FEDERAL COURT OF AUSTRALIA

Caldar v Carlsund [2007] FCA 902

RUSSELL CALDAR v DEBORAH CARLSUND AND PUBLIC TRUSTEE OF NSW

NSD 897 OF 2007

BRANSON J

8 JUNE 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be refused.

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

REASONS FOR JUDGMENT

1                     The applicant has applied for leave to appeal from a judgment of the Court pronounced by Madgwick J on 15 May 2007.  On that day, his Honour dismissed an application made by Mr Caldar on the ground that it disclosed no reasonable cause of action.  The application brought by Mr Caldar was that an intended ‘Special Leave to Appeal Application be moved into the High Court list’.  As his Honour noted, this was a reference to an intended application dated 9 September 2005 for special leave to appeal to the High Court from three judgments of individual judges of the New South Wales Supreme Court, namely a judgment of Giles JA of 29 August 2005, a judgment of Campbell J of 8 July 2005 and a judgment of White J of 22 April 2005.

2                     Mr Caldar has provided a draft notice of appeal in support of his application for leave to appeal.  That draft notice of appeal discloses two proposed grounds of appeal.  The first is apprehended bias.  I understand that to be a claim that a reasonable person might think that Madgwick J might not have entertained the application made by Mr Caldar with an open mind.  Mr Caldar is particularly concerned about two aspects of the conduct of the learned primary judge.  First, that his Honour indicated that it was ‘quite inappropriate’ that an officer such as the High Court Registrar should come to the Federal Court to defend herself.  Secondly, that his Honour insisted that the Public Trustee have an opportunity to be heard on the application on the basis that the Public Trustee had an interest in the judgments of the Supreme Court of New South Wales with respect to which Mr Caldar wishes to seek special leave to appeal.

3                     In my view, the allegations of apprehended bias are without substance.  They reflect a failure by Mr Caldar to understand properly the remarks of his Honour and the respective roles played by the Registrar of the High Court and the Public Trustee in the context of the application which came before his Honour. 

4                     The second proposed ground of appeal is that Madgwick J failed to exercise the powers conferred upon him by various provisions of the Federal Court of Australia Act 1976 (Cth) and the common law.  This proposed ground of appeal reflects a failure to understand the nature and extent of the jurisdiction of the Federal Court, and that the statutory and implied powers of the Federal Court may only be exercised where its jurisdiction is properly invoked.  His Honour held, consistently with authority, that the jurisdiction of this Court does not extend to reviewing the conduct of the Registrar of the High Court in accepting, or refusing to accept, documents for filing in the High Court (see, for example, Gunter v Doogan [2003] FCA 667).  The High Court is the appropriate judicial forum for the review of this conduct.

5                     In my view the judgment of Madgwick J is not attended by doubt.  It would be inappropriate for leave to appeal from that judgment to be granted. 

6                     The application for leave to appeal is refused. 

Associate:

Dated:         13 June 2007