FEDERAL COURT OF AUSTRALIA

Lui v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 216

THE COURT ORDERS THAT:

1.    The appeal be dismissed as incompetent.

2.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 13 December 2011 Nicholas J dismissed Mr Lui’s appeal to this Court in its original jurisdiction as incompetent on account of a lack of jurisdiction: Lui v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 1482. Thereafter, Mr Lui commenced proceedings in this Court’s appellate jurisdiction by the filing of a notice of appeal (dated 16 January 2012). Subsequently, the Secretary filed an application to dismiss the appeal as incompetent. Both Mr Lui and the Secretary were content for the Secretary’s application to be dealt with on the papers and the application has been dealt with in that manner.

2    Generally, an order dismissing proceedings for lack of jurisdiction is interlocutory in nature: SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 418-419 [23] per French J, 429 [68] per Allsop J and 437 [114] per Tracey J. There may a controversy as to how that principle applies to cases where the determination that there is a want of jurisdiction itself rests on a finding of a jurisdictional fact. That controversy is not, however, pertinent in this case where no such suggestion arises.

3    It follows that the orders made by Nicholas J were interlocutory in nature. Section s 24(1) of the Federal Court of Australia Act 1977 (Cth) confers appellate jurisdiction on this Court from judgments exercising this Court’s original jurisdiction. By s 24(1A), however, an appeal does not lie from a judgment of a judge exercising the original jurisdiction if the judgment or order is interlocutory.

4    Since the orders made by Nicholas J were interlocutory, this Court lacks jurisdiction to entertain Mr Lui’s appeal unless he first obtains a grant of leave to appeal. Mr Lui submitted that ‘the judiciary has provided leave to appeal’ and that had been communicated to him by the Registry. The Court’s file contains no record of a judge having granted leave. That being so, he has not obtained such a grant. In these matters, the Court’s file is definitive. Accordingly, the appeal is incompetent and must be dismissed. I will order that the appeal be dismissed with costs.

Associate:

Dated:    12 March 2012