FEDERAL COURT OF AUSTRALIA

Scott Russell Constructions Pty Limited (in liq), in the matter of Scott Russell Constructions Pty Limited (in liq) v Queensland Building and Construction Commission [2020] FCA 26

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to ss 23 and 37P of the Federal Court of Australia Act 1976 (Cth) and rr 1.32 and 1.36 of the Federal Court Rules 2011 (Cth), these orders and the reasons for judgment in support of these orders are made and published from Chambers.

2.    By close of business on 28 January 2020, the Second Applicant is to submit drafts of the Part A Index and Part B Index of the Appeal Book for approval by the Registrar.

3.    By close of business on 25 February 2020, the Second Applicant is to file and serve a copy of his outline of submissions and chronology on each Respondent.

4.    By close of business on 31 March 2020, the Respondents are to file and serve a copy of their outline of submissions and chronology on the Applicants together with a list of materials they require to be included in Part C.

5.    By close of business on 7 April 2020, the Second Applicant is to file and serve a copy of any submissions in reply on the Respondents.

6.    By close of business on 22 April 2020, the Second Applicant is to file and serve Part C on each Respondent.

7.    By close of business on 22 April 2020, the Second Applicant is to file and serve a list of authorities and legislation.

8.    By close of business on 24 April 2020, the Respondents are to file and serve a list of authorities and legislation.

9.    The application for leave to appeal and the appeal are to be heard concurrently in the August 2020 sittings of the Full Court of the Federal Court of Australia.

10.    Liberty to apply on three days’ notice.

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

REASONS FOR JUDGMENT

REEVES J:

1    Scott Russell Constructions Pty Limited (in liquidation) and Mr Scott Russell have applied for leave to appeal the judgment of Greenwood J delivered on 26 August 2019 ([2019] FCA 1378). In that judgment, among other things, his Honour dismissed Mr Russell’s application seeking leave to bring certain proceedings in the name of Scott Russell Constructions Pty Limited (in liquidation). The present application is brought under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

2    At the first case management hearing of the application, written submissions were sought as to whether ss 24(1AA)(a) and 20(3)(a) of the Federal Court Act had any effect on the competency of the application. Those sections relevantly provide:

[Section 24(1AA)]

An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is:

(a)    a determination of an application of the kind mentioned in subsection 20(3); or

…

[Section 20]

(1)    Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.

(1A)    If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

(1B)    Subsection (1A) does not apply in relation to indictable primary proceedings.

(2)    The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court.

 (2A)    Subsections (1A) and (2) have effect subject to subsections (3) and (5).

 (3)    Applications:

(a)    for leave or special leave to institute proceedings in the Court; or

…

must be heard and determined by a single Judge unless:

(e)    a Judge directs that the application be heard and determined by a Full Court; or

(f)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

3    In his written submissions, Mr Russell quoted the following passage of the Full Court decision in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 (Keane CJ, Gilmour and Logan JJ at [17]):

Reference to the text of s 20 of the Federal Court Act set out above, and, in particular, to s 20(2A), shows that s 20(3) is concerned only with cases involving the occasions of the exercise of the original jurisdiction of the Federal Court for which provision is made by s 20(1A) and (2). Section 20(3) does not speak, at all, to cases involving the exercise of the original jurisdiction of the Court by a single judge of the Court pursuant to s 20(1) of the Federal Court Act. It can, therefore, be seen that s 24(1AA) is concerned to preclude appeals from orders made by a single judge in matters in which the original jurisdiction of the Court is to be exercised by a Full Court by reason of s 20(1A) or s 20(2) of the Federal Court Act.

4    Based on these observations, Mr Russell submitted that, since this matter was heard by Greenwood J pursuant to s 20(1) of the Federal Court Act, s 20(3)(a) did not apply to it and therefore the matter also did not fall within s 24(1AA)(a). In its submissions, the Queensland Building and Construction Commission (the respondent) agreed.

5    The common position of the parties on this matter is plainly correct. Neither s 20(3)(a) nor, as a consequence, s 24(1AA)(a) of the Federal Court Act applies to this application. Conversely, Scott Russell Constructions Pty Limited (in liquidation) and Mr Russell have properly sought leave to appeal under s 24(1A).

6    Orders will be made accordingly.

Associate:    

Dated:    21 January 2020