FEDERAL COURT OF AUSTRALIA

Worchild v Queensland Television Ltd [2005] FCA 1894

Thomas Borthwick and Sons (Pacific Holdings) Ltd v Trade Practices Commission (1998)

18 FCR 424cited

Hamod v New South Wales (2002) 188 ALR 659 cited

Federal Court Rules O 52 r 10, O 52 r 15

ANDREW WORCHILD v QUEENSLAND TELEVISION LTD ACN 009 674 373

No QUD 296 of 2005

SPENDER J

16 DECEMBER 2005

BRISBANE

THE COURT ORDERS THAT:

1.        The notice of motion filed 18 November 2005 is incompetent and is dismissed.

2.        The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is a hearing concerning the competency of a notice of motion which Andrew Worchild filed in the court on 18 November 2005.  The notice of motion, which is stamped by the registry, commences:

‘The abovenamed applicant will at 10.15 am on 16 December 2005 at Federal Court of Australia,

Level 7

Federal Court of Australia

Commonwealth Law Courts

119 North Quay

Brisbane QLD 4000

move the Court for orders:

1.      That pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth)  the applicant be granted leave to appeal; and/or

2.      That pursuant to s 32 of the Federal Court of Australia Act 1976 (Cth) the Applicant be granted leave to Appeal; and/or

3.      That pursuant to Order 52 rule 15 the applicant be granted leave to Appeal; and/or

4.      That pursuant to Order 52 rule 10 the Applicant be granted leave to Appeal; and/or

5.      Such further relief and other orders that the Court considers appropriate; and

6.      Costs.’

2                     It is signed, dated 18 November 2005, and is addressed to the respondent of Queensland Television Limited, ACN 009674373, Level 2, 54 Park Street, Sydney, New South Wales, 2000.

3                     I directed that the notice of motion be listed today for hearing, the hearing to be restricted to the competency of the notice of motion.  It appears that Mr Worchild has not served the notice of motion and supporting affidavit on Queensland Television Limited.  A copy of the application and the affidavit in support of the application was sent by the Registrar advising the respondent that the notice of motion had been filed and was listed for hearing today.

4                     Yesterday a solicitor, Andrew Shute of Minter Ellisons, had a telephone conversation with Mr Worchild in which Mr Shute says Mr Worchild informed him that he had no intention of appearing at the hearing of the motion tomorrow, and that he had not served the notice of motion.  Mr Shute requested that Mr Worchild send to Mr Shute an email in this regard.  An email was received from Mr Worchild in the following terms:

‘Dear Colleagues,

As discussed pursuant to the telephone conversation today.  I have not caused the notice of motion to be served upon it, and I will not appear tomorrow.’

5                     The fact that Mr Worchild has not served the notice of motion does not affect the question of its competency. 

6                     After judgment was given by Dowsett J in the proceedings before him on 11 November 2005, Mr Worchild made an oral application for leave to appeal Dowsett J’s orders dismissing Mr Worchild’s application and awarding the respondent its costs of the proceeding, including the costs of the notice of motion and reserved costs.

7                     The reasons for judgment of Dowsett J, which were delivered extempore and have been reduced to writing subsequently, record:

‘8.   In those circumstances, the application should be dismissed with costs, including reserved costs, and including the costs of the motion today.

9.    An application has been made for leave to appeal.  As I have said, I consider that such claims as could be within the jurisdiction of this Court are simply unmaintainable.  In those circumstances, I can see no valid basis for any appeal.  It would be a waste of the time of the Full Court if I were to give leave in those circumstances.  I decline to do so.  The applicant, of course, is at liberty to pursue the non-federal aspects of his claim in the state courts, or at least, I would imagine that he is.’

8                     The application for leave to appeal by the notice of motion filed on 18 November is incompetent. 

9                     Order 52 rule 10 of the Federal Court Rules 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)     If an application has not been made in accordance with subrule (1), an application may be made by motion on notice.’

10                  The effect of O 52 r 10 is to provide exclusive alternatives for the bringing of an application for leave to appeal.  Once an application for leave to appeal is made orally in reliance on subrule (1), the entitlement to make the application by motion or notice is spent:  Thomas Borthwick and Sons (Pacific Holdings)  Ltd v Trade Practices Commission (1998) 18 FCR 424; Hamod v New South Wales (2002) 188 ALR 659 at 663.

11                  The consideration of an application for leave to appeal is an exercise of the Court’s appellate jurisdiction, and the Court cannot hear an appeal from its own decision on an appeal. 

12                  For completeness, I should mention that subrule (2) of O 52 r 15 does not provide a basis for successive applications for leave to appeal.  Rule (15)(2) is directed to the need for an applicant to advance special reasons sufficient to justify a departure from the ordinary rule prescribing the period within which an appeal must be filed and served.  It is not a separate power, which permits successive applications for leave to appeal.

13                  The notice of motion seeking leave to appeal, which was filed 18 November 2005, is incompetent.  It is dismissed with costs.

Associate:

Dated:              19 December 2005