FEDERAL COURT OF AUSTRALIA

Crocker v Philips Electronics Australia Ltd [2000] FCA 1935

JURISDICTION – applicant out of time – extension of time to file application for leave refused by a single judge – a single judge refusing an extension of time is exercising the appellate jurisdiction of the Court – no further appeal from such a judgment in this Court.

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424, applied

Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543, applied

CLAYTON ROBERT CROKER v PHILIPS ELECTRONICS AUSTRALIA LTD & ORS

N 197 of 2000

MADGWICK J

7 DECEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant’s Notice of Motion be dismissed.

2.                  The applicant pay the respondent’s costs.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     There is before the Court a Notice of Motion by which the applicant seeks leave to appeal to the Full Court of this Court against a judgment of Stone J given on 22 November 2000.  Her Honour's judgment dealt with an application for leave to appeal from a judgment of Branson J which was given on 19 October 2000. 

2                     It was common ground before Stone J that the judgment of Branson J was interlocutory in nature and accordingly leave to appeal from it was necessary under s 24(1A) of the Federal Court of Australia Act 1996 (Cth) which provides:

"[a]n appeal shall not be brought from (among other things a judgment of the Court constituted by a single Judge) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal".

3                     Order 52 r 10(2) of the Federal Court Rules deals with the position where an application for leave to appeal from an interlocutory judgment has not been made orally to the judge who pronounced the judgment at the time of its pronouncement.  Rule 10(2)(b) requires that the necessary Notice of Motion, to a single judge or to a Full Court, be filed and served within 7 days from the pronouncement of the interlocutory judgment.  The applicant was out of time and needed an extension of time, which is also provided for by O 52 r 10(2)(b). 

4                     Stone J declined to extend the time because of the unlikelihood of leave to appeal being given were the time to seek that leave extended and, indeed, because ultimately she considered that the decision of Branson J was insufficiently attended by doubt as to warrant the matter proceeding any further.

5                     Counsel for the respondents ask that I strike out the Notice of Motion as beyond the jurisdiction of this court.  They submit that it is well settled, as a result of Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 and Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543, that a judge of a court refusing an application for an extension of time within which to institute an appeal to the court is exercising the appellate jurisdiction of the court.  Therefore, a further appeal to the Federal Court is incompetent (Wati).  The same is true of a refusal by a single judge of the court to grant leave to appeal against an interlocutory judgment (Borthwick).  Accordingly, counsel for the respondent’s submit that a decision by a judge of this Court to refuse an application for an extension of time within which to seek leave to appeal must fall within these same principles. 

6                     I agree with the respondents’ submissions.  In my opinion, Stone J was exercising the appellate jurisdiction of the Court when she refused to extend the time for the applicant to seek leave to appeal the interlocutory judgment of Branson J.  The appellate jurisdiction of the Court having been exercised, there is no further appeal within this Court. 

7                     It follows that the appeal must be struck out as incompetent.  The applicant is to pay the respondent's costs of the application.

Associate:

Dated:              15 January 2001