FEDERAL COURT OF AUSTRALIA

Dai v Telecommunications Industry Ombudsman [2000] FCA 717

OBJECTION TO COMPETENCY – whether orders are interlocutory or final

LEAVE TO APPEAL

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court RulesO 52 r 18

Hall v Nominal Defendant (1966) 117 CLR 423 applied

Decor Corp v Dart Industries (1991) 33 FCR 397 applied

DAI RONG-HUA V TELECOMMUNICATIONS INDUSTRY OMBUDSMAN & RSL COM PERSONAL COMMUNICATIONS

N 333 OF 2000

JUDGES:       BEAUMONT, WHITLAM & LEHANE JJ

DATE:            6 JUNE 2000

PLACE:          SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      Objection to competency is upheld, with costs.

2.      Leave to appeal be refused, with costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     Before the Court is a notice of motion by the first respondent seeking summary dismissal of an appeal.  The appeal is purportedly brought as of right from a judgment of a single Judge of the Court, itself summarily dismissing proceedings

2                     The proceedings were commenced by application and a document titled “affidavit” filed 25 October 1999.  A statement of claim was filed on 13 December 1999.

3                     The factual background to the proceedings are that the appellant acquired from the second respondent a mobile telephone.  The appellant signed an application form which contained an acknowledgment that he had been made aware of “EZI Protect Insurance Terms & Conditions”.  Those terms and conditions were in evidence and provide, relevantly, that RSL Com will replace a phone that is “stolen or accidentally lost or damaged” for a period of 18 months from the purchase and, this being the case, that “… RSL Com may charge you a fee … up to a maximum amount of $200 ...”.  The appellant’s telephone was stolen and, although it has been replaced, the appellant refuses to pay the sum of $200.

4                     The appellant now claims $3,000,000 from each respondent in compensation.  In his application he provides no basis to attract the Court’s jurisdiction, other than the citation of provisions of the Telecommunications Act 1997 (Cth), Trade Practices Act 1974 (Cth), Racial Discrimination Act 1975 (Cth), Anti-Discrimination Act 1977, Crimes Act 1914  and a reference to “any other legislation”.

5                     Both respondents in the matter filed notices of motion that the principal proceedings be dismissed.  The appellant did not appear at the hearing of the motions before Lindgren J on 27 March 2000 and they were heard in his absence.  Lindgren J ordered that the application be dismissed, and stated as follows:

“In my view all three grounds referred to in subr 2(1) of O 20 are made out. The case is not simply one of a defective pleading (see O 11 r 16) in which the applicant should be given leave to re-plead: rather, he has no cause of action.”

6                     The appellant has now filed a notice appealing from the whole of the judgment of the primary Judge.  The first respondent has filed a notice of motion that the proceedings be dismissed pursuant to Order 52, Rule 18 of the Federal Court Rules which provides that a respondent may move on notice at any time for an order dismissing an appeal as incompetent.   The first respondent relies on, inter alia, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) which provides that where a judgment is an interlocutory judgment, an appeal shall not be brought from that judgment unless the Court or a Judge gives leave to appeal.  We must therefore decide whether leave is required, and, if so, whether it should be granted.

7                     The distinction between final and interlocutory orders was considered by the High Court of Australia, in Hall v Nominal Defendant (1966) 117 CLR 423.  Taylor J said (at 440):

“So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v Marquis of Hartington (1890) 6 TLR 267. The same view was taken of an order striking out a plaintiff’s statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole (1891) 64 LT 703 and of an order dismissing an action as frivolous and vexatious in In re Page [1910] 1 Ch 489.”

8                     In our opinion, the present case clearly falls within this reasoning. Thus the objection to competency is upheld and leave to appeal is required.

9                     The test for whether leave to appeal is granted or refused, as described in Decor Corp v Dart Industries Inc (1991) 33 FCR 397, is firstly, “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court” and secondly, “whether substantial injustice would result if leave were refused, supposing the decision to be wrong”.

10                  In our view, none of the application, statement of claim, affidavits or any other documents filed by the appellant discloses any cause of action that could be said to be reasonably arguable in a court of competent jurisdiction. Moreover, no reasonably arguable basis for invoking this Court’s jurisdiction appears.

11                  It follows, therefore, that no proper ground for the grant of leave has been established. Leave to appeal ought to be refused, with costs.

Associate:

Dated:              6 June 2000