Louis, R.M. v The Commonwealth of Australia

[1989] FCA 775

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	) NO. ACT G32 of 1989 1
DISTRICT REGISTRY	1 1
GENERAL DIVISION	1

BETWEEN :  ROSALINA MELENA LOUIS,
GRAHAM JAMES LOUIS
FERDINAND GRAHAM LOUIS

by his next friends
ROSALINA MELENA LOUIS and

GRAHAM JAMES LOUIS

MURRAY DANIEL LOUIS

bv his next friends

ROSALINA MELENA LOUIS and

GRAHAM JAMES LOUIS

Appellants

AND :  THE COMMONWEALTH OF AUSTRALIA

First Respondent

AND :  QANTAS AIRWAYS LIMITED

Second Respondent

CORAM:  MORLING, PINCUS and MILES JJ.

DATED: 13 NOVEMBER 1989

EX TEMPORE
REASONS FOR JUDGMENT

MORLING J: The Court has reached a conclusion on thls matter and we will give our reasons immediately.

REDISTRY

There is before the Court a notice of motion by Qantas Airways Limited ("Qantas") for an order that an appeal commenced on 20 June 1989 by the respondents to the motion be dismissed as incompetent. It will be ~~ ~

.

convenient to refer to the respondents to

"the Louis family".

FEDERAL COURT OF
AUSTRALIA
PRINCIPAL

As it will appear from what I shall say in a moment the Court has agreed to treat today's proceedings as the hearing of the appeal itself. We have taken this course with the consent of the parties. We think it is the sensible course to take in the special circumstances of this case.

The appeal commenced by the Louis family is against a decision of Neaves J given on 2 June 1989 refusing an application under Order 52, rule 15, subrule 2 of the Federal Court Rules for leave to file and serve a notice of appeal from a judgent of the Supreme Court of the Australian Capital Territory (Kelly J). That decislon was given on 29 May 1987 in a proceeding in that Court in which the Louis family were the plaintiffs and the Commonwealth of Australia and Qantas were respectively the first and second respondents.

Neaves J refused the application for leave to file and serve a notice of appeal. Order 52, rule 15,

subrule 1, requires that a notice of appeal be filed within 21 days after the date when the judgment appealed

notwithstanding anything in subrule 1, the Court or a	from was pronounced. Rule 15, subrule 2 provides that,	judge "for special reasons may at any time give leave to file and serve a notlce of appeal."
Neaves J was of the opinion that the material placed before him did not establish any special reason why the Court should overlook the long period of delay - two years - whlch had occurred between the date of the judgment of the Supreme Court of the Australian Capital Territory and the making of the application to him. He therefore refused the application.
On 20 June 1989 the Louis family flled a notice of appeal against the orders made by Neaves J. Qantas claims that the appeal from Neaves J is incompetent because, so it argues, there is no appeal from his decision. It relies upon s.25(2) of the Federal Court of Australia Act 1976, and the decision of a Full Court of this court in Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 79 ALR 171 particularly at pp.178-179.
In substance, Qantasr argument is that the Louis family had to elect to approach either a single judge of the Court or the Full Court when seeklng leave to file a notice of appeal. Qantas claims that, the Louis family having elected to apply to Neaves J and having failed in that application, they have no right of appeal to the ~ u l l
court.
As I indicated earller, we think the sensible course to take (and this has been agreed by the parties) 1s for the Court to look at the substance of the matters which are relied upon by the Louis family as justifying the view that Neaves J ' s decision was wrong. Having heard both Mr and Mrs Louis and having read the material which was before Neaves J, I am of the opinion that it has not been established that his Honour erred in his decision. Indeed, I think his decision was plainly correct.
I shall not refer to all the matters which Mr and Mrs Louis have urged upon us today as justifying the grant of leave to file their notice of appeal. Those matters include the fact that their family was under stress durlng the period following Kelly J's decision and that they each had considerable domestic responsibilities. Further, they especially rely upon the fact that they were engaged in protracted litigation in the High Court of Australia. They generally claim that the facts of this case are exceptional and make out sufficient reason for the exercise of the Court's power under rule 15, subrule 2.
Having considered all those matters, I do not think that any ground has been shown for setting aside Neaves J's decision. In these circumstances I find it unnecessary to rule upon the jurisdictional argument put by counsel for Qantas that there is, in any event, no
right of appeal to this Court from Neaves J's decision.

In my opinion the following orders should be

made :

(1) Dispense with the requirement to file an

appeal book.

(2) Order that the hearlng of the motion be

treated as the hearing of the appeal.

( 3 )	Appeal dismissed.
(4)	The respondents to the motion are to pay the costs of the motion and of the appeal.

MR LOUIS:	Could I say something, Mr Justice Morling?
MORLING J :	No. In a moment the other members of the Court will want to add something.
PINCUS J:	I agree.
MILES J:	I agree

MORLING J :  We make orders in the terms I have
proposed.

I certify that this and the five ( 5 ) preceding pages are a true copy of the Reasons for Judgment of his Honour PIr Justice Morling.

Associate: U/

Date :  13 U O V ~ ~ , 14gq

The appellants in person.

Counsel for flrst respondent: C.M. Erskine

instructed by:  Australian Government
Solicitor

counsel for second respondent: G. Richardson

instructed by:  Mallesons Stephen Jaques

Date of Hearlng:	13 November 1989
Date of Judgment:	13 November 1989