Re Bryant; Ex parte Bryant v Commonwealth Bank of Australia
[1994] FCA 1062
•08 NOVEMBER 1994
THE COMMONWEALTH OF AUSTRALIA v. ROBERT JOHN MEWETT; MARK JOHN BRANDON AND
MICHAEL JOHN ROCK
No. NG376 of 1994
No. NG374 of 1994
No. NG375 of 1994
FED No. 1062/94
Number of pages - 3
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
FOSTER J
HEARING
SYDNEY
#DATE 8:11:1994
#ADD 30:5:1995
Counsel For The Applicant: Mr J. Mccarthy QC
With Mr B. Knox
Instructed By: Australian Government Solicitor
Counsel For The Respondent: Mr M. Brabazon
Instructed By: Messrs Taylor Szekely Kelso
ORDER
THE COURT ORDERS THAT:
1. Leave to appeal be granted to the applicant in respect of the judgment of 1 November 1994.
2. Pursuant to s 25(6) of the Federal Court of Australia Act 1976 and Order 29 rule 2(a) of the Federal Court Rules, the following question be reserved to the Full Court of the Federal Court for determination: "Whether s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is invalid in its application to these proceedings as pleaded by the applicant in paragraph 4 of the Reply to the Commonwealth's Defence paragraph 8?"
3. The question of costs of the appeal and of the Notice of Motion of 8 November 1994 be reserved for determination by the Full Court.
4. The applicant file the Notice of Appeal in relation to orders 1. and 3. within 21 days.
5. The parties have leave to approach the listing registrar for the listing of the appeal in this matter, before the Full Court, as a matter of expedition.
6. The parties have liberty to apply generally on short notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
FOSTER J I have before me three notices of motion in the matters of the Commonwealth of Australia against Robert John Mewett, Michael John Rock and Mark John Brandon. In respect of proceedings brought by these respondents as applicants, I have already considered, and given judgment in an application brought by the Commonwealth that the Statements of Claim be struck out on the basis that they are not maintainable because of the effect of s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
In my decision in those proceedings given on 1 November 1994 I declined to strike out those proceedings on the basis that there was an arguable case that such a strike out was unwarranted. The current Notices of Motion ask, in effect, that the point of law as to the effect of s 44 be isolated as a separate matter for a separate decision in the proceedings and also that leave to appeal be granted in respect of my judgment given on 1 November 1994.
The matter has been fully canvassed in discussion with counsel and I have come to a view as to the most appropriate procedure to be adopted. It is clear that the Commonwealth is desirous of obtaining a decision from an appellate court in Australia, as to the applicability of s 44(1), in circumstances where the relevant cause of action has become statute barred before the section came into operation. I have been told that a number of cases have been brought through the Commonwealth in state courts where this particular question has arisen. It is for that reason that the Commonwealth seeks an early decision on the point.
I have decided that it would merely add to delay if I were to revisit the decision I have given and in effect reconsider it on the basis that it is not a strike-out application but an application for decision of a separate point of law. I think that, in the circumstances, it would clearly be preferable for that matter to be decided by a Full Court of this Court without any further assistance from a first instance decision other than the judgment that I have already given.
In the circumstances I propose to grant leave to appeal in respect of a judgment given on 1 November 1994. I do so on the basis that the point involved is clearly one of public importance and obviously should receive the attention of a court sitting in its appellate jurisdiction. I also intend to refer to the decision of a Full Court of this Court pursuant to s 25(6) of the Federal Court of Australia Act 1976, the question raised in paragraph 1 of the Commonwealth's Notice of Motion.
Application has been made on behalf of the respondents, who are the applicants in the principal proceedings, that I either make an order that the Commonwealth pay the costs of the proceedings before the Full Court or that I make it a condition of the granting of leave that those costs be borne. I express the view that it would seem to be an appropriate case for the Commonwealth to bear the costs of having determined a point of public importance the resolution of which they seek fairly urgently.
I consider, however, that it is more appropriate that I reserve for the decision of the Full Court the question of whether the Commonwealth should bear the costs of the appellate proceedings in any event. As far as the costs of this application today are concerned, the order sought is that costs be reserved.
I grant leave to the parties to approach the Registrar with a view to getting the earliest possible hearing date.
I make the following orders:-
1. Leave to appeal be granted to the applicant in respect of the judgment of 1 November 1994.
2. Pursuant to s 25(6) of the Federal Court of Australia Act 1976 and Order 29 rule 2(a) of the Federal Court Rules, the following question be reserved to the Full Court of the Federal Court for determination:
"Whether s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is invalid in its application to these proceedings as pleaded by the applicant in paragraph 4 of the Reply to the Commonwealth's Defence paragraph 8?"
3. The question of costs of the appeal and of the Notice of Motion of 8 November 1994 be reserved for determination by the Full Court.
4. The applicant file the Notice of Appeal in relation to orders
1. and 3. within 21 days.
5. The parties have leave to approach the listing registrar for the listing of the appeal in this matter, before the Full Court, as a matter of expedition.
6. The parties have liberty to apply generally on short notice.
20
0
0