FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Link Solutions Pty Limited [2010] FCA 1461

THE COURT ORDERS THAT:

1.    The application for an extension of time for filing an application for leave to appeal be adjourned to Friday 19 November 2010.

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    The Australian Competition and Consumer Commission (the Commission) commenced a proceeding in the Court against a number of parties including Enterprise Finance Solutions Pty Limited (EFS) and CIT Group (Australia) Limited (CIT). Each of EFS and CIT moved for orders for summary dismissal, strike out and costs. Those applications were heard by a judge of the Court, together with a number of other interlocutory applications. The primary judge published reasons for the conclusions that she had reached in relation to all of those interlocutory applications on 25 August 2010.

2    In relation to the application by EFS, her Honour concluded that the pleading against EFS should be struck out and that, in the absence of any evidence to support certain factual allegations, EFS was entitled to an order under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Act) dismissing the proceeding. In relation to CIT her Honour reached a similar conclusion. The parties were directed to bring in short minutes of proposed orders. After further consideration the primary judge relevantly made orders on 10 September 2010.

3    Order 15 made on 10 September 2010 was that judgment be given for EFS in relation to the whole of the claims against EFS, and that the amended application, as against EFS, be dismissed pursuant to s 31A of the Act. By order 16, her Honour ordered the Commission to pay EFS’s costs of the proceeding.

4    By order 17 made on 10 September 2010, her Honour ordered that judgment be given for CIT in relation to the whole of the claims against CIT, and that the amended application, as against CIT, be dismissed pursuant to s 31A of the Act. By order 18, her Honour ordered that the question of CIT’s costs of the proceeding be reserved. Following further submissions by CIT, by order 3 made on 30 September 2010, the primary judge ordered the Commission to pay CIT’s costs of the proceeding:

    up to 11:00 am on 22 July 2009, on the party/party basis, and

    after that time, on the indemnity basis.

5    At some time after 4:30 pm on 7 October 2010, the Commission filed a notice of motion seeking leave to appeal from orders 15, 16 and 17 of 10 September 2010 and order 3 of 30 September 2010. The motion also sought an extension of time within which the Commission must file the application for leave to appeal from those orders. The motion came before me for hearing today, when the Commission made submissions to the effect that an extension of time was not required but that, if an extension of time for filing an application for leave to appeal is required, it is not within the competence of a single judge to extend time.

6    The substance of the contention in relation to whether an extension of time is required was that the various interlocutory applications to which I have referred were treated by the primary judge as a single matter, having directed that they all be heard together. Her Honour published reasons dealing with all of the interlocutory applications on the same day and, apart from the question of CIT’s costs, made orders on the same day. The Commission contends, however, that because the question of CIT’s costs was not finally resolved until order 3 of 30 September 2010, judgment was not pronounced in relation to the proceeding until that day.

7    In any event, as I have indicated, the motion was filed electronically after 4:30 pm on 7 October 2010. Under Order 1 rule 5A(7)(b) of the Federal Court Rules, the notice of motion is therefore taken to have been filed on 8 October 2010. It appears that an attempt had been made to file the document on 7 October 2010, but it was rejected. Be that as it may, the notice of motion was filed out of time. It follows, in my view, therefore, that it is necessary for the Commission to obtain an extension of time within which to file the motion for leave to appeal. That is, in effect, what is sought by the motion. That is to say, the Commission asks the Court to grant the extension nunc pro tunc.

8    The extension is needed because of the terms of Order 52, rule 10. Under rule 10, 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. If no such application is made, an application for leave to appeal must be made by motion on notice. The notice of motion must be filed, relevantly, within seven days after the date on which the interlocutory judgment was pronounced, or within such further time as the Court or a Judge may allow.

9    On any view, the judgment was pronounced no later than 30 September 2010, and the notice of motion was not filed within seven days after that date. In any event, I reject the Commission’s contention as to when judgment was pronounced. So far as EFS is concerned, the proceeding was totally disposed of on 10 September 2010, and that is the date on which any relevant judgment or order was pronounced. So far as CIT is concerned, the substantive orders pronouncing the dismissal of the proceeding were also pronounced on 10 September 2010 and an extension of time would have been required in relation to those orders, at least.

10    That leads to a more fundamental question, namely, whether a single judge may deal with the present application for an extension of time within which to file the application for leave to appeal. Section 24(1A) of the Act provides that an appeal must not be brought from a judgment of a single judge of the Court that is an interlocutory judgment, unless the Court or a judge gives leave to appeal. It is common ground that the orders in question are interlocutory orders. Clearly it is within the competence of a single judge to give leave to appeal.

11    Section 25(1) provides that the appellate jurisdiction of the Court must, subject to the other provisions of s 25, be exercised by a Full Court. It is common ground that the grant of leave to appeal is the exercise of appellate jurisdiction. Section 25(2) relevantly provides that certain applications, including an applications for leave or special leave to appeal to the Court or an application for an extension of time within which to institute an appeal to the Court, must be heard and determined by a single judge unless a judge directs that the application be heard and determined by a Full Court. Section 25(2B) also provides that a single judge, sitting in chambers or in open court, may make other orders in the exercise of the Court’s appellate jurisdiction.

12    The Commission contends, however, that the terms of s 25(2) do not extend to an application for an extension of time within which to file an application for leave to appeal. The Commission accepts that there is no rationale for such a meaning to be given to the provisions of s 25. The Commission says, however, that, properly understood, an application for an extension of time to file an application for leave to appeal is not an application for an extension of time within which to institute an appeal. That is to say, the filing of a notice of appeal is the institution of an appeal, not the preliminary step of filing an application for an extension of time within which to file the notice of appeal.

13    Order 52 rule 10(2A) provides that an application for leave to appeal from an interlocutory judgment must be filed within 7 days of the date on which the judgment was pronounced or within such further time as the Court or a judge may allow. Thus, the Judges, in making the Rules assumed that an extension could be granted by a single judge. That, of course is not decisive.

14    The question turns upon the proper construction of s 25. In construing a provision such as s 25, the purpose of the provision as a whole and its context must be borne in mind. The context of the provision must be considered, in the first instance, and not merely at some later stage when some ambiguity might be thought to arise. In some circumstances the apparently plain words of a provision, read in context, may give a different appearance. Inconvenience or improbability of a result can assist in preferring an alternative construction to a literal meaning, if the alternative construction is reasonably open and conforms to what is the apparent intention of the provision.

15    Clearly enough, the object of s 25(2) and s 25(2B) is to ensure that interlocutory applications in relation to the exercise of the Court’s appellate jurisdiction should be capable of being dealt with by a single judge rather than by a Full Court. Against that object, it is open to construe s 25(2)(b) as referring to all of the preliminary steps that are necessary for the institution of an appeal to the Court. It would be a most curious result that a single judge could deal with an application for leave to appeal and could deal with an application for an extension of time within which to file an appeal, but could not deal with an extension of time within which to file an application for leave to appeal.

16    Order 52 rule 10(2A) provides that an application leave to appeal from an interlocutory judgment must be filed within 7 days of the date on which the judgment was pronounced or within such further time as the Court or a judge may allow. Thus, the Judges, in making the Rules assumed that an extension could be granted by a single judge.

17    While there is something to be said for the literal construction advanced on behalf of the Commission, I consider that when one has regard to the overall context of s 25(2)(b), it should be construed as conferring upon a single judge the power to deal with an extension of time within which to file an application for leave to appeal. In the circumstances I am satisfied that I have power to deal with the motion, assuming in the exercise of discretion, I do not direct that the application be heard and determined by a Full Court.

18    I propose to stand the motion over for several days to a date convenient for the parties to argue that questions of whether the application should be referred to a Full Court and, if not whether an extension of time should be granted.

Associate:

Dated:    12 December 2010