L. Grollo & Co. Pty Ltd v Hammond, Theo

[1977] FCA 31

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CATCWdGRDS

Federal Court of Australia - Jurisdiction -

Transitional provisions - Things done in proceedings in

AustraLian Industrial Court deemed to have been done i;l

Federal Cart - Whether right of appeal t3 Full Court

of Federal Court from single Judge of Industrial Court -

Appeal nut of time - Whether special leave to appeal or

order to vary time for appesl should be granted - Conslderatlons

when rnstter is interlocutory - Federal Court of Australia

(Consequentiai Provisions) Act 1976, S.&.

L. Grollo 5. Co. Fty. iinited v. The0 Hammond	& Grs.
VG No. 4(r of 1977

Before Bowen, C.J., Nimo and Keely JJ.

Melbourne 14th June, 1977

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY VG No. 44 of 1977

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GENERAL DIVISION )

CORAM: BOWEN C.J., NIMMO and KEELY JJ.

14 JUNE 1977

L. GROLLO 6 CO. PTY. LTD. v. THEO HAMMOND and IGOR OSIDACZ and THEO HAMMOND & PARTNERS and

THE ROYAL AUSTRALIAN INSTITUTE OR ARCHITECTS

JuM;MENT OF THE COURT

This is a motion by L. Grollo & Co. Pty. Ltd.,

the applicant, agalnst The0 H m o n d and Igor Osidacz and

The0 Hammond & Partners and The Royal Australian Instltute

of Architects, respondents, seeking an order for leave to

appeal out of time against the orders and directions of

Snlithers J. made and given on 1st November 1976 in the

Australian Industrlai Court.

The orders and directions of the 1st November 1976

were made and glven in proceedings comnenced in the Australian

Ifidustrial Courc by a writ wlth a statement or clalm

endorsed issued on 23id 3uly 1976. On 1st November 197G

Smithers J., in exercise of the powers conferred by Order 35 Rule 2

of the High Court Rules, rendered applicable by the Concillation

and Arbitratlcn R*?qClatlOnS, declc?ed t ha t c&rtain questlons

of law be tried before any questlon or issue ct fact was detemirs?d.

,

and he settled the folm of the questior,s and proceeded to give

h i s answers. The questions and answers are incorporated in his

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order of 1st November 1976.

The applicant took the view that the answers

were unfavourable to its case and applied to the H+gh Court

of Australia for leave or special leave to appeal by Its

notice of motion filed on 22nd November 1976. No right

of appeal lay to the Full Court of the Australian Industrial

Court. The motion to the High Court came on to be heard on

28th February 1977 and the application was refused.

On 7th December 1976, an amended statement of

claim was filed by the applicant. On 24th December 1976

the first, second and third respondents filed thelr statements

of defence and on 8th March 1977 the fourth respondent filed

its statement of defence. On 16th March 1977 the appllcant

filed its replies to the statements of defence.

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On 9th December 1976 the Federal Court of

Australia Act 1976 came into force. It provided that no	, I .
proceeding should be instituted in the Federal Court before

a day to be fixed by proclamation as the day on whlch the

Court should commence to exercise its Jurisdiction. (See

section 2 ( 2 ) ) .

On 18th January 1977 a proclamation was promulgated

fixing the 1st February 1977 as the day on which the Court should

commence to exerclse its jurisdictlon.

By the Federal Court of Australia (Consequential

Provlsions) Act 1976, transltional provisions were enacted providmg for the transfer of proceedings in certain clrcunstances

from the Australian Industrial Court to this Court. Thls

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transfer came into operatlon on 1st Februazy 1977.

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On 16th March 1977, the applicant Issued a nnnons in

this Court, seeking orders for the recall or negation or

variation of the order of 1st November 1976. This came before

Smithers J. sitting as Judge of this Court, on 23rd March

1977. A preliminary qusstion was argued before him as to whether

the matter was properly before him as a Judge of this Court.

All parties argued in favour of the vlew that it was

properly before him. Smlthers J. held that it was, but after

considering the matter on the merits, refused to make the orders

sought.

An appeal was brought to the Full Court of this

Court against the decision of 23rd March 1977. T ~ I S appeal

came on for hearing before the Full Court on 24th and

25th May 1977 and judgment was reserved. On the 25th May 1977,

just before the close of the hearing of that appeal, the present

motion was fiied, seeking leave to appeal against the order

of 1st November, 1976, and wlth all partles before the Court,

was heard forthwith. Counsel for the applicant undertook to

the Court that the affidavit in support of the application

would be filed not later than 3.30p.m. on Tuesday, 31st May 1977.

It was argued for the applicant that while no

appeal lay tc the Australian Industrial Court from the order

of 1st November 1976, nevertheless an appeal lay to this Court

by reason of the provision in section 24(l)(a) of the Federal

Court of Australia Act 1976 that an appeal lies from a judgment

of thIs Court constituted by a single Judge to the Full Court.

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At the time when the judgment of Smlthers J. was

given on 1st November 1976, this Court was not in exlstence,

so that the judgment and order from which the applicant now

sc2ks to appeal, was not in fact a judgment of this Court

constituted by a single Judge. The applicant seeks to overcome

thls difficulty by relying upon section 4 of the Federal

Court of Australia {Consequential Provisions) Act 1976. In

argument, the applicant placed partlcular reliance upon sectlon

4(2)(e). Perhaps the argumerkmay be summarised broadly as follows.

The proceedlngs in the action were transferred to this Court on

1st February 1977. The order of 1st November 1976 was a thing

"done in and in relation to the proceedings in the Australlan

Industrial Court". Accordingly, the order had to be treated as

an order made by a Judge of this Court and therefore an appeal

lay as a right to the Full Court of this Court.

A prelimlnary questlon arlses, as It did in the

appeal heard lnunediately before this motion was before the

Court, as to whether this Court has jurisdlctlon, on the ground

that the case was one where "the hearing of the Proceedings (in

the Australian Industrial Court) had not commenced". In our

reasons for Judgment given to-day In relation to the earlier

appeal, we have already expressed our view that

prior to 1st February 1977. the hearing of the proceedings I

had cormenced it? the Australlan Industrlal Ccurt withln the

meaning of section 4. It follows in our view that the proceedlngs

have not been transferred to this Court and the present motion

must fall.

Nevertheless, slnce the questions arlsing upon thls

motion have been argued, we conslder it to be appropriate

to express our views on the matters raised.

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When this Court started exercising ~urisdiction on

1st February 1977, there existed no rules placing a tune

limit upon appeals, although on one view of section 59(1) of the

Federal Court of Australia Act 1976, it might perhaps have been

argued that the High Court Rules imm diately became appllcable.

At all events, rules of this Court were promulgated on 18th

February 1977 which, by Order 6, expressly made Order 70

of the High Court Rules applicable in relation to appeals.

Order 70 rule 6 is as follows:

"(l) The notice of appeal shall be filed and served

in the manner prescribed by the last precedlng

rule -

(a) within twenty-one days after -

(i) the date when the judgment appealed

from was pronounced:

(ii) the date when leave or speclal leave to appeal was granted: or

(iii) any later date fixed for the purpose

by the Court appealed from: or

(b)

within such further time as is allowed by a Justlce upon appilcatlon made to hlm by

summons lssued wlthln the period of twenty-one

days referred to in the last precedlng

paragraph.

(2) Notwithstandlng Order 60, rule 6, the summons

mentioned in the last preceding sub-rule shall be

issued withln the perlod of twenty-one days flxed by speciai leave to appeal subject to any condltlons

that sub-rule, and, in the computatlon of that Ferlod,

the tune of the vacatlons shall be included but the

which appear just. "

What the applicant, by its motion, now seeks, is leave of ths Full Court to appeal. Perhaps thls should be treated as referrlng

to special leave of the F u l l Court under @rder 70 rule 6(2).

Assuming section 4(2)(e) of the Federal Court of Australia (Consequential Provlsions) Act 1976 applied to the order of

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1st November 1976, it is far from clear that in consequence

a right of appeal should be held to arise by virtue of the combined

operation of that section and section 24(1) of the Federal would begin to run.

One possible commencerr.ent date might be suggested

to be 1st November 1976: another the 1st February 1977: another

the 18th February 1977. It was argued for the applicant that

time for appeal ran from 23rd March 1977. The basis of this argument

this

was that/was the date of the judgment of Smithers J. who in

hearing another application then held that the proceedmgs

in the Australian Industrial Court had been transferred to

this Court. We do not think this argument 1s sound. If the L

proceedings were transferred, it was transferred by force of the

statute not by the decision of the Judge that the statute had

transferred it. The 23rd March 1977, therefore, cannot

logically be held to be the point at which time for appeal

began to run. Whatever date it might be, it was conceded for the

applicant that time for appeal had expired. If what the

applicant was seeking was special leave to appeal under

Order 70 rule 6, then in view of the High Court's decision

on the applicant's application for special leave to appeal to

that Court, it was clear that this Court was most unlikely to

grant special leave to appeal to this Court. However, the

applicant's argument, notwithstanding the wordlng of the notice

of motion, was put on the basis that section 24(1) of the Federal

Court of Australia Act qave an appeal as of right: that the

applicant wa3 out of time due to the failue of its legal

advisers to realise the effect of section 4 of the Federal

Court of Australia (Consequential Provisions) Act: that this

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Court had power over its own procedures (see Order 9 rule 2 of

the Court's Rules): and should grant an extenslon of time.

Considering this as an applicatlon for an extension

of time, when the time has already expired, the matter to be

considered is whether it would be lust, havlng regard to the

interests of the applicant and the respondents, to make an

order extending tlme. It is necessary to consider the whole

of the circumstances and whether any prejudlce to the other

party can be met by some approprlate order as to costs.

After the order of 1st November 1976, the applicant

applied to the High Court for leave or special leave and,

as has been recited, this was refused. There is before us a

transcript record of the argument before the High Court. The

Justices of the Hlgh Court who heard the appllcation appeared to

have two matters partlcularly In mind. First, the decision

of the matters involved in the order of 1st November l976 would

not determine the controversy between the parties, and secondly,

the order of 1st November 1976 was of n mterlocutory

character and that it was desirable to d termme the actual facts

and then bring an appeal to the Hlgh Court, if this should be

deslred in the light of the actual facts. In the particular

circumstances of this case, It has to be noted also that, even if

the argument of the applicant as to the effect of the sections is

correct, the respondents have been free of any risk of havlng

to answer an appeal either to the Australian Industrial Court

or to any Court other than the High Court, until 1st February

1977: that various steps have in the rncantlms been taken In

relation to pleadings, and that they have already been taken on

one avenue of appeal. It may be argued it would be unJust

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that they should now be required to take part in the

additional proceedings involved in an appeal to this Court,

when It would not determine the controversy between the

parties. Indeed, having regard to the whole matter, it

seems desirable that the actual facts should be determmed

and that there should not	be further proceedings revolving
around assumed facts.

It should also be borne in mind that when the

actual facts are determlned and ecision is given, since the

earlier order is interlocutory in character, the applicant

will be entitled to litigate all relevant matters upon an appeal

against the final order, should this become necessary and be

considered advlsable. In the result we are of opinion that the

motion should be dismissed with costs. The order of the Court

will be motion dismissed: order that the applicant pay the

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respondent's costs.