Mathews, Russell Gordon Haig v Telstra Corporation

[1997] FCA 368

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG 17 of 1997

B E T W E E N:

RUSSELL GORDON HAIG MATHEWS  Applicant
AND:
  TELSTRA CORPORATION LIMITED  Respondent

COURT:         NORTHROP, HILL AND WHITLAM JJ
PLACE:         BRISBANE
DATE: 24 APRIL 1997

REASONS FOR JUDGMENT

NORTHROP J:
           This is an application for leave to appeal from an interlocutory judgment of the Court, the application being made by Mr Mathews who appeared on his own behalf. The order against which the appeal is brought was made by the Court constituted by Drummond J on 28 May 1996. The order was that the proceeding then before the Court be transferred to the Magistrates Court. The present applicant apparently accepted that order and the matter was transferred to the Magistrates Court. Quite some time later, in about November of 1996, the applicant sought to have that matter transferred from the Magistrates Court to the District Court of Queensland. That application for removal was refused by the Magistrates Court. By an application for leave to appeal dated 8 February 1997 the applicant seeks leave to appeal from the order made on 28 May 1996.

Sub-section 24(1A) of the Federal Court of Australia Act 1976 provides that:

"(1A)An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal."

Order 52 r 10 of the Federal Court Rules contains provisions relating to the time within which leave to appeal is to be made. The application can be done at the time judgment is given or can be done shortly thereafter by application to another judge or to a Full Court. In the present case, the application is to a Full Court but was not made until some 8 months after the order had been made. There is no doubt the order is an interlocutory order. It has not finally disposed of the matter at issue between the parties.

There is just no evidence at all called by Mr Mathews to suggest any reason why leave should be granted. One allegation made is that Drummond J was biased in a technical sense of there being an apparent bias but that, of itself, cannot carry much weight here. Mr Mathews knew of that allegation in May 1996 but did nothing about it. He accepted the order. It was only after the Magistrates Court refused to transfer the proceedings to the District Court that the application to this court for leave to appeal was commenced.

There is no suggestion that the Magistrates Court does not have jurisdiction to
hear the matter. I see no reason at all why leave should be granted to bring this appeal out of time. I would refuse the application for leave to appeal.

HILL J:
           I agree.

WHITLAM J:
           I agree with Northrop J.

NORTHROP J:
           Accordingly, the order of the Court is that the application for leave to appeal is refused with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment respectively of their Honours Justice R M Northrop, Justice Hill and Justice Whitlam.

Associate to Justice R M Northrop:

Date: 13 May 1997