FEDERAL COURT OF AUSTRALIA

Croker v Philips Electronics Australia Ltd

[2002] FCA 1454

CLAYTON ROBERT CROKER v PHILIPS ELECTRONICS AUSTRALIA LIMITED, DICK SMITH’S ELECTRONICS PTY LIMITED and TELSTRA CORPORATION LIMITED

N 1212 OF 2002

GYLES J

SYDNEY

22 NOVEMBER 2002

THE COURT ORDERS THAT:

1.         I refer the hearing of this motion to a Full Court.

2.         I recommend that it be heard together with the matter of Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs, N1113 of 2002.

3.         Costs are reserved.

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

REASONS FOR JUDGMENT

1                     This is a notice of motion which initially seeks leave to appeal from what was described as a judgment of Sackville J, dated 12 November 2002, which were reasons given by his Honour for giving a direction to the registrar pursuant to O 46 r 7A of the Rules of Court to refuse to accept an application and affidavit sought to be filed by the applicant on this  motion, Mr Clayton Robert Croker (Croker v Philips Electronics Australia Ltd [2002] FCA 1393).  If his Honour's direction is a judgment or order from which an appeal lies, then on the face of it at least it would be an interlocutory order and it would require leave to appeal.

2                     The second order sought in the notice of motion is that the judgment be set aside.  That, I think, would be dependant upon the judgment being a final judgment and in any event is not in proper form.  The third is an order compelling the registrar to accept the application and affidavit.  Again, this notice of motion is not an appropriate vehicle for any such application.

3                     Yesterday, I had occasion to consider what I should do in precisely this kind of application in relation to a similar direction.  The only difference is that in that case there were no reasons in evidence for the judge's direction.  In that case (Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1453), I formed the view that it would be inappropriate that I as a single judge should continue to hear the motion, because there is a real issue as to whether or not a direction pursuant to that rule is a judgment or order from which an appeal lies.  In view of the fact that there were some authorities which had noted but not resolved that question, it seemed to me best that a Full Court settle it once and for all, particularly as it is likely that I was then and am now exercising appellant jurisdiction and no appeal may lie from any decision of mine to a Full Court.

4                     The fact that the judge in the present case published reasons for the direction may have enabled this question to be resolved by assuming for the moment that there was an appeal which lay, and then considering whether grounds sufficient to justify the grant of leave had been shown.  However, as I have directed that the other matter be heard by a Full Court, and as I have in that case directed that an O 80 referral be made, it is desirable I think that the correct answer in principle be given in these matters and I therefore will refer this matter to a Full Court.  There are associated issues which will arise depending upon the view the Full Court may take as to the operation of the rule and it may even be that there are questions as to the validity of the rule.

5                     I refer the hearing of this motion to a Full Court.  I recommend that it be heard together with together with the matter of Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs No N1113 of 2002.  Costs are reserved.

Associate:

Dated:              25 November 2002