Lui v Secretary, Department of Education, Employment and Workplace Relations

[2012] FCA 216

FEDERAL COURT OF AUSTRALIA

Lui v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 216

Citation:		Lui v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 216
Appeal from:		Lui v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1482
Parties:		VILI LUI v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
File number:		NSD 83 of 2012
Judge:		PERRAM J
Date of judgment:		12 March 2012
Catchwords:		PRACTICE AND PROCEDURE – Appeals – whether leave to appeal required – whether judgment dismissing application for want of jurisdiction is interlocutory in nature
Legislation:		Federal Court of Australia Act 1977 (Cth)   s 24
Cases cited:		SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 followed
Date of hearing:	Heard on the papers
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 83 of 2012

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VILI LUI
Appellant

AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	12 MARCH 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 83 of 2012

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN: VILI LUI
Appellant

AND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent

JUDGE:	PERRAM J
DATE:	12 MARCH 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 13 December 2011 Nicholas J dismissed Mr Lui’s appeal to this Court in its original jurisdiction as incompetent on account of a lack of jurisdiction:  Lui v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1482. Thereafter, Mr Lui commenced proceedings in this Court’s appellate jurisdiction by the filing of a notice of appeal (dated 16 January 2012). Subsequently, the Secretary filed an application to dismiss the appeal as incompetent. Both Mr Lui and the Secretary were content for the Secretary’s application to be dealt with on the papers and the application has been dealt with in that manner.

2. Generally, an order dismissing proceedings for lack of jurisdiction is interlocutory in nature:  SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 418-419 [23] per French J, 429 [68] per Allsop J and 437 [114] per Tracey J. There may a controversy as to how that principle applies to cases where the determination that there is a want of jurisdiction itself rests on a finding of a jurisdictional fact. That controversy is not, however, pertinent in this case where no such suggestion arises.

3. It follows that the orders made by Nicholas J were interlocutory in nature. Section s 24(1) of the Federal Court of Australia Act 1977 (Cth) confers appellate jurisdiction on this Court from judgments exercising this Court’s original jurisdiction.  By s 24(1A), however, an appeal does not lie from a judgment of a judge exercising the original jurisdiction if the judgment or order is interlocutory.

4. Since the orders made by Nicholas J were interlocutory, this Court lacks jurisdiction to entertain Mr Lui’s appeal unless he first obtains a grant of leave to appeal.  Mr Lui submitted that ‘the judiciary has provided leave to appeal’ and that had been communicated to him by the Registry.  The Court’s file contains no record of a judge having granted leave.  That being so, he has not obtained such a grant.  In these matters, the Court’s file is definitive.  Accordingly, the appeal is incompetent and must be dismissed.  I will order that the appeal be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:        12 March 2012