Fan Lee v Master of the Act Supreme Court

[2006] ACTCA 2

FAN LEE v MASTER OF THE ACT SUPREME COURT [2006]
ACTCA 2 (14 February 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 28- 2005
No. SCA 36 of 2005

Judges:        Crispin P, Gray and Lander JJ  
Court of Appeal of the Australian Capital Territory
Date:           14 February 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 28 - 2005
  )          No. SCA   36 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FAN LEE

Appellant

AND:MASTER OF THE ACT SUPREME COURT      

Respondent

ORDER

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 28- 2005
  )          No. SCA 36 of   2005 
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FAN LEE

Appellant

AND:MASTER OF THE ACT SUPREME COURT

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal against a decision of the Master declining to grant leave for the applicant to appeal out of time against a decision of the Registrar refusing to accept an originating application for filing in the Registry. 

1. It seems clear from the pleading itself and from the relevant correspondence, that the Registrar declined the originating application for three reasons. 

1. Firstly, whilst the appellant clearly sought access to certain records of AMP pursuant to relevant provisions of the Corporations Law, the proceedings were not brought against that company, but against an individual.

1. Secondly, no cause of action was pleaded. 

1. Thirdly, no relief was specified. 

1. The Master raised an issue as to whether there was any right of appeal against a decision of the kind made by the Registrar, and further issues could be raised as to whether the decision of the Master was also interlocutory in character, whether leave to appeal is required, and whether any appeal should be heard by a single judge rather than the Court of Appeal.  However, it seems to me to be unnecessary to address these issues.

1. In my view the Registrar was clearly right to reject the documents sought to be lodged by the appellant as they were defective in the manner that I have previously indicated. Accordingly, the Master was right to reject the application for leave to appeal out of time, and would have been compelled to dismiss the contemplated appeal even if it had been brought within time. 

1. For these reasons I would dismiss the appeal from the Master’s decision. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

Associate:

Date:    22 February 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 28- 2005
  )          No. SCA 36 of  2005 
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FAN LEE

Appellant

AND:MASTER OF THE ACT SUPREME COURT

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I agree.

I certify that the preceding paragraph numbered nine (9) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:    22 February 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 28- 2005
  )          No. SCA 36 of 2005 
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FAN LEE

Appellant

AND:MASTER OF THE ACT SUPREME COURT

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

LANDER J:

1. I agree with the reasons given by the President and I would add only these further reasons.  In my opinion the appeal is incompetent for a number of reasons.  First the appellant has purported to join the judicial officer from whom the appeal is brought as a party.  In my opinion that is inappropriate.  The appeal lies from the judicial officer’s order, it does not make him a party to the appeal.  For that reason alone the appeal is incompetent.

1. Secondly, the appeal is incompetent because as the learned President has said the order made by the Master, if it were made within jurisdiction, is simply an order dismissing the application for an extension of time.  That is an interlocutory order.  No appeal lies from an interlocutory order of a Master to this court. 

1. Thirdly, in my opinion, I am not persuaded that any appeal lies from the decision of the Registrar under O 66 r 10B refusing to file the document lodged by the appellant.  I am not persuaded, without argument, that the Registrar was acting judicially.  Indeed it seems to me that there is a strong case, as the Master observed, that the Registrar was acting in an administrative capacity.  If she were acting in an administrative capacity, then it would follow, I think, that no appeal would lie from the Master.  If that be the case then, of course, no appeal could ever lie from the Master to this court. 

1. However, that has not been argued and that remains to be considered on a later occasion. I only mention it because O 61A r 1(1) of the Supreme Court Rules seems to contemplate that an appeal would lie from the Registrar to the Master in the circumstance in which I have mentioned.

1. For these reasons and the reasons given by the President, in my opinion, the appeal must be dismissed as incompetent.

I certify that the preceding paragraphs numbered ten (10) to fourteen (14) are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date:    22 February 2006

Counsel for the Appellant:  Self Represented Litigant       

Counsel for the Respondent:  Mr H Jorgensen

Solicitor for the Respondent:  ACT Government Solicitor

Date of hearing:  14 February 2006

Date of judgment:  14 February 2006