FEDERAL COURT OF AUSTRALIA

O’Donoghue v Department of Immigration and Citizenship [2012] FCA 1162

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) the notice of appeal filed 5 October 2012 is dismissed as incompetent.

2.    The applicant must pay the respondents’ costs of today.

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

REASONS FOR JUDGMENT

Revised from transcript

1    On 3 October 2012 the primary judge (Barker J) made orders fixing a proceeding for judicial review for hearing and for the filing of affidavit evidence. On 5 October 2012 the applicant in that proceeding, Mr O’Donoghue, filed a notice of appeal from his Honour’s orders. In his notice of appeal Mr O’Donoghue asserts (inter alia) that the primary judge was biased against him and that his Honour acted beyond power.

2    On 12 October 2012 I made orders in Chambers listing Mr O’Donoghue’s appeal before me for the purpose of considering whether or not the appeal should be summarily dismissed as incompetent and whether, in the event that I was to treat the notice of appeal as an application for leave to appeal, leave to appeal should be granted.

3    The proceeding before the primary judge is listed for hearing tomorrow. During the course of today’s hearing Mr O’Donoghue was reminded that the interlocutory orders made by his Honour continue to operate with full force and effect unless and until set-aside.

4    I indicated to Mr O’Donoghue that I would be willing to treat his notice of appeal as an application for leave to appeal against the orders of 3 October 2012. He said to me that he was not in a position to deal with any such application today. He therefore did not wish me to take that course. He made an oral application for an adjournment.

5    It is clear Mr O’Donoghue’s appeal against the orders of 3 October 2012 is incompetent. The orders made by the primary judge were interlocutory orders. Under the Federal Court of Australia Act 1976 (Cth) (the Act) an appeal may not be brought against an interlocutory order unless leave to appeal is given: see s 24(1) and (1A) of the Act. For their part, the respondents submit that Mr O’Donoghue’s appeal against the orders of 3 October 2012 should be dismissed as incompetent.

6    Section 31A(2) of the Act provides:

The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

For the purposes of s 31A(2), a “proceeding” includes an appeal, and a “judgment” would include an order summarily dismissing an appeal as incompetent: see the definitions of “proceeding” and “judgment” in s 4 of the Act.

7    Part III Div 2 of the Act establishes the appellate and related jurisdiction of the Court in civil proceedings. Pursuant to s 25(2B)(aa) of the Act, a single judge may give summary judgment in the appellate jurisdiction of the Court. Where a proceeding in the appellate jurisdiction has no prospects of success, it is open to a single judge to summarily dismiss such a proceeding on that basis. In the present case I am satisfied that the requirements of s 31A(2) of the Act are satisfied, and I am also satisfied that it is open to me to act under s 25(2B)(aa).

8    The question arises as to whether there are any discretionary reasons which weigh in favour of either dismissing or not dismissing the appeal summarily ahead of the matter being listed before a Full Court.

9    In the present case there does not seem to be any good reason not to make an order summarily dismissing the appeal. Mr O’Donoghue invited me to stand the appeal over generally. I am not inclined to do that. He will have a right of appeal against any final orders that may be made by the primary judge, should he fail to persuade his Honour to grant the relief that he claims in his proceeding for judicial review. In the circumstances, it seems to me that there is nothing to be gained by allowing what is an obviously incompetent appeal to proceed to a hearing before a Full Court.

10    I will make an order dismissing the appeal pursuant to s 31A(2) of the Act on the ground that it is incompetent. The applicant must pay the respondents’ costs of today.

11    Orders accordingly.

Associate:

Dated:    24 October 2012