FEDERAL COURT OF AUSTRALIA

Gant v Commissioner Australian Federal Police (No 2) [2006] FCA 1494

PRACTICE AND PROCEDURE – oral application for leave to appeal – interlocutory orders

Held: Leave to appeal granted.

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9A

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules O 52 r 10(1)

Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 cited

Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391 applied

Meredith v Commissioner of Taxation (2002) 125 FCR 308 cited

Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539 applied

CHARLES GANT v MICK KEELTY COMMISSIONER AUSTRALIAN FEDERAL POLICE, CAROLINE LOUISA BOAST AND DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL QUEENSLAND

QUD 325 OF 2006

COLLIER J

10 NOVEMBER 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  The applicant is granted leave to appeal against orders made in QUD 325/2006 on 10 November 2006.

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

REASONS FOR JUDGMENT

1                     This morning in court I delivered judgment in relation to two notices of objection to competency filed by the first and third respondents to this matter. The notices were in respect of an application for an order of review filed by the applicant on 24 August 2006.

2                     My orders were as follows:

1.      The Federal Court of Australia has no jurisdiction to hear the application for an order of review filed by the applicant on 24 August 2006 against the first, second and third respondents.

2.      The application by the applicant for an extension of time for the Court to hear the application for an order of review filed by the applicant on 24 August 2006 against first, second and third respondents is refused.

3.      The applicant to pay the costs of the first respondent and the State of Queensland, to be taxed if not otherwise agreed.

3                     In my view the orders I made this morning are interlocutory orders as they do not finally determine all rights of the parties in issue. (An order upholding an objection to competency on the basis that a decision is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) is an interlocutory decision: Meredith v Commissioner of Taxation (2002) 125 FCR 308. Similarly an order rejecting an application for an extension of time to commence proceedings under the ADJR Act is an interlocutory order: Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129.)

4                     An appeal from an interlocutory judgment can only be brought if the Court or a Judge gives leave to appeal: s 24(1A) Federal Court of Australia Act 1976 (Cth). Under O 52 r 10(1) Federal Court Rules, an application for leave to appeal from an interlocutory order may be made orally to the judge who has pronounced the judgment at the time of its pronouncement.

5                     After I delivered judgment this morning, the applicant, who was self-represented in court, orally applied for leave to appeal against my decision to the Full Court of the Federal Court.

6                     I invited submissions from the respondents in relation to this application. Each of the respondents was represented in court by Counsel, however Counsel for the respondents made no submissions in relation to the application.

7                     The principles applicable to granting leave to appeal from interlocutory orders are reasonably well settled. It is necessary to show that the order in respect of which leave to appeal is sought is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave to appeal were refused: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539.

8                     I am very conscious that there are concurrent criminal proceedings in the Magistrates Court at Brisbane in respect of the applicant. The proceedings in the Magistrates Court are part-heard and are scheduled for further hearing on 22-24 January 2007. I am concerned that this Court may be being used to prevent those criminal proceedings in the Magistrates Court continuing as scheduled. Further, I note that the next scheduled Full Court hearings in this Court, which could hear an appeal by the applicant from the orders I made this morning, are not until February 2007. However, in applying the principles in Hydrocarbon Products and Telstra Corporation, I am satisfied that the orders in respect of which leave to appeal is sought are attended by sufficient doubt to warrant reconsideration in the sense that:

·         the orders raise important issues of law and the jurisdiction of the Federal Court under the ADJR Act, particularly in respect of s 9A, and

·         it is appropriate that these issues receive consideration by the Full Court.

9                     Despite the public interest in ensuring that criminal proceedings are not unnecessarily derailed, I am also satisfied that substantial injustice would result to the applicant if leave to appeal were refused.

10                  Accordingly, I grant leave to appeal to the Full Court of the Federal Court against the orders I made today.

ORDER

1.                  The applicant is granted leave to appeal against orders made in QUD 325/2006 on 10 November 2006.

Associate:

Dated:         15 November 2006