FEDERAL COURT OF AUSTRALIA

Croker v Philips Electronics Australia Limited [2000] FCA 1731

FEDERAL COURT – application for extension of time within which to seek leave to appeal from an interlocutory judgment – factors relevant to the exercise of the Court’s discretion.

Federal Court Rules O 52 r 10

Deighton v Telstra Corporation, (Lee, Heerey and R.D. Nicholson JJ, 17 October 1997, unreported) followed.

CLAYTON ROBERT CROKER v PHILIPS ELECTRONICS AUSTRALIA LIMITED & ORS

N 197 OF 2000

STONE J

22 NOVEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion be dismissed.

2.                  The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks an extension of time pursuant to Order 52 rule 10(2)(b) of the Federal Court Rules to file a notice of motion seeking leave to appeal from the judgment of her Honour Justice Branson delivered on 19 October 2000.  By referring to Order 52 rule 10, all parties have clearly accepted that this decision was interlocutory in nature and, in my opinion, this is correct. In Deighton v Telstra Corporation (Lee, Heerey and R.D. Nicholson JJ, 17 October 1997, unreported), the full Federal Court held that the test of whether a decision is interlocutory is whether it finally determines the rights of the parties. Applying that test, the judgment of Branson J was an interlocutory judgment. 

2                     Order 52 rule 10(2)(b) provides that:

“The notice shall be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow.”

3                     The applicant did not file his application for leave to appeal within the specified seven days. Mr Croker explains the delay by reference to his ignorance of the time limits imposed by rule 10 and other constraints and demands on his time including demands by his studies in law, physical disablement and financial disablement.

4                     In considering this issue, I have had the benefit of written submissions from all parties. The respondents, in submissions made on behalf of the 1st and 2nd respondents and separately on behalf of the 3rd respondent, have expressed some scepticism about the appellant's alleged unfamiliarity with the rules of Court.  They refer to a number of other proceedings in this Court involving the applicant.  The applicant himself has not provided any evidence as to the extreme constraints to which he attributes the delay in seeking leave to appeal.

5                     The respondents in their separate submissions have argued that it is relevant to this application that the appeal has no real prospects of success.  The likelihood of leave to appeal being granted was accepted as a relevant consideration in Deighton v Telstra Corporation (supra).

6                     As the respondents have pointed out in their submissions, Mr Croker has identified as possible grounds of appeal the natural laws of justice, natural law and the rule of law. He claims that these concepts show that a cause of action exists.  In my opinion, Mr Croker has not provided any good reason why the Court's discretion should be exercised in his favour and, to the extent that it is relevant, I think that the unlikelihood of leave to appeal being given were the time to be extended and, indeed, of the appeal being successful, all lead to the same conclusion.

7                     The order of the Court therefore is that the notice of motion seeking an extension of time is dismissed and that the applicant should pay the respondents' costs of the motion.

Associate:

Dated:              30 November 2000