FEDERAL COURT OF AUSTRALIA
Quach v RU [2024] FCAFC 32
Appeal from: Application for an extension of time to appeal from Quach v RU (No 2) [2020] FCA 957 File number(s): ACD 36 of 2020 Judgment of: PERRY, MEAGHER AND SHARIFF JJ Date of judgment: 12 March 2024 Catchwords: PRACTICE AND PROCEDURE – where respondent in proceeding below raised Constitutional issue as to whether there was a justiciable “matter” for the purposes of Chapter III of the Constitution – notice in accordance with s 78B of the Judiciary Act 1903 (Cth) issued in proceeding below but not on appeal – submission that there was live controversy between the parties with respect to the subject matter of the alleged dispute was untenable – present application does not involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B
PRACTICE AND PROCEDURE – whether primary judgment dismissing the application on the basis the Court does not have jurisdiction was interlocutory or final –judgment final in nature and leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) therefore not required
PRACTICE AND PROCEDURE – application for an extension of time – where any appeal would have insufficient prospects of success – application dismissed with costs
Legislation: Constitution Chapter III
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Judiciary Act 1903 (Cth) s 78B
Service and Execution of Process Act 1992 (Cth) ss 30–32
Federal Court Rules 2011 (Cth) r 36.03
Domestic Violence and Protection Orders Act 2008 (ACT)
Cases cited: Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443
Bechara v Bates [2018] FCA 460
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344
In Re Judiciary Act 1903-1920 (1921) 29 CLR 257
Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573
Lavender v Commonwealth of Australia [2022] FCA 314
Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8
Quach v RU (No 1) [2017] ACTSC 233
Quach v RU (No 2) [2017] ACTSC 234
Quach v RU (No 2) [2020] FCA 957
Re Culleton [2017] HCA 3; (2017) 340 ALR 550
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of last submission/s: 21 February 2024 Date of hearing: 29 February 2024 Counsel for the Applicant: The Applicant was self-represented. Counsel for the Respondent: Mr David Birch Solicitor for the Respondent: NSW Crown Solicitor’s Office ORDERS
ACD 36 of 2020 BETWEEN: MICHAEL VAN THANH QUACH
Applicant
AND: RU
Respondent
ORDER MADE…
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- AGLC
- Quach v RU [2024] FCAFC 32
- Case
- [2024] FCAFC 32
- Decision Date
CaseChat Overview and Summary
The court found that the primary judgment was final in nature, thus leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) was not required. The court also determined that any appeal would have insufficient prospects of success. Furthermore, the argument that there was a live controversy between the parties with respect to the subject matter of the alleged dispute was untenable, and thus the appeal did not involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B. The court considered the reasons for the dismissal of the application for leave to appeal and the extension of time, and concluded that the application should be dismissed with costs.
The court dismissed the application for an extension of time with costs. The applicant was ordered to pay the respondent’s costs as agreed or taxed, in accordance with Rule 39.32 of the Federal Court Rules 2011. This ruling emphasised the importance of timely appeals and the necessity for applicants to demonstrate that their appeals have sufficient merit to warrant an extension of time and leave to appeal.
Orders
Orders of the court
1. The application for an extension of time within which to appeal is refused.
2. The applicant is to pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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