Federal Court of Australia

Praljak v Office of the Australian Information Commissioner [2025] FCAFC 126

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The applicant pays the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 20 December 2024, a judge of the Court dismissed an application brought by Mr Praljak to extend the time for him to file an originating application for judicial review of a decision of the Office of the Australian Information Commissioner said to have been made on 19 July 2019: Praljak v Office of the Australian Information Commissioner [2024] FCA 1487. The primary judge refused the application on the basis that there was no adequate explanation for the delay and that the proposed proceeding, if commenced, would be struck out as an abuse of process: J[14] and [15].

2    Mr Praljak seeks leave to appeal from the orders made by the primary judge.

3    Mr Praljak was referred for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). Mr Bruckner and Mr Arnold of counsel represented Mr Praljak on a pro bono basis. The Court is indebted to them for their detailed and helpful submissions. The Court is also indebted to Ms Nambiar, counsel for the Commissioner, for her clear and succinct submissions, confined to the question of whether the proposed appeal would be competent. The second respondent took no active part in the proceedings.

4    In refusing Mr Praljak’s application to extend time, the primary judge was exercising the Court’s original jurisdiction under s 20(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

5    Except as otherwise provided by the FCA Act or any other Act, the original jurisdiction of the court is exercised by “a single Judge”: s 20(1). There are two situations where the original jurisdiction of the Court will be exercised by “a Full Court”. They are: (i) when the Chief Justice considers a matter in original jurisdiction to be “of sufficient importance” for the jurisdiction of the Court, or a part of it, to be exercised by a Full Court and so directs: s 20(1A); and (ii) when the application in the original jurisdiction of the Court comes from a tribunal or authority while constituted by, or by members who include, a person who is a Judge of the Court: s 20(2).

6    Section 20(1), (1A) and (2) state:

(1)    Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.

(1A)    If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

…

(2)    The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court.

7    Section 20(1A) and (2) are expressly subject to s 20(3) and (5): s 20(2A). Of particular relevance to the present case, where the original jurisdiction of the Court is to be exercised by a Full Court (because either s 20(1A) or s 20(2) applies), certain applications in the proceeding are generally to be heard and determined by a single Judge. Sections 20(2A) and (3) provide:

(2A)    Subsections (1A) and (2) have effect subject to subsections (3) and (5).

(3)    Applications:

(a)    for leave or special leave to institute proceedings in the Court; or

(b)    for an extension of time within which to institute proceedings in the Court; or

(c)    for leave to amend the grounds of an application or appeal to the Court; or

(d)    to stay a decision of the tribunal or authority mentioned in subsection (2);

must be heard and determined by a single Judge unless:

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

(f)    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.

8    An appeal is not a procedure known to the common law. It is always a “creature of statute”: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124 at [2] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); O’Bryan v Lindholm [2024] VSCA 130; 74 VR 496 at [48] and [49] (Kennedy, Walker and Macaulay JJA).

9    Subject to the terms of the FCA Act and any other Act, s 24(1)(a) of the FCA Act furnishes a statutory right to appeal from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court:

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; …

10    Section 24(1)(d) and (e) provide a statutory right of appeal from certain judgments of the Federal Circuit and Family Court of Australia (Division 2).

11    The statutory right of appeal contains limits. Of particular relevance to this matter, s 24(1AA)(a) provides that an appeal must not be brought from a judgment the subject of s 24(1)(a), (d) or (e) if the judgment is of particular identified kinds. Section 24(1AA) provides:

(1AA)    An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is:

(a)    a determination of an application of the kind mentioned in subsection 20(3); or

(b)    a decision to do, or not to do, any of the following:

(i)    join or remove a party;

(ii)    adjourn or expedite a hearing;

(iii)    vacate a hearing date.

12    The central question at issue as to the competence of Mr Praljak’s application is whether Mr Praljak has a statutory right of appeal in circumstances where the judgment in respect of which he seeks leave to appeal was a refusal of an application to extend time to institute judicial review proceedings. The question is whether the combined operation of s 24(1AA)(a) and s 20(3)(b) is such that Mr Praljak has no statutory right of appeal.

13    In Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [17], the Full Court (Keane CJ, Gilmour and Logan JJ) held that “s 24(1AA) is concerned to preclude appeals from orders made by a single judge in matters in which the original jurisdiction of the Court is to be exercised by a Full Court by reason of s 20(1A) or s 20(2) of the Federal Court Act”. If Cement Australia is correct, then Mr Praljak’s proposed appeal would be competent provided leave to appeal were granted. Leave would be necessary because the primary judge’s judgment was an interlocutory judgment and the statutory right of appeal from an interlocutory judgment is (subject to s 24(1C)) only by leave: s 24(1A).

14    In reaching its conclusion in Cement Australia, the Full Court overruled the decision of Nicholas J in Dye v Commonwealth Securities Ltd (No 2) [2010] FCA 817.

15    Without having been referred to the Full Court’s decision in Cement Australia, a number of judges have reached conclusions incompatible with the reasoning in Cement Australia. These include: Rana v Google Inc [2017] FCA 542 at [21] (White J); Tran v Singh [2019] FCA 70 at [36] (Thawley J); WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [4] (Colvin J); FEZ17 v Minister for Home Affairs [2018] FCA 1689 at [7] (Thawley J); Sandilands v Registrar Parkyn [2025] FCA 358 at [10] (Wigney J); Taylor v Minister of Immigration and Multicultural Affairs [2025] FCA 517 at [30] (Stellios J).

16    Judges aware of the decision in Cement Australia have followed it as they were bound to do, albeit with varying degrees of conviction about its correctness: Mulholland v Australian Electoral Commission [2014] FCA 916 at [42]–[45] (Mortimer J); Scott Russell Constructions Pty Ltd (in liq) v Queensland Building and Construction Commission [2020] FCA 26 at [3]–[5] (Reeves J); Rindeklev v Comcare [2025] FCA 291 at [12] (Feutrill J).

17    Respectfully, for the reasons given below, Cement Australia was incorrectly decided and should not be followed.

THE REASONING IN CEMENT AUSTRALIA

18    The reasoning of the Full Court in Cement Australia was brief. The core of the reasoning is contained at [17]:

Reference to the text of s 20 of the Federal Court Act set out above, and, in particular, to s 20(2A), shows that s 20(3) is concerned only with cases involving the occasions of the exercise of the original jurisdiction of the Federal Court for which provision is made by s 20(1A) and s 20(2). Section 20(3) does not speak, at all, to cases involving the exercise of the original jurisdiction of the Court by a single judge of the Court pursuant to s 20(1) of the Federal Court Act. It can, therefore, be seen that s 24(1AA) is concerned to preclude appeals from orders made by a single judge in matters in which the original jurisdiction of the Court is to be exercised by a Full Court by reason of s 20(1A) or s 20(2) of the Federal Court Act.

19    The Full Court stated at [18] that this understanding of the operation of s 24(1AA) was confirmed by the Explanatory Memorandum which accompanied the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), which introduced s 24(1AA):

This understanding of the operation of s 24(1AA) is confirmed by reference to the Explanatory Memorandum which accompanied the bill for the amendments. Section 24(1AA) was introduced into the Act by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009. The Explanatory Memorandum to the Bill states, relevantly:

[80]    … new subsection 24(1AA) provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.

[81]    These interlocutory matters involve minor procedural decisions for which there should be no avenue of appeal. The removal of the right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by appeals from these decisions.

20    For the reasons given below, it should be accepted, as the Full Court in Cement Australia held, that s 20(3) of the FCA Act is directed to situations in which the original jurisdiction of the “matter coming before the Court” is being exercised by a Full Court because either the Chief Justice has exercised the power in s 20(1A) or because the circumstances provided for in s 20(2) exist. However, it should not be accepted that s 24(1AA) only “preclude[s] appeals from orders made by a single judge in matters in which the original jurisdiction of the Court is to be exercised by a Full Court by reason of s 20(1A) or s 20(2) of the Federal Court Act”: cf Cement Australia at [17].

THE CORRECT CONSTRUCTION OF SECTION 24(1AA)(a)

21    The task of construing s 24(1AA)(a) begins and ends with the text itself: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The text must be read in its context, which includes legislative history and extrinsic materials: Consolidated Media at [39]. However, legislative history and extrinsic materials cannot displace the meaning of the statutory text; those materials only have utility if and in so far as they assist in fixing the meaning of the statutory text: Consolidated Media at [39]; Forestry Corporation of New South Wales v South East Forest Rescue Inc [2025] HCA 15; 99 ALJR 794 at [39].

22    Section 24(1AA)(a) precludes appeals from “a determination of an application of the kind mentioned” in s 20(3). The text focuses on the kind of application which was determined. Section 24(1AA)(a) does not expressly require, before it operates to prevent an appeal being brought, that the application of a kind in s 20(3) be made in a proceeding where the original jurisdiction was to be exercised by a Full Court. It is difficult to see this arising by implication from the statutory context. Nor is it suggested by the legislative history or extrinsic material.

Section 20 of the FCA Act

23    Section 20 is contained in Div 1 of Pt III of the FCA Act. Division 1 addresses the Court’s general original jurisdiction. Since its enactment, s 20 has specified the circumstances in which original jurisdiction is to be exercised by a single Judge or by a Full Court. As originally enacted in 1976, s 20 was much shorter and did not include s 20(3). It provided that the original jurisdiction of the Court was to be exercised by a single Judge, save in industrial matters and appeals from tribunals or authorities of which a Judge was a member:

(1)    Except as otherwise provided by this Act or any other Act—

(a)    the original jurisdiction of the Court in the Industrial Division shall be exercised by a Full Court; and

(b)    the original jurisdiction of the Court in the General Division shall be exercised by a single Judge.

(2)    The jurisdiction of the Court in a matter coming before the Court from the tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court.

24    On 24 June 1986, the Statute Law (Miscellaneous Provisions) Act (No 1) 1986 (Cth) introduced a new s 20(1A) providing for the Chief Judge (after further amendment, the Chief Justice) to direct that the original jurisdiction of the Court be exercised by a Full Court in a matter of “sufficient importance”.

25    The Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) introduced s 20(3) to (6). The most relevant for present purposes are s 20(3) and (5), which provided:

(3)    If the matter coming before the Court as mentioned in subsection (2) is an application:

(a)    for leave or special leave to institute proceedings in the Court; or

(b)    for an extension of time within which to institute proceedings in the Court; or

(c)    for leave to amend the grounds of an application or appeal to the Court; or

(d)    to stay a decision of the tribunal or authority mentioned in subsection (2);

the matter may be heard and determined by a single Judge or by a Full Court.

…

(5)    In a matter coming before the Court as mentioned in subsection (2), a single Judge or a Full Court may:

(a)    join or remove a party; or

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

(c)    make an order that the matter be dismissed for want of prosecution; or

(d)    make an order that the matter be dismissed for failure to comply with a direction of the Court; or

(e)    give directions about the conduct of the matter, including directions about:

(i)    the use of written submissions; and

(ii)    limiting the time for oral argument.

26    Section 20(3) and (5) were expressly confined in their operation to situations in which the original jurisdiction of the Court was being exercised by a Full Court by reason of s 20(2).

27    The Access to Justice Act 2009 amended s 20(3) and s 20(5) into the form currently reflected in the FCA Act. Section 20(2A) was also introduced. It stated:

Subsections (1A) and (2) have effect subject to subsections (3) and (5).

28    The Explanatory Memorandum to the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) explained the purpose of introducing s 20(2A) in the following way:

Item 2 - After subsection 20(2)

50.     This item inserts new subsection 20(2A) to provide that a decision about any of the interlocutory matters set out in subsections 20(3) and 20(5) applies in relation to any matter in the Court’s original jurisdiction that is to be determined by a Full Court, not just the matters coming before the Court pursuant to subsection 20(2).

51.     This change enables the Court to decide if one of the interlocutory matters under subsections 20(3) or 20(5) would be more appropriately dealt with by a single Judge, rather than convening a Full Court for a minor procedural matter.

52.     This provision addresses an issue that arose in Defence Force Retirement and Death Benefits Authority v Lokan (QUD 288 of 2007). In this case, the Chief Justice had determined the matter should be heard by a Full Court, so only a Full Court could make the consent orders sought by the parties. Convening a Full Court in such circumstances is an unnecessary burden on the resources of the Court.

29    The Explanatory Memorandum explained the changes to s 20(3) in a way which indicates it was intended to apply in relation to matters where the original jurisdiction was being exercised by a Full Court:

Item 3 - Subsection 20(3)

53.     In relation to an appeal from an authority or tribunal under subsection 20(2), subsection 20(3) allows a single Judge or Full Court to hear and determine an application:

•    for leave or special leave to institute proceedings; or

•    for an extension of time to institute proceedings; or

•    for leave to amend the grounds of an application or appeal; or

•    to stay a decision of a tribunal or authority.

54.     Item 3 removes the reference to subsection 20(2) so that subsection 20(3) applies to all matters coming before the Full Court in the Court’s original jurisdiction, not just those matters mentioned in subsection 20(2). This item operates in conjunction with item 2 [namely, new s 20(2A)].

Item 4 - Subsection 20(3)

55.     Item 4 removes any suggestion from subsection 20(3) that a party has a choice about whether an application for an order is to be heard by either a single Judge or a Full Court. The power to choose how the Court is constituted should lie with the Court to ensure that cases are managed appropriately and efficiently.

56.     Confusion about who has the power to choose how the Court is constituted arose from consideration of a similar provision (subsection 25(2)) in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR [424]. This case suggested that it is the parties who choose whether their matter is heard by a single Judge or a Full Court.

57.     Similar amendments are also being made to subsections 20(5), 25(2), 25(2B), 25(5) and 26(2) by items 10, 18, 23, 25 and 28, respectively.

30    Returning to the text of s 20(3), it is tolerably clear that s 20(3) is confined in its operation to situations in which the original jurisdiction of the Court in the relevant matter is being exercised by a Full Court. As mentioned, s 20(1A) empowers the Chief Justice to direct that the Court’s original jurisdiction be exercised by a Full Court if the Chief Justice considers the matter to be of “sufficient importance”. In this context, it is unlikely that s 20(3) was intended to empower a single Judge exercising original jurisdiction in a matter which was not to be addressed by a Full Court by reason of either s 20(1A) or s 20(2) to direct, pursuant to s 20(3)(e), that an interlocutory application of the kind referred to in s 20(3) be heard and determined by a Full Court.

31    Beginning and ending with the text of s 20(3), read in context, leads to a construction of that section consistent with the conclusion of the Full Court in Cement Australia at [17].

Section 24 of the FCA Act

32    Section 24 is contained in Div 2 of Pt III of the FCA Act. Division 2 addresses “appellate and related jurisdiction” in civil proceedings. Its core function is to confer a statutory right of appeal in respect of certain judgments. When s 24 was initially enacted, it did not contain limitations in relation to appeals of a kind which are now found in s 24. Section 24(1) provided:

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine—

(a)    appeals from judgments of the Court constituted by a single Judge;

(b)    appeals from judgments of the Supreme Court of a Territory; and

(c)     in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.

33    Section 24 did not, for example, include any limitation on the right to appeal from interlocutory decisions. Section 4 of the FCA Act defined a “judgment” in terms which included interlocutory judgments.

34    The first significant limitation on the statutory right of appeal otherwise conferred by s 24(1) started on 22 July 1984 – see: ss 2(1), 5(6)) of the Statute Law (Miscellaneous Provisions) Act (No 1) 1984 (Cth). A new s 24(1A) was introduced. It provided that leave would need to be obtained to appeal interlocutory judgments:

(1A)    An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

35    This amendment was presumably intended to reduce delays in the final determination of matters coming before the Court and to prevent the allocation of too many resources to the determination of appeals from interlocutory judgments.

36    Further limitations were introduced into s 24 on 1 January 2010 by the Access to Justice Act 2009: s 2(1) Table Item 2. It inserted ss (1AA) and (1B) to (1E):

(1AA)    An appeal must not be brought from a judgment referred to in paragraph (1)(a) if the judgment is:

(a)    a determination of an application of the kind mentioned in subsection 20(3); or

(b)    a decision to join or remove a party, or not to join or remove a party; or

(d)    a decision to adjourn or expedite a hearing or to vacate a hearing date.

…

(1B)    Subsection (1A) is subject to subsection (1C).

(1C)    Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment:

(a)    affecting the liberty of an individual; or

(b)    in proceedings relating to contempt of the Court or any other court.

(1D)    The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C):

(a)    a judgment by consent;

(b)    a decision granting or refusing summary judgment under section 31A.

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

37    As the title of the Act indicates, these amendments were part of a suite of “Civil Litigation Reforms”. The Explanatory Memorandum to the Access to Justice Bill 2009 recorded in the General Outline that the Bill amended the FCA Act to “ensure more efficient civil litigation”: at 3. It stated that the following considerations were at the forefront: “focusing the Court, parties and their lawyers’ attention on resolving disputes as quickly and cheaply as possible”, “reducing the costs of litigation”, “allocating resources in proportion to the complexity of the issues in dispute”, “avoiding unnecessary delay”, and managing “judicial and administrative resources as efficiently as possible”: at 3.

38    Under the heading “Exercise of the jurisdiction of the Federal Court and appeals”, the Explanatory Memorandum stated that the Bill was intended to “provide for more streamlined appeals pathways to reduce confusion for litigants and aid the Court in the efficient management of its resources”: at 4 [9]. This was explained to be “part of the Government’s wider agenda to achieve the just resolution of disputes in the Federal Court as quickly, inexpensively and efficiently as possible”: at 4 [10].

39    As to s 24(1AA) specifically, the Explanatory Memorandum stated that s 24(1AA) “provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction”, which it later described as “minor procedural decisions for which there should be no avenue of appeal”: at [80]–[81]. The removal of the right to appeal for those “types of matters” was said to “ensure the efficient administration of justice by reducing delays caused by appeals”:

80.    As a result of item 12, only judgments of a single Judge exercising original jurisdiction can be appealed to the Full Court. However, new subsection 24(1AA) provides that there is no appeal to the Full Court from a number of specified interlocutory decisions of a single Judge exercising original jurisdiction.

81.    These interlocutory matters involve minor procedural decisions for which there should be no avenue of appeal. The removal of the right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by appeals from these decisions.

82.    New subsection 24(1AA) provides that there will be no appeal avenue in relation to the following minor interlocutory decisions:

•    all decisions under subsection 20(3) (ie for leave or special leave to institute proceedings in the Court, for an extension of time within which to institute proceedings in the Court, for leave to amend the grounds of an application or appeal to the Court, or to stay a decision of the tribunal or authority); or

•    to join or remove a party; or

•    decisions about security for the payment of costs in relation to a proceeding under s 56; or

•    decisions to adjourn a hearing, to vacate a hearing date or expedite a hearing.

40    None of the explanatory material suggests that a distinction was drawn between (i) procedural decisions of single Judges in general; and (ii) procedural decisions in cases in which the matter would be finally determined by a Full Court.

Section 33 of the FCA Act

41    As has been mentioned, amongst other things, s 24 of the FCA Act provides (subject to its limits) a right of appeal from certain judgments of single Judges of the Court exercising the Court’s original jurisdiction and from certain judgments of the Federal Circuit and Family Court.

42    The FCA Act also provides, subject to limitations including a grant of special leave to appeal, an avenue of appeal to the High Court. Section 33 of the FCA Act contains the following limitation:

(4A)     An appeal must not be brought to the High Court from a judgment of a Full Court of the Court exercising the original jurisdiction of the Court if the judgment is:

(a)     a determination of an application of the kind mentioned in subsection 20(3); or

(b)     a decision to do, or not to do, any of the following:

(i)     join or remove a party;

(ii)     adjourn or expedite a hearing;

(iii)     vacate a hearing date.

(4B)     An appeal must not be brought to the High Court from a judgment of the Court (whether constituted by a Full Court or a single Judge) in the exercise of its appellate jurisdiction if the judgment is:

(a)     a determination of an application of the kind mentioned in subsection 25(2); or

(c)     an order under section 29; or

(d)     a decision to do, or not to do, any of the following:

(i)     join or remove a party;

(ii)     grant leave to defend a proceeding;

(iii)     reinstate an appeal that was taken to have been abandoned or dismissed;

(iv)     extend the time for making an application for leave to appeal;

(v)     adjourn or expedite a hearing;

(vi)     vacate a hearing date.

43    Section 25(2) of the FCA Act provides:

25     Exercise of appellate jurisdiction

…

(2)     Applications:

(a)     for leave or special leave to appeal to the Court; or

(b)     for an extension of time within which to institute an appeal to the Court; or

(c)     for leave to amend the grounds of an appeal to the Court; or

(d)     to stay an order of a Full Court;

must be heard and determined by a single Judge unless:

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

(f)     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.

44    In Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421, the High Court held that s 33(4B)(a) precluded its appellate jurisdiction in circumstances where the Full Court of the Federal Court had refused leave to appeal to it from an interlocutory order made by a single Judge exercising this Court’s original jurisdiction. The relevant order made by the single Judge was one summarily dismissing the claim under s 31A(2) of the FCA Act. The High Court held that, although there was no statutory right of appeal, the High Court could, and should, grant the relief of certiorari in its original jurisdiction – see: at [3], [8] (French CJ, Gummow, Crennan, Kiefel and Bell JJ), [21] and [61] (Heydon J, French CJ, Gummow, Crennan, Kiefel and Bell JJ agreeing). See also: AIX20 v Director General of Security [2025] HCASJ 26 at [3] (Gleeson J); Rindeklev v Comcare [2025] HCASJ 29 at [6] (Beech-Jones J).

45    The language in s 33(4A)(a) and s 33(4B)(a) – “a determination of an application of the kind mentioned” – is the same as that found in s 24(1AA). The evident purpose of s 33(4B)(a), read with s 25(2)(a), is to ensure that there is no appeal to the High Court from a judgment refusing leave to appeal made in the exercise of this Court’s appellate jurisdiction.

46    Likewise, it is clear from the text of the provision that the evident purpose of s 33(4A)(a), read with s 20(3)(a), is to ensure that there is no appeal to the High Court from a judgment refusing leave to appeal made by a Full Court in the exercise of this Court’s original jurisdiction. It is equally clear that the evident purpose of s 33(4A)(a), read with s 20(3)(b), is to ensure that there is no appeal to the High Court from a judgment of a Full Court in the exercise of this Court’s original jurisdiction refusing to extend time within which to make an application. This construction of s 33(4A)(a) is confirmed by the Explanatory Memorandum to the Access to Justice Bill 2009, referred to earlier:

134.     New subsection 33(4A) provides that the interlocutory decisions from which there is no appeal from decisions of a Full Court exercising original jurisdiction are:

•    all decisions under subsection 20(3) (ie for leave or special leave to institute proceedings in the Court, for an extension of time within which to institute proceedings in the Court, for leave to amend the grounds of an application or appeal to the Court, or to stay a decision of the tribunal or authority); and

•    a decision to join or remove a party under subsection 20(5); and …

•    decisions to adjourn a hearing, to vacate a hearing date or expedite a hearing.

135.    Interlocutory decisions of a single Judge or Full Court in the appellate jurisdiction are generally appealable to the High Court with leave. Similar to the amendments relating to appeals from interlocutory decisions of a Full Court in the original jurisdiction, there will be a limited number of interlocutory decisions in the appellate jurisdiction from which there will be no right of appeal. These are minor procedural decisions.

47    The purpose of s 33(4A)(a) and s 33(4B)(a) is to exclude a right of appeal to the High Court from judgments which are a determination of the identified kinds. Sections 33(4A)(a) and 33(4B)(a) use the same statutory language as s 24(1AA)(a), referring to “a determination of an application of the kind mentioned” in ss 20(3) and 25(2) respectively. Section 24(1AA) should be construed congruently with s 33(4A)(a) and s 33(4B)(a).

Conclusion on construction of s 24(1AA)

48    Given the plain language of the text and this legislative history and statutory context, s 24(1AA)(a) should be construed as focussing attention on the kind of application which was determined. It precludes appeals from “a determination of an application of the kind mentioned” in s 20(3). If the application was of a kind identified in s 20(3), then s 24(1AA)(a) operates to prevent an appeal from a determination of that application. There is no power to entertain an appeal from a judgment which is “a determination of an application of the kind mentioned” in s 20(3), or to grant leave to bring such an appeal.

49    Section 24(1AA)(a) does not expressly or implicitly require, before it operates to prevent an appeal being brought, that the application of a kind in s 20(3) be made in a proceeding where the original jurisdiction was to be exercised by a Full Court. It should not be construed as operating only in the circumstances identified by the Full Court in Cement Australia. That does not leave a genuinely aggrieved applicant with no conceivable avenue of redress. It simply means there is no available appeal. Relief in the original jurisdiction of the High Court may be sought in an appropriate case.

50    It was submitted for Mr Praljak, by reference to Coco v The Queen [1994] HCA 15; 179 CLR 427 at 439, that s 24(1AA) should be read down given it operates as an exception to a broader statutory right of appeal: T21–2. The assistance to be derived from the presumption against modification or abrogation of fundamental rights will vary with the context: Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 at [19]–[23] (Gleeson CJ). The first important matter of context here is that there is no common law right of appeal. The second matter of context is that the purpose of s 24(1AA), discerned from the text and context (including the extrinsic material referred to earlier), was to narrow the existing statutory right of appeal, particularly in relation to appeals from interlocutory decisions. In that context, “[i]t is of little assistance … to invoke a general presumption against the very thing which the legislation sets out to achieve”: Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; 199 CLR 321 at [43] (the Court).

51    Ms Nambiar properly referred the Court to the decision of the Full Court in Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; 282 FCR 95 at [25] (Jagot, Markovic and Thawley JJ), in which the Court stated:

In our view, s 24(1AA)(b)(ii) of the FC Act does not apply to ground 6 of the appeal, but does apply to ground 7. Ground 6 is not an appeal against the primary judge’s decision not to adjourn the hearing. It is an appeal against an alleged denial of procedural fairness. The fact that the refusal to grant an adjournment is the source of the alleged denial of procedural fairness does not make this an appeal against the primary judge’s decision not to grant the adjournment. Section 24(1AA)(b)(ii) of the FC Act could not have been intended to immunise from appeal a decision made in breach of the requirements of procedural fairness. A hearing which occurs in breach of the requirements of procedural fairness is no hearing at all. As TWE submitted, the purpose of s 24(1AA)(b) is to prevent appeals on “minor procedural decisions”: Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) [80]–[82]. Its purpose was not to strip away a right of appeal concerning a fundamental characteristic of a judicial hearing, being procedural fairness.

52    Counsel for Mr Praljak submitted that s 24(1AA) could not operate to prevent the appeal which Mr Praljak sought to bring given the proposed appeal was based on a denial of procedural fairness. Mr Praljak also argued that s 24(1AA)(a) did not apply to these proceedings as the judgment was not a “determination” within the meaning of s 24(1AA), because there had been “a constructive failure to exercise jurisdiction” and the decision was “no decision at all”: AS[65(c)]. It was submitted that the word “determination” could and should be read down: T22.

53    The central issue in Treasury Wine was whether two of the respondents had breached the obligation on a person not to use a document or information for any purpose other than the proceeding in which the document was obtained, where the person knows that the document or information was obtained because another party to the proceeding disclosed the document or information under compulsion (the Hearne v Street obligation).

54    The two respondents had used information said to be the subject of such an obligation (obtained in this Court in a class action proceeding which then settled) in drafting pleadings by which another class action proceeding was then commenced in the Supreme Court of Victoria (the Napier proceeding). As a result of Treasury Wine Estate’s (TWE’s) allegations concerning the Hearne v Street obligation, the Napier proceeding was stayed: at [9]. The two respondents then filed interlocutory applications in this Court seeking declarations that no Hearne v Street obligation arose and, alternatively, orders nunc pro tunc releasing them from the obligation.

55    Although the two respondents had not sought for this to occur, a judge of the Court decided on 22 June 2020 to list the interlocutory applications for hearing on 24 June 2020: at [35]. On 23 June 2020, TWE sent an email to the judge’s chambers requesting an adjournment. The judge declined the request to adjourn the hearing and declined a renewed request made at the commencement of the hearing on 24 June 2020: Jones v Treasury Wine Estates Ltd (No 4) [2020] FCA 1131; 146 ACSR 302 at [21].

56    The judge held that the Hearne v Street obligation did not apply to the relevant documents or information and that, if it did apply, the respondents should be released from the obligation: at [1]. His Honour granted leave nunc pro tunc to use the documents or information for the purpose for which they had used them.

57    The Full Court held that leave to appeal from the judge’s orders concerning the Hearne v Street obligation was not required: at [16]–[20]. There was no dispute on appeal that a breach of the Hearne v Street obligation would constitute a contempt of court. Although the primary judge’s judgment was interlocutory, such that s 24(1A) would ordinarily require leave to appeal, the orders were made in a proceeding “relating to contempt of the Court” within the meaning of s 24(1C)(b) of the FCA Act, such that s 24(1A) did not apply.

58    Ground 7 of the appeal to the Full Court was directed squarely to the discretionary procedural decision about whether to grant an adjournment: at [26].

59    Ground 6 was directed to the consequences of not granting an adjournment, namely (according to TWE) that TWE was denied procedural fairness because, in circumstances where there was no urgency, TWE was denied the opportunity to adduce relevant evidence: at [23], [30]. The Full Court held that Ground 6 was not properly characterised as an appeal from a determination to refuse to grant an adjournment: at [25]. That was the subject of Ground 7. Ground 6 was, accordingly, not within the scope of s 24(1AA) at all. As the Full Court stated at [25], “[t]he fact that the refusal to grant an adjournment is the source of the alleged denial of procedural fairness does not make this an appeal against the primary judge’s decision not to grant the adjournment”. The appeal was competent because the underlying proceeding related to a contempt of court and s 24(1AA) could not, in those circumstances, operate to prevent a contention about denial of procedural fairness simply because the denial of procedural fairness could be said to have been caused by a refusal to grant an adjournment.

60    The observations in Treasury Wine at [25] should not be understood as limiting the operation of s 24(1AA) by immunising from its exclusionary operation particular judgments based on the quality or nature of the underlying grounds of the proposed appeal. There is no proper basis to read such a qualification into the exclusionary operation of s 24(1AA). There is no occasion to read down the word “determination” in s 24(1AA). In context, it is used simply to identify the decision or adjudication which resolved the dispute – see, for example: O’Bryan at [77]–[79].

61    The proposed appeal is from a judgment being a determination not to extend time within which to commence proceedings. There is no right of appeal from such a decision by reason of s 24(1AA)(a). That is not altered by the proposed basis of the appeal being an allegation of breach of procedural fairness.

CONCLUSION

62    This Court must follow Cement Australia unless there is a compelling reason to depart from it: Hill v Zuda Pty Ltd [2022] HCA 21; 275 CLR 24 at [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). The question of whether to depart from previous authority involves more than the question only of whether the decision was wrong. It is desirable to focus on “the quality and cogency of the case made out for departure from the earlier decision, rather than the egregiousness of the court’s error”: Pallas v Lendlease Corporation Ltd [2024] NSWCA 83; 114 NSWLR 81 at [140] (Leeming JA); Lendlease Corporation Ltd v Pallas [2025] HCA 19; 99 ALJR 834 at [118] (Edelman J); Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2025] FCAFC 43; 308 FCR 153 at [13] (Lee, Colvin and Stewart JJ).

63    As noted earlier, Cement Australia has not been consistently applied and several decisions include reasoning irreconcilable with it. As Ms Nambiar submitted by reference to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [9] (Allsop CJ, Kerr and Mortimer JJ), overruling Cement Australia will resolve the competing views which have evolved and result in a more stable and consistent approach.

64    The proposed appeal is not competent. Having reached that conclusion it is neither necessary nor appropriate to address the basis upon which leave to appeal was sought. To do so would be to undermine the purpose of s 24(1AA). It follows that the application for leave to appeal should be dismissed. The applicant should pay the first respondent’s costs. As mentioned earlier, the second respondent took no active part in the proceedings.

Associate:

Dated: 4 September 2025