Hu v Giles - [2010] FCA 592

FEDERAL COURT OF AUSTRALIA
Hu v Giles [2010] FCA 592

Citation: Hu v Giles [2010] FCA 592

Appeal from: Hu v Giles [2010] FCA 174

Parties: YUAN YUAN HU v CHRISTINE GILES and COMMONWEALTH OMBUDSMAN

File number(s): QUD 60 of 2010

Judges: SPENDER J

Date of judgment: 3 June 2010

Catchwords: PRACTICE AND PROCEDURE – appeal from interlocutory decision of single judge sitting in the appellate jurisdiction – whether the grant or refusal of extension of time is an exercise of appellate jurisdiction –
s 25 Federal Court of Australia Act 1976 (Cth)

Legislation: Federal Court of Australia Act 1976 (Cth) s 25
Federal Court Rules O 52 r 2AA, O 52 r 18(1)

Cases cited: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47
Thomas Borthwick & Sons v the Trade Practices Commission (1988) 18 FCR 424
Harding v Deputy Commissioner of Taxation [2008] FCA 1516

Date of hearing: 3 June 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Applicant: The applicant (respondent on the Motion) appeared in person

Solicitor for the Respondents: Australian Government Solicitor (applicant on the Motion)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 60 of 2010

BETWEEN:
YUAN YUAN HU
Applicant

AND:
CHRISTINE GILES
First Respondent

COMMONWEALTH OMBUDSMAN
Second Respondent

JUDGE:

SPENDER J

DATE OF ORDER:

3 JUNE 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The appeal is dismissed as incompetent pursuant to O 52 r 18(1) of the Federal Court Rules.
2.The applicant pay the costs of the respondents of the motion filed on 17 March 2010, amended on 20 May 2010, to be taxed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 60 of 2010

BETWEEN:
YUAN YUAN HU
Applicant

AND:
CHRISTINE GILES
First Respondent

COMMONWEALTH OMBUDSMAN
Second Respondent

JUDGE:

SPENDER J

DATE:

3 JUNE 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an Amended Notice of Motion amended on 20 May 2010 by which the respondents, Christine Giles and the Commonwealth Ombudsman seek that the appeal of Mr Hu filed on 3 March 2010 be dismissed pursuant to Order 52, rule 18(1) of the Federal Court Rules. Order 52, rule 18 provides:
(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent.
(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.
Logan J, on 26 February 2010, refused to grant to the applicant, Mr Hu, an extension of time to appeal from a decision of the Federal Magistrates Court. The question that the Notice of Motion of the respondents raises is whether, in so ordering, Logan J was competently exercising the appellate jurisdiction of the Court.
The submission on behalf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hu v Giles

Details

AGLC: Hu v Giles [2010] FCA 592
Case: [2010] FCA 592
Decision Date

CaseChat Overview and Summary

The case of Hu v Giles [2010] FCA 592 involved an appeal by Yuan Yuan Hu against Christine Giles and the Commonwealth Ombudsman. The central issue revolved around whether the refusal by Logan J to grant an extension of time for Hu to appeal a decision of the Federal Magistrates Court was a competent exercise of the appellate jurisdiction of the Court. Specifically, the case addressed whether the grant or refusal of an extension of time to institute an appeal is an exercise of appellate jurisdiction under section 25 of the Federal Court of Australia Act 1976 (Cth). The respondents argued that Logan J's refusal was a competent exercise of the appellate jurisdiction and that Hu's only recourse was an application for special leave to appeal to the High Court of Australia.

The court examined the relevant provisions of the Act and the Federal Court Rules, particularly section 25(2) and Order 52, rule 2AA, which governs the hearing and determination of applications related to appeals. It concluded that an application for an extension of time to institute an appeal could be heard and determined by a single judge, irrespective of whether the appellate jurisdiction was to be exercised by a Full Court or a single judge, as long as the Chief Justice deemed it appropriate. The court held that the refusal of an extension of time by Logan J was a competent exercise of the appellate jurisdiction, making Hu's appeal incompetent. Consequently, the court dismissed the appeal as incompetent, pursuant to Order 52, rule 18(1) of the Federal Court Rules.

The court further ordered that Hu pay the costs of the respondents for the motion filed on 17 March 2010, amended on 20 May 2010. This decision underscored the importance of correctly identifying the jurisdiction under which an application for an extension of time to institute an appeal is heard and the limited avenues available for further appeal or challenge once such a decision is made.

Orders