FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia (No 2) [2017] FCAFC 38

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicant, Peter Spencer, has appealed against a judgment of Mortimer J given on 24 July 2015. That appeal has been assigned to a Full Court consisting of Griffiths, Rangiah and Perry JJ and has been set down for hearing over three days commencing later today.

2    In the course of the appeal, the first respondent, the Commonwealth of Australia, filed an interlocutory application to set aside a notice to produce documents issued by Mr Spencer. A second interlocutory application was filed by Mr Spencer seeking leave under r 36.57 of the Federal Court Rules 2011 (Cth) to adduce further evidence in the appeal, that evidence being the documents sought under the notice to produce.

3    On 9 February 2017, Griffiths J heard and decided both interlocutory applications. His Honour upheld the Commonwealth’s application and set aside the applicant’s notice to produce. His Honour dismissed Mr Spencer’s application to adduce further evidence on the basis that the notice to produce was intended to provide the evidence to be adduced in the appeal.

4    The applicant now seeks leave to appeal against the interlocutory judgments given by Griffiths J. The applicant’s draft notice of appeal contains the following grounds:

1.     The primary judge erred in exercising powers of the Full Court to which the appeal had been assigned, and made orders without authority under Federal Court of Australia Act 1976 sections 24, 25, 27 and 28 and the Federal Court Rules 2011.

2.     The primary judge in error exercised the appellate power of the Full Court under section 27.

3.     The primary judge's exercise of discretion miscarried in that his Honour mistook facts namely that no explanation was given by the Applicant/Appellant for delay in issuing the notice to produce to the First Respondent dated 19 December 2017 and/or erred in law in holding that there was no legitimate forensic purpose and no relevance of the material sought by the notice to produce.

4.     The primary judge erred in holding that the notice to produce was oppressive.

5    The first two of the applicant’s grounds assert that Griffiths J erroneously exercised or purported to exercise the appellate jurisdiction of the Court under ss 24, 25, 27 and 28 of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).

6    Division 2 of Part III of the FCA Act is headed “Appellate and related jurisdiction (civil proceedings).” That division consists of ss 23P to 30. Section 23P states that Div 2 applies to the Court’s appellate jurisdiction in relation to civil matters.

7    The appellate jurisdiction of the Court is conferred under s 24(1) of the FCA Act. Section 24(1)(a) gives the Court jurisdiction to “hear and determine…appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court”. This is the only provision conferring appellate jurisdiction on the Court in respect of a judgment of a single judge of the Court. It is under this provision that the Court has jurisdiction to hear and determine the applicant’s appeal against the judgment of Mortimer J.

8    The application for leave to appeal relies on s 24(1A) which provides that an appeal shall not be brought from “a judgment referred to in s 24(1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal”.

9    The interlocutory applications were brought in the course of the appeal against Mortimer J’s judgment. It appears that no submission was made before Griffiths J that a single judge lacked the power to determine the interlocutory applications. Accordingly, his Honour’s reasons did not expressly state the provision under which he proceeded. However, it is apparent that his Honour must have relied on ss 25(2B) and (2BB) of the FCA Act.

10    Section 25 of the FCA Act has the heading “Exercise of appellate jurisdiction”. Section 25(1) provides that:

(1)    The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

11    Section 25(2) states that certain applications must be heard and determined by a single judge, subject to two exceptions. Section 25(2B) then sets out other powers of the Court which may be exercised by a single judge as follows:

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

(a)    join or remove a party to an appeal to the Court; or

(aa)    give summary judgment; or

(ab)    make an interlocutory order pending, or after, the determination of an appeal to the Court; or

(b)    make an order by consent disposing of an appeal to the Court (including an order for costs); or

(ba)    make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb)    make an order that an appeal to the Court be dismissed for:

(i)    failure to comply with a direction of the Court; or

(ii)    failure of the appellant to attend a hearing relating to the appeal; or

(bc)    vary or set aside an order under paragraph (ab), (ba) or (bb); or

(bd)    give directions under subsection 37P(2); or

(c)    give other directions about the conduct of an appeal to the Court, including directions about:

(i)    the use of written submissions; and

(ii)    limiting the time for oral argument.

12    Section 25(2BB) then provides:

(2BB)    An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless:

(a)    a Judge directs that the application be heard and determined by a Full Court; or

(b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

13    Section 25 of the FCA Act deals with how the Court is to be constituted when exercising its appellate jurisdiction, including the circumstances in which the appellate jurisdiction must or may be exercised by a single judge. In Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431, the Full Court held that a single judge hearing and determining an application for leave to appeal under the power conferred by s 25(2) is exercising the appellate jurisdiction of the Court: see also Hu v Giles [2010] FCA 592 at [19]. Similarly, the exercise of a power mentioned in s 25(2B) of the FCA Act by a single judge is within the appellate jurisdiction of the Court.

14    The applicant argued that the Court has jurisdiction to entertain the application for leave to appeal because Griffiths J in fact had no power to give the interlocutory judgments and, accordingly, the judgments are void and of no legal effect. However, a judgment of the Federal Court has force and effect unless and until it is set aside: Re Macks; Ex parte Saint (2000) 204 CLR 158 at [18]-[20]; Cameron v Cole (1944) 68 CLR 571 at 590. The applicant’s argument is misconceived at a number of levels including that it does not address the basis upon which the Full Court would then acquire appellate jurisdiction under s 24(1)(a) of the FCA Act.

15    When Griffiths J heard and determined the interlocutory applications, his Honour exercised or purported to exercise the appellate jurisdiction of the Court under ss 25(2B) and (2BB) of the FCA Act. Even if, as the draft grounds of appeal assert, his Honour instead or additionally purported to exercise other powers under ss 24, 27 and 28, those provisions are within Div 2 and his Honour purported to exercise the appellate jurisdiction of the Court. Neither the FCA Act nor any other Act confer jurisdiction on the Court to hear and determine any appeal from the judgment of a single judge of the Court exercising the appellate jurisdiction of the Court.

16    Sections 24(1)(a) and (1A) of the FCA Act apply only to a judgment of a single judge exercising the original jurisdiction of the Court. It is apparent that in hearing and deciding the interlocutory applications, Griffiths J did not exercise or purport to exercise original jurisdiction. Therefore, a Full Court would have no jurisdiction to hear and determine any appeal from his Honour’s interlocutory judgments.

17    The application for leave to appeal must be refused and be dismissed with costs.

Associate:     

Dated:    6 March 2017