FEDERAL COURT OF AUSTRALIA

Juries Against Illegal Laws Incorporated v The State of Tasmania

[2010] FCA 1277

THE COURT ORDERS THAT:

1.                  The application for an extension of time to apply for leave to appeal is dismissed.

2.                  The application for leave to appeal the decision of Justice Marshall dated 8 June 2010 is dismissed.

3.                  No order is made as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     Juries Against Illegal Laws Incorporated (‘the applicant’) filed an application in this Court on 4 February 2010.  The State of Tasmania (‘the State’) applied for, amongst other relief, summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (‘the Act’). 

2                     On 8 June 2010, Marshall J gave judgment for the State against the applicant. 

3                     The applicant now seeks, amongst other things, to proceed with its appeal against the judgment of Marshall J.  In essence, the applicant desires that I refer this proceeding to be heard by a Full Court comprising three judges. 

4                     I am bound to treat the judgment of Marshall J as interlocutory, and leave to appeal is therefore required: see Kowalksi v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42]-[43], per Spender, Graham and Gilmour JJ, approving Luck v University of Southern Queensland (2009) 176 FCR 268 at [101] per Rares J, with whom Graham J agreed at [58]).  There was a requirement that such application for leave should be made within seven days of the judgment.  This did not occur.  However, if I was of the view that the application otherwise had merit, I would have granted an extension of time in which to make the application for leave to appeal and to file and serve a notice of appeal. 

5                     Through the operation of s 25(2) of the Act, the application for leave to appeal must be heard and determined by a single judge unless (relevantly) a judge directs that the application be heard and determined by the Full Court. 

6                     I should indicate that even if leave to appeal was not required, any appeal instituted as of right would be subject to the same approach as I indicate below, although procedurally the matter would arise differently (see s 25(2B)(aa) of the Act). 

7                     I do not consider that the decision of Marshall J is attended by any doubt, let alone any sufficient doubt, to warrant reconsideration by a Full Court.  A grant of leave would be futile and any appeal instituted would have no prospect of success. 

8                     The applicant did not seem to take issue with the individual matters raised by the State in opposing the application for leave.  The applicant did provide me with a number of High Court authorities which did not contradict the principles of law relied upon by the State. 

9                     The submissions of the State before me in essence reflected the submissions which were made before Marshall J, and which his Honour adopted in reaching his decision.  I see no useful purpose in rehearsing each and every matter raised in those submissions.  I conclude that for the reasons set out by Marshall J, his Honour’s decision was incontestably correct.  I see no flaw in the approach adopted by his Honour, and the proposed notice of appeal contains no ground of merit.

10                  However, it is appropriate to make a number of observations on the submissions of the applicant. 

11                  It was suggested that s 31A of the Act was not applicable to ‘constitutional’ proceedings, of which this was one.  I see no basis for this submission as to the operation of s 31A.  The application before Marshall J was a ‘proceeding’, as defined in the Act, and s 31A applies to such a proceeding in its terms. 

12                  I observe that in the High Court of Australia’s decision in Spencer v The Commonwealth (2010) HCA 28, a proceeding before the Federal Court involving the interpretation of the Constitution, no question arose as to whether s 31A could potentially apply to enable summary judgment to be entered.  The High Court in Spencer did consider that the proceeding involved important questions of public and constitutional law, and potentially complex questions of fact.  In overruling the Full Federal Court, the High Court concluded that the proceeding before it was simply not a case in which the Federal Court could be satisfied that the applicant had “no reasonable prospect of successfully prosecuting the proceeding.”  However, no one suggested that s 31A could not be available to summarily dismiss a proceeding involving constitutional issues.

13                  The applicant also seemed to submit that the Federal Court could not hear and determine ‘constitutional matters’ or constitutional issues.  It was suggested that the sole court to hear such issues was the High Court of Australia.  The applicant requested that I ‘refer’ the proceeding to the High Court.  I am not empowered to accede to that request, and can see no basis upon which it can be submitted that the Federal Court cannot hear and determine constitutional issues in light of s 77 of the Constitution and s 39B(1A) of the Judiciary Act 1903 (Cth).  Of course, any party may seek to appeal to the High Court of Australia by applying to that court for special leave to appeal. 

14                  I make some further comments on the submissions of the applicant.  Undoubtedly the exercise of the power to summarily terminate proceedings must be exercised with caution.  There must be no real question to be tried.  A party is entitled to the opportunity to put a case, and to take advantage of interlocutory processes.  The applicant before me desires to attack the validity of State legislation, and calls in aid the ‘principles of human rights’ and the Magna Carta.  However, the applicant can only do so on the basis of the operation of the Constitution as applied and interpreted by the courts, ultimately by the High Court of Australia.  On this basis, the application before Marshall J was totally without merit for the reasons he gave, and for the similar reasons advanced before me by the State on the application for leave to appeal. 

15                  Submissions were also made by the applicant as to the circumstances surrounding the filing of documentation in the Registry of the Federal Court and as to the costs of this and other potential proceedings.  I was informed that the State will not be enforcing the cost orders made by Marshall J.  In light of my conclusion that any appeal against the decision of Marshall J would be futile and without merit, I propose to say nothing further on these ancillary matters.

16                  Therefore, for the above reasons, I dismiss the application for an extension of time to apply for leave to appeal and the application for leave to appeal from the orders of Marshall J made on 8 June 2010.

17                  On the morning of my pronouncing orders and giving the above reasons (11 November 2010), the High Court of Australia handed down its decision in South Australia v Totani [2010] HCA 39.  Since the delivery of my decision and reasons, and prior to any entry of the Court’s orders, I have considered this decision as the High Court again canvassed and applied the principles enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 

18                  In Totani, the High Court was considering specific State legislation which did not have the same features as the Family Violence Act 2004 (Tas).

19                  The principles enunciated by the High Court of Australia in Totani are consistent with the approach taken by Marshall J in his application of Kable (1996) 189 CLR 51.  I do not consider this Court of its own motion need re-open the application for leave to appeal in light of this recent decision of the High Court, and no application has been made to do so. 

Associate:

Dated:         19 November 2010