Rory Paul Dobson v Australian Postal Corporation

[2013] HCASL 140

RORY PAUL DOBSON
v
AUSTRALIAN POSTAL CORPORATION

[2013] HCASL 140
B24/2013

1. 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.

2. 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)).

3. 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.

4. 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