FEDERAL COURT OF AUSTRALIA
Australian Equity Investors, an Arizona Limited Partnership v Colliers International (NSW) Pty Ltd [2011] FCA 1198
IN THE FEDERAL COURT OF AUSTRALIA |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth), the application for leave to appeal be heard and determined by a Full Court.
2. Subject to any contrary direction by the Full Court, the application for leave to appeal be heard concurrently with or, alternatively, immediately before any appeal.
3. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1605 of 2011 |
BETWEEN: |
AUSTRALIAN EQUITY INVESTORS, AN ARIZONA LIMITED PARTNERSHIP First Applicant THE 258 NEST, AN ARIZONA LIMITED PARTNERSHIP Second Applicant |
AND: |
COLLIERS INTERNATIONAL (NSW) PTY LTD ACN 001 401 681 Respondent |
JUDGE: |
ROBERTSON J |
DATE: |
18 OCTOBER 2011 |
PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 Despite appearances, the volume of material and the length and complexity of the submissions before me this morning, I am dealing only with a very limited question, that is: who should decide the question of leave to appeal, a single judge or a Full Court?
2 I am not deciding this morning whether leave ought to be granted. The issue therefore is largely one of pragmatism in terms of the efficient operations of the Court.
3 I am not going to say anything specific about the merits of the prospective appeal for at least two reasons: one is that that is not the test that the authorities have established and secondly, and I assume it is part of the reason for that test, lest I as the judge dealing with an application such as the present may need to be a member of any Full Court. All I would say about the grounds is that not all of them are self-evidently hopeless or unarguable. Whether some of them hopeless or unarguable is not a matter on which I act for the purposes of today.
4 In my view an important consideration for present purposes is that in terms of the great variety of matters that might require leave under s 25 of the Federal Court of Australia Act 1976 (Cth) the present matter is not one which is at the mere practice and procedure end of the spectrum within s 25. I take into account where this application stands on the spectrum from mere practice and procedure to matters of substance in terms of s 25.
5 Also, as I understand it, there is likely to be a substantial overlap between the question of leave to appeal and the merits of any appeal.
6 I also take into account s 33(4B)(a) of the Federal Court of Australia Act. That is, subject no doubt to constitutional considerations, an appeal must not be brought to the High Court from a judgment of the Court if the judgment is a determination of an application of the kind mentioned in s 25(2), which this one would be.
7 For these short reasons, my decision is, in terms of s 25(2)(e) that I direct that the application for leave be heard and determined by a Full Court and that, subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with or alternatively immediately before any appeal.
8 I would not see it as necessary or indeed particularly meaningful to direct that the parties do anything in terms of a practice note.
9 I reserve costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. |
Associate:
