Pierce, William Grenville v Giles, Nuntiya

[1983] FCA 121

I N THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G77 of 1982
DISTRICT REGISTRY

GENERAL D I V I S I O N )

ON APPEAL FROM THE SUPREHE COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : I*JILLIAFI GRENVILLE PIERCE

Appel lan t

A?JD :	NUNTIYA GILES
__

Respondent

CORAM : S w e e n e y , Kelly & Neaves JJ.

- DATE : 25 March, 1 9 8 2 .

EX TEMPORE JUDGMENT

SWEENEY J .

U n d e r sect ion 8 of the A u s t r a l i a n C a p i t a l

T e r r i t o r y S u p r e m e Court Act 1 9 3 3 provision may be made

by R u l e s o f Court f o r t h e j u r i s d i c t i o n o f the c o u r t t o

be exercisable by the r eg i s t r a r i n such cases and subject

t o such c o n d i t i o n s as are s p e c i f i e d m c h e R u l e s of Cour t .

1.

Under sub-section ( 4 ) a person dissat isf ied with an order

made by the r eg i s t r a r i n the exe rc i se o f j u r i sd i c t ion so

conferred upon him may appeal as prescr ibed by Rules of

Court t o the cour t cons t i t u t ed by one judge.

Order 6 Rule 5 ( l ) ( f ) of those rules provides

tha t an appea l under sec t ion 8(4) sha l l be by way of

rehear ing de novo of the appl ica t ion . E r r . P ie rce , the

defendant in an action brought against him i n t h e Supreme

Court appealed t o a single judge pursuant to sect ion 8 ( 4 )

and Order 6 1 , Rule 5(1) ( f ) against an order for cos ts made

aga ins t him by t h e r e g i s t r a r .

H i s Honour he ld tha t t he r eg i s t r a r had no

j u r i s d i c t i o n t o make the order for cos ts and sa id : -

"The appeal i s therefore allowed and the

r e g i s t r a r ' s o r d e r f o r c o s t s i s s e t a s i d e . I

would l ike to save t ime and cos ts by making

the appropriate order for costs Eorthwith,

but the substance of the matter was dea l t wi th

so s l i gh t ly be fo re me t h a t I am obl iged to

adjourn the hear ing to a day t o be fixed for

further submissions. The question of the

costs of the appeal i s reserved."

By an order dated 29 October 1982 the following

orders were made: -

"1. The appeal be allowed and t h e r e g i s t r a r ' S

o r d e r f o r c o s t s be se t a s ide ;

2 . The hearing be adjourned forthwith €or

further submissions;

3 . The question of costs of the appeal be

reserved."

L .

I'

By not ice of appeal dated 5 November 1982

M r . P ie rce appea led to th i s cour t from the whole of the

judgment i n t h e Suprsmc Court and sought the orders that

a r e s e t o u t i n h i s n o t i c e of appeal . In my opin ion th i s

notice of appeal i s based upon a fundamental misconception

of the na ture of the proceedings before h is Honour and t h e

s t age which those proceedings had reached.

His Honour had embarked upon a rehearing de novo

of the appl ica t ion which had been made t o t h e r e g i s t r a r .

He had reached the s tage of holding that the regis t rar ' s

o rder for cos ts be set a s ide , no t on t h e merits, b u t f o r

lack of j u r i s d i c t i o n . He had adjourned the hearing before

him for fur ther submissions and reserved the quest ion of

t he cos t s of the appeal .

That appeal was par t heard before h is Honour

and upon i t s resumption, he would no doubt have considered

the mer i t s of the mat te r and decided, as he had complete

j u r i s d i c t i o n t o d o , what order he should make upon t h e

meri ts of the case.

Th i s cour t i n my opinion should not enter ta in

an appeal inst i tuted against his Honour 's order of 29

October 1982 but should dismiss i t , l eav ing h is Honour f r e e

t o complete h is hear ing . I would dismiss the appeal and

hear the par t ies on the quest ion of costs . Such a d ismissa l

would, of course, involve no f ind ing on the mer i t s .

Submissions by Counsel

SNXENEY 3 : The cour t h inks it appropr ia te to make

no o r d e r a s t o c o s t s . The order of the court i s t h a t t h e

appeal herein be dismissed.

. 4 .

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