Tait v Harris - [2003] FCA 416

FEDERAL COURT OF AUSTRALIA
Tait v Harris [2003] FCA 416
PRACTICE AND PROCEDURE - application for leave to appeal an interlocutory judgment - whether applicant may elect to have application heard by a single judge or a Full Court - Federal Court of Australia Act 1976 (Cth) s 25(2)
Federal Court of Australia Act 1976 (Cth) ss 24, 25
Reid v Nairn (1985) 60 ALR 419 applied
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 applied
WILLIAM “BILLY” PETER TAIT v ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT)
Q47 OF 2003
COOPER J
BRISBANE
7 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q47 OF 2003

BETWEEN:

WILLIAM "BILLY" PETER TAIT
APPLICANT

AND:

ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT)
RESPONDENT

JUDGE:

JUSTICE COOPER

DATE OF ORDER:

7 MAY 2003

WHERE MADE:

BRISBANE

THE COURT DIRECTS THAT:
1.The application for leave to appeal be listed to be heard and determined by a Full Court of this Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q47 OF 2003

BETWEEN:

WILLIAM "BILLY" PETER TAIT
APPLICANT

AND:

ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT)
RESPONDENT

JUDGE:

JUSTICE COOPER

DATE:

7 MAY 2003

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 26 March 2003, the applicant, Mr Tait, applied for a stay of an order made in the Magistrates Court at Townsville on 5 February 2003. The stay was refused by Federal Magistrate Coker on 2 April 2003.
On 14 April 2003, Mr Tait filed an application in this Court for leave to appeal from the order of Federal Magistrate Coker refusing the stay. The application for leave to appeal was in Form 54 of the Federal Court Rules (“the FCR”) as required by O 52 r 4 of the FCR. That form makes no reference to the election which exists under s 25(2) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) to have the application for leave to appeal heard and determined by a single judge or a Full Court of this Court.
The District Registry endorsed the application in the place provided for a time and date of hearing as 9.30 am on 2 May 2003 and returned the service copies as endorsed to Mr Tait. The endorsement was for a directions hearing on that date, notwithstanding that this did not appear on the application form, and Mr Tait was advised accordingly.
On 15 April 2003, Mr Tait wrote to the Registrar of the Court electing to have his application for leave to appeal heard and determined by a Full Court. In support of his election, Mr Tait relied upon the decision of the Full Court in Reid v Nairn (1985) 60 ALR 419.
On 2 May 2003, the respondent to the application for leave to appeal, a Deputy Registrar of the High Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 416
Decision Date: 7 MAY 2003

CaseChat Overview and Summary

In the case of Tait v Harris, the applicant, William "Billy" Peter Tait, sought leave to appeal an interlocutory judgment made by Federal Magistrate Coker, which had refused a stay of an order made in the Magistrates Court at Townsville. The respondent was Elisa Harris, a Deputy Registrar of the High Court. The primary issue before the Federal Court of Australia was whether Mr Tait had the right to elect to have his application for leave to appeal heard and determined by a Full Court of the Federal Court, as opposed to a single judge. This issue was governed by section 25(2) of the Federal Court of Australia Act 1976 (Cth).

The court considered the relevant statutory provisions, specifically sections 24 and 25 of the Act. It also examined the precedent set by Reid v Nairn (1985) 60 ALR 419 and Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, both of which dealt with the interpretation of these sections. In Reid v Nairn, the Full Court held that a party could elect to have their application for leave to appeal heard by either a single judge or a Full Court, and this election had to be made before a judge was "seized" of the matter. The court in Thomas Borthwick & Sons endorsed this interpretation.

Justice Cooper concluded that Mr Tait had the right to make an election under section 25(2) of the Act, which he did in a letter dated 15 April 2003, electing to have his application heard by a Full Court. The Court found that the listing of the application for directions before a single judge did not constitute the judge being "seized" of the matter, and therefore, the election was valid. Consequently, the Court directed that Mr Tait's application for leave to appeal be listed to be heard and determined by a Full Court.

Orders