Dart v Norwich Union Life Australia Limited [2005] FCA 327

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – appeals – application for leave to appeal – oral application made to single judge after interlocutory judgment – whether further application to Full Court is competent

Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(2)

Federal Court Rules, O 52 r 10

Wati v Minister for Immigration and Multicultural & Indigenous Affairs (1997) 78 FCR 543 cited

Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Ltd (Prov Liq Apptd) (1991) 31 FCR 587 cited

Donkin v AGC (Advances) Ltd [1995] FCA 696 cited

Hamod v New South Wales [2002] FCAFC 97 cited

Reid v Nairn (1985) 60 ALR 419 applied

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988)

18 FCR 424 applied

Atkinson v Commission of Taxation (2000) 46 ATR 32 cited

SYDNEY RONALD DART & ORS v NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295) & ORS

No QUD 43 of 2005

SPENDER J

30 MARCH 2005

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 43 of 2005

BETWEEN:	SYDNEY RONALD DART FIRST APPLICANT SHIRLEY NORMA DART SECOND APPLICANT FREDERICK WILLIAM DART THIRD APPLICANT
AND:	NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295) FIRST RESPONDENT VYNOTAS PTY LTD (ACN 007 093 601) SECOND RESPONDENT JONES LANG LASALLE (QLD) PTY LIMITED (ACN 010 411 140) THIRD RESPONDENT ROBERTS NEHMER McKEE (A FIRM) FOURTH RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	30 MARCH 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The notice of motion filed 12 February 2005 by the applicants is dismissed as incompetent in the case of the two male applicants, and for non-compliance with the requirements of O 52 r 10 of the Federal Court Rules, in respect of the female applicant.

2. The applicants should pay the costs of each of the respondents, of and incidental to this notice of motion, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 43 of 2005

BETWEEN:

SYDNEY RONALD DART

FIRST APPLICANT

SHIRLEY NORMA DART

SECOND APPLICANT

FREDERICK WILLIAM DART

THIRD APPLICANT

AND:

NORWICH UNION LIFE AUSTRALIA LIMITED

(ACN 006 783 295)

FIRST RESPONDENT

VYNOTAS PTY LTD

(ACN 007 093 601)

SECOND RESPONDENT

JONES LANG LASALLE (QLD) PTY LIMITED

(ACN 010 411 140)

THIRD RESPONDENT

ROBERTS, NEHMER McKEE (A FIRM)

FOURTH RESPONDENT

JUDGE:	SPENDER J
DATE:	30 MARCH 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 I arranged for this matter to be listed today solely for the question of determining the competence of an application for leave to appeal from orders made by Dowsett J on 10 February 2005.

2 The reasons for that course arise because the transcript of the proceedings before Dowsett J indicates that after his Honour delivered judgment, Dowsett J asked Mr Dart, as appears at page 75 of the transcript:

‘Now, you make an application for leave to appeal. Do you want to make an application for leave to appeal to me?’

And Mr Dart said:

‘Yes, your Honour, to you personally, for leave to appeal to the Full Bench.’

His Honour then said:

‘On what grounds?’

Mr Dart replied. Amongst other things he said:

‘On the grounds that the Full Bench, your Honour - you have relied on the findings of the Full Bench in Q205 of 2001, and I appreciate and respect the reasons you have relied and the reasons you cannot go behind the Full Bench. But I believe that we have said to the Court today is substantial, it’s substantive and it maintains and upholds that there have been serious breaches of the law and that there have been serious breaches of court procedure.

And I believe that if anyone is to look at the matter and correct the wrongs that have been committed, then it must be put before the Full Bench and the Full Bench must be given the chance to consider the matters that we have raised here today. So therefore, your Honour, I seek leave, your leave, to lodge an appeal to the Full Bench to revisit what we have been through today and revisit entirely before the Full Bench.’

And his Honour replied:

‘Whilst I appreciate that the applicants no doubt feel very strongly about this matter, the history is such that no good purpose would be served by allowing leave to appeal. I refuse the application. …’

3 It is disappointing to say the least that Mr Dart has not answered his phone this morning, it being arranged in advance that he would appear on this mention this morning by telephone.

4 The correspondence file in this matter reveals that on 11 February 2005 Mr Dart, for and on behalf of the applicants, wrote to the Registrar at Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane in the following terms.

‘Dart & Ors V Norwich Union Life Australia & Ors. Matter Q203 of 2004

1. The applicants to the above matter herewith lodge for filing their Notice of Appeal and amended statement of claim in the above matter.

2. Service copies for sealing by the Court will be forwarded by ordinary mail.’

5 The document headed Notice of Appeal says:

‘1. The appellants’ appeal to the Full Bench of the Court from directions given at Brisbane on 10 February 2005 by the Honourable Justice Dowsett.

GROUNDS:

2. The appellants rely on evidence adduced by affidavit, filed in the Court in matters Q67 of 2000 and QUD 203 of 2004 and, argument before the Court in matter QUD 203 of 2004 on 10 February 2005 before the Honourable Justice Dowsett.

3. The Honourable Justice Dowsett erred in that:

(i) His Honour denied established right of the First Applicant to represent the Second Applicant and Third Applicant in proceedings before the Court;

(a) By power of attorney bestowed upon the First Applicant by the Second Applicant and Third Applicant;

(b) By precedent established by the Court and, the Honourable High Court in previous proceedings.

(ii) Evidence before the Court was discovered by the applicants after FCA matters Q67 of 2000 and Q205 of 2001 had been determined;

(iii) Presiding as a single judge of the Court, His Honour did not have jurisdiction under the Act to deny appeal to the Full Bench of the Court from orders of a single judge of the Court that are definitive;

(iv) His Honour, ought not to have purported jurisdiction to deny right of appeal, requested verbally by the First Applicant on behalf of the applicants, in that orders that struck out the proceeding were definitive;

(v) His honour struck out a proceeding that discloses serious contravention of Law that the Court is bound to uphold and enforce, by constitutional and legislative authority and by sworn duty of office;

(vi) His Honour erred in sworn duty to do right to all manner of people according to Law without fear or favour, affection or ill will in that His Honour did not give orders conducive to upholding, enforcing, enhancing and developing Law and, Administration of Justice for the better good;

(vii) Ought to have voluntarily disqualified himself from presiding in the matter in that during the proceeding His Honour disclosed financial interest in the First Respondent to the proceeding that an ordinary, reasonable member of the general public would consider substantial beneficial interest;

(viii) Notwithstanding that His Honour was not specifically requested to step aside and the First Applicant was reluctant to suggest that His Honour ought to be ineligible to preside due to beneficial interest in the First Respondent:

(a) His Honour was unable, and in any event did not, unequivocally assure the applicants that substantial beneficial interest in the First Respondent would not impact adversely upon absolute, unfettered impartiality required of His Honour as a judge;

(b) His Honour did not offer to voluntarily disqualify himself from presiding in the matter;

(c) It was reasonable in the circumstances for His Honour of his own volition to voluntarily step aside or in the alternative enquire of the applicants whether or not they would prefer that His Honour do so.

ORDERS SOUGHT:

1. Orders of the Honourable Justice Dowsett given on 10 February 2005 at Brisbane in FCA matter Q203 of 2004 be set aside or, in the alternative, overturned.

2. Applications before the Court in matters Q243 of 2004, Q256 of 2004 and QUD 25 of 2005 be adjourned Sine Die or, in the alternative adjourned pending determination of all avenues of appeal available to the applicants.

3. FCA matter Q67 of 2000 be declared a nullity;

4. FCA matter Q205 of 2001 be declared a nullity;

5. The applicants be granted leave to proceed with claims against respondents.

6. The applicants be granted pro bono assistance available under order 80.

7. The applicants amended Statement of Claim filed herewith be accepted and filed in accordance with FCR Order 13 rule 3(1).

8. The respondents be required to file and serve a defence within seven days in accordance with order 11 rule 20(2).

9. In the absence of a defence summary judgement be delivered in favour of the applicants substantially in accordance with their schedule of claims.

10. Such other orders and directions as the Court deems meet for future just and orderly conduct of proceedings.’

6 After that document was received in the registry on 11 February, a second letter dated 12 February 2005 was addressed to the registry, and that letter says, in part:

‘1. Would you be so good as to forward by facsimile to (07) 4774 0617 as a matter of some urgency:

(i) the order and Reasons for Judgement of Dowsett J. given in the above matter on 10 February 2005.

(ii) Access to and availability of transcripts flowing from demise of Auscript Pty. Ltd. (in liquidation).’

7 There is a reference to difficulty in the facsimile transmission of certain documents. The letter peremptorily says:

‘2. … Should difficulty be experienced; arrangements have been made for documents requested to be received at (07) 4721 1316. This number must be used strictly for the specified purpose only and, must not be used for any subsequent purpose without specific permission.

3. Reference is now made to Notice of Appeal transmitted to the Court on 11 February 2005.

4. In the alternative to that document, or in the further alternative at discretion of the Court, in conjunction with that document, the applicants Notice of Motion dated 12 February 2005 follows for filing.

5. Service copies for sealing by the Court have been dispatched by ordinary mail.’

8 The notice of motion referred to commences:

‘The above-named applicants will at on 2005 at level 7, 119 North Quay Brisbane move the Full Bench of the Court for the following orders:

1. An order pursuant to Order 52, Division 1A, rule 10 of the Rules that the applicants be granted leave to appeal to the Full Bench of the Court against orders of the Honourable Justice Dowsett made 10 February 2005 on the grounds that the judge erred in that …’

and then, in a series of paragraphs, (i) to (ix), it sets out the grounds of claimed error by Dowsett J, and ground number 2 sets out, from (i) to (viii), various other matters of complaint.

9 In response to that notice of motion, Mr Dart was advised on 8 March 2005 as follows:

‘Dear Sir,

…

I refer to the notice of motion, which was filed in this matter recently.

The motion has been listed for hearing on the date endorsed on the service copies of that document.

The purpose of this letter is to advise you of the directions which have been made in respect of the hearing of the motion. These are listed below. You should note, in particular, direction number 4, which requires you to bring these directions to the attention of the respondent/s to the motion.

The judge has asked me to inform you that he is aware that an oral application for leave to appeal was made to Dowsett J at the conclusion of the hearing, which was refused. He has asked that I bring to your attention several cases in which the competency of a second application for leave is clearly raised. You should address these cases in your written submissions.

A. Reid v Nairn (1985) 60 ALR 419

B.Wati v MIMIA (1997) 78 FCR 543

C. Atkinson v Commissioner of Taxation (2000) 46 ATR 32

If it is difficult for you to attend Court in person, you should make a written request as soon as possible for permission to appear by video or telephone link. Any such request will be referred to the judge for his consideration.’

10 The directions which were made in relation to the hearing of the notice of motion were then included in the letter sent to Mr Dart by letter dated 8 March 2005 as follows:

‘THE COURT DIRECTS THAT:

1. The time for service of the notice of motion be abridged (if necessary)

2. Before 4.00pm on the fifth working day before the hearing of the motion, excluding a day on which the matter is listed for hearing, (or as soon as practicable before the hearing if it has been listed at short notice), the applicant/s on the motion file and serve each of the following:

(a) a chronology;

(b) a succinct summary of the relevant facts (in chronological order);

(c) an outline of submissions of no more than ten (10 pages) (Note: two copies of this document are required to be filed);

(d) a list of authorities; and

(e) photocopies of the authorities referred to in (d) with the relevant passages highlighted.

3. Before 4.00pm on the second working day before the hearing of the motion, excluding the day on which the matter is listed for hearing, (or as soon as practicable before the hearing if it has been listed at short notice), the respondent/s to the motion file and serve each of the following:

(a) any proposed amendments to the chronology of the applicant/s on the motion;

(b) any proposed amendments to the summary of relevant facts of the applicant/s on the motion

(c) an outline of submissions, no more than ten (10) pages, which is to include any submissions by way of response to the written submissions of the applicant/s on the motion. (Note: two copies of this document are required to be filed);

(d) a list of authorities; and

(e) photocopies of the authorities referred to in (d) with relevant passages highlighted.

4. The applicant/s on the motion serve a copy of these directions on the respondent/s to the motion forthwith.’

11 On 14 March 2005, Mr Dart wrote to the Registrar:

‘1. We have received today sealed copies of the applicants’ Notice of Motion in matter QUD43 of 2005 for which the applicants thank you.

2. The applicants to matter QUD 43 of 2005 respectfully request that the hearing date as set down, that is 30 March 2005, be vacated in favour of a future date but not earlier than 15 June 2005 on the following grounds:

(i) At the time of writing, sealed copies of Orders and Reasons for Judgment of Dowsett J in matter Q203 of 2004 given at Brisbane on 10 February 2005, essential as reference material when preparing written submissions, had not been received by the applicants;

(ii) The matter involved complex issues of law that require in depth research and consideration, more especially by self-represented litigants;

(iii) To acquire and consider material relevant to complex issues involved, procedural fairness toward the applicants as self represented litigants, would demand substantially more time to research and prepare written submissions and related material than may otherwise be the case, if the applicants were aided and represented by qualified counsel;

(iv) By way of comparison, the hearing date, as set down, provides substantially less time for preparation and filing than that made available to respondents to matter Q203 of 2004 and, notwithstanding substantial time parameters allocated by the Court in that matter; respondents, aided and represented by qualified counsel, did not comply.

3. Further, due to financial difficulties of the applicants, of which the court is aware, which the applicants maintain flow from the conduct of which they complain, a respectful request is made that the matter be heard by video or telephone link.

4. The applicants respectfully request that these requests be placed before the judge.

5. the applicants refer to a Notice of Appeal dated 11 February 2005 received by the Court on 12 February 2005.

6. The applicants concede that the document referred to immediately above was misconceived and inappropriate.

7. As the document has not been filed and, five copies were returned bearing a stamp indicating receipt, the Court is hereby advised the applicants rescind their request.’

And the next part of that paragraph and paragraph 8 are illegible. Paragraph 9 says:

‘9. The applicants respectfully request that the Honourable Justice Kiefel to have regard to facts that:

(i) Application for Leave to Appeal orders of Justice Dowsett made on 10 February 2005 is now on foot by way of matter QUD43 of 2005;

(ii) The applicants have applied for the matter to be heard by a Full Bench of the Court;

(iii) Determination of matter QUD43 of 2005 will not or in the alternative, ought not to, or in the future alternative cannot, exhaust avenues available to the applicants to pursue just rights and remedies that ought to be available to them under the Law.’

The reference is to Kiefel J. There is also a reference to applications made by some of the respondents in the present motion that the applicants be declared vexatious. The letter further asserts that:

‘11. … those matters ought to be adjourned Sine die pending exhaustion of all avenues available to the applicants to matter Q203 of 2004 to secure rights and remedies under the Law on grounds that:

(i) Matter Q203 of 2004 was commenced pursuant to directions of the Court;

(ii) An Application for Leave to Appeal is on foot as matter QUD43 of 2005;

(iii) Matters arising from or in the alternative, that may arise from, QUD43 of 2005 will not be heard or determined until some indeterminate future time;

(iv) Determination of matter QUD43 of 2005 and, determination of future matters will be crucial to determination of matters before Justice Kiefel;

(v) It would be unjust to all parties involved to determine, either in the affirmative or negative, allegations that applicants to matter Q203 of 2004 were by commencement of that proceeding, vexatious litigants.’

12 On 22 March 2005, by facsimile, Mr Dart was advised as follows:

‘… In response to your letter dated 14 March 2005, please note the following.

I have conferred with the judge regarding your request to have the hearing date of 30 March 2005 vacated to a date after 15 June 2005. The judge has asked me to clarify with you and the other parties that the only matter that will be dealt with by him during that hearing is the issue of the competency of the application for leave, given the fact that an oral application made before the trial judge for leave to appeal was refused. Argument on this discrete point does not warrant an adjournment of the hearing.

The notice of appeal stamped received is a document necessary for the hearing of any application for leave to appeal, as consideration of the merits of the appeal is a factor in determining a question of leave. It is appropriate that a copy remain on the Court file and that copies be served on the respondents. It is usual in such cases that the notice of appeal be stamped received, rather than filed to correctly indicate a status. …’

13 On 23 March 2005, Mr Dart wrote a letter addressed to Brian Bartley and Associates (the solicitors for the fourth respondent) in the following terms:

‘Dear Sir or Madam:

FCA Matter QUD43 of 2005

By way of service upon your clients find the following documents:

(i) A chronological summary of relevant facts and litigation.

(ii) The applicants’ outline of submissions.

(iii) Authority relied on by the applicants.

(iv) An Amended Notice of Appeal.’

And then there are other matters in relation to correspondence from Messrs Brian Bartley and Associates and Mr Dart.

14 There is also on the court file an outline of submissions on behalf of the first and second respondents in relation to the notice of motion of the applicants dated 12 February 2005 and filed 12 February 2005 and to be heard 30 March 2005. That document bears a filing stamp indicating it was filed on 29 March 2005. It appears that the notice of motion was filed within time, but was not served within the time required by the rules. This is a consequence of delay by the Court in providing stamped service copies to the applicants on the motion.

15 An affidavit by Robyn Gay Lyons, filed by leave today on behalf of the third respondent, deposes to service of the notice of motion filed 12 February 2005 on the third respondent on 23 March 2005.

16 There is also on the court file a document headed “Outline of Submissions of the Applicants”, and attached to it is a document which had “page 6” and “page 8” at the bottom of the two pages. There are references to authorities highlighted in those two pages, and there is also a reference made to Wati v Minister for Immigration and Multicultural & Indigenous Affairs (1997) 178 FCR 543, to which case the attention of Mr Dart was directed in the correspondence by the Registrar. Passages highlighted in those pages include a passage from Dallhold Investments Pty Ltd (in liq) v Gold Resources Australia Ltd (Prov Liq Apptd) (1991) 131 FCR 587 at 596, where Gummow J referred to the Court’s ‘inherent power to prevent misuse of its procedures in a way which, although not inconsistent with their literal application, nevertheless would be manifestly unfair to a party to the litigation, or would otherwise bring the administration of justice into disrepute among right-thinking people.’

17 On the second page of the reference to authorities, the following is highlighted:

‘In the case of the High Court of Australia, the jurisdiction to correct even perfected orders has certainly been acknowledged. It has been explained in terms of that Court's position “as a final court of appeal to prevent irremediable injustice being done by the court of last resort”: see Codelfa (at 45).’

And, then, later is highlighted a passage from Donkin v AGC (Advances) Ltd [1995] FCA 696 where Davies J referred in some detail to the authorities and said that he was prepared to assume that the Court could ‘reopen a case if there were a truly exceptional circumstance apart from fraud which required a matter to be reopened in the interests of justice.’

18 I have referred in detail to part of the correspondence. On 29 March 2005 a letter was sent to Mr Dart by facsimile or, at least, attempted to be sent by him by facsimile, three times between 3.00 and 3.30. The letter in part says:

‘I refer to your letter dated 23 March 2005, which was received in the Registry on 29 March 2005.

Please find enclosed service copies of the chronology, submissions and authorities. The Court will not dispense with any requirement to serve sealed copies as you have requested. It is a matter for you whether or not you decide to effect proper service of these documents on the respondents.

The document entitled amended notice of appeal is returned herewith. If the issue of competency of your application for leave is determined in your favour, you may resubmit the document and I will further consider the matter.’

It is signed for C. Reynolds, Deputy District Registrar. There is a notation on the file saying that Mr Dart was telephoned and that he claimed that his fax was broken.

19 It is against the background of those circumstances and the fact that Mr Dart is not answering his phone as had been arranged, that I will now proceed to deal with the matter.

20 A letter of 29 March 2005 to the Registrar referred to this hearing, set down on 30 March and to correspondence dated 22 March from the Registrar. Paragraph 2 of that letter says:

‘2. The applicants respectfully lead the Court to a request for the matter to be heard by telephone or video link conveyed by correspondence FCA 169 dated 14 March 2005, at paragraphs 3 and 4.

3. The Court is respectfully advised that flowing from financial difficulties as stated at paragraph 3, the applicants will not be able to appear in Court at Brisbane.

4. At time of writing, response to a request for a telephone or video link has not been received.

5. In absence of a response, it has not been possible to arrange for the applicants to be available together at a suitable time or place to participate in a telephone or video link.

6. Having regard to the preceding paragraphs and the applicants submission that belated delivery of Reasons for Judgment jeopardised their cause, inter alia by preventing timely formulation and service of submissions in accordance with directions to the Court; the applicants respectfully request the judge:

(i) To adjourn the matter to a date to be fixed;

(ii) Conduct the adjourned hearing by telephone or video link. …’

21 As the material shows, there has been a persistent attempt by Mr Dart to have the only question which is relevant for this morning’s proceedings postponed. The point is a short one, and the reason it was listed for determination as a separate and discrete point is that it is quite irrelevant, in the determination of the point, to determine whether leave to appeal might be granted should the application for leave be competent.

22 In relation to the sole matter for which this hearing was arranged, the outline of submissions for the applicants commence with the following paragraph:

‘Notwithstanding the applicants’ submissions that Justice Dowsett seriously erred on 10 February 2005 when giving judgment in FCA matter Q203 of 2004; the applicants submit that their application has been prejudiced by the judge, who did not deliver Reasons for Judgement in a timely manner and accordingly, leave to appeal ought to be granted forthwith on grounds that:

(i) The applicants filed a Notice of Motion seeking leave to appeal dated 12 February 2005, which was well within the time prescribed by the rules;

(ii) The Notice of Motion stated the grounds on which the applicants rely;

(iii) By correspondence dated 11 March 2005, the court advised that His Honour had not delivered Reasons for Judgement in matter Q203 of 2004 by that time;

(iv) It would not be reasonable for the Court to assert that Justice Dowsett was not apprised of the fact that the applicants had filed a Notice of Motion, or that His Honour would not have regard to grounds relied on by the applicants and be influenced by those grounds when formulating Reasons for Judgement that are dated 17 March 2005.’

Paragraph 2 provides:

‘Further notwithstanding, the Court ought not to declare the Notice of Motion incompetent as uncontested evidence before the Court on 10 February 2005 disclosed “exceptional circumstances” addressed by FCR Order 35 rule 7(2) that ought to have been upheld by Justice Dowsett to avoid irremediable injustice.’

Paragraph 3 alleges serious error by Dowsett J in particular matters.

Paragraph 4 says:

‘Notwithstanding that evidence adduced before the Court disclosed prima facie offences related to Administration of Justice; the matter before the Court on 10 February 2005 was nonetheless a civil proceeding and, Justice Dowsett was bound by Law to apply section 140 of the Evidence Act 1995.’

23 Further matters in the submissions are directed to the merits of the proceedings and of the orders made by Dowsett J. There does not seem to be, in those written submissions, any direct attempt to confront the difficulty facing the applicants in the light of the circumstance that an application for leave to Dowsett J was made after he had delivered judgment orally on 10 February 2005.

24 The outline of submissions on behalf of the first and second respondent recites in par 3 that:

‘Immediately following the giving of his Reasons for Judgment, the Dart family made oral application to Dowsett J for leave to bring an appeal from the judgment of Dowsett J just given; that application was heard and then refused by Dowsett J. That application can only have been brought pursuant to Order 52 Rule 10(1) of the Federal Court Rules.’ (my emphasis)

25 The outline on behalf of the first and second respondents, in par 4 says:

‘The orders of Dowsett J made 10 February 2005 constitute an “interlocutory judgment” for the purposes, and within the meaning, of Order 52 Rule 10 of the Federal Court Rules.’

And the submissions continue at par 5:

‘Presumably, the application for leave to appeal which is brought before the Court on 30 March 2005 is an application for leave to appeal brought pursuant to Order 52 Rule 10(2) of the Federal Court Rules.’

26 It is contended on behalf of the first and second respondents that an application for leave to appeal brought pursuant to O 52 r 10(2) of the Federal Court Rules can only be brought where that applicationfor leave to appealhas not been made in accordance with O 52 r 10(1) of the Federal Court Rules. An application for leave to appeal had been made in accordance with that first subrule, and it was submitted that, accordingly, this application for leave to appeal is incompetent.

27 The submissions on behalf of the third respondent, amongst other things, refer to the requirements of O 52 r 10 and, in particular, on behalf of the third respondent it was submitted that a party has no right to make a second application to the Full Court for leave to appeal. The third respondent submits that the notice of motion, insofar as it relates to Sydney Ronald Dart, is incompetent for the reason that Mr Dart elected to make an application orally before Dowsett J and was not entitled to make a second application. It was further submitted that the notice of motion, insofar as it relates to Frederick Dart, is incompetent for the reason that even though Mr Dart was not specifically asked about the application for leave to appeal, he was present in Court, had adopted the submission made by his father in respect of the applications brought by the respondents and did not object to the application.

28 The third respondent submitted that insofar as Mrs Dart is concerned no oral application for leave was made on her behalf as she was unrepresented on the hearing on 10 February 2005, Mr Dart having been refused leave to appear on her behalf by Dowsett J. The service of the notice of motion on the third respondent was not effected by 19 February 2005 in compliance with the requirements of O 52 r 10, and it was therefore submitted that the application for leave to appeal has not been properly instituted. No application has been made by Mrs Dart for an extension of time within which to seek leave to appeal.

29 In relation to the fourth respondent, an affidavit by Sarah Grace Greer, filed today by leave, deposes to the fact that the notice of motion by the applicants in these proceedings was served on 16 March 2005, which is outside the time required by O 52 r 10. The affidavit deposes to the fact that that the applicants’ chronology, summary of facts, submissions and list of authorities were not received in accordance with the directions which had been made by the Court but, in any event, the submission is made that an application for leave to appeal was made by Mr Dart and was refused by His Honour.

30 Section 24(1) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) provides that:

‘… the Court has jurisdiction to hear and determine:

(a) appeals from judgments of the Court constituted by a single Judge; …’

Section 24(1A) provides:

‘An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.’

Section 25(2) of the Act provides that:

‘Applications:

(a) for leave or special leave to appeal …

may be heard and determined by a single Judge or by a Full Court.’

Order 52 Rule 10 provides:

‘(1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement.

(2) (a) Where an application has not been made in accordance with subrule (1), an application may be made by motion on notice to a single Judge or to a Full Court, and the provisions of Order 19 shall apply.

(b) 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) An applicant under subrule (2) may present his or her case and argument in writing pursuant to Rule 15A.’

31 As what has been said earlier makes plain, after Dowsett J struck out the applicants’ statement of claim and delivered his reasons on 10 February 2005, Mr Dart orally applied for leave to appeal. I have set out the terms of that application and the grounds advanced in support of that application, and the fact that Dowsett J refused to grant leave. This second application for leave to appeal is incompetent. There can be no appeal from an order of a Judge granting or refusing leave to appeal under s 24(1)(1A) of the Act, and the application for leave cannot be renewed to a Full Court.

32 Consideration of an application for leave to appeal is an exercise of the Court’s appellate jurisdiction, and a Court cannot hear an appeal from its own decision on appeal: Hamod v New South Wales [2002] FCAFC 97. In Reid v Nairn (1985) 60 ALR 419 (“Reid v Nairn”), an application for leave to appeal from an interlocutory decision was refused by a single Judge of the Court. The application was renewed and brought before the Full Court, which was asked, in the alternative, to treat it as an appeal from the refusal to grant leave. Fox and Foster JJ, after referring to section 25(2) of the Act said at 421:

‘ In our view, this language, and particularly the use of “determined”, makes it reasonably plain that the issue is to be decided by a judge or by a Full Court, whichever is first seized of the matter. There are the alternatives, but they are true alternatives and are not to be understood in the progressive sense that the appellant relies upon.’

33 The appeal from the refusal of leave and the renewed application for leave to appeal were both dismissed by the Full Court. Reid v Nairn has been consistently followed. It was followed by a Full Court in Thomas Borthwick and Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 (“Thomas Borthwick”). That, again, was a case in which a single judge of the Court refused leave to appeal against an interlocutory judgment. The applicant for leave sought the leave of the Full Court to appeal both against the judgment and against the single judge’s refusal of leave.

34 The Court followed Reid v Nairn and said at 432:

‘In our opinion, s 24(1A) and 25(2) of the Federal Court Act, when read together, mean that application may be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment … A party must elect to apply for leave to appeal to this Court constituted by a single Judge or a Full Court. As the Court remarked in Reid v Nairn, the parties’ election is between the alternatives which are neither progressive nor successive. Once the order has been made granting or refusing leave, no appeal lies from that order. …’

35 In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 (“Wati”), the Full Court again followed the decision in Thomas Borthwick in dismissing as incompetent an appeal to the Full Court from a refusal by a single judge to allow an extension of time in which to institute an appeal against a judgment of another judge of the Court. In Atkinson v Commission of Taxation (2000) 46 ATR 32, to which Mr Dart’s attention was drawn by the Registrar, the Full Court noted that Wati is ‘authority for the proposition that a single judge hearing an application to extend time to appeal against a decision of a single judge of this Court exercises the appellate jurisdiction of this Court. …’

Their Honours added:

‘In Wati, the Full Court left open the possibility that in a case such as the present the Full Court might, in the exercise of what may be referred to as inherent or perhaps implied jurisdiction, to be able to reopen the application originally made. However, if such a jurisdiction does exist it is clear that it could arise only in circumstances which were, as their Honour said, “truly exceptional”. Such a course might, as their Honours observed, be available in circumstances where before the single judge, for some reason, there was a failure on the part of that judge to afford an applicant the right to be heard or perhaps where the application was conducted otherwise in a way which was not fair.’

36 It is clear from the transcript of the proceedings, and of the oral application for leave to appeal, and the grounds urged in support of it, that no “truly exceptional” circumstances or “exceptional” circumstances exist in this case. The notice of motion seeking leave to appeal from the orders made by Dowsett J on 10 February 2005 is incompetent and will be dismissed.

37 It should be noted that the notice of motion seeking leave to appeal purported to be filed on behalf of each of the three applicants. It purports to be a joint motion. In the view I take of the matter, the application for leave to appeal is incompetent in respect of the applicant, Sydney Ronald Dart, and in my judgment also is incompetent in respect of Frederick William Dart, having regard to the circumstances in which the application for leave to Dowsett J was made.

38 Insofar as the notice of motion may be thought to relate to an application by Shirley Norma Dart she, in my view, is not fixed with having applied for leave to appeal the orders of Dowsett J on 10 February, because Mr Dart was not acting for her on that day. Insofar as the notice of motion seeking leave to appeal is an application for leave to appeal by Shirley Norma Dart, it is not properly instituted, by reason of the operation of O 52 r 10.

39 The notice of motion, filed 12 February 2005, by the applicants is dismissed as incompetent, in the case of the two male applicants, and for non-compliance with the requirements of order 52 rule 10, in respect of the female applicant. The applicants should pay the costs of each of the respondents, of and incidental to the notice of motion, to be taxed if not agreed.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 30 March 2005

Counsel for the Applicants:	There was no appearance for the Applicants

Solicitor for the 1^st & 2^nd Respondents:	Connolly Suthers Lawyers

Solicitor for the 3^rd Respondent:	Flower & Hart

Solicitor for the 4^th Respondent:	Brian Bartley & Associates

Date of Hearing:	30 March 2005

Date of Judgment:	30 March 2005

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