Australian Equity Investors, an Arizona Limited Partnership v Colliers International

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.