ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT

THE COURT

In this matter, the court delivered judgment last year, dismissing the substantive appeal, and deferring questions of costs for further consideration, in accordance with certain directions which the court gave, following the then awaited determination of the High Court appeal in Oshlack v Richmond River Council (1998) 152 ALR 83.  The High Court matter having been decided, and the parties having had an opportunity to make submissions in accordance with the directions that have been mentioned, the court announced that judgment would be handed down today.

However, yesterday afternoon a document was filed in the Registry, purportedly under Order 52 r 19, entitled “Notice of Discontinuance”, in the following terms:  “The Appellant discontinues the proceedings”.

The language of this document is perhaps revealing.  Order 52 r 19(1) does not refer to “proceedings”.  It provides:

“An appellant may at any time file and serve a notice of discontinuance of the appeal and upon its being filed the appeal shall be abandoned.”  (Emphasis added.)

But here, “the appeal” could not be discontinued.  The appeal has already been determined, and indeed special leave has been sought and refused in the High Court.  Of the proceedings, only the deferred questions in relation to costs remain.  They are in the hands of the court.  All that is left for the appellant to abandon is its contention that it should not be subject to costs orders.  The matter is somewhat analogous to Maddocks v D.J.E. Constructions Pty Ltd (1982) 148 CLR 104 at 118, where, in the joint judgment of the High Court, it was said:

“[I]t is not possible for [the appellant] to withdraw the application once it had been made and judgment given on it.  The time for discontinuance or ‘withdrawal’ expired on the giving of judgment by the Court of Appeal.”

It follows that the rule relied on cannot be applicable at this stage of the proceedings.  If it were applicable, the consequences would be quite extraordinary.  Often, courts deliver judgments which leave outstanding questions.  In a particular case, delivery of judgment might make it plain that a party had to fear an order for costs on a solicitor and client basis.  Could it be suggested the rule permits such an order to be evaded by a discontinuance filed after the court’s conclusions have been announced, or at least have been made deducible?  Cf. Castanho v Brown & Root (U.K.) Ltd [1981] AC 557 at 571 where it was held that even a notice of discontinuance which complied with the rules could be held to be an abuse of process.

In some such cases, and in the present case, the fact that “the appeal” is no longer in esse, to be “abandoned” under the rule, excludes the rule’s operation.  In some cases, where a court’s reaction to an appeal may become clear during argument, that may not be so.  But even in the latter type of case, if the appeal is no longer just pending, but has actually come before the court for hearing, the rule should not be held to have any continuing operation.  The context requires that the apparently absolute words “at any time” be understood as relating to times prior to the matter being placed in the hands of the court at the hearing.

For these reasons, the Notice of Discontinuance was irregular, and its filing should be set aside with costs.  The court should proceed to deliver judgment.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:  30 April 1998