FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - appeals - application for extension of time within which to appeal - whether appeal lies to Full Court against decision of single judge exercising power under Federal Court of Australia Act 1976 (Cth), s 25(2)(b).

Federal Court of Australia Act 1976 (Cth) - ss 14(1), 15(1), 20(1), 24(1), 25(1), 25(2), 25(2B)

Federal Court Rules - O 10 r 7; O 52 subr 15(2)

Wati v Minister for Immigration and Multicultural Affairs & Anor (Full Court of the Federal Court of Australia, 3 October 1997, unreported) followed

GREIG RONALD HEILBRONN v AUSTRALIAN SECURITIES COMMISSION

qg 85 OF 1997

northrop acj, lindgren and lehane jj

4 november 1997

brisbane

on appeal from a judge of the federal court of australia

THE COURT ORDERS THAT:

1.         The appeal be dismissed as being incompetent.

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

on appeal from a judge of the federal court of australia

REASONS FOR JUDGMENT

(ex tempore)

THE COURT:

INTRODUCTION

There is before the Court what purports to be an appeal brought by the appellant (“Mr Heilbronn”) from the whole of the judgment of Drummond J given on 6 June 1997 in a proceeding between Mr Heilbronn as applicant and the present respondent (“the ASC”) as respondent.  Drummond J’s order of 6 June 1997 was that the proceeding before him (QG 196 of 1996), seeking an extension of time in which to appeal from two orders of Cooper J, be dismissed.

The Court has come to the view that the appeal is incompetent and should be dismissed on that ground.  In so deciding, the Court is following a decision of an earlier Full Court in Wati v Minister for Immigration and Multicultural Affairs & Anor, 3 October 1997, unreported (NG 300 of 1997) (“Wati”).  In the light of that fact, it is, perhaps, not necessary that there be as detailed an account of the background facts as might otherwise have been called for.

BACKGROUND FACTS

On 30 January 1995, in proceeding QG 3002 of 1995, the ASC applied under s 486B of the Corporations Law (“the Law”) for the issue of a warrant for the arrest of Mr Heilbronn.  Section 486B occurs in Part 5.4B of the Law which deals with the winding up of companies in insolvency or by the court.  Relevantly, s 486B provided as follows:

            “486B(1) The Court may issue a warrant for a person to be arrested and brought before the Court if:

(a)        ...

(b)        the Court is satisfied that the person:

(i)         ...

(ii)        has concealed or removed property of the company in order to prevent or delay the taking of the property into the liquidator's custody or control; or

(iii)       has destroyed, concealed or removed books of the company or is about to do so.”

On 1 February 1995 Cooper J ordered that the warrant sought by the ASC for Mr Heilbronn’s arrest issue, and gave reasons for the making of that order.  In course of time, the warrant was executed.  On 30 May 1995, his Honour ordered that Mr Heilbronn pay the ASC’s costs.  Thus, by this time, two orders had been made by Cooper J against Mr Heilbronn on the application of the ASC:  that of 1 February 1995 and that of 30 May 1995.

Some eighteen months later, on 15 November 1996, Mr Heilbronn filed application QG 196 of 1996 seeking an order extending the time in which to file and serve a notice of appeal against the two orders of Cooper J.  As the application acknowledged, an extension of time was required because no notice of appeal had been filed and served within twenty-one days from the making of the orders:  cf O 52 subr 15(1) of the Federal Court Rules (“the Rules”).

The application was listed for directions on 6 December 1996 when Mr Heilbronn appeared in person and the ASC appeared by its legal representative.  Drummond J directed that Mr Heilbronn file and serve by 17 January 1997 affidavit material in support of his application for an extension of time; that the ASC file its affidavit material by 31 January; that Mr Heilbronn file and serve his affidavit material in reply by 7 February; that the application be heard by a single Judge on a date after 28 February as determined by the Listings Clerk; and that the costs of the directions hearing be costs in the proceeding.  Subsequently, the timetable was extended by consent, but Mr Heilbronn did not file any affidavits.  On 8 April, the ASC filed a notice of motion seeking an order “[t]hat the proceedings commenced by the Applicant Greig Ronald Heilbronn by Aplication [sic] filed 15 November 1996 be dismissed”.  That motion came before Drummond J for hearing on 29 May.  Mr Heilbronn appeared in person and the ASC appeared by counsel.  The motion was heard on that day and on 6 June, when his Honour made the order of dismissal against which the present appeal is brought.

It is not necessary to refer to the detailed reasons which his Honour gave on 6 June for dismissal of Mr Heilbronn’s application.  He referred to Mr Heilbronn's non-compliance with the Court’s direction and dealt with both the explanation proffered by Mr Heilbronn and the question of his prospects of success.

Drummond J’s order of 6 June 1997 dismissing the application for extension of time was entered on 20 June 1997.  On 27 June 1997 Mr Heilbronn's notice of appeal against that order was filed.

REASONING

This morning the Court caused counsel for both Mr Heilbronn and the ASC to be supplied with a copy of the Reasons for Judgment of the Full Court in Wati.  In that case the Full Court held that when a single Judge deals with an application for extension of time within which to appeal, that Judge is exercising the appellate jurisdiction of the Court.  The Full Court also held in that case that a Full Court's jurisdiction to hear and determine appeals is limited to the hearing and determination of appeals from judgments of single Judges exercising the original jurisdiction of the Court in the manner contemplated by s 20(1) of the Federal Court Act 1976 (Cth) (“the Act”).  Both counsel indicated to us that they were in a position to deal with the issue raised by Wati this afternoon.

In Wati, their Honours referred to ss 14(1), 15(1), 20(1), 24(1) and 25(1) and (2) of the Act and also to O 52 subr 15(2) of the Rules, which provide, relevantly, as follows:

“14(1)  For the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court.

…

15(1)  The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may, subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court in particular matters or classes of matters.

…

20(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.

…

24(1) Subject to this section and to any other Act, … the Court has jurisdiction to hear and determine -

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

…

25(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.

(2)        Applications:

(a)        …

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

(c)        …

(d)        …

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

“[O52] 15(2) Notwithstanding anything in the preceding sub-rule [which fixes the time within which a notice of appeal must be filed], the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

Order 52 r 1 of the Rules provides that in O 52, “Court” means “the Court exercising its appellate or related jurisdiction under Part III Division 2 of the Act”.

In the present case, the application which was filed by Mr Heilbronn on 15 November 1996 and which launched proceeding QG 196 of 1996, was an application “for an extension of time within which to institute an appeal to the Court” within s 25(2)(b), set out above.  In that respect, this case is on all fours with Wati.  Counsel appearing for Mr Heilbronn this afternoon has properly conceded that the present appeal is incompetent, having regard to the decision of the Full Court in Wati.  He has submitted that Mr Heilbronn was unrepresented before Drummond J and that while Mr Heilbronn understood that the ASC’s motion for dismissal of his application was to be heard and determined by his Honour, he did not appreciate that no appeal would lie from his Honour’s decision.  We do not think, however, that this goes to the competence of the appeal.

Lest it should be thought that the present case is distinguishable from Wati, counsel for the ASC has taken the Court to s 25(2B) of the Act and O 10 r 7 of the Rules.  Subsection 25(2B) provides, relevantly, that a single Judge may make directions in a proceeding in the Court's appellate jurisdiction about the conduct of an appeal to the Court.  The point of the submission was to meet any suggestion that might be made (in the event none was made) that, because Drummond J had made directions in the proceeding, the proceeding was one in the original jurisdiction of the Court.

Order 10 r 7, which appears to be the provision on the basis of which Drummond J made the order on the ASC’s motion dismissing Mr Heilbronn's application, and to which, as noted above, counsel for the ASC also referred, is, relevantly, as follows:

“7(1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -

(a)        if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;

…”

The notion of a “proceeding” referred to in subr 7(1) encompasses a proceeding on an appeal:  see the definition of “proceeding” in s 4 of the Act and s 46 of the Acts Interpretation Act 1901 (Cth).  Again, the point of the submission is to meet any suggestion (none was made) that the exercise of the power given by O 10 r 7 of the Rules indicates that his Honour was exercising the original, rather than the appellate, jurisdiction of the Court.

We think that, in conformity with Wati, from beginning to end the proceeding before Drummond J was a proceeding in the appellate jurisdiction of the Court, with the result that this Full Court does not have jurisdiction to entertain Mr Heilbronn's appeal.  The result is that the appeal will be dismissed as incompetent.  This will leave the question of costs.

[There followed discussion as to costs in which the ASC said that it did not seek an order for costs.]

CONCLUSION

The order of the Court is that the appeal be dismissed as being incompetent.  There is no order as to costs.

Associate:

Dated:              4 November 1997