Grey, R.A. v Park, R.A

[1985] FCA 570

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AUSTRALIAN CAPITAL TERRITORY

1 No. ACT G 56 of 1985

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I	REGISTRY	DISTRICT	1	:
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I	GENERAL DIVI-

l	BETWEEN :	RONALD	ALWYN GREY
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Applicant

AND : ROSS ADAIR PARK

Respondent

MINIJTE OF ORDER

JUDGE MAKING ORDER	:	Neaves J .
DATE OF ORDER	:	14 October 1985

WHEF!E MADE : Canberra

THE COURT makes no order upon the notice of motion filed

herein on behalf of the applicant on 4 September 1985.

Note: Settlement and entry of orders 1 s dealt with In

Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	)	I ,?	._
AUSTRALIAN CAPITAL TERRITORY	)

1 No. ACT G 56 of 1985

DISTRICT REGISTRY	)
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GENERAL DIVISION	)

BETWEEN :

ROWALD ALWYN GREY

Applicant

AND : ROSS ADAIR PARK

Respondent

C m : Neaves J.

DATE: 14 October 1985

REASONS FOR JUDGMENT

Ross Adair Park, the respondent to this application.

was on 9 November 1984 summarily convicted by the Court of

Petty Sessions in the Australian Capital Territory of an

offence against sectlon 19 of the Motor Traffic (Alcohol and

Drum) Ordinance 1977 (A.C.T.). Pursuant to section 32 of that

Ordlnance the respondent’s licence	to drive a motor vehicle was
cancelled.

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On 20 December 1984 the Court of Petty Sesslons, upon

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the application of the respondent under section 40 of the above

Ordinance. directed that the Reuistrar of Motor Vehlcles grant

I a driving licence Class 2 to the respondent for a period of 9

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2.

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months. the licence to be subject to certain terms and

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conditions to which it is unnecessary to refer. Notice of the

application had, pursuant sub-section o 4 0 ( 2 ) of the

Ordinance. been given tn Ronald Alwyn Grey (the present

applicant) who is, and was then, the Commissioner of the

Australian Federal Folice. MK Grey appeared in the proceedings to oppose the application.

By notice of appeal dated 2 April 1985 the present

applicant. pursuant to the grant of leave in that behalf.

sought to appeal to the Supreme Court of the Australian Capital

Territory from the order of the Court of Petty Sessions

directing that a drivlnq licence be granted to the respondent.

On 15 August 1985 the Supreme Court of the Australian

Capital Territory (Miles C.J.) ordered that the appeal to that l :;

Court "be struck out as Incompetent and for want of

jurisdiction" and ordered the present applicant to pay the

respondent's costs of the proceedlngs in that Court. The

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learned judge stated that he would qive reasons for that

decision at a later date. Those reasons were published on 30

September 1985. His Honour held that section ll(c) of the

Australlan Capital Territory Supreme Court Act 1933 (Cth) did not confer jurisdictlon on the Supreme Court to entertain the appllcant's appeal for the reason that section 207 of the Court

of Petty Sesslons Ordinance 1930 (A.C.T.) relevantly prescribed

an exception excludina from the appellate jurisdiction of the

Court an appeal from a decision made by the Court of Petty

Sessions upon an application under section 40 of the Motor

Traffic (Alcohol and Druqs) Ordinance 1977 (A.C.T.).

The present applicant desired to appeal to this Court

from the judgment of the Supreme Court. On the basis that an

appeal lay as of riqht from that judgment. the last day upon

which an appeal miqht be instituted was 5 September 1985.

On 4 September 1985 the applicant filed in this Court

a notice that on the following day he would move the Court for

an order that the time allowed for the filing and servinq of a

notice of appeal from the judgment of the Supreme Court be

extended to permit the applicant to file and serve such notice

21 days after the date when reasons for decision were delivered

by the Supreme Court. An affidavit filed in support of the

motion stated that, reasons for the decision of the Supreme

Court not havinq been published, it was not possible to

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ascertain the basis ln law for the appeal being struck out. It

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was said. however, that the matter raised important questions

of law as to the right of appeal from a decision of the Court

of Petty Sessions pursuant to section ll(c) of the Australian

Capital Territory Supreme Court Act 1933 (Cth).

Tt~e matter came before this Court (Everett J.) on 5 E <;

September 1985 but was adjourned without a date for the further

hearing of the matter beinq fired. The matter came before me

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on 27 September 1385. I raisecl the question whether the

judgment of the Supreme Court was an in terlocutory judgment so

that an appeal to this Court would lie only by leave granted by

the Court or a Judge (see Federal Court of Australia Act 1976,

sub-section 24(1A)). Reference was made to the circumstance

that other proceedings were pending in the Supreme Court in

which the applicant was seeking a writ of certiorari to quash

the decision of the Court of Petty Sesslons given on 20

December 1984. A5 the parties were not then in a position to

present submissions on the question raised, the matter was

adjourned until 11 October 1385.

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The matter again came before me on that date. I was

then informed that on 30 September 1985 the Supreme Court had published reasons for the decision given on 15 August 1985 and had qiven judgment discharging the order nisi for a writ of

certiorari. I was also informed that on the same date Miles

.I	C.J.. on the appllcation of the present applicant. had made an
I	order under Order 52, sub-rule 15(ll(a) of the Federal Court
Rules. That sub-rule provides that a notice of appeal is to be filed and served within 21 days after -

( i ) the date when the judgment appealed from

was pronounced:

(ii) the date when leave to appeal was

granted: or	c
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(iii) any later date fixed for that purpose by

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the court appealed from.

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The transcript record of the proceedings before Miles

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C.J. on 30 September 1985 records the order made by his Honour S ..

in the following terms -

"In so far as it may be within my power to extend

any time for the lodging of a notice of appeal to the Federal Court of Australia. I extend that time

for 21 days. "

Although the order as	so	recorded does not use	the language of	j, 1
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Order 52. sub-rule 15(l)(a)(iii) of the Federal Court Rules, it

is abundantly clear that its effect was to allow a notice of

appeal to be filed and served by the applicant within 21 days

from the date of the order. viz. 30 September 1985.

Counsel for the applicant submitted that the judgment

of the Supreme Court from which the applicant desired to appeal

was a final judgment. He referred to H & v. Nominal Defendant

(1966) 117 C.L.R. 423. v. Finance Corporation of Australla

Ltd. (No.1) (1981) 147 C.L.R. 246 and Sanofi v . Parke Davis

Pty. Ltd. (No.1) (1982) 149 C.L.R. 147. Counsel further

submitted that. If the Court did not accept that submission,

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leave to	appeal should be granted	a s the question raised was	-	,
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one of law of considerable importance in relation to the

administration of justice in the Australian Capltal Territory.

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After counsel for the applicant had completed hls

submissions counsel for the respondent Indicated that he

nelther consented to nor opposed the application, stating that

the respondent had no real interest in the outcome of the

present application as it would m no way affect the drivinu

licence which he currently held, A request by the Court for

further elucidation of that statement prompted counsel for the

applicant to refer the Court to further material. Although I

have referred earlier in these reasons to the fact that the

order made by the Court of Petty Sessions on 20 December 1984

directed that a driving licence be granted to the respondent

"for a period of 9 months", that fact was not stated in the

notlce of motion or in elther of the affidavits filed in

support thereof. It was made known t o the Court only in the

circumstances L have briefly outlined.

The Court was informed not only that the licence

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granted pursuant t n the order nf the Court of Petty Sessions

made on 20 December 1984 had already expired but a150 that a

further licence of unlimited ducatlon had been granted to the

respondent pursuant to an order of the Court of Petty Sessions

made on 23 September 1985. The Court was also informed that

the applicant had not taken a decision whether an appeal from

the order so made should be instltuted.

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The consequence of the matters lastly referred to is

that, even if it be held that the Supreme Court was in error in

holdinu that it had no jurisdiction to entertain the

applicant's appeal from the order of the Court of Petty

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Sessions made on 20 December 1984. no effective order could now

be made by that Court on the hearing of that appeal.

Having considered the submissions made by counsel for

the applicant I think it appropriate to deal with the present

application on the basis that the judgment of the Supreme Court

glven on 15 August 1985 is a final judgment. On that basis and

having regard to the order made by the Supreme Court on 30

September 1985, the effect of which 1s to allow a notice of

appeal to be filed and served by the applicant within 21 days

from that date, it is unnecessary for this Court to make any i

further order. I, therefore, make no order upon the

applicatlon.

I certify that this and

..	the preceding 6 pages are
"	a true copy of the Reasons
for Judqment herein of the
Honourable Mr Justice
Neaves
Dated: 14 October 1985 et!?!!!