an interlocutory judgment of the Supreme Court of a State or Territory. A party must elect to apply for leave to appeal to this Court, constituted by a single judge or a Full Court. As the Court remarked in Reid v. Nairn, the parties' election is between true alternatives which are neither progressive nor successive. Once the order has been made granting or refusing leave, no appeal lies from that order."

1. The only possible escape from the application of this conclusion to the present case would be if what came before Mr Justice Neaves could be characterised as other than an application "for an extension of time within which to institute an appeal", the words used in s. 25(2). It is true that the order sought by the application is described, in Order 52 rule 15(2), as "leave to file and serve a notice of appeal", and not as an order extending time. But in Jess v. Scott (1986) 12 FCR 187 at 188, the judgment of the Court points out that, although sub-rule (2) refers to the giving of leave to file and serve a notice of appeal, sub-rule (5) requires the application to be made "in or substantially in the form numbered 54A in the First Schedule". That form seeks, not a grant of leave to file and serve a notice of appeal out of time, but "an extension of time in which to file and serve a notice of appeal". It is plain, therefore, that the application is one in which the power the single judge is being asked to exercise is the power conferred by s. 25(2).

2. It follows that the appellant has made the election for which s. 25(2) provides, and it is not competent for him to apply now to this Full Court for the relief he has already sought and been denied. Nor can he seek leave to appeal from the decision of Neaves J. The objection to competency must succeed. The application for leave to appeal must be dismissed.

3. The order of the Court will be that the application for leave to appeal be dismissed and that the appeal be dismissed as incompetent.

JUDGE2

MILES J. I agree.

JUDGE3

O'LOUGHLIN J. I also agree.