Federal Court of Australia

Natch v Stennson Pty Ltd [2022] FCA 801

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 30 June 2022 be dismissed.

2.    There be no order as to costs.

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

EX TEMPORE REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MCEVOY J:

1    On 30 June 2022 Mr Mohan Natch and others succeeded in filing a notice of appeal purporting to appeal from the orders of O’Callaghan J dated 2 June 2022 in proceeding VID720/2021. It would seem that the notice of appeal was accepted for filing in error.

2    The orders made by O’Callaghan J dismissed the application for an extension of time and leave to appeal made by the applicants, and required them to pay the first respondent’s costs, to be agreed or assessed: Natch v Stennson Pty Ltd [2022] FCA 641.

3    The application before his Honour for an extension of time and leave to appeal was in response to orders made by Anastassiou J in VID569/2019 on 27 October 2021 as follows:

1.     The Applicants have leave to discontinue their claims set out in the Applicants’ Further Amended Statement of Claim dated 1 October 2020 against the First Respondent on the condition that the Applicants pay the First Respondent its costs of and incidental to this proceeding, and its costs of bringing its cross claims and defending the Second Respondent’s cross claim, including all reserved costs, on a party and party basis, to be taxed in default of agreement.

2.     The First Respondent’s cross-claim against the Second, Third and Fourth Respondents dated 8 July 2021 is dismissed.

3.     The Second Respondent’s cross-claim against the First, Third and Fourth Respondents dated 15 February 2021 is dismissed.

4    The Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court: s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (“the Act”). In making the orders that he made, Anastassiou J was exercising the original jurisdiction of the Court.

5    An application for leave to appeal and for an extension of time within which to institute an appeal must be heard and determined by a single judge, subject to certain exceptions which are not presently relevant: s 25(2) of the Act.

6    A single judge exercising such jurisdiction is exercising the appellate jurisdiction of the Court pursuant to s 25 of the Act. This was the jurisdiction being exercised by O’Callaghan J.

7    An appeal can only be brought in the High Court of Australia from a judgment of the Court constituted by a single judge exercising the appellate jurisdiction of the Court if the High Court gives special leave to appeal: s 33(4) of the Act.

8    By the notice of appeal which has been accepted for filing the purported appellants seek, in effect, to appeal from the appellate jurisdiction of this Court to the appellate jurisdiction of this Court.

9    At the hearing in relation to the filing of the purported notice of appeal I explained the statutory regime under the Act to Mr Natch and invited him to make any oral submissions that he wished to make in relation to any of these matters. Mr Natch indicated that he accepted that his proposed appeal was incompetent and that it was regrettable that the Registry had accepted the notice of appeal for filing. He said that he wished to withdraw the notice of appeal.

10    The notice of appeal being incompetent, and having regard to Mr Natch’s indication that he wished to withdraw it, the appeal will be dismissed on the Court’s own initiative pursuant to r 1.40 and r 36.72(5) of the Federal Court Rules 2011 (Cth).

11    The respondent not having filed a notice under r 36.72(1) and the appeal having been dismissed as not competent, there will be no order for costs of the appeal: r 36.72(4).

12    The orders I will make are as set out at the commencement of these reasons.

Associate:

Dated:    7 July 2022