Rory Paul Dobson v Australian Postal Corporation

RORY PAUL DOBSON
v
AUSTRALIAN POSTAL CORPORATION
[2013] HCASL 140
B24/2013

On 25 October 2012, the applicant filed in the Federal Court of Australia an application for an extension of time within which to appeal a decision of the Federal Magistrates Court of Australia. On 11 April 2013, the Federal Court (Logan J) refused that application.
The applicant now seeks special leave to appeal from that decision. Section 33(4B) of the Federal Court of Australia Act 1976 (Cth) provides that "[a]n appeal must not be brought to the High Court from a judgment of the Court ... in the exercise of its appellate jurisdiction" in certain circumstances. One circumstance is where the judgment involves an application for an extension of time within which to appeal to the Court (s 25(2)).
It may be observed that an application for leave to appeal does not involve the exercise of appellate jurisdiction until leave is granted[1]. Since the applicant was not granted leave by Logan J to institute his appeal out of time, it follows that there was no appeal, and no exercise by the Federal Court of appellate jurisdiction. That notwithstanding, the general wording of s 33(4B) applies, such that an appeal from the decision of Logan J to this Court would be incompetent.
[1]Collins v The Queen (1975) 133 CLR 120 at 122; [1975] HCA 60; United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30]-[31]; [2001] HCA 61; see also SZNEV v Minister for Immigration and Citizenship & Anor [2009] HCASL 255.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
4 September 2013 P.A. Keane

CaseChat Overview and Summary

The applicant, Rory Paul Dobson, sought special leave to appeal a decision of the Federal Court of Australia, which had refused an application for an extension of time to appeal a decision of the Federal Magistrates Court of Australia. The application was made under section 33(4B) of the Federal Court of Australia Act 1976 (Cth), which restricts the circumstances under which an appeal may be brought to the High Court from a judgment of the Federal Court. Specifically, the applicant sought to challenge the Federal Court's refusal of leave to appeal out of time. The central legal issue before the court was whether the refusal of leave to appeal out of time constituted an exercise of the Federal Court's appellate jurisdiction, thereby rendering an appeal to the High Court incompetent under section 33(4B).

The High Court considered that an application for leave to appeal does not involve the exercise of appellate jurisdiction until leave is granted. As Logan J had refused the application for leave to appeal, there was no appeal and no exercise by the Federal Court of appellate jurisdiction. However, the court held that the general wording of section 33(4B) still applied, such that an appeal from the decision of Logan J to the High Court would be incompetent. This was because the application for leave to appeal was made in the context of an appeal to the Federal Court, which is within the scope of section 33(4B).

Consequently, the High Court dismissed the application for special leave to appeal. The reasoning of the court was based on the interpretation of section 33(4B) and the distinction between the application for leave to appeal and the actual exercise of appellate jurisdiction. The court found that the refusal of leave to appeal did not constitute an exercise of appellate jurisdiction, but nonetheless, the appeal to the High Court was still incompetent due to the general terms of section 33(4B). The High Court directed the Registrar to draw up, sign, and seal an order dismissing the application.

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